Lead Opinion
Federal law makes it a crime to possess body armor after having been convicted of a “crime of violence” as defined in 18 U.S.C. § 16 (“section 16”). See 18 U.S.C. § 931. Appellant David Fish possessed body armor after having been convicted of several crimes, and the district court ruled that at least one of those several offenses qualified as a crime of violence under section 16. Following that ruling, Fish entered a conditional plea of guilty, reserving the right to challenge on this timely appeal the determination that he had previously been convicted of a crime of violence.
In defense of the district court’s determination, the government points to four crimes under Massachusetts law for which Fish had previously been convicted: breaking and entering in the daytime, see Mass. Gen. Laws ch. 266, §§ 17-18, breaking and entering at night, see id. § 16, assault and battery with a dangerous weapon, see id. ch. 265, § 15A(b), and possession of a burglarious instrument, see id. ch. 266, § 49. Notwithstanding their aptly-styled titles, we find that none of those crimes, as defined under Massachusetts law, qualifies as a crime of violence under section 16. We therefore reverse Fish’s conviction.
I. Facts
The following facts are taken from the prosecution’s presentation at Fish’s plea colloquy. At the colloquy, Fish admitted to all facts necessary to support his guilty plea. The facts are uncontested on appeal.
On June 18, 2009, Fish, who was working as an auto mechanic at a repair shop in Pittsfield, Massachusetts, reported to the Pittsfield Police Department that someone had broken into a police vehicle that had been left at the shop for repair. After examining the vehicle, police discovered that several bulletproof vests were missing. In early July, the department learned through a cooperating witness that Fish was offering to sell six bulletproof vests. An undercover officer contacted Fish through the cooperating witness and purchased five vests, which the department afterwards identified as five of the vests that had been stolen from its vehicle. The vests, manufactured outside Massachusetts, had traveled interstate for sale in the Commonwealth.
A federal grand jury eventually returned an indictment charging Fish with a single count of possessing body armor in violation of 18 U.S.C. § 931(a), the federal body armor statute, which prohibits any person who “has been convicted of a felony that is ... a crime of violence (as defined
The district court denied the motion to dismiss, finding that “[a]t a minimum, the convictions for breaking and entering satisfy the requirements of section 16].” The court also rejected Fish’s challenge to the constitutionality of the body armor statute. Fish entered a conditional guilty plea under Rule 11(a)(2) of the Federal Rules of Criminal Procedure, preserving his right to challenge on appeal the district court’s denial of his motion to dismiss the indictment. On June 7, 2012, the district court entered a final judgment, sentencing Fish to forty-eight months’ probation, with ten months to be served in a community corrections facility. This appeal followed.
II. Standard of Review
Whether a prior conviction is a qualifying offense under section 16 is a question of law that we review de novo. See Aguiar v. Gonzales,
III. Analysis
The difficulty posed by this and similar cases arises from the fact that there is no master list of offenses that qualify as crimes of violence. Rather, section 16 sets forth two qualitative definitions of the term “crime of violence,” leaving it to the courts to measure each crime against these definitions, which read as follows:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 16.
The candidates for satisfying these definitions are legion and varied. Each state defines its own crimes, generally without reference to (and often, we presume, without knowledge of) the section 16 definitions. Similar-sounding crimes may have different elements from state to state. E.g., Sykes v. United States, — U.S. -,
Compounding the difficulty of working with section 16’s two qualitative definitions is the fact that Congress has also adopted an entirely separate, but quite similar, definition of the term “violent felony” as used in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). ACCA defines “violent felony” as follows:
[T]he 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*5 involves conduct that presents a serious potential risk of physical injury to another.
