UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier MARQUEZ, Defendant-Appellant.
No. 09-50372.
United States Court of Appeals, Fifth Circuit.
Nov. 10, 2010.
Joseph H. Gay, Jr., Mara Asya Blatt, Asst. U.S. Attys., San Antonio, TX, Melissa Arbus Sherry (argued), U.S. Dept. of Justice, Office of Sol. Gen., Washington, DC, for U.S.
Philip J. Lynch, Asst. Fed. Pub. Def. (argued), Henry Joseph Bemporad, Fed. Pub. Def., San Antonio, TX, for Defendant-Appellant.
Before BARKSDALE, DENNIS and OWEN, Circuit Judges.
Francisco Javier Marquez contends that his prior conviction for possession of a deadly weapon by a prisoner is not a crime of violence within the meaning of section 4B1.2(a)(2) of the Sentencing Guidelines1 and therefore that the district court erred in sentencing him as a career offender under section 4B1.1.2 We affirm.
I
Marquez pled guilty to possessing more than 100 kilograms of marijuana with the intent to distribute it. The presentence report recommended that the district court sentence Marquez under the career-offender guidelines based on Marquez‘s prior New Mexico convictions for possession of cocaine with the intent to distribute and possession of a deadly weapon by a prisoner. Only the latter conviction is at issue in this appeal. The New Mexico statute under which Marquez was convicted provides that “[p]ossession of [a] deadly weapon or explosive by [a] prisoner in lawful custody” is a second degree felony.3 His indictment charged him under this statute, alleging that he “possess[ed] a deadly weapon, a club[,] contrary to Section 30-22-16, NMSA 1978,” while an “inmate of the Bernalillo County Detention Center.” A deadly weapon is defined under applicable New Mexico law as “any weapon which is capable of producing death or great bodily harm,” and great bodily harm “means an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body.”4
Marquez objected to the presentence report, arguing that his offense of possession of a deadly weapon by a prisoner was not a crime of violence in light of the Supreme Court‘s decision in Begay v. United States.5 Marquez contends that his prior conviction is not for an 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.”6 He argues that his properly calculated Guidelines’ sentencing range is 92 to 155 months of imprisonment. The district court determined that the career-offender enhancement applied and overruled the objection. The court concluded that the advisory Guidelines’ range was 188 to 235 months of imprisonment and sentenced Marquez to 188 months’ imprisonment. This appeal followed.
II
We review the district court‘s interpretation of the Sentencing Guidelines de novo.7 A defendant may be sentenced as a career offender under the Guidelines if “the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense” and the defendant “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”8 The term
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.9
The parties agree that we are concerned only with what is sometimes called “the residual clause” of section 4B1.2(a)(2),10 and therefore, we must determine whether Marquez‘s conviction under New Mexico law “otherwise involves conduct that presents a serious potential risk of physical injury to another.” We do not write on a clean slate, and we begin with the context in which we must consider the answer to this question.
The comments to section 4B1.1 of the Guidelines reflect that sections 4B1.1 and 4B1.2, embodying the career offender guidelines, were promulgated to implement the directive in
The black letter text of the definition of “crime of violence” in section 4B1.2 of the Guidelines is very similar to the definition of “violent felony” in the Armed Career Criminal Act (ACCA),
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.16
The commentary to section 4B1.2 expressly provides that possession of a firearm by a felon is not a crime of violence unless the weapon is “a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun.”17 Marquez‘s prior conviction was not, however, for being a felon in possession of a firearm. He was convicted under state law for possession of a deadly weapon by an inmate, which is similar to the federal offense defined in
Our construction of the career-offender Guideline sections are further informed by two decisions of the Supreme Court construing the ACCA.19 Although the text of the ACCA defining “violent felony” and the Guidelines definition and commentary regarding a “crime of violence” are not identical, as discussed above, our court as well as other circuit courts have concluded that the Supreme Court‘s decisions interpreting the meaning of “violent felony” under the ACCA are at least instructive.20 In Begay, the Court held that driving under the influence of alcohol was not a “violent felony” within the meaning of the
