1

The Honorable Dean Whipple, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2919

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Richard Lee Counts, *

* [PUBLISHED]

Appellant. *

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Submitted: June 7, 2007

 Filed: August 17, 2007

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Before COLLOTON, BEAM, and BENTON, Circuit Judges.

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PER CURIAM.

In this appeal, Richard Counts challenges the district court’s1

 imposition of a

sentence of 180 months’ imprisonment for possession of a firearm as a previouslyconvicted felon, in violation of 18 U.S.C. § 922(g)(1). Counts disputes the district

court’s determination that his prior Missouri conviction for first-degree tampering

with an automobile is a “violent felony” within the meaning of 18 U.S.C. § 924(e)(1).

Upon de novo review, and in light of governing circuit precedent, we affirm.
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Section 924(e) provides that a defendant convicted under § 922(g)(1) is subject

to a mandatory term of fifteen years’ imprisonment if he has three previous

convictions for a “violent felony” or a “serious drug offense.” A prior offense is a

“violent felony” if it 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) (emphasis added). It is undisputed that Counts

had been convicted of at least two qualifying offenses: second-degree burglary in

1997 and sale of marijuana in 2002. The district court found that his conviction in

1997 for first-degree tampering with an automobile was a violent felony under the

residual clause of § 924(e)(2)(B)(ii), and that it thus constituted a third qualifying

conviction.

Our court addressed the residual clause in United States v. McCall, 439 F.3d

967 (8th Cir. 2006) (en banc). We explained there that courts should apply a

categorical approach to the definition of violent felony, generally resolving whether

a prior conviction qualifies without regard to the specific underlying facts of the prior

offense. Id. at 970. We did allow, however, that where a particular offense is

“overinclusive,” because the offense as defined by statute criminalizes conduct that

does not “necessarily present a serious potential risk of physical injury to others,” id.

at 973, then the court may examine the judicial record of the prior conviction to

determine whether it is qualifying under § 924(e). In that instance, we said, the court

must determine from the permissible documentary evidence whether a jury was

required to find, or a guilty plea necessarily rested on the fact, that the defendant’s

violation was committed in a manner that necessarily presented a serious potential risk

of physical injury to others. Id. Under this analysis, we held that a prior conviction

for operating a vehicle while intoxicated in Missouri qualifies as a violent felony only

if the judicial record demonstrates that the offender was actually driving when he

committed the offense, as contrasted, for example, with merely operating the vehicle

by sitting in a parked vehicle to keep warm with the motor running. Id.
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The Missouri statute under which Counts was convicted in 1997, Missouri Rev.

Stat. § 569.080 (1994), provided that a person commits the offense of tampering in the

first degree if:

(1) He for the purpose of causing a substantial interruption or

impairment of a service rendered to the public by a utility or by an

institution providing health or safety protection, damages or tampers

with property or facilities of such a utility or institution, and thereby

causes substantial interruption or impairment of service; or

(2) He knowingly receives, possesses, sells, alters, defaces, destroys or

unlawfully operates an automobile, airplane, motorcycle, motorboat or

other motor-propelled vehicle without the consent of the owner thereof.

The felony complaint to which Counts pled guilty charged that he knowingly, and

without the consent of the owner, unlawfully operated a 1988 Ford Taurus.

Counts contends that the offense of tampering by operation (which itself is a

subdivision of the broader offense defined in section 569.080) is not a violent felony,

because the offense does not inherently present a serious potential risk of physical

injury to another. He observes that a person may commit the offense of tampering by

operation without intending permanently to deprive the rightful owner of possession,

as is required for the offense of stealing in Missouri. See Mo. Rev. Stat. § 570.030

(2000). Counts suggests that a person may commit the offense merely by starting a

car and listening to the radio, or by briefly taking a car from a friend or relative for

short-term use, as long as these acts are done without the owner’s consent. There is

also an indication in Missouri literature that the offender in a tampering-by-operation

case often is a subsequent transferee of a vehicle that has been reported stolen, rather

than the perpetrator of a theft directly from the owner. See Robert H. Dierker, 32

Missouri Practice Series, Missouri Criminal Law § 35.1 (2d ed. 2004). Counts argues

that the inclusion of such conduct within the scope of the offense demonstrates that

first-degree tampering does not categorically present a serious risk of physical injury.
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Our court considered the status of the Missouri offense of tampering by

operation in United States v. Johnson, 417 F.3d 990 (8th Cir. 2005), cert. denied, 127

S. Ct. 285 (2006), and held that it qualifies as a violent felony under § 924(e). We

concluded that the offense of first-degree tampering had a “close connection” with the

offense of automobile theft, and that the two offenses differed only with respect to the

permanence of the offender’s intent to deprive the owner of possession. Id. at 997-98.

Based on “the substantial similarity” of these two offenses, the court reasoned that

tampering by operation presented the same risks of injury identified with automobile

theft, see United States v. Sun Bear, 307 F.3d 747, 750 (8th Cir. 2002), and that the

risks associated with tampering were sufficient to warrant classifying it as a violent

felony. Id. While Johnson concluded that the Missouri tampering statute was

overinclusive in at least one sense described by McCall, and thus distinguished

between “tampering by operation” and “tampering by possession,” 417 F.3d at 998,

the opinion did not address such issues as whether a prosecution seeking to apply

§ 924(e) to a tampering offense must show that the offender was actually convicted

for driving the vehicle with which he tampered, or for taking the vehicle directly from

the possession of the owner. The opinion in Johnson was filed before our en banc

decision in McCall, but a petition for rehearing in Johnson was denied after McCall,

and other panels consistently have applied Johnson as circuit precedent since then.

E.g., United States v. Thomas, 484 F.3d 542, 545 (8th Cir. 2007); United States v.

Reliford, 471 F.3d 913, 916-17 (8th Cir. 2006); United States v. Farris, 449 F.3d 822,

823 (8th Cir. 2006) (per curiam); United States v. Bockes, 447 F.3d 1090, 1092-93

(8th Cir. 2006); United States v. Adams, 442 F.3d 645, 646-47 (8th Cir. 2006).

After our decisions in Johnson and McCall, the Supreme Court addressed the

residual clause of § 924(e) in James v. United States, 127 S. Ct. 1586 (2007), which

held that the offense of attempted burglary in Florida was a violent felony. In

determining whether an offense is encompassed by the residual clause, the Court

employed a “categorical approach,” under which the Court looks “only to the fact of

conviction and the statutory definition of the prior offense,” and does not “generally
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consider the particular facts disclosed by the record of conviction.” Id. at 1594.

Under that approach, the Court considers “whether the elements of the offense are of

the type that would justify its inclusion within the residual provision, without

inquiring into the specific conduct of [a] particular offender.” Id. The Court had no

occasion in James to address specifically whether it would approve of the modified

categorical approach applied by our court in McCall, because the Court concluded that

the Florida statute defining attempted burglary did not authorize a conviction based

on certain preparatory activity which, it was argued, “poses no real danger of harm to

others.” Id.; cf. United States v. Permenter, 969 F.2d 911, 913-14 (10th Cir. 1992)

(reasoning that because “[a] sentencing court is required to focus on the statutory

elements of a given crime, rather than on the means by which a particular offense was

committed,” and there is no statutory definition of specific crimes covered by the

“otherwise” clause, “[a]ny approach to the ‘otherwise’ clause other than purely

categorical analysis would distort congressional intent”) (cited in James, 127 S. Ct.

at 1596 n.4). The Court in James did explain that under the categorical approach, not

“every conceivable factual offense covered by a statute must necessarily present a

serious potential risk of physical injury before the offense can be deemed a violent

felony,” and that the “proper inquiry is whether the conduct encompassed by the

elements of the offense, in the ordinary case, presents a serious potential risk of injury

to another.” Id. at 1597. 

Three dissenting Justices advocated a different framework for analysis.

Expressing concern about the breadth of § 924(e) as interpreted by the courts of

appeals, these Justices cited our court’s precedent on tampering with operation for the

proposition that “the reality of what is taking place in the lower courts” is that

“virtually any crime” can qualify as a violent felony. Id. at 1606 n.4 (Scalia, J.,

dissenting).

While there have been developments in the law since Johnson, and opinions

may differ on whether Johnson was correctly decided, or whether McCall or James
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In an alternative argument, Counts suggests that the Supreme Court’s decision

in Leocal v. Ashcroft, 543 U.S. 1 (2004), compels the conclusion that tampering by

operation is not a violent felony. As we have explained elsewhere, however, Leocal

construed 18 U.S.C. § 16(b), which is more limited in scope than the residual clause

of § 924(e), and it is therefore not controlling. E.g., McCall, 439 F.3d at 971.

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supports reconsideration of that holding, we conclude that this panel is bound by

circuit precedent that tampering by operation in Missouri is a violent felony.2

Accordingly, the judgment of the district court is affirmed.

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