United States v. Anthony Dismuke

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1693

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

A NTHONY D ISMUKE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 07 CR 81—Lynn Adelman, Judge.

A RGUED JANUARY 6, 2009—D ECIDED JANUARY 27, 2010

Before K ANNE, W OOD , and S YKES, Circuit Judges.

S YKES, Circuit Judge. Anthony Dismuke was convicted

by a jury of being a felon in possession of a firearm

and sentenced to a statutorily mandated 15-year prison

term based on three prior convictions the district court

deemed to be “violent felonies” under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On appeal

he challenges both his conviction and his sentence.

Dismuke has a lengthy felony record and was found

in possession of two handguns during a search of his

2 No. 08-1693

home pursuant to a state-issued warrant. He moved to

suppress the guns, but the district court denied the

motion. On appeal Dismuke reiterates his claim that the

guns were inadmissible because the affidavit submitted

in support of the warrant application lacked sufficient

corroboration of information supplied by a confidential

informant. We disagree. Deferring as we must to the

decision of the judge who issued the warrant, see United

States v. McIntire, 516 F.3d 576, 577-78 (7th Cir. 2008),

we conclude that the affidavit contained enough inde-

pendent corroboration to support probable cause

to search Dismuke’s home. And even if it did not, there

is no reason to believe that the warrant-issuing judge

abandoned his neutrality or that the police did not act

in good faith. Accordingly, the guns were properly ad-

mitted at trial and Dismuke’s conviction is affirmed.

Dismuke also challenges his sentence, arguing that

under the Supreme Court’s decision in Begay v. United

States, 128 S. Ct. 1581 (2008), his Wisconsin felony con-

viction for vehicular fleeing is not a “violent felony” under

the ACCA and therefore should not have counted

toward the three convictions necessary to subject him

to the 15-year mandatory minimum sentence. We

disagree with this contention as well. Applying Begay

and reading our early post-Begay decision in United

States v. Spells, 537 F.3d 743 (7th Cir. 2008), in light of

the Supreme Court’s later decision in Chambers v. United

States, 129 S. Ct. 687 (2009), we conclude that Wiscon-

sin’s vehicular-fleeing offense qualifies as a violent

felony under the ACCA.

No. 08-1693 3

I. Background

On January 28, 2007, Milwaukee Police Officer

Anthony Randazzo applied for a warrant to search the

home of Anthony Dismuke for evidence of illegal fire-

arms possession. The affidavit Randazzo submitted in

support of the application relied primarily on informa-

tion the officer had received from a confidential infor-

mant. The affidavit, however, provided no information

about the informant other than the officer’s assertion

that he was “reliable.”

Randazzo began his affidavit with the customary expla-

nation of his law-enforcement experience: He was a 15-

year veteran of the Milwaukee Police Department and

had extensive training and experience working on

firearms investigations and with confidential infor-

mants. He then related the following information about

Dismuke: On January 27, 2007, Randazzo was contacted

by a “reliable” confidential informant who reported that

Dismuke, a felon, was in possession of “at least three

firearms.” More specifically, the informant told Randazzo

that Dismuke lived at 2528 W. Locust Street in Milwaukee

and that within the last week, the informant had seen

Dismuke at his Locust Street home in possession of a

shotgun and two handguns. Randazzo asked the

informant if he could identify Dismuke from a photo-

graph and the informant did so. Randazzo also verified

that the informant could distinguish between different

types of firearms.

Randazzo then consulted court records and confirmed

that Dismuke had prior felony convictions; the affidavit

4 No. 08-1693

listed the offenses, case numbers, and dates of several of

the convictions. Randazzo also checked the Wisconsin

Department of Transportation driver’s license database,

which confirmed that Dismuke lived at the address

provided by the informant. Randazzo then went to the

Locust Street residence and located an automobile regis-

tered to Dismuke parked behind the house. Finally, the

affidavit provided a description of the house, explained

the need to keep the informant’s identity confidential,

and requested no-knock authorization.

A Milwaukee County Court Commissioner reviewed

Randazzo’s affidavit that same day, found probable cause,

and issued a warrant to search Dismuke’s home for

evidence of unlawful possession of firearms. Officers

executed the warrant the next day and recovered two

handguns, ammunition, and documents identifying the

residence as Dismuke’s. The case was referred to fed-

eral authorities, and Dismuke was indicted for possessing

firearms as a convicted felon in violation of 18 U.S.C.

§ 922(g)(1). He moved to suppress the evidence from

the search, arguing that Randazzo’s affidavit was insuf-

ficient to support probable cause. The district court denied

the motion. The court concluded first that there was

probable cause to support the issuance of the warrant, and

in the alternative, the search was saved by the good-

faith exception articulated in United States v. Leon, 468

U.S. 897 (1984).

Dismuke was convicted following a jury trial, and his

presentence report (“PSR”) recommended that he be

sentenced as an armed career criminal, see 18 U.S.C.