We therefore begin our analysis with a consideration of the Supreme Court‘s reasoning in Begay and its subsequent decision in Chambers. The Court concluded in Begay that the presence of the enumerated offenses of burglary, arson, extortion, or offenses that involve the use of explosives “indicates that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential of risk of physical injury to another.’ ”24 The Court noted that the enumerated offenses “all typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.”25 This was important because such conduct makes it “more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.”26 The crime of driving under the influence was not such a crime. “By way of contrast, statutes that forbid driving under the influence . . . typically do not insist on purposeful, violent, and aggressive conduct.”27 The Court explained that DUI offenses “are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.”28 Drunk driving “need not be purposeful or deliberate.”29 It involves negligence or recklessness, the Court reasoned. The ACCA “focuses upon the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun.”30 To determine which offenders fall into this category, “the Act looks to past crimes. This is because an offender‘s criminal history is relevant to . . . the kind or degree of danger the offender would pose were he to possess a gun.”31 The Court concluded that although driving under the influence “reveal[s] a degree of callousness toward risk,” crimes involving intentional or purposeful conduct “also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger,” while strict liability crimes do not.32
The Supreme Court then listed examples of crimes that, “though dangerous, are
Less than a year after it decided Begay, the Supreme Court provided further guidance in Chambers v. United States39 as to the meaning of “violent felony” as used in the ACCA. The prior conviction at issue was for failure to report for penal confinement, a violation of Illinois law.40 After applying its categorical approach to the Illinois statute under which Chambers had been convicted, the Court concluded that failure to report “is a separate crime, different from escape,” and that “[t]he behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.”41 The Court concluded that failure to report to a penal institution for confinement “does not involve conduct that presents a serious potential risk of physical injury to another.’ ”42 The Court reasoned, “[c]onceptually speaking, the crime amounts to a form of inaction, a far cry from the ‘purposeful, violent, and aggressive conduct’ potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion.”43 The Court rejected the Government‘s argument that “a failure to report reveals the offender‘s special, strong aversion to penal custody,” observing that “[t]he question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.’ ”44
In the present case, Marquez contends that his prior conviction is similar to the DUI at issue in Begay. There is authority from the New Mexico Supreme Court indicating that possession of a deadly weapon in prison45 is “a crime closely approaching
Subsequently, the New Mexico court of appeals concluded in dicta that the offense of possessing a deadly weapon by a prisoner is not, strictly speaking, a strict liability offense because the mens rea required is knowing possession.50 The New Mexico court of appeals observed that “[a]lthough the statute is silent with respect to the mens rea element, the uniform jury instruction for the crime requires the jury to find that the accused possessed a deadly weapon,” and “that if possession is contested the instruction on possession at UJI 14-130 NMRA should also be given.”51 The uniform jury instruction to which the court referred provides that “[a] person is in possession of (name of object) when, on the occasion in question, he knows what it is, he knows it is on his person or in his presence and he exercises control over it.”52 The New Mexico court also cited as authoritative an Oregon decision that the New Mexico court described in a parenthetical as “stating statute prohibiting possessing, carrying, or having weapons in one‘s custody and control in a penal institution not meant to include unknowing acts.”53 We accordingly have no reason to doubt that although the crime of which Marquez was previously convicted approaches strict liability, his offense was a knowing possession of a deadly weapon in prison, and the elements of duress as defined by the New Mexico court were not present. This means, at a minimum, that he was not under an unlawful or imminent threat of death or serious bodily injury and did not recklessly place himself in a situa-
We are persuaded, based on the Supreme Court‘s reasoning in Begay54 and Chambers,55 that Marquez‘s conviction for possession of a deadly weapon by a prisoner in a penal institution is a crime of violence. This offense is unlike the strict liability crimes that the Court specifically identified in Begay, such as driving under the influence, reckless pollution, negligent pollution of a sewer system, recklessly tampering with consumer products, or seamen whose inattention to duty causes serious accidents.56 Undoubtedly, those crimes, like a prisoner‘s possession of a deadly weapon, present a serious potential risk of physical injury to another.57 But a prisoner‘s possession of a deadly weapon is more similar “in kind”58 to arson, burglary, extortion, or crimes involving the use of explosives. A prisoner‘s possession of a deadly weapon is an intentional act “associated with a likelihood of future violent behavior in a way that”59 the strict liability crimes identified in Begay are not. The Supreme Court explained in Begay that the enumerated crimes, including burglary, “all typically involve purposeful, violent, and aggressive conduct,”60 and that this “conduct is such that it makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.”61 The Court distinguished burglary and arson from driving under the influence, observing “[i]n both instances, the offender‘s prior crimes reveal a degree of callousness toward risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.”62 A prisoner in possession of a deadly weapon within a penal institution is significantly more likely to attack or physically resist an apprehender, such as a guard, or another inmate.63
