Steven Smith was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court found that Mr. Smith qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA” or “Act”), and therefore imposed a sentence of 240 months’ imprisonment. Mr. Smith now appeals his sentence, challenging whether, after the Supreme Court’s recent decision in
Begay v. United States,
— U.S. -,
I
BACKGROUND
The Armed Career Criminal Act provides that any defendant convicted of violating 18 U.S.C. § 922(g), who also has three prior convictions for “a violent felony or a serious drug offense,” shall be sentenced to not less than fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). The Act defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....
18 U.S.C. § 924(e)(2)(B).
In April 2006, Steven Smith sold fourteen stolen firearms to an undercover agent. Mr. Smith ultimately was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Prior to sentencing, the Government filed a memorandum requesting that Mr. Smith be sentenced as an armed career criminal under the ACCA. It identified three of Mr. Smith’s prior convictions as violent felonies: (1) a 2001 conviction for intimidation, a Class D felony; (2) a 2005 conviction for criminal recklessness with a deadly weapon, a Class D felony, see Ind. Code § 35-42-2-2; and (3) a 2006 conviction for criminal recklessness, a Class D felony, see id.
At the sentencing hearing, Mr. Smith objected to the Government’s characterization of his two criminal recklessness convictions as violent felonies under the ACCA. In his view, the offense of criminal recklessness did not require a
mens rea
sufficient to warrant its inclusion as a violent felony; he contended that a higher mental state is required to trigger the enhanced penalty mandated by the Act. He also argued that the Sixth Amendment and
United States v. Booker,
The district court found both of these objections unpersuasive in light of controlling precedent. It therefore sentenced Mr. Smith to 240 months’ imprisonment, a sentence in the middle of the suggested guidelines range for an armed career criminal. See 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4(b)(3)(B). Mr. Smith timely appealed.
*783 II
DISCUSSION
A.
Mr. Smith first contends that “criminal recklessness,” as defined by Indiana law, is not a violent felony and, accordingly, that he should not have been sentenced as an armed career criminal. Whether an Indiana conviction for criminal recklessness may be considered a violent felony under the ACCA is a question of law that we review de novo.
See United States v. Otero,
We begin with the text of the Indiana statute. Indiana defines “criminal recklessness” as follows:
A person who recklessly, knowingly, or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another person; or
(2) hazing; 1
commits criminal recklessness. 2
Ind.Code § 35-42~2-2(b).
The parties agree that criminal recklessness, as defined by the Indiana Code, does not fall within the scope of 18 U.S.C. § 924(e)(2)(B)(i), which requires that the offense have “as an element the use, attempted use, or threatened use of physical force against the person of another.” It also, of course, is not “burglary, arson, or extortion,” and it does not involve the “use of explosives.” See 18 U.S.C. § 924(e)(2)(B)(ii). Therefore, the question before us is whether criminal recklessness may be classified as a violent felony under the so-called “residual clause” because it “otherwise involves conduct that presents a serious potential risk of physical injury.” Id.
We previously have held that criminal recklessness does qualify as a crime of violence for purposes of sentencing under the ACCA,
see United States v. Newbern,
In
Begay,
the Supreme Court held that New Mexico’s felony offense of driving under the influence (“DUI”) could not be considered a violent felony under the re
*784
sidual clause of the ACCA.
Begay,
The Court reasoned that the listed offenses in § 924(e) (2) (B) (ii) — burglary, arson, extortion and the use of explosives— “illustrate the kinds of crimes that fall within the statute’s scope.” Id. at 1584-85. Examining the listed crimes, the Court concluded that, in addition to posing a serious risk of injury to others, the commonality shared by the listed crimes was that each involved “purposeful, violent, and aggressive conduct.” Id. at 1586 (internal quotation marks and citations omitted). 3 By contrast, it noted, New Mexico’s DUI statute, like the typical statute that forbids driving under the influence, was a strict liability offense; “the conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate.” Id. at 1587 (emphasis added).
The Court went on to note that the ACCA, as suggested by its title, was intended to target “the special danger created when a particular type of offender — a violent criminal or drug trafficker — possesses a gun.” Id. “In this respect,” it explained, “crimes involving intentional or purposeful conduct,” such as the enumerated crimes, are substantially different from crimes such as driving under the influence. Id. (emphasis added). “In both instances, the offender’s prior crimes reveal a degree of callousness towards 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.” Id. It concluded: “We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.” Id.
After
Begay,
then, a finding that the offense poses a serious risk of physical injury to another is a
necessary,
but not
sufficient,
condition for the offense to be included within the scope of ACCA’s residual clause. The Government must also show that the predicate offense “typically involve[s] purposeful, violent, and aggressive conduct.”
Id.
at 1586 (quotation marks omitted). Defendants with prior convictions for offenses that do not involve “purposeful or deliberate” conduct are not the type of defendants that Congress intended to include within its definition of an armed career criminal.
Id.
at 1587;
see also United States v. Spells,
*785
Mr. Smith contends that, under the standard elucidated in
Begay,
offenses that require only negligent or reckless conduct cannot be considered violent felonies within the meaning of section 924(e)(2)(B)(ii). In his view, crimes with a
mens rea of
recklessness are, by definition, not “purposeful,” and criminals convicted of an offense involving mere recklessness are not the types of individuals who are increasingly likely to “deliberately point the gun and pull the trigger.”
