### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60754

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. WAYNE ALLEN STOKER, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi

Before JONES, GARZA, and PRADO, Circuit Judges. PER CURIAM: Wayne Allen Stoker (“Stoker”) appeals his conviction and sentence on two counts of retaliating against a n d t h r eatening a witness, in violation of 18 U.S.C. §§ 1513(e) and 876(c). Finding the evidence sufficient to support the verdict, but only one count to be a crime of violence under current law, we affirm the conviction and vacate and remand for resentencing. BACKGROUND On February 20, 2009, Stoker caused a disturbance in, and was removed from, the Dam Bar in Grenada County, Mississippi. He returned after closing that night and burned it down. Following the inc i d e nt, he became acquainted with a woman named Donna Moore (“Moo r e”) an d s o m eti m e th ereafter confessed U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary31 , 20 13 Lyle W . Cayce Clerk Case: 11-60754 Document: 00512131740 Page: 1 Date Filed: 01/31/2013No. 11-60754

the arson to her. Upon hearing the details of Stoker’s act, Moore became fearful and c a l l e d a n anonymous hotline to report the incident. An FBI agent eventually convinced he r to testify, and the Report of Investigation (“ROI”) outlining her story aided in precipitating a guilty plea from Stoker. The ROI detailed Stoker’s actions and also reported the extreme fear Moore felt in coming forward with the information. One day after he was sentenced to nine years in prison for the arson, Stoker mailed Moore a copy of the ROI from prison. Moore took this to be a threat and suffered serious emotional distress as a result. Stok e r w a s subsequently convicted by a jury of violating 1 8 U

. S

. C

. § 1 5 1 3 (e)

—r et ali atio n a gain s t a witness providing truthful informatio n to a law enforcement officer—and § 876(c)—mailing a threatening communication. The presentence investigation report (“PSR”) prepared by the probation officer disclosed a previous arson conviction in addition to the one for the bar incident. The P S R a d d e d b oth arson convictions to the two counts of convi c t i o n in the present case to conclude that Stoker qualified for the careeroffender enhancement under U.S.S.G. § 4B1.1. T h e district court agreed, t r eating all four convictions as crimes of violence. U.S.S.G. § 4B1.2. T h e resulting offense level of twenty-four, combined with a criminal history category of VI, yielded a guideline imprisonment range of 100 to 125 months. The court issued a sentence of 108 months, to be served consecutive to the Dam Bar arson conviction. Stoker timely appealed. DISCUSSION Stoker attacks the suffici e n c y of the evidence supporting his convictions and the career-offender enhancement to his sentence range. “[D]etermining the weight and credibility of the evidence is solely within the province of the jury.”

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United States v. Salazar , 542 F.3d 139, 144 (5th Cir. 2008). This court “view[s] the evidence in the light most favorable to the verdict and draw[s] all reasonable inferences from the evidence t o s u p p ort the verdict.” United States v. Percel , 553 F.3d 903, 910 (5th Cir. 2008) (quoting United S t a t es v. McDowell , 4 9 8 F.3d 308, 312 (5th Cir. 2007)). A jury verdict will be upheld if a ra t i o n a l trier of fact could conclude from the evidence, viewed in the light most favorable to the verdict, that the elements of th e o f f e n se were established beyond a reasonable doubt. Id. Sentencing Guidelines calculations ar e reviewed for clear error but the legal interpreta t i o n and application of the Guidelines are reviewed de novo . United States v. Smith , 4 4 0 F

. 3 d 704, 706 (5th Cir. 2006). As a result, “characterizing an offense as a crime of violence is a purely legal determination” that is also reviewed de novo . United States v. Guevara , 408 F.3d 252, 261 n.10 (5th Cir. 2005). I. Sufficiency of the Evidence. Stoker, contending he lacked the requisite intent to retaliate agains t o r threaten Moore, argues that the evidence was insufficient to convic t him of either count. A violation of § 1513(e) requires proof that (1) Stoker knowingly t o o k an action with intent to retaliate; (2) Stoker harmed Moore; and (3) his retaliation

was spawned by h e r a s s i stance to law enforcement. Stoker challenges the 1

Cou nt On e w as a vio lati on of 18 U .S .C. § 1513( e). It p rovid es : 1 Whoeve r kn ow ingly, wi th the inte nt to ret aliat e, tak es any act ion harm ful to any per so n, inclu di ng inte rf ere nce wi th the law ful em plo ymen t or livelih ood of any per so n, for pr ovidi ng to a law enf orc em ent off

