Of the District of Puerto Rico, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-1553

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY ALLEN HERRICK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,

and Besosa , District Judge. *

Susan E. Taylor, for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

Appellate Chief, with whom Paula D. Silsby, United States Attorney,

was on brief for appellee.

October 17, 2008
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BESOSA, District Judge. On November 1, 2006, appellant

Jeffrey Allen Herrick plead guilty to a one-count information

charging him with possessing a firearm after he had already been

convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). He was sentenced on March 30, 2007. To determine

Herrick’s sentence, the district court relied on the United States

Sentencing Guidelines (“Guidelines”). On appeal, Herrick argues

that the district court incorrectly classified a prior Wisconsin

conviction for motor vehicle homicide as a crime of violence under

Guideline section 4B1.2(a). Subsequent to the briefing and oral

argument in this case, the Supreme Court decided Begay v. United

States, 553 U.S. ___, 128 S.Ct. 1581 (2008). We requested

additional briefing from the parties concerning the impact of Begay

on this case. Now, because of the lessons contained in Begay, we

vacate the sentence imposed by the district court and remand for

resentencing consistent with this opinion.

I. Facts

On November 1, 2006, Herrick plead guilty to a single offense

of being a felon in possession of a firearm in violation of Title

18 U.S.C. §§ 922(g)(1) and 924(a)(2). The plea agreement contained

a waiver of Herrick’s right to appeal his conviction or any term of

imprisonment that did not exceed the number of months provided for

total offense level 10 (regardless of the Criminal History Category

(“CHC”) determined by the court). Herrick accepted the
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government’s proffered evidence as true, including the assertion

that at one time or another he possessed three different firearms.

The prosecution’s evidence supporting conviction was based upon

admissions made by Herrick and evidence collected from his home.

Herrick was a convicted felon who had engaged in unlawful

hunting activities and had used a shotgun owned by another

individual, Kevin Farley, to shoot a bear and a “bull beef

critter.” A .22 caliber rifle and .20 gauge shotgun shells were

found at Herrick’s residence during a January 10, 2006 search.

Also found was a photograph of Herrick holding a rifle. 

Herrick claimed that he bought the .22 caliber rifle, a youth

model, for his wife to use for protection when he was away from

home. He also claimed that he shot the steer only because it was

to be butchered the next day and that it needed to be bled and

gutted. Herrick also explained that the seized photograph of him

with a rifle memorialized a hunting episode with his uncle but that

he had actually hunted with a bow and arrow. The rifle, according

to Herrick, was only in the photograph because a hunting guide

suggested that it be included in the picture.

The United States Probation and Pretrial Services Pre-Sentence

Report (“PSR”) assigned Herrick a total offense level of 19 and a
 The total offense level was calculated as follows: 1

(1) Herrick had a base offense level of twenty pursuant to

Guidelines section 2K2.1(a)(4) based on the crime to which he plead

guilty and a prior conviction for a crime of violence; (2) there

was a two level enhancement pursuant to Guidelines section

2K2.1(b)(1)(A) because the offense involved between three and six

firearms. There was a three-level reduction, however, for

acceptance of responsibility, which left Herrick at a total offense

level of nineteen.

The PSR also assigned Herrick a CHC of V based on a finding

that his prior convictions provided him with a total of twelve

criminal history points. The twelve points were produced by adding

three points for a 1995 Wisconsin conviction for homicide by

negligent operation of a vehicle, and another three points each for

three different convictions relating to burglary or theft. The

maximum statutory term for Herrick was ten years. The Guidelines

range for Herrick, at a total offense level of nineteen and a CHC

of V, was 57 to 71 months.

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Criminal History Category (“CHC”) of V. The base offense level 1

calculation depended in part upon the PSR’s categorization of

Herrick’s 1995 Wisconsin conviction for homicide by negligent

operation of a motor vehicle as a “crime of violence” pursuant to

Guidelines section 4B1.2(a). The categorization of Herrick’s

Wisconsin conviction as a “crime of violence” increased his base

offense level under the Guidelines and it disqualified him from

utilizing the “sporting purposes” exception found at Guidelines

section 2K2.1(b)(2). 

Herrick objected to the calculation of his criminal history on

two grounds: first, he argued that it was error for his Wisconsin

conviction to be categorized as a “crime of violence”; and second,

he claimed that two of his other convictions should not be

considered as separate offenses. The district judge adopted
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Herrick’s second objection, treating two of his convictions as

related for sentencing purposes pursuant to Guidelines section

4A1.2(a), which resulted in a reduction of his Criminal History

Category from V to IV. The judge disagreed with Herrick, however,

regarding the classification of the Wisconsin conviction.