The kind of risk posed by an inmate in possession of a deadly weapon is decidedly different from the strict liability offenses identified in Begay and very similar in kind and degree to the risk posed by the crime of burglary of a dwelling. A burglar may not intend to injure anyone when he unlawfully invades a residence for the purpose of theft. A burglar may even choose to commit the crime when no one is home. But burglary is nonetheless considered purposeful, violent, and aggressive con-
Possession of a deadly weapon in prison is similar in kind, and in degree of risk posed, to another of the enumerated crimes of violence under the commentary to the Guidelines, which is unlawful possession of a firearm described in
The offense of possession of a deadly weapon by an inmate differs from a generic felon in possession of a firearm offense, which is specifically excluded under the Guidelines as a crime of violence as defined in section 4B1.2 unless the firearm was one of the enumerated varieties.72 A felon may be in possession of certain firearms, such as a pistol or hunting rifle, for recreational purposes, even though that possession is unlawful. By contrast, as noted above, there is no purpose for pos-
III
We are not the first circuit court to consider whether possession of a deadly weapon by an inmate is a crime of violence or a violent felony, and there is a split of authority. The Tenth Circuit concluded that such an offense is a “violent felony” within the meaning of the ACCA.74 Subsequently, the Third Circuit disagreed, concluding that such an offense is not a “crime of violence” within the meaning of section 4B1.2 of the Guidelines.75 Neither court had difficulty in concluding that an inmate‘s possession of a deadly weapon presented a serious potential risk of physical injury.76 The courts parted company over whether such an offense is similar in kind, as well as in degree of risk, to burglary, arson, extortion, or crimes involving explosives.77
In Zuniga, the Tenth Circuit reasoned that a prior Texas conviction for possession of a deadly weapon in prison was not a strict liability crime because under Texas law, it required either intentional or reckless conduct.78 The Tenth Circuit also reasoned that the crime was violent because it created a likelihood of violence, not unlike that inherent in burglary.79 The court was persuaded that possession of a deadly weapon in prison indicated that the defendant was prepared to use violence if necessary.80
The Third Circuit considered Zuniga in its decision in Polk, but rejected the Tenth Circuit‘s reasoning.81 The decision in Polk instead concluded that “[p]ost-Begay, the distinction between active and passive crimes is vital when evaluating offenses under the Career Offender Guidelines.”82 The court determined that “[w]hile possessing a weapon in prison is purposeful,
Our court has previously considered the import of Begay in determining whether various crimes are crimes of violence. Recently, in United States v. Hughes,84 we held that a conviction based on a prisoner‘s escape from federal custody or confinement85 was a violent felony within the meaning of the ACCA. We reasoned that “even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.”86 We further ob-
served that “escape is typically committed in a purposeful manner, and when these escapes cause injuries, those injuries typically result from intentional action, not negligence or even recklessness.”87 A prisoner‘s possession of a deadly weapon in prison presents an analogous risk and similar intentional conduct. When deadly weapons are used by prisoners, the injuries typically result from intentional, purposeful actions, not negligence or recklessness.
In other cases decided since Begay issued, we have held that evading arrest or detention by use of a vehicle,88 robbery by sudden snatching,89 stalking,90 and being a felon in possession of a short-barreled shotgun91 are crimes of violence, and that terroristic threatening92 is not.
The Ninth Circuit has recently held that a prior conviction for possession of a weapon in jail is a crime of violence within the meaning of
The dissent rejects the holdings of the Ninth and Tenth Circuits, finding the Third Circuit‘s reasoning in United States v. Polk98 more persuasive. For the reasons considered above, we respectfully disagree with the Third Circuit and the dissent. The dissent emphasizes that ” ‘[t]he possibility that one will confront another person with violent results is not sufficient.’ ”99 While we do not categorically disagree with that statement, the possibility that one will confront another with violent results must be examined. It is the nature and degree of the risk that guides us. The Supreme Court recognized in James that “[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto another‘s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.”100 The risk that a prisoner armed with a deadly weapon will attack or resist a third person is at least as great as the risk presented by burglary of a dwelling and is of the same nature as the risk presented by burglary. The dissent attempts to distinguish an inmate‘s possession of a deadly weapon from burglary by arguing that “the difference ‘in kind’ between the offense at issue here and the comparative crimes is that ‘[b]urglary requires both the intent to enter a building
and the intent to commit a crime once inside’ ” and that ” ‘[t]his second intent is what makes burglary purposeful, violent, and aggressive in all cases.’ ”101 Such a distinction cannot be squared with the reasoning in James.
