                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-5001


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ROMELUS PENTROY MARTIN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:11-cr-00685-PJM-1)


Argued:   January 30, 2014                 Decided:   June 5, 2014


Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Liam
O’GRADY, United States District Judge for the Eastern District
of Virginia, sitting by designation.


Vacated and remanded by published opinion. Chief Judge Traxler
wrote the majority opinion, in which Judge Diaz joined.   Judge
Diaz wrote a separate concurring opinion. Judge O’Grady wrote a
dissenting opinion.


ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.    Paul Nitze, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.    ON
BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
TRAXLER, Chief Judge:

        Romelus          Pentroy          Martin     appeals          the      77-month         sentence

imposed    after          he    pleaded       guilty          to    unlawful       possession           of   a

firearm by a convicted felon.                            See 18 U.S.C. § 922(g)(1).                          We

agree with Martin that the district court erred by increasing

his sentence after determining that Martin’s prior conviction

for fourth-degree burglary constituted a crime of violence under

U.S.S.G.        §    2K2.1(a)(2),             and        we        therefore       vacate       Martin’s

sentence and remand for resentencing.

                                                    I.

        The Sentencing Guideline applicable to § 922(g) violations

sets a base offense level of 24 for defendants who commit the

offense after “sustaining at least two felony convictions of . .

.   a   crime       of     violence,”         U.S.S.G.         §     2K2.1(a)(2),         and       a    base

offense        level       of        20    for     defendants          with        only     one         prior

conviction for a crime of violence, see id. § 2K2.1(a)(4)(A).

        When    Martin          pleaded          guilty        to     the     felon-in-possession

charge in August 2012, he had three prior convictions, including

a 2007 Maryland conviction for conspiracy to commit robbery and

a   2009   Maryland            conviction          for    fourth-degree            burglary.             The

district court held that both the 2007 conviction and the 2009

conviction          amounted         to    crimes    of        violence       as    defined         by   the

Guidelines,          and       the    court      therefore           assigned      Martin       a       base-

offense    level          of    24.        After     adjusting          the    offense       level           to

                                                     2
reflect    Martin’s      acceptance     of    responsibility,       the   district

court determined that Martin’s advisory sentencing range was 77-

96   months,     and    the    court    sentenced     Martin   to    77    months’

imprisonment.

     On appeal, Martin concedes that his 2007 conviction was

properly treated as a crime of violence, but he contends that

the district court erred by treating the 2009 conviction as a

crime of violence.            If the district court had not treated the

2009 conviction as a crime of violence, Martin’s base-offense

level    would   have    been    20    instead   of   24,    and    his   advisory

sentencing range would have been 51-63 months.

                                        II.

          For purposes of U.S.S.G. § 2K2.1, a “crime of violence”

is defined as

        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); see id. § 2K2.1, cmt. 1 (defining “crime of

violence”      through    cross-reference        to    §    4B1.2(a)).        When

determining whether a prior conviction qualifies as a crime of

violence under the Guidelines, we apply a categorical approach,


                                         3
focusing on “the fact of conviction and the statutory definition

of the prior offense” rather than the conduct underlying the

offense.     Taylor v. United States, 495 U.S. 575, 602 (1990); see

United States v. Carthorne, 726 F.3d 503, 511 (4th Cir. 2013),

cert. denied, 134 S. Ct. 1326 (Feb. 24, 2014). 1

      Maryland’s fourth-degree burglary statute encompasses four

separate crimes: breaking and entering the dwelling of another,

see Md. Code Ann., Crim. Law § 6-205(a); breaking and entering

the   storehouse   of    another,    see   id.    §   6-205(b);      being   in   a

dwelling or storehouse of another (or the yard or other area

belonging to such dwelling or storehouse) with the intent to

commit theft, see id. § 6-205(c); and possessing burglar’s tools

with intent to use, see id. § 6-205(d).               Although there was some

disagreement    below,    the   parties    now    agree     that   the   relevant

charging     documents   establish     that      Martin     was    convicted      of

violating subsection (a), which provides that “[a] person may

not break and enter the dwelling of another.”               Id. § 6-205(a).

      Because fourth-degree burglary does not have “as an element

the   use,   attempted   use,   or   threatened       use   of    physical   force




      1
       While the    Taylor Court was interpreting “violent felony”
under the Armed      Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B), we    generally apply Taylor’s categorical approach
when considering     prior-conviction-based enhancements under the
Guidelines. See,    e.g., Carthorne, 726 F.3d at 511 n.6.


                                      4
against the person of another,” it is not a crime of violence

under U.S.S.G. § 4B1.2(a)(1).

     And as the government concedes, the crime likewise does not

constitute the enumerated crime of “burglary of a dwelling.”

U.S.S.G.    §    4B1.2(a)(2).         Under       the    categorical    approach,     “a

prior conviction constitutes a conviction for [an] enumerated

offense    if    the    elements      of   the     prior    offense    correspond     in

substance to the elements of [an] enumerated offense.”                          United

States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013)

(internal       quotation     marks    and       alteration    omitted).      “[W]here

Congress has not indicated how a prior offense enumerated in a

sentencing enhancement statute is to be interpreted, it should

be understood to refer to ‘the generic, contemporary meaning’ of

the crime.”        United States v. Rangel–Castaneda, 709 F.3d 373,

376 (4th Cir. 2013) (quoting Taylor, 495 U.S. at 598).

     In    Taylor,      the   Supreme      Court     defined    generic      “burglary”

under the ACCA as “an unlawful or unprivileged entry into, or

remaining   in,     a   building      or   other        structure,    with   intent   to

commit a crime.”         Taylor, 495 U.S. at 598.              Generic “burglary of

a dwelling” under the Guidelines follows the Taylor definition,

“with the additional requirement that a burglary qualifying as a

‘crime of violence’ must involve a dwelling.”                        United States v.

Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012), cert. denied,

134 S. Ct. 52 (Oct. 7, 2013).                      Because § 6-205(a) does not

                                             5
require that the defendant have the intent to commit a crime

when    he   enters        the    dwelling,           fourth-degree     burglary      is    not

generic burglary of a dwelling under § 4B1.2(2). Accordingly,

Martin’s     2009     conviction         is   a       crime   of   violence    only    if    it

satisfies       the    requirements           of       the    “residual     clause”    of     §

4B1.2(a)(2) – if the offense “otherwise involves conduct that

presents       a    serious       potential           risk    of   physical     injury       to

another.”      U.S.S.G. § 4B1.2(a)(2).                  We turn to that inquiry now.

                                              III.

       When determining whether a prior conviction falls within

the    residual       clause,      our   inquiry         remains    a   categorical        one,

“consider[ing] whether the elements of the offense are of the

type    that       would    justify      its       inclusion       within     the   residual

provision, without inquiring into the specific conduct of this

particular offender.”              James v. United States, 550 U.S. 192, 202

(2007).      The parties disagree, however, about the precise scope

of the residual-clause inquiry.

