                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2679
                                    ___________

United States of America,             *
                                      *
           Plaintiff – Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the Eastern
                                      * District of Missouri.
Kenneth D. Williams,                  *
                                      *
           Defendant – Appellant.     *
                                      *
                                 ___________

                              Submitted: March 13, 2008
                                 Filed: August 11, 2008
                                  ___________

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

        The defendant, Kenneth D. Williams, pled guilty to being a felon in possession
of a firearm. On appeal, Williams argues that the district court erred by enhancing his
sentence based on a finding that his prior convictions for auto theft and auto tampering
qualify as crimes of violence under the United States Sentencing Guidelines. We
reverse and remand for resentencing.
                                   I. Background

       Williams pled guilty to being a felon in possession of a firearm pursuant to 18
U.S.C. § 922(g)(1). The district court sentenced Williams to a term of 57 months in
prison, a sentence within the advisory Guidelines range. The advisory range was
calculated using § 2K2.1(a)(2) of the United States Sentencing Guidelines. That
subsection enhanced Williams’s base offense from a level 14 to a level 24 because the
district court found that Williams had committed two prior felonies that qualified as
crimes of violence—auto theft and auto tampering. Both prior felonies were
violations of Missouri law.

       Our court previously held that auto theft is a crime of violence. United States
v. Sprouse, 394 F.3d 578, 581 (8th Cir. 2005) (holding that auto theft is a crime of
violence for purposes of U.S.S.G. §2K2.1(a)(2) and a violent felony for purposes of
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) and (e)(2)(B)); United States
v. Sun Bear, 307 F.3d 747, 753 (8th Cir. 2002) (holding that attempted auto theft is
a crime of violence for purposes of the career offender enhancement of U.S.S.G.
§ 4B1.1). Following Sun Bear, our court also held auto tampering to be a violent
felony. United States v. Johnson, 417 F.3d 990, 997 (8th Cir. 2005) (holding auto
tampering to be a violent felony for purposes of 18 U.S.C. § 924(e) and a crime of
violence for purposes of U.S.S.G. § 4B1.1); United States v. Counts, 498 F.3d 802,
804-05 (8th Cir. 2007) (applying Johnson to hold auto tampering to be a violent
felony for purposes of 18 U.S.C. § 924(e)), cert. granted and judgment vacated, 128
S. Ct. 2049 (2008) (remanding to our court for further consideration in light of Begay
v. United States, 128 S. Ct. 1581 (2008)). The district court applied our controlling
precedent to determine the advisory Guidelines range.

       Subsequent to oral argument in this case, the United States Supreme Court
decided Begay v. United States, 128 S. Ct. 1581 (2008), which held that driving under
the influence of alcohol (DUI) is not a violent felony for purposes of the Armed
Career Criminal Act. 128 S. Ct. at 1583. Our panel, therefore, sought and received
supplemental briefing on Begay’s effect on our precedent dealing with auto tampering
and auto theft. We now conclude that Begay, as intervening Supreme Court authority,
compels us to disregard Sun Bear and its progeny to the extent that the Supreme Court

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uses reasoning that conflicts with the rationale that our court used to determine that
auto theft and auto tampering were crimes of violence.

                                     II. Analysis

       We first note that we are bound by cases interpreting whether an offense is a
crime of violence under the Guidelines as well as cases interpreting whether an
offense is a violent felony under the Armed Career Criminal Act. United States v.
Johnson, 417 F.3d at 996 (“The statutory definition of ‘violent felony’ is viewed as
interchangeable with the guidelines definition of ‘crime of violence.’”). Section
2K2.1 of the Guidelines prescribes an offense level of 24 for a person convicted of
being a felon in possession of a firearm after having been convicted of two or more
crimes of violence. Section 4B1.1 provides for an enhanced offense level for certain
crimes if the defendant has two predicate felonies for qualifying drug offenses or
crimes of violence. The commentary to both § 2K2.1 and § 4B1.1 refer to § 4B1.2(a),
which provides a definition of a “crime of violence” that is virtually identical to the
definition of a “violent felony” in the Armed Career Criminal Act. Compare
U.S.S.G. § 4B1.2(a) with 18 U.S.C. § 924(e)(2)(B).

