                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-3825
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Eastern District of Arkansas.
Christopher D. Livingston, also           *
known as John Thurman,                    *               [PUBLISHED]
                                          *
             Appellant.                   *

                                ________________

                                Submitted: October 12, 2005
                                    Filed: April 5, 2006
                                ________________

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
                          ________________

HANSEN, Circuit Judge.

       Christopher D. Livingston appeals the district court's application of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (2000), to his sentence for Unlawful
Possession of a Firearm by a Convicted Felon and Aiding and Abetting the Receipt
of Stolen Firearms, 18 U.S.C. §§ 922(g), 922(j), & 2. Livingston argues that his prior
state court conviction for breaking or entering a vehicle under Arkansas law is not a
violent felony for purposes of the ACCA. We agree, vacate his sentence, and remand
for resentencing.
       Livingston pleaded guilty to Unlawful Possession of a Firearm by a Convicted
Felon and Aiding and Abetting the Receipt of Stolen Firearms. The ACCA sets a
mandatory minimum sentence of fifteen years for any conviction under 18 U.S.C.
§ 922(g) if the defendant "has three previous convictions by any court referred to in
section 922(g)(1) of this title for a violent felony1 or a serious drug offense." 18
U.S.C. § 924(e)(1). The district court applied the ACCA to Livingston's sentence
based on three prior state convictions for breaking or entering a vehicle, first degree
battery, and attempted residential burglary. The district court then calculated a
Guidelines sentencing range of 180 to 188 months, the bottom of which was based on
application of the fifteen-year statutory mandatory minimum, and sentenced
Livingston to a 180-month sentence.2 Livingston challenges the district court's
characterization of his prior conviction for breaking or entering a vehicle as a violent
felony for purposes of the ACCA.

        We review de novo the legal issue of whether Livingston's prior conviction was
a violent felony for purposes of the ACCA. United States v. Johnson, 417 F.3d 990,
995 (8th Cir. 2005). Livingston argues that breaking and entering a vehicle is not
included in the offense of burglary, the first enumerated crime listed in
§ 924(e)(2)(B)(ii), while the government focuses on the "otherwise involves" clause
at the end of § 924(e)(2)(B)(ii). We agree with Livingston that breaking and entering

      1
       A "violent felony" for purposes of the ACCA is defined as:

      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 . . . .

§ 924(e)(2)(B).
      2
      Without application of the ACCA, Livingston's Guidelines range would have
been 151 to 188 months.
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a vehicle is not included within the definition of burglary as used in § 924(e)(2)(B).
See Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 1257 (2005) ("The
[ACCA] makes burglary a violent felony only if committed in a building or enclosed
space ('generic burglary'), not in a boat or motor vehicle."); Taylor v. United States,
495 U.S. 575, 599 (1990) (limiting § 924(e) burglary to generic burglary of a building
or other structure, noting that some state statutes provide broader definitions that
include burglary of automobiles or vending machines). The Supreme Court left open
the possibility that crimes that do not fit within the generic definition of burglary may
still fit within the "otherwise involves" definition of a violent felony. Taylor, 495 U.S.
at 600 n.9. We turn then to the issue of whether breaking and entering a vehicle in
violation of Arkansas law "involves conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

      "[T]o determine whether a prior conviction was a violent felony within the
meaning of the 'otherwise involves' provision in § 924(e)(2)(B)(ii), the sentencing
court must first determine whether the elements of that prior crime involved or
described conduct that 'necessarily entails a serious potential risk of physical injury.'"
United States v. McCall, No. 04-1143, 2006 WL 625687, at *2 (8th Cir. Mar. 15,
2006) (en banc) (quoting United States v. Montgomery, 402 F.3d 482, 488 (5th Cir.
2005) (emphasis added)). We apply Taylor's categorical approach to our inquiry,
focusing only on the elements of the offense rather than the underlying facts of
Livingston's conviction. Id.