icer any tru thf

ul info rm atio n r elat ing to the com mi ss ion or pos sib le com mi ss ion of any Fe der al off ens e, sha ll be fine d unde r this tit le or im priso ned not mo re than 10 years , or 3 Case: 11-60754 Document: 00512131740 Page: 3 Date Filed: 01/31/2013No. 11-60754

evidence only on the first element, although he charac t e r i z es Moore’s reaction to his letter as extreme. He “merely” intended, as he explained in a letter to the U.S. Attorney, to signify his unhappiness with M o o r e ’ s “betrayal” but never intended to harm her. “Intent may, and generally must, be proven circumstantially. Generally, the natural probable consequences of an act may satisfactorily evidence th e s t at e

o f m i n d accompanying the act, even when a particular mental attitude i s a crucial element of the offense.” United S t a t e s v. Maggitt , 784 F.2d 590, 593 (5th C ir. 1986). In Maggitt , one of the defendants was convicted of a § 1513 violation for telling a witness she was aware of his testimony against her brother and that she was going to kill him for it. The defendant later argued the threat

was not serious and that she was just mad a t s o meone who had been a friend and neighbor for years. This court noted that, given those circumstances, “the jury could have concluded t h a t [ s h e ] was just ‘blowing off steam.’” Id. at 594. Nevertheless, when the evidence was viewed in a l i ght most favorable to the prosecution, it had to be acknowledged that “[t]he jury could also have found beyond a reasonable d o ub t t h at [the defendant]’s threat was intended in retaliation against [the witness] for his earlier testimony before the grand jury.” Id. Here, as in Maggitt , the jury was wit hin its bounds to find retaliatory intent on t h e p a r t o f Stoker. While a reasonable person could view such a letter—mailed from prison, by an arsonist (who committed arson as retaliation for being thrown out of a bar), detailing the witness’s fear of retaliation—as an

both

.

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ominous sign, the jury might have accepted Stoker’s rationale that he was only expressing displeasure towa r d Moore. Viewing the evidence in a light most favorable to the government, however, the evidence is sufficient to support what the jury concluded beyond a reasonable doubt: mailing the letter was illegal retaliation against Moore. As Maggitt teaches, a jury is free to infer the intent to retali a t e f

r o m the natural consequences likely to flow from the defendant’s actions. The jury here could at least infer Stoker’s intent to seriously frighten the wi t n e s s; fear was a natural probable consequence when she received the investigation report from him. Likewise, the jury was free to infer that Stoker knew he wa s m a i ling a threat to injure Moore when he sent her the report that relayed her fears of what he might do if she testified. A violation of 18 U.S.C. § 876(c) requires proof of the mailing of a communication containing “any threat to injure” t h e a ddressee. 2 The jury had to decide whether the communication was intended as a threat. This determination follows a similar analysis to that for intent to retaliate: the natural consequences of an action may be inferred to evidence an intent to cause the reaction (e.g
. , e l i citing fear by mailing a letter that hypothesizes possible retaliation by an arsonist). Moore reasonably construed the communication as

a personal threat. Additionally, the subjective intent to injure M o o r e is i r r elevant; and it is of no consequence that Stoker neither planned t o n o r w a s able to carry out the threat. See United States v. DeShazo , 565 F.2d 893, 894–95

18 U. S. C. § 8 76(c) st ates : 2 Whoeve r kn ow ingly so dep os its or caus es to b e d e l ivere d as afo res aid, any com municat ion wi th or wi thou t a nam e or de s i gn a t i n g mar k sub sc ribe d ther eto , addres se d to any othe r per so n and cont aining any thr eat to ki dnap any per so n or any thr eat to injure the per so n of the add res se e or of anot her, sha ll be fine d unde r this t itleorim pr iso ned not mo re than five years , or both

.