       The present case involves the term “crime of violence” whereas the Supreme
Court in Begay interpreted the term “violent felony.” We have never recognized a
distinction between the two. See Sprouse, 394 F.3d at 580 (“Because the definitions
of crime of violence and violent felony are identical, the same analysis applies in
determining whether [the defendant's] convictions fall within the conduct defined.”).
In fact, in Sprouse, we held that pursuant to the prior authority of Sun Bear, auto theft
is a violent felony for purposes of 18 U.S.C. § 924(e), just as it was a crime of
violence for purposes of the Guidelines. Id. at 580-81; see also United States v.
Walker, 494 F.3d 688, 693 (8th Cir. 2007) (noting that 18 U.S.C. § 924(e)(2)(B)(ii)
and U.S.S.G. § 4B1.2 are “identically worded”), cert. granted and judgment vacated,
128 S. Ct. 2050 (2008) (remanding to our court for further consideration in light of
Begay, 128 S. Ct. 1581 (2008)); United States v. Spudich, 443 F.3d 986, 987 (8th Cir.
2006) (“The definition of ‘crime of violence’ for purposes of U.S.S.G. § 2K2.1(a)(2)
is nearly identical to the definition of ‘violent felony’ considered in McCall, and we


                                          -3-
generally apply the same analysis to both terms.”); United States v. Abernathy, 277
F.3d 1048, 1051 (8th Cir. 2002).

      In construing whether auto theft and auto tampering are crimes of violence, we
look at what is commonly referred to as the “otherwise” clause of 18 U.S.C.
§ 924(e)(2)(B)(ii) or U.S.S.G. § 4B1.2(a)(2). The “otherwise” clause provides
enhanced penalties for defendants with predicate felonies for certain listed example
crimes—“burglary, arson, or extortion,” and crimes “involv[ing] [the] use of
explosives”—as well as crimes that “otherwise involve[] conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The
“otherwise” clause is the section of the Armed Career Criminal Act analyzed in
Begay. 128 S. Ct. at 1581.

       Begay held that for a crime to fall within the “otherwise” clause it must pose
a similar degree of risk of physical injury as the example crimes and be similar in kind
to the example crimes. 128 S. Ct. at 1585-86. Therefore, even if a crime presents the
same degree of risk of physical injury as the example crimes, it is not covered by the
“otherwise” clause unless it is also similar in kind to the example crimes. Id. at 1586.
For a crime to be similar in kind to the example crimes, it should typically involve
“purposeful, violent, and aggressive conduct.” Id. For example, although DUI may
be as dangerous as the example crimes, it is too different in kind to be covered by the
“otherwise” clause. Id. at 1586-87 (noting that the example crimes should be read as
limiting the crimes covered by the “otherwise” clause).

       Begay did not take issue with the Tenth Circuit’s conclusion that DUI poses a
significant threat of injury to another. Begay, 128 S. Ct. at 1584 (noting that even if
DUI is as dangerous as the example crimes, DUI is too unlike the example crimes to
conclude that Congress intended it to be covered by the “otherwise” clause).
Likewise, Begay does not impact our court’s earlier findings that auto theft and auto
tampering pose a similar degree of risk of physical injury as the example crimes. We
now recognize, however, that the degree of risk of physical injury is only half of the
analysis. Sun Bear and its progeny did not consider whether auto theft and auto
tampering were similar in kind to the example crimes. Instead, our previous analyses
focused solely on the degree of risk of physical injury associated with a crime. See

                                          -4-
Counts, 498 F.3d at 804 (holding that the conduct required for auto tampering was a
violent felony because it involved a degree of risk similar to auto theft); Sprouse, 394
F.3d at 580-81 (examining the likely consequences of auto theft); Sun Bear, 307 F.3d
at 752-53 (examining the likely consequences of attempted auto theft). Begay,
therefore, requires that our analysis focus on whether auto theft and auto tampering
are similar in kind to the example crimes.

       To determine whether auto theft is similar in kind to the example crimes, we
consider whether auto theft involves conduct that is similarly “purposeful, violent, and
aggressive” when compared to the conduct involved in auto theft’s closest analogue
among the example crimes.1 See James v. United States, 127 S. Ct. 1586, 1597 (2007)
(analyzing whether a crime falls within the “otherwise” clause by analogizing to the
most closely related example crime). We also recognize that Begay emphasized that
the “otherwise” clause should only encompass crimes “show[ing] an increased
likelihood that the offender is the kind of person who might deliberately point the gun
and pull the trigger.” Begay, 128 S. Ct. at 1587.

       As relevant to this case, a person commits the crime of auto theft under
Missouri law if he appropriates the property of another with the purpose of depriving
the owner of the property, either without the owner’s consent or by means of deceit
or coercion. See Mo. Rev. Stat. § 570.030. We consider the generic elements of the
offense rather than the specific details of how Williams committed the crime. See
Begay, 128 S. Ct. at 1584. The statutory definition, however, sets forth three distinct
offenses with different elements: auto theft without consent, auto theft by deceit, and
auto theft by coercion. See, e.g., Mo. Approved Charges-Criminal 24.02.1 (Stealing:
Without Consent), 24.02.2 (Stealing: by Deceit), & 24.02.3 (Stealing: by Coercion)
(standard form of approved charges for violations of Mo. Rev. Stat. § 570.030.1,
promulgated by authority of Mo. Sup. Ct. R. 23.01(b)).