       Livingston was convicted of breaking or entering in violation of Arkansas Code
§ 5-39-202, which criminalizes the breaking or entering of a variety of items for the
purpose of committing a theft or felony. Because the statute of conviction
criminalizes the breaking or entering of various things, including "any building,
structure, vehicle, vault, safe, cash register, money vending machine," or similar
containers, § 5-39-202(a), we look to the charging papers for the limited purpose of
determining the specific elements for which Livingston was convicted. See Taylor,

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495 U.S. at 602; McCall, 2006 WL 625687, at *5-6 (extending Taylor's use of the
facts as stated in the charging papers in applying the categorical approach for defining
burglary to determining whether a prior conviction satisfied the "otherwise involves"
prong of § 924(e)(2)(B) and noting that fact recitals listed in a PSR that are
attributable to the charging papers and not objected to by the defendant are sufficient
to establish the charged conduct). According to the presentence report (PSR), the
charging instrument in Livingston's breaking and entering conviction, charged that "on
the 28th day of August 1983, for the purpose of committing a theft, [Livingston] did,
enter or break into a vehicle." (PSR at 4, ¶ 29.) We must therefore decide whether
the act of breaking or entering a vehicle for the purpose of committing a theft
necessarily "involves conduct that presents a serious potential risk of physical injury
to another." We conclude that it does not.

       The government argues that our prior case of United States v. Sun Bear, 307
F.3d 747 (8th Cir. 2002), cert. denied, 539 U.S. 916 (2003), is controlling here and
that we are bound by it to conclude that breaking and entering a vehicle in violation
of Arkansas Code § 5-39-202 is a violent felony. In Sun Bear, we held that an
attempted theft of an operable vehicle in violation of section 76-6-404 of the Utah
Code was a "crime of violence" for purposes of the U.S. Sentencing Guidelines
Manual (USSG) § 4B1.2(a)(2)3 under its "otherwise involves" clause, which is
identical to the "otherwise involves" clause contained in § 924(e)(2)(B)(ii). 307 F.3d
at 752-53. See also United States v. Sprouse, 394 F.3d 578, 581 (8th Cir. 2005)
(relying on Sun Bear to hold that a felony conviction for motor vehicle theft is a
violent felony under § 924(e)).

       In Sun Bear, we evaluated not only the risks entailed by the crime itself, but
also the likely consequences of the crime. 307 F.3d at 752. After reviewing our

      3
        The definition of "crime of violence" under USSG § 4B1.2 is identical to the
definition of "violent felony" under § 924(e) except that the list of enumerated crimes
in § 4B1.2 includes "burglary of a dwelling," whereas § 924(e) lists only "burglary."
                                          -4-
precedents holding that commercial burglary and walkaway escapes are crimes of
violence under the "otherwise involves" clause of USSG § 4B1.2(a), we concluded
that vehicle theft "presents a likelihood of confrontation as great, if not greater, than
burglary of commercial property, and it adds many of the dangerous elements of
escape." Id. We noted that the crime "begins when a thief enters and appropriates a
vehicle," and that "[o]nce the thief drives away with the vehicle, he is unlawfully in
possession of a potentially deadly or dangerous weapon." Id. (emphasis added). Sun
Bear is a case close to, if not sitting on, the line that delineates the farthest reaches of
what we are willing to call a violent felony. Indeed, other circuits have determined
that automobile theft is not a crime of violence, with whom we parted ways in Sun
Bear. See, e.g., United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en banc)
(holding that a Texas conviction for motor vehicle theft is not a crime of violence for
purposes of § 4B1.2 of the Guidelines); United States v. Crowell, 997 F.2d 146, 149
(6th Cir. 1993) (holding that aggravated motor vehicle theft under Colorado law was
not a crime of violence under the Guidelines). We must decide if breaking and
entering a vehicle for the purpose of committing a theft is sufficiently akin to
automobile theft that we are bound by Sun Bear, or if it is different enough that we
can draw the violent felony line between theft of a vehicle and breaking or entering
a vehicle.

