                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                                ______________________             U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                         MAY 24, 2012
                                     No. 10-15863                         JOHN LEY
                                ______________________                     CLERK


                          D.C. Docket No. 0:10-cr-60079-AJ-1


UNITED STATES OF AMERICA,

                                                                   Plaintiff - Appellee,

                                            versus

CARL SCHNEIDER,

                                                                   Defendant - Appellant.

                            ___________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                           ___________________________

                                       (May 24, 2012)

Before DUBINA, Chief Judge, FAY, and KLEINFELD,* Circuit Judges.

KLEINFELD, Circuit Judge:


*
 The Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
      We address whether a Florida conviction for false imprisonment is a

“violent felony” under the Armed Career Criminal Act.

                          Facts and Procedural History

      Carl Schneider sold fifty oxycodone pills to a confidential informant and an

undercover police officer on July 9, 2009. He was under surveillance during the

sale and was quickly apprehended after it as he drove away. Detectives found a

.32 caliber handgun and a 9mm semiautomatic pistol in his pickup truck, as well

as the actual currency used in the drug sale.

      Schneider pleaded guilty both to possession with intent to distribute

oxycodone under 21 U.S.C. § 841(a)(1), and to being a felon in possession of a

firearm under 18 U.S.C. §§ 922(g)(1) and 924(e). Those convictions are not at

issue in this appeal.

      What he appeals is the sentence enhancement for being an armed career

criminal under 18 U.S.C. § 924(e). Before sentencing, defense counsel filed a

written objection to the armed career criminal enhancement, on the ground that the

Florida false imprisonment statute did not require violence as an element of that

crime. The probation officer advised the court that without the enhancement,

Schneider’s guideline range would be 70 to 87 months, but with it, he was subject

to a 180-month statutory mandatory minimum. Schneider was 71 years old at

                                          2
sentencing, and the crimes for which he was subject to the sentencing

enhancement had all occurred more than 25 years earlier. He had been out of

prison for ten years.

        With respect to the false imprisonment conviction, the presentence report

said:

        On or about June 20, 1980, officers were advised via radio of an
        abduction that occurred in the City of Deerfield Beach, Florida. The
        radio message advised to be on the lookout for two black males who
        had been abducted by two white males and were possibly headed
        toward the Days Inn motel, located at 1250 West Hillsboro
        Boulevard. While in that area, an officer observed a passenger truck
        with two white males and three black males. One white male was
        seated in the bed of the truck facing three black males, who were
        seated with their backs against the back window of the vehicle. The
        other white male was seated in the driver’s seat, and operating the
        vehicle. The officer followed the vehicle to the front of the Days Inn,
        where the subjects parked and exited the vehicle. The group then
        walked toward the front desk of the motel. One black male separated
        from the group and ran to the officer and stated that the two white
        males had pulled a gun on him and taken him from his home. The
        officer then verified the name of the man. When additional officers
        arrived, the subjects were all placed under arrest and searched. On
        the defendant’s person, officers found five rounds of shotgun
        ammunition in his left shirt pocket. The kidnapping occurred at 347
        NW 6 Court, in Deerfield Beach, at approximately 3:00 a.m. All
        three victims stated that the defendant held them with a gun against
        their will.

The presentence report said that adjudication had been withheld on the case, and

that the defendant had received only probation initially. His probation was



                                           3
subsequently revoked and the defendant was sentenced to five years of

incarceration, evidently after his apprehension on the unrelated robbery, burglary

and kidnapping charge two years later.

      Because the factual account in the presentence report did not set out its

documentary basis (and perhaps because the initial lenient sentence seemed out of

kilter with the damning facts), the district judge directed that such documents as

could be obtained on the crime be produced at a subsequent sentencing hearing.

He specifically requested the charging document and the document of conviction,

if they could be obtained, to see precisely which sort of false imprisonment

Schneider had committed.

      At the second sentencing hearing, the probation officer had supplied the

court with the documents she had obtained. A clerk’s docket entry of January 15,

1981 showed the kidnapping charge stricken and violation of probation as the

charge. It also noted that Schneider had pleaded guilty to the lesser included

offense of false imprisonment on October 20, 1980. The 1981 entry said that

probation was revoked, and that Schneider was sentenced to “external probation

for 3 years.” In 1982 the docket showed another probation violation, this time

with a sentence of “5 years state prison with credit for time served of 56 days.”

