### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 1855

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J AMES M ISLEVECK

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:12

‐ cr

‐ 00105

‐ WMC

‐ 2

— William M. Conley

, Chief Judge

.

____________________

A RGUED S EPTEMBER 26, 2013

— D ECIDED N OVEMBER 25, 2013

____________________

Before P OSNER

, M ANION

, and K ANNE

, Circuit Judges

.

P OSNER

, Circuit Judge

. The defendant pleaded guilty to

being a felon in possession of a gun, in violation of 18 U.S.C.

§ 922(g)(1), which carries a maximum punishment of 10

years in prison. But the judge found that because the de

‐

fendant had three prior convictions of felonies classified as

“violent” under the Armed Career Criminal Act, 18

U.S.C. § 924(e), he was subject to a mandatory minimum

sentence of 15 years. § 924(e)(1). So that was the sentence the2 No. 13

‐ 1855

judge imposed. But one of the prior convictions had been for

arson, and the defendant argues that the particular arson

statute that he had been convicted under does not punish

only a “violent” felony within the meaning of the Armed

Career Criminal Act. If that is right, he is not an armed ca

‐

reer criminal and the judge should not have sentenced him

to more than 10 years.

The statute, Wis. Stat. § 943.03, is entitled “Arson of

property other than building” and provides that “whoever,

by means of fire, intentionally damages any property of an

‐

other without the person’s consent, if the property is not a

building and has a value of $100 or more, is guilty of a Class

I felony,” which carries a maximum penalty of 31⁄2 years in

prison. § 939.50(3)(i). The question is whether a violation of

section 943.03 is a “violent felony” within the meaning of the

Armed Career Criminal Act. A statute that immediately pre

‐

cedes section 943.03 in the Wisconsin code punishes arson of

buildings and carries a 40

‐ year maximum sentence.

§§ 939.50(3)(c), 943.02.

According to the presentence report the defendant had

stolen a car from a parking lot and (weirdly) had torched it

in a field in order to erase his and his accomplices’ finger

‐ prints. But the circumstances of his offense are not germane,

because in deciding whether a defendant has been convicted

of a “violent felony” we are to look only at the statutory el

‐

ements of the offense and not at the defendant’s conduct that

triggered the application of the statute to him. Descamps v.

United States

, 133 S. Ct. 2276, 2285–86 (2013); Shepard v. Unit

‐

ed States

, 544 U.S. 13, 16 (2005); Taylor v. United States

, 495

U.S. 575, 600 (1990); United States v. Howze

, 343 F.3d 919, 921

(7th Cir. 2003).No. 13

‐ 1855 3

So far as concerns this case, the Armed Career Criminal

Act defines “violent felony” as any crime punishable by im

‐ prisonment for more than one year that “is burglary, arson,

or extortion, involves use of explosives, or otherwise in

‐

volves conduct that presents a serious potential risk of phys

‐

ical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The last

clause (“or otherwise involves conduct that presents a seri

‐

ous potential risk of physical injury to another”) has been

held to denote additional offenses, beyond those named, that

create a serious potential risk of physical injury to another,

rather than confining the enumerated offenses of burglary,

arson, and extortion (“involves use of explosives” defines a

means of committing a crime, rather than a specific crime) to

cases in which such a crime gives rise to such a risk. James v.

United States

, 550 U.S. 192, 199–200 (2007); Taylor v. United

States

, supra

, 495 U.S. at 597–98; United States v. Bonilla

, 687

F.3d 188, 192 (4th Cir. 2012); United States v. Grisel

, 488 F.3d

844, 849–50 n. 3 (9th Cir. 2007) (en banc).

So arson doesn’t have to create a serious potential risk of

physical injury in order to be a “violent felony” within the

meaning of the Act. But the absence of such a requirement

creates an interpretive problem. Like burglary and extortion,

arson embraces acts that vary greatly in dangerousness. In

‐ tentionally setting fire to a building is likely to do extensive

damage, and, if the building is occupied, to endanger life.