      1
       When analyzing a predicate felony, Begay reiterates that courts should consider
how the law defines the crime, not how a crime might be committed on a particular
occasion. Begay, 128 S. Ct. at 1584; see Taylor v. United States, 495 U.S. 575, 602
(1990) (adopting the “categorical approach”).

                                          -5-
       To determine the closest analog among the example crimes, then, it is necessary
to look beyond the complete statutory definition of the crime to discover which part
of the statute Williams violated. This examination is limited, as per the “modified
categorical approach,” and we may look to “the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable
judicial record of this information.” United States v. Shepherd, 544 U.S. 13, 26
(2005).

       We cannot determine from the present record which of the three offenses
described by R.S.Mo. § 570.030 Williams committed. Accordingly, on remand,2 the
district court should consider permissible materials, as per Shepherd, and determine
the particular offense involved in Williams’s auto theft conviction. We believe it is
clear auto theft by deception is not a qualifying predicate offense under Begay. Auto
theft by deception is so “unlike” the example crimes as to make selection of the
closest analog an almost impossible exercise. We also believe it is clear the closest
analog to auto theft by coercion is the example crime of extortion. See Vernon’s Ann.
Mo. Stat § 570.030, Comment to 1973 Proposed Code (“Stealing by coercion
includes, but it not necessarily limited to, conduct which would have constituted
extortion and blackmail.”);3 State v. Cox, 752 S.W.2d 855, 857 (Mo. Ct. App. 1988)
      2
        See United States v. McCall, 439 F.3d 967, 974 (8th Cir. 2006) (en banc)
(analyzing an “overinclusive” state statute and remanding for the district court to
determine whether the defendant’s prior convictions fell under the portion of the
statute that qualified as a violent felony), rev’d on other grounds by Begay, 128 S. Ct.
at 1581. Our conclusion that auto tampering, one of the two predicate offenses in this
case, is not a crime of violence, means that Williams does not have two prior
convictions for crimes of violence. Remand as per McCall remains necessary,
however, to determine if Williams’s prior conviction for auto theft qualifies as a
crime of violence. For purposes of determining Williams’s base offense level,
U.S.S.G. § 2K2.1(a)(4)(A) sets a base offense level of 20 if a defendant has a prior
felony conviction for a crime of violence, while § 2K2.1(a)(6) sets the base offense
level at 14 if he does not have a such a prior felony conviction.
      3
       Missouri courts often rely upon these comments in interpreting code
provisions. See, e.g., State v. Lee Mech. Contrs., 938 S.W.2d 269, 272 (Mo. Banc.

                                          -6-
(describing the threat of harm required for offense of stealing by coercion). Auto theft
by coercion, with its inherent threat of violence and close similarity in kind to
extortion satisfies the two-part Begay test. This leaves only auto theft without
consent, to which the application of Begay is much less clear and which merits further
discussion.

       The closest analog to auto theft without consent among the example crimes is
burglary. See Begay, 128 S. Ct. at 1589 (Scalia, J., concurring) (arguing that, of the
example crimes, burglary poses the smallest risk for physical injury and that any
crime that poses less risk than burglary is not covered by the “otherwise” clause). The
Supreme Court identifies the elements of burglary as consisting of: “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. As the Supreme Court notes, “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.” Id. at 588. This possibility makes burglary
particularly violent and aggressive because the burglar’s “own awareness of this
possibility may mean that he is prepared to use violence if necessary to carry out his
plans or to escape.” Id. In contrast, while auto theft without consent may involve
some potential for confrontation, it does so to a far lesser extent.

       There are many crimes that involve dispossessing another of an automobile that
are far more violent than auto theft without consent and more closely analogous to
burglary. This observation helps us reach the conclusion that a prior conviction for
auto theft without consent is not a good indicator that the offender will “pull the
trigger” during a future crime. For example, a person using force to steal a vehicle
would be guilty of robbery under Missouri law. See Mo. Rev. Stat. § 569.020. Under
federal law, a person using force or intimidation to steal a car could be charged with
carjacking. 18 U.S.C. § 2119. We recognize that there is something more violent and
aggressive about someone who chooses to use force when stealing a car. Given that
a person who commits auto theft without consent has not demonstrated a similar
proclivity for violence and aggression, we cannot say that such a person is as likely

1997); State v. Beishir, 646 S.W.2d 74, 79 (Mo. Banc 1983).

                                          -7-
to use a gun in the commission of a future crime as a person who has committed one
of the example crimes.

