IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 and threatening 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 incident, he became acquainted

with a woman named Donna Moore (“Moore”) and sometime thereafter confessed

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2013

Lyle W. Cayce

Clerk

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the arson to her. Upon hearing the details of Stoker’s act, Moore became fearful

and called an anonymous hotline to report the incident. An FBI agent

eventually convinced her 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.

Stoker was subsequently convicted by a jury of violating

18 U.S.C. § 1513(e)—retaliation against a witness providing truthful information

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 PSR added both arson convictions to the two counts of

conviction in the present case to conclude that Stoker qualified for the careeroffender enhancement under U.S.S.G. § 4B1.1. The district court agreed,

treating all four convictions as crimes of violence. U.S.S.G. § 4B1.2. The

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 sufficiency 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 to support the verdict.” United States v. Percel,

553 F.3d 903, 910 (5th Cir. 2008) (quoting United States v. McDowell,

498 F.3d 308, 312 (5th Cir. 2007)). A jury verdict will be upheld if a rational

trier of fact could conclude from the evidence, viewed in the light most favorable

to the verdict, that the elements of the offense were established beyond a

reasonable doubt. Id.

Sentencing Guidelines calculations are reviewed for clear error but the

legal interpretation and application of the Guidelines are reviewed de novo. 

United States v. Smith, 440 F.3d 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 against or

threaten Moore, argues that the evidence was insufficient to convict him of

either count.

A violation of § 1513(e) requires proof that (1) Stoker knowingly took an

action with intent to retaliate; (2) Stoker harmed Moore; and (3) his retaliation

was spawned by her assistance to law enforcement. Stoker challenges the 1

 Count One was a violation of 18 U.S.C. § 1513(e). It provides:

1

Whoever knowingly, with the intent to retaliate, takes any action

harmful to any person, including interference with the lawful employment or

livelihood of any person, for providing to a law enforcement officer any truthful

information relating to the commission or possible commission of any Federal

offense, shall be fined under this title or imprisoned not more than 10 years, or

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evidence only on the first element, although he characterizes 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 Moore’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 the state

of mind accompanying the act, even when a particular mental attitude is a

crucial element of the offense.” United States v. Maggitt, 784 F.2d 590, 593

(5th Cir. 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 at someone who had been a friend

and neighbor for years. This court noted that, given those circumstances, “the

jury could have concluded that [she] was just ‘blowing off steam.’” Id. at 594. 

Nevertheless, when the evidence was viewed in a light most favorable to the

prosecution, it had to be acknowledged that “[t]he jury could also have found

beyond a reasonable doubt that [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 within its bounds to find retaliatory

intent on the part of 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 toward 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 retaliate from 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 witness; 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 was mailing 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” the addressee.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., eliciting 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 Moore is

irrelevant; and it is of no consequence that Stoker neither planned to nor was

able to carry out the threat. See United States v. DeShazo, 565 F.2d 893, 894–95

 18 U.S.C. § 876(c) states:

2

Whoever knowingly so deposits or causes to be delivered as aforesaid,

any communication with or without a name or designating mark subscribed

thereto, addressed to any other person and containing any threat to kidnap any

person or any threat to injure the person of the addressee or of another, shall

be fined under this title or imprisoned not more than five years, or both.

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(5th Cir. 1978) (per curiam). The evidence is thus sufficient 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 conviction

is a “crime of violence” and, undisputed here, Stoker (b) is over eighteen years

of age 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 convictions for

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, or extortion,

involves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury

to another.

Stoker also challenges his attorney’s trial strategy to prevent the jury from hearing, 3

inter alia, Stoker's racist motive for arson of the Dam. Only in rare circumstances does this

court examine an ineffective assistance of counsel claim on direct appeal. See United States

v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (per curiam). Here, the lack of a developed record

precludes any such inquiry, although it is highly unlikely that the ineffective assistance

argument 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 offenses; or (3) otherwise involve conduct that

presents a serious potential risk of physical injury to another (the “residual

clause”). The offenses of conviction here are not enumerated within § 4B1.2(a)

or its Commentary. Stoker argues that neither 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 easily addressed. 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 usual case,

rather than the facts of the specific offense. This court applies Taylor’s

“categorical approach” to interpretations of the Sentencing Guidelines. 

