*1 he has Robinson’s claim fails because America, UNITED STATES System PAX alleged that his Michelin Plaintiff-Appellee, have a tread life than other
tires shorter tires, proper this is the stan- run-flat comparison. To hold otherwise dard of ROSEBORO, Ralph Anthony all to last require would automobile tires Defendant-Appellant. long passenger as the standard tire and No. 07-4348. durability all other would elevate above manufacture and de- considerations Appeals, United States Court of standard sign procrustean of tires. This Fourth Circuit. severely ability limit the of tire and would Argued: Sept. manufacturers to create the automobile may de- specialized tires that consumers 5, 2009. Decided: Jan. purchaser sire. The set of tires —and given power not the courts—should be durability, per-
to decide what balance of
formance, features, safety special If
best suited to his needs. Robinson de-
sired tires with the same tread life as tires, have passenger
standard he could wearing a minivan
purchased standard
passenger tires.
V. affirm the
Because we dismissal
warranty agree with the dis- claims
trict court the warranties do not cover wear,
tread we also affirm the dismissal of seeking
Robinson’s claim for relief a de-
claratory judgment construing the warran- Accordingly,
ties in his favor. the order of
the district court all dismissing claims case
AFFIRMED. *2 Richardson, Hall
ARGUED: Ross Fed- eral Defenders of Western North Car- olina, Inc., Charlotte, Carolina, North for Morris, Christopher Adam Appellant. Of- Attorney, fice of the United States Char- lotte, Carolina, Appellee. North for ON Rauscher, BRIEF: Claire J. Executive Director, Tate, Kevin A. Federal Defend- Carolina, Inc., ers of Western North Char- lotte, Carolina, Appellant. North for Shappert, Gretchen C.F. United States At- Charlotte, Carolina, torney, Ap- North for pellee. NIEMEYER, Judge, preparation sentencing, proba-
Before Circuit HAMILTON, Judge, prepared presentence tion officer investi- Senior Circuit (PSR). III, ELLIS, gation report probation offi- T.S. Senior United States cer calculated Roseboro’s Base Offense Judge District for the Eastern District of *3 14, Sentencing Level be United States Virginia, sitting by designation. Commission, (USSG), Guidelines Manual by published 2K2.1(a)(6). Vacated and remanded § Two levels were added be- Judge wrote opinion. Senior HAMILTON possessed cause the firearm Roseboro Judge opinion, 2K2.1(b)(4). which Senior ELLIS § stolen. Id. Because Rose- joined. Judge NIEMEYER wrote a possessed boro the firearm in connection dissenting opinion. offense, felony namely, with another bur-
glary, Roseboro’s
in-
Offense Level was
OPINION
creased
four more
levels.
Id.
2K2.1(b)(5).
§
Finally,
proba-
because
HAMILTON,
Judge:
Senior Circuit
tion officer determined that Roseboro ob-
The Armed Career Criminal Act
justice,
structed
Roseboro’s Offense Level
(ACCA) imposes mandatory
minimum
levels,
was increased
two more
id.
fifteen-year sentence on felons who unlaw
3C1.1,
§
resulting in a Total Offense Level
fully possess, among
things,
other
fire
of 22. The Total Offense Level of
arms, and who also have three or more
coupled
History
when
with a Criminal
Cat-
previous
committing
convictions for
certain
VI,
egory
produced
sentencing range
drug crimes or “violent
felon[ies].”
imprisonment.
84 to 105 months’
924(e)(1).
U.S.C.
United States v.
government
Both the
and Roseboro filed
this court held that a South Car
objections to
government
the PSR. The
olina
failure to
for
blue
viola
objected to the PSR on the basis that it
tion,
56-5-750(A),
§Ann.
S.C.Code
consti
did not reflect
that Roseboro was an
felony
tutes a violent
under the ACCA. 337
Armed Career Criminal under the ACCA.
(4th Cir.2003).
prin
F.3d
390-91
924(e)(1)provides:
Section
cipal
presented
issue
appeal
person
922(g)
who violates section
[A]
whether the
applied
test we
James for
previous
of this title and has three
con-
determining
crime constitutes a
felony
... for a
...
victions
violent
com-
violent
under the
survives
ACCA
mitted on
different from
occasions
one
United States
Court’s deci
another,
person
...
im-
such
shall be
—
States,
in Begay
sion
v. United
U.S.
prisoned
years.
not less than fifteen
-,
128 S.Ct.
I
year that either “has
element the
use,
use,
The relevant
attempted
facts
this case are not
or threatened use of
23, 2006,
dispute.
January
physical
On
a federal
force against
of anoth-
er,”
grand jury sitting
924(e)(2)(B)®,
burglary,
Western District
id.
or “is
arson,
extortion,
charged Ralph
North Carolina
Roseboro
explo-
involves use of
violating
sives,
with
922(g)(1),
18 U.S.C.
or otherwise
involves conduct
prohibits
possessing, among presents
felons from
potential
physi-
serious
risk of
29, 2006,
things,
injury
firearms. On June
cal
another.”
924(e)(2)(B)(ii).
jury
convicted Roseboro of
According
gov-
this offense.
to the
ernment,
three
South
an Armed
Roseboro’s
Career Criminal based on his
failure to
conclusion that Roseboro’s
Carolina
three South
violent felonies because
convictions were
Carolina failure to
for a blue light
involved conduct
each of those convictions
convictions were violent felonies. The ef-
potential
a serious
presented
fect of this
significant
conclusion had a
injury to another.1
physical
impact on Roseboro’s sentencing range.
The PSR’s recommended sentencing range
objected
Roseboro
to the PSR on the
imprison-
moved from 84 to 105 months’
2K2.1(b)(4)
basis
(Total
ment
Offense Level of 22/Criminal
2K2.1(b)(5)
not war-
enhancements were
VI)
History Category
to 262 to 327
urged
Consequently,
ranted.
Roseboro
(Total
imprisonment
months’
Offense Lev-
*4
Total
probation
officer to reduce his
VI).
History
el of
Category
34/Criminal
levels,
in a
resulting
Offense Level
16,
Total Offense Level of
which when
In preparation
sentencing,
for
both the
History Category
coupled with Criminal
government and Roseboro filed sentencing
VI,
sentencing range
of 46 to
resulted
memorandums.
argued, among
Roseboro
imprisonment.
57 months’
things,
that his three prior South
objected
govern-
Roseboro also
stop
light
Carolina failure to
for a blue
that he
an Armed
suggestion
ment’s
convictions were not violent felonies be-
Roseboro,
According
Criminal.