       As further support for our conclusion, we note that legislative history indicates
that Congress did not intend to include auto theft without consent as a crime of
violence. The Supreme Court noted that “Congress singled out burglary (as opposed
to other frequently committed property crimes such as larceny and auto theft) for
inclusion as a predicate offense, both in 1984 and in 1986, because of its inherent
potential for harm to persons.” Taylor, 495 U.S. at 588. The Supreme Court’s
understanding of Congress’s intent, therefore, indicates that auto theft without consent
is simply too different in kind to be deemed a crime of violence.

       Similarly, auto tampering does not involve conduct that is similar in kind to the
example crimes because it includes a range of conduct that is neither violent nor
aggressive.4 First, auto tampering involves conduct that is clearly less violent and
aggressive than burglary. For example, tampering may be committed by merely
receiving, possessing, selling, altering, or defacing an automobile. Mo. Rev. Stat. §
569.080.1(2). Second, auto tampering is less serious than auto theft because it does
not require that the offender intend to permanently deprive the owner of the vehicle.
Third, Congress intended the Armed Career Criminal Act to encompass serious crimes
that are committed as means of sustaining the offender’s livelihood. Taylor, 495 U.S.
at 587-88 (discussing the kind of offenders targeted by Congress through the Armed
Career Criminal Act). The typical auto tampering offense is likely to be more closely
akin to joyriding. See, e.g., United States v. Sanchez-Garcia, 501 F.3d 1208, 1213
(10th Cir. 2007) (noting that unlawful use of means of transportation, the Arizona
equivalent to tampering, may take the form of joyriding). As such, it is hard to
imagine that Congress intended the “otherwise” clause to encompass auto tampering.
Finally, since tampering is generally a lesser included offense to auto theft, we would
be hard pressed to find auto tampering a crime of violence when we have now decided
auto theft without consent or by deceit is not such a crime.

      4
       Under Missouri law, a person tampers in the first degree if he knowingly
receives, possesses, sells, alters, defaces, destroys, or unlawfully operates an
automobile without the owner’s consent. See Mo. Rev. Stat. § 569.080.1(2).

                                          -8-
       While not a justification in itself for abandoning the reasoning of Sun Bear, our
holding that auto tampering and auto theft without consent or by deceit are not crimes
of violence brings us in line with all the other circuits that have addressed these issues.
See, e.g., Sanchez-Garcia, 501 F.3d at 1212 (holding that unlawful use of means of
transportation is not a crime of violence); United States v. Charles, 301 F.3d 309, 314
(5th Cir. 2002) (en banc) (holding that motor vehicle theft is not a crime of violence);
United States v. Crowell, 997 F.2d 146, 149 (6th Cir. 1993) (holding that aggravated
motor vehicle theft is not a crime of violence).

       The government could, but does not, argue that tampering and auto theft are
distinguishable from DUI based on the state of mind required by the statute. DUI is
a strict liability crime, whereas auto tampering and auto theft require knowledge or
purpose. See Begay, 128 S. Ct. at 1586-87 (discussing the mens rea typically required
for a DUI conviction). This distinction, however, does not carry the day. The
Supreme Court’s description of conduct that is similar in kind consistently uses “and”
to join the words “purposeful, violent, and aggressive conduct.” Begay, 128 S. Ct. at
1586 (emphasis added). Therefore, all characteristics should typically be present
before an “otherwise” crime reaches the level of an example crime. While auto theft
without consent or by deceit is certainly purposeful, as discussed above, it does not
involve the same level of violence and aggression as the example crimes.

          In accord with our typical rule, the government argues in its supplemental
brief that a panel may not overrule an earlier decision of another panel. See Jackson
v. Ault, 452 F.3d 734, 736 (8th Cir. 2006). That rule, however, does not apply when
there is intervening Supreme Court precedent: “Although one panel of this court
ordinarily cannot overrule another panel, this rule does not apply when the earlier
panel decision is cast into doubt by a decision of the Supreme Court.” Patterson v.
Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir. 1997) (emphasis added); see
Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). This Court is required to
“explicitly identify the error or changed circumstances and explain why a different
result is justified.” Jacobs v. Lockhart, 9 F.3d 36, 38 (8th Cir. 1993). For the reasons
discussed above, a different result is required because the reasoning in Sun Bear is
inconsistent with Begay.


                                           -9-
         In summary, applying Missouri law, we conclude that auto theft by deception,
auto theft without consent, and auto tampering are not crimes of violence for purposes
of U.S.S.G. § 2K2.1(a)(2). We find that auto theft by coercion is closely analogous
to extortion and constitutes a crime of violence.

                                  III. Conclusion

       Accordingly, we reverse and remand for resentencing. On remand, the district
court should consider permissible materials, as per the modified categorical approach
of Shepherd, and determine the particular offense involved in Williams’s auto theft
conviction.

                        _____________________________




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