Title United States v. Parson
Date 1992
By
Subject Other\Concurring
Contents
Page 1
48 of 52 DOCUMENTS
UNITED STATES OF AMERICA v. STEVEN L. PARSON, Appellant
NO. 91-3059
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
955 F.2d 858; 1992 U.S. App. LEXIS 1095
June 13, 1991, Argued
January 31, 1992, Filed
SUBSEQUENT HISTORY: As Corrected February 27,
1992.
PRIOR HISTORY: **1 On Appeal From The United States District Court For The District of Delaware. (D.C. Crim. No. 90-00002)
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant appealed from the order of the United States District Court for the District of Delaware, which enhanced his sentence on a drug pos- session conviction on the finding that he was a career offender, pursuant to U.S. Sentencing Guidelines Manual
§§ 4B1.1 and 4B1.2(1).
OVERVIEW: Defendant pleaded guilty to drug posses- sion. He was sentenced under an enhanced term, due to the district court's finding he was a career offender, pur- suant to U.S. Sentencing Guidelines Manual §§ 4B1.1 and
4B1.2(1). Defendant appealed his sentence, contending that one of his prior convictions, for reckless endanger- ment, was not a "crime of violence," under the guidelines, so the district court did not properly predicate career of- fender status. The court affirmed, holding that the district court properly applied a categorical approach to deter- mine that reckless endangerment could be classified as a violent crime under § 4B1.2(1). Although the crime was not a violent crime for the purposes of 18 U.S.C.S.
§ 924(e), its definition was not identical to the definition of a "crime of violence" under the guidelines, which was revised from a definition in 18 U.S.C.S. § 16. Reckless endangerment was not excluded from § 4B1.2(1), and as defendant pleaded guilty to that charge, which included the creation of a substantial risk of death to another, the district court did not clearly err in holding that defendant met the criteria of a career offender for the purposes of sentence enhancement.
OUTCOME: The court affirmed the district court's order
enhancing defendant's sentence, holding that the district court properly applied a categorical approach to deter- mine that defendant's prior conviction for reckless endan- germent could be classified as a violent crime under the sentencing guidelines.
LexisNexis(R) Headnotes
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN1 A defendant is a career offender if (1) the defen- dant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI. U.S. Sentencing Guidelines Manual § 4B1.1.
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN2 For purposes of the career offender guideline, U.S. Sentencing Guidelines Manual § 4B1.1, § 4B1.2(1) de- fines "crime of violence" as any offense under federal or state law punishable by imprisonment for a term exceed- ing 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 of a dwelling, arson, or ex- tortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Reckless Endangerment
HN3 Reckless endangering in the first degree occurs when a person recklessly engages in conduct which cre- ates a substantial risk of death to another person. 11 Del.
955 F.2d 858, *; 1992 U.S. App. LEXIS 1095, **1
Page 2
Code Ann. § 604.
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN4 See 28 U.S.C.S. § 994(h).
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN5 The sentencing guidelines provide a substantial term of imprisonment for a convicted defendant who has a history of two or more prior federal, state, or local felony convictions for offenses committed on separate occasions.
28 U.S.C.S. § 994(i)(1).
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person
HN6 See 18 U.S.C.S. § 16.
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN7 The first prong of the guideline definition, U.S. Sentencing Guidelines Manual § 4B1.2(1)(i), includes only actual, attempted or threatened use of physical force directly against persons. Crimes aimed at taking or dam- aging property, such as burglary of a dwelling, arson, extortion, and the use of explosives, are listed in the sec- ond prong of the guideline definition, § 4B1.2(1)(ii), and that prong does not enumerate any crimes necessarily in- volving or threatening force against persons, which are already covered in the first prong.
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN8 The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that has as an element the use, attempted use, or threatened use of physical force against the person of another, or is burglary of a dwelling, arson, or extortion, involves use of explosives, or other- wise involves conduct that presents a serious potential risk of physical injury to another. U.S. Sentencing Guidelines Manual § 4B1.2(1).
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN9 A crime of violence includes murder, manslaugh- ter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another. U.S. Sentencing Guidelines Manual §
4B1.2 application note 2.
Criminal Law & Procedure > Sentencing > Sentencing
Guidelines Generally
HN10 There are three independent ways by which the government may prove that a defendant's past conviction was for a "crime of violence." The government may show that the crime: (1) is among those specifically enumerated in the application note; or (2) has as an element the ac- tual, attempted or threatened use of physical force against a person; or (3) although neither specifically enumerated nor necessarily involving use of physical force against a person, nonetheless involved conduct presenting a seri- ous risk of physical injury. U.S. Sentencing Guidelines Manual § 4B1.2 application note 2.
COUNSEL: JOSEPH GREY (Argued), PRICKETT, JONES, ELLIOTT, KRISTOL & SCHNEE, 1310 King Street, P.O. Box 1328, Wilmington, DE 19899, Attorney for Appellant
WILLIAM C. CARPENTER, JR., United States Attorney, CAROLYN T. GREENE(Argued), Assistant United States Attorney, 5110 Federal Building, 844 King Street, Wilmington, DE 19801, Attorneys for Appellee
JUDGES: Before: BECKER and ALITO, Circuit Judges, and HUYETT, District Judge *
* The Honorable Daniel H. Huyett, 3rd, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINIONBY: BECKER
OPINION:
*860 OPINION OF THE COURT BECKER, Circuit Judge.
The defendant-appellant, Steven Parson, pled guilty to a charge of possession with intent to distribute cocaine base, 21 USC §§ 841(a)(1) and 841(b)(1)(C) (1988). The district court determined that Parson was a career offender under United States Sentencing Guidelines ("USSG") §§
4B1.1 and 4B1.2(1), which substantially increased his sentence. The court based its determination of career of- fender status on Parson's separate Delaware convictions for second degree conspiracy and first degree **2 reck- less endangering. Parson admits that the second degree conspiracy charge was a proper predicate for career of- fender status. He vigorously contends, however, that the
1984 reckless endangering conviction under 11 Del Code Ann § 604 (Michie 1987) (subsequently amended) was not a proper predicate because it was not a "crime of violence" under USSG §§ 4B1.1 and 4B1.2(1).
955 F.2d 858, *860; 1992 U.S. App. LEXIS 1095, **2
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The district court concluded that the reckless endan- gering conviction was a "crime of violence" under both parts of the definition in USSG § 4B1.2(1). Parson claims that the district court plainly erred in finding his con- duct a "crime of violence" under the first part of the Guideline definition, USSG § 4B1.2(1)(i), because use of force is not an element of first degree reckless endan- gering under Delaware law. He further submits that the district court erred under the second part of the definition, USSG § 4B1.2(1)(ii), either by considering first degree reckless endangering categorically a "crime of violence" or by deeming his actual conduct a "crime of violence" without allowing him to introduce evidence controverting the facts in his Presentence Investigation ("PSI") Report. More specifically, based on the legislative **3 history of the term "crime of violence," beginning with the origi-
nal definition of that term in 18 USC § 16 (1988), Parson argues that only (1) crimes involving specific intent to use force or (2) crimes that entail a substantial risk of inten- tional use of force may qualify as "crimes of violence." In his view, convictions such as his for "pure" recklessness crimes (ones that risk harm but involve no intent to cause harm) are insufficient to qualify as predicate offenses for career offender status and enhanced penalties.