18 U.S.C. § 1513(e) criminalizes “[w]hoever knowingly, with the intent to

retaliate, takes any action harmful to any person, including interference with

the lawful employment or livelihood of any person, [for assisting law

enforcement].” The gravamen of the 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 this offense. “[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

inflict only emotional or economic harm; neither the “use, attempted use, or

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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 of physical 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) alone qualifies as a crime of violence does not suffice to

sustain 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 of a threat been the sole basis for the

enhancement, its maximum sentence of five years would have yielded a much

In applying the Taylor/Shepard categorical approach to § 4B1.2(a) crime of violence

4

determinations, courts may “pare down” a disjunctive criminal statute to reference the actual

count of conviction, as demonstrated by examining, inter alia, charging documents, jury

instructions, guilty plea stipulations, and similar documents. United States v. Mohr, 554 F.3d

604, 607 (5th Cir. 2009) (citations omitted).

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lower sentencing range—51 to 63 months. Consequently, 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 essentially 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

prior offenses, in James v. United States, 550 U.S. 192, 202, 127 S. Ct. 1586,

1594 (2007). Alternatively, we may follow this 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 indictment count that alleges conduct that

presents a serious potential 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.

 The offense of conviction may be “pared down” as described in n.4 above, but this is 5

for the purpose of narrowing the inquiry as to the nature of the statute of conviction.

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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’ conduct.” Id. 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 the 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 necessarily

“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

of 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, we hold only that, for purposes of the particular statutory provision before 6

us, a prior record of DUI, a strict liability crime, differs from a prior record of violent and

aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes

involving the use of explosives.” Begay v. United States, 553 U.S. 137, 148, 128 S. Ct. 1581,

1588 (2008).

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of purpose, threat, and inherent serious potential risk of physical injury as

property is extracted from the victim. 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 criminalizes

retaliation in the form of physical violence or a threat of physical violence.

Fifth Circuit precedent also lends authority to this conclusion. Before

Begay, this court had ruled that a violation of a Texas anti-retaliation

statute—“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 servant,’”—was 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, the statute could be violated by

threatening 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 that it characterized a defendant's prior conviction rather than the

instant offense of conviction.

Finally, one case that might appear to support finding the retaliation

conviction within the residual clause is distinguishable. In United States v.

Mohr, this court applied the residual clause, post-Begay, to a defendant’s prior

But see United States v. Sawyers, 409 F.3d 732, 742–43 (6th Cir. 2005) (holding 7

Tennessee retaliation crime falls within the residual clause). The conflict between

Montgomery and Sawyers was noted by Justice Alito in Chambers v. United States, 555 U.S.

122, 133 n.2, 129 S. Ct. 687, 694 n.2 (2009) (Alito, J., concurring in the judgment).

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conviction for stalking under Florida law. The court held that sufficient proof

of the underlying crime was offered, pursuant to Shepard, to “pare down” a

disjunctive criminal statute and describe the defendant’s conduct as following

and harassing the victims with threats of bodily injury. Mohr, 554 F.3d at 610. 

Unlike Mohr, there is no disjunctive statute to pare down in this case. And

unlike Mohr, the threat here was not accompanied 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 conviction, 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 set 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 providing to a law enforcement officer truthful information

relating to the commission or possible commission 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 burned down the Dam Bar and Donna

Moore’s fear of retribution from WAYNE ALLEN STOKER. 

All in violation of Title 18, United States Code, Section

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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retaliation posed a serious potential risk of physical violence against her. 

Second, as has been noted, § 1513(e) refers to “harmful” retaliation as including

“interference 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 to convict 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 Stoker 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 GARZA,

Circuit Judge. 

Although bound by precedent to concur in reversing Stoker’s sentence, I

would have otherwise affirmed.

Lipscomb binds us in the straitjacket of the modified categorical approach

and the “conduct charged in the indictment” when determining if Stoker’s

retaliation offense 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 Commission

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 around the instant offense of

conviction. This paradigm affects our analysis.” United States v Williams,

690 F.3d 1056, 1069 (8th Cir. 2012). Williams departed from the modified

categorical approach and went on to “consider the readily available trial

evidence” to assess whether the defendant’s conduct for which he had been

convicted qualified as a crime of violence under § 4B1.2(a)(2). Id. Based on the

record, the court’s affirmative conclusion was easily 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. 

United States v. Riggans, 254 F.3d 1200, 1203–04 (10th Cir. 2001). But cf.

United States v. Piccolo, 441 F.3d 1084, 1086–87 (9th Cir. 2006) (insisting on

I generally agree with Judge King’s concurrence in Lipscomb, 619 F.3d 474, 479 (5th

1

Cir. 2010), which makes similar points.

