Conspiracy to Commit 2nd-degree Burglary Not an ACCA Predicate

U.S. v. Fell, --- F.3d ----, 2007 WL 4395444 (10th Cir. Dec. 18, 2007)

Nice defense victory, holding that conviction of Colorado conspiracy to commit second degree burglary is not a violent felony under ACCA, after analyzing the statute under James v. United States, 127 S.Ct. 1586 (2007), because it does not present a risk of violent confrontation comparable to the risk inherent in a completed burglary. This is because under Colorado law, the overt act element required for a conspiracy conviction need not be directed toward the entry of a building or structure. It can be satisfied by such attenuated conduct as purchasing tools, which is done at a distance from the object of the burglary, and creates no risk of a violent confrontation.