This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).
UNPUBLISHED OPINION
ROSS, Judge
Injured motorist Renae Kelly appeals from the district court's denial of her posttrial motions for a new trial and additur in her personal injury action against Thomas Holt following an automobile accident. She argues that the district court abused its discretion by denying a new trial and additur because the jury awarded her inadequate damages and that the district court also abused its discretion by not limiting its award of costs and disbursements under Minnesota Rule of Civil Procedure 68. Because the evidence supports the jury verdict, the district court properly denied Kelly's requests for a new trial or additur. And because the district court awarded costs and disbursements on a basis other than rule 68, the district court did not err by failing to limit the award under rule 68's undue-hardship provision. We affirm.
FACTS
Renae Kelly commenced a personal injury action against Thomas Holt in November 2007 following an automobile accident. Holt stipulated that he was liable for the accident, and the district court conducted a trial to determine Kelly's damages. The jury awarded Kelly $6,081 for medical expenses and wage losses, but it found that she did not sustain a permanent injury or a 60-day disability. The jury awarded her no damages for past or future pain and disability, future loss of earning capacity, or future medical expenses. The district court concluded that Holt was the prevailing party and granted him a judgment against Kelly in the amount of $8,957 for his costs and disbursements. Kelly unsuccessfully moved the district court for a new trial or additur. Kelly appeals.
DECISION
Kelly argues that because the damages determined by the jury were inadequate, the district court abused its discretion by denying her motion for a new trial. We review a district court's denial of a new-trial motion for abuse of discretion. Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn. 1996). The district court has "the broadest possible discretion" to determine whether a new trial is necessary on a claim of inadequate damages and its decision will not be reversed except in the "most unusual circumstances." Parr v. Cloutier, 297 N.W.2d 138, 140 (Minn. 1980). We review the evidence in the light most favorable to the verdict, which we leave in place unless it is "manifestly and palpably contrary to the evidence viewed as a whole." Navarre v. S. Wash. County Sch., 652 N.W.2d 9, 21 (Minn. 2002).
Kelly argues that the jury inconsistently denied her any damages for pain and suffering while it awarded her damages for loss of income and medical expenses. She maintains that the damages awarded "were obviously caused by the pain from her injuries." The district court could have ordered a new trial if the damages were insufficient, "appearing to have been given under the influence of passion or prejudice," or if the verdict was not supported by the evidence. Minn. R. Civ. P. 59.01(e), (g). But it did not order a new trial because it found no insufficiency in the damages award and no improper influence of passion or prejudice. Just as the supreme court rejected a similar argument in Raze v. Mueller, 587 N.W.2d 645 (Minn. 1999), we reject Kelly's argument today. In Raze, the supreme court reversed this court's conclusion that the jury's award for medical care was inconsistent with its failure to award damages for pain and suffering. Id. at 648. It emphasized that a verdict should stand if it can be reconciled with the evidence and its fair inferences on any theory. Id.
The jury's decision not to award Kelly damages for pain and suffering is consistent with trial evidence. Dr. Gary Wyard, an orthopedic surgeon hired to examine Kelly, testified that he reviewed Kelly's medical history and examined her. He found no objective evidence that Kelly sustained any injury and testified that "at most" she sprained her neck. He added that Kelly did not sustain a permanent injury or a 60-day disability and that she requires no future medical care. He explained that although a doctor would reasonably respond to Kelly's subjective complaints, the typical care for her type of complaints would last no longer than three months. The jury also viewed photographs of the involved vehicles depicting no property damage. And it received evidence that Kelly was treated for neck and back problems from 1999 to 2005.
The evidence supports the following reasonable inferences in favor of the verdict awarding Kelly damages for lost wages and past medical expenses but not for pain and suffering: Kelly had a brief neck sprain, received short-term medical treatment, and took time off from work, but she suffered no compensable pain. The jury verdict is even easier to reconcile with the trial evidence than the verdict in Raze. Here, the jury awarded only lost wages and past medical expenses. In Raze, the jury awarded lost wages, past medical expenses, and future medical expenses. Id. at 647. Despite acknowledging that the plaintiff required future medical care, including for "residual discomfort," the supreme court upheld the jury's decision not to also award damages for pain and suffering. The award of medical expenses and lost wages based on Kelly's subjective, unverified complaints of pain does not require an award for pain and suffering.
