In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1853

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 06 CR 93—Sarah Evans Barker, Judge.

ARGUED APRIL 22, 2008—DECIDED SEPTEMBER 12, 2008

Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Steven Smith was convicted of

being a felon in possession of a firearm in violation of 18

U.S.C. §§ 922(g)(1) and 924(e). The district court found

that Mr. Smith qualified for an enhanced sentence under

the Armed Career Criminal Act, 18 U.S.C. § 924(e)

(“ACCA” or “Act”), and therefore imposed a sentence of

240 months’ imprisonment. Mr. Smith now appeals his

sentence, challenging whether, after the Supreme Court’s
2 No. 07-1853

recent decision in Begay v. United States, 128 S. Ct. 1581

(2008), a felony committed with a mens rea of recklessness

may qualify as a prior violent felony conviction under

the ACCA. For the reasons set forth in this opinion, we

vacate the judgment of the district court and remand

for further proceedings.

I

BACKGROUND

The Armed Career Criminal Act provides that any

defendant convicted of violating 18 U.S.C. § 922(g), who

also has three prior convictions for “a violent felony or a

serious drug offense,” shall be sentenced to not less

than fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1).

The Act defines a violent felony as “any crime punishable

by imprisonment for a term exceeding one year” that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to

another . . . .

18 U.S.C. § 924(e)(2)(B).

In April 2006, Steven Smith sold fourteen stolen firearms to an undercover agent. Mr. Smith ultimately was

convicted of being a felon in possession of a firearm,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
No. 07-1853 3

Prior to sentencing, the Government filed a memorandum requesting that Mr. Smith be sentenced as an armed

career criminal under the ACCA. It identified three of

Mr. Smith’s prior convictions as violent felonies: (1) a 2001

conviction for intimidation, a Class D felony; (2) a 2005

conviction for criminal recklessness with a deadly weapon, a Class D felony, see Ind. Code § 35-42-2-2; and (3)

a 2006 conviction for criminal recklessness, a Class D

felony, see id.

At the sentencing hearing, Mr. Smith objected to the

Government’s characterization of his two criminal recklessness convictions as violent felonies underthe ACCA. In

his view, the offense of criminal recklessness did not

require a mens rea sufficient to warrant its inclusion as a

violent felony; he contended that a higher mental state is

required to trigger the enhanced penalty mandated by

the Act. He also argued that the Sixth Amendment and

United States v. Booker, 543 U.S. 220 (2005), require a jury

to determine whether prior convictions qualify as violent felonies under the ACCA.

The district court found both of these objections unpersuasive in light of controlling precedent. It therefore

sentenced Mr. Smith to 240 months’ imprisonment, a

sentence in the middle of the suggested guidelines

range for an armed career criminal. See 18 U.S.C. § 924(e);

U.S.S.G. § 4B1.4(b)(3)(B). Mr. Smith timely appealed.
4 No. 07-1853

“Hazing” is further defined as 1

forcing or requiring another person:

(1) with or without the consent of the other person; and

(2) as a condition of association with a group or organization;

to perform an act that creates a substantial risk of bodily

injury.

Ind. Code § 35-42-2-2(a).

II

DISCUSSION

A.

Mr. Smith first contends that “criminal recklessness,” as

defined by Indiana law, is not a violent felony and, accordingly, that he should not have been sentenced as an

armed career criminal. Whether an Indiana conviction for

criminal recklessness may be considered a violent felony

under the ACCA is a question of law that we review

de novo. See United States v. Otero, 495 F.3d 393, 400 (7th

Cir. 2007).

We begin with the text of the Indiana statute. Indiana

defines “criminal recklessness” as follows:

A person who recklessly, knowingly, or intentionally

performs:

(1) an act that creates a substantial risk of bodily

injury to another person; or

(2) hazing;1
No. 07-1853 5

Criminal recklessness, although generally a Class B misde- 2

meanor, is:

(1) a Class A misdemeanor if the conduct includes the use

of a vehicle;

(2) a Class D felony if:

(A) it is committed while armed with a deadly weapon;

or

(B) the person committed aggressive driving (as defined

in IC 9-21-8-55) that results in serious bodily injury to

another person; or

(3) a Class C felony if:

(A) it is committed by shooting a firearm into an

inhabited dwelling or other building or place where

people are likely to gather; or

(B) the person committed aggressive driving (as defined

in IC 9-21-8-55) that results in the death of another

person.

Ind. Code § 35-42-2-2(c).

commits criminal recklessness.2

Ind. Code § 35-42-2-2(b).