Career
cause the offenses did not “categorically
approach,
he was not
categorical
under
meet the
felony
definition
violent
eligible
any
for
of the career offender en-
924(e).”
defined in
In
18 U.S.C.
re-
(Armed
hancements
Career Criminal or
sponse,
government
contended that the
Offender)
Career
because none of his
issue was controlled
our decision in
stop
South Carolina failure to
for a blue
James, where we held that a South Car-
light violations were either a crime of vio-
light
olina failure to
for a blue
viola-
felony.2
lence or a violent
felony
tion was a violent
because the of-
probation
gov-
potential
officer sided with the
fense involved “the
for serious
injury
ernment and concluded
Roseboro was
to another.”
use, physical use of or threatened in to the enumerated crimes In contrast likely to create a another against 924(e)(2)(B)(ii), the Court observed injury to physical potential serious not involve typically offense did a DUI another. Id. violent, aggressive con- purposeful, rejected in Rather, also observed that the Court duct. included the exam- Congress notion that to a comparable was more a DUI offense 924(e)(2)(B)(ii) quantitative ples in crime, prove liability because strict intending them to “demon- e.g., purposes, offense, need not prosecution DUI of risk degree more than the strate no at all. Id. at any criminal intent prove crime within bring sufficient words, In drunk 924(e)(2)(B)(ii)’s]scope.” Id. The Court [§ purpose alcohol on may driver consume that, fo- Congress if intended to reasoned influ- under the perhaps later drive involved, it solely degree on the of risk cus purpose, prose- ence of that alcohol on examples “chosen better would have required prove cution is not in ‘degree of risk’ it had illustrated the purposeful- committed the crime defendant mind.” Id. offense can ly deliberately because the or accidentally negligently. committed be considerations, and to of these Id. at 1587. every clause and word give effect to 924(e)(2)(B)(ii), the Court concluded offense can be The fact that a DUI 924(e)(2)(B)(ii) should be examples accidentally negligently committed limiting the crimes that the statute read as deci- played a critical role the Court’s similar, roughly that are covers to crimes that the ACCA sion. The Court observed degree posed, of risk in kind as well as special danger created focused on “the themselves. Id. The examples to the *7 type a of offender —a vio- particular reading that its also observed Court possesses drug lent criminal or trafficker — supported was are violent gun.” a Id. Which defendants 924(e)(2)(B)(ii)’s history. Id. legislative crimes. The more depends prior on their at 1585-86. crime, greater prior serious the later poses the defendant when he threat question of whether a
Turning to the possesses a firearm. Id. As Court in offense was similar New Mexico DUI observed: degree posed well as in of risk kind as 924(e)(2)(B)(ii), prior a crime’s respect namely §in In this examples the listed — of future possibility that a Mexi- relevance to the first observed New Court in- gun involving danger from the with co DUI offense was different —crimes (as 924(e)(2)(B)(ii) in purposeful in tentional or conduct enumerated crimes arson) than burglary The and are different respect. critical Id. at 1586. one 924(e)(2)(B)(ii) DUI, In both liability crime. §in “all strict enumerated crimes instances, crimes re- violent, prior the offender’s and typically purposeful, involve[d] (citation risk, degree in- of callousness toward conduct.” Id. and veal aggressive omitted). they instance also Accord- but the former quotation ternal marks
233
purposes
an increased likelihood
of the particular
show
statutory
us,
provision
might
prior
the kind of
who
before
offender is
record of
DUI,
liability crime,
a strict
differs
deliberately point
gun
pull
and
from
prior
record of violent and aggressive
trigger.
crimes committed intentionally such as
Id.
arson,
extortion,
burglary,
or crimes in-
volving
explosives.
use
The latter
Thus,
the line drawn in the sand
are associated with a likelihood of future
Begay
prior
Court
crimes that
violent,
aggressive,
purposeful
and
violent,
purposeful,
aggres-
involved
“armed career criminal” behavior
in a
sive conduct increased the likelihood that a
way that the former are not.
gun during
defendant would use a
Begay,
offense,
commission of the later
violent, and aggressive conduct did not Supreme applied Court’s test such a increase likelihood. To view the in markedly different than the any differently, matter the Court ob- James. Under test we applied served, bring would a host of crimes into presented offense potential serious 924(e)(2)(B)(ii)’s rubric “though physical risk of injury to another if the dangerous, typically are not committed offense conduct had potential for seri normally those whom one labels ‘armed ” physical injury ous to another. (citing career criminals.’ Ark.Code at in Begay, 390. The Court 4—103(a)(2)(A)(ii)(which Ann. applies 8— however, rejected explicitly inquiry polluters); reckless 33 U.S.C. determinative, outcome observing that the 1319(e)(1) (which applies to individuals proper inquiry involved far more than an negligently who introduce pollutants into analysis of the risk associated with the 1365(a) system); the sewer 18 U.S.C. crime. at 128 S.Ct. (which applies to individuals who reckless- (where the Court assumed that the Tenth ly tamper products); with consumer Circuit was correct in concluding that (which applies 18 U.S.C. to seamen ‘presents “DUI involves conduct duty whose inattention to causes serious potential serious physical injury accidents)). (“The ”); id. another’ ap dissent’s making this distinction between of- hand, proach, likely on the other would violent, purposeful, fenses that are include statutory these crimes within the hand, aggressive on the one and offenses felony,’ definition of ‘violent along with that do not involve one of these attributes present other crime that can be said to ‘a hand, on the other recognized potential inju serious risk of physical *8 history that a defendant with a of DUI ry.’ .... And it would do so because it Id. at may pull trigger. later a firearm’s by believes such a compelled result is the Indeed, Begay, the defendant in in expla statute’s text.... But the dissent’s offense, committing 922(g)(1) pointed his nation key does not account for a feature a pulled trigger rifle at his sister and the namely, example the four text — times, several but the rifle would not fire. crimes intended to illustrate what kind United States v. covers.”); 470 F.3d 965 id. at felony’ ‘violent the statute (10th Cir.2006). However, (“There (Scalia, J., fact was dissenting) 1589 is sim (other enough sway holding the Court from ply necessity no basis than the case) resolving present holding the
