     Case: 11-60754    Document: 00512131740     Page: 1   Date Filed: 01/31/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                 January 31, 2013

                                  No. 11-60754                    Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

WAYNE ALLEN STOKER,

                                            Defendant-Appellant.


                 Appeal from the United States District Court
                   for the Northern District of Mississippi


Before JONES, GARZA, and PRADO, Circuit Judges.
PER CURIAM:
      Wayne Allen Stoker (“Stoker”) appeals his conviction and sentence on two
counts of retaliating against and threatening a witness, in violation of
18 U.S.C. §§ 1513(e) and 876(c). Finding the evidence sufficient to support the
verdict, but only one count to be a crime of violence under current law, we affirm
the conviction and vacate and remand for resentencing.
                               BACKGROUND
      On February 20, 2009, Stoker caused a disturbance in, and was removed
from, the Dam Bar in Grenada County, Mississippi. He returned after closing
that night and burned it down. Following the incident, he became acquainted
with a woman named Donna Moore (“Moore”) and sometime thereafter confessed
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                                  No. 11-60754

the arson to her. Upon hearing the details of Stoker’s act, Moore became fearful
and called an anonymous hotline to report the incident.                  An FBI agent
eventually convinced her to testify, and the Report of Investigation (“ROI”)
outlining her story aided in precipitating a guilty plea from Stoker. The ROI
detailed Stoker’s actions and also reported the extreme fear Moore felt in coming
forward with the information. One day after he was sentenced to nine years in
prison for the arson, Stoker mailed Moore a copy of the ROI from prison. Moore
took this to be a threat and suffered serious emotional distress as a result.
      Stoker    was   subsequently     convicted     by      a    jury    of   violating
18 U.S.C. § 1513(e)—retaliation against a witness providing truthful information
to a law enforcement officer—and § 876(c)—mailing a threatening
communication. The presentence investigation report (“PSR”) prepared by the
probation officer disclosed a previous arson conviction in addition to the one for
the bar incident. The PSR added both arson convictions to the two counts of
conviction in the present case to conclude that Stoker qualified for the career-
offender enhancement under U.S.S.G. § 4B1.1.           The district court agreed,
treating all four convictions as crimes of violence. U.S.S.G. § 4B1.2. The
resulting offense level of twenty-four, combined with a criminal history category
of VI, yielded a guideline imprisonment range of 100 to 125 months. The court
issued a sentence of 108 months, to be served consecutive to the Dam Bar arson
conviction. Stoker timely appealed.
                                 DISCUSSION
      Stoker attacks the sufficiency of the evidence supporting his convictions
and the career-offender enhancement to his sentence range. “[D]etermining the
weight and credibility of the evidence is solely within the province of the jury.”


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                                       No. 11-60754

United States v. Salazar, 542 F.3d 139, 144 (5th Cir. 2008). This court “view[s]
the evidence in the light most favorable to the verdict and draw[s] all reasonable
inferences from the evidence to support the verdict.” United States v. Percel,
553 F.3d 903, 910 (5th Cir. 2008) (quoting United States v. McDowell,
498 F.3d 308, 312 (5th Cir. 2007)). A jury verdict will be upheld if a rational
trier of fact could conclude from the evidence, viewed in the light most favorable
to the verdict, that the elements of the offense were established beyond a
reasonable doubt. Id.
      Sentencing Guidelines calculations are reviewed for clear error but the
legal interpretation and application of the Guidelines are reviewed de novo.
United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006).                    As a result,
“characterizing an offense as a crime of violence is a purely legal determination”
that is also reviewed de novo. United States v. Guevara, 408 F.3d 252, 261 n.10
(5th Cir. 2005).
I.    Sufficiency of the Evidence.
      Stoker, contending he lacked the requisite intent to retaliate against or
threaten Moore, argues that the evidence was insufficient to convict him of
either count.
      A violation of § 1513(e) requires proof that (1) Stoker knowingly took an
action with intent to retaliate; (2) Stoker harmed Moore; and (3) his retaliation
was spawned by her assistance to law enforcement.1 Stoker challenges the