The partially overlapping, two-pronged definitions of the terms “crime of violence” and “violent felony” have given rise to multiple lines of precedent, each offering both the advantages and the limitations of cross-over application by analogy. E.g., United States v. Leahy,
A third and greater complexity arises from the fact that many crimes are defined in a manner broad enough to cover both conduct that clearly meets one or both of the section 16 definitions and conduct that clearly does not. For example, in Massachusetts, the broad definition of simple assault and battery encompasses both a devastating beating and a tap on the shoulder. See generally United States v. Holloway,
The Supreme Court has grappled repeatedly with this third complexity, establishing and then refining a set of rules to be employed in classifying a defendant’s prior offenses of conviction. These rules derive in great part from the need to honor the requirements of the Sixth Amendment’s right to jury trial. Their principal purpose is to ensure that before we send a person to jail for doing “X,” either the person must admit to “X” or a jury (or jury-waived court) must convict the person of doing “X” following a fair trial. See Shepard v. United States,
The first set of rules to be applied forms what is known as the “categorical” approach. Aguiar v. Gonzales,
A second set of rules recognizes an exception to the categorical approach. If an offense’s elements are overbroad — if, that is, they encompass conduct that does not require all the elements necessary to render the offense a predicate — we are sometimes authorized to apply the “modified” categorical approach. Under that approach, we first determine whether the prior conviction took place under a “divisible” statute. Descamps,
Third, in assessing whether the elements of the candidate proposed as a predicate crime are overbroad, we need not consider fanciful, hypothetical scenarios. See Gonzales v. Duenas-Alvarez,
A. Daytime and Nighttime Breaking and Entering
Because the district court based its judgment on Fish’s prior convictions for “B & E Daytime Felony” under an unidentified statute and for breaking and entering a building in the nighttime with the intent to commit a felony, see Mass. Gen. Laws ch. 266, § 16, we begin our analysis by considering the applicability of section 16 to these offenses. The government’s brief on appeal argues that even though the records of the former conviction state only that Fish was convicted of a “B & E Daytime,” one could conclude from them that Fish had been convicted under a statute, Mass. Gen. Laws ch. 266, § 17, which requires as an element that a person lawfully in the structure broken into have been put in fear. Before oral argument, however, the government submitted a Rule 28(j) letter in which it withdrew that interpretation of the records of conviction. Then, at oral argument, the government said it had “trouble making sense of’ the records of conviction as they related to the statute, ultimately conceding that we should analyze the least culpable conduct that qualifies as daytime B & E, see Aguiar v. Gonzales,
Both daytime and nighttime B & E may be committed by breaking into a “building, ship, vessel or vehicle.” Id. at § 16; see also id. at § 18 (“... building, ship or motor vehicle or vessel ... ”). Presumably because the breaking need not involve the use of force, e.g., Commonwealth v. Burke,
Though the applicability of section 16(b) to the two Massachusetts B & E offenses is a question of first impression in this circuit, our analysis does not take place on a blank slate. In United States v. Brown,
The government concedes the correctness of Brown and Famll, but asks us to limit those holdings on the ground that, unlike section 16(b), neither ACCA nor the guidelines provision takes account of the risk of the use of force against property. This is a fair point. The problem, though, is that the Massachusetts offense plainly does not require any conduct that involves or substantially risks the use of force against property. Rather, it reaches such non-forceful acts as walking through an unlocked door without permission. See Tilley, 355 Mass, at 508,
This conclusion likewise dooms the government’s final argument, that we should write off as not the “ordinary case” any application of the Massachusetts statutes to conduct that does not pose the relevant risks. Without an empirical foundation for its proposed application of the “ordinary case” approach, the government directs our attention to the Supreme Court’s suggestion in Leocal v. Ashcroft,
Having twice determined that the Massachusetts breaking and entering statutes, applying as they do to nonviolent entries of rarely-occupied structures through unlocked doors or windows, do not necessarily involve conduct that would pose a risk of physical injury or of the use of force, we now hold that Fish’s prior convictions for daytime B & E and nighttime B & E are not categorically crimes of violence under section 16(b).