The entry does not say what the violation of probation was, but the timing

                                          4
suggests that it may have been the 1982 armed robbery and kidnapping. His

judgment says he pleaded nolo contendere to “the lesser included offense of false

imprisonment,” Fla. Stat. 787.02(1)(a), a third degree felony. Another document

evidently submitted by the prosecutor to the court in 1980 says, “The State hereby

announces a No Information” on the charges of kidnapping and of possession of a

firearm in commission of a felony. Though it says that the State was in the

process of filing an information charging kidnapping, evidently that did not occur.

       The presentence report account was evidently based on a complaint affidavit

that had preceded the charges and nolo plea. The complaint affidavit is by a police

officer.1

1
       The officer’s affidavit states:

       The officer while on duty in the City of Deerfield Beach was advised via radio of
       an abduction which occurred in the City of Deerfield Beach. The radio message
       advised to be on the lookout for two black males who had been abducted by two
       white males and were possibly headed to the area of Day’s Inn, located at 1250 W.
       Hillsboro. While in that area this officer observed a brown GMC Caballero type
       truck containing two white males and three black males. One white male was
       seated in the bed of the truck facing the three black males who were seated with
       their backs against the back window of the vehicle. The other white male was
       seated in the driver’s seat and was operating the vehicle. This officer followed the
       vehicle to the front of Day’s Inn where the subjects parked the vehicle and exited
       same. They then walked toward the front desk of the motel. One black male
       separated from the group and ran to this officer and advised that the two white
       males had pulled a gun on him and taken him from his home. This officer asked
       the subject if his name was Garner (the abductionvictims [sic] name) to which he
       replied he was the same. This officer then requested a backup. Officers Tipton,
       Estes and Rhodes arrived on the scene. Subjects were then placed under arrest,
       searched and handcuffed. Subject Carl Schneider was found to . . . [line(s)
       missing] . . . stated that the defendant was holding them with a gun against their

                                                5
      The judge said that the probation officer had not been able to find a change

of plea colloquy or transcript with a factual proffer, so unless the parties could find

more, he did not have sufficient evidence cognizable for sentencing purposes of

the circumstances of the 1980 crime. The prosecutor responded, “I would agree

that there’s nothing there to rely on.” The judge said that he could not rely on the

complaint affidavit, because he could not ascertain from the record what facts

among those alleged Schneider might have admitted or pleaded guilty to, and he

might under Florida law have pleaded nolo contendere to false imprisonment that

did not constitute kidnapping or armed kidnapping. He asked if counsel took a

different view, but the prosecutor said “I agree with that assessment, your Honor.”

So, of course, did defense counsel.

      The court then heard argument, and the prosecutor argued that the Florida

crime of false imprisonment, even under its “secretly” provision,2 categorically

qualified as a violent felony under the Armed Career Criminal Act. The defense

argued the contrary. The judge asked what sentence counsel would recommend,



      will.

      Sworn statements were obtained from the victims.
2
      “The term ‘false imprisonment’ means forcibly, by threat, or secretly confining,
      abducting, imprisoning, or restraining another person without lawful authority and against
      her or his will.” Fla. Stat. § 787.02(1)(a) (emphasis added).

                                              6
assuming that the fifteen-year mandatory minimum under the Armed Career

Criminal Act did not apply. The prosecutor recommended a Guidelines sentence

of 70 to 87 months and suggested that, even though the kidnapping or false

imprisonment was thirty years ago, it should be considered in imposing a

guidelines sentence. Because of recent changes in the case law, the judge

scheduled a third sentencing hearing so that the issue could be further studied and

addressed.

      At the final sentencing hearing, the judge carefully analyzed the case law to

date and decided that the Armed Career Criminal Act did indeed apply, requiring a

mandatory minimum sentence of fifteen years. He concluded that, in the ordinary

case, Florida false imprisonment carries a serious potential risk of physical injury

to another, and that the crime is similar in kind to the crimes enumerated in the

Act. The judge said that “if the Armed Career Criminal Act were not applicable

… I would not impose a sentence of 15 years in this case on Mr. Schneider.” He

noted that Schneider’s objection to applicability of the Act was preserved.