       In James, the Supreme Court explained that the enumerated

offenses       preceding         the   residual         clause     “provide     a   baseline

against which to measure the degree of risk that a nonenumerated

offense must ‘otherwise’ present in order to qualify” as a crime

of violence.          Id. at 208 (emphasis added).                  The Court held that

attempted burglary is a violent felony under the ACCA’s residual

clause because the risk posed by an attempted burglary crime

                                                  6
presents a risk of physical injury “comparable to that posed by

its     closest        analog       among     the     enumerated         offenses--here,

completed burglary.”              Id. at 203.

        In Begay v. United States, 553 U.S. 137 (2008), a case

involving a prior conviction for driving under the influence,

the     Court    added       an    additional       layer    to    the   degree-of-risk

analysis.       The Court held that, in addition to establishing the

baseline        degree       of     risk,     the     enumerated         offenses        also

“illustrate the kinds of crimes that fall within the statute’s

scope.       Their presence indicates that the statute covers only

similar crimes, rather than every crime that presents a serious

potential       risk    of    physical      injury    to    another.”       Id.     at   142

(first emphasis added; internal quotation marks omitted).                                The

Begay    Court      thus     held    that     the   enumerated       offenses     must    be

understood “as limiting the crimes that [the residual clause]

covers to crimes that are roughly similar, in kind as well as in

degree of risk posed, to the examples themselves.”                           Id. at 143

(emphasis       added).            The   Court       concluded      that    the     ACCA’s

enumerated      crimes       “all    typically      involve       purposeful,     violent,

and aggressive conduct,” id. at 144-45 (internal quotation marks

omitted), and the Court distinguished those crimes from offenses

that    --   like      DUI    --    “impose    strict       liability,     criminalizing

conduct in respect to which the offender need not have had any

criminal intent at all,” id. at 145.                    Concluding that DUI is not

                                               7
purposeful, violent, or aggressive, the Court held that it was

not similar in kind to the enumerated offenses and thus was not

a crime of violence.     See id. at 145-46.

      In Sykes v. United States, 131 S. Ct. 2267 (2011), however,

the   Court   returned   to   the   comparable-degree-of-risk   approach,

explaining that “[i]n general, levels of risk divide crimes that

qualify [under the residual clause] from those that do not.”

Id. at 2275 (emphasis added).          As to the Begay test, the Court

stated that

           [t]he    phrase     “purposeful,   violent,    and
      aggressive” has no precise textual link to the
      residual clause, which requires that an ACCA predicate
      “otherwise involve conduct that presents a serious
      potential risk of physical injury to another.” §
      924(e)(2)(B)(ii).   The Begay phrase is an addition to
      the statutory text.     In many cases the purposeful,
      violent, and aggressive inquiry will be redundant with
      the inquiry into risk, for crimes that fall within the
      former formulation and those that present serious
      potential risks of physical injury to others tend to
      be one and the same.     As between the two inquiries,
      risk levels provide a categorical and manageable
      standard that suffices to resolve the case before us.

           Begay involved a crime akin to strict liability,
      negligence,   and   recklessness    crimes;   and   the
      purposeful, violent, and aggressive formulation was
      used in that case to explain the result.     The felony
      at issue here is not a strict liability, negligence,
      or recklessness crime and because it is, for the
      reasons stated and as a categorical matter, similar in
      risk to the listed crimes, it is a crime that
      “otherwise involves conduct that presents a serious
      potential risk of physical injury to another.”

Id. at 2275-76.




                                      8
      Martin      argues    that        Begay       governs    our    analysis        of    the

residual       clause      question,            such    that      the      offense-level

enhancement may be sustained only if fourth-degree burglary is

(1)     similar     in    kind     to     the       enumerated       offenses     –        i.e.,

purposeful, violent, and aggressive; and (2) the degree of risk

it poses is roughly similar to the degree of risk posed by

burglary, the closest enumerated-crime analog.                          The government,

however, argues that an inquiry into the degree of risk is all

that is required after Sykes.                   In the government’s view, Sykes

limited    application        of    Begay’s          similar-in-kind       standard          to

crimes akin to strict liability, negligence, and recklessness

crimes.     Because the crime at issue in this case requires the

defendant to know that his entry was unauthorized, see Dabney v.

State, 858 A.2d 1084, 1090-91 n.2 (Md. Ct. Spec. App. 2004), it

is not a strict-liability crime, and the government therefore

contends that Begay is inapplicable.

      Most of the circuits addressing the issue have held that

Sykes     limited        Begay’s        similar-in-kind          inquiry     to        crimes

predicated     on    strict      liability,          negligence,      or   recklessness.

See, e.g., United States v. Chitwood, 676 F.3d 971, 979 (11th

Cir.) (“Sykes makes clear that Begay’s ‘purposeful, violent, and

aggressive’ analysis does not apply to offenses that are not

strict liability, negligence, or recklessness crimes. . . .”),

cert. denied, 133 S. Ct. 288 (2012); accord United States v.

                                                9
Spencer, 724 F.3d 1133, 1139 (9th Cir. 2013); Brown v. Caraway,

719 F.3d 583, 593 (7th Cir. 2013); United States v. Bartel, 698

F.3d 658, 662 (8th Cir. 2012), cert. denied, 133 S. Ct. 1481

(Feb. 25, 2013); Harrington v. United States, 689 F.3d 124, 135-

36 (2d Cir. 2012); United States v. Rodriguez, 659 F.3d 117, 119

(1st Cir. 2011); United States v. Smith, 652 F.3d 1244, 1247-48

(10th Cir. 2011).

     In this circuit, however, we have continued, even after

Sykes, to apply Begay’s similar-in-kind requirement to residual-

clause cases.          See Carthorne, 726 F.3d at 515 n.12 (“The Supreme

Court has also held that, for an offense to fall within the

residual clause, it must be ‘roughly similar, in kind as well as

in degree of risk posed,’ to arson, burglary, extortion, and

crimes   involving        explosives.’”        (quoting   Begay,   553   U.S.   at

143)); United States v. Davis, 689 F.3d 349, 357-58 (4th Cir.

2012)    (per     curiam)     (“[A]    crime     falls    within   the   residual

provision if it involves ‘purposeful, violent, and aggressive

conduct,’       that    ‘in   the     ordinary    case,   presents   a   serious

potential risk of injury to another.’” (quoting Begay, 553 U.S.

at 144–45, and James, 550 U.S. at 208)); see also United States

v. Hemingway, 734 F.3d 323, 338 (4th Cir. 2013) (declining to

apply Begay       standard    where     degree-of-risk     inquiry   established

that prior conviction was not a crime of violence).                      But see

United States v. Hudson, 673 F.3d 263, 265, 267-68 (4th Cir.)

                                          10
(mentioning Begay, but applying only the Sykes degree-of-risk

standard when determining that prior conviction amounted to a

crime    of       violence    under      the     ACCA’s     residual     clause),     cert.

denied, 133 S. Ct. 207 (2012).                       Accordingly, we will consider

whether      Martin’s       prior     conviction          for   fourth-degree     burglary

qualifies as a crime of violence under the residual clause of §

4B1.2 under both the degree-of-risk test and the similar-in-kind

test, as required by Begay.

                                    A.   Degree of Risk

       Under the degree-of-risk test, a prior conviction amounts

to a crime of violence under the residual clause if the risk of

physical      injury     posed      by    that      offense     is   “roughly    similar,”

Begay, 553 U.S. at 143, or “comparable” to the risk of physical

injury       “posed    by     its     closest       analog      among    the    enumerated

offenses,” James, 550 U.S. at 203.                       “A roughly similar degree of

risk means that the prior crime, like the enumerated offenses,

creates      an    immediate,       serious,        and    foreseeable    physical     risk

that    arises       concurrently         with      the    commission     of    the   crime

itself.”      United States v. White, 571 F.3d 365, 370 (4th Cir.

2009) (internal quotation marks and alterations omitted).

       As it was in James, the enumerated offense of burglary is

the closest analog to the fourth-degree burglary conviction at

issue in this case.              Accordingly, the question is whether the

risk    of    physical       injury      posed      by    the   fourth-degree     burglary

                                               11
offense       is   roughly      similar    to    the     risk      posed   by    generic

burglary.

       The Supreme Court has explained that the risk of physical

injury     associated        with   generic       burglary         comes   “from    the

possibility of a face-to-face confrontation between the burglar

and a third party -- whether an occupant, a police officer, or a

bystander --          who comes to investigate.”                James, 550 U.S. at

203.      The      government    contends       that    the   same    possibility     of

confrontation is present during the commission of fourth-degree

burglary       and    that   the    potential          risk   of     physical    injury

associated with fourth-degree burglary is thus roughly the same

as that associated with generic burglary.

       Martin, however, contends that the risk of physical injury

during    a    generic   burglary     comes      from     the   burglar’s       specific

intent to commit a crime.                 See Taylor, 495 U.S. at 588 (“The

fact that an offender enters a building to commit a crime often

creates the possibility of a violent confrontation between the

offender and an occupant, caretaker, or some other person who

comes to investigate.” (emphasis added)).                     Because fourth-degree

burglary does not require an intent to commit a crime at the

time of the unlawful entry, Martin argues that there is less

risk of violent confrontation.

       While Martin’s argument is not without force, we agree with

the government the potential risk of physical injury arising

                                           12
from the commission of fourth-degree burglary under Md. Code

Ann., Crim. Law § 6-205(a) is comparable to that arising from

the commission of generic burglary.         Critical to this conclusion

is the fact that § 6-205(a) requires entry into a dwelling.              As

this court observed when considering whether the substantively

identical statutory predecessor to § 6-205(a) was a crime of

violence, dwellings – unlike “‘storehouses’” -- are “likely to

be occupied.”    United States v. Custis, 988 F.2d 1355, 1363 (4th

Cir. 1993), cert. granted on other grounds, 510 U.S. 913 (1993),

and   aff’d,   511   U.S.   485   (1994).   And   because   dwellings   are

likely to be occupied, we concluded in Custis -- even though the

statute lacked the intent-to-commit-a-crime element -- that the

crime of breaking and entering the dwelling house of another

creates “a substantial risk of confrontation.”              Id. at 1363. 2

This risk of confrontation is precisely the same risk that makes

generic burglary a dangerous crime.          See Sykes, 131 S. Ct. at

      2
       The Custis court held that a conviction for attempted
breaking and entering of a dwelling under Md. Code Ann. art. 27,
§ 31A (repealed 1994) was a crime of violence under the ACCA’s
residual clause. Because the Custis court’s analysis of the
residual-clause issue did not follow the approach now dictated
by the Supreme Court’s later-decided opinions in James, Begay,
and Sykes, Custis’ ultimate crime-of-violence determination is
no longer binding.    See, e.g., United States v. Prince-Oyibo,
320 F.3d 494, 498 (4th Cir. 2003) (“Absent an en banc overruling
or a superseding contrary decision of the Supreme Court, we, as
a circuit panel, are bound by [earlier circuit precedent].”).
Those later-decided opinions, however, do not undermine the
Custis court’s analysis of the nature of, and the risks inherent
in, the underlying crime.


                                      13
2273 (“Burglary is dangerous because it can end in confrontation

leading to violence.”); James, 550 U.S. at 211 (“The risk of

physical injury in [generic burglary] occurs when there is a

confrontation between the criminal and another person, whether

an   occupant     of    the     structure,             a    law    enforcement        officer        or

security guard, or someone else.”).

      Martin      argues,      however,          that       an     offender         who    enters     a

dwelling     without      a    contemporaneous               intent      to    commit       a    crime

would be less likely to respond violently to the discovery of

his presence.           Even if we accept that argument as true, it

typically     will     not     be   apparent           to     the      discovering         homeowner

whether an intruder harbors an additional intent to commit an

additional crime, and the homeowner’s response to discovering an

intruder will likely be the same whether or not the intruder

harbors     the   additional        intent.                See    James,      550    U.S.       at   211

(noting that homeowner angered by an attempted burglary “may

give chase, and a violent encounter may ensue”).                                          When faced

with an angry homeowner taking protective measures, or a police

officer     responding         to      a        call       about       suspicious          activity,

intruders – even those without the specific intent to commit a

crime   –   may    well       resort       to    violence         in    an    effort       to    avoid

apprehension.          As the Sixth Circuit has explained, the risk of

physical injury inherent in such confrontations “lies not only

in the intruder’s intent, but in their volatility.                                         People do

                                                 14
unpredictable things when they unexpectedly encounter burglars

in their homes.       The burglars often reciprocate.                 The result is

confrontations that present a serious risk of physical injury

regardless of the burglar’s initial intent.”                    United States v.

Skipper,    552   F.3d   489,    493    (6th    Cir.   2009)    (emphasis      added;

citation omitted).

     Under these circumstances, and given this country’s strong

tradition    of   respecting      the    sanctity      of   the    home      and   the

homeowner’s right to exclude others therefrom, we simply cannot

conclude that the absence of the intent to commit a crime makes

the breaking-and-entering at issue here significantly less risky

than generic burglary.          Because the same risk of confrontation

and resulting physical injury associated with generic burglary

arises under the elements of the crime for which Martin was

convicted, we believe that the risk of physical injury posed by

Martin’s offense is comparable to the risk of physical injury

posed by generic burglary.             See United States v. Hampton, 585

F.3d 1033, 1043 (7th Cir. 2009) (concluding that residential

entry under Indiana law, which does not include a felonious-

intent element, “is similar in risk to the enumerated offense of

burglary    because    both    create    a    substantial      risk   that    if   the

offender is confronted by someone inside the home, violence will

ensue”);    Skipper,     552    F.3d    at     493   (conviction      under   Ohio’s

fourth-degree burglary statute, which does not require felonious

                                         15
intent at time of entry, is a violent felony under the residual

clause of U.S.S.G. § 4B1.2(a)(2)).