Kelly's argument for additur fails for the same reason. Whether to grant additur "rests almost wholly" within the district court's discretion. Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988), review denied (Minn. May 4, 1988). The district court "cannot grant additur unless grounds for a new trial on damages exist, since the court is, in effect, conditionally granting a new trial." Id. Because there were no grounds for a new trial, the district court properly left the verdict undisturbed and did not err by denying Kelly's motion for additur.
We next address Kelly's challenge to her obligation to pay Holt's costs and disbursements. The district court found that Holt was the prevailing party, as defined by Bochert v. Moloney, 581 N.W.2d 838 (Minn. 1998), and it awarded him costs and disbursements in the amount of $8,957. Kelly argues that the district court's failure to reduce the amount of her obligation for costs and disbursements resulted in an inequity and undue hardship. We review a district court's award of costs and fees for an abuse of discretion. Carlson v. Mut. Serv. Cas. Ins. Co., 527 N.W.2d 580, 584 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).
Holt moved the district court for an award of costs and disbursements pursuant to Minnesota Rule of Civil Procedure 54.04 and Minnesota Statutes chapter 549. The prevailing party in district court "shall be allowed reasonable disbursements paid or incurred." Minn. Stat. § 549.04, subd. 1 (2008). Kelly opposed the motion, arguing that "[u]nder the new standard for Rule 68, the Court now has the authority to deny motion for costs" and that the motion for costs should be denied because the district court "heard the whole case, and could see what the Plaintiff has been through."
On appeal, Kelly argues that under Minnesota Rule of Civil Procedure 68.03(b)(3), the district court could have reduced her costs obligation to eliminate an undue hardship or inequity and that the case should be remanded for a ruling on whether a hardship is being imposed. Rule 68.03(b)(3) provides: "If the court determines that the obligations imposed under this rule as a result of a party's failure to accept an offer would impose undue hardship or otherwise be inequitable, the court may reduce the amount of the obligations to eliminate the undue hardship or inequity." (Emphasis added.)
The district court did not err by failing to exercise its discretion to reduce the award under rule 68.03(b)(3) because rule 68 simply does not apply. Rule 68 concerns settlement offers and directs how a rejected settlement offer affects the parties' obligations to pay costs and disbursements. The award for costs here was not imposed under rule 68 but under rule 54. Kelly does not assert, nor does the record indicate, that there were any rejected settlement offers in this case and that costs and disbursements were awarded under rule 68. There is also no indication in the record that Kelly argued to the district court that the imposition of costs and disbursements would result in an undue hardship or inequity. We generally do not consider arguments raised for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Although Kelly's counsel asserted at oral argument to this court that he made an undue-hardship argument at oral arguments before the district court, Kelly did not provide us with a transcript of those arguments. In a written memorandum to the district court, Kelly did make a general reference to rule 68 and argued that costs should be denied, but she did not argue that she would suffer an undue hardship or inequity or explain how rule 68's limits have any bearing on a rule 54 order to pay costs.
Affirmed.
be kept clear, refused to move when ordered to do so, waved his arms and loudly urged the inmates to sit down and not move"). We are not convinced that the behavior described in
Pascucci could not be deemed violent or aggressive. In any event, the government's statistics still indicate that an overwhelming majority of convictions under § 53a-179b involve violent and aggressive behavior.
The fact that some arguably nonviolent conduct — such as a hunger strike — might violate the statute, or even that some convictions under the statute have actually involved nonviolent conduct, is not dispositive. We recently held, in United States v. Thrower, that "larceny from the person" is a violent felony under the ACCA. 584 F.3d 70, 74 (2d Cir. 2009). We did so notwithstanding the fact that some conduct that is neither violent nor aggressive — such as pickpocketing — would surely be covered by the statute at issue in that case Similarly, the fact that the sexual assault statute at issue in Daye could have been applied to the conduct of consenting teenagers did not foreclose a holding that a "typical instance of this crime" will indeed involve violent and aggressive conduct. 571 F.3d at 234.
