F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

JUL 23 1999

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 98-8059

VINCENT BAD HEART BULL,

Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 97-CR-099-D)
Submitted on the briefs:

Richard R. Jamieson, Casper, Wyoming, for Defendant-Appellant.

David R. Freudenthal, United States Attorney for the District of Wyoming, and L.
Robert Murray, Assistant United States Attorney, Cheyenne, Wyoming, for
Plaintiff-Appellee.
Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
*

TACHA , Circuit Judge

Defendant Vincent Bad Heart Bull was indicted on September 18, 1997,
with knowing possession of a firearm after a prior felony conviction in violation
of 18 U.S.C. 922(g) and 924(a)(2). He entered a plea of not guilty on
September 29, 1997. On November 6, 1997, the United States Attorney filed a
Notice of Intent to Seek Enhanced Penalty pursuant to Armed Career Criminal
Act, 18 U.S.C. 924(e)(1). Section 924(e) establishes a mandatory minimum
sentence of fifteen years for anyone convicted under 18 U.S.C. 922(g) who has
three prior convictions for a violent felony or serious drug offense. Defendant
subsequently sought to change his plea, but the trial court rejected the plea and
reset the matter for trial. On April 23, 1998, defendant again sought a change of
plea. The court accepted a written plea agreement in which defendant pled guilty
to the one count indictment.
The court sentenced defendant on July 2, 1998. The government offered
six prior convictions of defendant that it believed qualified as violent felonies
under 18 U.S.C. 924(e)(2)(B). The proffered convictions included one each for
felony menacing, aggravated assault, intimidating a witness, escape, and two for
third degree burglary. The district court found the felony menacing, aggravated
assault, and intimidating a witness convictions were violent felonies for
purposes of 924(e) and sentenced defendant to 180 months of incarceration.
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Defendant appeals his enhanced sentence, claiming that the conviction for
intimidating a witness does not constitute a violent felony under the test set forth
in Taylor v. United States , 495 U.S. 575 (1990). We take jurisdiction under 18
U.S.C. 3742 and 28 U.S.C. 1291 and affirm.
As an initial matter, the government contends that defendant waived his
right to appeal his sentence when he signed his plea agreement. The written plea
agreement states: Defendant agrees to waive his right to appeal the sentence he
receives as a result of this Plea Agreement. However, if the United States appeals
the Defendants sentence pursuant to 18 U.S.C. 3742(B), the Defendant is
released from his waiver. R., Vol. 1, Doc. 47 at 7. A defendants knowing and
voluntary waiver of the statutory right to appeal his sentence is generally
enforceable. United States v. Hernandez , 134 F.3d 1435, 1437 (10th Cir. 1998).
However, defendant claims the waiver is unenforceable because the district judge
stated at the change of plea hearing that he was accepting the plea but rejecting
the part of the agreement that waived defendants right to appeal. For purposes of
this case, we assume, without deciding the issue, that defendant could properly
appeal his sentence.
Defendant argues that his conviction for intimidating a witness does not

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meet the violent felony test for 924(e) sentence enhancement purposes.

According to defendant, the categorical analysis for determining what constitutes

a violent felony established by the Supreme Court in

Taylor leads to the

conclusion that the witness intimidation conviction at issue is not a violent felony.
We review the interpretation and application of sentence enhancements imposed
under 18 U.S.C. 924(e) de novo.
1340 (10th Cir. 1997),

See United States v. Romero , 122 F.3d 1334,

cert. denied , __U.S.__, 118 S. Ct. 1310 (1998). However,

we may affirm the sentence for reasons other than those relied upon by the
district court, provided they are supported by the record.
106 F.3d 936, 941 (10th Cir.),

United States v. Myers ,

cert. denied , 520 U.S. 1270 (1997).