                           B.     Similar In Kind

       Our conclusion that fourth-degree burglary of a dwelling

and generic burglary have similar degrees of risk does not end

our inquiry, as Begay requires that the prior conviction must

also be similar in kind to the enumerated crimes.                          See Begay,

553 U.S. at 143.

       Four crimes are enumerated in the text of § 4B1.2(a)(2) --

burglary of a dwelling, arson, extortion, and crimes involving

the use of explosives.          The commentary to § 4B1.2(a) “adds six

crimes to the list of example crimes for Guidelines cases --

murder, manslaughter, kidnapping, aggravated assault, forcible

sex offenses, and robbery.”         United States v. Peterson, 629 F.3d

432,   439   (4th   Cir.   2011);   see       U.S.S.G.       §    4B1.2(a)      cmt.    1.

Because   this   “enlarged      array    of       example    crimes”      all   involve

conduct   that   is   properly    viewed          as   purposeful,     violent,        and

aggressive,    Peterson,    629   F.3d       at    439,     the   Begay    inquiry      as

applied to the Guidelines requires “that a qualifying predicate

offense under § 4B1.2(a) must also be purposeful, violent, and

aggressive,” id.

       To be purposeful, violent, and aggressive, a crime must

have a mens rea of at least recklessness; crimes that can be

committed through negligent conduct do not satisfy the Begay

                                        16
inquiry.      See id. at 439-40 (applying Begay to conclude that

involuntary manslaughter under North Carolina law is not a crime

of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2)

because the crime can be committed through negligent conduct);

United    States    v.    Rivers,    595   F.3d   558,    565   (4th   Cir.    2010)

(South Carolina blue-light statute not purposeful, aggressive,

and     violent     under    Begay     because    the      statute     “explicitly

criminalizes a broad swath of unintentional conduct”).                     Relying

on these principles, Martin argues that a violation of § 6-

205(a) cannot be characterized as purposeful because the statute

can be violated by negligent conduct.             We agree.

      As Maryland’s highest court has made clear, the statute at

issue in this case requires proof of the defendant’s “general

criminal intent to break and enter” the dwelling.                      Warfield v.

State, 554 A.2d 1238, 1250 (Md. 1989) (considering § 6-205(a)’s

substantively identical statutory predecessor).                      Thus, “to be

culpable” under the statute, the defendant must have entered the

dwelling “with an awareness that it was unwarranted -- lacking

authority, license, privilege, invitation, or legality.”                      Id. at

1251.

      The Warfield court explained that the statute’s knowledge

requirement       “is    designed    primarily    to     exclude   from   criminal

liability both the inadvertent trespasser and the trespasser who

believes that he has received an express or implied permission

                                           17
to enter or remain.”              Id. at 1250 (quoting Model Penal Code §

221.2 (1985)).           Accordingly, it is an affirmative defense to a §

6-205(a) charge “if the actor reasonably believed that the owner

of the premises would have licensed him to enter.”                           Green v.

State, 705 A.2d 133, 139 (Md. Ct. Spec. App. 1998) (internal

quotation marks and alterations omitted)); see also Warfield,

553 A.2d at 1251 (“To make culpable the inadvertent trespasser

and the trespasser who entertains a reasonable belief that his

conduct         was      proper     would         be     unreasonable,      illogical,

inconsistent with common sense, and contrary to the interests of

justice.” (emphasis added)).

     Because           the   defense      requires       a   reasonable    belief    of

permission to enter the dwelling, a defendant who unreasonably

believed that he had permission to enter would be guilty under §

6-205(a).        That is, a defendant who reasonably believed that he

had permission to enter would not have the awareness that his

entry     was     unwarranted,       while        a    defendant   who    unreasonably

believed he had permission would be deemed to be aware that his

entry was unwarranted.              It is therefore clear that a conviction

under     §     6-205(a)      may    be    based       on    negligent    rather    than

intentional           conduct.    See Bane v. State, 533 A.2d 309, 317 (Md.

Ct. Spec. App. 1987) (Because “breaking and entering involves no

felonious or larcenous intent, it is a crime of general intent

that includes within its scope a variety of acts, including some

                                             18
that are reckless or negligent.                   A conviction for that offense

may result either from a well-planned scheme-or merely rash,

impetuous conduct of a defendant.” (citation omitted)).                                   And

because      the      statute   may   be   violated    by   negligent        conduct,       a

violation        of    §   6-205(a)   is   not     purposeful         and   thus    is    not

similar in kind to the Guidelines’ enumerated crimes.                              Martin’s

2009 conviction under § 6-205(a) therefore cannot be treated as

a crime of violence under the residual clause of U.S.S.G. §

4B1.2(a)(2).          See Peterson, 629 F.3d at 439; Rivers, 595 F.3d at

565.

                                           IV.

       Although we conclude that Md. Code Ann., Crim. Law § 6-

205(a)      proscribes      conduct    that      presents   a    degree      of    risk    of

physical injury that is roughly similar to the risk of injury

posed       by   generic     burglary,     the    statute       can    be   violated       by

negligent conduct and therefore is not similar in kind to the

offenses enumerated in § 4B1.2 of the Sentencing Guidelines.

The district court therefore erred by treating Martin’s 2009

conviction for violating § 6-205(a) as a crime of violence under

the residual clause of U.S.S.G. § 4B1.2(a)(2). 3                        Accordingly, we


        3
        Martin also contends that the residual clause is
unconstitutionally vague.   That argument, however, has already
been rejected by this court and by the Supreme Court. See Sykes
v. United States, 131 S. Ct. 2267, 2277 (2011) (Although the
“general and qualitative” nature of the residual clause “may at
(Continued)
                                            19
hereby   vacate   Martin’s   sentence   and   remand   for   resentencing

consistent with this opinion.

                                                  VACATED AND REMANDED




times be . . . difficult for courts to implement,” the residual
clause “states an intelligible principle and provides guidance
that allows a person to conform his or her conduct to the law.”
(internal quotation marks omitted)); United States v. Hudson,
673 F.3d 263, 268–69 (4th Cir.) (“[T]he Supreme Court has
consistently declined to find the residual clause void for
vagueness.”), cert. denied, 133 S. Ct. 207 (2012).


                                  20
DIAZ, Circuit Judge, concurring:

      This        case   raises       a     vexing        question     regarding       the

application of the crime of violence enhancement found in the

Guidelines:        To what extent does Begay’s 1 “similar in kind” test

for analyzing offenses under the residual clause survive Sykes

v. United States, 131 S. Ct. 2267 (2011)? 2                     Specifically, would

the   Supreme       Court    apply        that    test     in   determining     whether

Martin’s fourth degree burglary conviction under Maryland law

qualifies as a crime of violence?                        Or would the Court again

change course? 3

      Were    I    writing   on   a       cleaner    slate,     I    would   stop    after

applying the “degree of risk” test the Chief Judge posits in

Part III.A of his opinion and find that Martin’s fourth degree

burglary     conviction      is   for       a     crime    of   violence     under    the

residual clause.         This is so because the offense poses a risk of

      1
          Begay v. United States, 553 U.S. 137 (2008).
      2
        As the Chief Judge notes, “[w]e rely on precedents
addressing whether an offense is a crime of violence under the
Guidelines interchangeably with precedents evaluating whether an
offense constitutes a violent felony under the Armed Career
Criminal Act.”   See United States v. Carthorne, 726 F.3d 503,
511 n.6 (4th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014)
(internal quotation marks omitted).
      3
       The Supreme Court has granted certiorari in United States
v. Johnson, 526 F. App’x 708 (8th Cir. 2013) (unpublished), on
the issue of whether possession of a short-barreled shotgun is a
violent felony under the Armed Career Criminal Act.      Perhaps
this case will give the Court an opportunity to clarify Begay’s
continued vitality after Sykes.


                                             21
physical       injury     comparable        to     the        risk    posed       by     generic

burglary.       See James v. United States, 550 U.S. 192, 203 (2007).

       But, as the Chief Judge explains, it appears we must also

apply Begay’s teaching here, which requires that we consider

whether the offense conduct is “similar in kind” to the residual

clause’s       enumerated      offenses--i.e.,            whether        the      offense     is

“purposeful, violent, and aggressive.”                        See 553 U.S. at 143-45.

Because negligent conduct is all that is needed in Maryland to

convict       someone    for     breaking        and    entering        the     dwelling      of

another,      the    crime     does   not    always           involve    the      purposeful,

violent,       and     aggressive       conduct         that     is     typical        of    the

Guidelines’ enumerated crimes.                   Thus, I am compelled to agree

with    the    Chief     Judge    that    Martin’s            sentence      was    improperly

enhanced.

       “[T]o put it mildly,” the residual clause is “not a model

of     clarity.”         See     James,     550        U.S.     at    217      (Scalia,       J.,

dissenting).            The    clause     “is      nearly        impossible         to      apply

consistently,”          and    the    Supreme          Court’s       jurisprudence           “has

created numerous splits among the lower federal courts.”                                      See

Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J.,

concurring in the judgment); cf. United States v. Vann, 660 F.3d

771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At

the end of the day, it may well be that Justice Scalia is right:



                                            22
that the residual clause of the Armed Career Criminal Act is

unconstitutionally vague.”)

     The Supreme Court has struggled mightily to make sense of

this sphinx-like provision, but the clause remains an elusive

target.      We   are    told    that    a    prior   conviction   triggers    the

sentencing enhancement when “the risk posed by [the offense at

issue] is comparable to that posed by its closest analog among

the enumerated offenses.”          See James, 550 U.S. at 203 (majority

opinion).    But, at least in some cases, the offense must also be

“roughly similar, in kind as well as in degree of risk posed, to

the [enumerated] examples.”             See Begay, 553 U.S. at 143.         To be

roughly similar in kind, the crime must be “purposeful, violent,

and aggressive.” See id. at 145.               Fear not though, because “[i]n

many cases the purposeful, violent, and aggressive inquiry will

be redundant with the inquiry into risk.”                  See Sykes, 131 S. Ct.

at 2275.     As Justice Scalia noted in dissent in Sykes, however,

why the inquiry will often be redundant, and when it will not

be, “are not entirely clear.” 4           See 131 S. Ct. at 2285.

     To     further      complicate      matters,      the     Court   in   Sykes

emphasized    that      “Begay   involved      a   crime   [(driving   under   the

     4
       In her separate dissent, Justice Kagan (joined by Justice
Ginsberg)   suggested  that   “[the  purposeful,   violent,  and
aggressive test] will make a resurgence--that it will be
declared non-redundant--the next time the Court considers a
crime, whether intentional or not, that involves risk of injury
but not aggression or violence.”). See id. at 2289 n.1.


                                         23
influence)]     akin     to    strict     liability,    negligence,     and

recklessness crimes; and the purposeful, violent, and aggressive

formulation was used in that case to explain the result.”              Id.

at 2276 (majority opinion).             That statement, however, leaves

open a question implicated here--whether Begay applies to all

strict liability, recklessness, and negligence offenses.

     I am not absolutely confident that the Court would actually

apply Begay in this instance, but neither can I discount the

possibility.    I therefore join the Chief Judge’s opinion. 5

     Beyond    this    case,   however,    “[t]he   Court’s   ever-evolving

interpretation of the residual clause will keep defendants and

judges guessing for years to come.”            Id. at 2287 (Scalia, J.,

dissenting).    I urge Congress or the Court to shed light on this

“black hole of confusion and uncertainty.”             See Vann, 660 F.3d

at 787 (Agee, J., concurring).




     5
       I do     so notwithstanding Judge O’Grady’s fine dissent,
which does     not lack for persuasive force.         His analysis
confirms the    substantial challenge that judges face in deciding
when a prior   conviction is for a crime of violence.


                                     24
O’GRADY, District Judge, dissenting:

        In    this    case   we   are    called     to    decide    whether      Appellant

Romelus Martin properly received a sentence enhancement under

U.S.S.G. § 2K2.1(a)(2)             for     having    two    prior      convictions        for

crimes of violence as defined by U.S.S.G. § 4B1.2. Specifically,

Martin argues that the district court’s categorization of his

2009 Maryland conviction for fourth degree burglary as a “crime

of   violence”         was      improper     because       it   does     not     proscribe

“purposeful, violent, and aggressive” conduct that is similar in

kind to the offenses enumerated in § 4B1.2(a)(2). As Judge Diaz

noted,        the     federal     courts     of     appeals     have     struggled        to

consistently apply the residual clause in the wake of Begay and

Sykes. The extent to which Begay’s “similar in kind” requirement

survived Sykes remains highly uncertain, and I join in Judge

Diaz’s call for clarity from Congress or the Court. 1 However,

because I find that our precedents and those of the Supreme

Court        compel    the   conclusion       that       breaking      and     entering    a

dwelling is a “crime of violence” under § 4B1.2, I respectfully

dissent and would affirm the sentence imposed by the district

court.


        1
       The Supreme Court will have an opportunity to address the
status of Begay next term in United States v. Johnson, 526 F.
App’x 708 (8th Cir. 2013), in which certiorari was recently
granted on the issue of whether possession of a short-barreled
shotgun is a violent felony under the ACCA.


                                             25
                                                 I.

       I am in agreement, as is Judge Diaz, with Section III(A) of

the majority opinion, in which the Chief Judge deftly analyzes

this       case   under    the     “degree       of        risk”   test        utilized       by   the

Supreme Court in James and Sykes. In 2009, Martin was convicted

in   Maryland        of    “break[ing]       and           enter[ing]       the       dwelling       of

another”      in    violation      of   Maryland            Code       Ann.,    Crim.      Law     § 6-

205(a). Because this crime creates “the possibility of a face-

to-face confrontation between the burglar and a third party,”

James v. United States, 550 U.S. 192, 203 (2007), it poses a

risk of physical injury comparable to the risk arising from a

generic, Taylor           burglary,     even          in    the    absence       of    a     specific

intent element. Therefore, under the familiar “degree of risk”

analysis, each of us agrees that Maryland fourth degree burglary

of     a    dwelling      constitutes        a        crime       of     violence       under       the

Guidelines.

       In Begay v. United States, 553 U.S. 137 (2008), the Supreme

Court       added    a    layer    to   the       “degree          of     risk”       test    as     it

considered         whether     a   prior   conviction              for    driving       under       the

influence was a crime of violence under the § 4B1.2’s residual

clause. Although the Court found that DUI presents a serious

potential         risk    of   physical    injury           (and       therefore       might       have

satisfied the James “degree of risk” test), it nonetheless held

that DUI did not qualify as a crime of violence. The Court

                                                 26
reasoned       that   unlike     the    crimes        enumerated       in     § 4B1.2(a)(2),

which all “typically involve purposeful, violent, and aggressive

conduct,”       driving       under    the    influence     is     a    strict       liability

crime.    Because       DUI    does    not     require     “any    criminal         intent    at

all,”     553    U.S.     at    145,     the      Court    found       that    it    was     not

sufficiently “similar in kind” to the enumerated offenses to

constitute a crime of violence under the Guidelines. Id. at 143

(punctuation omitted).

      Three years later in Sykes v. United States, 131 S. Ct.

2267 (2011), the Court revisited the residual clause, holding

that a conviction for knowingly or intentionally “flee[ing] from

a   law   enforcement         officer”       in   a   vehicle     was       categorically      a

crime of violence under 18 U.S.C. § 924(e). 2 In Sykes, the Court

retreated from Begay’s “similar in kind” requirement and found

that a “degree of risk” analysis alone was sufficient to resolve

the case. Writing for the majority, Justice Kennedy stressed

that Begay was “[t]he sole decision of this Court concerning the

reach     of    ACCA’s    residual       clause       in   which       risk    was    not    the

dispositive factor,” and observed that the phrase “purposeful,

violent, and aggressive” had “no precise textual link to the

      2
       As the Chief Judge notes, the definition of “crime of
violence” in this circuit is informed interchangeably by cases
decided under the Guidelines (U.S.S.G. § 4B1.2(a)(2)) and under
nearly identical language in the Armed Career Criminal Act (18
U.S.C. § 924(e)). See United States v. Mobley, 687 F.3d 625, 628
n.3 (4th Cir. 2012), cert. denied, 133 S. Ct. 888 (2013).


                                               27
residual clause.” 131 S. Ct. at 2275. The majority explained

that in contrast to Begay, in which the Court dealt with DUI (“a

crime    akin     to     strict    liability,         negligence,         and    recklessness

crimes” that does not require any criminal intent), the Indiana

statute at issue in Sykes had “a stringent mens rea requirement”

of knowledge or intent. Id. at 2275–76. The Court thus found

that because the vehicular flight statute proscribed inherently

risky conduct and required a criminal mens rea, the “purposeful,

violent,     and       aggressive”       test     that     was     used    to    explain      the

result in Begay had no bearing on the case. Id. (“As between the

two inquiries, risk levels provide a categorical and manageable

standard that suffices to resolve the case before us.”).

       In   the    aftermath        of   Sykes,       the     courts      of    appeals       have

varied in their treatment of Begay’s “similar in kind” test.

Some    courts     have     suggested       that     Begay       may   not      have    survived

Sykes at all. See, e.g., United States v. Sandoval, 696 F.3d

1011,    1016–17       n.   8    (10th     Cir.      2012)    (“[I]t      is     hard    to    say

whether the Begay test survived Sykes . . . .”). See also United

States v. Honeycutt, 2011 WL 2471024, at *4 (S.D. W. Va. 2011)

(“Even      as      to      such     ‘strict         liability,           negligence,          and

recklessness crimes,’ however, it is far from clear that the

Supreme     Court      is   still    committed        to     the    Begay       test.”).      Most

courts, as observed by the Chief Judge, have continued to apply

Begay’s     “similar        in     kind”    test       only      to    strict      liability,

                                                28
negligence,   and    recklessness       crimes.    See    United     States     v.

Chitwood, 676 F.3d 971, 979 (11th Cir. 2012) (collecting cases).

Because I find that the Fourth Circuit has taken that path and

that burglary of a dwelling under § 6-205(a) is not a strict

liability, negligence, or recklessness crime, I must depart from

the conclusion reached by the majority. 3

                                       II.

     Although this circuit has continued to make reference to

Begay’s “similar in kind” test in residual clause cases after

Sykes, we have not uniformly (or even consistently) treated it

as a counterpart to the “degree of risk” test. In our most

recent   residual    clause    case,     this     Court   held     that    “[t]he

appropriate   ‘analysis       should    focus     on   the   level    of      risk

associated    with     the      previous        offense      of     conviction,

notwithstanding the purposeful, violent, and aggressive conduct

stressed by the Begay Court in the context of a strict liability

offense.’” United States v. Hemingway, 734 F.3d 323, 338 (4th

Cir. 2013) (emphasis added) (quoting United States v. Vann, 660

F.3d 771, 780 (4th Cir. 2011) (King, J., concurring)). The Court


     3
       However, even if Begay survived Sykes in its entirety and
continues to apply in all residual clause cases in this circuit,
I would still find that under Supreme Court and Fourth Circuit
precedent, Maryland fourth degree burglary of a dwelling is
“purposeful, violent, and aggressive” and therefore a “crime of
violence” under Begay’s “similar in kind” analysis. See infra
Part III.


                                       29
went on to explain that “[i]n short, Sykes makes clear that

Begay       did    not     substitute   the     ‘purposeful,       violent,     and

aggressive’ inquiry for the analysis of risk that is already

identified in the residual clause.” Id. In another 2013 case,

United States v. Carthorne, 726 F.3d 503, 513–15 (4th Cir.), we

also       remained      singularly   focused    on   the   “degree    of     risk”

analysis, only once citing to Begay in a footnote. 4 See also

United States v. Davis, 689 F.3d 349, 357–58 (4th Cir. 2012)

(reciting         Begay’s     “purposeful,      violent,     and      aggressive”

language, but analyzing the statute based on the “dispositive

question”: “whether such conduct presents a serious potential

risk of physical injury to another”).

       In other post-Sykes residual clause cases, this Court has

sidestepped the “similar in kind” test altogether. For example,

in United States v. Hudson, our analysis revolved only around

the “degree of risk” approach without any consideration of the

“similar      in    kind”    or   “purposeful,    violent,     and    aggressive”

tests. 673 F.3d 263, 266–69 (4th Cir. 2012). See also United


       4
       After resolving the case exclusively under the “degree of
risk” analysis, the Court referred briefly to the “purposeful,
violent, and aggressive” test only to observe that it would have
reached the same conclusion under that standard. 726 F.3d at 515
n.12. The only case the Carthorne Court cited for the
application of the Begay test in our circuit was United States
v. Thornton, a pre-Sykes case in which we applied Begay‘s
reasoning to the strict liability offense of statutory rape. 554
F.3d 443, 448 (4th Cir. 2009).