For the reasons that follow, we will affirm. We do so despite our grave doubts about the wisdom of the Commission's extremely broad definition of "crime of violence," which is significantly more expansive than the original, congressional definition of "crime of violence" that excluded crimes not actually or potentially involving intentional use of force. Under the current
955 F.2d 858, *861; 1992 U.S. App. LEXIS 1095, **3
Page 4
*861 definition, crimes such as reckless driving and child endangerment, because they involve the serious risk of physical injury to another person, qualify as predi- cate offenses for career offender status. Accepting the Sentencing Commission's longstanding invitation to com- ment on the Guidelines, we **4 note our view that career offender status should be reserved for more se- rious offenders, those who repeatedly intend to inflict harm. While no injustice is done on these particular facts, we urge the Commission to reconsider the career offender Guidelines insofar as they sometimes make a crime whose mens rea is no worse than recklessness into a predicate offense.
I. FACTS AND PROCEDURAL HISTORY Delaware police arrested Parson on November 30,
1989, after a high-speed car chase. He was held on a num- ber of state charges, some arising from the car chase, the others relating to possession and distribution of crack co- caine. Delaware prosecuted Parson for the charges related to the car chase but referred the drug-related charges for federal prosecution pursuant to an unwritten understand- ing between the U.S. Attorney's Office and the Delaware Attorney General's Office that the federal authorities have the right of first refusal on investigations involving five or more grams of crack.
A federal grand jury indicted Parson on January 3,
1990, charging him with five counts of distributing crack cocaine in violation of 21 USC § 841(a)(1). A supersed- ing indictment was returned on February 23, 1990, **5 charging six counts, but, pursuant to a plea agreement, on October 29, 1990, Parson pled guilty to one count of possession with intent to distribute cocaine base, and the government agreed, with the approval of the district court, to drop the five remaining counts charging distri- bution and conspiracy to distribute cocaine.
After Parson's guilty plea, the United States Probation Office prepared a PSI Report recommending that Parson be sentenced as a career offender under USSG § 4B1.1 because of his earlier Delaware convictions for second degree conspiracy and first degree reckless endangering. n1 Parson filed objections which conceded that his con- spiracy conviction was properly a predicate offense under the Guidelines but claimed that his 1984 reckless endan- gering conviction should not be considered a predicate
"crime of violence."
n1 The second degree conspiracy charge in- volved an incident in which Parson and a code- fendant entered an apartment and, armed with a knife and gun, robbed the victim of $213 and an ounce of marijuana. Parson also has Delaware con- victions for five counts of third degree burglary, one count of felony shoplifting, and two counts of mis- demeanor theft. Although several of Parson's bur- glaries involved burglaries of dwellings, the gov- ernment did not advance those crimes as predicate offenses. Three of the burglaries took place near the time of the first degree reckless endangering, and Delaware consolidated these crimes for sen- tencing even though each was a separate incident. Under USSG § 4A1.2, appl note 3, those crimes were "related" because they were consolidated for sentencing, so that under USSG § 4B1.2, appl note
4, the consolidated group could only count as one prior conviction for purposes of the career offender Guideline, USSG § 4B1.1. We are uncertain why the government, limited to choosing one of the crimes, chose the reckless endangering crime rather than one of the burglaries of dwellings, which would in- disputably have been predicate "crimes of violence" under the express terms of USSG § 4B1.2(1)(ii).
**6
The PSI Report was the district court's only record of the facts underlying the earlier reckless endangering conviction, and that report was based on a Delaware PSI Report prepared after Parson's 1984 guilty plea. Both the federal and underlying Delaware PSI reports recite that on February 14, 1984, Parson and three codefendants were confronted while shoplifting meat from a store, and that Parson "pushed and slapped" a store clerk as the four fled. The reports do not mention where the clerk was hit, the severity of the contact or the presence of weapons.
At the district court's sentencing hearing on January
4, 1991, Parson attempted to controvert the findings in the PSI Report. Specifically, he offered to testify that he was not the one who slapped the store clerk and that there was little likelihood of
955 F.2d 858, *862; 1992 U.S. App. LEXIS 1095, **6
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*862 serious injury to the victim. n2 The district court refused to hear his testimony and proceeded to rule that the 1984 reckless endangering offense was a proper pred- icate for career offender status. Thus finding that Parson had two qualifying predicate crimes, the court classified Parson as a career offender. Because the parties disagree over what the district court relied upon in making **7 this determination, we set out the court's oral ruling in full:
It is my determination then that the defendant, Steven
Parson, is a career offender pursuant to Guideline Section
4B1.1. He is over 18 years old. The present offense is a controlled substance offense, and he does have two prior felony convictions for what I find qualify as a crime of violence under 4B1.1 and 4B1.2.
n2 The first Application Note to USSG § 4B1.2 makes clear that "'crime of violence' . . . includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Parson's prof- fer as to which of the four men slapped the clerk was therefore of questionable utility, although per- haps he desired to argue that he never intended to rough up the clerk and that hitting her was neither part of the plan nor a reasonably foreseeable event, such that he did not aid or abet the actual perpe- trator or conspire to hit the clerk. As to the extent of force used and the potential injury, Parson's the- ory is clear: he wanted to argue that his actual or imputed conduct did not "present a serious poten- tial risk of physical injury" to the clerk, so could not have been a "crime of violence" under USSG §
4B1.2(1)(ii).
**8
In making that determination . . . I am not going to hold a mini-trial as to what occurred in that conviction involving reckless endangering, first degree. I am going to take the elements of that offense as they exist in the Delaware Code, namely, recklessly engaging in conduct which creates a substantial risk of death to another per- son, and I find that that offense fits within the definition of crime of violence both in sub-section (1) and sub-section
(2) of Section 1 of 4B1.2.
I note also in making that determination that the Delaware Sentencing Accountability Commission has classified reckless endangering first degree as a violent felony.
For those reasons I will classify the defendant as a career offender.
Concerning the pre-sentence report, to the extent that it is taken into consideration, and I believe it is the type of hearsay that can be taken into consideration in a sentenc- ing hearing, that does support my conclusion . . . There was a conviction of the defendant for that offense, and he was represented by an attorney at that time.
During the hearing, Parson requested a downward depar- ture from the otherwise applicable Sentencing Guidelines on the theory that the manner **9 by which his case was referred for federal prosecution violated his due pro- cess rights. Parson claimed that the charges against him were selectively referred for federal prosecution in a ma- nipulation of the federal and state courts. The district court disagreed and declined Parson's request, noting as an aside that Parson's federal sentence might have been higher anyway had there been no separate state proceed- ings. The court then proceeded to impose a sentence of
210 months in prison, at the top of the range it found applicable. n3 This appeal followed.
n3 Because Parson was deemed a career of- fender, his criminal history category was automati- cally VI, the highest. See USSG § 4B1.1 (quoted in text at ). Because the statutory maximum sentence for Parson's offense was between 20 and 25 years, see 21 USC § 841(b)(1)(C), Parson's offense level was 32, see USSG § 4B1.1, but the district court exercised its discretion under USSG §§ 3E1.1 and
4B1.1 to decrease the offense level by 2 levels to 30 because it found that Parson had accepted respon- sibility for his conduct. Under the Guidelines, the sentencing range was therefore 168-210 months, and the district court sentenced Parson to the max- imum term in that range.
**10
II. HISTORY AND VALIDITY OF THE CAREER OFFENDER GUIDELINE'S DEFINITION OF "CRIME OF VIOLENCE"
A. The Career Offender Guideline
The district court sentenced Steven Parson as a career offender under USSG § 4B1.1, which reads, in relevant part:
HN1
955 F.2d 858, *863; 1992 U.S. App. LEXIS 1095, **10
Page 6
*863 A defendant is a career offender if (1) the de- fendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.