No. 08-1693 5

§ 924(e), based on three Wisconsin convictions that quali-

fied as “violent felonies” under the ACCA. The three

convictions were: (1) armed robbery; (2) burglary; and

(3) vehicular fleeing from an officer. Dismuke objected

to the PSR’s conclusion that his conviction for fleeing

was a violent felony. The district court adopted the

PSR’s recommendation, found that Dismuke had three

violent-felony convictions, and imposed the ACCA’s

mandatory minimum sentence of 15 years.

II. Discussion

A. Search Warrant

Dismuke first challenges the district court’s denial of

his suppression motion. He argues that Randazzo’s

affidavit provided too little corroboration of the informa-

tion from the confidential informant and was therefore

insufficient to establish probable cause to search his

home. Because Dismuke contests the sufficiency of the

warrant affidavit, the question for us is not whether

the district court got the probable-cause question right

but whether the warrant-issuing judge did. “On that

issue we must afford great deference to the issuing

judge’s conclusion.” McIntire, 516 F.3d at 578 (internal

quotation marks omitted). We will uphold a finding of

probable cause to search “so long as the magistrate had

a ‘substantial basis for . . . conclud[ing]’ that a search

would uncover evidence of wrongdoing.” Illinois v.

Gates, 462 U.S. 213, 236 (1983) (quoting Jones v. United

States, 362 U.S. 257, 271 (1960) (alteration in original)).

6 No. 08-1693

Probable cause is a common-sense, nontechnical

inquiry, and an affidavit submitted in support of a search-

warrant application will be sufficient to support

a probable-cause finding if, “based on the totality of

the circumstances, the affidavit sets forth sufficient evi-

dence to induce a reasonably prudent person to believe

that a search will uncover evidence of a crime.” United

States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003). Even if

we conclude that the affidavit is insufficient to

establish probable cause, the evidence obtained in the

execution of the warrant need not be suppressed if the

police relied on the warrant in good faith. See Leon, 468

U.S. at 920-21. An officer’s decision to seek a warrant is

prima facie evidence that the officer was acting in good

faith. United States v. Watts, 535 F.3d 650, 657 (7th Cir.

2008). The good-faith exception thus applies unless the

affidavit was “so lacking in indicia of probable cause as

to render official belief in its existence entirely unrea-

sonable” or the warrant-issuing judge “wholly aban-

doned” his neutral judicial role and “serve[d] merely as

a rubber stamp for the police.” Leon, 468 U.S. at 923.

Where, as here, the affidavit submitted in support of a

search warrant relies on information supplied by an

informant, the totality-of-the-circumstances inquiry

generally focuses on the informant’s reliability, veracity,

and basis of knowledge. See United States v. Olson, 408

F.3d 366, 370 (7th Cir. 2005). Several factors inform the

analysis, including: (1) the degree of police corrobora-

tion of the informant’s information; (2) the extent to

which the information is based on the informant’s

personal observations; (3) the amount of detail provided

No. 08-1693 7

by the informant; (4) the interval of time between the

events reported by the informant and the warrant ap-

plication; and (5) whether the informant personally

appeared before the warrant-issuing judge to present

the affidavit or testimony. United States v. Koerth, 312

F.3d 862, 866 (7th Cir. 2002). “[A] deficiency in one

factor may be compensated for by a strong showing in

another or by some other indication of reliability.” United

States v. Brack, 188 F.3d 748, 756 (7th Cir. 1999) (citing

Gates, 462 U.S. at 233).

A complication here is that Randazzo’s affidavit de-

scribed the confidential informant as “reliable” without

offering any explanation for that assertion. We have

held that a wholly conclusory statement about an infor-

mant’s reliability is entitled to no weight; “information

obtained from a reliable source must be treated as infor-

mation obtained from an informant of unknown reliabil-

ity.” Koerth, 312 F.3d at 867 (internal quotation marks

omitted). But an informant’s “unknown reliability” is not

necessarily fatal to the probable-cause determination;

there may be a sufficient basis to sustain the probable-

cause finding under the totality of the circum-

stances. See Gates, 462 U.S. at 237-38. “Statements from

an informant of unknown reliability may in certain in-

stances serve to establish probable cause if, under the

totality of the circumstances, a reasonable person might

consider that the statements are worthy of credence.”

Koerth, 312 F.3d at 867-68 (citing Gates, 462 U.S. at 238).

In this situation, the extent to which the police have

corroborated the informant’s information—always an

important factor—is key. Id. at 868.

8 No. 08-1693

We see this as a close case. Randazzo’s affidavit estab-

lishes that the informant’s information was current

and based on personal observation, but the level of detail

and corroboration are not well-developed. The informant

told Randazzo that he had personally and recently

seen Dismuke in possession of three guns in his home;

he provided an exact address; and he described the

guns as a shotgun and two pistols. These basic details

provide at least some indicia of reliability. But the

affidavit gave the warrant-issuing court commissioner

no additional particularized facts about the informant’s

observations. For instance, it offered no explanation

about the circumstances surrounding the informant’s

observations—no explanation, for example, of how the

informant knew Dismuke, why he was with Dismuke at

his residence, or where the guns were in the house.