      Schneider appeals his sentence.

                                      Analysis

      The primary question in this case is whether, as a categorical matter, false

                                          7
imprisonment under the Florida statute is a violent felony for purposes of the

Armed Career Criminal Act. Before we reach that question, we must resolve a

question the government raises, which is whether Schneider should be treated as

having admitted the facts alleged in the presentence report. Were that resolved as

the government argues, we would have no need to reach the primary question.

      A. Waiver

      The government argues that because Schneider did not specifically dispute

the facts alleged in the presentence report, they must be taken as true. The facts

would establish that Schneider was one of two perpetrators who abducted three

men and held and transported them at gunpoint. The premise of this argument is

incorrect. Schneider did not admit those facts.

       True, Schneider’s objection to the presentence report, though specifically

designating the factual paragraph, focuses on the legal argument rather than

setting out any factual dispute. But Schneider did without question object in

writing prior to the sentencing hearing both to the factual allegations paragraph

and also to the paragraph adding the “armed career criminal” enhancement. The

argument is terse, merely pointing out that some nonviolent conduct is included

within the Florida false imprisonment statute.

      The oral argument at the sentencing hearing establishes that the prosecution

                                          8
as well as the defense assumed as the premise of their arguments that there was

insufficient documentation to support the factual allegations about holding men at

gunpoint. The judge expressed doubt that the police report upon which the

presentence report relied was cognizable under Shepard v. United States.3 The

prosecutor expressly agreed. They were right. Shepard “permitted sentencing

courts to determine the nature of a prior conviction based only on the list of

judicial records in Shepard or a fact to which the defendant assented (the

‘Shepard-approved sources’) and precluded the sentencing court's use of police

reports to establish the nature of a prior conviction for purposes of the § 924(e)(1)

enhancement.”4 The district court properly looked for a change of plea colloquy,

language in an indictment or information to which Schneider had pleaded guilty,

or other sufficient basis for determining whether he had admitted the facts

originally alleged, and found none. The court gave two continuances to look for

documents cognizable under Shepard, but none were found. It is plain from the

record that counsel on both sides assumed, correctly, that the modified categorical

approach would not be applied to facts ascertained only from a police report or

complaint affidavit. Instead, both parties and the court focused on the more

3
       Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).
4
       United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010) (citing Shepard, 544 U.S. at
26, 125 S. Ct. at 1263).

                                               9
serious argument about whether the Florida false imprisonment was categorically

a “violent felony.”

       The government asks us to read Schneider’s terse written objection as

though it objected only to the legal conclusion, but that would not be a fair

reading. The prosecutor, defense counsel, and the judge all agreed that the police

report was an insufficient basis on which to establish the facts that the government

now wants to treat as admitted. Schneider’s express written objection to the

factual paragraph of the presentence report, as well as the paragraph adjusting the

Guidelines level based on those facts and the oral arguments at the sentencing

hearings, sufficed to object with sufficient “specificity and clarity”5 to use of those

factual allegations to determine the nature of Schneider’s Florida false

imprisonment conviction.

       B. Categorical Analysis

       The Florida crime to which Schneider pleaded nolo contendere, false

imprisonment, “means forcibly, by threat, or secretly confining, abducting,

imprisoning, or restraining another person without lawful authority and against her

or his will.”6 It is a third degree felony punishable by up to five years of

5
       United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (“[C]hallenges to the facts
contained in the PSI must be asserted with specificity and clarity.”).
6
       Fla. Stat. § 787.02(1)(a).

                                               10
imprisonment.7 False imprisonment is a lesser included offense of kidnapping,8

which is a first degree felony punishable by life imprisonment.9 Kidnapping

differs in that it requires an additional element of intent to hold for ransom, to

facilitate another felony, to inflict bodily harm or terror, or to interfere with a

governmental function.10 Schneider pleaded nolo contendere to and was sentenced

to probation for false imprisonment, not kidnapping.