234 speed the light. attempt An to increase and unenumerated crimes the enumerated in other than the a or in other manner avoid the respects must be similar of vehicle Rather, they pose”). vehicle when degree pursuing risk law enforcement inquiry focuses on the similari- proper flashing light signaled a siren or crime and the enu- ty prior between a of this prima facie evidence of violation 924(e)(2)(B)(ii),asking §in merated crimes flashing light section. Failure to see the prior purpose- crime involved whether not excuse a or hear the siren does violent, conduct, ful, aggressive and when the distance be- failure to a likelihood that would demonstrate other road condi- tween the vehicles and during a firearm defendant would use it reason- tions are such that would be at In commission of crime. Id. to hear or see the able for driver James, similarity compared we neither signals from the law enforcement vehi- failure to a South Carolina between cle. to the enumerated for blue violation 56-5-750(A). §Ann. S.C.Code 924(e)(2)(B)(ii), nor asked crimes in statute at is- whether the South Carolina Supreme The South Carolina violent, ag- purposeful, involved and sue Court, in and for that matter this court are now gressive conduct. Because we James, that, has indicated 56-5- framework, the apply bound to 750(A) prosecution, prove must State longer no espoused test we James is “(1) that the de following elements: In- controlling. See Scotts Co. United (2) vehicle; driving fendant was a motor (4th 271 n. Corp., dus. road, or driving that he was it on a street Cir.2002) (“[A] panel of this court cannot (3) State; that he highway of this was overrule, prece- explicitly implicitly, ve signaled a law-enforcement panel of this court. dent set light; flashing hicle means of a siren or Only or this court sit- (4) stop.” that he did not State v. that.”) (citation ting en banc can do 461, 186 Hoffman, 257 S.C. S.E.2d omitted). quotation internal marks (1972); F.3d at 390. see also appear routinely four to be These elements C 56-5-750(A) prosecutions used in assessing Carolina whether South Judge Carolina state courts. See South failure to violation Anderson, Jr., Ralph King Carolina South constitutes violent under Charge Criminal, § 2-60 Request For — 924(e)(2)(B)(ii), per Begay, we must first (2007). determine whether the statute issue violent, satisfy In order for the State to the first purposeful, aggressive involves conduct, elements, two of these four must such that the offense can be found State driving similar to the enumerated crimes show that the defendant 924(e)(2)(B)(ii). road, street, South Carolina Code highway motor vehicle on a 56-5-750(A) provides: in South Carolina. The third element re- quires the to show that the law State mitigating In the absence of circunu- signaled enforcement officer the defendant stances, it unlawful for a motor vehicle *9 final stop. requires to element driver, road, street, driving on a or to that defendant did not State, prove State highway stop to fail to signaled by after he was the law signaled by a law enforcement ve- by flashing hicle means of a siren or enforcement officer to do so.
235
elements,
it
provide proper
From the above
is
care and attention for a
56-5-750(A)
that,
§a
child or
prove
helpless person
clear
viola
of whom he has
tion,
legal custody,
life, health,
that
prove
the State does not have to
that
so
comfort of that
helpless person
the defendant acted with criminal intent.
child or
is
Indeed,
endangered
likely
or
recognized
endangered,
fact
is
to be
implicitly
we
this
Code.”).
violates
16-3-1030 of the
where we observed that “[m]ost
failing
light
cases of
for a blue
56-5-750(A)
sure, §
To be
unquestion-
by
involve
deliberate choice
driver
ably covers both intentional and uninten-
disobey
signal.”
officer’s
337
conduct,
“fail,”
tional
as the word
unlike
at
It
F.3d
follows from our use of the
“refuse,”
the word
can refer to
inten-
both
that
words
cases”
some South Car
“[m]ost
tional and unintentional acts. For exam-
olina failure to
viola ple, a
can
defendant
violate the
tions involve conduct where the defendant
intentionally failing
stop.
In the event
does not make a deliberate choice to avoid the State
shows
the defendant inten-
officer;
law
pursuing
enforcement
tionally
stop by
failed to
attempting to
rather,
he fails to
on account of some
avoid the law
enforcement vehicle
negligent act.
(or in
speeding up
manner),
some other
enjoys
the State
the rebuttable presump-
telling,
More
the elements as set forth
tion that the defendant violated the stat-
the South Carolina
Court sim-
56-5-750(A)
ute. See
Ann.
S.C.Code
ply
require
do not
that the
act
defendant
(“An attempt
speed
increase the
willfully
either
knowingly.
or
The absence
vehicle or in other
pur-
manner avoid the
knowing requirement
either willful or
suing law enforcement
sig-
vehicle when
strongly suggests that the South Carolina
flashing
naled
a siren or
prima
legislature intended a
violation to rest
facie evidence of a violation of this sec-
the event that the defendant acted either
tion.”). However, when the defendant
recklessly
negligently.
or
See
State
negligently
say,
fails to stop,
because he
269,
Ferguson,
302 S.C.
395 S.E.2d
wearing
through
was
headphones
which he
(1990)
(holding
S.C.Code Ann.
played music on his Ipod
loudly,
too
44-53-370,
provides
in relevant
enjoy
presumption,
State does not
but
part
that it is unlawful for
person to
prove
the State still is free to
the defen-
manufacture, distribute, dispense,
pos-
or
statute,
dant violated the
though
even
manufacture, distribute,
with
sess
intent to
defendant failed to
simply because of
dispense,
substance,
or
a controlled
was
negligent
his own
behavior.4
liability crime;
rather,
strict
56-5-750(A)
Moreover,
was required
prove
State
the defendant
stands
stark
criminally negligent);
least
gov-
State v.
contrast to the South Carolina statute
Jenkins,
arrest,
erning resisting
S.C.
S.E.2d
45-46
and numerous
(1982) (“By failing to include ‘knowingly’
governing failing
state statutes
to stop for
apt
words to
light.
indicate criminal intent
resisting
South Carolina’s
motive,
we think
legislature
clearly
intend-
arrest statute
requires the defen-
simply,
knowledge
ed
one who
without
knowingly
willfully
dant to
resist the
criminal,
16-9-320(A)
or intent that
act
his
fails to
arrest.
Ann.
See S.C.Code
theory.