The parties agree that criminal recklessness, as defined

by the Indiana Code, does not fall within the scope of

18 U.S.C. § 924(e)(2)(B)(i), which requires that the offense

have “as an element the use, attempted use, or threatened

use of physical force against the person of another.” It also,

of course, is not “burglary, arson, or extortion,” and it

does not involve the “use of explosives.” See 18 U.S.C.

§ 924(e)(2)(B)(ii). Therefore, the question before us is

whether criminal recklessness may be classified as a vio-
6 No. 07-1853

lent felony under the so-called “residual clause” because

it “otherwise involves conduct that presents a serious

potential risk of physical injury.” Id.

We previously have held that criminal recklessness

does qualify as a crime of violence for purposes of sentencing under the ACCA, see United States v. Newbern, 479

F.3d 506, 509-11 (7th Cir. 2007); United States v. Jackson, 177

F.3d 628, 633 (7th Cir. 1999), because it presents a serious

potential risk of physical injury to another. See generally

James v. United States, 127 S. Ct. 1586 (2007) (discussing the

degree of risk required for an offense to fall within the

residual clause). Six days before oral argument in this

case, however, the Supreme Court decided Begay v.

United States, 128 S. Ct. 1581 (2008), which added an

additional layer of analysis. We asked the parties to

submit supplemental briefs analyzing how Begay affects

this issue.

In Begay, the Supreme Court held that New Mexico’s

felony offense of driving under the influence (“DUI”) could

not be considered a violent felony under the residual

clause of the ACCA. Begay, 128 S. Ct. at 1588. Although the

Court assumed that driving under the influence

involves conduct that “presents a serious risk of physical

injury to another,” id. at 1585, it nevertheless found that

driving under the influence falls outside the scope of the

residual clause because it “is simply too unlike the provision’s listed examples for us to believe that Congress

intended the provision to cover it.” Id.

The Court reasoned that the listed offenses in

§ 924(e)(2)(B)(ii)—burglary, arson, extortion and the use

of explosives—“illustrate the kinds of crimes that fall
No. 07-1853 7

Specifically, the Court noted that each of the enumerated 3

crimes involved a certain degree of intent: “ ‘burglary’ is an

unlawful or unprivileged entry into a building or other structure

with ‘intent to commit a crime’ ”; “ ‘arson’ is causing a fire or

explosion with ‘the purpose of,’ e.g., ‘destroying a building . . .

of another’ or ‘damaging any property . . . to collect insurance’ ”; “extortion is ‘purposely’ obtaining property of another

through threat of, e.g., inflicting ‘bodily injury’ ”; and “the word

‘use’ ” in the explosives enumeration “most naturally suggests

a higher degree of intent than negligent or merely accidental

conduct.” Begay, 128 S. Ct. at 1586 (internal citations omitted).

“Crimes committed in such a purposeful, violent, and aggressive

manner,” the Court explained, “are potentially more dangerous when firearms are involved.” Id. (internal quotation

marks and citation omitted).

within the statute’s scope.” Id. at 1584-85. Examining the

listed crimes, the Court concluded that, in addition to

posing a serious risk of injury to others, the commonality

shared by the listed crimes was that each involved “purposeful, violent, and aggressive conduct.” Id. at 1586

(internal quotation marks and citations omitted). By 3

contrast, it noted, New Mexico’s DUI statute, like the

typical statute that forbids driving under the influence,

was a strict liability offense; “the conduct for which the

drunk driver is convicted (driving under the influence)

need not be purposeful or deliberate.” Id. at 1587 (emphasis

added).

The Court went on to note that the ACCA, as suggested

by its title, was intended to target “the special danger

created when a particular type of offender—a violent

criminal or drug trafficker—possesses a gun.” Id. “In this
8 No. 07-1853

respect,” it explained, “crimes involving intentional or

purposeful conduct,” such as the enumerated crimes, are

substantially different from crimes such as driving under

the influence. Id. (emphasis added). “In both instances, the

offender’s prior crimes reveal a degree of callousness

towards risk, but in the former instance they also show

an increased likelihood that the offender is the kind of

person who might deliberately point the gun and pull the

trigger.” Id. It concluded: “We have no reason to believe

that Congress intended a 15-year mandatory prison

term where that increased likelihood does not exist.” Id.

After Begay, then, a finding that the offense poses a

serious risk of physical injury to another is a necessary, but

not sufficient, condition for the offense to be included

within the scope of ACCA’s residual clause. The Government must also show that the predicate offense “typically

involve[s] purposeful, violent, and aggressive conduct.”