We need not address defendants argument because, even if his witness

intimidation conviction did not count for the sentence enhancement, his 1981
escape conviction from Nebraska clearly constitutes a third violent felony that
satisfies 924(e). In

United States v. Moudy , 132 F.3d 618, 620-21 (10th Cir.),

cert. denied ,__U.S.__, 118 S. Ct. 1334 (1998), we stated that escape always
constitutes a violent felony under 924(e)(2)(B). The escape conviction was
properly in the record. Thus, regardless of the analysis concerning the witness
intimidation conviction, defendant committed three prior violent felonies and was

Defendant did not challenge the use of the felony menacing and aggravated
assault convictions.
1

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subject to enhanced sentencing under the Armed Career Criminal Act.

Accordingly, we AFFIRM the sentence imposed by the district court.

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No. 98-8059, United States v. Vincent Bad Heart Bull

McKAY , Circuit Judge, dissenting:

I respectfully dissent from the majoritys approach and its result in this
case.
As a threshold issue, I do not think this court can so easily avoid the
question of whether Defendant has the right to appeal when the issue is squarely
presented to us. The Government argues that this court should dismiss this appeal
because Defendant waived his right to appeal the sentence when he entered into
the plea agreement. To assess whether Defendant has the right to appeal, I would
examine the Rule 11 change of plea hearing in which the district court accepted
Defendants guilty plea. At that hearing, the court clearly stated several times
that it rejected the portion of the plea agreement requiring Defendant to waive his
right of appeal.

First, after a colloquy between the parties and the court in which

Defendant admitted the role of alcohol in his criminal history and in which he
clarified that, at sentencing, he would contest whether his prior convictions
qualified under the Armed Career Criminals Act, the district court advised
Defendant that he would have the right to appeal his sentence if the court
accepted his change of plea.

See R., Vol. 3 at 18. At a later point during the

hearing, in warning Defendant that the court would be

bound by the sentencing guidelines, the judge again informed Defendant, Im

giving you your right of appeal, notwithstanding this plea agreement.

Id. at 26-

27. The judge then asked Defendant if he understood that unless your appeal is
successful, youll live with the result of the sentence.
answered, Yes, he understood that consequence.

Id. at 27. Defendant

Id. Additionally, in telling

Defendant what rights he would be giving up by pleading guilty, the judge

indicated that Defendant would not be giving up his right to appeal:
[S]ince Im going to make sure you have a right to appeal my
sentence if you think Ive been erroneous in the way Ive applied the
sentencing guidelines or other statutes . . . with respect to your
sentence, then youll have the right to go to the Tenth Circuit Court
of Appeals in Denver and try to get the sentence changed.
Id. at 31. Again, Defendant stated that he understood the significance of what the
court had told him about his rights.
Defendants plea of guilty,

See id. at 32. Finally, in response to

see id. at 44, the judge accepted the plea, finding that

it was knowing and voluntary and again instructing Defendant to remember

[that] now you do have your right to appeal the sentence should I accept it, should
I sentence you on this charge.

Id. at 46. At no time did the Government object

to these four statements by the court which unequivocally rejected the part of the
plea agreement waiving Defendants right to appeal the sentence and purported to

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reinstate that right to appeal.

It is well established that Rule 11 does not allow a judge to modify a plea
agreement once it has accepted that agreement.

See United States v. Veri , 108

F.3d 1311, 1315 (10th Cir. 1997) (citing Second, Seventh, and Ninth Circuit cases
holding that if a sentencing court accepts a Rule 11(e)(1)(A) or (C) agreement, it
is bound by the agreement and may not modify it);

United States v. Dean , 80 F.3d

1535, 1541 (11th Cir.) (stating that acceptance of a defendants plea agreement
[generally] prohibits a district court from modifying that agreement),
on reconsideration on other grounds

, 87 F.3d 1212 (11th Cir. 1996);

modified
United

States v. Skidmore , 998 F.2d 372, 375 (6th Cir. 1993) (emphasizing that district
court is not authorized to modify plea agreement once it has accepted it).

None of

these cases, however, speak to the circumstances of this case. Here, the court did
not modify or attempt to modify the agreement after acceptance but instead
modified the agreement before acceptance, when the court still retained the power
to reject the plea agreement. Additionally, in this case Defendant relies on the

Additionally, the court twice informed Defendant at sentencing that it had

restored Defendants right of appeal. First, the court stated that it had restored
Defendants right of appeal because there are pending objections to the application of
the guidelines in this case. R., Vol. 5 at 48. Then, after imposing the sentence, the court
told that Defendant: [Y]ou now have the right of appeal. Even though you waived it in
your agreement with the United States, [the court] reject[ed] that provision of the
agreement. You can appeal. You can appeal the sentence within ten days from the date
of the judgment. Id. at 53.
1

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district courts specific statements refusing to accept the plea with the waiver of
Defendants right to appeal and indicating that it would only accept the plea if
Defendants right of appeal was reinstated. Finally, the Government made no
objection to the courts pre-acceptance modification of the plea agreement. In
light of these distinctions, we must examine whether a defendant may reasonably
rely on a district courts statements rejecting the appeal waiver provision which
are made before the plea is taken and to which the government does not object.
In United States v. Buchanan , 59 F.3d 914, 917-18 (9th Cir. 1995), the
Ninth Circuit concluded that a defendants waiver of his right of appeal was
unenforceable because the district courts oral pronouncements at sentencing
concerning the right to appeal trumped the written plea agreement and because the
government had failed to object to the courts statements.

See id. at 918; cf.

United States v. Schuman , 127 F.3d 815, 817 (9th Cir. 1997) (noting that where
the government has objected to the district courts rejection of an appeal waiver
provision, the defendant is on notice that he may not have a right to appeal). The
Ninth Circuit further justified its decision on the theory that litigants should be
able to trust and rely upon a district courts statements.

See Buchanan , 59 F.3d at

918. However, in United States v. Atterberry , 144 F.3d 1299, 1301 (10th Cir.
1998), this court rejected

Buchanan s reasoning because it was persuaded that

statements made by a judge during sentencing concerning the right to

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appeal . . . do not affect a defendants prior decision to plead guilty and waive
appellate rights. Not only are the facts of

Atterberry distinguishable from this

case but also Atterberry s reasoning supports my conclusion that, at the very least,
the courts statements at the plea hearing likely affected Defendants decision to
plead guilty.
Given that the district court first uttered its statements at the change of plea
hearing, before the court accepted Defendants plea, I am persuaded that at least
three of the courts statements were likely to have affected Defendants decision
to plead guilty. In fact, because Defendant was informed of his right of appeal on
three occasions before he actually entered his plea (and again while the court
accepted his plea), he could reasonably believe that he retained the right of
appeal. Consequently, I think it

more than likely that Defendant did not

knowingly and intelligently waive the right or that he believed that the court
restored the right before accepting his guilty plea. My conclusion is further
buttressed by the fact that the Government did not raise a single objection during
the entire plea hearing, nor did it object to any of the four separate instances in
which the court told Defendant that he had the right to appeal.

Because the

This courts statement in Atterberry, 144 F.3d at 1301 n.3, concerning the
governments failure to object does not apply to this case. While the court here made
statements both at the Rule 11 hearing and at sentencing without objection from the
Government, the critical distinction between this case and Atterberry is the Governments
failure to object at the Rule 11 plea hearing. Atterberry and the cases it relied upon did
2

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Government failed to object, it was reasonable for Defendant to rely on the

courts statements and to expect that he could appeal his sentence.
In light of the district courts unequivocal statements at the Rule 11 hearing
rejecting Defendants waiver of his right of appeal and explaining that he retained
the right of appeal, Defendants apparent understanding of the courts warnings
and the consequences of his guilty plea, and the Governments failure to object, I
would hold that it was reasonable for Defendant to rely on the courts statements,
and, therefore, that he may appeal his sentence.
Turning now to the merits of Defendants appeal, my approach again
substantially differs from that taken by the majority as I cannot see why or how it
is beneficial to this courts jurisprudence, the district court, the government, or
the defendant to refrain from addressing the errors made by the sentencing court
in connection with its qualifying Defendants 1990 Colorado conviction for
intimidating a witness as a violent felony. I therefore address Defendants
alleged errors.
In determining that the conviction for intimidating a witness qualified as a

not involve statements made by courts at plea hearings but only dealt with statements
made at sentencing hearings. See id.; see also United States v. One Male Juvenile, 117
F.3d 1415, 1997 WL 381955, at **2 (4th Cir. 1997), cert. denied, U.S.
, 118 S. Ct.
1191 (1998).
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violent felony under 18 U.S.C. 924(e)(2)(B),

the sentencing court relied on the

charging documents and the police report contained within the presentence report.
Defendant argues that the intimidation conviction does not constitute a violent
felony based on the categorical approach set forth in