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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 elements 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

vagaries of state criminal statutes. Second, offense-specific inquiries about prior

convictions would be impractical, complex, and potentially unfair. While the

Supreme Court has never specifically dictated comparability between its ACCA

enhancement cases and theGuidelines career offender enhancement (and indeed

has never decided a Guidelines 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 law, but courts must also

recognize when the context and precise language of rules render cases

dissimilar. The Sentencing Commission adopted the ACCA’s elements test and

residual clause almost literally when it crafted the career 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

enhancement provision (§ 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, all of which 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 prior felony convictions for “violent

felonies.” All ACCA prior offenses are past offenses, while one of the § 4B1.1

offenses is always an instant offense of conviction. 

Next, the Guidelines definition of a crime of violence tracks the language

of ACCA in both the elements and residual clause, but the Guidelines depart

from ACCA in the career offender (§ 4B1.1) usage. This is explained in the

Commentary to § 4B1.2, Application Note 1, which expands the definition of

“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 of 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

excluded from theGuidelines usage occupy the following eight paragraphs of this

Commentary. Application Note 2 then states: 

Section 4B1.1 (Career Offender) expressly provides that the

instant and prior offenses must be crimes of violence or controlled

substance offenses of which the defendant was convicted. Therefore,

in determining whether an offense is a crime of violence or

controlled substance [offense] for the purposes of § 4B1.1 (Career

Offender), the offense of conviction (i.e., the conduct of which the

defendant was convicted) is the focus of inquiry. (Emphasis added). 

Reinforcing these distinctions,theGuidelines 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 structured manner. 

While this guideline does not superfluously duplicate ACCA’s statutory

definition of “violent felonies,” the Commentary Application Note 1 to this

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 is specifically concerned with the

defendant’s “conduct set forth (i.e., expressly 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 offenses 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 than 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 sentencing 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 of conviction as well as the defendant’s criminal history. Strict rules do

not govern the admissibility of evidence, United States v. Rodriguez, 897 F.2d

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1324, 1328 (5th Cir. 1990), the court makes determinations based on 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). Significantly, the

Guidelines are no longer held to bind the discretion of sentencing courts. United

States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 756–57 (2005). The

overarching methodology of the Guidelines cannot, of course,trump their specific

language, but here, where the language does not exclude considering the facts

of the offense of conviction, the methodology behind guideline sentencing

reinforces an offense-specific approach.

The contrast between the Guidelines and ACCA is accentuated because

none of the principles behind Taylor’s adoption of the categorical approach

applies in this context. First, because the language and context of ACCA’s

residual clause are different from the Guidelines, despite their facially similar

wording, the ACCA’s language and Congressional intent are insufficient as a

guide. The concern in Taylor for uniform federal definitions in pursuit of

uniform application of mandatory sentence enhancements is fundamentally

different from achieving a defendant-specific sentence under 18 U.S.C. § 3553(a)

within ranges of punishment. Taylor’s other concern, that offense-specific

examination of prior convictions may involve mini-trials and is exceedingly

complex and potentially unfair, cannot be lodged 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 (whether of trial or

guilty plea), has heard the evidence, and has the thorough report in the PSR

concerning not only the instant offense but also the defendant’s background. 

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There will be no factual uncertainty underlying the crime of violence

determination. 

Finally, to the extent that the categorical approach of Taylor and its

progeny has proven far more difficult in application than the Supreme Court

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 “the instant offense of conviction” under the guidelines. 

ACCA’s interpretation 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 these 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

retaliation, violative of 18 U.S.C. § 1513(e), was a crime of violence. As in the

Williams case, this perspective yields a ready affirmative answer. The jury

See Chambers, 555 U.S. at 126, 129 S. Ct. at 690 (“This categorical approach requires 2

courts to choose the right category. And sometimes the choice is not obvious.”); id. at 134, 695

(Alito, J., concurring in the judgment) (“At this point, the only tenable, long-term solution is

for Congress to formulate a specific list of expressly defined crimes that are deemed to be

worthy of ACCA’s sentencing enhancement. . . . And that approach is the only way to right

ACCA’s ship.”).

See James v. United States, 550 U.S. 192, 207–08, 127 S. Ct. 1586, 1597 (2007). 3

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found that Stoker’s letter to Moore, sent one day after he was sentenced for the

Dam Bar arson, had a singular purpose: to paralyze her with fear, a fear not

unreasonable under the circumstances, that he would retaliate against her with

arson as he did against the owner of the Dam Bar. Based solely on what she

knew of Stoker, the threat posed a serious potential risk of physical injury to

Moore. And this is true despite his being imprisoned for the time being.4

Stoker’s illegal retaliation thus fell within the residual clause of § 4B1.2(b) as a

crime of violence.

Even attempts are treated as substantive crimes under the Sentencing Guidelines,

4

see U.S.S.G. § 2X1.1, and are not excluded by the ACCA. James, 550 U.S. at 198, 1591.

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