B. Assault and Battery with a Dangerous Weapon
The next offense to which the government points is the Massachusetts crime
The government, with good reason, nevertheless declines to argue that ABDW qualifies under section 16(a). As we have noted, section 16(a) requires that a predicate offense have “as an element the use, attempted use, or threatened use of physical force.” The Supreme Court recently held, in the context of ACCA’s force clause, 18 U.S.C. § 924(e)(2)(B)(i), that “the phrase ‘physical force’ means violent force,” see Johnson v. United States,
The government therefore focuses its argument on section 16(b), which contains no requirement that violent force be employed. Section 16(b) does, however, require a “substantial risk” that physical force “may be used” in the course of committing an offense. In theory, it might be possible to construe the reference to the “use[ 1” of force so broadly as to encompass offenses involving strict liability, negligence, or recklessness, so long as some adequate level of violent impact were involved. Just such a construction was urged on the Supreme Court in Leocal v. Ashcroft,
So the key question is whether Massachusetts ABDW allows convictions based on mere recklessness. The answer is clearly yes, as long as the recklessness causes non-trivial bodily harm. E.g., Commonwealth v. Burno,
In support of this position, the government relies on United States v. Hart,
Having determined that ABDW posed a sufficient risk of injury to qualify under ACCA’s residual clause, we proceeded, pursuant to the Supreme Court’s analysis in Begay v. United States,
We need not question Hart’s holding as to ABDW’s similarity to ACCA’s listed offenses. But that holding, based as it is on an inquiry into whether ABDW is “typically purposeful, violent, and aggressive,” cannot establish that ABDW satisfies section 16(b). To the extent that the “typically purposeful, violent, and aggressive” test requires that an offense involve purposefulness at all,
Finding no comfort in Hart’s holding, the government points out that our opinion in Hart employed language that can be read to go beyond what Begay required. Specifically, Hart’s analysis of the “purposeful, violent, and aggressive” test contains the following references to the “ordinary case”:
It is true that an ABDW conviction may rest on a recklessness theory, and it is not insignificant that reckless ABDW may be committed with a seemingly innocent object used in a dangerous fashion, as in the case of reckless, vehicular ABDW. But this fact pattern does not represent the vast majority of ABDW convictions, and our analysis under the residual clause is explicitly, and necessarily, limited to the “ordinary case.” James v. United States,550 U.S. 192 , 208,127 S.Ct. 1586 ,167 L.Ed.2d 532 (2007).
... In considering the ‘ordinary case [ ]’ of ABDW, James,550 U.S. at 208 ,127 S.Ct. 1586 , we must conclude that a composite of purposeful, violent, and aggressive conduct is the norm. See Begay,553 U.S. at 144-45 ,128 S.Ct. 1581 .
As an initial matter, the license the government would draw from this language rests on dictum. As we have explained, Begay’s test for similarity to ACCA’s enumerated offenses was never intended to operate as a rigorous comparison between the conduct necessarily underlying a prior conviction and the conduct described in a recidivist statute. See Sykes v. United States, — U.S. -,
The government concedes that Hart is, “to be sure, ... not dispositive” of this case, and we take that concession at face value. The dissent, however, overshoots the government, proposing that we transform the Begay test — an inquiry designed to narroiv ACCA’s application even when a crime, in all its actual applications, poses the risk that ACCA’s text requires — into one that broadens section 16(b)’s application. For this simple reason, we cannot accede to the dissent’s suggestion that Be-gay’s focus on the “usual circumstances” of an offense now binds us to conclude that everything outside those “usual circumstances” is, in James’s terms, “hypothesize[d].” See James, 550 U.S. at 208, 127 5.Ct. 1586.
Our analysis under section 16(b) is therefore governed by James, Duenas-Al-varez, and Leocal, not by Begay. And in defining the “ordinary case” as it applies to the “risk” inquiry, James explains that sentencing courts may disregard only “hy-pothetize[d]” factual scenarios.
In so concluding, we acknowledge that at least one court has, in an analogous situation, relied on James to find license under the “ordinary case” approach to look only to what it imagined might be the typical case of conviction, in the process ignoring a state statute’s overbreadth even in the face of actual applications of the statute to conduct that failed to meet the textual requirements of the federal statute at issue. See, e.g., United States v. Mayer,
We are guided here not merely by the thrust of Descamps, but by its language, as well. Descamps contains myriad warnings to the effect that “[wjhether the statute of conviction has an overbroad or
To adopt that approach would ensnare us into deciding how big a “minority” of actual convictions for unqualifying offenses under an overly broad definition we may permissibly ignore. One option, in theory, would be to find empirical tools for confidently gauging whether actual convictions met whatever definition of minority we might invent. See Mayer,
In view of the unavoidable complexity of the foregoing, we also consider a simple hypothetical. Imagine that Massachusetts defined the current elements of ABDW solely by statute, rather than in its case law. Keeping the elements the same, the statute would, in substance, read as follows:
Assault and Battery with a Dangerous Weapon is:
(1) The intentional and unjustified touching of another by use of a dangerous weapon,
or,
(2) The intentional commission of a wanton or reckless act causing more than transient or trifling injury to another.
