                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1802
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                       Terys Boose, also known as T-Nasty

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                          Submitted: September 23, 2013
                             Filed: January 16, 2014
                                 ____________

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
                              ____________

BYE, Circuit Judge.

      Terys Boose appeals his 120 month sentence, imposed by the district court after
finding Boose was a career offender under United States Sentencing Guidelines
Manual (U.S.S.G.) § 4B1.1(a). We vacate the sentence and remand for resentencing.
                                           I

      On August 2, 2011, Boose was charged with two counts of distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea agreement,
Boose pleaded guilty to Count I of the indictment, and the district court dismissed
Count II of the indictment.

       At sentencing, the parties disputed whether Boose should be classified as a
career offender under U.S.S.G. § 4B1.1. The district court determined Boose had two
prior convictions which qualified as crimes of violence under U.S.S.G. § 4B1.1(b),
including one for battery in the first degree under Arkansas Code Annotated § 5-13-
201(a)(3), and therefore designated him as a career offender.

      Designation as a career offender under § 4B1.1(b) increased Boose's offense
level and criminal history category. The district court calculated the advisory
guideline range at 188 to 235 months. The district court varied downward and
sentenced Boose to 120 months of imprisonment.

                                           II

       Boose argues the district court erred in classifying him as a career offender
under § 4B1.1(b), arguing his Arkansas conviction for battery in the first degree is not
a qualifying crime of violence. We review classification as a career offender de novo.
United States v. Sawyer, 588 F.3d 548, 555 (8th Cir. 2009). In general, we use the
categorical approach to determine whether an offense is a crime of violence. United
States v. Bartel, 698 F.3d 658, 661 (8th Cir. 2012). "[W]e look only to the fact of
conviction and the statutory definition of the prior offense, and do not generally
consider the particular facts disclosed by the record of conviction." Sykes v. United
States, 131 S.Ct. 2267, 2272 (2011).



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      However, where, as here, the "state statute of conviction is overinclusive,
meaning the statute proscribes conduct that is consistent with the generic federal
offense as well as conduct that is not, we apply the modified categorical approach to
determine which of several, separately described crimes encompassed by the statute
formed the basis of the defendant's conviction." United States v. Roblero-Ramirez,
716 F.3d 1122, 1125 (8th Cir. 2013). The district court properly applied the modified
categorical approach to determine Boose violated subsection (3) of Arkansas's first
degree battery statute.

      Under U.S.S.G. § 4B1.2(a):

      The term "crime of violence" 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). We sometimes refer to subparagraph (1) as the "force" clause.
See United States v. Tessmer, 659 F.3d 716, 718 (8th Cir. 2011). We sometimes refer
to subparagraph (2) as the "residual," or "otherwise," clause. See United States v.
Craig, 630 F.3d 717, 724 (8th Cir. 2011).

       We first analyze whether Boose's conviction qualifies as a crime of violence
under the force clause. Boose argues it does not qualify because the statute may be
violated with a mental state of recklessness. In Begay v. United States, 553 U.S. 137
(2008), the United States Supreme Court interpreted the residual clause of 18 U.S.C.




                                         -3-
§ 924(e)(2)(B)(ii)1 and emphasized that a crime must demonstrate a defendant's
propensity toward "purposeful, violent, and aggressive conduct" to be a qualifying
crime. Id. at 144-45 (internal quotation marks omitted).

       In United States v. Ossana, 638 F.3d 895, 897 (8th Cir. 2011), we applied
Begay to an Arizona statute which criminalized aggravated assault with a deadly
weapon or dangerous instrumentality. We held that a conviction pursuant to the
Arizona statute "involving merely reckless use of a vehicle is not a crime of
violence." Id. at 903. We found compelling the Supreme Court's use in Begay of the
example of a recklessness crime, which was not designated a crime of violence, to
make the distinction between crimes which do and do not exhibit the type of
deliberate violent behavior associated with crimes of violence. Id. at 902 (citing
Begay, 553 U.S. at 147). We also found persuasive the reasoning from Begay which
distinguished crimes involving "a mere 'callousness toward risk' from crimes that 'also
show an increased likelihood that the offender is the kind of person who might
deliberately point the gun and pull the trigger.'" Id. (quoting Begay, 553 U.S. at
146). Thus, we held a crime such as reckless use of a vehicle is inconsistent with the
"purposeful, violent, and aggressive conduct" described in Begay, 553 U.S. at 144-45
(internal quotation marks omitted). Ossana, 638 F.3d at 901.

       In United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012), we examined
Arkansas's second-degree battery statute, which, in subsection (3), prohibited conduct
where an individual "recklessly causes serious physical injury to another person by
means of a deadly weapon." Ark. Code. Ann. § 5-13-202(a)(3) (2006) (the version
of the statute in effect at the time of the underlying offense). Dawn applied Ossana

      1
       Based on their nearly identical definitions, we construe "violent felony" under
18 U.S.C. § 924(e)(2)(B)(ii) (the Armed Career Criminal Act) and "crime of
violence" under the Guidelines as interchangeable, including the corresponding force
clauses and residual clauses. United States v. Hennecke, 590 F.3d 619, 621 n.2 (8th
Cir. 2010).

                                         -4-
to the force clause and held second-degree battery under Arkansas law was not
categorically a crime of violence because a conviction could be based on reckless
driving under subsection (3). 685 F.3d at 795. Dawn holds reckless driving is
insufficient to qualify as a crime of violence under the force clause of U.S.S.G.
§ 4B1.2(a)(1). Id.

       So long as the Arkansas statute at issue encompasses reckless driving which
results in serious injury, Boose's conviction was not a qualifying crime of violence
under the force clause of the Guidelines.

       Under Arkansas Code Annotated § 5-13-201(a)(3), "[a] person commits battery
in the first degree if . . . [t]he person causes serious physical injury to another person
under circumstances manifesting extreme indifference to the value of human life."
As a general matter, Arkansas law provides "if the statute defining an offense does
not prescribe a culpable mental state a culpable mental state is nonetheless required
and is established only if a person acts purposely, knowingly, or recklessly." Ark.
Code Ann. § 5-2-203(b). Our reading of Arkansas law supports the position a person
can cause serious physical injury to another under circumstances exhibiting extreme
indifference with a reckless state of mind. This interpretation of Arkansas law was
affirmed by the most recent Supreme Court of Arkansas case to address the mental
state required for a conviction under § 5-13-201(a)(3), Hoyle v. State, 268 S.W.3d
313, 318-19 (Ark. 2007). In Hoyle, the court upheld a first degree battery conviction
under subsection (3) where the defendant "acted recklessly under circumstances
manifesting extreme indifference to human life" and the defendant "exhibited reckless
conduct that involved a conscious disregard of a perceived risk." Id. at 318 (emphasis
added).

       While it remains true a conviction for first-degree battery under § 5-13-
201(a)(3) requires a defendant manifest "extreme indifference to the value of human
life," Arkansas law establishes the first-degree battery statute can be violated with a

                                           -5-
mental state of recklessness. As a result, a conviction for battery in the first degree
under § 5-13-201(a)(3) is not a qualifying crime of violence under the force clause
of U.S.S.G. § 4B1.2(a)(1).

       We must then consider whether a conviction under subsection (3) of Arkansas's
battery in the first degree statute is a crime of violence under the residual clause of
the Guidelines. U.S.S.G. § 4B1.2(a)(2) provides a "crime of violence" means an
offense which "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." Boose did not violate one of the enumerated crimes.
Thus, we must determine whether Boose's prior conviction "otherwise involves
conduct that presents a serious potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(a)(2).

       Subsection (3) of Arkansas' first degree battery statute can be violated by
driving under the influence. Hoyle, 268 S.W.3d at 502 (upholding conviction where
"evidence demonstrated Hoyle drove a fully loaded commercial vehicle weighing
over 28,000 pounds while under the influence of methamphetamine."). Under the
modified categorical approach, we determine Boose violated subsection (3) of the
statute of conviction, but "we do not consider what the defendant's actual conduct
might have been." Roblero-Ramirez, 716 F.3d at 1125. Ossana, 638 F.3d at 903,
held reckless use of a vehicle is not a crime of violence pursuant to the residual clause
for the same reasons it is not a crime of violence pursuant to the force clause.
Although a violation of § 5-13-201(a)(3) is dangerous, it does not necessarily involve
the "purposeful, violent, and aggressive conduct" required to qualify as a crime of
violence under the residual clause. Cf. United States v. Vincent, 575 F.3d 820, 826
(8th Cir. 2009) (holding an Arkansas statute requiring a mental state of "purposefully,
knowingly, or recklessly" qualified as a crime of violence under the residual clause
because possession of a sawed-off shotgun is similar in kind as well as degree of risk
to the enumerated crimes).

                                          -6-
       Boose is not a career offender under U.S.S.G. § 4B1.1. Boose's conviction for
first-degree battery under § 5-13-201(a)(3) is not a crime of violence under the force
clause because the crime can be violated by reckless driving. Boose's conviction is
also not a crime of violence under the residual clause because subsection (3) is not
similar in kind or degree of risk to the enumerated crimes. Therefore, Boose lacks the
two predicate crimes of violence needed to qualify as a career offender.

       Given this conclusion, remand is necessary. Because the record demonstrates
the government had a full and fair opportunity to present its evidence regarding
whether the first-degree battery conviction qualified as a crime of violence, there is
no reason to allow the government to expand the record on remand. See United
States v. Thomas, 630 F.3d 1055, 1057 (8th Cir. 2011).

                                         III

      Accordingly, we vacate Boose's sentence and remand to the district court for
resentencing.
                     ______________________________




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