Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 06 CR 93-Sarah Evans Barker, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge
Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
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, 128 S.Ct. 1581 (2008), a felony committed with a mens rea of recklessness may qualify as a prior violent felony conviction under the ACCA. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand for further proceedings.
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 an-other; 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, 543 U.S. 220 (2005), require a jury to determine whether prior convictions qualify as violent felonies under the ACCA.
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. ...