Offense Statutory Maximum Offense Level *
. . .
(C) 20 years or more, but 32 less than 25 years
. . .
* If an adjustment from § 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by 2 levels.
Parson concedes that he meets all the qualifications for career offender status except one; he **11 claims only that the government has shown but a single prior felony conviction for a "crime of violence." The primary issue we must decide, then, is whether Parson's 1984 Delaware conviction for first degree reckless endangering was a conviction for a "crime of violence" and hence a proper predicate for career offender status. Because the proper construction of "crime of violence" under the Guidelines is a question of law, our review is plenary. United States v McAllister, 927 F.2d 136, 137 (3d Cir), cert. denied, 116
L.Ed.2d 80, 112 S.Ct. 111 (1991).
HN2 For purposes of the career offender Guideline, USSG § 4B1.1, USSG § 4B1.2(1) defines "crime of vio- lence" as:
any offense under federal or state law punishable by im- prisonment 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 of a dwelling, arson, or extortion, in- volves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The conviction at issue was for HN3 reckless endanger- ing in the first degree, which, according to 11 Del Code Ann § 604, occurs when a person "recklessly engages
**12 in conduct which creates a substantial risk of death to another person." The government would have us affirm on the following theory: (1) because Parson pled guilty to first degree reckless endangering, he concededly
"engaged in conduct which creates a substantial risk of death to another person," as the Delaware statute provides;
(2) his conduct therefore necessarily "presented a serious potential risk of physical injury to another" under USSG
§ 4B1.2(1)(ii) (death being the most severe physical in- jury); hence (3) Parson's conviction was, by definition, for a "crime of violence." As we develop below, that logic is indeed sound, but it assumes that the Guideline definition of "crime of violence" is consistent with the underlying career offender statute and that the second prong of the Guideline definition covers "pure" recklessness crimes, two assumptions which Parson challenges. Accordingly, we must first trace the evolution of "crime of violence" as used in the career offender statute and the Sentencing Guidelines.
B. Evolution of the Term "Crime of Violence"
Congress created the Sentencing Commission and au- thorized it to promulgate sentencing guidelines and policy statements **13 as part of the Comprehensive Crime Control Act of 1984, Pub L No 98-473, § 217(a), 98 Stat
1837, 2017-26 (relevant portion codified at 28 USC §§
991-998 (1988)). See generally Mistretta v United States,
488 U.S. 361, 363-69, 109 S.Ct. 647, 102 L.Ed.2d 714
(1989). Section 994 of title 28 USC codifies the duties of the Commission and details the type and nature of the guidelines the Commission is to issue. Several subsec- tions of section 994 are particularly relevant here.
In subsection 994(d), Congress instructed the Sentencing Commission to consider eleven attributes of defendants in establishing
955 F.2d 858, *864; 1992 U.S. App. LEXIS 1095, **13
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*864 sentencing guidelines; most important here is the tenth, criminal history, see 28 USC § 994(d)(10). In this respect, Congress particularly wanted to ensure that recidivist violent and drug offenders received stiffer sen- tences, near the maximum term authorized for each crime, to remove such dangerous offenders from the streets and to deal more effectively with the growing problem of vi- olent crime. That mandate was enshrined in subsection
994(h), which provides:
HN4
The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maxi- mum term **14 authorized for categories of defendants in which the defendant is eighteen years old or older and--
(1) has been convicted of a felony that is--
(A) a crime of violence; or
(B) . . . a list of various drug-related crimes, including
21 USC § 841, under which Parson was convicted ; and
(2) has previously been convicted of two or more prior felonies, each of which is--
(A) a crime of violence; or
(B) . . . the same list of drug-related crimes .
In the same vein, Congress in the very next subsection required that HN5 the sentencing guidelines provide a
"substantial term of imprisonment" for a convicted de- fendant who "has a history of two or more prior Federal, state, or local felony convictions for offenses committed on separate occasions." 28 USC § 994(i)(1).
Nowhere in section 994 or elsewhere in the Sentencing
Reform Act of 1984, Pub L No 98-473, tit II, ch II, 98
Stat 1837, 1987-2040, did Congress define "crime of violence." But that act was only Chapter II of the over- all Comprehensive Crime Control Act of 1984, which also contained, as a separate Chapter X, "miscellaneous violent crime amendments," 98 Stat at 2136-43. There Congress did define the term:
HN6
The term "crime **15 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.
18 USC § 16 (emphasis added). The legislative history confirms that Congress meant for this definition to ap- ply throughout the Comprehensive Crime Control Act of
1984. The Senate Report notes that
the term "crime of violence" is defined, for purposes of all of title 18, United States Code, in section 1001 of the bill
now 18 USC § 16 . . . . Although the term is occasionally used in present law, it is not defined, and no body of case law has arisen with respect to it. However, the phrase is commonly used throughout the bill, and accordingly the Committee has chosen to define it for general application in title 18.
S Rep No 98-225, 98th Cong, 1st Sess 307 (1983), in
1984 USCCAN 3182, 3486 (footnotes omitted; emphasis added). n4
n4 The quotation in the text is somewhat am- biguous and may only say that 18 USC § 16 applies across title 18, while the statute authorizing the Sentencing Commission to promulgate guidelines is codified in title 28. We think it clear, however, that Congress meant for the definition to apply through- out the entire Comprehensive Crime Control Act. See S Rep No 98-225 at 304, 1984 USCCAN at
3483 (section 1001 of the Act, 18 USC § 16, "de- fines the term 'crime of violence,' used here and elsewhere in the bill") (emphasis added).
**16
When adopting the career offender statute, 28 USC
§ 994(h), then, Congress had in mind the definition of
"crime of violence" in 18 USC § 16. Section 4B1.2(1) of the Sentencing Commission's original 1987 Guidelines simply incorporated the definition of "crime of violence" in section 16 by reference. But effective November 1,
1989, the Commission adopted the revised definition of
"crime of violence" quoted at page , for purposes of the career offender Guidelines. That definition is currently
955 F.2d 858, *865; 1992 U.S. App. LEXIS 1095, **16
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*865 in force. n5 See United States Sentencing
Commission, Guidelines Manual Appendix C 110-11
(Nov 1991) (text of amendment 268, including revisions from the earlier version of USSG § 4B1.2(1)).
n5 Because Parson's offense and sentencing both took place after November 1, 1989, the re- vised guidelines apply and pose no ex post facto problems.
In revising the Guideline definition of "crime of vio- lence," the Commission borrowed from the 1986 revision of the definition of "violent felony" in a firearms statute,
18 USC § 924(e)(2)(B). **17 Guidelines Manual Appendix C at 111. The Commission revised the defi- nition on the basis of 18 USC § 924(e)(2)(B) even though Congress's definition there was not only limited to that subsection, but was for the term "violent felony," and not for the term of art "crime of violence." n6 Although the Commission stated that its revision to the definition was only intended to clarify the terminology, Guidelines Manual Appendix C at 111, the literal words of the new Guideline definition of "crime of violence" changed the earlier definition in 18 USC § 16 in two crucial ways.
n6 In Part III.A we discuss the purpose and leg- islative history of 18 USC § 924(e), which began as part of the Armed Career Criminal Act of 1984, Pub L No 98-473, tit II, ch XVIII, 98 Stat 1837,
2185, yet another portion of the Comprehensive
Crime Control Act of 1984.