The statute at issue in Thrower was New York's "larceny from the person" statute, which provides that "[a] person is guilty of grand larceny in the fourth degree when he steals property and when . . . [t]he property, regardless of its nature and value, is taken from the. person of another." N.Y. Penal Law § 155.30(5).
The defendant in Daye had been convicted of sexual assault of a child in violation of Vermont law. At the time of his conviction, the statute, which has since been amended, provided that "[a] person who engages in a sexual act with another person and . . . [t]he other person is under the age of 16, except where the persons are married to each other and the sexual act is consensual; shall be imprisoned for not more than 20 years, or fined not more than $10,000.00 or both." Daye, 571 F.3d at 229 (quoting Vt. Stat. Ann. tit. 13, § 3252(3) (1986)). A later amendment added "an exemption for consensual sexual acts between a person under the age of nineteen and a child who is at least fifteen." Id. at 229 n. 5 (citing Vt. Stat. Ann. tit. 13, § 3252(c)(2) (2006)). We explained that "[a]t the time of Daye's convictions, the, relevant statute did not specify a minimum age for a perpetrator" although a party prosecuted as an adult "was necessarily at least sixteen at the time of the criminal conduct and was likely in most circumstances to be eighteen or older." Id. at 230 n. 7.
Judge Parker argues that we fail to consider whether each of the statutorily delineated criminal acts in Conn. Gen. Stat. § 53a-179b typically involves violent and aggressive conduct. See Dissent at 96 (noting that the statute proscribes "five distinct criminal acts: (1) disorders, (2) disturbances, (3) strikes, (4) riots, and (5) organized disobedience to a prison's rules and regulations"). He maintains that by referring to "disorders" and "disturbances," the statute criminalizes conduct "akin to disorderly conduct or disturbing the peace, neither of which are violent felonies." Id. at 96, 95 (relying on Conn. Gen. Stat. §§ 53a-182, 53a-181a). In his view, only the act of rioting typically involves violent and aggressive behavior and, therefore, we must apply the so-called "modified categorical approach" to determine which part of the Connecticut rioting statute Johnson was convicted of violating. Cf. Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010) (explaining that "[w]hen the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the modified categorical approach . . . permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record" (internal quotation marks omitted)).
Judge Parker asserts that the majority's error could "have been easily avoided by the simple, painless expedient of applying the modified categorical approach and requiring the government to show what part of the statute Johnson actually violated." Dissent at 95. However — in addition to being unnecessary — application of the modified categorical approach in this case may not be as simple as Judge Parker suggests. Johnson's presentence investigative report indicates that the probation officer was unable to obtain any information about the facts underlying Johnson's conviction under Conn. Gen. Stat. § 53a-179b. It is therefore doubtful that the government could easily demonstrate what portion of the statute Johnson was convicted of violating.
Moreover, even if the underlying conduct were known, it would be difficult, if not impossible, to determine whether the jury found that such conduct amounted to "rioting" (in which case it would qualify as a violent felony in Judge Parker's view) or constituted a mere "disorder" or "disturbance" (which Judge Parker considers to be nonviolent). Thus, in all likelihood there is no way of determining "what part of the statute Johnson actually violated." See Dissent at 95.
We agree that "[w]hen a statute encompasses both violent and non-violent felonies . . . we make a limited inquiry into which part of the statute the defendant was convicted of violating." United States v. Mills, 570 F.3d 508, 511 (2d Cir. 2009). In our view, however, the Connecticut rioting statute encompasses only violent felonies because each of the acts proscribed by the statute typically involves violent and aggressive behavior. See Begay, 553 U.S. at 144-45, 128 S.Ct. 1581. Categorical treatment of all convictions under that statute as violent felonies is therefore required. By drawing analogies to other Connecticut statutes that use similar terminology, Judge Parker fails to account adequately for at least one critical distinction: the Connecticut rioting statute applies only to conduct occurring in prisons. Creating a disturbance or disorder in a prison environment is qualitatively different from doing the same on a public street corner. See Part II, post. And, in our view, such behavior is typically at least as violent and aggressive as a typical instance of burglary. See Daye, 571 F.3d at 234.