The dissent attempts to minimize the nature of Marquez‘s prior conviction by describing the club he possessed in prison, which was made of a rolled, dried, and hardened magazine or other type of paper.102 However, Marquez has never contended that the club did not truly constitute a deadly weapon. Nor could he successfully do so in this court. He was convicted under New Mexico law of possessing a deadly weapon, and we cannot dismiss this judicial determination by attempting to diminish the dangerousness of the particular weapon he possessed. A factual determination was made in the prior state court proceedings that the club was capable of producing death or great bodily injury. We must accept that finding.
The district court did not err in concluding that Marquez‘s prior conviction for possession by an inmate of a deadly weapon in a penal institution was for an offense that constitutes a crime of violence.
* * *
For the foregoing reasons, we AFFIRM the district court‘s judgment.
The majority erroneously concludes that the New Mexico offense of possession by a prisoner of a deadly weapon—here, a cudgel made of a dried paper magazine—
I
A
Begay held that to satisfy the definition of “violent felony” under the residual clause of the ACCA, which has practically the same definition as “crime of violence” under the residual clause of
Here, assuming arguendo that the offense of possession of a deadly weapon by an inmate presents a serious potential risk of physical injury, the offense does not reflect the aggressive and violent conduct encompassed in any of the comparative crimes of “burglary of a dwelling, arson, or extortion,” or crimes “involving [the] use of explosives.” Those crimes are marked by “aggressive, violent acts aimed at other persons or property where persons might be located and thereby injured.” United States v. Archer, 531 F.3d 1347, 1351 (11th Cir. 2008). “They involve overt, active conduct that results in harm to a person or property.” Polk, 577 F.3d at 519; see also Herrick, 545 F.3d at 58 (“[A]ggressive may be defined as ‘tending toward or exhibiting aggression,’ which in turn is defined as ‘a forceful action or procedure (as an unprovoked attack) esp[ecially] when intended to dominate or master.’ Violence may be defined as ‘marked by extreme force or sudden intense activity.’ ” (citation omitted)). By contrast, the New Mexico offense of possession of a deadly weapon by an inmate “is a passive crime centering around possession, rather than around any overt action.” See Archer, 531 F.3d at 1351; see also Chambers, 129 S.Ct. at 689, 692 (failure to report for incarceration does not meet the definition of a crime of violence because it reflects “a form of inaction, a far cry from the ‘purposeful, violent, and aggressive conduct’ potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion“). “Post-Begay, the distinction between active and passive crimes is vital when evaluating offenses . . . to determine if they entail ‘purposeful, violent, and aggressive conduct.’ ” Polk, 577 F.3d at 519.
An illustration of the difference “in kind” between the offense at issue here and the comparative crimes is that “[b]urglary requires both the intent to enter a building and the intent to commit a crime once inside. This second intent is what makes burglary purposeful, violent, and aggressive in all cases.” United States v. Templeton, 543 F.3d 378, 383-84 (7th Cir. 2008).3 Like burglary, the comparative offenses involve “intentionally encroaching on another‘s property or person, or intentionally injuring another‘s property or person.” Id. By contrast, the New Mexico crime of possession of a deadly weapon by an inmate does not require an intent to use the weapon for any particular purpose. It proscribes “any inmate of a penal institution, reformatory, jail or prison farm or ranch possessing any deadly weapon or explosive substance.”
While this court has never decided whether the simple possession of a weapon by an inmate satisfies Begay‘s interpretation, our published decisions applying Begay‘s prescribed analysis have consistently held that only offenses that involve conduct that is sufficiently violent and aggressive, as well as purposeful, meet the definition of a crime of violence. Recently, in United States v. Schmidt, No. 09-31138, 623 F.3d 257, 2010 WL 3910646 (5th Cir. Oct. 7, 2010), we held that the federal offense of stealing firearms from a licensed firearms dealer4 was a violent felony under the residual clause of the ACCA. We noted that the offense in fact satisfied the elements of burglary, an enumerated offense in
Earlier, in United States v. Hughes, 602 F.3d 669 (5th Cir. 2010), we found that the federal offense of escape from an institution5 also met Begay‘s test. Specifically, we found that the aggressive and violent component was reflected by the initiating of hostilities that would ensue in the impending confrontation with law enforcement officials seeking to capture the escapee.6 Id. at 677 (citing United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009)). Likewise, in Harrimon, we held that the Texas offense of evading arrest or detention by use of a vehicle satisfied Begay.