But intentionally setting fire to an item of personal property

worth $100? Suppose your wife pays $125 for a hat. She

brings it home. You think the hat hideous—also overpriced.

In a rage you light a fire in the fireplace and fling the hat into

it, where it is consumed by the flames. If this is Wisconsin,

you’ve committed a Class I felony. But is it a violent felony

within the meaning of the Armed Career Criminal Act? If4 No. 13

‐ 1855

you do this sort of thing twice more, and are later convicted

of possession of a gun in violation of 18 U.S.C. § 922(g)(1),

should you be subject to a 15

‐ year minimum sentence for

that violation because of your three arson convictions?

As noted earlier, we look to the statutory elements of the

defendant’s offense rather than to the details of his conduct.

But we don’t stop with those elements. The Supreme Court

does not interpret the Armed Career Criminal Act to allow

states to trigger the application of the Act by attaching the

label of “arson” or “burglary” or “extortion” to conduct re

‐

mote from the Act’s concerns, which center on violence and

earn for the malefactor a hefty additional sentence. Suppose

a state, eager to stamp out cigarette smoking, defines light

‐ ing a cigarette as felony arson. The federal courts would not

consider this to be arson within the meaning of the Armed

Career Criminal Act. It doesn’t fit the normal understanding

of arson, and it involves no serious risk of violence. It’s

called arson, but it doesn’t fit the genre of arson. See Taylor v.

United States

, supra

, 495 U.S. at 590–91; United States v. Howze

,

supra

, 343 F.3d at 921. A bat flies like a bird, but it is not a

generic bird.

The defendant argues that the Supreme Court has chosen

the Model Penal Code’s definition of arson to be the defini

‐

tion of generic arson and by doing so has excluded setting

fire to anything besides a building. That’s wrong. In ruling

that driving under the influence of alcohol or drugs is not a

felony, the Supreme Court in Begay v. United States

, 553 U.S.

137, 144–45 (2008), remarked that the enumerated offenses

(arson, burglary, extortion) “all typically involve purposeful,

‘violent,’ and ‘aggressive’ conduct,” see also Sykes v. United

States

, 131 S. Ct. 2267, 2275 (2011); Chambers v. United States

,No. 13

‐ 1855 5

555 U.S. 122, 127–29 (2009), and specifically that “‘arson’ is

causing a fire or explosion with ‘the purpose of,’ e.g

., ‘de

‐ stroying a building

... of another’ or ‘damaging any property

... to collect insurance.” Begay v. United States

, supra

, 553 U.S.

at 145, quoting ALI Model Penal Code § 220.1 (1985) (emphasis

added, ellipses in original). Our defendant argues that what

he did in setting fire to personal property was not generic

arson (that is, arson as defined by the Supreme Court for use

in applying the Armed Career Criminal Act) because a

building is not personal property. But that ignores the “ e.g .”

( exempli gratia —for the sake of example) that the Court in Be

‐

gay inserted between the two passages it quoted from the

Model Penal Code. The Court did not adopt the Code’s defi

‐

nition of arson. It thus left open the possibility that generic

arson might have a broader sweep.

The Court was wise to do that. To confine arson to the

examples that the Court gave (destroying buildings and

damaging property for the insurance proceeds) would be

arbitrary to the point of absurdity. Some people live in tents.

Are tents “buildings”? Some people live in their cars; cars

are not buildings. But recreational vehicles are advertised as

self

‐ contained mobile dwellings. If you torch such a vehicle,

or a camper’s tent, or a car that you know the owner sleeps

in, or for that matter a newsstand, are you not guilty of ge

‐

neric arson? Are those burnings of another person’s property

categorically less grave than any burning of anything one

would call a “building”? And finally suppose you are an un

‐

successful bidder at a Sotheby’s auction of an immensely

valuable painting by Andy Warhol. As the painting is being

carried out of Sotheby’s to the winning bidder’s limousine,

you go berserk with disappointment and set fire to the paint

‐ ing; is that not generic arson, even though a painting is not a6 No. 13

‐ 1855

building? Or suppose the painting is still in Sotheby’s when

you torch it, but you have no intent to damage or destroy

Sotheby’s, though that turns out to be one consequence of

your act. Is that not generic arson either? No, says the de

‐

fendant, who insists that generic arson is limited to deliber

‐ ately destroying a building by fire.