      The Armed Career Criminal Act imposes a mandatory minimum sentence of

fifteen years for certain violations of what is colloquially called “felon in

possession.” Generally, possession of a firearm by someone previously convicted

of a felony, or subject to certain other disqualifiers, is itself a felony.11 If the felon


7
      Fla. Stat. §§ 787.02(2), 775.082(3)(d).
8
      State v. Sanborn, 533 So. 2d 1169, 1170 (Fla. 1988).
9
      Fla. Stat. §§ 787.01(2), 775.082(3)(b).
10
      Fla. Stat. § 787.01(1)(a) reads in full:

      (1)(a) The term “kidnapping” means forcibly, by threat, or secretly confining,
      abducting, imprisoning, or restraining another person without lawful authority and
      against her or his will, with intent to:

              1. Hold for ransom or reward or as a shield or hostage.
              2. Commit or facilitate commission of any felony.
              3. Inflict bodily harm upon or to terrorize the victim or another person.
              4. Interfere with the performance of any governmental or political
              function.

11
      18 U.S.C. § 922(g)(1).

                                                 11
in possession has three previous convictions for violent felonies or serious drug

offenses, then a sentence of at least fifteen years must be imposed under the

Armed Career Criminal Act.12 Schneider does not contest that two of his previous

convictions are predicate offenses under the Act, but does contest whether Florida

false imprisonment is a “violent felony” for purposes of 18 U.S.C. § 924(e)(2)(B).

      The statutory definition of “violent felony” has given rise to a series of

decisions from which it is not easy to derive a usable rule. United States v.

Chitwood, addressing the four decisions in four years in which the Supreme Court

has addressed the question, notes that “the ever shifting sands of the residual

clause shifted again”13 in the latest iteration, Sykes v. United States.14



      Here are the words of the statute:

      (B) the term “violent felony” means any crime punishable by
      imprisonment for a term exceeding one year, or any act of juvenile
      delinquency involving the use or carrying of a firearm, knife, or
      destructive device that would be punishable by imprisonment for such
      term if committed by an adult, 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,

12
      18 U.S.C. § 924(e).
13
      United States v. Chitwood, 676 F.3d 971, 978 (11th Cir. 2012).
14
      Sykes v. United States, — U.S. —, 131 S. Ct. 2267, 180 L. Ed. 2d 60 (2011).

                                             12
               or otherwise involves conduct that presents a serious
               potential risk of physical injury to another[.]15

The word “or” between subsections (i) and (ii) means that coverage by either

subsection suffices. The government does not argue that, under the categorical

approach (looking only at the statute, not at the particularized facts of a

defendant’s prior offense), false imprisonment has as an element “the use,

attempted use, or threatened use of physical force.” All we need decide, therefore,

is whether false imprisonment is “burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” The residual clause, “otherwise involves conduct that

presents a serious potential risk of physical injury to another,” is all that may apply

to Florida false imprisonment.16



       Begay v. United States held, in the context of driving under the influence,


15
       18 U.S.C. § 924(e)(1)(B) (emphasis added).
16
        Schneider directs our attention to United States v. Rosales-Bruno, 676 F.3d 1017 (11th
Cir. 2012), which holds that under the somewhat similar Guideline provision at U.S.S.G. §
2L1.2(b)(1)(A)(ii), Florida false imprisonment is not a “crime of violence.” The case is not on
point, because the official comment to the guideline, defining “crime of violence,” lacks the
residual clause that the statute at issue here includes. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). See also
United States v. Miranda-Ortegon, 670 F.3d 661, 664 n.12 (5th Cir. 2012) (noting that Tenth
Circuit authority holding that Oklahoma assault and battery is a “violent felony” under the
ACCA residual clause was not persuasive authority for purposes of U.S.S.G. §
2L1.2(b)(1)(A)(ii), because the Guideline commentary includes no equivalent residual clause).