First, section 16 considers crimes against persons and property together in each of its two prongs. The first prong, subsection 16(a), covers crimes having actual, attempted or threatened **18 use of physical force against a per- son or property as an element, while the second prong,
28 USC § 16(b), covers offenses that by their nature sub- stantially risk the use of physical force against a person or property. In contrast, the language of revised USSG
§ 4B1.2(1) never explicitly links the treatment of crimes against persons and crimes against property, and it might arguably be read to cover the two categories separately -- crimes against persons in prong (i) and crimes against property in prong (ii).
HN7 The first prong of the Guideline definition, USSG § 4B1.2(1)(i), includes only actual, attempted or threatened use of physical force directly against persons. See also United States v McAllister, 927 F.2d 136, 138 n2 (3d Cir), cert denied 116 L.Ed.2d 80, 112 S.Ct. 111
(1991) (definition in 18 USC § 16(a) identical to that in
18 USC § 924(e)(2)(B)(i), except that the former but not the latter includes use of force against property). Crimes aimed at taking or damaging property, such as burglary of a dwelling, arson, extortion, and the use of explosives, are listed in the second prong of the Guideline definition, USSG § 4B1.2(1)(ii), and that prong does not enumerate any crimes necessarily involving **19 or threatening force against persons, which are already covered in the first prong. n7 Of course, on this reading, the second prong still requires that predicate crimes present a serious risk of physical injury to a person, but the crimes themselves are directed in the first instance against property.
n7 Extortion can involve threats of force against persons or property. See note 15.
The plain words of USSG § 4B1.2(1)(ii) thus might be read to provide that offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another" include only crimes directed in the first instance against property in which harm directed against persons is an incidental (although reasonably likely) re- sult. On the other hand, the "otherwise" clause could be read to include all crimes that involve a serious risk of in- juring persons. This difference matters to Parson because the proposed predicate crime here (reckless endangering) was directed at the store clerk (a person), not the **20 store (property). n8
n8 Parson was shoplifting at the time, which is a crime directed at property, but shoplifting does not inherently present a serious risk of physical in- jury to another person. In any event, Parson was not convicted of shoplifting in this incident, although he does have a shoplifting conviction involving a different incident.
Second, whereas both prongs of the original definition in section 16 were written solely in terms of use of force, the revised
955 F.2d 858, *866; 1992 U.S. App. LEXIS 1095, **20
Page 9
*866 definition in the current Guideline mixes "use of force" and "risk of physical injury" language. USSG §
4B1.2(1)(i) retains the focus on "use of physical force": like the old definition, it categorically includes offenses having "as an element the use, attempted use, or threat- ened use of physical force." But the second branch of the definition in section 16 covered only felonies that "by nature, involve a substantial risk that physical force . . . may be used," whereas the revised definition in the cur- rent Guideline's second prong covers conduct that **21
"presents a serious risk of physical injury."
At first blush, the difference in phrasing appears triv- ial because most physical injury comes from the use of physical force. But the distinction is significant. Use of physical force is an intentional act, and therefore the first prong of both definitions requires specific intent to use force. As to the second prong of the original definition, a defendant's commission of a crime that, by its nature, is likely to require force similarly suggests a willingness to risk having to commit a crime of specific intent. For example, a burglar of a dwelling risks having to use force if the occupants are home and hear the burglar. In such a case, the burglar has a mens rea legally nearly as bad as a specific intent to use force, for he or she recklessly risks having to commit a specific intent crime.
In contrast, under the second prong of the revised definition, criminals whose actions merely risk causing physical injury may have a lower mens rea of "pure" recklessness: they may lack an intent, desire or willing- ness to use force or cause harm at all. For example, a parent who leaves a young child unattended near a pool may risk serious injury to **22 the child, but the action does not involve an intent to use force or otherwise harm the child. Similarly, a drunk driver risks causing severe injury to others on the road or in the car, but in most cases he or she does not intend to use force to harm others. n9
In this case, the crime of reckless endangering necessar- ily involves a serious risk of physical injury to another person, but not necessarily an intent to use force against other persons.
n9 Of course, most crimes involving drunk driving and child endangerment are not federal crimes, but under the career offender provisions, state crimes too may count as predicate offenses.
C. Validity of the Broadened Guideline Definition of
"Crime of Violence"
The language of the revised Guideline definition of "crime of violence," then, is considerably different from the lan- guage that Congress chose. We must therefore decide whether the Sentencing Commission had the authority to deviate from the congressional definition in 18 USC §
16. n10 We conclude that the Commission **23 has the power to expand the category of career offenders (al- though not to make it smaller), and that we must determine whether Parson's reckless endangering conviction was for a "crime of violence" under the current Guidelines rather than under 18 USC § 16.
n10 We could avoid deciding the question of the Sentencing Commission's power to deviate from the congressional definition if we decided that the Commission did not intend to alter the definition. Some support for such a holding comes from the Commission's statement that "the purpose of this amendment is to clarify the definition of crime of violence . . . used in this guideline." Guidelines Manual Appendix C at 111 (describing amendment
268). Similarly, the Commission has stated that the revised definition "substituted a comparable but clearer definition of crime of violence . . . ." 54
FR 9122, 9162 (1989).
Despite the Commission's pronouncements, we cannot consider the amendment as a clarification that made no changes to the definition in 18 USC §
16. Whatever the amendment's purpose, what it did was scrap the earlier cross-reference to 18 USC §
16 and replace it with a significantly different def- inition based on 18 USC § 924(e). See Guidelines Manual Appendix C at 110-11. The revised amend- ment, supplemented by revised Application Notes to USSG § 4B1.2, may well have made the def- inition of "crime of violence" clearer than it had been under the earlier definition and accompanying Application Notes. But the amendment, although
"comparable," also substantively modified the def- inition.
**24
In 28 USC § 994(h), Congress instructed the
Commission to "assure" that the
955 F.2d 858, *867; 1992 U.S. App. LEXIS 1095, **24
Page 10
*867 guidelines apply near-maximum terms to those convicted of certain drug crimes or "crimes of violence"
(as defined in 18 USC § 16), and who had two previous convictions for "crimes of violence" or those drug crimes. Subsection 994(h) therefore required the Commission to give near-maximum terms to certain offenders; it did not by its terms prevent the Commission from deciding that others might also merit near-maximum terms. Moreover, the legislative history confirms that Congress intended subsection 994(h) as a floor for the career offender cate- gory, not as a ceiling. The Senate Report specifically noted that subsection 994(h) was "not necessarily intended to be an exhaustive list of types of cases in which the guide- lines should specify a substantial term of imprisonment, nor of types of cases in which terms at or close to au- thorized maxima should be specified." S Rep No 98-225,
98th Cong, 1st Sess 176 (1983), in 1984 USCCAN 3486,
3359.
We are also convinced that even if subsection 994(h) itself did not provide the authority for the current version of USSG 4B1.2(1), other portions of section 994 provided the **25 Commission with ample authority to adopt the revised definition. For example, subsection 994(d)(10) generally directs the Commission to take criminal his- tory into account in establishing its guidelines. And sub- section 994(i)(1) requires "substantial terms of imprison- ment" for defendants previously convicted of two or more felonies committed on different occasions. n11 We there- fore hold that even if the definition of "crime of violence" in USSG § 4B1.2(1) is broader than that in 18 USC §
16, the Commission's definition is permissible under the authorizing statute.
n11 As we read the entirety of section 994, the Commission could unquestionably have adopted the substance of its amendment using different ter- minology. Thus, while the Commission may not have been best advised to change the definition of the term of art "crime of violence," see Part IV, for us to invalidate the Guideline on that ground would be unduly formalistic.