      1
          Count One was a violation of 18 U.S.C. § 1513(e). It provides:
              Whoever knowingly, with the intent to retaliate, takes any action
      harmful to any person, including interference with the lawful employment or
      livelihood of any person, for providing to a law enforcement officer any truthful
      information relating to the commission or possible commission of any Federal
      offense, shall be fined under this title or imprisoned not more than 10 years, or

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                                  No. 11-60754

evidence only on the first element, although he characterizes Moore’s reaction
to his letter as extreme. He “merely” intended, as he explained in a letter to the
U.S. Attorney, to signify his unhappiness with Moore’s “betrayal” but never
intended to harm her.
       “Intent may, and generally must, be proven circumstantially. Generally,
the natural probable consequences of an act may satisfactorily evidence the state
of mind accompanying the act, even when a particular mental attitude is a
crucial element of the offense.” United States v. Maggitt, 784 F.2d 590, 593
(5th Cir. 1986). In Maggitt, one of the defendants was convicted of a § 1513
violation for telling a witness she was aware of his testimony against her brother
and that she was going to kill him for it. The defendant later argued the threat
was not serious and that she was just mad at someone who had been a friend
and neighbor for years. This court noted that, given those circumstances, “the
jury could have concluded that [she] was just ‘blowing off steam.’” Id. at 594.
Nevertheless, when the evidence was viewed in a light most favorable to the
prosecution, it had to be acknowledged that “[t]he jury could also have found
beyond a reasonable doubt that [the defendant]’s threat was intended in
retaliation against [the witness] for his earlier testimony before the grand jury.”
Id.
       Here, as in Maggitt, the jury was within its bounds to find retaliatory
intent on the part of Stoker. While a reasonable person could view such a
letter—mailed from prison, by an arsonist (who committed arson as retaliation
for being thrown out of a bar), detailing the witness’s fear of retaliation—as an

       both.



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                                     No. 11-60754

ominous sign, the jury might have accepted Stoker’s rationale that he was only
expressing displeasure toward Moore. Viewing the evidence in a light most
favorable to the government, however, the evidence is sufficient to support what
the jury concluded beyond a reasonable doubt: mailing the letter was illegal
retaliation against Moore. As Maggitt teaches, a jury is free to infer the intent
to retaliate from the natural consequences likely to flow from the defendant’s
actions. The jury here could at least infer Stoker’s intent to seriously frighten
the witness; fear was a natural probable consequence when she received the
investigation report from him.
      Likewise, the jury was free to infer that Stoker knew he was mailing a
threat to injure Moore when he sent her the report that relayed her fears of what
he might do if she testified. A violation of 18 U.S.C. § 876(c) requires proof of the
mailing of a communication containing “any threat to injure” the addressee.2
The jury had to decide whether the communication was intended as a threat.
This determination follows a similar analysis to that for intent to retaliate: the
natural consequences of an action may be inferred to evidence an intent to cause
the reaction (e.g., eliciting fear by mailing a letter that hypothesizes possible
retaliation by an arsonist). Moore reasonably construed the communication as
a personal threat.      Additionally, the subjective intent to injure Moore is
irrelevant; and it is of no consequence that Stoker neither planned to nor was
able to carry out the threat. See United States v. DeShazo, 565 F.2d 893, 894–95

      2
       18 U.S.C. § 876(c) states:
             Whoever knowingly so deposits or causes to be delivered as aforesaid,
      any communication with or without a name or designating mark subscribed
      thereto, addressed to any other person and containing any threat to kidnap any
      person or any threat to injure the person of the addressee or of another, shall
      be fined under this title or imprisoned not more than five years, or both.


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                                       No. 11-60754

(5th Cir. 1978) (per curiam). The evidence is thus sufficient to support both
counts of the conviction.3
II.    Crime-of-Violence Enhancement
       Because of the significant impact on his sentence, Stoker seeks a reversal
of the district court’s career offender designation under U.S.S.G. § 4B1.1. This
section enhances the sentence if (a) either of the instant offenses of conviction
is a “crime of violence” and, undisputed here, Stoker (b) is over eighteen years
of age and (c) has two prior felony convictions (satisfied here by the two
convictions for arson, an enumerated crime of violence). According to Stoker, his
Sentencing Guidelines range is altered from 100–125 months to 2–33 months if
neither conviction qualifies for the career offender enhancements.
       Stoker asks us to consider whether either of his instant convictions for
violating 18 U.S.C. §§ 1513(e) and 876(c) is a crime of violence, which 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.

       3
         Stoker also challenges his attorney’s trial strategy to prevent the jury from hearing,
inter alia, Stoker's racist motive for arson of the Dam. Only in rare circumstances does this
court examine an ineffective assistance of counsel claim on direct appeal. See United States
v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (per curiam). Here, the lack of a developed record
precludes any such inquiry, although it is highly unlikely that the ineffective assistance
argument is viable.

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                                  No. 11-60754

U.S.S.G. § 4B1.2(a) (emphases added). A crime of violence under § 4B1.2 must
therefore (1) contain as an element the “use, attempted use, or threatened use
of physical force” against the person of another (the “element clause”); or (2) fall
within the list of enumerated offenses; or (3) otherwise involve conduct that
presents a serious potential risk of physical injury to another (the “residual
clause”). The offenses of conviction here are not enumerated within § 4B1.2(a)
or its Commentary. Stoker argues that neither offense satisfies the element
clause or the residual clause.
   A. § 4B1.2(a)(1)—The Element Clause
      The element clause of § 4B1.2(a) is more easily addressed. According to
Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990), we are
obliged to analyze the elements of the statute of conviction, in the usual case,
rather than the facts of the specific offense.       This court applies Taylor’s
“categorical approach” to interpretations of the Sentencing Guidelines.
18 U.S.C. § 1513(e) criminalizes “[w]hoever knowingly, with the intent to
retaliate, takes any action harmful to any person, including interference with
the lawful employment or livelihood of any person, [for assisting law
enforcement].” The gravamen of the offense is intentional retaliation that
“harms” the person who cooperated truthfully. Although the crime of retaliation
may be committed, and was committed here, by a threat reasonably construed
to portend physical force, the threatened use of physical force is not an element
of this offense. “[A]n element is ‘[a] constituent part of a claim that must be
proved for the claim to succeed.’” United States v. Vargas-Duran, 356 F.3d 598,
605 (5th Cir. 2004) (en banc) (quoting Black’s Law Dictionary 538 (7th ed. 1999)).
Section 1513(e) broadly condemns a wide range of retaliatory actions that may
inflict only emotional or economic harm; neither the “use, attempted use, or

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                                       No. 11-60754

threatened use of physical force” against a victim is an element the government
had to prove to convict Stoker. Cf. United States v. Montgomery, 402 F.3d 482,
486–87 (5th Cir. 2005) (holding that Texas crime of “retaliation” against a law
enforcement officer is not a crime of violence).
       In contrast, 18 U.S.C. § 876(c) prohibits mailing “any threat to kidnap any
person or any threat to injure the person of the addressee or of another.” Paring
down the statute to the offense of conviction,4 this count has, as an element, the
threat of physical force inherent in threatening to injure “the person” of the
victim. In United States v. Guevara, 408 F.3d 252, 259–60 (5th Cir. 2005), this
court acknowledged a sister circuit’s conclusion that a conviction under § 876(c)
is a crime of violence according to § 4B1.2(a)(1) (citing United States v. Left Hand
Bull, 901 F.2d 647, 649 (8th Cir. 1990)). Every other court has agreed with this
“element” clause characterization. See United States v. Archer, 93 F. App’x 767,
768 (6th Cir. 2004); United States v. De La Fuente, 353 F.3d 766, 770–71 & n.3
(9th Cir. 2003); United States v. Littlejohn, No. 97-4092, 1998 WL 13526, at *3
(4th Cir. Jan. 15, 1998) (unpublished).
   B. § 4B1.2(a)(2)—The Residual Clause
       That § 876(c) alone qualifies as a crime of violence does not suffice to
sustain Stoker’s 108-month within-guideline sentence. His career offender
sentencing range was derived from the ten-year maximum sentence for criminal
retaliation. Had the criminal mailing of a threat been the sole basis for the
enhancement, its maximum sentence of five years would have yielded a much


       4
         In applying the Taylor/Shepard categorical approach to § 4B1.2(a) crime of violence
determinations, courts may “pare down” a disjunctive criminal statute to reference the actual
count of conviction, as demonstrated by examining, inter alia, charging documents, jury
instructions, guilty plea stipulations, and similar documents. United States v. Mohr, 554 F.3d
604, 607 (5th Cir. 2009) (citations omitted).

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                                      No. 11-60754

lower sentencing range—51 to 63 months. Consequently, we must consider
whether the retaliation conviction may be a crime of violence under the residual
clause on the theory that it involves conduct presenting a “serious potential risk
of physical injury” to the victim. U.S.S.G. § 4B1.2(a)(2).
       Although given the unusual twist that the issue here is whether the crime
actually tried to the jury is a crime of violence, we follow essentially the
“modified categorical approach,” adapted from Shepard v. United States,
544 U.S. 13, 20–26, 125 S. Ct. 1254, 1259–63 (2005), under which this court
analyzes the nature of the crime described by the statute rather than the
underlying facts of the offense when considering the residual clause. See United
States v. Mohr, 554 F.3d 604, 607 (5th Cir. 2009); Montgomery, 402 F.3d at 487.5
The Supreme Court endorsed this approach to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B), with its nearly identical residual clause for
prior offenses, in James v. United States, 550 U.S. 192, 202, 127 S. Ct. 1586,
1594 (2007). Alternatively, we may follow this court’s holding that under the
ACCA “for the purpose of § 4B1.2, a conviction is for a crime of violence when the
defendant pleads guilty to an indictment count that alleges conduct that
presents a serious potential risk of injury to another.”                United States v.
Lipscomb, 619 F.3d 474, 479 (5th Cir. 2010). Each approach will be discussed.
       Supreme Court precedent establishes some parameters to classification of
an offense as a “crime of violence” via the residual clause. Most relevant here
is the Court’s decision to limit the ACCA enhancement for “violent felonies” to
crimes “similar” to the there-enumerated offenses of burglary, arson, extortion,
or the use of explosives. Begay v. United States, 553 U.S. 137, 143–44, 128 S. Ct.

       5
         The offense of conviction may be “pared down” as described in n.4 above, but this is
for the purpose of narrowing the inquiry as to the nature of the statute of conviction.

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                                       No. 11-60754
1581, 1585–86 (2008). “Similarity,” in the Court’s view, entails crimes that are
(1) “roughly similar, in kind as well as in degree of risk posed, to the examples
themselves,” id. at 143, 1585, and (2) “typically involve purposeful, ‘violent,’ and
‘aggressive’ conduct.” Id. at 144–45, 1586. Begay concluded that a prior state
conviction for felonious DUI did not fulfill these qualities of similitude and thus
was not a crime of violence under ACCA.6 In so holding, the Court assumed that
“DUI involves conduct that ‘presents a serious potential risk of physical injury
to another,’” but nonetheless found the violation “outside the scope” of the
residual clause. Id. at 141–42, 1584.
       Under either Shepard or Begay as applied in this court, we are compelled
to conclude that the retaliation statute under which Stoker was convicted does
not necessarily entail “conduct that presents a serious potential risk of physical
injury to another.” The statute, as previously noted, is broadly framed to include
all conceivable harms inflicted by a retaliating defendant. From this standpoint
alone, it appears to fail the test of posing, by its nature, a serious risk of physical
injury to victims. The actions of such a defendant are indeed “purposeful” and
“aggressive,” two qualities identified in Begay, but they are not necessarily
“violent.” Nor does § 1513(e) appear “similar” to any of the crimes enumerated
in Commentary to § 4B1.2(a), except perhaps extortion. Begay referred to the
ALI Model Penal Code definition of extortion as “‘purposely’ obtaining property
of another, through threat of, e.g., inflicting ‘bodily injury.’” Id. at 145, 1586
(citing ALI Model Penal Code § 223.4(1) (1985)). Extortion thus connotes a crime


       6
         “Rather, we 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.” Begay v. United States, 553 U.S. 137, 148, 128 S. Ct. 1581,
1588 (2008).

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                                    No. 11-60754
of purpose, threat, and inherent serious potential risk of physical injury as
property is extracted from the victim. The retaliation statute, too, involves a
criminal purpose and threat to harm but, unlike extortion, the harm explicitly
need not involve physical injury. Indeed, this limitation of § 1513(e) would seem
to be emphasized by the companion provision, § 1513(b), which criminalizes
retaliation in the form of physical violence or a threat of physical violence.
      Fifth Circuit precedent also lends authority to this conclusion. Before
Begay, this court had ruled that a violation of a Texas anti-retaliation
statute—“triggered when someone ‘intentionally or knowingly harms or
threatens to harm another by an unlawful act . . . in retaliation for [the person’s]
service or status . . . as a . . . public servant,’”—was not a violent felony under
ACCA’s residual clause. Montgomery, 402 F.3d at 488 (quoting Texas Pen. Code
Ann. § 36.06(a)(1)(A) (2003)).       As here, the statute could be violated by
threatening a police officer with financial or reputational harm. Id. But the
court there did not look past the nature of the statute and, consequently, the
“mere act of a verbal threat,” id. at 489, was not found to necessarily pose a risk
of physical injury.7 Montgomery is not materially distinguishable from this case,
except that it characterized a defendant's prior conviction rather than the
instant offense of conviction.
      Finally, one case that might appear to support finding the retaliation
conviction within the residual clause is distinguishable. In United States v.
Mohr, this court applied the residual clause, post-Begay, to a defendant’s prior


      7
         But see United States v. Sawyers, 409 F.3d 732, 742–43 (6th Cir. 2005) (holding
Tennessee retaliation crime falls within the residual clause). The conflict between
Montgomery and Sawyers was noted by Justice Alito in Chambers v. United States, 555 U.S.
122, 133 n.2, 129 S. Ct. 687, 694 n.2 (2009) (Alito, J., concurring in the judgment).


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                                     No. 11-60754
conviction for stalking under Florida law. The court held that sufficient proof
of the underlying crime was offered, pursuant to Shepard, to “pare down” a
disjunctive criminal statute and describe the defendant’s conduct as following
and harassing the victims with threats of bodily injury. Mohr, 554 F.3d at 610.
Unlike Mohr, there is no disjunctive statute to pare down in this case. And
unlike Mohr, the threat here was not accompanied by the physical acts of
pursuing the victims, which lent force to the conclusion that a serious potential
risk of physical violence existed.
      Because Stoker’s offense of conviction, rather than a prior conviction, must
be characterized for crime of violence purposes, we turn also to Lipscomb, which
discussed extensively the Guidelines Commentary to § 4B1.2. Lipscomb held
that the “conduct set forth (i.e., expressly charged) in the count of which the
defendant was convicted” may be used to apply the residual clause. Lipscomb,
619 F.3d at 478 (quoting § 4B1.2, Application Note 1).
      The indictment here alleged:
             10. On or about March 29, 2011, in the Northern District of
      Mississippi, WAYNE ALLEN STOKER, defendant, did knowingly,
      with intent to retaliate, take an action harmful to Donna Moore for
      her providing to a law enforcement officer truthful information
      relating to the commission or possible commission of a Federal
      offense, that is; WAYNE ALLEN STOKER, defendant, mailed an
      envelope to Donna Moore at her home address that contained only
      one item: the first page of the Moore ROI describing the information
      Donna Moore provided to the ATF, including WAYNE ALLEN
      STOKER’S confession that he burned down the Dam Bar and Donna
      Moore’s fear of retribution from WAYNE ALLEN STOKER.
             All in violation of Title 18, United States Code, Section
      1513(e).

For two reasons, the conduct charged falls outside the residual clause. First, it
alleges “an action harmful to Donna Moore” but says nothing that suggests the

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                                  No. 11-60754
retaliation posed a serious potential risk of physical violence against her.
Second, as has been noted, § 1513(e) refers to “harmful” retaliation as including
“interference with the lawful employment or livelihood of a person,” whereas
another provision, § 1513(b), prohibits retaliation inflicted by physical violence
or a threat of physical violence. Section 1513(e), in its terms and as charged,
exceeds the physical violence necessary for application of the residual clause.
                                CONCLUSION
      The evidence was sufficient to convict Stoker on both counts. However,
because his crime of retaliation could not be a crime of violence under the career
offender guideline, the court misapplied the longest noted guidelines range. On
remand, it must resentence Stoker as a career offender based on his § 876(c)
conviction, together with any adjustment deemed appropriate.
            Conviction AFFIRMED; Sentence VACATED and REMANDED.




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                                     No. 11-60754
EDITH H. JONES, Circuit Judge, specially concurring, joined by GARZA,
Circuit Judge.

       Although bound by precedent to concur in reversing Stoker’s sentence, I
would have otherwise affirmed.
       Lipscomb binds us in the straitjacket of the modified categorical approach
and the “conduct charged in the indictment” when determining if Stoker’s
retaliation offense of conviction was a crime of violence.             This means the
sentencing court must ignore the actual trial record and the facts and inferences
drawn from the testimony to make that consequential enhancement. I do not
believe the Supreme Court or the United States Sentencing Commission
intended this counter-intuitive procedure. I write in hope that it may someday
be reversed.1
       As the Eighth Circuit recently noted, “It is rare that a dispute concerning
the career offender enhancement revolves around the instant offense of
conviction. This paradigm affects our analysis.” United States v Williams,
690 F.3d 1056, 1069 (8th Cir. 2012). Williams departed from the modified
categorical approach and went on to “consider the readily available trial
evidence” to assess whether the defendant’s conduct for which he had been
convicted qualified as a crime of violence under § 4B1.2(a)(2). Id. Based on the
record, the court’s affirmative conclusion was easily reached. Id. The Tenth
Circuit has also evaluated the full trial court record in order to characterize the
defendant’s offense of conviction properly under the crime of violence guidelines.
United States v. Riggans, 254 F.3d 1200, 1203–04 (10th Cir. 2001). But cf.
United States v. Piccolo, 441 F.3d 1084, 1086–87 (9th Cir. 2006) (insisting on

      1
        I generally agree with Judge King’s concurrence in Lipscomb, 619 F.3d 474, 479 (5th
Cir. 2010), which makes similar points.

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                                  No. 11-60754
modified categorical approach for the instant offense of conviction). For several
reasons, this court should adopt the whole-record approach.
      The genesis of the modified categorical approach rests on interpretations
of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), which dramatically
enhances prison terms of felons who illegally possess firearms if they have three
prior convictions for “violent felonies.” Taylor advanced two principal grounds
for classifying “violent felonies” under the ACCA residual clause according to the
generic elements of the prior offenses rather than offense-specific conduct. First,
Congress intended that the enhanced federal penalties would be based on
uniform, federal definitions of the prior convictions rather than on the numerous
vagaries of state criminal statutes. Second, offense-specific inquiries about prior
convictions would be impractical, complex, and potentially unfair. While the
Supreme Court has never specifically dictated comparability between its ACCA
enhancement cases and the Guidelines career offender enhancement (and indeed
has never decided a Guidelines career offender case), lower courts have naturally
treated the enhancements, at least for prior convictions, in pari materia because
of their similar language.
      Like must be treated alike under the rule of law, but courts must also
recognize when the context and precise language of rules render cases
dissimilar. The Sentencing Commission adopted the ACCA’s elements test and
residual clause almost literally when it crafted the career offender enhancement.
U.S.S.G. § 4B1.2. Still, several relevant distinctions from ACCA are evident in
the language, application, and purpose of the Guidelines.
      First, the Guidelines definition of a crime of violence (§ 4B1.2) clarifies an
enhancement provision (§ 4B1.1) that describes a “career offender” in terms
(here pertinent) of his “instant offense of conviction” and a minimum of two prior