                                                 13
that “serious potential risk of injury to another” was necessary but not sufficient to

satisfy the residual clause, because the enumerated crimes implied that the residual

clause applied only to “similar crimes, rather than every crime that ‘presents a

serious potential risk of physical injury to another.’”17 Drunk driving statutes

differ from the listed crimes in that they do not typically involve “purposeful,

violent, and aggressive conduct,” and “are, or are most nearly comparable to,

crimes that impose strict liability.”18

       Our subsequent decision in United States v. Harrison holds that, to decide

whether a crime falls within the residual clause, we must determine, first, the

relevant category of crime by “looking to how the crime is ordinarily committed”;

second, whether the crime poses a “serious potential risk of physical injury”

similar in degree to the risks posed by the enumerated crimes; and third, whether

the crime is similar in kind to the enumerated crimes.19 Statistical evidence “plays

a role,”20 but as Justice Scalia has pointed out, ordinarily neither party presents any




17
       Begay v. United States, 553 U.S. 137, 142, 128 S. Ct. 1581, 1585, 170 L. Ed. 2d 490
(2008) (emphasis in original) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
18
       Id. at 145, 128 S. Ct. at 1586.
19
       United States v. Harrison, 558 F.3d 1280, 1287 (11th Cir. 2009).
20
       Id. at 1289.

                                              14
statistical evidence unless and until the case is before the Supreme Court.21 No

statistical evidence was presented in the case at bar.

       The Supreme Court decided Sykes v. United States after Harrison. Sykes

holds that vehicular flight from a law enforcement officer is a violent felony for

purposes of the Armed Career Criminal Act.22 The Court concluded that Begay’s

“similarity in kind” limitation to “purposeful, violent, and aggressive” crimes did

not apply, and considered only whether the crime was similar in degree of risk to

the crimes enumerated in 18 U.S.C. § 924(e)(2)(B)(ii).23 Sykes did not overrule

Begay, but distinguished it as involving a crime “akin to strict liability,

negligence, and recklessness crimes.”24 The Sykes Court noted, “[i]n many cases

the purposeful, violent, and aggressive inquiry will be redundant with the inquiry

into risk.”25 Sykes expanded upon statistics of harm from flight from law




21
        Sykes v. United States, — U.S. —, 131 S. Ct. 2267, 2286, 180 L. Ed. 2d 60 (2011)
(Scalia, J., dissenting) (“Most of the statistics on which the Court relies today come from
government-funded studies, and did not make an appearance in this litigation until the
Government’s merits briefs to this Court.”).
22
       Sykes, 131 S. Ct. at 2277.
23
       Id. at 2275-76.
24
       Id. at 2276.
25
       Id.

                                               15
enforcement officers, but noted that “statistics are not dispositive.”26

      Begay and Sykes have to be reconciled, because Sykes does not purport to

overrule Begay. United States v. Chitwood,27 filed subsequent to oral argument in

this case, performed this challenging task. Chitwood adopted the reconciliation

favored by most of our sister circuits to have addressed the issue, and concluded

that Begay’s “purposeful, violent, and aggressive” inquiry is limited to “strict

liability, negligence, and recklessness crimes.”28 This is the distinction the

Supreme Court itself drew in Sykes, between Sykes and Begay.29 Offenses that

are not “strict liability, negligence, or recklessness crimes” fall within the residual

clause “if they categorically pose a serious risk of physical injury that is similar to

the risk posed by one of the enumerated crimes.”30 Chitwood holds that Georgia

false imprisonment (which lacks the “secretly” provision in Florida’s statute)31

creates a risk of physical injury similar to burglary of a dwelling.32 Chitwood


26
      Id. at 2274-75.
27
      United States v. Chitwood, 676 F.3d 971 (11th Cir. 2012).
28
      Id. at 978-79.
29
      Id. at 979.
30
      Id.
31
      See Ga. Code Ann. § 16-5-41.
32
      Chitwood, 676 F.3d at 979-80.

                                             16
recognized that the risk of violent confrontation between the perpetrator and the

false imprisonment victim was similar to that in burglary of a dwelling, and noted

that “the offender’s awareness that such a violent confrontation is possible and

could be necessary indicates that he may be prepared to use violence if necessary

to complete the crime or to escape.”33 Rejecting appellant’s argument that the

government was obligated to provide statistics, Chitwood held that statistical

evidence is not required, and in its absence, the court will “rely on our own

commonsense analysis.”34

       Though the Georgia statute in Chitwood lacks the “secretly” element of the

Florida statute before us,35 we reach the same conclusion for the Florida statute.