The district court analyzed the Wisconsin vehicular homicide

statute, Wis. Stat. Ann. § 940.10, and a related statute defining

“criminal negligence,” Wis. Stat. Ann. § 939.25, pursuant to the

conditional two-step approach described in United States v. Teague,

469 F.3d 205 (1st Cir. 2006) and United States v. Richards, 456

F.3d 260 (1st Cir. 2006). Pursuant to the first step of the test,

the district court found that Herrick’s Wisconsin conviction was

properly classified as a crime of violence under the Guidelines

because the Wisconsin statute required that Herrick be engaged in

conduct presenting a serious potential risk of physical injury to

another in order to be convicted. While the district judge did not

adjust Herrick’s total offense level downward based upon the

categorization of his prior Wisconsin conviction, he did grant

Herrick an additional downward departure in his CHC (from IV to
 This departure was granted pursuant to Guidelines section 2

4A1.3, taking into consideration that Herrick’s last conviction was

12 years old. The district court denied downward departures which

were sought by Herrick on the following three grounds: (1) that

the conduct alleged constituted aberrant behavior pursuant to

Guidelines section 5K2.2; (2) that a lengthy incarceration would

have a deleterious effect upon his family pursuant to Guidelines

section 5H1.6; and (3) that abuse Herrick suffered while

incarcerated in a Wisconsin prison constituted a mitigating

circumstance. 

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III), finding that Herrick’s CHC overstated the likelihood that he

would re-offend.2

With a CHC of III and a total offense level of 19, the

Guidelines range for Herrick was imprisonment for 37 to 46 months.

The Assistant United States Attorney recommended that Herrick be

given the minimum Guidelines term. The district court agreed,

sentencing him to 37 months imprisonment, plus two years of

supervised release and a monetary assessment of $100.00. Fines

were waived. The district court did not enforce Herrick’s appeal

waiver because his total offense level was greater than the

threshold level of 10 established in the waiver provision in the

plea agreement.

II. Standard of Review

Questions of law involved in sentencing determinations are

afforded de novo review. United States v. Carrasco-Mateo, 389 F.3d

239, 243 (1st Cir. 2004).
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III. Discussion

A. Application of the “formal categorical approach”

The sole issue on appeal is whether the district court

committed error by classifying Herrick’s 1995 Wisconsin conviction

for motor vehicle homicide (“vehicular homicide”) as a “crime of

violence” pursuant to Guidelines section 4B1.2(a). A crime of

violence, as defined in the Guidelines, “means 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. 

U.S.S.G. § 4B1.2(a) (emphasis added).

This court takes a two-step “formal categorical approach” to

the question of whether a putative predicate felony constitutes a

crime of violence under the Guidelines. See United States v.

Teague, 469 F.3d 205, 208 (1st Cir. 2006); United States v.

Richards, 456 F.3d 260, 262-63 (1st Cir. 2006); United States v.

Winn, 364 F.3d 7, 9 (1st Cir. 2004). Pursuant to the first step,

where a violation of the statute underlying the prior conviction

necessarily involves every element of a violent felony, the mere

fact of conviction establishes the putative predicate offense as a

violent felony. Richards, 456 F.3d at 263 (citing Taylor v. United
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States, 495 U.S. 575, 602 (1990)). If, however, the underlying

statute criminalizes conduct that would not constitute a violent

felony as well as conduct that would constitute a violent felony,

then the putative predicate offense qualifies as a violent felony

only if the particular conviction actually embodied every element

of a violent felony. Id. To apply this principle, the jury must

find, or the defendant must admit (in the context of a guilty

plea), all the elements of a violent felony. In applying this

second step of the categorical approach, the court must restrict

its review to the record of conviction. Id. Typically, the record

includes the charging document, jury instructions, and verdict

form, or in the context of a guilty plea, the written plea

agreement and the transcript of the change-of-plea colloquy. Id.

(citing Shepard v. United States, 544 U.S. 13, 26 (2005)).

Herrick’s 1995 conviction for motor vehicle homicide

necessarily involves every element of a violent felony, thus

meeting the first step of the two-prong categorical approach. The

Wisconsin statute, entitled “Homicide by negligent operation of

vehicle”, under which Herrick was convicted, provides as follows:

1. Whoever causes the death of another human being

by the negligent operation or handling of a vehicle is

guilty of a Class G felony.