Randazzo did make some effort to corroborate the

informant’s information. He asked the informant to

identify Dismuke from a photograph, and the informant

correctly did so. He confirmed that the informant knew

the difference between semiautomatic weapons, revolvers,

rifles, and shotguns. He confirmed through driver’s

license records that the address the informant had pro-

vided was indeed Dismuke’s. And when he went to the

house and saw a car parked in the rear, he traced the

plate and confirmed that the car listed to Dismuke. He

also confirmed through court records that Dismuke was

a convicted felon.

Confirming the informant’s basic knowledge of

firearms made the information he provided marginally

No. 08-1693 9

more reliable. But Randazzo’s other efforts corroborated

only Dismuke’s identity and the fact that the informant

had correctly identified Dismuke’s residence. Accuracy

on these innocent facts is important but does not

directly bolster the informant’s claim that Dismuke ille-

gally possessed guns at his home. Still, considering

the circumstances in their totality and giving “great

deference” to the court commissioner who issued the

warrant, we conclude that Randazzo’s affidavit was

sufficient to support the probable-cause finding.

The totality of the circumstances before the com-

missioner included the fact that the informant had con-

tacted Randazzo and reported that he personally ob-

served Dismuke at his home in possession of three specific

firearms—a shotgun and two pistols—within the last

week. The informant was able to distinguish between

different types of firearms and correctly identified

Dismuke’s photo. The address he said was Dismuke’s

checked out. Although Randazzo did not identify the

informant or bring him before the court commissioner

for live testimony, the informant did subject himself to

prosecution for making false statements to law enforce-

ment by coming to Randazzo with information about

Dismuke. In all, we think the affidavit is sufficient,

albeit just barely, to sustain the court commissioner’s

issuance of the search warrant.

In any event, under the good-faith exception, the sup-

pression of the fruits of the search would not be appro-

priate in a close case like this one. This is not a case

where the probable-cause determination rested on little

10 No. 08-1693

more than a “bare-bones” affidavit or entirely conclusory

allegations. See United States v. Curry, 538 F.3d 718, 729 (7th

Cir. 2008). Even if we were to conclude that the

affidavit was insufficient to establish probable cause, we

could not say that it was “so plainly deficient that any

reasonably well-trained officer ‘would have known that

his affidavit failed to establish probable cause and that

he should not have applied for the warrant.’ ” Koerth, 312

F.3d at 869 (quoting Malley v. Briggs, 475 U.S. 335, 345

(1986)); see also Watts, 535 F.3d at 657. Nor is there any

evidence to suggest that the warrant-issuing court com-

missioner abandoned his neutral judicial role. Accordingly,

we affirm Dismuke’s conviction for possession of a

firearm by a felon.1

1

Dismuke also argues he was entitled to a Franks hearing. See

Franks v. Delaware, 438 U.S. 154, 155-56 (1978). This requires a

“substantial preliminary showing” that (1) the affidavit con-

tained materially inaccurate information; and (2) the police

knew the information in the affidavit was false or acted in

reckless disregard of its truth. United States v. Amerson, 185

F.3d 676, 688 (7th Cir. 1999). Dismuke has not come close to

making this showing. He has not identified any materially

inaccurate or false information in the affidavit. Rather, he

argues only that his address listed in the state driver’s license

records was five years old and the automobile registration on

the car behind his home had expired. This is not enough to

suggest that the address the informant gave Randazzo was

inaccurate or that Randazzo acted in reckless disregard for

its accuracy.

No. 08-1693 11

B. Fleeing as a “Violent Felony” after Begay v. United

States

Dismuke also challenges the district court’s decision to

classify his Wisconsin conviction for vehicular fleeing

an officer as a violent felony under the ACCA. This con-

viction, when added to his two other violent-felony

convictions (for armed robbery and burglary), mandated

a minimum 15-year sentence. See 18 U.S.C. § 924(e)(1).

1. General Principles

The ACCA defines a “violent felony” as “any crime

punishable by imprisonment for a term exceeding one

year” that “(i) has as an element the use, attempted use,

or threatened use of physical force against the person of

another; or (ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B). Wisconsin’s fleeing

offense is punishable by a prison term of more than one

year, see W IS. S TAT. §§ 346.04(3), 346.17(3), 939.50(3), but it

does not have as an element the “use, attempted use, or

threatened use of physical force” and therefore does

not qualify under subsection (i) of the violent-felony

definition. This leaves subsection (ii) of the definition—the

“residual clause”—which includes any crime that “is

burglary, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii).

12 No. 08-1693

The Supreme Court has directed us to use a “categorical

approach” to determine whether a crime is a violent

felony under the ACCA’s residual clause. See, e.g., United

States v. Woods, 576 F.3d 400, 403-05 (7th Cir. 2009). The

categorical approach requires that we “look only to the

fact of conviction and the statutory definition of the

prior offense” rather than the “particular facts disclosed

by the record of conviction.” Shepard v. United States, 544

U.S. 13, 17 (2005) (internal quotation marks omitted); see

also Woods, 576 F.3d at 403. But when the statute in ques-

tion is divisible—that is, when it describes multiple

offense categories, some of which would be crimes of

violence and some of which would not—the Court has

fashioned a modified categorical approach. Woods, 576

F.3d at 404. Under the modified categorical approach,

“ ‘we may expand our inquiry into a limited range of

additional material . . . in order to determine whether

the jury actually convicted the defendant of (or, in the

case of a guilty plea, the defendant expressly admitted

to) violating a portion of the statute that constitutes a

violent felony.’ ” Id. (quoting United States v. Smith, 544

F.3d 781, 786 (7th Cir. 2008)).