4. The
alleges
indictments in Roseboro's three
One indictment
that Roseboro
56-5-750(A)
suggest
cases
56-5-750(A),
state
willfully
violated
the other
prosecutors were aware that the State could
two do not.
proceed
negligence
under
either
or intent
*10
forty
clearly
states
re-
resisting
“knowingly
arrest as
Laws from over
(defining
stop
the failure to
quire
arrest”),
wilfully
resisting]
...
an
purposeful.5
violation be
Section 16-
316.1935(1) ("It
32-5A-193(a)
opera-
§
("Any
§
is unlawful for the
5. See Ala.Code
driver
vehicle,
any
having knowledge that he
willfully
or re-
tor of
of a motor vehicle who
fails
stop
vehicle
bring
stop,
a
or who
or she has been ordered to
such
fuses to
his vehicle to
officer,
by duly
attempts
pursu-
a
a
authorized law enforcement
otherwise flees or
to elude
vehicle,
stop
given
willfully
the vehicle in
ing police
when
a visual or
to refuse or fail to
or, having
signal
bring
stop,
compliance
a
with such order
audible
to
the vehicle to
misdemeanor.”);
stopped
knowing compliance with such
guilty
a
Alaska
shall be
of
order,
28.35.182(b) ("A
willfully
attempt
person
§
to flee in an
to elude
Stat.
commits
officer,
stop
person
a
and a
who violates this
failure to
at the direction of
offense of
degree
per-
a
of the third de-
peace
if the
subsection commits
officer
the second
("It
son,
40-6-395(a)
§
gree.”);
Ann.
driving
operating a vehicle or
Ga.Code
while
or
any
a
operating
while
an aircraft
shall be unlawful for
driver of vehicle
motor vehicle or
watercraft, knowingly
stop
willfully
bring his or her
fails to
as soon
to fail or refuse to
or
reasonably
practical
manner
vehicle to a
or otherwise to flee or at-
and in a
safe
requested
tempt
pursuing police
or
to elude a
vehicle or
under the circumstances
officer.”);
by
police
given
an audi-
signaled
peace
a
Ariz.
officer when
a visual or
to do so
28~1595(A) ("The operator
signal
bring
stop.”);
§
of a
ble
to
the vehicle to a
Rev.Stat.
710-1027(1)
("A person
§
knowingly
or refuses
Haw.Rev.Stat.
motor vehicle who
fails
resisting
bring
operator’s
a
the offense of
to
to
motor vehicle to
commits
order
person
being given
signal or
a motor vehicle if the
intentional-
after
a visual or audible
duly
ly
obey
a
by peace
a
officer or
author-
fails to
a direction of
law enforce-
instruction
officer,
agent
agency
acting under color
the law
ized
of a traffic enforcement
is
ment
of
misdemeanor.”);
authority,
guilty
a
Ark.Code
enforcement officer's official
to
class
5-54-125(a) ("If
vehicle.”);
person
person's
§
Idaho Code Ann.
Ann.
a
knows
49-1404(1) ("Any
his or
immediate arrest or detention is
driver of a motor vehicle
her
wilfully
attempts
pur-
being attempted by
duly
a
law
flees or
to elude a
authorized
who
officer,
duty
suing police
given
enforcement
it is the lawful
vehicle when
a visual or
signal
bring
stop,
person
fleeing,
on
to
the vehicle to a
to refrain from
either
audible
misdemeanor.”);
by
convey-
guilty
vehicle or
shall be
of a
625 Ill.
foot or
means
5/ll-204(a)
ance.”);
2800.1(a) ("Any
("Any
oper-
Comp. Stat.
driver or
Cal. Vehicle Code
who,
who,
person
operating
having
while
a motor vehicle
ator of a motor vehicle
been
evade, willfully
given
signal by
peace
and with
to
flees or
a visual or audible
the intent
pursuing peace
directing
operator
attempts
elude a
officer
such driver or
to
otherwise
vehicle,
bring
wilfully
guilty
stop,
vehicle
fails or
officer's motor
of misde-
his
direction,
meanor.”);
18-9-116.5(1)
obey
Col.Rev.Stat.
refuses to
such
increases his
who,
("Any person
operating
speed, extinguishes
lights,
motor
his
or otherwise
vehicle,
officer,
knowingly
attempts
attempts
guilty
eludes or
flees or
to elude the
misdemeanor.”);
peace
operating
elude a
officer also
a motor
of a Class A
Ind.Code
35-
vehicle,
44-3-3(b)(l)(A)
reasonably
(criminalizing
and who
or
should
knows
use
being pursued by
knowingly
intentionally
know that he or she is
said
vehicle to
or
flee from
officer,
peace
operates
a law
and who
his or her
enforcement officer after the officer
manner,
has,
means,
including
vehicle in a reckless
commits vehicu-
visible or audible
eluding.”);
operation
lar
Del.Code Ann. Title 21
of the law enforcement officer’s si-
who,
4103(b)
having
("Any
emergency lights,
ren
identified himself or
driver
received
signal
police
stop);
a visual or audible
from a
officer
herself and ordered the
Iowa
uniform,
321.279(1) ("The
identifiable
motor vehicle or
Code Ann.
driver of a
signal
bring
by clearly
police
vehicle
misdemean-
discernible
motor
commits
serious
bring
stop, operates
willfully
vehicle to a
or if the driver
fails to
driver’s
disregard
signal
vehicle in
of the
or interferes
motor vehicle to a
or otherwise eludes or
endangers
operation
police
attempts
with or
to elude a marked official law en-
extinguish-
speed
vehicle
forcement vehicle driven
a uniformed
or who increases
lights
attempts
peace
being given
es the vehicle’s
to flee or
officer after
a visual and
guilty
signal
stop.”);
elude the
officer shall be
audible
Kan. Stat. Ann 8-
1568(a)
felony.”);
("Any
vehicle who
class G
Fla.
Stat. Ann.
driver of motor
*11
(6) months,
bring
willfully
refuses to
such driver's
for a term not to exceed
fails or
six
or
both.”);
stop,
("It
§
vehicle to a
or who otherwise flees or
Mo.Rev.Stat.
43.170
shall be
attempts
pursuing police
to elude a
vehicle or
duty
operator
the
any
or driver of
bicycle,
given
police
when
visual
audible
or
any
traveling
vehicle or the rider of
animal
on
signal
bring
stop,
a
to
the vehicle to
shall be
highways
stop
signal
the
of this state to
on
of
(c)(1), (2)
guilty
provided by
as
subsection
or
patrol
member
the
obey any
of
and to
(3).");
520.095(l)(a)
§
Ky.Rev.Stat. Ann.
signal
other reasonable
or direction of such
("When,
operating a
while
motor vehicle with
patrol given
directing
member of the
the
flee,
person knowingly
intent to elude or
the
highways.
movement
Any
of traffic on the
wantonly disobeys
stop
or
a direction to
his
person
willfully
obey
who
fails or refuses to
vehicle.”);
or her motor
La.Rev.Stat. Ann.