III. INTERPRETATION OF THE REVISED GUIDELINE
Having decided that USSG § 4B1.2(1) is valid, we
**26 next must determine whether Parson's reckless
endangering was a predicate "crime of violence" for pur- poses of the career offender Guideline, USSG § 4B1.1.
A.
The Not-So--Plain Meaning of USSG § 4B1.2(1)
For convenience we again set out the entire text of USSG
§ 4B1.2(1):
HN8
The term "crime of violence" means any offense under federal or state law 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 of a dwelling, arson, or extortion, in- volves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
(emphasis added). We must decide whether Parson's con- viction was for a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" under prong (ii) of this definition. n12
n12 First degree reckless endangering under Delaware law does not, as prong (i) of the defi- nition requires, include as an element the actual, attempted or threatened use of force against an- other person. See 11 Del Code Ann § 604 (crime consists of "recklessly engaging in conduct which creates a substantial risk of death to another per- son"). The district court held that Parson's crime was a "crime of violence" under both prongs of the definition in USSG § 4B1.2(1). As to prong (i), the district court erred, but because we conclude that the district court was correct with respect to prong
(ii), that error was harmless.
**27
As discussed earlier, the Commission's revised defi- nition of "crime of violence" drew upon the definition of
"violent felony" in 18 USC § 924(e)(2)(B). For clues as to the Commission's intended definition, Parson accordingly suggests that we turn to the legislative history of 18 USC
§ 924(e)(2)(B). We emphasize now, however,
955 F.2d 858, *868; 1992 U.S. App. LEXIS 1095, **27
Page 11
*868 for it will later be important, that our job is to de- termine the Commission's intent when revising USSG §
4B1.2(1). We only look at Congress's earlier intent when adopting subsection 924(e)(2)(B) as an indicator of the Commission's intent. Just as the Commission was em- powered to deviate from the original definition of "crime of violence" in 18 USC § 16, so it may -- and, as we hold, did -- adopt a different scheme from that which Congress intended in 18 USC § 924(e)(2)(B). n13
n13 Of course, because of the congressional command that the Commission "assure" that certain offenders be treated as career criminals, 28 USC §
994(h), the Commission's definition of "crime of violence" may not be narrower than the definition appearing in 18 USC § 16. See note 18.
Even though the intentions of the Commission and Congress may not have been identical, we think it important to discuss the legislative history of subsection 924(e)(2)(B) for two reasons. First, Parson has a not insubstantial argument that the congressional definition of "violent felony" in sub- section 924(e)(2)(B) does not cover his offense. Second, as we will explain below, the Commission may well have been unaware of the legislative his- tory behind the ambiguous definition in subsection
924(e)(2)(B). Because in Part IV we suggest that the Commission reconsider its definition of "crime of violence," we think it important to flag for the Commission's benefit the text and legislative his- tory of both congressional definitions, that of 18
USC § 16 and that of 18 USC § 924(e)(2)(B).
**28
1. The Congressional Intent Behind the Definition of
"Violent Felony" in Subsection 924(e)
Subsection 924(e) is aimed at armed career criminals. See generally Taylor v United States, 495 U.S. 575, 110
S.Ct. 2143, 109 L.Ed.2d 607 (1990). In 18 USC § 922(g), Congress prohibited felons, fugitives, and drug abusers
(among others) from shipping, transporting or receiving firearms or ammunition in interstate or foreign commerce.
Subsection 924(e)(1) now requires a minimum 15-year sentence and a fine of up to $25,000 for violators of 18
USC § 922(g) who also have three prior convictions for
"violent felonies" or "serious drug offenses," each defined in 18 USC § 924(e)(2). But when first adopted as part of the Armed Career Criminal Act of 1984 (another chapter of the Comprehensive Crime Control Act of 1984, see note 6), subsection 924(e) had a narrower list of predi- cate offenses. Only convictions for burglary and robbery, both specific intent offenses posing high risks of violence, counted toward the mandatory minimum sentence provi- sion. See Pub L No 98-473, tit II, § 1802, 98 Stat 1837,
2185 (1984) (repealed by Pub L No 99-308, § 104, 100
Stat 449, 456-59 (1986)). **29 See also HR Rep No
98-1073, 98th Cong, 2d Sess 1-6, in 1984 USCCAN
3660, 3660-66 (describing the original provisions).
In 1986, Congress broadened the predicate crimes for armed career offender status to include other "vio- lent felonies" and "serious drug offenses," as part of the Career Criminal Amendments Act of 1986, Pub L No 99-
570, § 1402, 100 Stat 3207-39, 3207-39 to-40. The brief House Report on the bill explained the drafting process in the House Judiciary Committee and itself suggests that the prongs of the definition in section 924(e) distinguish personal and property crimes:
The Subcommittee on Crime held a hearing on May
21, 1986 to consider whether it should expand the pred- icate offenses (robbery and burglary) in existing law in order to add to its effectiveness. At this hearing a consen- sus developed in support of an expansion of the predicate offenses to include serious drug trafficking offenses under both State and Federal law and violent felonies, generally. This concept was encompassed in H.R. 4885 by deleting the specific predicate offenses for robbery and burglary and adding as predicate offenses State and Federal laws for which a maximum term of imprisonment **30 of 10 years or more is prescribed for manufacturing, distribut- ing or possessing with intent to manufacture or distribute controlled substances and violent felonies under Federal of State law if the offense has an element the use, at- tempted use or threatened use of physical force against a person. This latter provision would include such felonies involving physical
955 F.2d 858, *869; 1992 U.S. App. LEXIS 1095, **30
Page 12
*869 force against a person such as murder, rape, as- sault, robbery, etc.
The other major question involved in these hearings was as to what violent felonies involving physical force against property should be included in the definition of
"violent" felony. The Subcommittee agreed to add the crimes punishable for a term exceeding one year that in- volve conduct that presents a serious potential risk of physical injury to others. This will add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of in- jury to a person. It is the Committee's belief that this will improve the armed career criminal concept while at the same time preserve a strong concept of Federalism as well as an appreciation **31 for the relative law enforcement resources available at the State and Federal levels.
HR Rep No 99-849, 99th Cong, 2d Sess 3 (1986) (em- phasis in the original).
The report also contained a section-by--section analy- sis of the bill (HR 4885), which also suggests that the drafters intended to distinguish personal and property crimes. The relevant section reads:
Subsection 2(b)(B) defines the term "violent felony" which is the other general term substituted for the specific predicate offenses of robbery and burglary.
Subsection 2(b)(B)(i) adds all State and Federal felonies (imprisonment for a term exceeding one year)
n14
n14 The version of HR 4885 favorably reported by the Committee lacked the phrase "is burglary, arson, or extortion, involves use of explosives, or otherwise" at the beginning of the second prong. Evidently, the Committee always intended to in- clude those property crimes, but originally did not feel it necessary to list them. The late addition of the quoted phrase led to the circuit split over the defini- tion of "burglary" that the Supreme Court resolved in Taylor.