Taylor v. United States , 495

U.S. 575 (1990). He contends that his conviction does not properly count towards
enhancement under 924(e) because the statute under which he was convicted,
Colo. Rev. Stat. 18-8-704, is overbroad and does not necessarily require for
conviction the use, attempted use, or threatened use of force or a substantial risk
of violence against a person.
I begin by examining the applicability of
of state law burglary statutes, the Supreme Court in

Taylor . In response to the variety

Taylor created a narrow,

generic definition of burglary for purposes of a 924(e) enhancement.

See

Taylor , 495 U.S. at 599. In determining whether a particular conviction for

burglary qualifies under the generic definition, the Court mandated that courts use
The statute defines a violent felony as
any crime punishable by imprisonment for a term exceeding one
year . . . that

(i) has as an element the use, attempted use, or threatened use of

physical force against the person of another; or
(ii) is burglary, arson, extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.
Id. 924(e)(2)(B).
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a formal categorical approach, looking only to [the fact of conviction and] the
statutory definitions of the prior offenses, and not to the particular facts
underlying those convictions.
1334, 1341 (10th Cir. 1997),

Id. at 600; see United States v. Romero , 122 F.3d

cert. denied , ___ U.S. ___, 118 S. Ct. 1310 (1998).

The purpose of this restricted method was to avoid practical difficulties and the
potential unfairness of a factual approach to each prior conviction.
States v. King , 979 F.2d 801, 802 (10th Cir. 1992) (quoting

United

Taylor , 495 U.S. at

601). The Court held that if a state statute defines burglary more broadly than the
definition set forth in

Taylor , then a conviction obtained under such a statute

may not, except in narrowly defined circumstances, be counted toward

enhancement. United States v. Barney , 955 F.2d 635, 638 (10th Cir. 1992).
However, Taylor carved out an exception which allows courts to look beyond the
mere fact of conviction in a narrow range of cases where a jury was actually
required to find all the elements of a generic [ 924(e)(2)(B)(ii) ] burglary to
convict the defendant.

Taylor , 495 U.S. at 602. In these rare cases,

Taylor

authorizes a sentencing court to examine the indictment or information and jury

instructions in making the above determination.

See id. In burglary cases where

jury instructions do not exist because the defendant pled guilty, this court has held
that the sentencing court may review the text of the underlying guilty plea to
determine whether the defendant was charged with and admitted conduct which
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falls without question within the ambit of

Taylor s generic definition.

Barney ,

955 F.2d at 639.

Because the enhancement statute does not specifically list intimidation of a
witness as a violent felony, this court would normally inquire whether
intimidation is a crime that either has an element of use, attempted use or
threatened use of physical force against the person of another, or whether that
crime involves conduct that presents a serious potential risk of physical injury to
another. United States v. Phelps , 17 F.3d 1334, 1342 (10th Cir. 1994). The
Colorado statute under which Defendant was convicted in 1990 prohibits
intimidation of a witness or victim . . . by use of a threat, act of harassment, or
act of harm or injury to any person or property.

Colo. Rev. Stat. 18-8-704(1).