2. Whoever causes the death of an unborn child by

the negligent operation or handling of a vehicle is

guilty of a Class G felony. 

WIS. STAT. § 940.10.
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The term “negligent” as used in WIS. STAT. § 940.10 is defined

in WIS. STAT. § 939.25 as follows:

1. In this section, “criminal negligence” means

ordinary negligence to a high degree, consisting of

conduct that the actor should realize creates a

substantial and unreasonable risk of death or great

bodily harm to another, except that for purposes of ss.

940.08(2), 940.10(2) and 940.24(2), “criminal negligence”

means ordinary negligence to a high degree, consisting of

conduct that the actor should realize creates a

substantial and unreasonable risk of death or great

bodily harm to an unborn child, to the woman who is

pregnant with that unborn child or to another.

2. If criminal negligence is an element of a crime

in chs. 939 to 951 or s. 346.62, the negligence is

indicated by the term “negligent” or “negligently”. 

WIS. STAT. § 939.25. 

Reading the two statutes together (section 940.10 and section

939.25), the Wisconsin motor vehicle homicide statute requires a

determination that the accused was criminally negligent, defined as

“conduct that the actor should realize creates a substantial and

unreasonable risk of death or great bodily harm to another.” WIS.

STAT. § 939.25. This definition of criminal negligence fits neatly

within the Guidelines definition for crime of violence: “conduct

that presents a serious potential risk of physical injury to

another.” U.S.S.G. § 4B1.2(a)(2). In fact, this court understands

the Wisconsin definition of criminal negligence to be triggered at

a higher risk threshold than that incorporated into the “crime of

violence” definition. While both standards call for an objective
 “[T]he standard for criminal negligence is an objective one; 3

defendant’s conduct is judged from the perspective of a reasonably

prudent person.” State v. Barman, 183 Wis.2d 180, 203, 515 N.W.2d

493, 503 (Wis.App. 1994), review denied 520 N.W.2d 90 (1994).

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determination, criminal negligence applies only to conduct 3

creating a substantial and unreasonable risk of death or great

bodily harm, which necessarily includes conduct presenting a

serious potential risk of physical injury. The inverse is not

true, however. Conduct posing a serious potential risk of physical

injury does not necessarily rise to the level of risking death or

great bodily harm. 

Thus, because criminal negligence is a required element for a

conviction under the Wisconsin motor vehicle homicide statute, and

a finding of criminal negligence necessarily meets the standard for

a crime of violence, there is no need for us to undertake step two

of the categorical analysis outlined above. There is no possible

formulation of the Wisconsin motor vehicle homicide statute that
 Wisconsin case law supports the plain meaning of the 4

criminal negligence element of the motor vehicle homicide statute

as requiring, at a minimum, a serious risk of physical injury to

another. See, e.g., State v. Schutte, 295 Wis.2d 256, 272, 720

N.W.2d 469, 476 (Wis.App. 2006), review denied 297 Wis. 2d 320, 724

N.W. 2d 203 (2006) (“The degree of negligence required for criminal

culpability is different from ordinary negligence in that the

negligent conduct must ‘in general create a risk of serious

consequences, e.g., death or great bodily harm,’ and there must be

a ‘high probability that the [serious] consequences will result

from’ the conduct.”) (quoting Hart v. State, 75 Wis.2d 371, 383

n.4, 249 N.W.2d 810, 815 (Wis. 1977)); State v. Richard Knutson,

Inc., 196 Wis.2d 86, 110, 537 N.W.2d 420, 428 (Wis.App. 1995),

review denied, 540 N.W.2d 200 (1995) (“Criminal negligence differs

from ordinary negligence in two respects. First, the risk is more

serious-death or great bodily harm as opposed to simple harm.

Second, the risk must be more than an unreasonable risk-it must

also be substantial.”).

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would criminalize conduct that would not constitute a violent

felony under the formal categorical approach to Guidelines. 

4

The analysis, however, does not end there. On April 16, 2008,

after the parties briefed this Court and presented their oral

arguments, the Supreme Court decided Begay v. United States, 553

U.S. ___, 128 S.Ct. 1581 (2008), introducing a new test for

determining whether a prior felony qualifies as a “violent felony”

pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

924(e)(2)(B). Precedent in this circuit, as well as in others,

requires the application of case law interpreting “violent felony”

in ACCA to “crime of violence” in U.S.S.G. § 4B1.2(1) because of

the substantial similarity of the two sections. See United States

v. Williams, 529 F.3d 1, 6-7 (1st Cir. 2008); United States v.

Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994); see, e.g., United
 The relevant language of the Guidelines only differs in that 5

it specifies “burglary of a dwelling” instead of simple burglary.

See U.S.S.G. § 4B.1.2(a).

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States v. Archer, 531 F.3d 1347 (11th Cir. 2008) (holding on remand

that a Florida conviction for carrying a concealed weapon is not a

crime of violence under U.S.S.G. § 4B1.2(1) after the Eleventh

Circuit’s earlier opinion was vacated by the Supreme Court in light

of Begay). Given the relevance of Begay to this case, we requested

and received additional briefing from the parties. 

The application of Begay to this case is not as simple as

placing a square peg in a square hole. Not only was the Begay

opinion tailored to the crime at hand, New Mexico’s Driving Under

the Influence law, see Begay, 128 S.Ct. at 1589 (describing the

majority’s position as “a piecemeal, suspenseful, Scrabble-like

approach to the interpretation” of ACCA) (Scalia, J., concurring),

but it was also a close decision. Williams, 529 F.3d at 7.

Moreover, the Court used language subject to varying

interpretations in its new test.

As a starting point, the Begay majority posed a two-part

question: is the crime at issue “roughly similar” in kind, as well

as in degree of risk posed, to the example crimes listed

immediately before the “otherwise” clause (i.e., burglary, arson,

extortion, or crimes involving use of explosives)? Begay, 128 5

S.Ct. at 1585. There the Supreme Court assumed that the lower

courts were correct in concluding that DUI presented the requisite
 The Supreme Court reasoned that conduct of this nature 6

“makes [it] more likely that an offender, later possessing a gun,

will use that gun deliberately to harm a victim.” Begay, 128 S.Ct.

at 1586. Although that particular rationale underlying the ACCA is

not always applicable in the broader Guidelines context, it applies

to felon-in-possession crimes such as that at issue here.

Moreover, when the sentencing is for other crimes, the Guidelines’

desire to reflect the defendant’s likelihood to engage in future

violent conduct strikes us as an equivalent rationale for

construing the residual clause as limited to conduct similar in

nature to the listed crimes.

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level of risk. Id. at 1584. Nonetheless, the Court found that DUI

was not a violent felony pursuant to 18 U.S.C. § 924(e)(2)(B)(ii)

because “[i]t is simply too unlike the provision’s listed

examples[.]” Id. In other words, although DUI was roughly similar

in degree of risk posed, it was not roughly similar in kind.

The Supreme Court elucidated the similar-in-kind requirement

by finding that all of the examples typically involve “purposeful,

violent and aggressive conduct.” Id. at 1586 (internal citations 6

omitted). The Supreme Court went on to use “purposeful”

interchangeably with “intentional.” Id. at 1587-88. Perhaps

because it is common sense that a DUI is not violent or aggressive

in an ordinary sense, the Supreme Court did not define those terms

or explain in other than conclusory terms why a DUI was not violent

or aggressive. We note, therefore, that aggressive may be defined

as “tending toward or exhibiting aggression,” which in turn is

defined as “a forceful action or procedure (as an unprovoked

attack) esp. when intended to dominate or master.” MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 24 (11th ed. 2003). Violence may be defined as
 Although the government argued convincingly that vehicular 7

homicide is violent, it made no effort to analyze it as purposeful

or aggressive.

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“marked by extreme force or sudden intense activity.” Id. at 1396.

Regardless of possible nuance in meaning, we understand that all

three types of conduct – i.e., purposeful, violent and aggressive –

are necessary for a predicate crime to qualify as a “violent

felony” under ACCA, or a “crime of violence” under the Guidelines.

See United States v. Williams, ___ F.3d ___, 2008 WL 3266912, *6

(8th Cir. Aug. 11, 2008) (“All characteristics should typically be

present before an ‘otherwise’ crime reaches the level of an example

crime.”). 

