                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 13, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 12-1032
          v.                                             (D. of Colo.)
 SIR ALEXANDER NEAL,                          (D.C. No. 1:11-CR-00163-WJM-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      A jury convicted Sir Alexander Neal of the federal crime of being a felon in

possession of a firearm. 18 U.S.C. § 922(g)(1). On appeal, he challenges the

district court’s determination that his prior conviction for “theft from the person

of another by means other than the use of force, threat, or intimidation,” in

violation of Colorado Revised Statute § 18-4-401(5), constitutes a “crime of



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
violence” for purposes of United States Sentencing Guidelines (USSG)

§ 4B1.2(a).

      Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a)(2) and 28 U.S.C.

§ 1291, we AFFIRM.

      Following a three day trial, a jury found Neal guilty of possessing a firearm

as a convicted felon in violation of 18 U.S.C. § 922(g)(1). At sentencing, Neal

objected to the Presentence Investigation Report (PSR) and to the calculation of

his Base Offense Level. As the PSR reflected, Neal was previously convicted for

menacing in 2004 and for “theft from the person of another by means other than

the use of force, threat, or intimidation” in 2002. (R., Vol. 1, Doc. 103 at

735–37.) Under the applicable sentencing guidelines, the district court

determined both of Neal’s previous convictions were crimes of violence, resulting

in a higher Base Offense Level and a longer sentence.

      The district court adopted the PSR’s recommendations and sentenced Neal

to 102 months in prison.

      Neal contended below the district court should not have considered his

2002 theft conviction a “crime of violence” under USSG § 4B1.2(a). But the

district court, relying on United States v. Patillar, 595 F.3d 1138 (10th Cir.

2010), rejected Neal’s objections, concluding that the prior Colorado conviction

of theft from the person of another is a crime of violence. In Patillar, we

concluded that “larceny from the person of another” is a crime of violence

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because it “creates a significant risk of confrontation between thief and victim.”

Id. at 1140.

      Neal asks us to reconsider our holding in Patillar. He argues it is no longer

good law because it conflicts with the Supreme Court’s recent decision in Sykes v.

United States, 131 S. Ct. 2267 (2011). But whether or not Patillar is affected by

Sykes (a question we need not address here) we conclude the district court

correctly determined that theft from a person of another by means other than the

use of force, threat, or intimidation constitutes a crime of violence for purposes of

§ 4B1.2(a)(2).

      Section 4B1.2(a) of the USSG defines a “crime of violence” 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. (emphasis added).

      The parties agree on several aspects of § 4B1.2(a). First, a Colorado

conviction for “theft from the person of another by means other than the use of

force, threat, or intimidation” is punishable by more than one year’s

imprisonment; second, it does not involve physical force; and, third, the offense is

not one of the crimes enumerated in § 4B1.2(a)(2). Thus, our sole inquiry is

whether the offense falls into the § 4B1.2(a)(2) residual clause, which




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encompasses crimes “otherwise involv[ing] conduct that presents a serious

potential risk of physical injury to another.”

      The method for determining whether an offense falls into the residual

clause has been admittedly inconsistent. Prior to Sykes, the analysis for

determining whether a crime was “violent” for purposes of § 4B1.2(a)(2) rested

on whether the underlying prohibited conduct was “purposeful, violent, and

aggressive” as discussed in Begay v. United States, 553 U.S. 137, 144–45 (2008).

In Begay, the Court reasoned that the enumerated felonies – burglary, arson,

extortion, or crimes involving the use of explosives – “illustrate the kinds of

crimes that fall within the statute’s scope,” and that all of those crimes involve

“purposeful, violent, and aggressive conduct.” Id. at 142, 144–45. In holding that

“the statute covers only similar crimes,” the Court determined the crime of

driving under the influence is outside the statute’s scope because, unlike the listed

offenses, “driving under the influence need not be purposeful or deliberate.” Id.

at 141–42, 145.