       We start by determining whether the en banc decision in McCall affects the
precedent set by Sun Bear. In McCall, the en banc court held "that, by its nature, a
felony conviction for driving while intoxicated presents a serious potential risk of
physical injury to another and is therefore a violent felony under the 'otherwise
involves' provision in § 924(e)(2)(B)(ii)." McCall, 2006 WL 625687, at *4. The
court remanded the case, however, because the Missouri statute also made criminal
the operation of a motor vehicle while intoxicated, which the Missouri courts have
construed to include "merely causing the vehicle to function by starting its engine."
Id. at *5. The court noted that there were scenarios in which operating a motor
vehicle while intoxicated would not necessarily present a serious risk of physical

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injury, for example, the inebriated car owner who chooses to sleep off his drunken
state in his car, but turns on the engine to keep warm. Id. Without the charging
papers from the two prior DWI offenses, the court could not determine whether
McCall was charged with driving or merely operating a vehicle while intoxicated.

        While physical injury need not be an element of the underlying offense, "the
inherent potential for harm must be present, if not in every violation, at least in a
substantial portion of the circumstances made criminal by the statute." Id. at *3. In
other words, the criminal conduct contemplated by the offense must present "the
'inherent potential for harm to persons.'" Id. (quoting Taylor, 495 U.S. at 588). The
McCall court noted that driving in and of itself creates a risk of physical injury, but
determined that that risk was not a "serious potential" one. The court relied on
statistics tending to prove what has become common knowledge, that driving under
the influence of alcohol drastically increases the risk of physical injury, to the point
of creating a serious potential risk of physical injury sufficient to satisfy the
"otherwise involves" prong of the definition of a violent felony. Id. at *4 & n.3
(providing statistics).

        Another case recognized the difference between operating a vehicle and merely
possessing it. In Johnson, we held that the Missouri crime of tampering with an
automobile by unlawful operation was sufficiently similar to automobile theft to
constitute a violent felony. See Johnson, 417 F.3d at 997. The Missouri statute under
which Johnson was convicted included both tampering by operation and tampering
by possession, the latter of which required that the defendant merely enter a vehicle
in a manner consistent with possession, whereas the former required the defendant to
start the automobile's engine. Under Missouri law, tampering by possession is a lesser
included offense of automobile theft, and we concluded that "tampering by operation
represents an escalated, and more dangerous, form of tampering by possession." Id.
at 998. Finding tampering by operation indistinguishable from the automobile theft
in Sun Bear, we affirmed the district court's application of the ACCA. Id. at 997.

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       The Johnson panel recognized a difference between the offenses of tampering
by operation and tampering by possession, holding that the former was a violent
felony but indicating that the latter was not. See id. at 998 n.6 (finding it necessary
to distinguish between tampering by operation and tampering by possession in
applying the Taylor categorical approach because specific categories of a general
statute may be violent felonies while other categories may not); see also United States
v. Adams, No. 05-2180, 2006 WL 721793, at *1 (8th Cir. Mar. 23, 2006) ("[T]he
Missouri crime of tampering with a motor vehicle is 'overinclusive' in that tampering
by operation involves conduct that presents a serious potential risk of physical injury
to another, while tampering by possession does not . . . ."). Although tampering by
possession does not explicitly contain the additional element of entering for the
purpose of committing a theft, as involved in the present case, it does reinforce our
belief that breaking or entering a vehicle entails less of a potential for physical harm
than automobile theft.

       In Sun Bear, we were concerned with the thief's unlawful possession and
operation of a potentially deadly or dangerous weapon–the vehicle. Sun Bear, 307
F.3d at 753. We noted the risk created by a thief driving recklessly and turning any
pursuit into a high speed chase and the potential for harm to pursuing police officers
or innocent bystanders. Id. All that we have here is breaking or entering a vehicle for
the purpose of committing a theft, a class D felony under Arkansas law. A thief
breaking into a vehicle is not appropriating and operating a potentially deadly weapon
unless he also commits the crime of theft of the vehicle. Breaking and entering alone
contemplates a thief who breaks into a vehicle for the purpose of stealing, for
example, compact discs or a stereo, and then flees the targeted vehicle. Although it
could be argued that Livingston intended to steal the vehicle, that fact was not charged
in the indictment, and we are limited to those charges. Furthermore, if the evidence
supported those facts, Livingston could have been charged with the potentially more
serious crime of attempted auto theft. See Ark. Code § 5-36-103 (punishing auto theft
of a vehicle worth more than $2,500 as a class B felony and a vehicle worth between

                                          -7-
$500 and $2,500 as a class C felony); Ark. Code § 5-3-203 (punishing attempt one
level below the punishment for the substantive crime). Thus, the circumstances that
created many of the dangers found to be of concern in Sun Bear are not present here.
We cannot say that a substantial portion of the convictions for breaking or entering
a vehicle with the purpose of committing a theft includes, as a categorical matter, the
potential for the type of harm we found inherent in vehicle theft.

       Sun Bear relied on the similarities of automobile theft to the offenses of
breaking into a commercial building and escape. We determined that the offense of
automobile theft was similar to the "powder keg" associated with escape because of
the thief's control and operation of the stolen vehicle. Sun Bear, 307 F.3d at 752
(noting "that every escape is a 'powder keg' with 'the serious potential to explode into
violence'"). As we noted above, those dangers are lacking here, where there is no
element of control or operation of the vehicle into which the defendant breaks or
enters. Our final consideration is Sun Bear's concerns stemming from the similarities
between automobile theft and burglarizing a commercial building.

       The Supreme Court distinguished burglary of a vehicle from burglary of a
building, though it left open the possibility that an offense similar to generic burglary
of a building or structure might fit the "otherwise" prong under § 924(e). See Taylor,
495 U.S. at 600 n.9. "[I]n order to fall under the 'otherwise' clause, a breaking and
entering offense must contain elements truly comparable to those of a
burglary–comparable enough that the offense poses an equivalent risk of physical
injury." United States v. Peterson, 233 F.3d 101, 110 (1st Cir. 2000) (holding that a
Rhode Island offense for unlawful breaking and entering of a dwelling house that did
not have a criminal intent element was not a violent felony because there were many
circumstances covered by the offense that did not create the risk created by breaking
and entering with the intent to commit a crime). But it requires something more than
breaking and entering a vehicle to meet the “otherwise” prong in this case–if not,
breaking and entering a vehicle would fit the burglary prong, a proposition rejected

                                           -8-
by the Supreme Court in Taylor and Shepard. In Sun Bear, the additional element of
the control of a stolen vehicle supplied the "something more" that made the risk of
physical injury attendant to automobile theft equivalent to the risk of physical injury
inherent in generic burglary of a building. There are no additional elements to the
breaking or entering of a vehicle offense that make a substantial portion of its
convictions as inherently likely to result in physical harm as the risk of physical injury
stemming from the burglary of a building.

       Our reasoning in McCall and Johnson convinces us that breaking or entering
a vehicle is one step removed from the dangers inherent in automobile theft and that
breaking or entering a vehicle does not cross the line into what constitutes a violent
felony. Both cases recognize a difference in the dangers inherent in operating a
vehicle as opposed to merely possessing a vehicle. Further, McCall reinforces the
categorical approach required by Taylor, that "the inherent potential for harm must be
present, if not in every violation, at least in a substantial portion of the circumstances
made criminal by the statute." McCall, 2006 WL 625687, at *3. Because the offense
of breaking or entering a vehicle for the purpose of committing a theft does not require
the offender to possess, much less operate, the vehicle, we believe it creates less
danger of physical harm than vehicle theft, and subsequently the outcome of this case
is not controlled by Sun Bear. We hold that breaking or entering a vehicle for
purposes of committing a theft under Arkansas law is not a violent felony for purposes
of the ACCA. We therefore vacate the sentence imposed by the district court and
remand for resentencing.

       Because we reverse the district court's application of the Armed Career
Criminal Act and remand for resentencing, we need not address Livingston's Blakely
v. Washington, 542 U.S. 296 (2004), challenge. Livingston's sentence is vacated, and
the case is remanded for resentencing consistent with this opinion.
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