Applying the Begay standard to this case, we conclude that

Wisconsin’s vehicular homicide felony is not a crime of violence

pursuant to U.S.S.G. § 4B.1.2(a). Based on the statutory

definition of criminal negligence in Wisconsin, vehicular homicide

meets if not exceeds the necessary degree of risk to be a crime of

violence: it poses “a serious potential risk of physical injury to

another.” It is not, however, similar in kind to the enumerated

offenses. Although it is no doubt violent, as a typical vehicular

homicide involves the death of a victim resulting from a forceful

collision, it is not necessarily aggressive, a term that dovetails

with purposeful because it involves a degree of intent. Intent,

however, is not an element of Wisconsin’s vehicular homicide

provision.7
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To recap, vehicular homicide for purposes of the Wisconsin

statute under which Herrick was convicted requires criminal

negligence, defined as conduct that the actor should realize

creates a substantial and unreasonable risk of death or great

bodily harm to another. WIS. STAT. §§ 939.25, 940.10. This is an

objective and not a subjective standard. State v. Steenberg Homes,

Inc., 223 Wis.2d 511, 522, 589 N.W.2d 668, 673 (1998) (“Criminal

negligence involves the same degree of risk as criminal

recklessness-an unreasonable and substantial risk of death or great

bodily harm. The difference between the two is that recklessness

requires that the actor be subjectively aware of the risk, while

criminal negligence requires only that the actor should have been

aware of the risk-an objective standard.”) (quoting Knutson, 196

Wis. 2d at 110, 537 N.W.2d at 428). Thus, it cannot be said that

someone convicted of vehicular homicide under the Wisconsin statute

knew of the risk involved in his or her conduct, nor can it be said

that such a person intended to kill or expose others to risky

conduct. Although vehicular homicide’s mens rea of criminal

negligence under this statute surpasses that of the DUI at issue in

Begay, which the Supreme Court described as a strict liability

crime, it is below that of other crimes that the Begay majority

listed as crimes that do not fall under the residual clause.

For example, the Begay court cited a federal statute

penalizing those who “recklessly” tamper with consumer products as
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an example of a crime that would have qualified as a violent felony

if there were no “similar in kind” requirement. Begay, 128 S.Ct.

at 1587 (citing 18 U.S.C. § 1365(a)). The Supreme Court also cited

an Arkansas statute which penalizes those who “recklessly cause

pollution of the waters or air of the state” as another example of

a crime similar enough in risk but not in kind to fall under the

test. Id. at 1587 (Ark. Code Ann. § 8-4-103(a)(2)(A)(ii)).

Looking to these examples from Begay, the Second Circuit held that

New York’s reckless endangerment law does not qualify as a crime of

violence under the Guidelines. United States v. Gray, ___ F.3d

___, 2008 WL 2853470, *3 (2d Cir. Aug. 4, 2008) (analyzing N.Y.

PENAL LAW § 120.25 (“A person is guilty of reckless endangerment in

the first degree when, under circumstances evincing a depraved

indifference to human life, he recklessly engages in conduct which

creates a grave risk of death to another person.”)). As the Second

Circuit explained, “[r]eckless endangerment on its face does not

criminalize purposeful or deliberate conduct.” Id. at *4. This

case does not require us to decide whether crimes with a

recklessness mens rea could ever come within the residual clause.

We conclude only that vehicular homicide involving criminal

negligence does not involve the requisite purposeful, intentional

or deliberate conduct. Accordingly, the vehicular homicide
 We note that the commentary to U.S.S.G. § 4B1.2(a) includes 8

manslaughter as a crime of violence without distinguishing between

voluntary and involuntary manslaughter, arguably suggesting that

the mens rea for the crime is not determinative. However, just as

the Supreme Court limited the broad language in the ACCA to crimes

involving “purposeful, violent and aggressive conduct,” so too is

it logical to construe the reference to manslaughter as extending

only to those crimes involving the requisite mens rea. Vehicular

homicide is related to but distinct from involuntary manslaughter.

See WHARTON’S CRIMINAL LAW § 170 (15th ed., vol. 2, 1994) (“In view of

the reluctance of juries to convict in motor vehicle fatality

cases, many jurisdictions have carved out of manslaughter a

separate offense, sometimes called ‘vehicular homicide’, for which

a lesser punishment is provided.”) The commentary does not

undermine our conclusion that it is necessary to examine the mens

rea required for a conviction of vehicular homicide within a

particular jurisdiction to determine if it is sufficiently similar

to that of the crimes listed in the otherwise clause. Indeed, the

decision of some jurisdictions to remove vehicular homicide from

the scope of manslaughter, and imposing less serious consequences,

reinforces our conclusion that vehicular homicide – as in this

case – will at times fall outside the scope of the clause.

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provision under which Herrick was convicted is not a crime of

violence pursuant to the residual clause of U.S.S.G. § 4B.1.2(a).8

IV. Conclusion

For the reasons discussed above, the sentence imposed by the

district court on March 30, 2007 is vacated and the case is

remanded for resentencing consistent with this opinion.