Today, a panel of the Sixth ruled in U.S. v. Baker, that reckless endangerment under Tennessee law does not qualify as a crime of violence for career offender and ACCA purposes. The Sixth found that since reckless endangerment by its definition penalizes reckless, rather than intentional, conduct it does not qualify as a crime of violence after Begay.
However, there is one troubling aspect about this opinion. The panel remands the case and allows that the district court, "may consider any of the additional factual evidence on remand, provided, of course, that it is limited to the 'charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.'" This seems to confuse the analysis of Shepard. Under Shepard, the prosecution does not get to present this additional evidence unless there is a possibility that the statutory definition of the crime penalizes both crimes of violence and non-crimes of violence. Think generic v. non-generic burglary. So if Begay requires that the predicate offense criminalize intentional conduct for it to qualify as a c.o.v., and reckless endangerment only criminalizes reckless conduct, why is there a need for additional fact finding? It would seem that the statutory definition would make any further factual finding pointless, in that the statutory definition does not criminalize any crime that could ever qualify as intentional conduct.
While this is just one troubling aspect of an otherwise good opinion, it makes me wonder if the Sixth can envision any way that reckless endangerment could qualify as a c.o.v. Any thoughts?