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(5th Cir. 1978) (per curiam). The evidence is thus su f f i c i e nt to support both counts of the conviction. 3 II. Crime-of-Violence Enhancement Because of the significant impact on his sentence, Stoker seeks a reversal of the district court’s career offender designation under U.S.S.G. § 4B1.1. This section enhances the sentence if (a) either of the instant offenses of co nviction is a “crime of violence” and, undisputed here, Stoker (b) i s over eighteen years of a g e and (c) has two prior felony convictions (satisfied here by the two convictions for arson, an enumerated crime of violence). According to Stoker, his Sentencing Guidelines range is altered from 100–125 months to 2–33 months if neither conviction qualifies for the career offender enhancements. Stoker asks us to consider whether either of his instant convict i o n s f or violating 18 U.S.C. §§ 1513(e) and 876(c) is a crime of violence, which is defined

as: any offense under federal or state law, 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 another , or (2) is burglary of a dwelling, arson, o r extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

.

Sto ke r als o chall enges his att orne y’s trial strat egy to prevent the jury fr om hear ing, 3 interali a , St ok er' s rac istmot ive forar so n o f theDam . Only in rar e circ ums tanc es does this cour t exam ine an inef fec tive as sis tanc e of couns el clai m on dir ectap pea l. See Uni ted States v. Gu lley , 526 F.3d 809, 821 (5th Cir. 2008) (p er curiam). He re, the lack of a deve lop ed rec ord pr eclu des any suc h inquiry, a l t h ough it is highly unlik ely that the inef fec tive ass ist ance argum ent is viable.
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U.S.S.G. § 4B1.2(a) (emphases added). A crime of violence under § 4B1.2 must therefore (1) contain as an element the “use, attempted use, or threatened use of physical force” against the person of another (the “element clause”); or (2) fall within the list of enumerated offense s ; o r (3) otherwise involve conduct that presents a serious potential risk of physical in jury to another (the “residual clause”). The offenses of conviction here are not enumerated within § 4B1.2(a)

or its Commentary. Stoker argues tha t n e i t h e r offense satisfies the element clause or the residual clause. A. § 4B1.2(a)(1)—The Element Clause The element clause of § 4B1.2(a) is more e a s i ly a ddressed. According to Taylor v. United States , 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990), we are obliged to analyze the elements of the statute of conviction, in the u s u a l c a s e , rather than the facts of the specific o f f e n s e . This court applies Taylor’s “categorical approach” to interpretations of the Sentencing Guidelines. 18 U.S.C. § 1513( e) c r i m inalizes “[w]hoever knowingly, with the intent to

r e t aliate, takes any action harmful to any person, including interference wi t h the lawful empl o y m e n t or livelihood of any person, [for assisting law enforcement].” The gravamen of t h e offense is intentional retaliation that “harms” the person who cooperated truthfully. Although the crime of retaliation may be committed, and was committed here, by a threat reasonably construed to portend physical force, the threatened use of physical force is not an element of th i s o f

f e n s e . “[A]n element is ‘[a] constituent part of a claim that must be proved for the claim to succeed.’” United States v. Vargas-Duran , 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (quoting Black’s Law Dictionary 538 (7th ed. 1999)). Section 1513(e) broadly condemns a wide range of retaliatory actions that may i n f l i c t only emotional or economic harm; neither the “use, attempted use, o r

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threatened use of physical force” against a victim is an element the government had to prove to convict Stoker. Cf. United States v. Montgomery , 402 F.3d 482, 486–87 (5th Cir. 2005) (holding that Texas crime of “retaliation” against a law enforcement officer is not a crime of violence). In contrast, 18 U.S.C. § 876(c) prohibits mailing “any threat to kidnap any person or any threat to injure the person of the addressee or of another.” Paring down the statute to the offense of conviction, this count has, as an element, the 4 threat o f p h ysical force inherent in threatening to injure “the person” of the victim. In United States v. Guevara , 408 F.3d 252, 259–60 (5th Cir. 2005), this court acknowledged a sister circuit’s conclusion that a conviction under § 876(c) is a crime of violence according to § 4B1.2(a)(1) (citing United States v. Left Hand Bull , 901 F.2d 647, 649 (8th Cir. 1990)). Every other court has agreed with this “element” clause characterization. See United States v. Archer , 93 F. App’x 767, 768 (6th Cir. 2004); United States v. De La Fuente , 353 F.3d 766, 770–71 & n.3 (9th Cir. 2003); United States v. Littlejohn , No. 97-4092, 1998 WL 13526, at *3 (4th Cir. Jan. 15, 1998) (unpublished). B. § 4B1.2(a)(2)—The Residual Clause That § 876(c) al o n e qu alifies as a crime of violence does not suffice to

su s t a i n Stoker’s 108-month within-guideline sentence. His career offender sentencing range was derived from the ten-year maximum sentence for criminal retaliation. Had the criminal mailing o f a threat been the sole basis for the enhancement, its maximum sentence of five years would have yielded a m u ch