Id. at 1586 (quotation marks omitted). Defendants with

prior convictions for offenses that do not involve “purposeful or deliberate” conduct are not the type of defendants that Congress intended to include within its definition of an armed career criminal. Id. at 1587; see also

United States v. Spells, No. 07-1185, 2008 WL 3177284, at *8

(7th Cir. Aug. 8, 2008) (noting that the non-purposeful

nature of the DUI offense was the “primary distinction”

relied upon by the Supreme Court in Begay).

Mr. Smith contends that, under the standard elucidated

in Begay, offenses that require only negligent or reckless

conduct cannot be considered violent felonies within the

meaning of section 924(e)(2)(B)(ii). In his view, crimes
No. 07-1853 9

with a mens rea of recklessness are, by definition, not

“purposeful,” and criminals convicted of an offense

involving mere recklessness are not the types of individuals who are increasingly likely to “deliberately point the

gun and pull the trigger.” Begay, 128 S. Ct. at 1587. At least

one other circuit has agreed with this interpretation. See

United States v. Gray, No. 07-3636, 2008 WL 2853470, at *3-4

(2d Cir. July 25, 2008) (noting that the Supreme Court in

Begay placed “a strong emphasis on intentional—purposeful—conduct as a prerequisite,” and holding that “reckless

endangerment” is not a crime of violence because the

statute “on its face does not criminalize purposeful or

deliberate conduct”).

In determining whether the Court in Begay meant to bar

crimes with a mens rea of recklessness from inclusion

within the ACCA’s residual clause, it is helpful to look

to the examples that it provided of crimes which, though

certainly dangerous, “are not typically committed by

those whom one normally labels ‘armed career criminals.’ ” Id. at 1587. Most relevant for our purposes, the

Court referenced the federal offense of reckless tampering with consumer products, 18 U.S.C. § 1365(a). Despite its innocuous-sounding title, this statute provides:

“Whoever, with reckless disregard for the risk that another

person will be placed in danger of death or bodily injury

and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product”

shall be guilty of a felony. Id. Although the commission

of this offense is unquestionably dangerous, the Court

concluded that it was “far removed” from the “deliberate

kind of behavior associated with violent criminal use of
10 No. 07-1853

firearms.” Id. Similarly, in concluding that driving under

the influence was not a violent felony under the Act, the

Court emphasized that “drunk driving is a crime of

negligence or recklessness, rather than violence or aggression.” Id. at 1587 (emphasis added) (quoting United

States v. Begay, 470 F.3d 964, 980 (10th Cir. 2006)

(McConnell, J., dissenting in part)).

It is also worth noting that the Court concluded its

opinion by stating:

[W]e hold only that, for purposes of the particular

statutory provision before 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. The latter are associated with

a likelihood of future violent, aggressive, and purposeful “armed career criminal” behavior in a way

that the former are not.

Id. at 1588 (emphasis added). Again, the Court emphasized that the enumerated crimes are “intentional,”

and therefore of greater concern than crimes without

that requisite intent.

We must remember that the enhanced prison term

under the ACCA is imposed in addition to prison time

that already has been served for the predicate felony

convictions. When it enacted the ACCA, Congress was

attempting to separate out those offenders whose criminal history evidenced a high risk for recidivism and

future violence; these career offenders, it concluded,

exhibited a special need for an increased sentence in order
No. 07-1853 11

to deter future violent crimes. See id. at 1587; Taylor v.

United States, 495 U.S. 575, 587-88 (1990). In the Court’s

view, Congress intended the Act to encompass those

offenders convicted of crimes involving “intentional or

purposeful conduct,” rather than those offenders who

simply behave recklessly. Begay, 128 S. Ct. at 1587.

We must conclude that, after Begay, the residual clause

of the ACCA should be interpreted to encompass only

“purposeful” crimes. Therefore, those crimes with a mens

rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA. Accordingly,

we agree with the Second Circuit that crimes requiring

only a mens rea of recklessness cannot be considered violent felonies under the residual clause of the ACCA.

With this in mind, we next must examine the criminal

recklessness statute under which Mr. Smith twice was

convicted. Normally, when deciding whether an offense

is a violent felony, our inquiry begins and ends with the

elements of the offense. Taylor, 495 U.S. at 602 (explaining

the “categorical approach”); see also Begay, 128 S. Ct. at

1584; James, 127 S. Ct. at 1594; Newbern, 479 F.3d at 508.