Wrong again. The concept of arson has evolved from its

common law origins, when it protected not property as such

but occupants of property. 3 Wayne R. LaFave, Substantive

Criminal Law § 21.3(a), p. 240 (2d ed. 2003); John Poulos,

“The Metamorphosis of the Law of Arson,” 51 Mo. L. Rev

. 295, 324 (1986). In the early common law, if you owned a

building but it was occupied by a tenant you would be

guilty of arson if you burned it down. Id

. at 311; 3 LaFave,

supra

, § 21.3(d), p. 248. But not if it was unoccupied. Later

the definition of arson was extended to “the malicious burn

‐ ing of the dwelling house of another.” Id

., § 21.3, p. 239. The

extension to personal property came much later, but it came.

Today a majority of states make arson of personal property a

crime, United States v. Velez

‐ Alderete

, 569 F.3d 541, 545 (5th

Cir. 2009) (per curiam), as does federal law. 18 U.S.C.

§ 844(i); United States v. McBride

, 724 F.3d 754, 758–59 (7th

Cir. 2013). To exclude all but buildings from the concept of

arson would be contrary to the modern understanding of

arson, as well as being arbitrary.

Yet the example we gave earlier of the burned hat gives

rise to a concern that to erase the line between buildings and

other property entirely would result in counting trivial ar

‐

sons as “violent felonies,” with potentially great impact on

sentencing. The obvious solution would be to fix a minimum

value on property other than buildings that would be com

‐No. 13

‐ 1855 7

parable to the value of a building. Of course the range in the

value of buildings is enormous (from a bungalow to the

Shanghai Tower, expected to cost $2.4 billion when it is

completed), but few indeed are the number of buildings

worth less than $100.

A number of states, like Wisconsin, do require a specified

minimum value of personal property (though not of a build

‐ ing) to make the burning of it punishable as arson. See Unit

‐

ed States v. Velez

‐ Alderete

, supra

, 569 F.3d at 545 n. 4, for a list.

The minimum ranges from $25 in Vermont, see 13 Vt. Stat.

§ 504, to $1,000 in Minnesota. Minn. Stat. § 609.562. Indiana,

rather than fixing a minimum value of the property burned,

requires that the damage caused by the fire be at least $5,000.

Ind. Code § 35

‐ 43

‐ 1

‐ 1(a)(3). Surprisingly, the federal arson

statute specifies neither a minimum value of property,

whether it’s a building or any other form of property, nor a

minimum damage amount, yet fixes a minimum prison term

of five years. 18 U.S.C. §§ 844(f)(1), (i). Questionable as the

failure to specify a minimum value or damage amount may

seem (a sentence of five years in prison for setting fire to a

poster advertising tickets to a monster truck rally across the

state border seems excessive), the federal statute provides a

compelling ground for regarding the Wisconsin statute at

issue in this case, which does specify a minimum value of

the property destroyed, though a very low one ($100), as

punishing generic arson. For in defining arson in the Armed

Career Criminal Act the courts are trying to determine what

Congress regards as arson. The federal arson statute, lacking

as it does any requirement that the property damaged or de

‐ stroyed by fire be a building or that it have a minimum val

‐

ue, is powerful evidence of that. It took its present form in8 No. 13

‐ 1855

1982 and the Armed Career Criminal Act was enacted two

years later.

The federal statute is limited to arson in interstate and

foreign commerce (which is why we added “across the state

border” to our example), which obviously the state statutes

are not. But the limitation is in recognition that not all arson

is within the scope of federal power, rather than a declara

‐

tion that arson that affects interstate or foreign commerce is

categorically more serious than arson that does not—that

arson that affects interstate commerce but causes only $50 in

damage is more serious than arson punishable under the

Wisconsin statute at issue.