The expanded inquiry is limited to “the terms of the

charging document, the terms of a plea agreement or

transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by

the defendant, or to some comparable judicial record of

this information.” Shepard, 544 U.S. at 26; see also Smith,

544 F.3d at 786. This modified categorical approach does

not, however, inquire into the factual specifics of the

defendant’s conduct; the point of the expanded inquiry

No. 08-1693 13

is not to consider what the defendant in fact did but

to determine which category of crime the defendant

committed. See Woods, 576 F.3d at 405-06.

2. The Supreme Court’s Decision in Begay

Dismuke argues that his fleeing conviction cannot be

classified as a violent felony after the Supreme Court’s

decision in Begay, which was released about a month

after he was sentenced.2 Begay addressed the scope of the

ACCA’s residual clause and interpreted it in a way

that narrows its reach. The predicate ACCA conviction

at issue in Begay was a New Mexico felony conviction

for recidivist drunk driving. The Supreme Court

assumed that the lower courts were correct in con-

cluding that drunk driving involved conduct that

“presents a serious potential risk of physical injury to

another” within the meaning of statute. Begay, 128 S. Ct. at

1584. The Court focused instead on the statute’s list of

specifically included crimes—burglary, arson, extortion,

and crimes involving the use of explosives—and con-

cluded that the residual clause “covers only similar

crimes, rather than every crime that ‘presents a serious

potential risk of physical injury to another.’ ” Id. at 1585.

In other words, the clause covers only “crimes that are

roughly similar, in kind as well as in degree of risk posed,

2

Begay applies here because it was decided while this case

was pending on direct review. Griffith v. Kentucky, 479 U.S.

314, 322 (1987).

14 No. 08-1693

to the examples themselves.” Id. The Court said the

presence of the word “otherwise” after the list of

included crimes did not undermine this limiting con-

struction because “otherwise” could “refer to a crime

that is similar to the listed examples in some respects

but different in others—similar, say, in respect to the

degree of risk it produces, but different in respect to

the way or manner in which it produces that risk.” Id. at

1586 (internal quotation marks omitted).

The Court also held that a predicate crime will be

“similar in kind” to the enumerated crimes if it involves

the same sort of “purposeful, violent, and aggressive”

conduct as the enumerated crimes. Id. at 1586-87. Because

drunk driving is a strict-liability crime, the Court con-

cluded it was “too unlike” the example crimes to be

covered by the residual clause of the definition. Id. at

1584, 1586-87. Accordingly, the Court held that New

Mexico’s drunk-driving felony did not qualify as a

violent felony under the ACCA. Id. at 1588.

3. Wisconsin’s Fleeing Offense as a Violent Felony

under Begay

We have previously determined that Wisconsin’s

vehicular-fleeing offense qualifies as a violent felony

under the residual clause. See United States v. Howze, 343

F.3d 919, 921-22 (7th Cir. 2003). Begay’s alteration of the

framework for deciding residual-clause cases requires

us to reconsider the matter. We start, as the categorical

approach requires, with the statutory definition of the

crime:

No. 08-1693 15

No operator of a vehicle, after having received a

visual or audible signal from a traffic officer, or marked

police vehicle, shall knowingly flee or attempt to

elude any traffic officer by willful or wanton

disregard of such signal so as to interfere with or

endanger the operation of the police vehicle, or the

traffic officer or other vehicles or pedestrians, nor

shall the operator increase the speed of the operator’s

vehicle or extinguish the lights of the vehicle in an

attempt to elude or flee.

W IS. S TAT. § 346.04(3) (2000).

This statute is divisible in the sense that brings the

modified categorical approach into play—that is, it

defines more than one category of vehicular fleeing. See

Woods, 576 F.3d at 411. The first category is fleeing or

attempting to elude an officer “by willful or wanton

disregard of [the officer’s] signal so as to interfere with

or endanger the operation of the police vehicle, or the

traffic officer or other vehicles or pedestrians.” W IS. S TAT.

§ 346.04(3). The second is “increas[ing] the speed of the

operator’s vehicle or extinguish[ing] the lights of the

vehicle in an attempt to elude or flee.” Id.

Because the statute is divisible, we may consult the

charging document or other comparable judicial record

from the underlying case to determine the specific crime

Dismuke committed. See Woods, 576 F.3d at 405-06;

Smith, 544 F.3d at 786. The criminal complaint reflects

that Dismuke was charged with committing the second

variety of fleeing an officer. The complaint alleged that

on March 3, 1998, Dismuke was the operator of a vehicle

16 No. 08-1693

and “after having received a visual and audible signal

from a marked police vehicle, did increase the speed of

his vehicle in an attempt to flee, contrary to Wisconsin

Statutes Section[] 346.04(3).”

As we have explained, to qualify as a violent felony

under the residual clause after Begay, this crime must

“involve conduct that presents a serious potential risk of

physical injury to another” and must also be “roughly

similar, in kind as well as in degree of risk posed, to the

example[]” crimes of burglary, arson, extortion, or use

of explosives. Begay, 128 S. Ct. at 1584-85. The “similar in

kind” aspect of this inquiry asks whether the predicate

crime encompasses conduct that is similarly “purposeful,

violent, and aggressive” to the example crimes. To

put it more succinctly, after Begay, a residual-clause

predicate crime must (1) present a serious potential risk

of physical injury similar in degree to the enumerated

crimes of burglary, arson, extortion, or crimes involving

the use of explosives; and (2) involve the same or

similar kind of “purposeful, violent, and aggressive”

conduct as the enumerated crimes.

Dismuke does not contend that Wisconsin’s fleeing

offense fails the first part of this inquiry. He apparently

concedes that the offense involves conduct that presents

a serious potential risk of physical injury and is suf-

ficiently similar to the residual clause’s enumerated

crimes in respect to the “degree of risk posed” to satisfy

No. 08-1693 17

this part of the Begay framework.3 He argues instead that

3

Dismuke’s concession is understandable. As we have noted,

before Begay we held that Wisconsin’s fleeing crime is a

violent felony under the residual clause and in so doing con-

cluded that the offense involves conduct that presents a

serious potential risk of physical injury to another. Howze, 343

F.3d at 921-22. Nothing in Begay undermines this conclusion.

Begay’s additional requirement is that the potential risk be

similar in degree to the residual clause’s enumerated crimes.

The Supreme Court has noted that the potential risk associated

with the first enumerated crime, burglary, “arises not from the

simple physical act of wrongfully entering onto another’s

property, but rather from the possibility of a face-to-face

confrontation between the burglar and a third party.”

James v. United States, 550 U.S. 192, 203 (2007) (holding that

attempted burglary is a violent felony under the residual

clause).

As other circuits have noted, vehicular fleeing involves

active defiance of a law-enforcement officer, initiates a pursuit,

and typically culminates in a face-to-face confrontation

between the officer and the suspect. See United States v. Young,

580 F.3d 373, 377-78 (6th Cir. 2009); United States v. Harrimon,

568 F.3d 531, 536 (5th Cir. 2009); United States v. West, 550 F.3d

952, 969-71 (10th Cir. 2008). The Fifth Circuit has also noted that

the rate of injury from vehicular fleeing exceeds the rate of

injury from arson, another of the residual clause’s enumerated

crimes. Harrimon, 568 F.3d at 537. Although there is some

contrary authority, see United States v. Tyler, 580 F.3d 722, 725

(8th Cir. 2009); United States v. Harrison, 558 F.3d 1280, 1294 (11th

Cir. 2009), we agree with the Fifth, Sixth, and Tenth Circuits

that vehicular fleeing presents a potential risk of physical

(continued...)

18 No. 08-1693

Wisconsin’s fleeing offense is not “similar in kind” to the

enumerated crimes because it is not similarly “purposeful,

violent, and aggressive.” The government responds by

invoking United States v. Spells, 537 F.3d 743, 751-53 (7th

Cir. 2008), an early post-Begay decision that classified

Indiana’s fleeing offense as a violent felony under the

residual clause. Wisconsin’s fleeing offense is narrower

3

(...continued)

injury similar in degree to the residual clause’s enumerated

offenses.

In this regard, we think it important to note that one of the

two circuits that have held vehicular fleeing is not a violent

felony after Begay addressed a statute defining the offense as

flight alone, without any additional requirement of an accelera-

tion in speed, the extinguishment of lights, or any other aggrava-

tor. See Harrison, 558 F.3d at 1290. The Eleventh Circuit in

Harrison made it clear that the absence of any requirement of

increased speed or reckless driving was important to its assess-

ment of the risk question. Id. at 1294 (“[T]he fact that the

behavior underlying Florida’s willful-fleeing crime, in the

ordinary case, involves only a driver who willfully refuses to

stop and continues driving on—but without high speed or

recklessness—makes it unlikely that the confrontation will

escalate into a high-speed chase that threatens pedestrians,

other drivers, or the officer.”). Wisconsin’s fleeing statute

requires flight by accelerated speed or extinguishment of

vehicle lights in an attempt to elude the officer. We think this

offense is sufficiently similar in degree of potential risk to the

residual clause’s enumerated crimes and therefore satisfies

this aspect of Begay.

No. 08-1693 19

than Indiana’s,4 so it is tempting to simply accept the

government’s argument and rely on Spells as subsuming

the question presented here. But in light of an analytical

omission we have noted in Spells and intervening de-

velopments in the caselaw, we think the issue calls for

independent consideration.

The first requirement of Begay’s “similarity in kind”

equation—that the predicate offense be categorically

“purposeful”—is easily satisfied here. In Woods we held

that Begay’s “purposeful” requirement focuses on the

mens rea element of the predicate crime: “[T]he residual

clause encompasses only purposeful crimes; crimes

with the mens rea of recklessness do not fall within its

scope.” 576 F. 3d at 412-13.