Furthermore, to hold that a violation of the Connecticut rioting statute is not categorically a violent felony would "require[] a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct" that is not typically violent or aggressive. See James, 550 U.S. at 208, 127 S.Ct. 1586 (emphasis added) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). But there is simply no evidence that Connecticut regularly applies § 53a-179b to nonviolent conduct. To the contrary, nearly all reported cases involving convictions under the statute involve conduct that can only fairly be characterized as violent and aggressive. Like Judge Parker, we assume that there have been some convictions that resulted in no published decision. But there is no basis for assuming, as Judge Parker does, that the "vast majority" of convictions under § 53a-179b are not accounted for in the government's statistics, see Dissent at 98 n. 3, nor that such unreported convictions typically involve conduct that is any less violent or aggressive than the conduct described in. the cases relied on by the government.
We agree with Judge Parker that the ACCA is aimed at violent and aggressive behavior that "makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim." Begay, 553 U.S. at 145, 128 S.Ct. 1581. At bottom, our disagreement results from differing views of what constitutes "violent and aggressive" behavior. In State v. Rivera, for example, the Appellate Court of Connecticut described the facts as follows:
[After repeated orders to clear the yard a] group of about 200 inmates began to march around . . . shouting loudly. [Correction Officer] McDevitt observed the defendant with about ten other inmates near the front of this group. . . .
. . . [Despite attempts to calm the inmates,] the disturbance escalated into a full-fledged riot. Inmates began running in all directions, throwing rocks and setting fires. Some inmates displayed a banner demanding media coverage. The inmates looted some buildings and turned others. Using tear gas, the correctional emergency response team restored order several hours later.
619 A.2d at 1148. Judge Parker suggests that the defendant's conduct in that case — marching at the front of a group of 200 shouting inmates — was not "violent and aggressive." Dissent at 98 n. 3. We respectfully disagree.
For the foregoing reasons, we conclude that rioting at a correctional institution is "similar in kind" to the offenses of burglary, arson, extortion, and the use of explosives. The conduct proscribed by Conn. Gen. Stat. § 53a-179b is precisely the sort that "makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim." Begay, 553 U.S. at 145, 128 S.Ct. 1581.
II. Similar in Degree of Risk Posed
Although we considered the degree of risk posed by rioting at a correctional institution in the course of deciding defendant's first appeal, see Johnson, 265 Fed.Appx. at 11, we did so under a plain error standard of review and so that holding does not dictate the outcome here. To the extent our case law has not explicitly recognized this rule, we now adopt the Fifth Circuit's holding in Perillo v. Johnson, 205 F.3d 775, 780 (5th Cir. 2000), that the application of law-of-the-case doctrine is generally inappropriate when relevant issues are governed by different standards of review.
Rioting at a correctional institution is similar to the ACCA's enumerated offenses in the degree of risk posed only if "the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another." James, 550 U.S. at 208, 127 S.Ct. 1586 (emphases added); id. at 207-08, 127 S.Ct. 1586 (explaining that the ACCA's "residual provision speaks in terms of a `potential risk'" and that "Congress intended to encompass possibilities even more contingent or remote than a simple `risk,' much less a certainty"). The Supreme Court has observed that the ACCA's enumerated offenses all "create significant risks of bodily injury or confrontation that might result in bodily injury." Id. at 199, 127 S.Ct. 1586 (emphasis added). The "main risk of burglary," for example, "arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party" whether an occupant, a police officer, or a bystander — who comes to investigate." Id. at 203, 127 S.Ct. 1586; see also Thrower, 584 F.3d at 73 (describing the potential risks associated with burglary) (citing Taylor, 495 U.S. at 588, 110 S.Ct. 2143).
Under this standard, we have no trouble concluding that rioting at a correctional institution "presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). "Prisons are inherently dangerous institutions," Lewis v. Casey, 518 U.S. 343, 391, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), where prison guards are greatly outnumbered by inmates — many of whom have a history of violence or of aggressive tendencies. Although a burglary gives rise to a mere risk of confrontation, leading or joining a "disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations [of a correctional institution]," Conn. Gen. Stat. § 53a-179b, renders confrontation with guards or other law enforcement authorities a virtual certainty. The risk of physical injury arises not only from this confrontation, but also from the fact that prisons are like powder kegs, where even the slightest disturbance can have explosive consequences. See Sec. Law Enforcement Emps. v. Carey, 737 F.2d 187, 213 (2d Cir. 1984) (noting the "powder-keg nature of a prison"). Every violation of prison rules creates a risk that fellow inmates will join in the disturbance, oppose it with force, or simply use its occurrence to engage in other acts of violence. See, e.g., Rivera, 619 A.2d at 1148 (describing how a strike of the prison mess hall quickly escalated into a "full-fledged riot" with inmates looting buildings, "running in all directions, throwing rocks[,] and setting fires").