Many courts have noted the basic distinction between personal and property crimes in the leg- islative history (although not necessarily the text) of subsection 924(e)(2)(B). See, for example, United States v Leonard, 868 F.2d 1393, 1395-97 (5th Cir
1989); United States v Sherbondy, 865 F.2d 996,
1007-09 (9th Cir 1988); United States v Taylor,
864 F.2d 625, 628-29 (8th Cir 1989) (Bright dis- senting), vacated, 495 U.S. 575, 110 S.Ct. 2143, 109
L.Ed.2d 607 (1990); United States v Headspeth,
852 F.2d 753, 758 (4th Cir 1988); United States v Coble, 756 F. Supp. 470, 474 (ED Wash 1991). Some of these opinions defined "burglary" in a man- ner with which the Supreme Court later disagreed in Taylor, but the Court's own decision in Taylor quoted the legislative history that suggests the per- sonal/property crimes distinction.
involving physical force against a person (e.g., murder, rape, assault, robbery, etc.) as predicate offenses under the bill.
Subsection 2(b)(B)(ii) adds all State and Federal felonies against property such as burglary, arson, extor- tion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person.
Id at 4-5 (italics in the original). See also Taylor v United
States, 495 US 575, , 109 L.Ed.2d 607, 110 S.Ct. 2143 -
, Part II (1990) (extensively discussing legislative
**32 history of entire definition of "violent felony").
**33
Arguably, then, the first prong of the definition now in 18 USC § 924(e)(2)(B) addresses crimes against per- sons, and the second prong covers crimes against property. While the second prong of subsection 924(e)(2)(B) in- cludes crimes "otherwise involving conduct that presents a serious potential risk of physical injury," "otherwise" might have referred only to other crimes that are directed at obtaining or damaging property but that still risk serious injury to persons. n15 Parson's best argument, then, is that his reckless endangering conviction does not fall under either prong of the definition in 18 USC § 924(e)(2)(B): because the Delaware reckless
955 F.2d 858, *870; 1992 U.S. App. LEXIS 1095, **33
Page 13
*870 endangering statute does not include physical force as an element of the crime, prong (i) is not met, and because his crime was directed against a person, not property, prong (ii) is not met. n16
n15 Not only does the legislative history sup- port this reading, but so does the canon of statu- tory interpretation ejusdem generis, which says that courts should interpret legislatively provided exam- ples as typical of the general category covered. Here
18 USC § 924(e)(2)(ii) lists burglary, arson, extor- tion, and use of explosives -- all crimes aimed at harming or obtaining property. Of the listed crimes, extortion is the only one necessarily involving an- other person (the recipient of the threat), but even there the threat may be to harm the property, not necessarily the person, of another.
**34
n16 Parson himself argues the point some- what differently. He says that the legislative his- tory of subsection 924(e) evidences congressional intent to include only specific intent crimes. It is true that the statements during hearings on the bill focused on individual specific intent crimes. See generally The Armed Career Criminal Act Amendments: Hearing Before the Subcommittee on Criminal Law of the Committee on the Judiciary, United States Senate, 99th Cong, 2d Sess (1986)
(hearings on S 2312); Armed Career Criminal Legislation: Hearing Before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, 99th Cong, 2d Sess (1986) (hear- ings on HR 4639 and HR 4768). But it is also true that the final language adopted includes crimes where specific intent to harm persons is not re- quired. Because this is not an armed career offender case, we have no need to decide whether under subsection 924(e)(2)(B)(ii) specific intent to harm property is required.
On the other hand, although the crimes listed in sub- section 924(e)(2)(B)(ii) are all crimes directed against property, **35 it need not follow that the "otherwise"
clause is restricted to property crimes. As we suggested at page , a plain reading could suggest that the "other- wise" clause includes all crimes seriously risking injuring persons, whether directed at persons or property in the first instance. Most of the reported prong (ii) cases deal with property crimes, typically burglary and attempted burglary. But the Ninth Circuit has held that the "other- wise" clause can cover crimes directed against persons. See United States v O'Neal, 937 F.2d 1369 (9th Cir 1991)
(vehicular manslaughter is a "violent felony" under sub- section 924(e)(2)(B)(ii)); United States v Sherbondy, 865
F.2d 996, 1007-09 (9th Cir 1988).
2. Coextensiveness of the Definitions of Predicate Crimes
Under Subsection 924(e)(2)(B) and Guideline 4B1.2(1) Fortunately, we need not decide this difficult question of statutory interpretation. For present purposes, we can as- sume that Parson's crime was not a "violent felony" under
18 USC § 924(e)(2)(B). Parson concludes that because his crime was not a predicate crime under subsection
924(e)(2)(B), his crime was also not a predicate crime
**36 under the similar language of USSG § 4B1.2(1). There we disagree, for although USSG § 4B1.2(1) was
"based on" 18 USC § 924(e), we conclude from the official Guidelines Commentary that the two definitions are not coextensive. Unlike USSG § 4B1.2(1), the Guideline that we consider here, the armed career criminal Guideline added in 1990, USSG § 4B1.4, adopts the definition of
"violent felony" in 18 USC § 924(e) in terms, and its Application Note specifically cautions that "the defini- tions of 'violent felony' and 'serious drug offense' in 18
USC § 924(e)(2) are not identical to the definitions of
'crime of violence' and 'controlled substance offense' used in § 4B1.1 (Career Offender) . . . ." USSG § 4B1.4, appl note 1.
The Sentencing Commission has told us, then, that the definitions in USSG § 4B1.2(1) and 18 USC §
924(e)(2)(B) differ. We could conclude that the only dif- ference is that Congress listed all burglaries, while the Commission limited the Guideline's coverage to burglar- ies of dwellings. n17 On that reading, the Commission would have carried over the rest of Congress's possible
(and certainly somewhat
955 F.2d 858, *871; 1992 U.S. App. LEXIS 1095, **36
Page 14
*871 hidden) intent to distinguish personal and prop- erty crimes. But based **37 on Application Note 2 to USSG § 4B1.2, we must conclude that the Commission did not intend to carry over any congressional distinc- tion between crimes directed against persons and crimes directed in the first instance against property.
n17 The Commission probably added the quali- fier "of a dwelling" to "burglary" in order to achieve greater continuity with its earlier definition based on 18 USC § 16. The first application note to the earlier version of USSG § 4B1.2 interpreted 18 USC
§ 16 as follows:
Murder, manslaughter, kidnapping, aggravated as- sault, extortionate extension of credit, forcible sex offenses, arson, or robbery are covered by this pro- vision. Other offenses are overed only if the conduct for which the defendant was specifically convicted meets the above definition. For example, convic- tion for an escape accomplished by force or threat of injury would be covered; conviction for an es- cape by stealth would not be covered. Conviction for burglary of a dwelling would be covered; con- viction for burglary of other structures would not be covered.
1991 Guidelines Manual Appendix C at 111
(amendment 268, including both old and new ver- sions of the Guideline and Application Notes).
**38
At the time of Parson's sentencing, Application Note
2 read:
HN9
"Crime of violence" includes murder, manslaughter, kid- napping, aggravated assault, forcible sex offenses, rob- bery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, at- tempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious poten- tial risk of physical injury to another.
USSG § 4B1.2, appl note 2 (subsequently amended). As we recently explained in United States v John, 936
F.2d 764 (3d Cir 1991), Application Note 2 reveals the Sentencing Commission's intent to establish HN10 three independent ways by which the government may prove that a defendant's past conviction was for a "crime of vi- olence." The government may show that the crime: (1) is among those specifically enumerated in the application
note; or (2) has as an element the actual, attempted or threatened use of physical force against a person; or (3) although neither specifically **39 enumerated nor nec- essarily involving use of physical force against a person, nonetheless involved conduct presenting a serious risk of physical injury. Id at 767.