Wisconsin’s vehicular-fleeing offense is a purposeful

crime. Section 346.04(3) provides: “No operator of a

vehicle, after having received a visual or audible signal

from a traffic officer, or marked police vehicle, shall

knowingly flee or attempt to elude” the officer. (Emphasis

4

As we have noted, Wisconsin’s fleeing statute prohibits two

specific types of vehicular fleeing: willful and wanton

disregard of the officer’s signal in a manner that endangers

others, and increasing the speed or extinguishing the lights

of the vehicle in an attempt to elude or flee. See W IS . S TAT .

§ 346.04(3). The Indiana fleeing statute at issue in Spells more

broadly prohibited the use of a vehicle to “flee[] from a law

enforcement officer after the officer has, by visible or audible

means, including operation of the law enforcement officer’s

siren or emergency lights, identified himself or herself and

ordered the person to stop.” 537 F.3d at 749.

20 No. 08-1693

added.) After this prefatory clause, the statute specifies

two alternative modes of fleeing: (1) by “willful or

wanton disregard” of the officer’s signal “so as to

interfere with or endanger” the officer, other vehicles, or

pedestrians; and (2) by “increas[ing] the speed of the . . .

vehicle or extinguish[ing] the lights of the vehicle in an

attempt to elude or flee.” W IS. S TAT. § 346.04(3). The state

courts have interpreted the statute to require that the

offender “knowingly flee or attempt to elude” by one or

the other of the alternative methods—by willfully or

wantonly disregarding the officer’s signal in a way that

interferes with or endangers others or by increasing the

speed or extinguishing the lights of the vehicle in an

attempt to elude or flee. See State v. Sterzinger, 649

N.W.2d 677, 680-81 (Wis. Ct. App. 2002); see also

W ISCONSIN JURY INSTRUCTIONS—C RIMINAL 2630 (2003).

Dismuke maintains that to be “purposeful” under Begay,

the predicate crime must have “as its purpose” the inflic-

tion of physical harm upon another. We disagree. Al-

though all of the crimes enumerated in the residual

clause are purposeful crimes (as opposed to crimes with

a mens rea of recklessness, negligence, or strict-liability

crimes), none of them require that the offender act with

the specific purpose of inflicting physical harm on an-

other. Dismuke’s interpretation would make sub-

section (ii) of the violent-felony definition redundant.

Subsection (i) of the definition covers crimes that have “as

an element the use, attempted use, or threatened use

of physical force against the person of another,”

§ 924(e)(2)(B)(i); this part of the definition already

No. 08-1693 21

captures crimes committed with the purpose of inflicting

physical harm on another. Wisconsin’s fleeing offense

requires a “knowing” act of fleeing; this satisfies Begay’s

“purposeful” requirement.

Before proceeding, we note that on this point the

circuits are in agreement. In Spells, decided shortly after

Begay, we addressed Indiana’s fleeing statute, which

“criminalizes using a vehicle to ‘knowingly or inten-

tionally . . . flee[] from a law enforcement officer.’ ” 537

F.3d at 752. We summarily held that this “knowingly

and intentionally” element satisfied Begay’s requirement

of “purposeful” conduct. Id. at 752-53. Other circuits

have addressed fleeing statutes with similar mens rea

requirements and are uniformly in accord.5 See, e.g.,

United States v. Young, 580 F.3d 373, 377 (6th Cir. 2009)

(holding that the Michigan fleeing statute’s requirement

of “willful” failure to stop “clearly involved” purposeful

conduct); United States v. LaCasse, 567 F.3d 763, 766 (6th

Cir. 2009) (same holding regarding a different sub-

section of Michigan’s fleeing statute); United States v.

Tyler, 580 F.3d 722, 725 (8th Cir. 2009) (Minnesota’s

fleeing statute requires “intent to elude” and is therefore

“purposeful” under Begay, but is not categorically “violent

5

In United States v. Roseboro, 551 F.3d 226 (4th Cir. 2009), the

Fourth Circuit considered whether South Carolina’s fleeing

offense was a violent felony under the residual clause as

interpreted in Begay. The court noted that in contrast to

fleeing statutes in most other states, the South Carolina statute

did not require knowing or intentional disregard of an

officer’s signal. Id. at 235, 236 n.5.

22 No. 08-1693

and aggressive”); United States v. Harrimon, 568 F.3d

531, 534 (5th Cir. 2009) (considering Texas’s fleeing

statute and noting “unlike the DUI statute at issue in

Begay, fleeing by vehicle requires intentional conduct”);

United States v. Harrison, 558 F.3d 1280, 1295 (11th Cir.

2009) (concluding that the Florida statute’s requirement

of “willful” fleeing satisfied Begay’s purposeful require-

ment but the crime was not sufficiently “violent and

aggressive”); United States v. West, 550 F.3d 952, 970-71

(10th Cir. 2008) (holding that the Utah fleeing statute’s

requirement of “willfulness” satisfies Begay’s “purposeful”

requirement).

