United States v. Anthony Dismuke ( 2010 )

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