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                                  No. 11-60754
convictions, all of which must be felonies and crimes of violence or controlled
substance offenses. ACCA, in contrast, inflicts a mandatory minimum sentence
on a conviction for a federal firearms violation—itself not necessarily a crime of
violence—where the defendant has three prior felony convictions for “violent
felonies.” All ACCA prior offenses are past offenses, while one of the § 4B1.1
offenses is always an instant offense of conviction.
      Next, the Guidelines definition of a crime of violence tracks the language
of ACCA in both the elements and residual clause, but the Guidelines depart
from ACCA in the career offender (§ 4B1.1) usage. This is explained in the
Commentary to § 4B1.2, Application Note 1, which expands the definition of
“crimes of violence” to include as enumerated offenses murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling. The residual clause
is also expanded in this Application Note by identifying: “the conduct set forth
(i.e., expressly charged) in the count of which the defendant was convicted” as
that which, “by its nature, presented a serious potential risk of physical injury
to another.” Other specific situations in which a crime of violence is included or
excluded from the Guidelines usage occupy the following eight paragraphs of this
Commentary. Application Note 2 then states:
            Section 4B1.1 (Career Offender) expressly provides that the
      instant and prior offenses must be crimes of violence or controlled
      substance offenses of which the defendant was convicted. Therefore,
      in determining whether an offense is a crime of violence or
      controlled substance [offense] for the purposes of § 4B1.1 (Career
      Offender), the offense of conviction (i.e., the conduct of which the
      defendant was convicted) is the focus of inquiry. (Emphasis added).

      Reinforcing these distinctions, the Guidelines separately define an “Armed


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                                  No. 11-60754
Career Criminal” in § 4B1.4, a provision designed to embody the requirements
of ACCA and apply the mandatory statutory minima in a structured manner.
While this guideline does not superfluously duplicate ACCA’s statutory
definition of “violent felonies,” the Commentary Application Note 1 to this
provision warns that “the definitions of ‘violent felony’ and ‘serious drug offense’
in 18 U.S.C. § 924(e)(2) are not identical to the definitions of ‘crime of violence’
and ‘controlled substance offense’ used in § 4B1.1 (Career Offender)” (emphasis
added).
      These linguistic distinctions indicate to me that (a) the “instant offense of
conviction” in § 4B1.1 does not fully track an ACCA “violent felony;” (b) a “crime
of violence” in the § 4B1.2(b) residual clause is specifically concerned with the
defendant’s “conduct set forth (i.e., expressly charged);” and (c) “the offense of
conviction (i.e., the conduct of which the defendant was convicted) is the focus of
the inquiry.” This language may not require an offense specific inquiry in order
to characterize offenses as crimes of violence, but unlike the Supreme Court’s
interpretation of ACCA, it certainly does not preclude such inquiry where
appropriate.
      The career offender provision, along with its crime of violence definition,
must also be fit within the general framework of the Guidelines—a framework
much more flexible than that of ACCA.          While ACCA is a single statute
interpreted consistent with the intent of Congress, the Guidelines’ intent is to
structure and inform criminal sentencing across the wide range of federal
offenses.   Effectuating this purpose, the Guidelines ordinarily allow the
sentencing court to consider all factors bearing on the seriousness of the instant
crime of conviction as well as the defendant’s criminal history. Strict rules do
not govern the admissibility of evidence, United States v. Rodriguez, 897 F.2d