                                         30
States v. Tillery, 702 F.3d 170, 176–77 (4th Cir. 2012) (holding

that    the      inherent      risk    of     physical   injury      that      results      from

eluding         police    in     a    motor    vehicle       renders     it     a    crime    of

violence, without any mention of Begay). There appears to be

only one reported post-Sykes case in which this circuit employed

both the “degree of risk” and “similar in kind” analyses, and

that       case       supports       the    conclusion        that      crimes       requiring

knowledge (as § 6-205(a) does) are “purposeful” under Begay. See

United States v. Mobley, 687 F.3d 625, 631 (4th Cir. 2012).

       Ultimately, as Judge Wilkinson stated in United States v.

Vann: “Sykes clarifies that the risk of physical harm need not

necessarily           arise    from    ‘purposeful,          violent,    and       aggressive’

conduct to qualify as an ACCA predicate.” 660 F.3d 771, 804 (4th

Cir. 2011) (en banc) (Wilkinson, J., concurring). The mention of

the Begay test in some of our post-Sykes decisions need not be

taken      as    an    indication      that     we    have    continued       to    apply     the

“similar        in    kind”    requirement       to    all     residual       clause    cases.

Rather, while we recognize the continued relevance of Begay in

some cases, we have not required that crimes of violence be

“purposeful,          violent,       and    aggressive”       outside     the       context    of

strict liability, negligence, and recklessness offenses. 5 Because


       5
       As we have focused almost exclusively on the “degree of
risk” test in post-Sykes cases, it is unclear whether Begay’s
“similar in kind” requirement truly survives Sykes at all in
(Continued)
                                                31
Martin’s Maryland conviction for fourth degree burglary requires

a mens rea of knowledge, the Begay test does not apply and the

degree of risk analysis, as it was in Sykes, is sufficient to

resolve this case. However, even if Begay did apply to this

statute, our precedents compel the conclusion that breaking and

entering   a    dwelling   is   typically   “purposeful,    violent,    and

aggressive,” and therefore is similar in kind to the offenses

enumerated in § 4B1.2(a)(2).

                                   III.

     Although there is no specific intent requirement in § 6-

205(a), Maryland fourth degree burglary is a malum in se crime

that does require general criminal intent. Green v. State, 705

A.2d 133, 138 (Md. Ct. Spec. App. 1998). Specifically, Maryland

courts have made clear that commission of fourth degree burglary

under § 6-205(a) requires knowing unprivileged entry into the

dwelling of another. One is therefore not culpable under the

statute without “an awareness that [the entry] was unwarranted -

lacking authority, license, privilege, invitation, or legality.”

Warfield v. State, 554 A.2d 1238, 1251 (Md. 1989). It is not

enough   that   a   defendant   intentionally   breaks     into   another’s



this circuit. However, for purposes of this case I assume that
in analyzing a strict liability, negligence, or recklessness
offense, this circuit would require that the statute “typically
involve purposeful, violent, and aggressive conduct” as set
forth in Begay.


                                    32
dwelling; he must also be “aware of the fact that he is making

an unwarranted intrusion.” Id. at 1250. The Warfield court’s

approving citation to the Model Penal Code confirms that the

mens rea required for commission of § 6-205(a) is “knowledge.”

Id. (clarifying that the knowledge requirement is designed “to

exclude from criminal liability both the inadvertent trespasser

and the trespasser who believes that he has received an express

or implied permission to enter”) (quoting 2 Model Penal Code &

Commentaries       § 221.2,   Comment    2(a),   at   88    (1980))       (emphasis

added).

     In Herd v. State, the Maryland Court of Special Appeals

drove home the statute’s knowledge requirement. 724 A.2d 693

(Md. Ct. Spec. App. 1999). After considering Warfield and Green,

the court emphasized that although fourth degree burglary is a

general intent crime, “the mens rea must, indeed, be criminal.”

Id. at 700. Without a knowledge requirement, the statute would

“ensnare    with    undiscriminating     tentacles    all    sorts    of     actors

whom the Legislature never intended to treat as criminal.” Id.

at   701.   It     is   therefore   clear    that     § 6-205(a)          does   not

criminalize      accidental    or   negligent     acts,      and     is     readily

distinguishable from statutes that our circuit has described as




                                        33
“explicitly       criminalizing       a    broad    swath      of    unintentional

conduct.” 6

     Because      breaking     and    entering     under     § 6-205(a)     must   be

knowing, the Maryland courts have recognized that “a reasonable

belief that the trespass is authorized, licensed, or privileged

is a complete defense to the crime.” Herd, 724 A.2d at 701. See

also Green, 705 A.2d at 139. Although the Chief Judge rightly

notes that a reasonable mistake is a defense to § 6-205(a), it

does not necessarily follow that the presence of such a defense

(and conversely, the absence of a defense when a mistake is

unreasonable) renders § 6-205(a) a mere negligence crime.

     In    the    criminal     law,   it   is    generally     the   case   that    an

honest and reasonable mistake of fact is a defense to a general

intent    crime    when   it   negates     the    mens   rea   required     for    the

offense. Warfield, 554 A.2d at 1252; 21 Am. Jur. 2d Criminal Law

§ 153. On the other hand, an honest but unreasonable mistake is

often not a defense, or is only a defense to a specific intent

crime. Id. 7 But a refusal to recognize unreasonable mistakes as


     6
       United States v. Rivers, 595 F.3d 558, 565 (4th Cir. 2010)
(holding that South Carolina’s blue light statute was not a
crime of violence under Begay).
     7
       It should be noted that there is significant debate over
whether “unreasonable” mistakes should be further classified as
either “negligent” or “reckless” in order to determine whether
they provide a defense to a given crime. See generally 1 Crim.
L. Def. § 62 (2013). Because mistakes under § 6-205(a) (and
(Continued)
                                           34
exculpatory         does    not    effectively        reduce     the    mens     rea    of   any

general intent crime to “negligence.” Indeed, the Green court

saw    no    conflict       between      careful      adherence        to   “the   knowledge

requirement” and excusal only of “the inadvertent trespasser and

the    trespasser          who    entertains     a    reasonable        belief     that      his

conduct was proper.” 705 A.2d at 139 (emphasis added). As with

other       statutes       requiring      knowledge,        the     mens     rea       persists

despite       the     fact        that    a     mistake      with       respect        to    the

circumstances         surrounding         the    crime     may    not       be   exculpatory

unless it was made reasonably.

       Residual clause cases from the Supreme Court and from this

circuit confirm that the existence of only a reasonable mistake

defense does not compel the conclusion that crimes requiring

“knowledge” should be treated as negligence crimes. Perhaps the

best       example    is    Sykes     itself.        The   Indiana      vehicular       flight

statute the Court considered in Sykes, Ind. Code § 35-44-3-3 8,

provided that a person may not “knowingly or intentionally” flee

from a law enforcement officer in a vehicle after the officer

has identified himself and ordered the person to stop. As the



under the other statutes discussed infra) are only referred to
as “reasonable” or not, this discussion (though it raises an
interesting issue) does not affect the outcome in the present
case.
       8
       Since repealed and replaced by the substantively identical
§ 35-44.1-3-1.