In our view, Application Note 2 is crucial for another reason: its treatment of each of its three categories of predicate crimes reveals that the Commission either re- jected or was unaware of any latent congressional distinc- tion in 18 USC § 924(e)(2)(B) between crimes against persons and crimes against property. First, the applica- tion note lumps together all the enumerated crimes in one sentence, including crimes against both persons and property and making no distinction between the two types of crimes. Second, when portion (A) of the Application Note mentions offenses included because of a use-of-- force element, it specifically limits that category to crimes
"against the person of another." Third, and most important here, when portion (B) of the Application Note discusses the residual category (offenses neither enumerated nor by definition force-related, but still "by nature" presenting a serious risk of physical injury to other persons), it does not limit that category to property crimes.
We can envision **40 two possibilities. Application Note 2 might suggest that the Commission was aware of the supposed congressional distinction between personal and property crimes and deliberately chose to employ it in a different way: the distinction between personal and property offenses matters only for "elementally" included offenses. Alternatively, and more likely, the Commission may have been understandably oblivious to the legislative history behind section 924(e), and hence to the nonobvi- ous personal/property crime distinction that may or may not be present in that statute. If so, in Application Note 2 the Commission only included the "against the person of another" qualifier for the second, "elemental" category be- cause that language appeared in the text of the Guideline, but as a general matter it did not intend a distinction be- tween personal and property crimes.
Whichever is the case, Application Note 2 reveals that the Commission did not have in mind any per- sonal/property crime distinction that the drafters of 18
USC § 924(e)(2)(B) might have had in mind-- and that for the Commission the Guideline phrase "otherwise involves conduct that presents a serious potential risk of physical injury **41 to another" applies to crimes directed in the first instance against both persons and property. Thus a crime can be a predicate "crime of violence" under USSG
§ 4B1.2(1)(ii), even though it was directed at a person
(not property), and even though it may not have been a
"violent
955 F.2d 858, *872; 1992 U.S. App. LEXIS 1095, **41
Page 15
*872 felony" as defined in 18 USC § 924(e)(2)(B). n18 n18 We also note that if any distinction between personal and property crimes made in 18 USC §
924(e)(2)(B) were carried over, the Commission would arguably have violated its statutory man- date in 28 USC § 994(h), which, as we noted at
, establishes a floor under the category of ca- reer offenders. If USSG § 4B1.2(1)(ii) applied only to crimes against property, USSG § 4B1.2(1) as a whole would be less inclusive than the defini- tion in 18 USC § 16. We decline to attribute to the Commission an intention to violate its mandate, es- pecially when Application Note 2 to USSG § 4B1.2 suggests that the Commission did not intend to re- duce the scope of the career offender Guidelines in any way.
B. Categorical **42 Inclusion of Parson's Reckless
Endangering Crime Within USSG § 4B1.2(1)(ii)
Having concluded that Parson's crime was not categori- cally excluded from the coverage of USSG § 4B1.2(1)(ii), we must decide whether it was categorically included thereunder-- that is, whether Parson's guilty plea to "reck- lessly engaging in conduct which creates a substantial risk of death to another person," 11 Del Code Ann §
604, necessarily means that he was convicted of "conduct that presents a serious potential risk of physical injury to another" under USSG § 4B1.2(1)(ii). Parson claims that despite his guilty plea in 1984, he did not in fact push and slap the store clerk, and that even if he did, she was not truly in danger of physical injury. The govern- ment suggests that because the language of the Delaware statute substantially tracks the language of the sentencing Guideline, we should not allow Parson to introduce evi- dence that his actual conduct did not constitute a "crime of violence."
As discussed in the previous section, in John we noted that the government may prove that a defendant's past conviction was for a "crime of violence" using any of three approaches. We held that when **43 considering crimes covered under the first approach (crimes specifi- cally enumerated in the Guideline or application note) or the second approach (crimes by definition requiring phys-
ical force), courts may not look through to the underlying conduct charged. 936 F.2d at 767-68 . See also United States v McAllister, 927 F.2d 136 (3d Cir) cert denied, 116
L.Ed.2d 80, 112 S.Ct. 111 (1991) (robbery is categorically a crime of violence, and district court erred in looking to nature of underlying conduct). But we also held in John that when considering crimes not covered by the first two approaches, USSG § 4B1.2 through its Application Note 2
"clearly permits courts to examine the defendant's actual conduct to ascertain whether that conduct posed a suffi- cient potential risk of physical injury to another to elevate the crime to a 'crime of violence.'" 936 F.2d at 768 (em- phasis added). See also id at 770 (sentencing court "may" inquire into underlying conduct in cases in the third cat- egory). Parson suggests that in this third category case we must look through to the underlying conduct charged and cannot rely on a per se approach. We hold, however, that where **44 the language of the criminal statute so closely tracks the language of the Guideline that the defendant's conviction necessarily meets the Guideline standard, the district court need look no further than the statute and need not inquire into the underlying conduct charged. n19 That is the case here.
n19 We do not decide whether it would be error for a district court to look through to the underly- ing conduct charged in a case such as this. We merely hold that the district court's failure here to look through to Parson's underlying conduct was not error. Neither do we intimate any view as to the effect on John of the most recent amendments to Application Note 2 to USSG § 4B1.2, which do not apply here because they took effect on November 1,
1991. See Guidelines Manual Appendix C at 253-
54 (amendment 433).
We agree with the government that although a per se approach based on the statute alone is not required in every case, see John, such an approach is generally preferable to inquiry into the facts of **45 each case. The case law under both 18 USC § 924(e)(2)(B) and USSG § 4B1.2(1) has preferred the use of categorical approaches relying only on the statutory definitions of crimes. See, for exam- ple, Taylor v United States, 495 U.S. 575, , 109 L.Ed.2d
607, 110 S.Ct. 2143 - ,
955 F.2d 858, *873; 1992 U.S. App. LEXIS 1095, **45
Page 16
*873 , 2159-60 (1990) (examining the language and legislative history of section 924(e) and noting "the prac- tical difficulties and potential unfairness of a factual ap- proach"); McAllister, 927 F.2d at 138-39 ; United States v Preston, 910 F.2d 81, 85 (3d Cir 1990), cert denied,
112 L.Ed.2d 1085, 111 S.Ct. 1002 (1991). Although we concede that these cases did not address crimes advanced by the government under the "otherwise . . ." language of USSG § 4B1.2(1)(ii) and of 18 USC § 924(e)(2)(B)(ii), we can think of no reason why the government should be required to prove the details of defendant's actual con- duct. Here, for example, Parson pled guilty to "creating a substantial risk of death to another person," 11 Del Code Ann § 604, language nearly tracking the Guideline defi- nition. If Parson did not wish to admit that conduct, then he should not have pled guilty in 1984; having been con- victed of that conduct, Parson **46 is not entitled to argue otherwise now. n20
n20 Of course, we are well aware that Parson had no inkling in 1984 that his guilty plea to state reckless endangering charges would make such an important difference under federal sentencing guidelines that had yet to be enacted. Perhaps, if he had been amazingly prescient, he would not have pled guilty or would have been able to obtain a plea bargain for a lesser offense. Like Parson, we find it hard to understand how pushing and slapping the store clerk endangered her life, but by plead- ing guilty Parson (who was represented by counsel) chose to admit that he endangered the clerk's life.