For the foregoing reasons, we conclude that "the conduct encompassed by the elements of [rioting at a correctional institution], in the ordinary case, presents a serious potential risk of injury to another." See James, 550 U.S. at 208, 127 S.Ct. 1586.
CONCLUSION
To summarize: We hold that rioting at a correctional institution in violation of Connecticut General Statute § 53a-179b is a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), because:
(1) Violations of the statute are similar in kind to the ACCA's enumerated offenses in that they typically involve purposeful, violent, and aggressive conduct, see Begay, 553 U.S. at 144-145, 128 S.Ct. 1581; and
(2) Violations of the statute are similar in the degree of risk posed in that, in the ordinary case, they present a serious risk of physical injury to another person, see James, 550 U.S. at 208, 127 S.Ct. 1586.
Accordingly, the judgment of the District Court is AFFIRMED.
B.D. PARKER, JR., Circuit Judge, dissenting.
The majority in my view incorrectly concludes that a conviction under Connecticut General Statute § 53a-179b necessarily qualifies as a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) ("ACCA"). Accordingly, I dissent. Although the Connecticut statute is entitled "Rioting at correctional institution," it criminalizes much more than rioting. The statute sweeps broadly, punishing a range of prison infractions, including passive and nonviolent ones such as disregarding an order to move, engaging in a work stoppage, or counseling another inmate to "disobedience." Much, if not most, of the behavior penalized by the statute is akin to disorderly conduct or disturbing the peace, neither of which are violent felonies under the ACCA. Such behavior must, of course, be controlled and punished in order to maintain prison discipline, but it is simply not the type of behavior at which the ACCA is directed. The majority's error could, in my view, have been easily avoided by the simple, painless expedient of applying the modified categorical approach and requiring the government to show what part of the statute Johnson actually violated. This approach is required by our precedent. See United States v. Mills, 570 F.3d 508, 511 (2d Cir. 2009) ("When a statute encompasses both violent and non-violent felonies . . . we make a limited inquiry into which part of the statute the defendant was convicted of violating.").
The ACCA provides a mandatory minimum penalty of 15 years of incarceration for a felon who has been convicted of possessing a firearm under 18 U.S.C. § 922(g) and who has three previous convictions for a "violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). In the absence of this provision, Johnson's felon-in-possession conviction would carry a statutory maximum punishment of 10 years. 18 U.S.C. § 924(a)(2). The Sentencing Guidelines also contain a provision that significantly increases a defendant's offense level if he is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e). See U.S.S.G. § 4B1.4. The basic purpose of the ACCA is to combat "the special danger created when a particular type of offender — a violent criminal or drug trafficker — possesses a gun.", Begay v. United States, 553 U.S. 137, 146, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). The ACCA accomplishes this goal by looking to a defendant's past crimes as an indicator of "the kind or degree of danger the offender would pose were he to possess a gun." Id.
Unless a defendant's conviction under § 53a-179b is actually for rioting, it is far from obvious that such an offense tends to indicate that he is likely to pose any special danger with a gun. An inmate who, for example, engages in a non-violent strike or counsels a fellow inmate to "disobedience" while incarcerated is simply not involved in the type of conduct with which Congress was concerned when it passed the ACCA. The majority recognizes that "some arguably nonviolent conduct — such as a hunger strike — might violate" § 53a-179b, but nevertheless concludes that a conviction under the statute categorically constitutes a violent felony under the ACCA because it believes that a "`typical instance of this crime' will indeed involve violent and aggressive conduct." Maj. Op. at 91 (quoting United States v. Daye, 571 F.3d 225, 234 (2d Cir. 2009)). But the majority uses the wrong method of analysis. When analyzing a statute like § 53a-179b, which lists a series of different criminal acts, the question is not whether a "typical instance" of the crime involves violent and aggressive conduct, but whether each of the different statutorily delineated criminal acts typically involves such conduct. See Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The answer to that question is "no."