The circuits are divided, however, on whether

vehicular fleeing satisfies Begay’s requirement that the

predicate crime involve conduct that is similarly “violent

and aggressive” as the residual clause’s enumerated

crimes. The Fifth, Sixth, and Tenth Circuits have held

that fleeing satisfies Begay’s “violent and aggressive”

requirement. See Harrimon, 568 F.3d at 534-35; Young, 580

F.3d at 377-78; LaCasse, 567 F.3d at 767; West, 550 F.3d at

969-70.6 The Eighth and Eleventh Circuits have come to

the opposite conclusion. See Tyler, 580 F.3d at 725-26;

Harrison, 558 F.3d at 1295-96.

6

West contained a lengthy discussion analogizing fleeing to

escape. Any suggestion in that discussion that all escape

crimes—including failure to report—are violent felonies was

withdrawn by United States v. Shipp, No. 08-5157, 2009 WL

4827367, at n.3 (10th Cir. Dec. 16, 2009), in light of Chambers, 129

S. Ct. 687. This does not alter West’s holding regarding

vehicular fleeing.

No. 08-1693 23

Spells preceded these opinions; ours was the first circuit

to address whether vehicular fleeing qualifies as a

violent felony after Begay. Spells held that Indiana’s

fleeing offense is not only “purposeful” but is also cate-

gorically “aggressive” and on this basis held that it satis-

fied the Begay framework. 537 F.3d at 752. Our decision in

Spells, however, did not address whether fleeing

is “violent” in the way required by Begay. We do so here

and hold that Wisconsin’s crime of vehicular fleeing

involves conduct that is similarly “violent and aggressive”

to burglary, arson, extortion, or crimes that involve the

use of explosives.

First, it bears emphasizing that the Supreme Court’s

categorical approach focuses on the generic crime as

ordinarily committed; it is not necessary, therefore, that

every conceivable violation of the statute meet the Begay

test. See James v. United States, 550 U.S. 192, 208 (2007);

see also Woods, 576 F.3d at 404. Instead, the proper

inquiry is whether the conduct encompassed by the

statutory elements of the crime, in the ordinary or

typical case, presents a serious potential risk of physical

injury and (as Begay requires) bears sufficient similar-

ity—both in kind and degree of risk posed—to the conduct

encompassed by the enumerated crimes of burglary,

arson, extortion, or crimes involving the use of explosives.

See Woods, 576 F.3d at 404. If the conduct encompassed

by Wisconsin’s fleeing statute is “violent and aggressive”

in this generic sense, then the requirements of Begay are

satisfied and the conviction was properly counted as

a violent felony.

24 No. 08-1693

The fleeing offense at issue here makes it a crime for

the driver of a vehicle to knowingly disregard a police

signal and take flight by accelerating his speed or extin-

guishing the lights of his vehicle in an attempt to flee

or elude the pursuing officer. For reasons we will

explain, we think this conduct is violent and aggressive

in the sense required by Begay. Dismuke’s argument to

the contrary relies largely on this statement from

Begay: “By way of contrast, statutes that forbid driving

under the influence, such as the statute before us, typically

do not insist on purposeful, violent, and aggressive

conduct . . . .” 128 S. Ct. at 1586 (emphasis added). He

urges us to take the Supreme Court’s use of the phrase

“insist on” quite literally—that is, as limiting the residual

clause to crimes that require or “insist on” a violent act.

This strikes us as an overreading of this singular sen-

tence and a misreading of the opinion as a whole.

The crimes enumerated in the residual clause are

violent and aggressive not because they invariably

involve acts of violence but because they are

characterized by aggressive conduct that carries the

genuine potential for violence and thus physical injury

to another. Unlike Begay’s “purposeful” requirement,

which focuses on the mens rea element of the predicate

crime, see Woods, 576 F.3d at 408, Begay’s “violent and

aggressive” requirement is a descriptive phrase and

focuses on the character of the conduct encompassed

by the elements of the crime, not the elements themselves.

The Supreme Court observed in Begay that the enumer-

ated crimes in the residual clause typically involve

No. 08-1693 25

“violent and aggressive” conduct and therefore

limited the reach of the clause to like crimes. None of the

enumerated crimes, however, requires an act of violence.

Burglary doesn’t require an act of violence; neither does

extortion or arson. Perhaps crimes involving the use of

explosives could be said to require an act of violence in

that an explosion is inherently violent. Even so, we do not

read the Begay “insists on” language in the strictly

literal sense that Dismuke suggests. We conclude

instead that the “violent and aggressive” limitation

requires only that a residual-clause predicate crime be

characterized by aggressive conduct with a similar poten-

tial for violence and therefore injury as the enumerated

offenses, not that it must “insist on” or require a

violent act.

The Supreme Court’s decision in Chambers v. United

States, 129 S. Ct. 687 (2009), confirms this understanding

of how to apply Begay’s “violent and aggressive” require-

ment. The predicate conviction in Chambers was the

version of Illinois’ escape crime that consists of a failure

to report for custody. The Court distinguished the failure-

to-report version of this offense from one that involved

an actual escape from physical custody. “The behavior

that likely underlies a failure to report would seem less

likely to involve a risk of physical harm than the less

passive, more aggressive behavior underlying an escape

from custody.” Id. at 691. The Court continued: “Concep-

tually speaking, the crime amounts to a form of inaction,

a far cry from the ‘purposeful, violent, and aggressive

conduct’ potentially at issue when an offender uses explo-

sives against property, commits arson, burgles a

26 No. 08-1693

dwelling or residence, or engages in certain forms of

extortion.” Id. at 692 (quoting Begay, 128 S. Ct. at 1586)

(emphasis added). The Court concluded that a convic-

tion for failure to report for custody was not a violent

felony under the residual clause. Id. at 693.