C. Conclusion
We thus conclude that the district court properly applied a categorical approach in determining that Parson's reck- less endangering was a predicate "crime of violence" un- der USSG § 4B1.2(1)(ii) for purposes of the career of- fender Guideline, USSG § 4B1.1. As a result, the court's refusal to hold a mini-trial on what actually happened during the 1984 incident was proper. **47 Parson has no due process right to challenge the underlying facts in the Delaware and federal PSI Reports because those facts were immaterial. The district court should have ex- pressly stated that it would not take the disputed facts into account, see FRCrP 32(c)(3)(D), but that error was harmless. n21 We therefore uphold the district court's conclusion that Parson is a career offender. Because the district court correctly sentenced Parson according to the career offender Guideline, the judgment of sentence will be affirmed. n22
n21 Similarly harmless was the district court's
error in relying on Delaware's own characteriza- tion of first degree reckless endangering as a vi- olent crime. As we observed in John (which we note, in fairness to the district court, came down well after Parson was sentenced), "state or terri- torial definitions concerning the violent nature of particular crimes are irrelevant" to the proper deter- mination of predicate crime status under the federal Sentencing Guidelines. 936 F.2d at 770 n.4. Here the error made no difference because Parson's crime by definition constituted a "crime of violence" un- der USSG § 4B1.2(1)(ii).
**48
n22 Parson also reiterates his contention that a federal-Delaware agreement to refer certain classes of drug cases for federal prosecution denied him due process and that, as a remedy, he was entitled to a downward departure from whatever Guideline range we conclude is proper. Had Parson sought review of a discretionary refusal to depart down- ward from the Sentencing Guidelines, we would not have jurisdiction. United States v Denardi, 892
F.2d 269, 271-72 (3d Cir 1989). But this claim is in- stead one based directly on the Due Process Clause of the Constitution, hence we have jurisdiction and exercise plenary review. See United States v Furst,
918 F.2d 400, 408 (3d Cir), cert denied, 493 U.S.
1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990).
As noted in Part I, Parson's arrest-related charges were prosecuted in state court, while the drug-related charges were left for federal prosecu- tion. This division was apparently pursuant to an unwritten agreement between the U.S. Attorney's Office and the Delaware Attorney General's Office that gives the U.S. Attorney's Office the right of first refusal on investigations involving five or more grams of cocaine. In Parson's view, the federal and state court systems were manipulated to in- crease the time he would serve in jail. Like virtu- ally every court to consider such claims, we find no due process violation and hence no need for a remedial departure from the otherwise applicable Sentencing Guidelines. See, for example, United States v Andersen, 940 F.2d 593, 595-96 (10th Cir 1991); United States v Turpin, 920 F.2d 1377,
1387-88 (8th Cir 1990),cert denied as Williams v
United States, 113 L.Ed.2d 480, 111 S.Ct. 1428
(1991); United States v Frankel, 739 F. Supp. 629,
630 (DDC 1990); United States v Smith, 727 F. Supp. 1023, 1024-25 (WD Va 1990).
Parson relies chiefly on United States v
955 F.2d 858, *873; 1992 U.S. App. LEXIS 1095, **48
Page 17
Williams, 746 F. Supp. 1076 (D Utah 1990), which found a procedural due process violation where police officers (rather than prosecutors) made de- cisions to refer for federal prosecution based on no formal policy or articulated criteria. We doubt that the questionable logic of Williams has survived the Tenth Circuit's recent decision in Andersen. At any rate, Williams is easily distinguishable on two grounds. Here there was an explicit referral policy based on objective criteria that check any potential for abuse. Moreover, federal and Delaware prose- cutors (not the police) agreed to the drug investiga- tion referral policy. Following the sound reasoning
of the cases cited above, we hold that the decision to prosecute Parson's drug charges federally fell well within the ambit of prosecutorial discretion. See also Bordenkircher v Hayes, 434 U.S. 357, 364,
98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (if prosecutor has probable cause to believe that defendant com- mitted a crime, decision whether to prosecute and what offense to charge is generally in his or her discretion).
**49
955 F.2d 858, *874; 1992 U.S. App. LEXIS 1095, **49
Page 18
*874 IV. A SUGGESTION FOR THE COMMISSION Since the promulgation of the initial Guidelines, the Sentencing Commission has made a concerted effort to solicit from federal judges their view about the efficacy and propriety of the Guidelines with which they deal. This policy refects the Commission's recognition of the funda- mentally evolutionary nature of the sentencing guidelines scheme. The Commission was charged not only with de- veloping an initial set of guidelines, 28 USC § 991(b)(1), but also with monitoring and evaluating them on an ongo- ing basis, 28 USC § 991(b)(2). It must review the guide- lines periodically, 28 USC § 994(o), and it may sub- mit amendments to Congress, 28 USC § 994(p). Judicial commentary, whether in the form of opinions or views expressed at judicial workshops and conferences, is a pri- mary means for the Commission to obtain feedback and
to learn of flaws in the operation of the Guidelines.
As we noted above, crimes such as drunk driving and child neglect present a serious risk of physical harm to a victim and therefore qualify as predicate "crimes of vio- lence" for purposes of the career offender Guideline. We are concerned by the possibility that a defendant could
**50 be deemed a career violent offender on the basis of two such convictions, even when he or she never in- tended harm, nor was there a substantial risk that he or she would have to use intentional force. n23 Accepting the Sentencing Commission's ongoing invitation to the judi- ciary to offer suggestions for revision of the Guidelines, we urge that the Commission reconsider its career of- fender Guidelines to the extent that they cover such "pure recklessness" crimes.
n23 Fortunately, we are certain that no injustice was done here. Parson most definitely is a career offender in the lay sense of the term, having led
a life of crime most of his adult life, and having been convicted of numerous thefts and drug-related crimes. Even in the technical sense of the term, this appeal was nonfrivolous only because the govern- ment inexplicably elected to advance his reckless endangering conviction as a "crime of violence" rather than one of his convictions for burglary of a dwelling. See note 1. Thus, although we fear that the current Guideline could work grave injustice in some cases, we are convinced that Parson himself is receiving his just deserts.
**51
We are compelled to hold today that the revised def- inition of "crime of violence" was a proper exercise of the Sentencing Commission's authority and that the lan- guage of the Guidelines supports such a broad definition of "crime of violence." But we question the Commission's decision not to follow Congress's suggested definition of
"crime of violence" in 18 USC § 16, and we are concerned that it may have either misread or quietly deviated from the alternative definition of "violent felony" in 18 USC §
924(e)(2)(B). Certainly the original and possibly both of the congressional definitions excluded reckless driving, child endangerment, and like crimes, and we doubt that Congress intended to endorse the Commission's current broad definition by acceding to the Commission's amend- ments of the Guideline.
The term "career offender" implies an ongoing intent to make a living through crime, and it is doubtful that one can make a career out of recklessness. Moreover, the portions of the career offender provisions not dealing with drug offenses unquestionably grew out of concerns about crimes where intentional use of force is likely, if not necessarily a part of the offense.
955 F.2d 858, *875; 1992 U.S. App. LEXIS 1095, **51
Page 19
*875 Accordingly, we recommend **52 that the Commission consider a return to the original Guideline definition of "crime of violence," that adopted by Congress in 18 USC § 16, or else in some other way exclude pure recklessness crimes from the category of predicate crimes for career offender status.
CONCURBY: ALITO
CONCUR:
ALITO, Circuit Judge, concurring:
I join the court's opinion. In doing so, I express no view on the meaning of 18 U.S.C. § 924(e)(2)(B)(ii). Nevertheless, I fully agree that the broad definition of a
"crime of violence" in U.S.S.G. § 4B1.2(1) merits reex- amination by the Sentencing Commission.
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