Section 53a-179b provides that "[a] person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution." Conn. Gen. Stat. § 53a-179b(a). Although the statute's "nine verbs . . . are not nine separate statutorily proscribed methods of violating this statute," State v. Roque, 190 Conn. 143, 460 A.2d 26, 31 (1983), the statute does proscribe five distinct criminal acts: (1) disorders, (2) disturbances, (3) strikes, (4) riots, and (5) organized disobedience to a prison's rules and regulations. See State v. Pascucci 164 Conn. 69, 316 A.2d 750, 752 (1972) (noting that "other organized disobedience" refers to a separate category of conduct, namely, disobedience that is organized). As explained below, besides rioting itself, the four other acts prohibited under § 53a-179b are not "violent felonies" within the ACCA's definition of that term.
For purposes of the ACCA, a "violent felony" is:
any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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). The district court found that Johnson had committed a "violent felony" pursuant to subsection (ii). Johnson, of course, committed none of the four so-called `exemplar crimes' specifically named in subsection (ii). Instead, the district court concluded that Johnson's violation of § 53a-179b fell under the ACCA's so-called "residual clause," which covers "conduct that presents a serious potential risk of physical injury to another."
To qualify as a violent felony under the residual clause, a crime must be "roughly similar, in kind as well as in degree of risk posed," to the ACCA's exemplar crimes. Begay, 553 U.S. at 143, 128 S.Ct. 1581. Put differently, the applicable test is a two-pronged inquiry, asking (1) whether the crime at issue presents a serious potential risk of physical injury to another, and (2) whether the crime, "in a fashion similar to burglary, arson, extortion, or crimes involving the use of explosives, `typically involve[s] purposeful, violent, and aggressive conduct.'" United States v. Daye, 571 F.3d 225, 234 (2d Cir. 2009) (quoting Begay, 553 U.S. at 144-45, 128 S.Ct. 1581) (other citations omitted). My dissent addresses the second prong of this test.
Section 53a-179b does not define the terms "disorder," "disturbance," "strike," "riot" or "organized disobedience," but it seems clear to me, by virtue of both commonsense and common parlance, that out of these five terms, "riot" stands apart. "Disorder" is presumably akin to disorderly conduct, a Class C misdemeanor under Connecticut law encompassing acts as non-violent as "mak[ing] unreasonable noise" and "obstructing] vehicular or pedestrian traffic." Conn. Gen. Stat. § 53a-182. "Disturbance" is presumably similar to "Creating a public disturbance," a mere "infraction" under Connecticut law encompassing acts as nonviolent as "annoy[ing] or interfering] with another person by offensive conduct" and "mak[ing] unreasonable noise." Conn. Gen. Stat. § 53a-181a. Strikes and organized disobedience, of course, are not typically crimes outside the confines of a prison. While I concede that some of these acts may appear relatively more serious in the prison context, context alone does not transform them from offenses that are frequently nonviolent into offenses that are typically purposeful, violent, and aggressive in a fashion similar to burglary, arson, extortion, or crimes involving the use of explosives. The fact that a nonviolent, non-aggressive act takes place "in a prison environment" certainly affects the degree of risk posed by that act, but does not, in my opinion, "qualitatively" transform the "kind" of act under consideration. See Maj. Op. at 92. "Riot in the second degree," on the other hand, has much more in common with the ACCA's exemplar crimes: it is a Class B misdemeanor under Connecticut law that must involve "tumultuous and violent conduct" engaged in "with two or more other persons." Conn. Gen. Stat. § 53a-17G (emphasis added).
Connecticut's own prison regulations confirm this conclusion. The Connecticut: Department of Correction's definition of "Creating a Disturbance" includes an "inmate work stoppage," its definition of "Causing a Disruption" includes "harassing others by taunts, name calling or pushing, rattling bars, banging utensils or other objects or in any other manner creating loud or disturbing noises," and its definition of "Disorderly Conduct" includes "[a]ny nuisance or annoying behavior which interferes with the unit's order." Connecticut. Department of Correction, Code of Penal Discipline, Administrative Directive 9.5, available at http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0905.pdf (last visited April 28, 2010).
