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United States v. Smith, No. 07-1853 (7th Cir. 09/12/2008)

Steven Smith was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court found that Mr. Smith qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA” or “Act”), and therefore imposed a sentence of 240 months’ imprisonment.


The Armed Career Criminal Act provides that any defendant convicted of violating 18 U.S.C. § 922(g), who also has three prior convictions for “a violent felony or a serious drug offense,” shall be sentenced to not less than fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). The Act defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that:

  1. has as an element the use, attempted use, or threatened use of physical force against the person of an-other; or
  2. 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).

At the sentencing hearing, Mr. Smith objected to the Government’s characterization of his two prior criminal recklessness convictions as violent felonies under the ACCA. In his view, the offense of criminal recklessness did not require a mens rea sufficient to warrant its inclusion as a violent felony; he contended that a higher mental state is required to trigger the enhanced penalty mandated by the Act.


Mr. Smith first contends that “criminal recklessness,” as defined by Indiana law, is not a violent felony and, accordingly, that he should not have been sentenced as an armed career criminal. Whether an Indiana conviction for criminal recklessness may be considered a violent felony under the ACCA is a question of law that we review de novo. See United States v. Otero, 495 F.3d 393, 400 (7th Cir. 2007).

We begin with the text of the Indiana statute. Indiana defines “criminal recklessness” as follows:

A person who recklessly, knowingly, or intentionally performs:

(1) an act that creates a substantial risk of bodily injury to another person; or

(2) hazing; commits criminal recklessness.

The parties agree that criminal recklessness, as defined by the Indiana Code, does not fall within the scope of 18 U.S.C. § 924(e)(2)(B)(i), which requires that the offense have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

Therefore, the question before us is whether criminal recklessness may be classified as a violent felony under the so-called “residual clause” because it “otherwise involves conduct that presents a serious potential risk of physical injury.”

We previously have held that criminal recklessness does qualify as a crime of violence for purposes of sentencing under the ACCA, see United States v. Newbern, 479 F.3d 506, 509-11 (7th Cir. 2007), because it presents a serious potential risk of physical injury to another. See generally James v. United States, 127 S.Ct. 1586 (2007). Six days before oral argument in this case, however, the Supreme Court decided Begay v. United States, 128 S.Ct. 1581 (2008), which added an additional layer of analysis. We asked the parties to submit supplemental briefs analyzing how Begay affects this issue.

In Begay, the Supreme Court held that New Mexico’s felony offense of driving under the influence (“DUI”) could not be considered a violent felony under the residual clause of the ACCA. Begay, 128 S.Ct. at 1588. Although the Court assumed that driving under the influence involves conduct that “presents a serious risk of physical injury to another,” id. at 1585, it nevertheless found that driving under the influence falls outside the scope of the residual clause because it “is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.” Id.

The Court reasoned that the listed offenses in § 924(e)(2)(B)(ii)-burglary, arson, extortion and the use of explosives-“illustrate the kinds of crimes that fall within the statute’s scope.” Id. at 1584-85. Examining the listed crimes, the Court concluded that, in addition to posing a serious risk of injury to others, the commonality shared by the listed crimes was that each involved “purposeful, violent, and aggressive conduct.” Id. at 1586.

The Court went on to note that the ACCA, as suggested by its title, was intended to target “the special danger created when a particular type of offender-a violent criminal or drug trafficker-possesses a gun.” Id. “In this respect,” it explained, “crimes involving intentional or purposeful conduct,” such as the enumerated crimes, are substantially different from crimes such as driving under the influence. Id. (emphasis added). “In both instances, the offender’s prior crimes reveal a degree of callousness towards risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Id. It concluded: “We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.” Id.

After Begay, then, a finding that the offense poses a serious risk of physical injury to another is a necessary, but not sufficient, condition for the offense to be included within the scope of ACCA’s residual clause. The Government must also show that the predicate offense “typically involve[s] purposeful, violent, and aggressive conduct.” Id. at 1586.

In determining whether the Court in Begay meant to bar crimes with a mens rea of recklessness from inclusion within the ACCA’s residual clause, it is helpful to look to the examples that it provided of crimes which, though certainly dangerous, “are not typically committed by those whom one normally labels ‘armed career criminals.’ ” Id. at 1587. The Court referenced the federal offense of reckless tampering with consumer products, 18 U.S.C. § 1365(a). This statute provides: “Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product” shall be guilty of a felony. Id. The Court concluded that it was “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms.” Id. Similarly, in concluding that driving under the influence was not a violent felony under the Act, the Court emphasized that “drunk driving is a crime of negligence or recklessness, rather than violence or aggression.” Id. at 1587.

It is also worth noting that the Court concluded its opinion by emphasizing that the enumerated crimes are “intentional,” and therefore of greater concern than crimes without that requisite intent.

We must conclude that, after Begay, the residual clause of the ACCA should be interpreted to encompass only “purposeful” crimes. Therefore, those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA. Accordingly, we agree with the Second Circuit that crimes requiring only a mens rea of recklessness cannot be considered violent felonies under the residual clause of the ACCA.

With this in mind, we next must examine the criminal recklessness statute under which Mr. Smith twice was convicted. The language of Indiana’s criminal recklessness statute partially mirrors that of the ACCA-it requires that the person perform an act that “creates a substantial risk of bodily injury to another person.” Ind. Code § 35-42-2-2(b)(1). The criminal recklessness statute departs from the language of the ACCA in one important respect, however; in addition to encompassing those offenders who intentionally perform an act that creates a substantial risk of bodily injury to another person, the statute also expressly encompasses those individuals who do so recklessly. The Indiana statute therefore criminalizes non-purposeful conduct as well as purposeful conduct.

When a statute encompasses multiple categories of offense conduct-some of which would constitute a violent felony and some of which would not-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. Shepard v. United States, 544 U.S. 13, 16-17 (2005). These additional materials are 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. Such an examination, however, is “only to determine which part of the statute the defendant violated.” United States v. Howell, 531 F.3d 621, 623 (8th Cir. 2008).

The juries that convicted Mr. Smith of criminal recklessness were not asked to determine whether he acted knowingly or intentionally; Mr. Smith also did not admit to acting with that intent. Accordingly, we conclude that, under the Supreme Court’s reasoning in Begay, Mr. Smith’s criminal recklessness convictions cannot serve as predicate violent felonies under the ACCA.


For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit