                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0130n.06

                                           No. 09-5495
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS
                                                                                    Feb 02, 2012
                               FOR THE SIXTH CIRCUIT
                                                                              LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF KENTUCKY
ANTONIO DWAYNE CLARK,                  )
                                       )
      Defendant-Appellant,             )                        OPINION
                                       )
_______________________________________)

       Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge.*

       Michael R. Barrett, District Judge. Appellant Antonio Dwayne Clark was convicted of

Possession of a Firearm by a Convicted Felon under 18 U.S.C. § 922(g)(1), classified as an armed

career criminal under the Armed Career Criminal Act (“ACCA”), and sentenced to 180 months

imprisonment. Two of the convictions used to classify Clark as an armed career criminal under the

ACCA were for wanton endangerment, violations of Kentucky Revised Statute (“KRS”) § 508.060.

       Clark challenges his classification as an armed career criminal and argues that the district

court erred in finding that Kentucky’s wanton endangerment offense constituted a violent felony

under the ACCA. For the reasons that follow, we AFFIRM the sentence of the district court.




       *
        The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 09-5495
United States v. Antonio Clark

                                                   I.

        Antonio Dwayne Clark was indicted on October 2, 2008, on one count of being a convicted

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The government alleged that

in July 2008, Clark fled from Lexington, Kentucky police officers during a traffic stop. During the

pursuit Clark allegedly dropped a firearm, which, as a convicted felon, he was prohibited from

possessing. Along with the criminal charge, the government also filed a notice specifying that Clark

be classified as an armed career criminal under the ACCA, based in part on two previous convictions

for wanton endangerment. After a one-day jury trial Clark was convicted as charged. Sentencing

was set for March 27, 2009.

        Prior to sentencing, Clark filed an objection to the presentence investigation report, arguing,

inter alia, that under the United States Supreme Court decision in Begay v. United States, 553 U.S.

137 (2008), crimes such as wanton endangerment could not be classified as violent crimes.

        At the March sentencing hearing, the district judge continued the sentencing date to April 9,

2009, and requested that the parties submit briefs on the applicability of the decision in United States

v. Baker, 559 F.3d 443 (6th Cir. 2009), a case where we rejected the district court’s classification

of Tennessee’s reckless endangerment offense as a crime of violence under the United States

Sentencing Guidelines.

        At the April sentencing hearing, the district judge addressed Clark’s objections to his

classification as an armed career criminal under 18 U.S.C. § 924(e) and to the district court’s

consideration of “extraneous” matters beyond the statutory definition in determining whether Clark’s

convictions were violent felonies for purposes of the ACCA. The district judge determined that

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United States v. Antonio Clark

while Kentucky’s wanton endangerment statute clearly criminalized conduct that presents a serious

potential risk of physical injury to another, the court must decide whether the offense involved the

kind of purposeful, violent, and aggressive conduct similar to the enumerated examples of burglary,

arson, extortion, and offenses involving explosives found in § 924(e)(2)(B)(ii).

       The district judge found that the Kentucky statute was facially ambiguous because it was not

clear whether it criminalized purposeful, violent, and aggressive conduct. To determine whether

Clark’s offenses were violent felonies under the ACCA, the district judge looked beyond the

statutory definition of wanton endangerment to the documents and findings underlying the

conviction.

       The district court ultimately found that Clark’s prior convictions for wanton endangerment

were violent felonies because they involved the firing of a weapon into a home and vehicle, which

the court found were similar in kind and degree of risk posed to the enumerated examples. The

district judge overruled Clark’s objections to the presentence report and classified him as an armed

career criminal. Clark was sentenced to the mandatory minimum term under the ACCA -- 180

months in the Bureau of Prisons.

                                                II.

       We review de novo the legal question of whether a prior conviction constitutes a “crime of

violence” under the ACCA. United States v. Martin, 378 F.3d 578, 580 (6th Cir. 2004).

       The ACCA, 18 U.S.C. § 924(e), provides in relevant part as follows:

               (1) In the case of a person who violates section 922(g) of this title and has
               three previous convictions by any court referred to in section 922(g)(1) of


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United States v. Antonio Clark

               this title for a violent felony or a serious drug offense, or both, committed
               on occasions different from one another, such person shall be fined under
               this title and imprisoned not less than fifteen years . . .

               (2) As used in this subsection— . . .

               (B) The term “violent felony” means any crime punishable by imprisonment
               for a term exceeding one year . . . that—

               (i) has as an element the use, attempted use, or threatened use of physical
               force against the person of another; or

               (ii) is burglary, arson, or extortion, involves use of explosives, or
               otherwise involves conduct that presents a serious potential risk of
               physical injury to another . . . .

       Two of the statute’s provisions define the term “violent felony,” including the so-called

“residual” clause of part (ii), which includes offenses not otherwise listed in § 924(e) that

nonetheless present a “serious potential risk of physical injury to another.” When the statutory

elements of an offense do not include the use, attempted use, or threatened use of physical force

against another, and when the offense is not burglary, arson, extortion, or involves use of explosives,

then the question is whether the offense constitutes a violent felony under the residual clause of the

ACCA.

       Previously, when determining whether an offense qualified as a violent felony under the

ACCA’s residual clause, we applied a two-part test: (1) whether the offense “poses a serious

potential risk of physical injury to others”; and (2) whether the offense “involves the same kind of

purposeful, violent, and aggressive conduct as the enumerated offenses of burglary, arson, extortion,




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United States v. Antonio Clark

or offenses involving the use of explosives.” United States v. Benton, 639 F.3d 723, 731 (6th Cir.

2011) (quoting United States v. Young, 580 F.3d 373, 377 (6th Cir. 2009)).

        Recently, however, the United States Supreme Court narrowed the application of the

purposeful, violent, and aggressive formulation of the residual clause, clarifying that while it is a

consideration in determining whether an offense is similar to the enumerated offenses of §

924(e)(2)(B)(ii), or more “akin to strict liability, negligence, and recklessness crimes,” it is not

required, and should not be the main point of comparison. Sykes v. United States, 131 S. Ct. 2267,

2276 (2011). In Sykes, the Supreme Court reiterated that risk levels provide a categorical and

manageable standard. Id.

        When analyzing whether an offense constitutes a violent felony under the ACCA, we use the

“categorical” approach and look “only to the statutory definitions of the prior offenses, and not to

the particular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575, 600

(1990). But, when we are faced with a criminal law that may be violated in a way that amounts to

a crime of violence, and a way that does not, we may look beyond the elements of the crime, to the

indictment, guilty plea, and similar documents to see if they establish the nature of the prior offense.

United States v. Ford, 560 F.3d 420, 422 (6th Cir. 2009) (citing Shepard v. United States, 544 U.S.

13, 26 (2005)).

        In this case, Clark’s previous convictions under Kentucky’s wanton endangerment statute

were two of the predicate offenses on which the district court based its classification of Clark as an

armed career criminal under the ACCA.



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No. 09-5495
United States v. Antonio Clark

        The district court went beyond the “categorical” approach in determining whether Clark’s

offenses were violent felonies, finding that “the Kentucky statute is facially ambiguous because it

is not entirely clear from the face of the Kentucky statute whether it criminalizes the type of

purposeful violent and aggressive conduct as in enumerated examples.” (R.48, Sentencing Hr’g. Tr.

13:5–9.) The district court found it necessary to consider “the charging document, written plea

agreement, transcript of plea colloquy, and any explicit finding by the trial judge associated with Mr.

Clark’s convictions to determine whether they were for crimes of violence.” (Id. at 13:10–14.)

        After looking beyond the statutory definition of Clark’s offenses, the district court found that

Clark’s prior convictions were for violent crimes, “as they involved the firing of a weapon into a

home and a vehicle which are similar in kind and degree of risk posed to the enumerated examples.”

(Id. at 13:15–20.)

        Clark argues that Kentucky’s wanton endangerment statute is not a categorically violent

felony under the ACCA, and that the district court erred by going beyond the categorical approach

to determine whether a conviction based on a facially ambiguous statute was a violent felony under

the ACCA. We disagree. Because Kentucky’s wanton endangerment statute involves a substantial

risk of death or serious physical injury to another, and requires proof of a mental state with a higher

level of culpability than crimes involving recklessness, negligence, or strict liability, it qualifies as

a violent felony under the ACCA’s residual clause.

        Under Kentucky law, a person is guilty of wanton endangerment in the first degree when,

“under circumstances manifesting extreme indifference to the value of human life, he wantonly

engages in conduct which creates a substantial danger of death or serious physical injury to another

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United States v. Antonio Clark

person.” KRS § 508.060. Wanton conduct occurs when a person is “aware of and consciously

disregards a substantial and unjustifiable risk that the result will occur or that the circumstance

exists.” KRS § 501.020(3). In order to constitute wanton conduct, the risk must “be of such nature

and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a

reasonable person would observe in the situation.” Id.

        In Kentucky, wanton endangerment is not limited to specific types of conduct, and examples

of previous convictions for violations of the statute illustrate both the heightened level of mental

culpability and the active conduct involved in the offense. See Paulley v. Commonwealth, 323

S.W.3d 715 (Ky. 2010) (defendant shot through front door of home with nine people present); Fister

v. Commonwealth, 133 S.W.3d 480 (Ky. Ct. App. 2003) (engineer operated heavy machinery close

to person repairing gas line); Hancock v. Commonwealth, 998 S.W.2d 496 (Ky. Ct. App. 1998)

(intercourse with partner without informing partner of being HIV positive).

        Applying the categorical approach in light of the revised emphasis on risk required by Sykes,

Kentucky’s first-degree wanton endangerment offense constitutes a violent felony under the ACCA.

The offense includes a substantial danger of death or serious physical injury to another, which is

clearly the type of serious, physical risk envisioned by the drafters of the ACCA. In addition, the

offense involves a conscious disregard of the risk, an active mental state more closely related to the

enumerated examples of burglary, arson, extortion, and offenses involving explosives, than it is to

offenses that include a mental state of recklessness, negligence, or no mental state at all under strict

liability. This analysis and result comport with our recent decision in United States v. Meeks, —

F.3d —, No. 10-5336, 2012 WL 15169, at *3 (6th Cir. Jan. 5, 2012) (footnote omitted). (“We can

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No. 09-5495
United States v. Antonio Clark

conceive of no way to violate the Kentucky first degree wanton endangerment statute in a way that

would not present the same level of risk as the listed crimes. Accordingly, in light of Sykes’s retreat

from Begay’s ‘purposeful, violent, and aggressive conduct’ inquiry, we again conclude that wanton

endangerment is categorically a ‘crime of violence’ for purposes of § 4B1.1.”)

       We find that Kentucky’s first-degree wanton endangerment is categorically a violent felony

under the ACCA, and therefore it is unnecessary to reach the question of whether the trial judge

erred in applying the modified categorical analysis in Clark’s case.

                                                 III.

       The judgment is AFFIRMED.




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