In app lying the Tay lor /She pa rd cat egori cal app roac h to § 4B1.2 (a) cri me of violenc e 4 det erm inati ons , cour ts may “p are dow n” a disjunct ive cri mi nal st atut e to ref ere nce the act ual count of convic tio n, as dem ons tra ted b y exam ining, inter al ia , char ging doc ume nts , jury ins tru cti ons , guilty ple a st ipul atio ns, and sim ilar doc ume nts

. Uni ted States v. Mo hr , 554 F.3d 604, 607( 5th Cir. 200 9) (c itat ionsom itt ed)

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lower sentencing range—51 to 63 months. Cons e qu ently, we must consider whether the retaliation conviction may be a crime of violence under the residual clause on the theory that it involves conduct presenting a “serious potential risk of physical injury” to the victim. U.S.S.G. § 4B1.2(a)(2). Although given the unusual twist that the issue here is whether the crime actually tried to the jury is a crime of violence, we follow essentiall y the

“ modified categorical approach,” adapted from Shepard v. United States , 544 U.S. 13, 20–26, 125 S. Ct. 1254, 1259–63 (2005), under which this court analyzes the nature of the crime described by the statute rather than the underlying facts of the offense when considering the residual clause. See United States v. Mohr , 554 F.3d 604, 607 (5th Cir. 2009); Montgomery , 402 F.3d at 487. 5 The Supreme Court endorsed this approach to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), with its nearly identical residual clause for
p r i o r o f fenses, in James v. United States , 550 U.S. 192, 202, 127 S. Ct. 1586, 1594 (2007). Alternatively, we may fol l o w t his court’s holding that under the ACCA “for the purpose of § 4B1.2, a conviction is for a crime of violence when the defendant pleads guilty to an i ndictment count that alleges conduct that presents a serious pot e n t i a l risk of injury to another.” United States v. Lipscomb , 619 F.3d 474, 479 (5th Cir. 2010). Each approach will be discussed. Supreme Court precedent establishes some parameters to classification of

an offense as a “crime of violence” via the residual clause. Most relevant here is the Court’s decision to limit the ACCA enhancement for “violent felonies” to crimes “similar” to the there-enumerated offenses of burglary, arson, extortion,

or the use of explosives. Begay v. United States , 553 U.S. 137, 143–44, 128 S. Ct.

Theof fen seof c onvict ion may be “p aredd ow n” as des cribedinn. 4 ab ove, butt his is 5 fort he pur pos e o f narr ow ing t he inquiry as t o t he natur e o f the st atut e o f convic tio n. 9 Case: 11-60754 Document: 00512131740 Page: 9 Date Filed: 01/31/2013No. 11-60754

1581, 1585–86 (2008). “Similarity,” in the Court’s view, entails crimes that are (1) “roughly similar, in kind as well as in degree of risk posed, to the examples themselves,” id. at 143, 1585, and (2) “typically involve purposeful, ‘violent,’ and ‘aggressive’ con d u c t

. ” I d

. at 144–45, 1586. Begay concluded that a prior state conviction for felonious DUI did not fulfill these qualities of similitude and thus

was not a crime of violence under ACCA. In so holding, the Court assumed that 6 “DUI involves conduct that ‘presents a serious potential risk of physical injury to another,’” but nonetheless found the violation “outside t h e scope” of the residual clause. Id. at 141–42, 1584. Under either Shepard or Begay as applied in this court, we are compelled to conclude that the retaliation statute under which Stoker was convicted does not necessarily entail “conduct that presents a serious potential risk of physical injury to another.” The statute, as previously noted, is broadly framed to include all conceivable harms inflicted by a retaliating defendant. From this standpoint alone, it appears to fail the test of posing, by its nature, a serious risk of physical injury to victims. The actions of such a defendant are indeed “purposeful” and “aggressive,” two qualities identified in Begay , but they are not necessari l y “violent.” Nor does § 1513(e) appear “similar” to any of the crimes enumerated in Commentary to § 4B1.2(a), except perhaps extortion. Begay referred to the ALI Model Penal Code definition of extortion as “‘purposely’ obtaining property

o f another, through threat of, e.g. , inflicting ‘bodily injury.’” Id. at 145, 1586 (citing ALI Model Penal Code § 223.4(1) (1985)). Extortion thus connotes a crime