In this case, however, a review of the elements of the

statute alone is inconclusive. See Ind. Code § 35-42-2-2(b).

The language of Indiana’s criminal recklessness statute

partially mirrors that of the ACCA—it requires that the

person perform an act that “creates a substantial risk of

bodily injury to another person.” Ind. Code § 35-42-2-

2(b)(1). The criminal recklessness statute departs from

the language of the ACCA in one important respect,

however; in addition to encompassing those offenders
12 No. 07-1853

Cf. 18 U.S.C. § 1365(a) (“Whoever, with reckless disregard for 4

the risk that another person will be placed in danger of death or

bodily injury and under circumstances manifesting extreme

indifference to such risk, tampers with any consumer product

that affects interstate or foreign commerce” is guilty of the

offense of reckless tampering of consumer products.) (cited in

Begay as an example of crimes clearly not contemplated by

the ACCA as violent felonies).

who intentionally perform an act that creates a substantial risk of bodily injury to another person, the statute

also expressly encompasses those individuals who do so

recklessly. The Indiana statute therefore criminalizes non4

purposeful conduct as well as purposeful conduct.

Under the categorical approach, we consider the offense

generically; we may not inquire into the specific conduct

of a particular offender. Begay, 128 S. Ct. at 1584; James, 127

S. Ct. at 1594. When a statute encompasses multiple

categories of offense conduct—some of which would

constitute a violent felony and some of which would

not—we may expand our inquiry into a limited range of

additional material in order to determine whether the

jury actually convicted the defendant of (or, in the case of

a guilty plea, the defendant expressly admitted to) violating a portion of the statute that constitutes a violent

felony. Shepard v. United States, 544 U.S. 13, 16-17 (2005);

Taylor, 495 U.S. at 602; Spells, 2008 WL 3177284, at *5;

United States v. Matthews, 453 F.3d 830, 833-34 (7th Cir.

2006). These additional materials are limited to “the

terms of the charging document, the terms of a plea

agreement or transcript of colloquy between judge and
No. 07-1853 13

defendant in which the factual basis for the plea was

confirmed by the defendant, or to some comparable

judicial record of this information.” Shepard, 544 U.S. at 26.

Such an examination, however, is “only to determine

which part of the statute the defendant violated.” United

States v. Howell, 531 F.3d 621, 623 (8th Cir. 2008); see also

Matthews, 453 F.3d at 834. This rule is not meant to circumvent the categorical approach by allowing courts to

determine whether the actual conduct of the individual

defendant constituted a purposeful, violent and aggressive act. See Shepard, 544 U.S. at 25 (discussing the

problems inherent in judicial fact-finding, particularly

after Apprendi v. New Jersey, 530 U.S. 466 (2000), and noting

that looking further into the facts surrounding a prior

conviction likely would violate the standard set forth

in Apprendi); Matthews, 453 F.3d at 834 n.8 (discussing

Shepard, and noting that “this limitation preserves the

categorical approach of Taylor and ensures that a defendant was ‘necessarily’ convicted of a generic burglary”).

As likely will be true in many instances of convictions

under a statute that contemplates reckless behavior, the

juries that convicted Mr. Smith of criminal recklessness

were not asked to determine whether he acted knowingly

or intentionally; Mr. Smith also did not admit to acting

with that intent. Therefore, under the categorical

approach, we cannot look to the facts of his particular

convictions to determine for ourselves whether his

conduct was knowing or intentional, on the one hand, or

merely reckless on the other. Accordingly, we conclude

that, under the Supreme Court’s reasoning in Begay, Mr.

Smith’s criminal recklessness convictions cannot serve

as predicate violent felonies under the ACCA.
14 No. 07-1853

Without including his two convictions for criminal

recklessness, Mr. Smith does not have the three qualifying

convictions required for an enhanced sentence under

the ACCA. Therefore, we must vacate the judgment of

the district court and remand for resentencing in accordance with this opinion.

B.

Mr. Smith also contends that the Supreme Court should

overrule Almendarez-Torres v. United States, 523 U.S. 224

(1998), and hold that the Sixth Amendment prohibits a

district court from making findings of fact regarding prior

convictions under the ACCA. As Mr. Smith correctly

recognizes, however, we are bound by that precedent. See

United States v. Jordan, 485 F.3d 982, 984 (7th Cir. 2007).

Conclusion

For the reasons set forth in this opinion, we vacate

the judgment of the district court and remand for

resentencing.

VACATED and REMANDED

9-12-08