signals
willfully
such
or directions or who
14:108.1(A) (“No
driver of a motor vehicle
opposes
patrol
resists or
a member of the
intentionally
bring
shall
refuse to
a vehicle to
proper discharge
the
of his duties shall be
stop knowing
given
a
that he has been
a
guilty of a misdemeanor and on conviction
signal
stop by
police
visual and audible
to
a
punished
provided by
thereof shall be
as
law
officer when the officer has
reasonable
offenses.”);
for such
Mont.Code Ann. 61—8—
grounds to believe that the driver has com-
316(a) ("A person operating a motor vehicle
signal
given
mitted an offense. The
shall be
fleeing
commits the offense of
from or elud-
by
emergency light
an
and a siren on a vehi-
ing
peace
a
peace
officer if a uniformed
offi-
vehicle.”);
police
a
cle marked as
Md.Code
operating
police
cer
a
vehicle in the lawful
21-904(c)
(c)(1) ("If
§§
police
Ann.
and
a
performance
peace
duty gives
of
officer’s
gives
signal
stop
officer
a visual or audible
to
hand,
person
signal by
a visual or audible
officer,
police
and the
whether or not in uni-
voice, emergency light,
directing
or siren
form,
appropriately
is in a vehicle
marked as
stop
to
the motor vehicle
vehicle,
police
an official
a
of a vehicle
driver
person knowingly
obey
signal by
fails to
may
attempt
to
elude
officer
vehicle,
increasing
speed
of the motor
[wjillfully failing
stop
...
to
the driver’s vehi-
continuing
speed
at a
that is 10 or more miles
cle.”);
257.602a(l) ("A
Comp.
Mich.
Laws
limit,
applicable speed
an hour above the
given by
driver of a motor vehicle who is
extinguishing
lights,
the motor vehicle’s
or
hand, voice, emergency light, or siren a visual
from,
fleeing
eluding,
attempting
otherwise
or
signal by police
or audible
a
or conservátion
officer.”);
peace
flee
to
from or elude the
officer, acting
performance
in the lawful
484.348(1) (“[T]he
Nev.Rev.Stat.
driver of a
duty, directing
bring
his or her
the driver to
willfully
motor vehicle who
fails or refuses to
stop
her
a
his or
motor vehicle to
shall not
bring
stop,
his
to a
vehicle
or who otherwise
willfully
obey
fail to
that direction
increas-
attempts
peace
flees or
to elude a
in a
officer
vehicle,
ing
speed
extinguish-
of the motor
readily
any police
identifiable vehicle of
de-
vehicle,
ing
lights
of the motor
or other-
partment
regulatory agency,
given
or
when
officer.”);
attempting
wise
to flee or elude the
signal
bring
stop
guilty
to
vehicle
his
to
609.487(1) (defining “flee[ing]”
Minn Stat.
misdemeanor.”);
Ann.
N.H.Rev.Stat.
"increasfing]
extinguishing]
speed,
motor
265:4(1)
("No
(I)(c)
person,
§§
while
headlights
taillights, refusing]
vehicle
or
to
vehicle,
driving
charge
or in
shall
...
vehicle,
using]
or
other means with
[p]urposely neglect
signaled
to
when
to
attempt
peace
intent
to elude a
officer
stop by any law enforcement officer ... or
following signal given by any peace
officer
willfully attempt
pursuit by
otherwise
to elude
vehicle”);
to the driver of a motor
Miss.Code
by increasing
a law enforcement officer
97-9-72(1) ("The
§Ann.
driver of a motor
speed, extinguishing headlamps
while still
given
sig-
vehicle who is
a visible or audible
abandoning
being
hand,
motion or
a vehicle while
nal
law enforcement officer
2C:29-2(b)
voice,
pursued.”); N.J. Stat. Ann.
emergency light
directing
or siren
("Any person,
operating
a motor vehi-
bring
driver to
his motor vehicle to a
knowingly
attempts
cle ... who
flees or
signal
given by
when such
a law enforce-
any police
elude
or law enforcement officer
acting
performance
ment officer
in the lawful
having
any signal
duty
after
received
from such
suspicion
who has
reasonable
to be-
bring
...
question
lieve that
officer
vehicle
full
the driver in
has commit-
crime,
degree.”);
willfully
obey
ted a
commits
crime of the third
N.M.
and who
fails to
(c) (stating
guilty
Stat.
30-22-1
that the crime of
such direction shall be
or,
of a misdemean-
upon
resisting, evading,
obstructing
punished by
conviction
be
an officer
shall
consists, among
things,
"willfully
a fine not to exceed One Thousand Dollars
re-
($1,000.00)
imprisoned
county jail
fusing
bring
given
a vehicle to a
"attempt
signal
stop”);
to elude or flee from a traffic
a visual or audible
N.Y.
*12
("A
vehicle”);
guilty
person
police
§
is
of
Penal Law 270.25
officer or
S.D. Codified
fleeing
police
a
officer in a motor
("Any
§
unlawful
Laws
32-33-18
driver of a vehicle
when,
degree
knowing
third
vehicle in the
intentionally
bring
who
fails or refuses to
a
stop
or
that he or she has been directed to
his
stop,
given
vehicle to a
when
visual or audible
police
a
offi-
her motor vehicle
uniformed
signal
bring
stop,
guilty
to
the vehicle to a
is
police vehicle
the activa-
cer or a marked
stop
signal
of failure to
at the
of a law en-
lights
lights
of either the
or the
and siren
tion
officer.”);
§
forcement
Tenn.Code Ann.
39-
vehicle,
attempts
of such
he or she thereafter
16-603(b)(l) ("It
any person,
is unlawful for
by driving
to flee such officer or such vehicle
street,
any
operating a motor vehicle on
while
road,
equal
twenty-five
speeds
or exceed
state,
alley
highway
inten-
or
in this
to
speed
per
above the
limit or en-
miles
hour
tionally
attempt
any
flee or
to elude
law en-
gaging
driving.”); N.C.
in reckless
Gen.Stat.
officer,
having
any
forcement
after
received
("It
20-141.5(a)
any
§
shall be unlawful for
signal
bring
from such officer to
the vehicle
street,
person
operate a
a
to
motor vehicle on
stop.”);
Transportation Code
to a
Tex.
highway,
public
flee-
or
vehicular area while
545.421(a) ("A person
§
an offense
commits
ing
attempting
or
to elude a law enforcement
person operates a
and
if the
motor vehicle
performance
is in the lawful
officer who
wilfully
bring
fails or refuses to
the vehicle to
duties.”);
39-10-71(1)
§
his
N.D. Cent.Code
flees,
elude,
stop
attempts
pursu-
a
a
or
or
to
willfully
("Any
a motor vehicle who
driver of
ing police
given
vehicle when
a
or
visual
bring
stop,
fails or refuses to
the vehicle to a
signal
bring
audible
to
the vehicle to a
elude,
attempts
or
to
or who otherwise flees
46.2-817(A) (“Any
slop.”);
§Ann.