“Rather , w e h oldon ly t hat, f or pur pos esof

t he par tic ular st atut ory pr ovis ion bef ore 6 us, a pr ior rec ord of DU I, a s t r i ct liabil ity cri me , dif fer s fr om a pr ior rec ord of violent and aggres sive cri me s com mi tte d inte ntio na l l y s u ch as ars on, burglar y, extor tio n, or cri me s involving the use of explo sive s. ” Begay v. Uni ted States , 553 U. S. 137, 148, 128 S. Ct. 158 1, 1588 (200 8).
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of purpose, threat, and inherent serious potential risk of physical injury as property is extracted from t h e vi c tim. The retaliation statute, too, involves a criminal purpose and threat to harm but, unlike extortion, the harm explicitly need not involve physical injury. Indeed, this limitation of § 1513(e) would seem to be emphasized by the companion provision, § 1513(b), which crimi n a l i z es retaliation in the form of physical violence or a threat of physical violence. Fifth Circ u i t precedent also lends authority to this conclusion. Before Begay , this court had ruled that a violation of a Texas anti- r e t aliation sta t u t e—“triggered when someone ‘intentionally or knowingly harms or threatens to harm another by an unlawful act

. . . in retaliation for [the person’s] service or status

. . . as a . . . public serva n t , ’”

—w as not a violent felony under ACCA’s residual clause. Montgomery , 402 F.3d at 488 (quoting Texas Pen. Code Ann. § 36.06(a)(1)(A) (2003)). As here, t h e s t a t ute could be violated by thre a t e n i n g a police officer with financial or reputational harm. Id

. But the court there did not look past the nature of the statute and, consequently, the “mere act of a verbal threat,” id

. at 489, was not found to necessarily pose a risk of physical injury. Montgomery is not materially distinguishable from this case, 7 except tha t it characterized a defendant's prior conviction rather than the instant offense of conviction. Finally, one case th a t m ight appear to support finding the retaliation conviction w i t h i n the residual clause is distinguishable. In United States v. Mohr , this court applied the residual clause, post- Begay , to a defendant’s prior

But s e e U

n i te d States v. Sawyers , 409 F.3d 732, 742–43 (6t h Cir. 2005) (ho ldi ng 7 Tennes se e ret aliat ion cri me fal ls wi thin the res idua l cl a use). The conf lict betw een Mo ntgome ry and Sawyers wa s noted by Jus tic e Alito in Cham bers v. UnitedStates , 555 U. S. 122, 133 n. 2, 129 S. Ct

. 687, 694n. 2 ( 2009) (Alito , J., c oncur ring in the judgm ent)

.

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conviction for stalking under Florida law. The court held that sufficien t proof of the u n d e r l yi ng crime was offered, pursuant to Shepard , to “pare down” a disjunctive criminal statute a n d d e scribe the defendant’s conduct as following and harassing the victims with threats of bodily injury. Mohr , 554 F.3d at 610. Unlike Mohr , t here is no disjunctive statute to pare down in this case. And unlike Mohr , the threat here was not a c c o mpanied by the physical acts of pursuing the victims, which lent force to the conclusion that a serious potential risk of physical violence existed. Because Stoker’s offense of c o nvictio n , rather than a prior conviction, must be characterized for crime of violence purposes, we turn also to Lipscomb , which discussed extensively the Guidelines Commentary to § 4B1.2. Lipscomb held that the “conduct s e t forth ( i.e. , expressly charged) in the count of which the defendant was convicted” may be used to apply the residual clause. Lipscomb , 619 F.3d at 478 (quoting § 4B1.2, Application Note 1). The indictment here alleged: 10. On or about March 29, 2011, in the Northern District of Mississippi, WAYNE ALLEN STOKER, defendant, did knowingly, with intent to retaliate, take an action harmful to Donna Moore for her providin g t o a law enforcement officer truthful information relating to the commission or possib l e c o m mission of a Federal offense, that is; WAYNE ALLEN STOKER, defendant, mailed an envelope to Donna Moore at her home address that contained only one item: the first page of the Moore ROI describing the information Donna Moore provided to the ATF, including WAYNE ALLEN STOKER’S confession that he burne d do wn the Dam Bar and Donna Moore’s fear of retribution from WAYNE ALLEN STOKER. All in violation of Title 18, United States Code , S e ction 1513(e).
For two reasons, the conduct charged falls outside the residual clause. First, it alleges “an action harmful to Donna Moore” but says nothing that suggests the

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r etaliation posed a serious potential risk of physical violence again s t h e r . Second, as has been noted, § 1513(e) refers to “harmful” retaliation as including

“i n t e rf erence with the lawful employment or livelihood of a person,” whereas another provision, § 1513(b), prohibits retaliation inflicted by physical violence

or a threat of physical violence. Section 1513(e), in its terms and as charged, exceeds the physical violence necessary for application of the residual clause. CONCLUSION The evidence was sufficient t o c o nvi ct Stoker on both counts. However, because his crime of retaliation could not be a crime of violence under the career offender guideline, the court misapplied the longest noted guidelines range. On remand, it must resentence S t o k e r as a career offender based on his § 876(c) conviction, together with any adjustment deemed appropriate.

Conviction AFFIRMED ; Sentence VACATED and REMANDED

.

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EDITH H. JONES, Circuit Judge, specially concurring, joined by GAR ZA, Circuit Judge. Although bound by precedent to concur in reversing Sto k e r ’s sentence, I would have otherwise affirmed. Lipscomb binds us in the straitjacket of the modified categorical approach and the “conduct charged in the in dictment” when determining if Stoker’s retaliation o ffense of conviction was a crime of violence. This means the sentencing court must ignore the actual trial record and the facts and inferences drawn from the testimony to make that consequential enhancement. I do not believe the Supreme Court or the United States Sentencing Co m mission intended this counter-intuitive procedure. I write in hope that it may someday be reversed. 1 As the Eighth Circuit recently noted, “It is rare that a dispute concerning the career offender enhancement revolves a r ound the instant offense of conviction. This paradigm affects our analys i s . ” United States v Williams , 690 F.3d 1056, 1069 (8th Cir. 2012). Williams departed from the modified categorical app r o a c h a nd went on to “consider the readily available trial evidence” to assess whether the defendant’s conduct for which h e h a d b een convicted qualified as a crime of violence under § 4B1.2(a)(2). Id. Based on the record, the court’s affirmative conclusion was ea s i l y reached. Id. The Tenth Circuit has also evaluated the full trial court record in order to characterize the defendant’s offense of conviction properly under the crime of violence guidelines. Unit e d S t ates v. Riggans , 254 F.3d 1200, 1203–04 (10th Cir. 2001). But cf. United States v. Piccolo , 441 F.3d 1084, 1086–8 7 (9th Cir. 2006) (insisting on

I genera lly agree wi th Judge Ki ng’s conc urr ence in Lip sco mb , 619 F.3d 474, 479 (5t h 1 Cir. 201 0), w hich mak es s im ilarp oint s. 14 Case: 11-60754 Document: 00512131740 Page: 14 Date Filed: 01/31/2013No. 11-60754

modified categorical approach for the instant offense of conviction). For several reasons, this court should adopt the whole-record approach. The genesis of the modified categorical approach rests on interpretations of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), which dramatically enhances prison terms of felons who illegally possess firearms if they have three prior convictions for “violent felonies.” Taylor advanced two principal grounds for classifying “violent felonies” under the ACCA residual clause according to the generic eleme nt s of the prior offenses rather than offense-specific conduct. First, Congress intended that the enhanced federal penalties would be based on uniform, federal definitions of the prior convictions rather than on the numerous vagari e s of state criminal statutes. Second, offense-specific inquiries about prior convictions would be imp r a c t i cal, complex, and potentially unfair. While the Supreme Court has never specifically dictated comparability between its ACCA

enh anc e m e nt c a s e s an d th e Gui delin e s c ar eer offender enhancement (and indeed has never de ci de d a Gui delin e s career offender case), lower courts have naturally treated the enhancements, at least for prior convictions, in pari materia because of their similar language. Like must be treated alike under the rule of l a w , b u t courts must also recognize when the context and p r e c i se language of rules render cases dissimilar. The Sentencing Commission adopted the ACCA’s elements test and residual clause almost literally when it cr af t e d th e c ar e er offender enhancement. U.S.S.G. § 4B1.2. Still, several relevant distinctions from ACCA are evident in the language, application, and purpose of the Guidelines. First, the Guidelines definition of a crime of violence (§ 4B1.2) clarifies an enhancemen t p r o vi sion (§ 4B1.1) that describes a “career offender” in terms (here pertinent) of his “instant offense of conviction” and a minimum of two prior