Chambers is relevant here in two respects. First, as a

general matter, Chambers confirms that the required

comparison between the predicate and enumerated

crimes tests whether the predicate crime is characterized

by aggressive conduct with a similar potential for

violence as the enumerated offenses. And second, more

specifically to the point here, Chambers implies that

unlike a failure to report, which does not have these

characteristics, an escape from physical custody would

meet this test.

Our decision in Spells was issued before Chambers,

but we noted there that in the ordinary case, “[t]aking

flight [in a vehicle] calls the officer to give chase, and aside

from any accompanying risk to pedestrians and other

motorists, such flight dares the officer to needlessly

endanger himself in pursuit.” Spells, 537 F. 3d at 752.

In West, also decided before Chambers, the Tenth Circuit

elaborated on this point:

[T]he offense of failing to stop at the command of a

police officer will typically lead to a confrontation

with the officer being disobeyed. It is likely to lead,

in the ordinary case, to a chase or at least an effort by

police to apprehend the perpetrator. All of these

circumstances increase the likelihood of serious

harm to the officers involved as well as any bystanders

No. 08-1693 27

that by happenstance get in the way of a fleeing

perpetrator or his pursuers. For these reasons,

we conclude that the crime of failing to stop at an

officer’s command is, in the ordinary case, an

offense involving violent and aggressive behavior.

550 F.3d at 970.

The Fifth Circuit’s decision in Harrimon had the

benefit of both Begay and Chambers, and the court drew the

same implication from Chambers as we do here. “Th[e]

active defiance of an attempted stop or arrest is similar

to the behavior underlying an escape from custody,

which, as the Supreme Court noted in Chambers, is ‘less

passive’ and ‘more aggressive’ than that likely under-

lying failure to report.” Harrimon, 568 F.3d at 535. The

court noted that “[f]leeing by vehicle requires disre-

garding an officer’s lawful order, which is a clear

challenge to the officer’s authority and typically

initiates pursuit.” Id. The court continued: “[F]leeing by

vehicle ‘will typically lead to a confrontation with the

officer being disobeyed,’ a confrontation fraught with

risk of violence.” Id. (quoting West, 550 F.3d at 970). On

this reasoning, the court concluded that the Texas crime

of fleeing by vehicle satisfied Begay’s “violent and aggres-

sive” requirement and qualified as a violent felony

under the definition’s residual clause. Id.

Likewise, the Sixth Circuit relied on the discussion of

escape in Chambers to conclude that Michigan’s fleeing

statute satisfies the requirements of Begay. See LaCasse, 567

F.3d at 767. The court observed:

28 No. 08-1693

What is fleeing and eluding but an attempt to escape?

It is certainly not a form of inaction and, for that

reason, we read Chambers to stand, albeit tacitly, for

the proposition that an attempt to escape from law

enforcement officials may represent a ‘violent fel-

ony’ under the ACCA because it includes aggressive

conduct . . . .

Id.

Although, as we have noted, the Eighth and the

Eleventh Circuits have reached the opposite conclusion,

see Tyler, 580 F.3d at 725-26; Harrison, 558 F.3d at 1295-96,

we think our colleagues in the Fifth, Sixth, and Tenth

Circuits have the better of the argument.7 Accordingly,

7

It is important to note again, see supra note 3, that the Florida

statute before the Eleventh Circuit in Harrison was broader

than the Wisconsin statute at issue here. The particular subsec-

tion of the Florida statute at issue in Harrison was the base

offense of willful fleeing or attempting to elude; a separate

section of the statute, not at issue in Harrison, covered fleeing

by accelerated speed or by “wanton disregard for the safety of

persons or property.” 558 F.3d at 1290. In holding that the

base offense of willful fleeing was not a violent felony, the

Eleventh Circuit distinguished the version of the crime that

entailed fleeing at high speed or with wanton disregard for

safety: “Of course, our conclusion would be different were

the statute to criminalize conduct that, in the ordinary case,

involves an offender stepping on the gas and driving away

recklessly without regard for the safety of others.” Id. at 1295.

Thus, our conclusion here regarding the Wisconsin stat-

(continued...)

No. 08-1693 29

we hold that Wisconsin’s vehicular-fleeing crime

satisfies Begay’s “violent and aggressive” requirement.

Dismuke’s fleeing conviction was therefore properly

classified as a violent felony for purposes of the ACCA.

His resulting 15-year sentence, the mandatory mini-

mum under the ACCA, was statutorily required.

A FFIRMED.

7

(...continued)

ute—which requires fleeing by accelerated speed or extin-

guished vehicle lights—actually parts company with just

one circuit, the Eighth, in Tyler, 580 F.3d at 726.

1-27-10