Finally, in United States v. Mohr, 554 F.3d 604 (5th Cir. 2009), we held that the South Carolina offense of stalking is a crime of violence because it proscribes “words or conduct that are ‘intended to cause and does cause a targeted person’ to reasonably fear death, assault, bodily injury, criminal sexual contact, kidnaping or property damage to him or his family.” Id. at 609 (quoting S.C. Code Ann. § 16-3-1700). We reasoned that “[t]hese outcomes are roughly analogous to the enumerated offenses set out in
In light of these prior decisions of our court, the mere possession crime here does not meet the definition of a crime of violence. Unlike in Schmidt, where the offense was, practically speaking, identical to the enumerated offense of burglary, the crime here is closest to unlawful possession of a firearm by a felon, a crime that is expressly excluded from the definition of crime of violence. See
II
The thrust of the majority‘s position is that the possession of a deadly weapon by an inmate is a crime of violence because it poses a serious potential risk of physical injury and it reflects a potential for violence as with other comparative crimes, such as burglary. This reasoning is in effect the same analysis articulated by Justice Scalia concurring in the judgment in Begay. To define a crime of violence, Justice Scalia rejected the majority‘s “similar, in kind as well as in degree of risk posed” test and proposed a “comparative degree of risk” approach, which would include any offense that objectively presents a similar degree or likelihood of risk of physical injury as the enumerated crimes. See 553 U.S. at 143-44, 128 S.Ct. 1581. However, the Begay majority expressly rejected that approach, and held that for an offense to constitute a crime of violence, it is not enough that it presents a similar degree of risk as the enumerated crimes—it must also be similar in kind, as reflected by “purposeful, violent, and aggressive” conduct. See id.; Templeton, 543 F.3d at 383 (“It will not do to argue . . . that escape is enough like burglary to make it a crime of violence. Doubtless for both crimes there is a chance the criminal will confront another person with violent results . . . But Begay requires the crime to be [purposeful, violent, and aggressive].” At most, escape and burglary have “a common result: in both cases injuries may follow confrontations. Begay requires similarities other than risk of injury.“); Polk, 577 F.3d at 519.7
This reasoning is flawed because it views the likelihood of violence and potential for aggression as dispositive; that by intentionally possessing a weapon in prison, an inmate is engaged in conduct that presents a high likelihood of violence and is therefore violent and, consequently, aggressive. This conclusion, draws any intentional offense with a “serious potential risk of physical injury” into the definition of a crime of violence and, in essence, adopts Justice Scalia‘s minority view. But Begay‘s second requirement entails more than the mere likelihood that another will be physically injured as a result of the offense—it requires conduct that is similar to the comparative offenses, that is, purposeful, violent, and aggressive conduct. Therefore, Zuniga misapplies Begay and fails to persuade me that possession of a weapon by an inmate is a crime of violence.9
The majority further attempts to shoehorn “the possibility that one will confront another with violent results” into the analysis of the second prong of Begay. See Majority Op. at 225. The majority‘s only support is a statement from James v. United States that “[t]he main risk of burglary arises not from the simple physical act of wrongfully entering into another‘s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.” 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), quoted in Majori-
Additionally, the majority analogizes the possession of a weapon by an inmate to the unlawful possession of one of the extremely dangerous weapons identified in the Sentencing Guidelines as a crime of violence. See
The majority is correct that we cannot “minimize[] the nature of Marquez‘s prior conviction by describing the club he possessed in prison, which was made of a rolled, dried, and hardened magazine or other type of paper” in order “to diminish the dangerousness of the particular weapon he possessed.” Majority Op. at 225. But we cannot close our eyes to the nature of the weapon Marquez possessed either. Our inquiry here requires us to decide if Marquez‘s offense was “similar, in kind as well as in degree of risk posed” to the
III
The New Mexico offense of possession of a deadly weapon by an inmate does not require violent and aggressive conduct and therefore fails under Begay‘s analysis to satisfy the definition of a crime of violence. The offense does not require intent to use the weapon for any particular purpose; rather, it punishes mere possession. This passive crime does not involve any overt act aimed at a person or property. I agree with the reasoning of the Third Circuit in Polk and the Eleventh Circuit in Archer, that under Begay, mere possession of a dangerous instrument, without more, does not necessarily involve violent or aggressive conduct. Therefore, while I agree that the offense involves a serious potential risk of physical injury, in light of Begay, I cannot agree with the majority that the offense is a “crime of violence” under the residual clause of
Notes
The crime does not require any violent or aggressive act. Although the statute does require intent, the required mental state is only intent to be free of custody, not intent to injure or threaten anyone. It is easy to [commit the offense] without intending or accomplishing the destruction of property or acting in an aggressive, violence-provoking manner that could jeopardize guards or bystanders.
Templeton, 543 F.3d at 383.The term “crime of violence” means—
(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.
(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. . . .