Va.Code
manner,
any
pursuing police
a
vehicle or
who,
person
having received a visible or audi-
officer,
peace
given
a visual or audible
signal
any
ble
from
law-enforcement officer
bring
guilty
signal
stop,
the vehicle to a
is
to
bring
stop,
his motor vehicle to a
drive
a
A misdemeanor for a first offense
class
vehicle in a
and wanton
such motor
willful
subsequent
and a class C
for a
offense
signal
disregard
attempts
of such
or who
years.”);
within three
Ohio Rev.Code Ann.
officer,
escape or elude such law-enforcement
2921.331(B) ("No person
operate
§
shall
a
misdemeanor.”);
guilty
is
of a Class 2
Wash.
willfully
vehicle so
to elude or flee a
motor
46.61.024(1) (“Any
§
Rev.Code
driver of a
police
receiving a
officer after
visible or audi-
willfully
motor vehicle who
fails or refuses to
signal
police
bring
ble
from a
officer to
immediately bring
to a
and
his vehicle
person’s
stop.”);
motor vehicle to a
Ok. Stat.
who drives his vehicle in a reckless manner
540A(A) ("Any operator
§Ann.
of a motor
attempting
pursuing police
to elude
received a
vehicle who has
visual
audible
vehicle,
being given
after
a visual or audible
signal,
peace
a red
and a
siren from
signal
bring
stop,
the vehicle to a
shall be
driving
showing
a motor vehicle
officer
guilty
felony.”);
aof
class C
W. Va.Code
sheriff,
police,
highway
be an official
same to
61-5-17(e) (“Any person
intentionally
who
ranger
patrol
game
directing
or state
vehicle
attempts
any
flees or
to flee in a vehicle from
bring
operator
vehicle to
officer, probation
law-enforcement
officer or
willfully
speed
extin-
who
increases
or
parole
acting
ca-
officer
in his or her official
guishes
lights
attempt
vehicle in an
pacity,
given
after the officer has
a clear visu-
officer,
peace
willfully
to elude such
or
at-
signal directing
person
audible
al or
tempts
any
other manner
to elude the
misdemeanor.”);
stop,
guilty
of a
Wis. Stat.
officer,
peace
peace
or who does elude such
(“No
vehicle,
346.04(3)
operator
aof
after
officer,
misdemeanor.”);
guilty
Or.Rev.
having
signal
received a visual or audible
(requiring
prove
Stat.
811.540
the state to
officer,
police
vehi-
from traffic
or marked
knowingly
attempt-
that the defendant
fled or
cle,
knowingly
attempt
shall
flee or
to elude
officer);
pursuing police
ed to flee a
30 Pa.
traffic officer willful or wanton disre-
906(a) ("A
person
Cons. Stat. Ann.
who has
gard
signal
with or
of such
so as to interfere
given
signal
been
visual or audible
vehicle,
endanger
operation
of the
authorized to enforce this title
pe-
or the
officer or other vehicles or
traffic
willfully
bring
and who
fails or refuses to
his
destrians,
operator
nor shall the
increase the
vehicle or boat to a
otherwise
who
speed
operator's
extinguish
vehicle or
attempts
pursuing
flees or
to elude a
officer
lights
attempt
of the vehicle in an
to elude
or enforcement vehicle or boat commits a
flee.”);
31-5-225(a)
Wyo.
summary
degree.”);
Stat. Ann.
offense of the first
R.I.
willfully
(requiring
("Any
driver
vehicle
Gen. Laws
31-27-4
the state to
of motor
who
prove
operated
bring
stop,
that the defendant
a vehicle in
fails or refuses to
his vehicle to a
9-320(A)
Although
government openly
Code
of the South Carolina
56-5-750(A)
failure to
for blue
majority
in its brief that
the vast
conceded
strongly
Nation
across the
light laws from
statute,
liability-like”
Appel-
was a “strict
legislature
Carolina
that the South
suggest
Br. at
in other
lee’s
submissions to this
56-5-750(A)
§a
required
have
easily could
court,
suggested
phrase
it
“[i]n
only upon show-
premised
to be
violation
mitigating
the absence of
circumstances”
purposefully,
acted
that the defendant
ing
56-5-750(A)
§in
indicates that the South
not to do so.
but chose
*13
legislature
Carolina
intended
56-5-
Carolina,
permit
other states
750(A)
Like South
only knowing
to cover
and willful
to
stop
light
violation
a failure to
problem
government’s
The
for the
acts.
the defendant acted
proof
rest on
position
phrase
is the
the absence of
“[i]n
See,
Laws
e.g., Mass. Gen.
negligently.
mitigating circumstances”
for a de
allows
who,
(“Any person
§ 25
Chapter 90
fense to both intentional and unintentional
vehicle,
of a motor
charge
operating
(negligent)
example,
conduct. For
if a de
when
neglect
stop
...
refuse or
to
shall
intentionally
stopping
fendant
avoids
once
by any police officer who
signaled
to
so,
signaled
mitigating
to do
a
circum
badge
displays
in uniform or who
his
is
may
stance
be his reasonable belief that
on the outside of his outer
conspicuously
being pursued by somebody
he was
other
...
punished
shall be
garment,
coat or
than a law enforcement officer.
Va.
Cf.
dollars.”);
fine of one hundred
Vt. Stat.
a
46.2-817(A) (“It
§Ann.
be an
Code
shall
1133(a) (“No operator
of a
Ann. Title 23
...
if
affirmative defense
the defendant
bring
fail
his or her
motor vehicle shall
to
reasonably
shows he
believed he was be
to do so
signaled
to a
when
vehicle
by person
a
other than a
ing pursued
law-
officer.”).
an enforcement
officer.”);
enforcement
see also South
A.2d 884
Roy,
In
151Vt.