Begay,
In determining whether the Court in
Begay
meant to bar crimes with a
mens rea
of recklessness from inclusion within the ACCA’s residual clause, it is helpful to look to the examples that it provided of crimes which, though certainly dangerous, “are not typically committed by those whom one normally labels ‘armed career criminals.’ ”
Id.
at 1587. Most relevant for our purposes, the Court referenced the federal offense of reckless tampering with consumer products, 18 U.S.C. § 1365(a). Despite its innocuous-sounding title, this statute provides: “Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product” shall be guilty of a felony.
Id.
Although the commission of this offense is unquestionably dangerous, the Court concluded that it was “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms.”
Id.
Similarly, in concluding that driving under the influence was not a violent felony under the Act, the Court emphasized that “drunk driving is a crime of negligence or
recklessness,
rather than violence or aggression.”
Id.
at 1587 (emphasis added) (quoting
United States v. Begay,
It is also worth noting that the Court concluded its opinion by stating:
[W]e hold only that, for purposes of the particular statutory provision before us, a prior record of DUI, a strict liability crime, differs from a prior record of violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives. The latter are associated with a likelihood of future violent, aggressive, and purposeful “armed career criminal” behavior in a way that the former are not.
Id. at 1588 (emphasis added). Again, the Court emphasized that the enumerated crimes are “intentional,” and therefore of greater concern than crimes without that requisite intent.
We must remember that the enhanced prison term under the ACCA is imposed
in addition
to prison time that already has been served for the predicate felony convictions. When it enacted the ACCA, Congress was attempting to separate out those offenders whose criminal history evidenced a high risk for recidivism and future violence; these career offenders, it concluded, exhibited a special need for an increased sentence in order to deter future violent crimes.
See id.
at 1587;
Taylor v. United States,
*786 We must conclude that, after Be-gay, the residual clause of the ACCA should be interpreted to encompass only “purposeful” crimes. Therefore, those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA. Accordingly, we agree with the Second Circuit that crimes requiring only a mens rea of recklessness cannot be considered violent felonies under the residual clause of the ACCA.
With this in mind, we next must examine the criminal recklessness statute under which Mr. Smith twice was convicted. Normally, when deciding whether an offense is a violent felony, our inquiry begins and ends with the elements of the offense.
Taylor,
Under the categorical approach, we consider the offense generically; we may not inquire into the specific conduct of a particular offender.
Begay,
As likely will be true in many instances of convictions under a statute that contemplates reckless behavior, the juries that convicted Mr. Smith of criminal recklessness were not asked to determine whether he acted knowingly or intentionally; Mr. Smith also did not admit to acting with that intent. Therefore, under the categorical approach, we cannot look to the facts of his particular convictions to determine for ourselves whether his conduct was knowing or intentional, on the one hand, or merely reckless on the other. Accordingly, we conclude that, under the Supreme Court’s reasoning in Begay, Mr. Smith’s criminal recklessness convictions cannot serve as predicate violent felonies under the ACCA.
Without including his two convictions for criminal recklessness, Mr. Smith does not have the three qualifying convictions required for an enhanced sentence under the ACCA. Therefore, we must vacate the judgment of the district court and remand for resentencing in accordance with this opinion.
B.
Mr. Smith also contends that the Supreme Court should overrule
Almendarez-Torres v. United States,
Conclusion
For the reasons set forth in this opinion, we vacate the judgment of the district court and remand for resentencing.
Vacated and Remanded
Notes
. "Hazing” is further defined as forcing or requiring another person:
(1) with or without the consent of the other person; and
(2) as a condition of association with a group or organization;
to perform an act that creates a substantial risk of bodily injury.
Ind.Code § 35-42-2-2(a).
. Criminal recklessness, although generally a Class B misdemeanor, is:
(1) a Class A misdemeanor if the conduct includes the use of a vehicle;
(2) a Class D felony if:
(A) it is committed while armed with a deadly weapon; or
(B) the person committed aggressive driving (as defined in IC 9-21-8-55) that results in serious bodily injury to another person; or
(3)a Class C felony if:
(A) it is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather; or
(B) the person committed aggressive driving (as defined in IC 9-21-8-55) that results in the death of another person.
Ind.Code § 35-42-2-2(c).
. Specifically, the Court noted that each of the enumerated crimes involved a certain degree of intent: " 'burglary' is an unlawful or unprivileged entry into a building or other structure with 'intent to commit a crime’ " 'arson' is causing a fire or explosion with 'the purpose of,'
e.g.,
'destroying a building ... of another' or 'damaging any property ... to collect insurance’ "extortion is 'purposely' obtaining property of another through threat of,
e.g.,
inflicting 'bodily injury’ and "the word 'use' " in the explosives enumeration "most naturally suggests a higher degree of intent than negligent or merely accidental conduct.”
Begay,
. Cf. 18 U.S.C. § 1365(a) ("Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product that affects interstate or foreign commerce" is guilty of the offense of reckless tampering of consumer products.) (cited in Begay as an example of crimes clearly not contemplated by the ACCA as violent felonies).