The Colorado statute states that a person commits a class 4 felony

if, by use of a threat, act of harassment, or act of harm or injury to any

person or property directed to or committed upon a witness or a victim to
any crime, a person he believes has been or is to be called or who would
have been called to testify as a witness or a victim, . . . or any person who
has reported a crime or who may be called to testify as a witness to or
victim of any crime, he intentionally attempts to or does:
(a) Influence the witness or victim to testify falsely or unlawfully withhold
any testimony; or
(b) Induce the witness or victim to avoid legal process summoning him to
testify; or
(c) Induce the witness or victim to absent himself from an official
proceeding to which he has been legally summoned; or
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In other words, the statute defines the crime of intimidation so that one may
commit it against a person

or against property. Applying the categorical approach

to determine whether Defendants intimidation conviction constitutes a violent

felony, see Phelps , 17 F.3d at 1342 (applying categorical approach to kidnapping
conviction); United States v. Permenter , 969 F.2d 911, 913 (10th Cir. 1992)
(applying categorical approach to attempted burglary), it is clear that the Colorado
statutory definition of intimidating a witness is overly broadthe fact of
conviction and the statute do not

necessarily require either that an element of the

crime is the use, attempted use, or threatened use of physical force against the
person of another, see 18 U.S.C. 924(e)(2)(B)(i), or that the crime otherwise
involves conduct that presents a serious potential risk of physical injury to
another. Id. 924(e)(2(B)(ii); see also King , 979 F.2d 803-04 (reviewing New
Mexico statutory definitions to hold that conspiracy conviction does not qualify as
violent felony under subsections (i) or (ii));

United States v. Strahl , 958 F.2d 980,

986 (10th Cir. 1992) (holding that Utah attempted burglary convictions did not
categorically involve conduct presenting serious potential risk of physical harm to
another under subsection (ii)). This means that, under the categorical approach,

(d) Inflict such harm or injury prior to such testimony or expected

testimony.
Colo. Rev. Stat. 18-8-704.
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Defendants 1990 conviction for intimidating a witness cannot qualify as a violent

felony for enhancement purposes.
In apparent recognition of the fact that Defendants intimidation conviction
does not qualify as a violent felony under the categorical approach, the
Government argues that this court may apply the exception outlined by the
Supreme Court in Taylor and examine the charging documents and guilty plea to
determine if the intimidation conviction qualifies under 18 U.S.C. 924(e). My
review, however, is restricted because this court limited the applicability of the
Taylor exception in Permenter . In that case, we held that a court may utilize only
the purely categorical approach to determine whether a non-enumerated
conviction qualifies as a violent felony under the otherwise clause of
924(e)(2)(B)(ii).

See Permenter , 969 F.2d at 914. The court reasoned that

reference to supporting information such as a charging document or a jury

instruction serves only to determine whether a defendant is actually convicted of
burglary as defined by

Taylor . The court then stated that because [t]here is no

similar definition governing the otherwise clause[] and no means by which to

control the inquiry and prevent it from becoming the kind of factual investigation
that Taylor sought to avoid we may not look to the charging document, jury
instruction, or guilty plea in making the violent felony determination under
subsection (ii).

Id.
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Thus, Permenter demands that this court follow only the categorical
approach in determining whether the intimidation conviction qualifies under
924(e)(2)(B)(ii).

See King , 979 F.2d at 804 (stating that Tenth Circuit cases

require court to examine only the elements of the crime to determine whether
conviction is violent felony).

But see United States v. Cook , 26 F.3d 507, 510

(4th Cir. 1994) (rejecting argument that

Taylor s instruction to examine the

charging papers and jury instructions of a prior conviction to determine whether it

constitutes a violent felony applies only to cases under 924(e)(2)(B)(ii)
involving prior burglary convictions);
459 (1st Cir. 1991) (stating that

United States v. Bregnard , 951 F.2d 457,

Taylor approach is applicable to the entire

enhancement statute, not just to crimes enumerated in 924(e)(2)(B)(ii)). On its

face, the definition of the intimidation offense allows a person to be convicted for
acts against property, and, therefore, the statute does not

necessarily present

circumstances which involve a serious potential risk of physical injury to a

person. Accordingly, the conviction does not qualify under the otherwise
clause of 18 U.S.C. 924(e)(2)(B)(ii).

See Permenter , 969 F.2d at 914-15;

United States v. Sherbondy , 865 F.2d 996, 1011 (9th Cir. 1988) (stating that
where a statute is overly broad or inclusive, subsection (ii) is not applicable),
cf. United States v. Parker , 5 F.3d 1322, 1326 (9th Cir. 1993) (refusing to apply
Taylor exception in case involving otherwise clause of 924(e)(2)(B)(ii) and
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strongly noting that Taylor permitted a deviation from the categorical approach
only in burglary cases).
I am now left with the question of whether, under

Permenter , a court may

look to the underlying charging document and guilty plea to determine whether
[the defendant] was charged with and admitted conduct which falls without
question within the ambit of 924(e)(2)(B)(i).