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convictions, a l l o f w hich must be felonies and crimes of violence or controlled substance offenses. ACCA, in contrast, inflicts a mandatory minimum sentence

on a conviction for a federal firearms violation—itself not necessarily a crime of violence—where the defendant has three pri o r f elony convictions for “violent f e lonies.” All ACCA prior offenses are past offenses, while one of the § 4 B 1

. 1 offenses is always an instant offense of conviction. Next, the Guidelines definition of a crime of violence tracks the language of ACCA in both th e e l e m e n t s and residual clause, but the Guidelines depart from ACCA in the career offender (§ 4B1.1) usage. This is ex p l a i n e d i n the C o m m entary to § 4B1.2, Application Note 1, which expands the definition o f “crimes of violence” to include as enumerated offenses murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. The residual clause is also expanded in this Application Note by identifying: “the conduct set forth ( i.e. , expressly charged) in the count o f which the defendant was convicted” as that which, “by its nature, presented a serious potential risk of physical injury to another.” Other specific situations in which a crime of violence is included or exclud e d f

ro m th e Gui delin e s usage occupy the following eight paragraphs of this Commentary. Application Note 2 then states:

Sectio n 4 B 1 .1 (Career Offender) expressly provides that the i n stant and prior offenses must be crimes of violence or cont r o l l e d substance offenses of which the defendant w a s c o nvict e d

. Therefore, in determining whether an offense is a c r i m e o f violence or con t r o l l ed substance [offense] for the purposes of § 4B1.1 (Career Offender), the offe n s e o f conviction ( i.e. , the conduct of which the defendant was convicted) is the focus of inquiry. (Emphasis added).

R einf orcin g th e s e di s tinctio n s , th e Guidelines separately define an “Armed

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Career Criminal” in § 4B1.4, a provision designed to embody the requirements of ACCA and apply the mandatory statutory minima in a s t r u c tured manner. While this guideline does not superfluously duplicate ACCA’s statutory definition of “violent felonies,” the Commentary Application Note 1 t o t h i s provision warns that “the definitions of ‘violent felony’ and ‘serious drug offense’ in 18 U.S.C. § 924(e)(2) are not identical to the definitions of ‘crime of violence’ and ‘controlled substance offense’ used in § 4B1.1 (Career Offender)” (emphasis added). These linguistic distinctions indicate to me that (a) the “instant offense of conviction” in § 4B1.1 does not fully track an ACCA “violent felony;” (b) a “crime of violence” in the § 4B1.2(b) residual clause i s specifically concerned with the defendant’s “conduct set forth ( i.e. , e x p r e s sly charged);” and (c) “the offense of conviction ( i.e. , the conduct of which the defendant was convicted) is the focus of the inquiry.” This language may not require an offense specific inquiry in order to characterize o f

f e n s e s as crimes of violence, but unlike the Supreme Court’s interpretation of ACCA, it certainly does not preclude such inquiry where appropriate. The career offender provision, along with its crime of violence definition, must also be fit within the general framework of the Guidelines—a framework much more flexible t han that of ACCA. While ACCA is a single statute interpreted consistent with the intent of Congress, the Guidelines’ intent is to structure and inform criminal sen t e n c i ng across the wide range of federal offenses

. Effectuating this purpose, the Guidelines ordinarily allow the sentencing court to consider all factors bearing on the seriousness of the instant crime o f c o nvi ction as well as the defendant’s criminal history. Strict rules do not govern the admissibility of eviden c e , United States v. Rodriguez , 897 F.2d