The defendant points out that generic arson requires

“purposeful conduct,” while the Wisconsin statute requires

only that the fire be started “intentionally,” which under

Wisconsin law means that the defendant either has the

“purpose to do the thing [that is the crime] or cause the re

‐

sult” or “is aware that his or her conduct is practically cer

‐

tain to cause that result.” Wis. Stat. § 939.23(3). The defend

‐

ant argues that because the statutory definition of “inten

‐ tionally” fails to confine the arson statute to arson whose

purpose is to damage property, the statute reaches beyond

generic arson. Not so. “Suppose you blow up a plane carry

‐ ing X and Y in order to kill X. If both die in the explosion,

you are just as much Y’s murderer as X’s, not because of the

fiction of transferred intent but because you knew that Y (or

any other person who might be a passenger on the plane)

would die if your plot against X succeeded. United States v.

McAnally, 666 F.2d 1116, 1119 (7th Cir. 1981). It is not a trans

‐

ferred

‐ intent case because nothing went wrong with your

plan; it is a case of extreme recklessness, equated to deliber

‐No. 13

‐ 1855 9

ateness. Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.

1985). You killed Y for an ulterior motive, it is true, but most

murders have ulterior motives.” In re EDC, Inc.

, 930 F.2d

1275, 1279 (7th Cir. 1991); see also 1 LaFave, supra

, § 5.2(a), p.

341.

Coming closer to home, were intent limited to purpose

then even torching the state capital would not be generic ar

‐

son. The arsonist’s purpose might have been merely to warm

his hands, though he knew the result would be the build

‐ ing’s destruction. Given such a possibility and the fact that

the details of a defendant’s conduct including his intentions

are irrelevant to deciding whether a crime is a violent felony,

Wisconsin’s crime of “arson of buildings,” Wis. Stat.

§ 943.02(1), would not be arson within the meaning of the

Armed Career Criminal Act because it punishes any arsonist

who “intentionally damages any building” by fire. And

while it’s true that the Supreme Court said in Begay

, as we

noted earlier, that the offenses enumerated in the Act, which

include arson, “all typically involve purposeful

... conduct,”

the Court neither defined “purposeful” nor explained the

qualifier “typically.”

The proper question is whether “intentionally” in Wis

‐

consin law has a broader meaning than “maliciously” in the

federal arson statute, which we’re using as our model of ge

‐

neric arson. In the McBride case we defined “maliciously” to

mean “deliberately (or in willful disregard of known or sus

‐ pected consequences) using fire to do a harmful act .” United

States v. McBride

, supra

, 724 F.3d at 759 (emphasis in origi

‐ nal). If “intentionally” is no broader than “maliciously” so

understood, the Wisconsin statute at issue in this case com

‐

ports with the federal statute. Actually the federal statute10 No. 13

‐ 1855

requires less proof than its Wisconsin counterpart. It re

‐ quires no proof of minimum value or minimum damage;

and a “willful disregard of known or suspected consequenc

‐

es” is less culpable than being “aware that his or her conduct

is practically certain to cause that result” (emphasis added).

Practical certainty is a higher standard of proof than suspi

‐

cion.

The defendant clings to our opinion in Brown v. Caraway

,

719 F.3d 583, 588–91 (7th Cir. 2013), which held that Dela

‐

ware’s statute punishing arson in the third degree is not ge

‐

neric arson. “A person is guilty of arson in the third degree

when the person recklessly damages a building by inten

‐ tionally starting a fire or causing an explosion.” 11 Del. Code

§ 801(a). A violation carries a maximum sentence of two

years. § 4205(b)(7). Under Delaware law a person acts “reck

‐ lessly with respect to an element of an offense when the per

‐

son is aware of and consciously disregards a substantial and

unjustifiable risk that the element exists or will result from

the conduct.” § 231(e). That is a standard definition. See, e.g.,

United States v. U.S. Gypsum Co.

, 438 U.S. 422, 445 (1978); ALI

Model Penal Code § 2.02(2)(c) (1985); 1 LaFave, supra

, § 5.4(d),

pp. 376–77.