One Florida case defines “secretly” in the false imprisonment and kidnapping

contexts. In Robinson v. State, the defendant, a college student, picked up a

female college student who had gotten her car stuck on some railroad tracks by

offering to help her.36 But instead of helping, he allegedly drove her a short



33
       Id. at 980.
34
       Id. at 981 (quoting United States v. Alexander, 609 F.3d 1250, 1257 (11th Cir. 2010)).
35
        “A person commits the offense of false imprisonment when, in violation of the personal
liberty of another, he arrests, confines, or detains such person without legal authority.” Ga. Code
Ann. § 16-5-41(a).
36
       Robinson v. State, 462 So. 2d 471, 473 (Fla. 1st DCA 1984).

                                                17
distance to a dark area and raped her.37 The court held that during the period prior

to rape, when he was allegedly driving her to the nearby dark location, a jury could

find that he “secretly” kidnapped her.38 This appears likely to be a typical scenario

for false imprisonment accomplished “secretly.” Robinson continued, “[t]he term

‘secretly’ means that the abduction or confinement is intended by the defendant to

isolate or insulate the intended victim from meaningful contact or communication

with the public.”39

       In the Robinson context, “secretly” also means that the victim does not at

the time know that he or she is being confined or abducted. Before Robinson

allegedly stopped the car and raped the victim, he would know he was abducting

her, but she would be unaware that she was being abducted. Florida courts have

likewise found secret kidnappings where a child was led to an isolated area to

isolate her from contact in order to molest her;40 where a child was driven to a

location to isolate her from contact, after luring her into the car by offering her a




37
       Id.
38
       Id. at 476.
39
       Id.
40
       Bishop v. State, 46 So. 3d 75 (Fla. 5th DCA 2010) (following Robinson v. State, 462 So.
2d 471 (Fla. 1st DCA 1984)).

                                              18
ride to her mother’s house;41 and where young boys were lured into a car,

purportedly to take them to a swimming pool, but actually to isolate them from

contact in a wooded area in order to molest them.42 These were kidnapping rather

than false imprisonment cases because of the purpose of the abductions, to commit

sexual felonies. Although an additional intention is required for kidnapping, the

“secretly” element is the same as for false imprisonment.43 The gist of falsely

imprisoning or kidnapping “secretly” is that the victim is isolated from contact

with others by a ruse, so that the victim is not aware of the abduction.

       We think the district judge had it right in characterizing Florida false

imprisonment as being comparable to burglary with respect to the degree and kind

of risk produced. The Seventh Circuit, in United States v. Billups, reasoned that

the risk created by false imprisonment, even if accomplished by deceit rather than

by force, arises from the possibility that the victim might try to resist or escape.44

We agree. In the automobile example, the victim is reasonably likely to realize at


41
       Corner v. State, 868 So. 2d 553 (Fla. 3d DCA 2004).
42
       Gay v. State, 607 So. 2d 454 (Fla. 1st DCA 1992).
43
        See State v. Sanborn, 533 So. 2d 1169, 1170 (Fla. 1988) (holding that false imprisonment
is a necessarily lesser included offense of kidnapping).
44
        United States v. Billups, 536 F.3d 574, 581 (7th Cir. 2008) (“Again, the potential for
violent confrontation remains substantial, despite the victim’s initial consent, because the victim
may discover the ruse (or his own mistake) and resist.”).

                                                19
some point that he or she had been secretly abducted, and to suffer injury from

trying to get out of the car while it is moving or in traffic, from hazards after

escaping, or from the perpetrator using force to prevent the victim’s escape.