Rioting in, the second degree appears to be the least severe rioting offense under Connecticut law. "Rioting in the first degree" and "Inciting to riot" are both Class A misdemeanors, and also involve "tumultuous and violent conduct." See Conn. Gen. Stat. § 53a-175; Conn. Gen. Stat. § 53a-178.
The majority errs by failing to apply the modified categorical approach to a statute encompassing, as separately listed acts, these varied, mainly nonviolent, offenses. "When the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the modified categorical approach . . . permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record." Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010) (internal quotation marks omitted). More specifically, when, like § 53a-179b, a statute "places together in a single numbered statutory section several different kinds of behavior" that it "separately describes," but only some of the separately described behavior qualifies as a violent felony under the ACCA, courts must employ the modified categorical approach and treat the ACCA-predicate behavior "as a separate crime" from the non ACCA-predicate behavior. Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 691, 172 L.Ed.2d 484 (2009) (applying a modified categorical approach to separate into two crimes a statute criminalizing both an escape from prison and a failure to report to prison).
Accordingly, we should analyze disorders, disturbances, strikes, riots, and other organized disobedience as five separate acts, determining whether each one, standing alone, constitutes a violent felony under the residual clause. Instead, the majority errs by using a "categorical approach," asking merely whether a conviction under § 53a-179b is violent in the ordinary case, regardless of the underlying facts. The categorical approach is generally the proper methodology to use when analyzing statutes. See United States v. Rosa, 507 F.3d 142, 151 (2d Cir. 2007). However, where, as here, "the statutory definition of the state crime of conviction encompasses both crimes that would qualify as a `violent felony' and crimes that would not . . . we make a limited inquiry into which part of the statute the defendant was convicted of violating." United States v. Mills, 570 F.3d 508, 511 (2d Cir. 2009) (internal quotation marks omitted). Under this modified categorical approach, the government has the burden to prove that the facts underlying the defendant's conviction show that he was actually convicted under the part of the statute that constitutes a violent felony. Id. at 512.
In support of its argument that a violation of § 53a-179b "typically involve[s]. . . . violent, and aggressive conduct," the majority relies on statistics provided by the government that purport to analyze every reported case that (1) involves a conviction under § 53 a-179b, and (2) contains a discussion of the facts underlying the conviction. Maj. Op. at 90. Although, statistics may be useful in determining whether a crime is typically violent or not, the government's statistical analysis, on which the majority uncritically relies, is in this instance intensely superficial and incomplete, covering only 11 reported cases across the 38 years since the statute's passage in 1971. Since the government's statistics are limited to reported decisions, they say nothing about how the statute was administered in the vast majority of cases that did not generate published opinions. They do not, for example, indicate the total number of convictions under the statute during that period (although we assume there were far more than 11), or provide any specific account of the factual basis for the convictions they do analyze. As a result, nearly all of the relevant questions about how the statute may have been administered remain unanswered. Why the majority could be reassured by such statistics is not clear. Cf. Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009) (relying, in part, on a rigorous empirical study by the Sentencing Commission showing no violence occurred in 160 cases over a two-year span).
Moreover, the mere 11 cases analyzed by the government include at least one example suggesting that § 53a-179b does not, in fact, typically involve violent and aggressive conduct when a riot is not involved. Most of the cited cases do involve defendants who participated in riots. However, in State v. Rivera, 30 Conn.App. 224, 619 A.2d 1146 (1993), the defendant was convicted under § 53a-179b for refusing to obey a prison guard's order to stop marching in a circle and to leave an outdoor yard, prior to the outbreak of a riot that he is not alleged to have participated in; no one was injured, and despite the government's indication that the offense "involved a weapon," I can find no mention of the defendant having used one. Meanwhile, as Johnson argues, the government's statistics do not account for State v. Pascucci, 164 Conn. 69, 316 A.2d 750 (1972), which involved a defendant who "sat down in a corridor that was meant to be kept clear, refused to move when ordered to do so, waived his arms and loudly urged the inmates to sit down and not to move." Id. at 752 (construing the statutory predecessor to § 53a-179b). Rivera and Pascucci more than adequately demonstrate "a realistic probability, not a theoretical possibility, that the State would apply its statute to" nonviolent conduct. See James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)); Maj. Op. at 92.