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1324, 1328 (5th Cir. 1990), the court makes determinations based o n a preponderance standard, United States v. Thomas , 690 F.3d 358, 374 (5th Cir. 2012), and the findings in the presentence report may be accepted by the court unless the defendant meets the burden of adducing contradictory evidence. United States v. Ayala , 47 F.3d 688, 690 (5th Cir. 1995). S i gn i f i cantly, the Guidelines are no longer held to bind the discretion of sentencing courts. United States v. Booker , 5 43 U.S. 220, 245, 125 S. Ct. 738, 756–57 (2005). The overarching methodology of the Guidelin e s c annot , of c o ur s e , tru m p th eir specific language, but here, where the language does not exclude considering the facts of the offense of conviction, the methodology beh i n d gu ideline sentencing reinforces an offense-specific approach. The contrast between the Guidelines and ACCA is accentuated because

none of the princ i p l e s b ehind Taylor’s adoption of the categorical approach applies in this context. First, because the language and con t e xt of ACCA’s residual clause are different from the Guidelines, despite their facially similar

w o r ding, the ACCA’s language and Congressional intent are insufficient as a guide. The concern in Taylor for uniform f e d e ral definitions in pursuit of uniform application of mandatory sentence enhancements i s f undamentally different from achieving a defendant-specific sentence under 18 U.S.C. § 3553(a) within ranges of punishme n t

. T a ylor’s other concern, that offense-specific examination of prior convictions may involve mini-trials and is excee di n gly complex and potentially unfair, canno t b e l o dged when the crime of violence question arises from the “instant offense of conviction.” Relevant to this offense, the court has before it the entire record of the proceedings (w h e th e r o f trial or guilty plea) , h a s h eard the evidence, and has the thorough report in the PSR concerning not only the instant offense but also the d e f endant’s background.

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T here will be no factual uncertainty underlying the crime of vio l e n c e determination. Finally, to th e extent that the categorical approach of Taylor and its
p r o g e ny has proven far more difficult in application than the Supreme C o u r t probably foresaw, courts applying the Guidelines to the “instant offense of 2 conviction” should not feel compelled to follow Taylor when that line of cases is not mandatory. The courts’ role differs between statutory interpretation under ACCA and sentencing “t h e instant offense of conviction” under the guidelines. ACCA’s inte r p r e t a t ion revolves around the need to define federal crimes consistently. Determining whether an individual federal defendant is a “career offender,” however, ought to be heavily dependent on whether the “instant conviction”—the motivating force behind this enhancement—is a crime of violence. It is reasonable and in accord with the whole-offense approach of the Guidelines to make that determination based not on an abstract description of the “probabilistic” likelihood that serious physical injury will be inflicted by the statutorily defined offense, but on the reality of the defendant’s instant crime. 3 For t h e s e reasons, I believe that the court should have been entitled to review the whole record in order to decide whether Stoker’s conviction for illegal

r etaliation, violative of 18 U.S.C. § 1513(e), was a crime of violence. As in th e Williams case, this perspe c t iv e yields a ready affirmative answer. The jury

See Cham bers , 555 U. S. at 126, 129 S. Ct. at 690 (“ This cat egori cal app roac h requ ires 2
cour ts to choo se the right cat egory. And so me tim es the choi ce is not obvious .” ); id. at 134, 695 (Alit o, J., concur ring in the judgm ent) (“Atthis point , theonly tenable , long- ter m s olut ion is for Congres s to for mul ate a sp ecif ic lis t of expr es sly def ined cri me s that are dee me d to be wo rth y of ACCA’s se nten cing enhanc em ent.

. . . And t h a t a p p r o a c h is the only wa y to right ACCA’s shi p. ”)

. See Jam es v. U

nitedState s , 550 U. S. 192 , 207–08, 127S

. Ct. 158 6, 1597 (200 7). 3 19 Case: 11-60754 Document: 00512131740 Page: 19 Date Filed: 01/31/2013No. 11-60754

found that Stoker’s letter to Moore, sent one day after he was sentenced for the Dam Bar arson, had a singular purpo s e : t o paralyze her with fear, a fear not unreasonable under the circumstances, that he would retaliate against her with

a r s o n a s he did against the owner of the Dam Bar. Based solely on wh a t s h e k n e w of Stoker, the threat posed a serious potential risk of physical injury t o Moore. And this is true despite his be i n g i m p r i s o ned for the time being. 4 Stoker’s illegal retaliation thus fell within the residual clause of § 4B1.2(b) as a crime of violence.

E v e n att em pt s are tre ated as sub st antive cri me s unde r the Sent enci ng Gu ide lines , 4
see U. S. S. G. § 2X1 .1, andar e n ot exclud ed by t he ACCA. Ja me s , 550 U. S. at198 , 1591. 20 Case: 11-60754 Document: 00512131740 Page: 20 Date Filed: 01/31/2013