      But in Sykes the Court takes a slightly different approach. The Court now

employs a categorical risk comparison, where a crime falls within the residual

clause if it poses a risk similar to the risk posed by the enumerated offenses in

§ 4B1.2(a). Sykes, 131 S. Ct. at 2275–76. The Court held the residual clause

includes crimes that involve analogous risk to the listed crimes, even if the crime

does not involve analogous conduct. See id. Sykes compared the risk posed by

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vehicular fleeing from police with the risk posed by burglary and determined they

both create a similar danger of potential “confrontation leading to violence.” Id.

at 2273. Because the risk posed by vehicular fleeing is similar in kind to the risk

posed by one of the enumerated offenses, the conduct falls within the residual

clause.

      Sykes limited Begay’s “purposeful, violent, and aggressive” inquiry only to

strict-liability, negligence, or recklessness crimes. Id. at 2275–76; United States

v. Sandoval, 696 F.3d 1011, 1016 (10th Cir. 2012) (“After Sykes, it is not

necessary to reach Begay’s ‘purposeful’ inquiry when the mens rea of the offense

requires intentional conduct.”); United States v. Smith, 652 F.3d 1244, 1248 (10th

Cir. 2011) (“Where the felony at issue is ‘not a strict liability, negligence, or

recklessness crime’ the test is not whether the crime was ‘purposeful, violent, and

aggressive’ but whether it is ‘similar in risk to the listed crimes.’”) (quoting

Sykes, 131 S. Ct. at 2276).

      Under either Begay’s “purposeful, violent, or aggressive” analysis or

Sykes’s categorical risk level analysis, the outcome is the same: Neal’s theft

conviction is a “crime of violence” for purposes of § 4B1.2(a)(2). Sykes requires

us to assess the risk posed by the conduct proscribed in the Colorado theft statute

as compared to the risk posed by § 4B1.2(a)’s enumerated offenses. In doing so,

“we examine only the statutory elements of the offense, not the underlying facts




                                          -5-
of the conviction.” Patillar, 595 F.3d at 1139 (citing United States v. Rooks, 556

F.3d 1145, 1147 (10th Cir. 2009)).

        Despite Patillar’s application of Begay, it properly held that “larceny from

the person . . . creates a significant risk of confrontation between thief and

victim.” 595 F.3d at 1140. Relatedly, in a thorough analysis of the Colorado

theft statute at issue here, the Colorado Supreme Court recognized that “[t]he

invasion of the victim’s person presents an element of danger absent in other theft

offenses.” People v. Warner, 801 P.2d 1187, 1191 (Colo. 1990). That “danger”

is the potential for violent confrontation between thief and victim. See id.; see

also Patillar, 595 F.3d at 1140 (citing several cases indicating danger posed by

larceny from a person is risk of confrontation).

        In comparing the risk created by theft from the person of another to the risk

created by the enumerated crimes, we look to the risk posed by burglary. “The

main risk of burglary arises not from the simple physical act of wrongfully

entering another’s property, but from the possibility that an innocent person might

confront the burglar during the crime.” James v. United States, 550 U.S. 192, 194

(2007); Sykes, 131 S. Ct. at 2273 (“Burglary is dangerous because it can end in

confrontation leading to violence.”). Thus, we find that the risk posed by the

crime of theft from a person of another and the risk posed by burglary is the

same.




                                          -6-
      A comparative risk analysis, as mandated by Sykes, also would find that

theft from a person of another under Colorado Revised Statute § 18-4-401(5)

“presents a serious potential risk of physical injury to another” and fits squarely

within the residual clause of § 4B1.2(a)(2).

      We therefore conclude Neal’s conviction for theft from a person of another,

in violation of Colorado Revised Statute § 18-4-401(5), constitutes a crime of

violence. As a result, the district court properly considered Neal’s two prior

convictions for crimes of violence in calculating his Base Offense Level and

recommended sentencing range.

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court,

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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