State
Safety,
Department
Carolina
Public
(1989),
dealt
the Vermont
Highway Safety, Advice For
General
a similar statute to the one before
with
Roads,
Carolina
avail
Driving on South
law, person
a
this court. Under Vermont
http://www.schp.org/general_
able
failing
from
to
a motor
prohibited
is
(“How verify
you’re
hwy_tips.pdf
signaled to do so
a law
vehicle when
over
a law enforcement
being pulled
officer. Id. at
The de-
enforcement
flashing
Look for a
officer:
argued that the
of Vermont
fendant
State
try
identify the driver and ascertain
required
prove
that he had knowl-
wearing a uniform. Make
is
he/she
being
stop by
edge
signaled
that he was
properly
sure that the vehicle is marked
displaying
a law enforcement officer
If it is
identifying
police
it as
vehicle.
sounding a
flashing light and
siren.
not,
interior
officer should turn on his
contention,
Roy
rejected
court
you
it known to
that he is
light and make
concluding
that Vermont’s failure to
right
Pull
side
officer.
over to
liability
statute was a strict
for blue
you
it
safe to do
of the road when
feel
Roy
holding,
crime. Id. at 890.
so
so.”).
time,
Ipod
our
defen-
At the same
relied on the Vermont
principally
court
mitigat-
free to assert as a
dant would be
an intent
legislature’s failure to include
that the road conditions
ing circumstance
statutory
definition. Id. at
element
driver would
were such that
reasonable
stop,
signal
bring
attempts
the vehicle to
or who otherwise flees or
to elude
audible
misdemeanor.”).
vehicle,
given
guilty
pursuing police
when
visual or
not have heard the law enforcement offi-
those materials whether these convictions
lights,
cer’s siren or seen his blue
notwith-
involved intentional violations of
56-5-
750(A).
Williams,
standing
negligent
his
conduct.
See
See United States v.
Cir.2008)
56-5-750(A) (“Failure
(8th
§Ann.
(vacating,
5.C.Code
auto theft
flashing light
post-Begay,
see the
or hear the siren
defendant’s
convic-
remanding
a failure to
tion and
to allow district court
does not excuse
permissible
distance between the vehicles and other
to consider
materials to deter-
that it
mine
road conditions are such
would be
whether the defendant’s conviction
violence). In
reasonable for a driver to hear or see the was a crime of
the event the
signals from the law enforcement vehi-
consultation of these additional materials
cle.”).
can think of
in-
examples
We
establishes
Roseboro’s convictions
presence
mitigating
where the
cir- volved intentional violations of
56-5-
750(A),
might
cumstance
excuse the defendant’s
the district court would be free to
intentional
unintentional
conduct.
conclude that
convictions are violent
*14
924(e)(2)(B)(ii).
only
§
But
examples
such further
would
be-
felonies under
The in-
point.
dealing
disobeying
labor the
We are
with what
tentional act of
a law enforce-
essentially
a categorically
by refusing
overbroad ment officer
for his
statute, allowing
justification,
conviction for
light signal,
both inten-
without
act,
inherently
aggressive
tional and unintentional conduct. Because
an
and violent
it is not clear from the record whether
v. Spells,
see United States
56-5-750(A)’s
(7th Cir.2008)
Roseboro’s
in-
(holding, post-Begay,
convictions
(with
conduct, knowingly
intentionally
volve intentional or unintentional
fleeing
vehicle)
appropriate
remand is
to allow for the
the use of a
from a law enforce-
district court
such
purposeful, aggressive,
consult
additional ment officer is a
act), and, therefore,
may
appropriate
materials as
be
under
violent
a violent
Taylor
Shepard
and determine from
under the ACCA.6
States,
Relying
remaining
on James v. United
attempted
550 U.S.
or
in a structure in an
(2007),
burglary prosecution,
127 S.Ct.
D
Id. at 1351. The Archer court
explosives.
today is
that our decision
also note
We
“[bjurglary
dwelling,
observed
our sister
decisions from
with
consistent
arson, extortion,
explosives
and the use of
make clear
These decisions
circuits.
all
violent
aimed at
aggressive,
are
acts
require deliberate
does not
persons
persons
property
where
conduct, a
under
conviction
purposeful
thereby injured.”
located and
might be
will not be considered
a statute
such
contrast,
the court
Id.
observed
a crime
felony under the ACCA or
violent
however,
“[cjarrying
weapon,
a concealed
Sentencing
Guide-
violence under
centering
posses-
is a
crime
around
passive
States v.
example,
For
United
lines.
sion,
rather than around
overt action.”
(11th Cir.2008),
Archer,
F.3d 1347
Id.
as a
sentenced the defendant
district court
Florida
regard
With
to whether
based,
part,
on his
Offender
Career
conduct,
purposeful
crime at issue involved
carrying
a con-
Florida conviction
carrying
the Archer court observed
The Elev-
weapon.
Id. at 1348.
cealed
under
law
weapon
concealed
Florida
did
affirmed,
Supreme
but
enth Circuit
necessarily
purposeful
involve
conduct.
the defendant’s sentence
vacated
Rather,
specific
the court noted that
the case for further consid-
and remanded
not an element of the crime.
intent was
Begay.
Id. On remand
eration in
carry-
specific
Id. This lack of
intent made
Court, the Archer court
from the
*15
ing
weapon
a concealed
more similar to the
Florida convic-
held that
the defendant’s
Begay.
Finally,
Id.
the court not-
DUI
carrying
weapon
a concealed
was
tion for
supported by
that
conclusion was
the
ed
its
therefore,
and,
the
not a crime of violence
weapon
was
carrying
fact that
concealed
un-
was not a Career Offender
defendant
universally
not
considered violent
Id. at
Sentencing Guidelines.
der
the
states, id.,
the fact that the commen-
tary
Sentencing
specified
to the
Guidelines
did not include the
that a crime of violence
the Archer court as-
applying Begay,
In
by a
possession
unlawful
of a firearm
con-
fire-
carrying
whether
a concealed
sessed
at
victed felon. Id.
1352.
the
degree
in kind and
arm is similar
arson,
burglary
dwelling,
of
crimes
Herrick,
In
States v.