See Hart,
We do not understand the dissent or the government to go so far as to argue, counter to the law of ten circuits, that a conviction under part (2) of our hypothetical statute would serve as a predicate offense under section 16(b). See, e.g., Leocal,
If that is the case, then why would one reach a different result here? True, our hypothetical is easy because the elements are plainly defined by statute. But because the provenance of a crime’s elements tells one nothing about how the crime is committed, we see no reason why that fact should be decisive.
This hypothetical also serves to illustrate our reading of Hart. Absent any Shepard-wppmved documents telling us which provision of the hypothetical statute had given rise to a conviction, our analysis of the statute under ACCA would replicate Hart’s holding that ABDW is a violent felony under ACCA’s residual clause. Thus, we would first ask whether, in all but imagined, hypothetical circumstances, the statute involved a “serious potential
To summarize our analysis of ABDW: the elements of Massachusetts ABDW are satisfied when the intentional commission of a reckless act causes more than trifling injury; convictions for ABDW for such reckless conduct are not merely hypothetical possibilities, but instead actually occur; we agree with ten Circuits that reckless conduct bereft of an intent to employ force against another falls short of the mens rea required under section 16(b) as interpreted in Leocal; no Shepard-approved documents tell us that Fish’s ABDW conviction was not such an offense; therefore, his ABDW conviction is not a crime of violence under section 16(b). And in response to our learned colleague’s considered dissent, we agree with both Fish and the government that Hart does not dictate a contrary result. To the extent that Hart can be read as using the “ordinary case” notion of James to erase from our consideration of ABDW its actual applications to reckless conduct, we find such a construction of James to be unnecessary to Hart’s actual holding that Massachusetts ABDW survives examination under Begay’s similarity test. The similarity test requires only that an offense “typically” involve a purposeful use of force.
Finally, the very complexity of the government’s attempt to prove that every person convicted of ABDW in Massachusetts is, per se, a violent offender, without any adjudication or admission necessitating the conclusion, should itself give us pause. If someone with Fish’s record had asked whether he could lawfully buy body armor, no one (other than five Supreme Court Justices) could have confidently answered the question. In such a case, we cannot simply combine intricate statutory interpretations with judicial hunches about the conduct underlying prior convictions in order to imprison as a violent felon one whose conduct no jury has necessarily found to satisfy the elements that make an offense a crime of violence as defined by Congress. See Leocal,
C. Burglarious Tools
The government points us last to Fish’s prior conviction under the Massachusetts statute prohibiting the making, possession, and use of burglarious instruments. That statute reads as follows:
Whoever makes or mends, or begins to make or mend, or knowingly has in his possession, an engine, machine, tool or implement adapted and designed for cutting through, forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose, or whoever knowingly has in his possession a master key designed to fit more than one motor vehicle, with intent to use or employ the same to steal a motor vehicle or other property therefrom, shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two and one half year's.
Mass. Gen. Laws ch. 266, § 49. Fish argues that because the government never raised the burglarious instruments conviction until this appeal, we should not consider the offense. While we note the peculiarity of placing an appellate court in the position of finding facts to satisfy an element of an offense, we need not address Fish’s contention: We ultimately conclude, as perhaps the government did when it determined not to argue the issue in the district court, that the burglarious tools statute is overbroad, as well.
The problem for the government is that Massachusetts courts have made clear that a “tool or implement ... designed for ... breaking open a building, room, vault, safe or other depository” as described in the first clause of section 49 can be a master key, so long as the master key is not one for an automobile. Commonwealth v. Til-ley,
IV. Conclusion
It is no secret that the statutes Congress chose to enact in its understandable
As a result, our holding may appear odd to the reasonably discerning citizen, particularly from afar. Convictions under statutes with names connoting violence are sometimes deemed not to be crimes of violence, even if it is likely that most such convictions arise from violent conduct. This apparent anomaly arises largely because many states have stretched these violence-connoting rubrics to encompass conduct that Congress does not define as a crime of violence. Driving under the influence and accidentally causing serious injury thus gets grouped together with pistol-whipping a bank teller, and prosecutors and courts are left to choose between two unpalatable options: either we may deem non-violent individuals who likely are in fact violent, or we may falsely assume that every person convicted under an over-broad statute is in fact a violent criminal. Since the constitution prohibits us from charting the latter course, we will take the former unless Congress changes the law or the Supreme Court instructs otherwise.