Conscious disregard of a risk is less culpable than a prac

‐

tical certainty that harm will ensue. Delaware’s understand

‐ ing of recklessness may, moreover, despite the inclusion of

the word “consciously” in the statutory definition, be close

to gross negligence—and an arson statute that required

proof merely of gross negligence would not be punishing

only generic arson. Delaware punishes as arson in the second

degree the arsonist who “intentionally damages a building

by starting a fire or causing an explosion,” 11 Del. CodeNo. 13

‐ 1855 11

§ 802(a), and this “squarely fits the ‘generic’ definition of ar

‐

son as defined in Begay .” Brown v. Caraway

, supra

, 719 F.3d at

590 n. 3. The maximum sentence is eight years, 11 Del. Code

§ 4205(b)(4), marking second

‐ degree arson as a far more se

‐

rious crime than third

‐ degree arson, with its two

‐ year max

‐

imum. Wisconsin’s law punishing arson other than of a

building, like Delaware’s second

‐ degree arson law, punishes

the arsonist who “intentionally damages” property. Wis.

Stat. § 943.03. And Wisconsin like Delaware imposes a sig

‐ nificantly higher standard of proof for “intent” than for

“recklessness.” Recklessness means that “the actor creates an

unreasonable and substantial risk of death or great bodily

harm to another human being and the actor is aware of that

risk,” § 939.24(1), while intent, as we said, means that “the

actor either has a purpose to do the thing or cause the result

specified, or is aware that his or her conduct is practically

certain to cause that result.” §§ 939.23(3), (4).

Appealing to the oft

‐ remarked ambiguity of the legal

concept of “intent”—see, e.g., Village of Bellwood v. Dwivedi

,

895 F.2d 1521, 1530 (7th Cir. 1990) (describing it as “a chame

‐

leon, a puzzle, and possibly a chimera”); 1 LaFave, supra

, § 5.2, pp. 340–44; Poulos, supra

, pp. 410, 413–14—the defend

‐

ant argues that “intending to” could mean just “being aware

of a risk of.” Indeed it could. See, e.g., 1 LaFave, supra

, § 5.2,

p. 340, § 5.4(f), pp. 376–77. But we have just seen that the

Wisconsin arson

‐ to

‐ buildings statute, interpreted in light of

the Wisconsin understanding of “intentionally damages,”

requires more than awareness of a risk of injury—requires

that the defendant have a practical certainty that the risk will

materialize. Earlier we noted the absence from the federal

arson statute of any requirement of proof of minimum value

or damage, and now we add that we don’t consider our

‐12 No. 13

‐ 1855

selves competent to specify such a minimum. To fix a dollar

minimum, either of value or of damage, in order to draw a

sensible line between arson of property (other than build

‐ ings) that is and that is not generic arson would be an arbi

‐

trary undertaking by a federal court. On what basis could a

judge pick a number? If $100 is too low, is $5,000 too high?

How is “too low” or “too high” to be determined? That is a

legislative rather than a judicial task. See Hoctor v. USDA

, 82

F.3d 165, 170–71 (7th Cir. 1996); Catholic Health Initiatives v.

Sebelius

, 617 F.3d 490, 495–96 (D.C. Cir. 2010); see also Henry

J. Friendly, “The Federal Administrative Agencies: The Need

for Better Definition of Standards,” 75 Harv. L. Rev. 863, 869

and n. 34 (1962).

Our interpretation of generic arson as embracing the in

‐

tentional or malicious burning of any property, regardless of

value or amount of damage, coincides with the interpreta

‐

tion that has been adopted by the Fifth, Eighth, and Ninth

Circuits, United States v. Velez

‐ Alderete

, supra

, 569 F.3d at 546;

United States v. Whaley

, 552 F.3d 904, 906 (8th Cir. 2009);

United States v. Velasquez

‐ Reyes

, 427 F.3d 1227, 1230 (9th Cir.

2005)—all cited approvingly, by the way, in Brown v. Cara

‐

way

, supra

, 719 F.3d at 590. We’ve found, and the parties

have cited, no contrary authority.

A FFIRMED

.