                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-1853

U NITED STATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

S TEVEN 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.



    A RGUED A PRIL 22, 2008—D ECIDED S EPTEMBER 12, 2008



 Before R IPPLE, E VANS and W ILLIAMS, Circuit Judges.
  R IPPLE, 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 threat-
    ened use of physical force against the person of an-
    other; 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 fire-
arms 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 memoran-
dum 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 weap-
on, 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 reck-
lessness convictions as violent felonies under the 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 vio-
lent felonies under the ACCA.
  The district court found both of these objections unper-
suasive 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

                                 II
                         DISCUSSION
                                A.
  Mr. Smith first contends that “criminal recklessness,” as
defined by Indiana law, is not a violent felony and, ac-
cordingly, 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




1
    “Hazing” is further defined as
      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 organi-
          zation;
      to perform an act that creates a substantial risk of bodily
      injury.
Ind. Code § 35-42-2-2(a).
No. 07-1853                                                    5

    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-



2
 Criminal recklessness, although generally a Class B misde-
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).
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 sen-
tencing 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 provi-
sion’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

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 “pur-
poseful, violent, and aggressive conduct.” Id. at 1586
(internal quotation marks and citations omitted).3 By
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



3
  Specifically, the Court noted that each of the enumerated
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 insur-
ance’ ”; “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 danger-
ous when firearms are involved.” Id. (internal quotation
marks and citation omitted).
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 Govern-
ment 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 “pur-
poseful or deliberate” conduct are not the type of defen-
dants that Congress intended to include within its defini-
tion 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 individu-
als 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—purpose-
ful—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 crim-
inals.’ ” Id. at 1587. Most relevant for our purposes, the
Court referenced the federal offense of reckless tam-
pering with consumer products, 18 U.S.C. § 1365(a). De-
spite 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 indif-
ference 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 aggres-
sion.” 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 pur-
     poseful “armed career criminal” behavior in a way
     that the former are not.
Id. at 1588 (emphasis added). Again, the Court em-
phasized 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 crim-
inal 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 en-
hanced penalties mandated by the ACCA. Accordingly,
we agree with the Second Circuit that crimes requiring
only a mens rea of recklessness cannot be considered vio-
lent 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

who intentionally perform an act that creates a substan-
tial risk of bodily injury to another person, the statute
also expressly encompasses those individuals who do so
recklessly.4 The Indiana statute therefore criminalizes non-
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) violat-
ing 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


4
  Cf. 18 U.S.C. § 1365(a) (“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
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).
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 cir-
cumvent the categorical approach by allowing courts to
determine whether the actual conduct of the individual
defendant constituted a purposeful, violent and ag-
gressive 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 defend-
ant 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 accor-
dance 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.
                                    V ACATED and R EMANDED




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