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                                  No. 11-60754
1324, 1328 (5th Cir. 1990), the court makes determinations based on a
preponderance standard, United States v. Thomas, 690 F.3d 358, 374 (5th Cir.
2012), and the findings in the presentence report may be accepted by the court
unless the defendant meets the burden of adducing contradictory evidence.
United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). Significantly, the
Guidelines are no longer held to bind the discretion of sentencing courts. United
States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 756–57 (2005).           The
overarching methodology of the Guidelines cannot, of course, trump their specific
language, but here, where the language does not exclude considering the facts
of the offense of conviction, the methodology behind guideline sentencing
reinforces an offense-specific approach.
      The contrast between the Guidelines and ACCA is accentuated because
none of the principles behind Taylor’s adoption of the categorical approach
applies in this context. First, because the language and context of ACCA’s
residual clause are different from the Guidelines, despite their facially similar
wording, the ACCA’s language and Congressional intent are insufficient as a
guide. The concern in Taylor for uniform federal definitions in pursuit of
uniform application of mandatory sentence enhancements is fundamentally
different from achieving a defendant-specific sentence under 18 U.S.C. § 3553(a)
within ranges of punishment. Taylor’s other concern, that offense-specific
examination of prior convictions may involve mini-trials and is exceedingly
complex and potentially unfair, cannot be lodged when the crime of violence
question arises from the “instant offense of conviction.” Relevant to this offense,
the court has before it the entire record of the proceedings (whether of trial or
guilty plea), has heard the evidence, and has the thorough report in the PSR
concerning not only the instant offense but also the defendant’s background.

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                                        No. 11-60754
There will be no factual uncertainty underlying the crime of violence
determination.
       Finally, to the extent that the categorical approach of Taylor and its
progeny has proven far more difficult in application than the Supreme Court
probably foresaw,2 courts applying the Guidelines to the “instant offense of
conviction” should not feel compelled to follow Taylor when that line of cases is
not mandatory. The courts’ role differs between statutory interpretation under
ACCA and sentencing “the instant offense of conviction” under the guidelines.
ACCA’s interpretation revolves around the need to define federal crimes
consistently. Determining whether an individual federal defendant is a “career
offender,” however, ought to be heavily dependent on whether the “instant
conviction”—the motivating force behind this enhancement—is a crime of
violence. It is reasonable and in accord with the whole-offense approach of the
Guidelines to make that determination based not on an abstract description of
the “probabilistic” likelihood that serious physical injury will be inflicted by the
statutorily defined offense,3 but on the reality of the defendant’s instant crime.
       For these reasons, I believe that the court should have been entitled to
review the whole record in order to decide whether Stoker’s conviction for illegal
retaliation, violative of 18 U.S.C. § 1513(e), was a crime of violence. As in the
Williams case, this perspective yields a ready affirmative answer. The jury


       2
         See Chambers, 555 U.S. at 126, 129 S. Ct. at 690 (“This categorical approach requires
courts to choose the right category. And sometimes the choice is not obvious.”); id. at 134, 695
(Alito, J., concurring in the judgment) (“At this point, the only tenable, long-term solution is
for Congress to formulate a specific list of expressly defined crimes that are deemed to be
worthy of ACCA’s sentencing enhancement. . . . And that approach is the only way to right
ACCA’s ship.”).
       3
           See James v. United States, 550 U.S. 192, 207–08, 127 S. Ct. 1586, 1597 (2007).

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                                    No. 11-60754
found that Stoker’s letter to Moore, sent one day after he was sentenced for the
Dam Bar arson, had a singular purpose: to paralyze her with fear, a fear not
unreasonable under the circumstances, that he would retaliate against her with
arson as he did against the owner of the Dam Bar. Based solely on what she
knew of Stoker, the threat posed a serious potential risk of physical injury to
Moore. And this is true despite his being imprisoned for the time being.4
Stoker’s illegal retaliation thus fell within the residual clause of § 4B1.2(b) as a
crime of violence.




      4
        Even attempts are treated as substantive crimes under the Sentencing Guidelines,
see U.S.S.G. § 2X1.1, and are not excluded by the ACCA. James, 550 U.S. at 198, 1591.

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