Barney , 955 F.2d at 639.

Permenter , however, does not explicitly say whether the

Taylor exception applies

to cases under subsection (i), and no subsequent decision of this court has
answered this thorny issue. If

Permenter can be read to preclude a court from

reviewing the underlying charging documents to determine whether the conviction

qualifies under 924(e)(2)(B)(i), my analysis would end here and the intimidation
conviction would not qualify as a violent felony because it is overly broad.
Nevertheless, I need not resolve this question because, even if

Permenter does not

preclude our review, the Colorado intimidation conviction does not satisfy the
narrow constraints of the

Taylor exception.

Both the charging document and Defendants written guilty plea use the
language of the Colorado statute to describe the crime, i.e., by use of threat and
act of harm or injury to any person or property. Appellees Addendum at 8;

see

id. at 12-13. Thus, the crime as described in these underlying documents does not
categorically require as an element the use, threatened use, or attempted use of
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force against a person. These documents contemplate that force may have been
used, threatened, or attempted against property. Only by examining the conduct
of a separate count in the charging document for the prior conviction can we infer
that the use of threat or act of harm or injury was committed against a person.
Moreover, because we can only draw an inference or an implication from the
charging document and the plea, I cannot say that the use, threatened use, or
attempted use of force against a person was necessarily an element of the
intimidation conviction. Therefore, even if I were to apply the

Taylor exception

and examine the underlying documents in this case, I cannot ascertain whether
Defendant was charged with and admitted conduct which [is] without question
a violent felony under 18 U.S.C. 924(e)(2)(B)(i).

Barney , 955 F.2d at 639.

Additionally, I point out that in determining that the conviction was a

violent felony the district court did not merely examine the nature of the offense
as set out in the charging document and guilty plea, but it erroneously relied on
the presentence report (and the police report contained within it).

See Barney ,

955 F.2d at 640 (indicating that a sentencing court is prohibited from relying on a
presentence report to determine whether charged and admitted conduct
I am not persuaded by the Seventh Circuits reasoning in United States v. Lowe,
923 F.2d 528, 531 (7th Cir. 1991), overruled in part on other grounds, United States v.
Byerley, 46 F.3d 694, 699 (7th Cir. 1995), because it necessitates that a defendant object
to or dispute the facts of the conviction, thus requiring the court to look beyond the
charging documents and guilty plea.
5

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categorically constitutes a violent felony). This is exactly the type of case-bycase factual probe that

Taylor and Permenter cautioned against.

Bregnard , 951 F.2d at 460-61 (applying

But see

Taylor s exception to determine whether

assault and battery conviction qualified under 924(e)(2)(B)(i));

Cook , 26 F.3d at

510 (applying Taylor s exception to obstruction of justice conviction and citing

similar applications by First, Seventh, and Ninth Circuits).
In sum, whether this court would be precluded from examining the charging
document and guilty plea to determine if the intimidation conviction qualifies
under subsection (i) or whether we would look to those documents and conclude
that they fail to show without doubt that an element of the crime was the use,
attempted use or threatened use of physical force against the person of another
under subsection (i), the result is the sameDefendants conviction for
intimidation of a witness under Colo. Rev. Stat. 18-8-704 does not constitute a
violent felony pursuant to 18 U.S.C. 924(e)(2)(B)(i). Because I would hold that
his intimidation conviction also does not qualify under 924(e)(2)(B)(ii), I also
would hold that the district court found only two convictions that count toward
the enhancement. As a result, I would remand for the court to consider whether
any of the other remaining three convictions presented by the Government qualify
as a violent felony. This result gives Defendant an opportunity to raise objections
at resentencing to the use of either the escape or the two attempted burglary
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convictions for purposes of the enhancement.

For these reasons, I respectfully dissent.

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