Fish’s conviction is reversed, and the case is remanded for dismissal. So ordered.
Notes
. In the context of statutes other than section 16, courts are occasionally tasked with defining an offense by the full range of conduct it proscribes, inquiring not into whether that conduct is overbroad, but instead into whether it "typically” involves certain characteristics. See Begay v. United States,
. The guidelines provision covers any offense that "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.” Id.
. As we explained in Hart,
Massachusetts ABDW may be committed (1) intentionally or (2) wantonly or recklessly. The former theory requires the intentional and unjustified use of force upon the person of another, however slight. The latter calls for the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another. In the case of reckless or wanton ABDW, the victim's injury must be more than transient or trifling and severe enough to interfere with health or comfort.
. See Jobson v. Ashcroft,
. Though the phrase “purposeful, violent, and aggressive” would seem, on its face, to require purposefulness, violence, and aggression, it is by now well-established that the test may be satisfied by any offense that “contemplates purposefulness, but not necessarily conduct that is deliberately violent or aggressive as a matter of course.” Hart,
. The dissent suggests that "the examples of 'unusual' cases that James gave are not so farfetched.” See Dissenting Op. at 22. But James gave no examples of merely "unusual” cases. Rather, James made clear that the examples it provided were of "hypothesizefd] unusual” cases, see
. Moreover, we are unable to reconcile the dissent's suggestion that section 16(b) “does not differ from the ACCA's residual clause in any relevant respects,” Dissenting Op. at 20, with the Supreme Court's suggestion in Leo-cal that the two statutes are meaningfully distinct. See
. In agreeing with the government that Hart is not dispositive of the case before us, we do not, as the dissent suggests, "apply[] the ordinary case rule differently to Section 16(b) than the ACCA.” Dissenting Op. at 21. To the contrary, we acknowledge that the ordinary case rule allows courts to disregard imagined, hypothetical scenarios when matching an offense to the two statutes' "risk” requirements. But what does not apply to section 16(b) (particularly to broaden it) is the assessment, under Begay, of what an offense "typically” involves. That assessment, which permits a court to look only to the usual circumstances under which an offense is committed, applies only to ACCA.
. Though our dissenting colleague also claims support in Delgado-Hernandez v. Holder,
. Our dissenting colleague, proposing that we should "treat Begay and James interchangeably," points to two cases that he suggests have so held. See Dissenting Op. at 20 (citing United States v. Dismuke,
. Though the offense of possession of an automobile master key may no longer be charged under the first clause, see Commonwealth v. Collardo,
Dissenting Opinion
dissenting.
Like the majority, I find problematic the government’s arguments here that breaking and entering and possession of burglar’s tools constitute crimes of violence under 18 U.S.C. § 16. I part company with the majority when it holds that Massachusetts ABDW is not a crime of violence.
This court has previously held in United States v. Hart,
Nothing in the language of the three provisions supports such an inconsistent result, and in my view the majority’s decision is directly contrary to the reasoning of this court’s decision in Hart, reasoning which the majority dismisses as “dictum.” Majority Op. at 12. In my view the majority’s decision is also inconsistent with the Supreme Court’s decision in James v. United States,
I.
When a federal statute makes reference to crimes defined by state law in order to determine what constitutes a crime of violence or violent felony under federal law, courts apply a “categorical approach” to determine whether the state law crime meets the federal definition. See, e.g., Descamps v. United States, — U.S. -,
Section 16(b) defines a crime of violence as an offense that “is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” This language has been interpreted to require a higher degree of intent than is present in “merely accidental or negligent” applications of physical force. Leocal v. Ashcroft,
II.
This court in Glover held that “the ordinary ABDW offense” is a crime of violence under the Sentencing Guidelines. Glover,
In reaching that conclusion, the Hart court specifically rejected the ground on which today’s majority rests:
It is true that an ABDW conviction may rest on a recklessness theory, and it is not insignificant that reckless ABDW may be committed with a seemingly innocent object used in a dangerous fashion, as in the case of reckless, vehicular ABDW. But this fact pattern does not represent the vast majority of ABDW convictions, and our analysis under the residual clause is explicitly, and necessarily, limited to the “ordinary case.”
Id. at 43 (footnotes and citations omitted) (quoting James,
ACCA’s enumerated offenses must only typically involve purposeful conduct, and so we must look to the usual circumstances of the crime, not allowing hypothetical fact patterns to negate commonsense. In considering the “ordinary case” of ABDW, we must conclude that a composite of purposeful, violent, and aggressive conduct is the norm.
Id. at 44 (quoting James,
The majority suggests that Hart’s discussion of the ordinary case was “dictum.” Majority Op. at 12. I disagree. Begay specifically held that drunk driving is outside the scope of the purposeful, violent, and aggressive conduct requirement of the ACCA,
The majority appears to suggest that HaH unnecessarily applied James’s “ordinary case” standard because it should have applied Begay’s “typical! ]” case standard, which is more “permissive.” Majority Op. at 12, 13, 14 n. 8. Of course, that is contrary to HaH, which viewed the James and Begay standards as being the same.
There is also no basis for applying the ordinary case rule differently to Section 16(b) than the ACCA. The ACCA defines a “violent felony” as a crime that “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)(ii). Section 16(b) defines a “crime of violence” as an “offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Both statutes require purposeful action; both statutes exclude negligent conduct. See Begay,
I do not think the ACCA and Section 16(b) are “materially different statute[s],” as the majority suggests. Majority Op. at 13. As I see it, there are only two differences between the two provisions: one, the ACCA enumerates certain offenses while Section 16(b) does not, and two, the ACCA refers to a “serious potential risk of physical injury” while Section 16(b) refers to a “substantial risk that physical force against the person or property of another may be used.” Those differences are certainly important. See Leocal,
III.
The majority also suggests that HaH was wrongly decided because its application of James was too broad, and should have excluded only “fanciful, hypothetical scenarios.” Majority Op. at 6; see also id. at 13. But James did not define the inquiry so narrowly. The Court defined “the proper inquiry” as “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.”
One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury — for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets. Or, to take an example from the offenses specifically enumerated in [the ACCA], one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent.
Other courts have not interpreted James so narrowly as the majority does today. Relying on James, the Ninth Circuit concluded that Oregon’s burglary law meets the ACCA’s residual clause. United States v. Mayer,
Finally, the majority suggests that James is no longer good law after Descamps. See Majority Op. at 14-15. But Descamps only addressed whether courts may consult charging and similar documents when a defendant was convicted under an indivisible statute.
IV.
In my view, the majority’s decision is inconsistent with Hart and James. I respectfully dissent.
. Section 16(b) defines "crime of violence” for purposes of the body armor statute under
. Glover did not explicitly address the reckless driving scenario.
. Begay stated: "The listed crimes [in the ACCA] all typically involve purposeful, violent, and aggressive conduct.... By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not.... [U]nlike the example crimes, the conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate.”
. See also Delgado-Hernandez v. Holder,
. United Slates v. Johnson,
The fact that some arguably nonviolent conduct — such as a hunger strike — might violate the statute, or even that some convictions under the statute have actually involved nonviolent conduct, is not disposi-tive. We recently held, in United States v. Thrower, that “larceny from the person” is a violent felony under the ACCA.584 F.3d 70 , 74 (2d Cir.2009). We did so notwithstanding the fact that some conduct that is neither violent nor aggressive — such as pickpocketing — would surely be covered by the statute at issue in that case. Similarly, the fact that the sexual assault statute at issue in [United States v. Daye,571 F.3d 225 , 234 (2d Cir.2009) ] could have been applied to the conduct of consenting teenagers did not foreclose a holding that a 'typical instance of this crime’ will indeed involve violent and aggressive conduct.
Id. at 91 (footnote omitted).
. Fish also argues that the body armor statute exceeds Congress's power to regulate interstate commerce. As he appears to concede, that argument was all but foreclosed by Scarborough v. United States,