In this way, the Supreme Court applied the modified categorical approach in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), to analyze a Massachusetts burglary statute which provided that:
Whoever, in the night time, breaks and enters a building, ship, vessel or vehicle, with intent to commit a felony, or who attempts to or does break, burn, blow up or otherwise injures or destroys a safe, vault or other depository of money, bonds or other valuables in any building,
vehicle or place, with intent to commit a larceny or felony, whether he succeeds or fails in the perpetration of such larceny or felony,' shall be punished by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years.
Mass. Gen. Laws Ann., ch. 266, § 16 (West 2008). Shepard "found that the behavior underlying, say, breaking into a building, differs so significantly from the behavior underlying, say, breaking into a vehicle, that for ACCA purposes a sentencing court must treat the two as different crimes." Chambers, 129 S.Ct. at 690 (emphasis added).
Structurally, § 53a-179b resembles the Massachusetts burglary statute at issue in Shepard in that it criminalizes both violent and nonviolent acts, and lists those acts as separate elements of a disjunctive list. Just as the burglary statute groups burglary of a "building, ship, vessel or vehicle," § 53a-179b groups a prisoner's participation in a "disorder, disturbance, strike, riot or other organized disobedience." For the reasons stated above, participation in a riot differs significantly from participation in a strike, disorder, disturbance, or organized disobedience, in that riots are typically violent, whereas these other categories quite frequently may not be. Therefore, just as Shepard treated burglary of a building, but not burglary of a vehicle, as an ACCA predicate, so too should we treat a prisoner's participation in a riot, but not a prisoner's participation in the other acts criminalized by § 53a-179b, as an ACCA predicate. Accordingly, the government should be required to prove that Johnson's conviction under § 53a-179b was actually for rioting.
The majority's references to United States v. Thrower, 584 F.3d 70 (2d Cir. 2009), and United States v. Daye, 571 F.3d 225 (2d Cir. 2009), Maj. Op. 91, are therefore inapposite, because neither of the statutes at issue in those cases separately listed the conduct that the respective petitioner alleged was nonviolent, making a modified categorical approach inappropriate. In Thrower, the statute at issue, larceny from the person under New York law, provides: "A person is guilty of grand larceny in the fourth degree when he steals property and when . . . [t]he property, regardless of its nature and value, is taken from the person of another." N.Y. Penal Law § 155.30(5). Even though the majority is correct that larceny from the person might include pickpocketing, pickpocketing is not separately listed as an offense. Similarly, although the Vermont sexual-assault-of-a-child statute at issue in Daye "encompasses not only, forcible assault but also sexual contact to which a child professes to consent," 571 F.3d at 231, the statutory language does not separately mention consensual and non-consensual contact.
In Daye, we recognized the existence of the modified categorical approach but left open the question of "whether a statute is susceptible to such analysis when it encompasses both violent felonies and other crimes, but does not describe the violent felonies only in distinct subsections or elements of a disjunctive list." 571 F.3d at 229 n. 4. The clear implication of this observation is that where, as in the instant case, a statute does describe violent felonies and other crimes as elements of a disjunctive list, the statute is susceptible to a modified categorical analysis.
Ultimately, to be similar in kind to an ACCA exemplar crime, the conduct at issue must be "such that it makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim." Begay, 553 U.S. at 145, 128 S.Ct. 1581. Without knowing anything whatever about what Johnson actually did, I do not believe it is possible to conclude that he engaged in conduct suggesting that he poses a special threat with a firearm. To keep order, prisons rightfully require inmates to adhere to strict rules in virtually every aspect of their daily lives. Violations of those rules, such as those criminalized by § 53a-179b, must not go unpunished, but we must also recognize that such violations are, unfortunately, common in penal institutions, and often involve conduct entirely dissimilar to the violent and aggressive conduct typified by burglary, arson, extortion, or crimes involving the use of explosives. Before we require defendants like Johnson to spend at least five extra years in prison, beyond any state sentence, based on a prior conviction under § 53a-179b, I would remand and require the government to establish the type of conduct that led to the conviction. Because the stakes for defendants are high, this is a matter of serious concern to judges. In any event, this showing is one required by law.