       We know from Sykes that the injury need not be from force applied by the

perpetrator, because in that case the Court held that the risk of injury from the

police car chasing the fleeing suspect satisfied the “serious potential risk of

physical injury to another” phrase in the statute.45 As the Sykes Court noted,

“Flight from a law enforcement officer invites, even demands, pursuit. As that

pursuit continues, the risk of an accident accumulates.”46 The burglar hopes that

no one will be home and there will be no confrontation, but burglars are

sometimes mistaken, and violent confrontations sometimes ensue. Likewise a

defendant secretly confining or abducting someone may hope that the victim goes

along peacefully, or discovers the ruse too late to do anything about it. But the

victim may discover the ruse and injure himself or get injured by the perpetrator

during an escape attempt.

       Schneider argues that, under Chambers v. United States47 and Johnson v.

45
       Sykes v. United States, 131 S. Ct. 2267, 2274 (2011).
46
       Id.
47
       Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687, 172 L. Ed. 2d 484 (2009)
(holding that Illinois failure to report to a probation officer is not a “violent felony” under the

                                                  20
United States,48 we may only consider the perpetrator’s conduct in causing injury,

not his victim’s reaction, in evaluating whether a crime presents a “serious

potential risk of physical injury to another.” We disagree. The predicate crime in

Chambers was failure to report for scheduled weekend confinement. The Court

held that the residual clause did not apply, because the conduct was inaction, and

there was no reason to think that whatever the defendant might have been doing at

the time posed danger to anybody, and both intuition and statistics cut against an

inference of dangerousness. By contrast, one who falsely imprisons another,

secretly or not, by that criminal act creates the risk of injury. Johnson did not

construe the residual clause at all, just whether battery defined as touching “no

matter how slight . . . even a tap on the shoulder” had as an element “physical

force.”

       Moreover, Schneider’s argument cannot withstand the Court’s discussion of

flight from a police officer in Sykes. The statute of conviction in Sykes did not

require that the flight be accomplished in a reckless manner, but the Court thought

the danger from the chase, even by the police rather than the perpetrator, sufficed

to make the crime a “violent felony” under the residual clause. The Court noted,

ACCA).
48
        Johnson v. United States, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010) (holding that Florida
battery is not a “violent felony” under the ACCA).

                                               21
“Even if the criminal attempting to elude capture drives without going full speed

or going the wrong way, he creates the possibility that police will, in a legitimate

and lawful manner, exceed or almost match his speed or use force to bring him

within their custody.”

       In Sykes, the police officer’s pursuit may have been the immediate

proximate cause of injury to another, but the unlawful flight was the legally

responsible cause for purposes of the Armed Career Criminal Act. Likewise a

victim’s jumping out of the car in a dangerous way or in a dangerous place may be

the immediate proximate cause of injury, but the secret abduction is the legally

responsible cause. Criminal law has often treated a crime as the cause of injury to

another, even though the immediate proximate cause is a subsequent act by the

victim to preserve his or her own life or safety.49

       Just as vehicular flight from law enforcement, even non-reckless flight,

“invites, even demands, pursuit” by police officers,50 Florida false imprisonment,

even when accomplished secretly, creates a likelihood of attempted escape or

resistance by the victim. We therefore conclude that Florida false imprisonment,

49
        H.L.A. Hart & Tony Honoré, Causation in the Law 330-31 (2d ed. 1985). A related
example is felony murder when the immediate proximate cause of death is a policeman’s bullet
fired in defense. See R. v. Pagett, (1983) 76 Crim. App. 279 (upholding conviction where police
returned fire and killed pregnant girl being used as human shield by appellant).
50
       Sykes, 131 S. Ct. at 2274.

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even when accomplished secretly, produces “a serious potential risk of physical

injury to another” for purposes of the residual clause of the Armed Career

Criminal Act. False imprisonment accomplished secretly, in the ordinary run of

cases, poses a serious potential risk of injury to another, and is the responsible

cause even if an attempt to escape may likely be the immediate cause.

      Florida false imprisonment is not a strict liability, negligence, or

recklessness crime. It requires an intent to “confin[e], abduct[], imprison[], or

restrain[] another person without lawful authority and against her or his will.”51

The Begay inquiry into whether the crime is “purposeful, violent, and aggressive”

therefore does not, under Sykes and Chitwood, apply.

      AFFIRMED.




51
      Fla. Stat. § 787.02(1)(a); see also State v. Sanborn, 533 So. 2d 1169, 1170 (Fla. 1988).

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