                                                35
crime,    on     its   face,   could     be    committed   either    knowingly    or

intentionally, the Court specifically noted that Indiana courts

have interpreted § 35-44-3-3 to require a mens rea of knowledge.

131 S. Ct. 2267, 2271 (2011) (citing Woodward v. State, 770

N.E.2d 897, 900–01 (Ind. Ct. App. 2002)).

       Importantly, Indiana had codified in its criminal law a

general     defense      based    on     mistake—specifically,       “[i]t   is     a

defense that the person who engaged in the prohibited conduct

was reasonably mistaken about a matter of fact, if the mistake

negates the culpability required for commission of the offense.”

Ind.     Code.    § 35-41-3-7.      It    is    therefore    clear    that   while

violation of the statute at issue in Sykes required knowledge,

an honest but unreasonable mistake of fact would not have been

exculpatory. The Supreme Court nonetheless found that because

the    statute     had    “a     stringent      mens   rea   requirement,”        its

violation was predicated on purposeful conduct and the degree of

risk analysis was sufficient. 131 S. Ct. at 2275.

       The Fourth Circuit reached the same result in one of our

most recent residual clause cases. In United States v. Tillery,

this Court held that eluding police in a vehicle was a crime of

violence under the Guidelines. 702 F.3d 170. Under the Virginia

statute at issue, it is a violation of the law for a person,

having received a visible or audible signal to stop from a law

enforcement officer, to drive in willful and wanton disregard of

                                          36
such signal or to attempt to elude law enforcement by any other

means.      Va.    Code    Ann.      § 46.2-817(A).              The   statute     specifically

provides      that        it    is     “an       affirmative           defense . . . if           the

defendant shows he reasonably believed he was being pursued by a

person      other    than       a    law-enforcement              officer.”       Id.    (emphasis

added).      Despite       the       absence      of     a       defense    for    unreasonable

mistakes, this Court used the degree of risk analysis and held

that eluding police was a crime of violence. 702 F.3d at 176–77.

      Although any of the above crimes (vehicular flight, eluding

police,      and     breaking         and     entering           under     § 6-205(a))       could

technically         be    committed          despite         a    negligent       mistake,        our

precedents demonstrate that the existence of a defense only for

reasonable mistakes does not undermine the mens rea required to

commit the underlying crimes. It follows that because Maryland’s

fourth degree burglary is a knowledge crime, the Begay test is

unnecessary        and    the       degree       of    risk      analysis    is    dispositive.

However, even if Begay’s “similar in kind” analysis were applied

in   this    case,       § 6-205(a)         is    a    crime      of   violence         because    it

typically requires a knowing, affirmative criminal act.

      Despite Begay’s use of the word “purposeful,” the “similar

in kind” analysis does not require that all crimes of violence




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have a mens rea of “intent” or “purpose.” 9 As noted above, in

this   Court’s       only   true        application        of    Begay   since   Sykes,     we

specifically found that possession of a shank in prison was a

crime of violence because it required “proof that the inmate

knowingly         possessed       the     prohibited        object,”      and    therefore

involved “’purposeful’ conduct.” United States v. Mobley, 687

F.3d 625, 631 (4th Cir. 2012). Thus, even under Begay, we have

held       that   crimes    requiring          a    mens    rea    of    “knowledge”      are

“purposeful”        (and    for    the    reasons       above,     the   existence     of   a

reasonable mistake of fact defense does not alter this result).

       Finally, it must be remembered that in determining whether

a statute is a “crime of violence” under either James, Begay, or

Sykes, we are required to look to the manner in which the crime

is typically committed. In James, the Supreme Court stressed

that while one could “imagine a situation in which attempted

burglary might not pose a realistic risk,” the ACCA is based on

“probabilistic        concepts”          and    “does      not    require    metaphysical

certainty.” 550 U.S. 192, 207–08 (2007). See also United States


       9
       The Court’s general use of the word “purposeful” in Begay
necessarily created confusion with “purposeful” as used as a
level of culpability in the Model Penal Code. On its own terms
and as interpreted by this circuit, Begay does not require that
all crimes of violence have a mens rea of “intent.” Rather,
“purposeful” as used in Begay distinguished crimes whose risk of
harm stems from active, criminal conduct from those in which
negligent, accidental, or even faultless conduct typically
creates the risk of harm.


                                               38
v. Carthorne, 726 F.3d 503, 507 (4th Cir. 2013) (examining the

risk of injury “in the usual case”); United States v. Foster,

674 F.3d 391, 394–95 (4th Cir. 2012) (Wilkinson, J., concurring

in    the   denial       of     rehearing      en     banc)      (explaining          that    to

“hypothesize unusual cases” is “at odds with the simple common

sense on which the Supreme Court has relied in ACCA cases”).

Most importantly, Begay itself only requires that a crime of

violence         “typically        involve          purposeful,         ‘violent,’           and

‘aggressive’           conduct”;      there    has        never     been      a       need    to

demonstrate that those factors are present in every conceivable

case. 10 The majority correctly notes that in a technical sense,

because     an      unreasonable      mistake       of    fact     is   not       a   defense,

violation      of      § 6-205(a)     “does    not       always”   involve        purposeful

conduct and “may be based on” negligent or reckless conduct. But

I submit that while breaking and entering a dwelling might, in

some rare cases, be committed with a lower level of culpability,

the   manner      in    which    it   is   typically        committed      renders       it    a

“crime of violence” under the Guidelines.

      10
        If there is any doubt that a conviction under § 6-205(a)
rarely results from negligent conduct, the language of the
Maryland courts is instructive. In Herd v. State, the Maryland
Court of Special Appeals referred to the mistake defense in
fourth degree burglary cases as “relatively rare and essentially
esoteric.” 724 A.2d 693, 704 (Md. Ct. Spec. App. 1999). In
explaining the burden of proof, the court went on to describe
such   defenses  as   “arcane”  and  “aris[ing]  only   on  rare
occasions.” Id. at 703.



                                              39
                                              IV.

       As     Judge    Diaz    observed,         the    proper      reach    of    § 4B1.2’s

residual clause (and the residual clause of the ACCA) is not a

model of clarity. In light of the divergent conclusions being

reached by the courts of appeals (and the frequency with which

the   residual        clause   is     applied),        it    is    evident    that      further

guidance      from     Congress      or    the   Court       is    necessary.      My    fellow

panelists and I are in agreement that because Maryland fourth

degree      burglary     requires         knowingly     breaking       and    entering      the

dwelling of another, it creates a high risk of confrontation and

therefore poses the same level of risk as generic burglary. In

my    view,    we     need    not     look    further.       But    even     under      Begay’s

“similar      in    kind”     test,    I     believe    our       precedents      compel    the

result      that    Maryland        fourth    degree        burglary    is    a   “crime    of

violence.” Therefore, I respectfully dissent and would affirm

the sentence imposed by the district court.




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