United
extortion,
involving
crimes
the use of
(1st Cir.2008),
the First Circuit
54-55
court noted
explosives. Id. at 1350. The
question
the
of whether
viola-
addressed
prohibited
at issue
that the Florida statute
homicide
motor vehicle
tion Wisconsin’s
carrying
from
a concealed fire-
statute,
required a determination
which
person.
his
Id. In so
arm on or about
criminally negligent,
was
that the accused
carrying
the court concluded that
noting,
under
a crime of violence
constituted
ag-
weapon
did not involve the
applying
concealed
4B1.2. After
USSG
framework,
violent conduct that the Su-
court concluded that Wis-
gressive and
in the
homicide statute was not
noted was inherent
consin’s vehicular
preme Court
4B1.2,
arson,
under
dwelling,
a crime of violence
USSG
burglary
crimes of
unlikely
highly
necessary
with
because it is
the Court in
sion
not have been
Supreme Court would countenance
that the
James to look to
narrow construction
because,
main,
where
burglaiy,
application
of the ACCAto
case
attempted
documents, plea colloquy,
burglaries
charging
attempted
more
most
involve much
Moreover,
jury
it clear that the
preparatory
instructions made
than mere
conduct.
and/or
negligently.
position
defendant acted
government’s
creates serious ten-
though
required
even
the statute at issue
that the crime of transporting a minor for
prostitution
“readily
the defendant should realize his con-
fell
... within ...
adjectives,”
creates a
noting
duct
substantial
unreason- Court’s trio of
that it
great bodily
“surpassingly
able risk of death or
harm to
difficult
was
to see how bur-
at
glary
another.
Id.
59-60. The court reasoned
could be treated as a violent crime
that, although
yet
trafficking
the crime of vehicular homi-
child
exempted.” Id.
violent,
purposeful
cide was
it was neither
In Spells,
challenged
the defendant
his
aggressive.
nor
designation as an Armed Career Criminal
924(e),
Gray,
arguing
United States v.
Ill Mexico criminalizing driving New herein, judg- the reasons stated For alcohol, while under the influence of con- the district court is vacated and ment of materially distinguishable duct from that resentencing. the case is remanded for criminalized South Carolina Code 56- Moreover, analysis when the artic- AND REMANDED VACATED applied ulated in to the South statute, it becomes that a Carolina clear NIEMEYER, dissenting: Judge, Circuit violation of the South Carolina statute is for the Following Roseboro’s conviction felony, still a violent as we held in James possession of firearms and ammuni- illegal (4th Cir.). tion, § 922(g)(1), in violation of 18 U.S.C. sentenced him as an the district court I criminal” to 262 months’
“armed career
satisfy
requirement
imprisonment. To
outset,
At
important
it is
to note that
Act
the Armed Career Criminal
analysis
previous
of whether a
convic-
(“ACCA”),
924(e),
that Rose-
18 U.S.C.
qualifies
pur-
tion
violent
convictions for
previous
boro have three
poses
categorical ap-
of ACCA uses the
felonies,” the district court relied
“violent
proach,
approach
followed in
we
convictions—in
on Roseboro’s three
(4th Cir.)
James
and that
2001,
1996,
failing
and 2002—for
Begay.
Court followed in
Under the cate-
light,
violation
South Car-
gorical approach, we consider an offense
To conclude that
olina Code
56-5-750.
“in
“generically”
terms of how the law
—i.e.
convictions were for
Roseboro’s
“violent defines the offense and not in terms of how
felonies,” the district court relied on Unit-
might
an individual offender
have commit-
F.3d
390-91
ed States
ted it
a particular
on
occasion.”
(4th Cir.2003) (hereinafter
(4th
James
1584;
128 S.Ct. at
see also James v. Unit-
Cir.)),
where we held that
violation of
States,
ed
550 U.S.
127 S.Ct.
Carolina Code
56-5-750 is a vio-
South
(2007) (hereinaf-
1596-97,
The
James
U.S.
(1990).
Cir.)
overruled,
Amplifying
it controls
S.Ct.
S.Ct.
under
1597).
(S.Ct.)
(DUI statute)
Court, in
The James
hold-
statute
are not violent felo-
ing
burglary
purposes
that
attempted
categorical-
nies
of ACCA. See 128 S.Ct.
ly
felony
poses
Begay
a violent
a serious
at 1588. The
reached
risk
Court
physical injury
required by
of
to others as
conclusion because violations of that stat-
ACCA, explained
although
typically
“purposeful,
ute
do not involve
“[o]ne
could,
course,
violent,
conduct,”
imagine
and aggressive
situation in
as is re-
attempted burglary might
pose
quired by
Id. at
ACCA.
injury
a realistic risk of confrontation or
provision
The relevant
of the ACCA de-
anyone[,]
require
...
does not
me-
ACCA
felony
punisha-
fines a violent
as
crime
certainty.”
taphysical
127 S.Ct. at
by imprisonment
exceeding
ble
for a term
rejected
1597. The
the defendant’s
Court
year
one
apply
assertion that
order to
the cate-
arson,
extortion,
burglary,
involves
gorical approach employed
Taylor,
of-
explosives,
use of
or otherwise involves
present
fense conduct
all cases had to
presents
potential
conduct that
a serious
injury
physical
risk of
to others. The
physical injury
risk
to another[.]
explained:
categorical] ap-
We do not view
924(e)(2)(B)(ii).
[the
18 U.S.C.
proach
requiring
every
conceiva-
Court reasoned
because this definition
by
ble factual
offense covered
of a violent
includes
illustrations
necessarily present
po-
must
a serious
the kinds of crimes that fall within the
injury
tential risk of
before the offense definition,
general
provision
catchall
can
felony....
be deemed a violent
presents
“otherwise involves conduct that
Rather,
proper
inquiry is whether
potential
injury
serious
physical
risk of
.a
the conduct encompassed
the ele-
to another” is limited
the nature of the
offense,
ordinary
ments of the
given
crimes
as illustrations: “[T]he stat-
case, presents
potential
a serious
risk
crimes,
only
ute covers
similar
rather than
injury
always hy-
to another. One can
every
‘presents
poten-
crime that
a serious
pothesize unusual cases in which
even
injury
tial risk of physical
to another.’”
prototypically
might
violent crime
not Begay,
(quoting
II
ACCA],
example
“unlike the
crimes [in
the
I
turn
question
now
to the
of whether
conduct for which the drunk driver is con-
influence)
Begay overruled our
in
(driving
decision
James
victed
under the
need
(4th Cir.).
Supreme
The
held in
purposeful
Begay,
Court
not be
or deliberate.”
Begay
Indeed,
that convictions under New Mexi-
245
occupants
and the
police
statute was
officer
of the
that New Mexico’s
served
vehicle, which,
turn,
poten-
strict lia-
in
creates a
imposing
to statutes
comparable
the offender
respect
physical injury
“in
to which
tial for serious
to the
bility
officer,
vehicle,
had
criminal intent
occupants
need not have
of the
bystanders.
all.” Id. at 1586-87.
and even
statute,
we
The South Carolina
added).
(emphasis
2008). In Spells, the Seventh Circuit ad analysis
vanced an equally persua
sive here: