In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3134

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

A NTHONY H AMPTON,
                                              Defendant-Appellant.


            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
             No. 06-CR-183—John Daniel Tinder, Judge.



    A RGUED JANUARY 5, 2009—D ECIDED N OVEMBER 4, 2009




 Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. A series of 911 calls reporting
shots fired in broad daylight led police officers to a busy
area in Indianapolis to arrest the gunman. One caller
fingered the occupants of a white sports utility vehicle
(“SUV”), which carried defendant Anthony Hampton.
When officers stopped Hampton and the driver, they
recovered two guns. After applying enhancements be-
2                                               No. 07-3134

cause of Hampton’s previous felony convictions, the
court sentenced him to 387 months’ imprisonment. We
affirm Hampton’s conviction because we conclude that
the officers had reasonable suspicion to stop the SUV
in which Hampton was riding and that there was suf-
ficient evidence to show that Hampton constructively
or actually possessed the gun. As to his sentence, al-
though we agree with the district court that a con-
viction for residential entry in Indiana qualifies as a
“violent felony” for the purposes of the Armed Career
Criminal Act (“ACCA”), we conclude that Hampton’s
prior conviction for criminal recklessness in Indiana
does not qualify, and therefore, Hampton must be
resentenced.


                   I. BACKGROUND
   Anthony Hampton was charged with possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1). His
arrest arose out of events that occurred on July 13, 2006.
The Indianapolis Metropolitan Police Department re-
ceived several 911 calls after someone fired shots in a
parking lot behind a Subway restaurant in Indianapolis.
  The first 911 call came in at 4:29 p.m., when a woman
who identified herself as Monica Drawn called and re-
ported hearing five gunshots outside of her apartment
building at 3777 N. Meridian Street. She described two
African-American men getting out of an SUV near
Subway and standing behind a dumpster. She said one
man wore black shorts and a black shirt. Eleven seconds
later, a man who identified himself as John Adkins called
No. 07-3134                                            3

911 and reported hearing six or seven shots. He also
described seeing an African-American man, wearing a
dark, short-sleeved shirt, running with a gun in his
hand. One second later, a Subway employee called 911
and stated individuals were shooting from inside an
orange van.
  At 4:33 p.m., police arrived at the scene. Drawn called
911 again and reported that the man with the black
shorts and shirt whom she had called to report earlier
had just walked past police officers. The 911 dispatcher
relayed this to officers on the scene, and Drawn was able
to verify that the person had white beads in his hair.
One minute later, another caller, later identified as An-
thony Smith phoned 911 and reported watching the
shooter stand between two buildings near Pennsylvania
and 38th streets talking on a cell phone. Smith
would later testify that he recognized the shooter as
Anthony Hampton because he was from the neighborhood.
However, he did not report to the 911 operator that he
recognized Anthony Hampton or that the person he was
watching supposedly was holding a gun. He described
the person as a bald, black man wearing blue jeans and
a blue shirt with stripes. Smith also reported that he
saw the man get into a white Jeep Cherokee with Ohio
plates and head northbound on Pennsylvania Street.
Smith initially hesitated to meet with the police because
he was fearful that the “shooter” saw him. Smith eventu-
ally gave the 911 operator his name (albeit after the
police initiated the traffic stop), a description of what
he was wearing and his location so that officers could
4                                                 No. 07-3134

speak with him. After officers arrested Hampton, they
learned that Smith did not actually witness the shooting.
  Meanwhile, officers stopped a white Jeep Com-
mander with Ohio plates after the driver turned without
signaling.1 The officers asked the two men to get out of
the Jeep. One man was the driver, Justin Gray. The other
man, later identified as Hampton, was seated in the rear
passenger’s side seat. Hampton wore a blue shirt with
yellow stripes across the chest. One officer would later
testify that Hampton was sweating profusely and looked
disheveled. The officers searched the Jeep and found
two firearms—a black Ruger handgun under the driver’s
seat and a chrome Smith & Wesson revolver near the
rear seat on the driver’s side. Police later brought Smith
to the scene of the traffic stop, and Smith identified
Hampton as the individual he had seen between the
buildings.
  At about 4:50 p.m., Keith Moore called 911 and reported
that he had just witnessed almost the entire event
unfold from the roof of his high-rise apartment building
where he was relaxing by the pool with a beer. At
Hampton’s trial, Moore testified that after the initial
shot, he stood on a chair at the edge of the pool deck,



1
  For reasons that are unclear (perhaps because the probable
cause affidavit did not mention the traffic violation), the
government did not argue in the district court that the traffic
violation provided an independent probable cause basis for
the stop, nor does it make this argument now. See United
States v. Cashman, 

, 586 (7th Cir. 2000).
No. 07-3134                                               5

peered over a fence and witnessed an African-American
man firing a large, silver handgun toward an apartment
building behind a Subway. He also saw another black man
wearing jeans and a blue jacket in the Subway parking
lot. He saw the second man enter and leave in a
maroon minivan. The gunman stopped and talked to
two individuals in front of the Subway, and those two
men headed westbound. The gunman then placed the
gun in his waistband. Moore also reported the gunman
wore blue jeans and a blue-collared shirt with a yellow
band around the chest. Police took Moore to the scene
of the traffic stop, and he identified Hampton as the
individual with the large, silver handgun.
  Later, officers discovered an orange Nissan Murano in
the Subway parking lot with two bullet holes in the
hood. Hampton’s girlfriend testified at his trial that she
had loaned the Murano to him and stated there had not
been bullet holes in the vehicle before she gave him the
car on the afternoon of July 13, 2006.
  Before the trial, the district court denied Hampton’s
motion to suppress the Smith & Wesson chrome
revolver, the gun he was charged with possessing. Fol-
lowing a two-day trial, a jury convicted Hampton. The
court, applying the sentencing guidelines in combination
with the ACCA, 18 U.S.C. § 924, determined Hampton’s
offense level was 34, his criminal history category a VI,
and the resulting guidelines range a range of 262 to
327 months. It then chose to add four levels to Hampton’s
offense level in light of his extensive criminal history for
a final offense level of 38. That resulted in a guidelines
6                                                No. 07-3134

range of 360 months to life. Stating that the sentence
would reflect an additional 60 months from the high end
of the Guidelines range had it stayed at level 34, the
court sentenced Hampton to 387 months’ imprisonment.


                        II. ANALYSIS
    A. Reasonable Suspicion Justified the Stop
  First, Hampton appeals the district court’s denial of his
motion to suppress. Hampton argues that the officers
lacked reasonable suspicion to stop the SUV in which
he was riding and that the 911 operators were not trained
to establish reasonable suspicion. Second, Hampton
challenges the reliability of Anthony Smith and argues
that his 911 call failed to provide police with reasonable
suspicion and therefore the stop was not justified
because the call served as the only link between the
shooting and a white SUV. Hampton submits that the
emergency ended before Smith called and that even if
the emergency remained ongoing, Smith’s reliability was
undercut because his tips were contradicted by facts
known to the police, such as that the shooter was
wearing black shorts and a black shirt. Hampton also
contends that if 911 operators had asked Smith’s name
prior to stopping the Jeep, they would have learned that
in 1998 he had been convicted of falsely reporting a
shooting.
  When reviewing a motion to suppress, we examine
questions of law de novo and questions of fact for clear
error. United States v. Montgomery, 

, 629 (7th
No. 07-3134                                                7

Cir. 2009). We review Hampton’s stop under Terry v.
Ohio, 

(1968). Police may initiate an investigatory
stop when the officer has reasonable suspicion that a
crime may be afoot. 

When an officer makes a
Terry stop, he must be able to point to “specific and
articulable facts” that suggest criminality so that he is not
basing his actions on a “mere hunch.” 

United
States v. LePage, 

, 487 (7th Cir. 2007). When
reviewing the reasonableness of a Terry stop, we
evaluate the totality of the circumstances. Jewett v.
Anders, 

, 824 (7th Cir. 2008).
  We begin with Hampton’s argument that Smith was an
anonymous tipster whose call did not give rise to rea-
sonable suspicion. In Florida v. J.L., 

(2000),
police frisked a man and found a gun after having
received an anonymous call reporting that a black man
wearing a plaid shirt at a particular bus stop had a gun.

The Supreme Court held that an anonymous
tip must have indicia of reliability to justify a stop and
concluded that because the tipster provided no “predictive
information,” the officers could not test the informant’s
knowledge or credibility so as to justify the stop and
frisk. 

Unlike J.L., in which a single anonymous
caller reported only possession of a gun, Smith and
other callers reported multiple gunshots fired in broad
daylight and a gunman on the loose. As we, and several
of our sister circuits, have previously recognized, J.L.
does not apply to emergency situations, so because we
conclude that Smith’s call reported an ongoing
emergency, J.L. does not help Hampton. See United States
8                                                 No. 07-3134

v. Hicks, 

, 558-59 (7th Cir. 2008) (collecting
cases).
  Smith’s 911 phone call is much more like the situation
presented in United States v. Drake, 

(7th Cir.
2006). In Drake, a woman called 911 and reported that two
groups of people in separate cars were involved in a
disturbance and that each group had a gun. 

She
reported that a person in one of the cars pulled a gun
on her son-in-law, and when the operator asked her
name she provided it. 

Officers recovered a
gun after stopping one of the vehicles matching the
description provided. 

that when officers
respond to a 911 call, there is less need for further verifica-
tion of the caller’s identity before acting because of the
urgency of the situation. 

  In United States v. Hicks, a 911 caller reported that a
man involved in a domestic disturbance with a woman
had threatened her with a gun. 

.
The 911 call was fraught with inconsistencies and misrep-
resentations, for example, the caller initially gave a
false name. 

Drake’s holding that emer-
gency reports are presumptively reliable and concluded
that the caller reported an ongoing emergency and “gave
the 911 operator enough information to identify him
and his location,” which gave officers reasonable
suspicion to stop the defendant and frisk him for a gun.

Hampton’s case is also similar to the ongoing
emergency presented in United States v. Wooden, 

(7th Cir. 2008). There, we held articulable suspicion
supported a Terry stop when a 911 caller described a man
No. 07-3134                                                9

and reported that the man had pulled a gun on his girl-
friend during an argument outside a convenience store.

   Here too, we are confident that police faced an ongoing
emergency when responding to Smith’s call, and as such,
Smith was presumptively more reliable than an anony-
mous tipster. Only five minutes had passed since the
first 911 call and Smith’s call. Three people in addition
to Smith had called 911 and reported that at least five
shots had been fired during the day in a residential and
commercial area of Indianapolis, and the gunman had not
yet been caught. Police were actively trying to find the
gunman, whom callers reported had run from the scene.
  Even if we agreed with Hampton that the emergency
ended before Smith’s 911 call, Smith still provided
enough information so that the officers could test his
knowledge or credibility so as to justify the stop and frisk.
See 

. Smith gave a location where the
officers could meet him and hold him accountable if the
information he gave was false, and he also gave his
name when asked even though the operator did not ask
his name until after police stopped Hampton. See 

. Smith provided the 911 operator with
a play-by-play description of the “shooter’s” movements
and told the 911 operator he was afraid that the “shooter”
could see him. The officer was able to verify Smith’s
story when he witnessed a white SUV with out-of-town
plates driving in the location where Smith reported. There
may have been some inconsistencies between Smith’s
report and the other 911 callers, but the callers all
reported the same critical facts—that multiple gunshots
10                                             No. 07-3134

had been fired, that two black men were involved
in the shooting, that the shooter lurked between two
buildings and that the shooter eventually left the parking
lot on foot toward 38th Street. Although the operator did
not ask Smith if he had witnessed the shooting, the fact
that several other people had reported gunshots makes it
reasonable for the operator to have believed that Smith
had personally witnessed the shooting. Moreover, Smith
was the only caller able to give detailed information
about the gunman’s current location, and he remained
on the phone with the 911 operator until police stopped
Hampton and made arrangements to meet with Smith.
We reject Hampton’s contention that if 911 operators
had asked Smith his name earlier in the conversation,
they would have learned that he had been convicted of
false reporting and this fact would have made him less
reliable. Emergency dispatchers are in no position to
conduct background checks while gathering information
about a crime in progress. See 

(“[T]he police are entitled to act on what is known at the
time; information turned up later neither vindicates nor
condemns a search.”).
  We also reject Hampton’s argument that 911 operators,
and not the police, concluded reasonable suspicion
existed and ordered the stop. Rather, the 911 operators
passed on information to the officers who used the
specific and articulable facts told to them to determine
they had reasonable suspicion. These facts came not
only from Smith’s call, but also all of the other 911 calls
received regarding the shooting. Based on the informa-
tion gathered in those 911 calls, the officers knew two
No. 07-3134                                               11

black men were involved in a shooting in broad daylight
in a busy area and that an SUV might be carrying the
fleeing gunman from the area of the shooting near 38th
and Pennsylvania streets. See United States v. Whitaker, 

, 909 (7th Cir. 2008) (concluding reasonable
suspicion existed where 911 center received two calls in
close succession about an altercation at a store and at
the scene officers found vehicles matching the descrip-
tion of one automobile given during one call). As made
clear by Drawn’s second call, 911 operators were in
contact with police on the scene before Smith’s call.
Also, multiple operators were handling the incoming
calls reporting the shooting, and the investigation
was evolving rapidly. Smith’s call described the current
whereabouts of the gunman, and officers had no reason
to disbelieve the information he was providing because
it matched many of the details provided by other callers.
See United States v. Johnson, 

, 543 (7th Cir.
2004) (“With Terry stops relating to vehicles, such as
the present case, the description, proximity of the vehicle
to the suspected criminal activity and the proximity to
the reported crime are two important factors to be con-
sidered in determining reasonable suspicion.”). Officers
needed to respond quickly to this ongoing threat to
public safety, so under the totality of the circumstances,
the officers had reasonable suspicion to stop the Jeep in
which Hampton was riding.


  B. Sufficient Evidence Supported Hampton’s Conviction
  Hampton next claims the district court improperly
denied his motion for judgment of acquittal based on
12                                                    No. 07-3134

insufficiency of the evidence, a decision we review de
novo. United States v. Quilling, 

, 712 (7th Cir.
2001). Hampton argues that the evidence presented at
trial was insufficient because: (1) the government failed
to establish constructive possession by Hampton; and
(2) the testimony offered by Smith and Moore was inade-
quate to allow a reasonable jury to conclude Hampton
actually possessed the gun.
  Hampton bears a heavy burden in making an insuffi-
ciency of the evidence claim. See United States v.
Blanchard, 

, 1154 (7th Cir. 2008). We review
the evidence at trial in the light most favorable to the
government and “will overturn a conviction based on
insufficient evidence only if the record is devoid of evi-
dence from which a reasonable jury could find guilt
beyond a reasonable doubt.” United States v. Severson, 

, 688 (7th Cir. 2009) (internal quotation marks
and citation omitted).
  In order to sustain a conviction under 18 U.S.C.
§ 922(g)(1), the government needed to prove Hampton
had either actual or constructive possession of the gun.2

. Actual possession occurs when a
defendant “knowingly maintains physical control over
an object.” United States v. Stevens, 

, 965 (7th



2
  The government also needed to prove Hampton had a prior
felony conviction and that the firearm traveled in or affected
interstate commerce, facts to which Hampton stipulated
before the trial. See § 922(g)(1); see also United States v. Rogers,

, 202 (7th Cir. 2008).
No. 07-3134                                                13

Cir. 2006). A defendant constructively possesses an item
if he has the power and the intent to exercise dominion
or control over the object, either directly or through others.
United States v. Thomas, 

, 636 (7th Cir. 2003).
Constructive possession may be sole or joint, see United
States v. Morris, 

, 1014 (7th Cir. 2003), but
mere proximity to the object alone is not enough to
prove knowledge of the item, see 

.
The government must “establish a nexus between the
accused and the contraband, in order to distinguish the
accused from a mere bystander.” 

(citation omitted). The prosecution may prove actual or
constructive possession by direct or circumstantial evi-
dence. See 

.
  Hampton argues that the government only proved
his mere proximity to the gun. Hampton attacks the
witnesses’ testimony because Smith claimed to have seen
Hampton with a black gun, while Moore and the indict-
ment stated Hampton’s gun was chrome. Hampton argues
that Moore’s testimony was incredible as a matter of law
and challenges whether Moore actually saw what he
claimed to have seen because he was twenty-two floors
above the scene. Hampton asserts that Moore described
someone shooting at a building that showed no signs of
bullet holes and that officers found bullet holes in
the Nissan Murano which was located in the opposite
direction from which Moore described seeing the
suspect shoot.
  The government presented sufficient evidence to
show both constructive and actual possession of the gun.
Police recovered two guns from the Jeep in which
14                                              No. 07-3134

Hampton was riding—a chrome Smith & Wesson near
the rear seat and a black pistol under the seat of driver,
Justin Gray. At trial, officers testified that Hampton
emerged from the rear passenger seat of the vehicle on
the driver’s side and that the Smith & Wesson was
found within Hampton’s reach based on where he was
seated in the vehicle. See United States v. Wetwattana,

, 283-84 (7th Cir. 1996) (constructive possession
found when evidence showed that handgun was
accessible and within defendant’s reach and control).
And, as discussed in more detail below, the government
also established a nexus between the gun and Hampton
through witness testimony that Hampton was holding a
gun before he entered the Jeep. See 

.
  Even if we accept Hampton’s position that the govern-
ment’s case for constructive possession was weak, the
prosecution provided ample evidence to demonstrate
actual possession. Both Smith and Moore described
seeing Hampton holding a gun, and Moore testified that
he saw Hampton place the gun in his waistband before
he entered a white SUV. See United States v. McNeal,

, 121 (7th Cir. 1990) (circumstantial evidence
was sufficient to establish that defendant knowingly
possessed gun found in his car after police heard shots
and then saw defendant’s car traveling at high speed
from direction where shots were fired). But see United
States v. Chairez, 

, 825 (7th Cir. 1994) (no con-
structive possession where government presented no
evidence that defendant ever carried the gun and only
offered evidence that defendant was a passenger in the
car). We are not swayed by Hampton’s argument that
Smith described seeing Hampton with a black gun, while
No. 07-3134                                                   15

Moore testified he saw the shooter with a silver one.
Although it is possible Smith was incorrect about the
color of the weapon, he never expressed any doubt that
Hampton held a gun in his hand before being picked up
by the Jeep’s driver. Moreover, our role is not to
reconcile inconsistencies in the witnesses’ testimony.
Hampton’s attacks on Smith and Moore are merely an
attempt to have us reweigh the evidence, something we
may not do because it is the job of the jury to determine
the credibility of the witnesses and the veracity of their
stories. Hampton’s attorney had the opportunity to
cross-examine both Moore and Smith. Indeed, Moore
admitted on cross-examination that he could not
describe the people or objects pictured in photos taken
by the defense from his vantage point on the day of the
incident, and although Moore was able to describe what
Hampton wore the day of the shooting, the district court
wisely barred Moore from making an in-court identifica-
tion of Hampton because of his distance from the scene.
Despite the holes the defense poked in the witnesses’
stories, the jury chose to believe their testimony, and
we cannot disturb its determinations. United States v.
Rollins, 

, 835 (7th Cir. 2008) (“It is up to the jury
to weigh the evidence and determine the credibility of the
witnesses; we do not second-guess the jury’s assessment of
the evidence.”). We, therefore, reject Hampton’s sufficiency
of the evidence challenge.


  C. Criminal Recklessness Conviction Not a Violent Felony
  The district court sentenced Hampton under the ACCA
after determining that Hampton had committed three
16                                                No. 07-3134

“violent felon[ies]” within the meaning of 18 U.S.C.
§ 924(e)(2)(B); see also U.S.S.G. § 4B1.4(a). At sentencing,
Hampton argued that one of his prior convictions, an
Indiana conviction for residential entry, did not qualify
as a predicate felony under the ACCA. Relying on United
States v. Gardner, 

, 1024 (7th Cir. 2005), which
held Indiana’s offense of residential entry is a “crime
of violence” under § 4B1.2(a) of the United States Sen-
tencing Guidelines because residential entry “entails an
entry into a residence without permission and presents
the same risk [as burglary] of encountering an occupant,”
the district court rejected this argument. However, after
Hampton’s sentencing, the Supreme Court decided
Begay v. United States, 

(2008), which shed
new light on applying recidivist sentencing enhance-
ments. Now, Hampton argues that post-Begay, residential
entry no longer qualifies as a “violent felony,” and that he
should be resentenced. We review de novo a district
court’s determination that a prior conviction is a “violent
felony.” See United States v. Smith, 

, 783 (7th
Cir. 2008).
  The ACCA states that:
     (B) the term “violent felony” means 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, or extortion, involves
        use of explosives, or otherwise involves
No. 07-3134                                              17

        conduct that presents a serious potential
        risk of physical injury to another[.]
18 U.S.C. § 924(e)(2). In 1996, Hampton was convicted
under Indiana’s residential entry statute, which provides
that: “[a] person who knowingly or intentionally breaks
and enters the dwelling of another person commits resi-
dential entry, a Class D felony.”
Ind. Code § 35-43-2-1.5. Because residential entry
does not have an element of use of physical force as
required to fall under subsection (i) of § 924(e)(2)(B) and
is not among the listed offenses in subsection (ii), we
must analyze the offense under the residual clause of
subsection (ii) that captures crimes involving “conduct
that presents a serious potential risk of physical injury
to another.”
  We turn first to Begay, in which the Supreme Court
examined the ACCA provision that imposes a fifteen-year
mandatory minimum sentence upon felons who unlaw-
fully possess a firearm and who have three or more
previous convictions for certain drug crimes or “violent
felon[ies].” 

(citing 18 U.S.C.
§ 924(e)(1)). The Court determined that a defendant’s
prior conviction for driving under the influence of
alcohol (“DUI”) did not constitute a “violent felony” under
the Act’s definition. 

The Court found that
DUI, in order to be a “violent felony,” must fall within the
scope of the residual clause of other crimes involving a
serious potential risk of physical injury to another. 

The Court concluded that DUI falls outside of the
scope because it is too unlike the ACCA’s listed offenses
18                                              No. 07-3134

and reasoned that the examples given were limited to
“crimes that are roughly similar, in kind as well as in
degree of risk posed, to the examples themselves.” 

The Court explained that DUI differed from
the enumerated offenses because “the listed crimes all
typically involve purposeful, violent and aggressive
conduct,” and the DUI statute was more like a strict
liability offense. 

(internal quotation marks
omitted).
  In light of these principles, we now turn to whether
the crime of residential entry in Indiana meets the defini-
tion of a “violent felony” under the residual clause. In
doing so, we must look to the statutory definition of
residential entry and not the underlying facts of
Hampton’s prior conviction. See Chambers v. United States,

, 690 (2009); Taylor v. United States, 

, 600 (1990). We note that although the offense of
residential entry is listed in the same chapter as burglary
in the Indiana Code, residential entry does not meet the
definition of a generic burglary because residential entry
does not require the intent to commit a felony therein.
See 

. However, the requirement
that one must intend to commit a felony inside the home
in order to be convicted of burglary is not dispositive.
The real inquiry under the residual clause is whether
the offense prohibits conduct that “presents a serious
potential risk of physical injury to another.” See 

n.9 (“The Government remains free to argue that any
offense—including offenses similar to generic bur-
glary—should count towards enhancement as one
that ‘otherwise involves conduct that presents a serious
No. 07-3134                                               19

potential risk of physical injury to another’ under
§ 924(e)(2)(B)(ii).”). We conclude that residential entry is
similar in risk to the enumerated offense of burglary
because both create a substantial risk that if the offender
is confronted by someone inside the home, violence will
ensue. See United States v. Spells, 

, 752 (7th
Cir. 2008) (fleeing from an officer in a vehicle qualifies as
a “violent felony” because statute requires knowing and
intentional conduct and because of the risk of danger
posed to nearby bystanders and officers); see also United
States v. Scoville, 

, 1180 (10th Cir. 2009)
(prior convictions for third-degree burglary, which pro-
hibited trespassing in an occupied structure or habitation
with the purpose of committing any criminal offense or
misdemeanor, qualified as a “violent felon[ies]” because
“the risk posed is similar to that of generic burglary”).
Indeed, when pressed at oral argument, Hampton’s
counsel could not give an example of a residential entry
that is less likely to precipitate violence than a burglary.
Moreover, residential entry constitutes the type of inten-
tional conduct that Begay requires—the statute itself
requires “knowingly or intentionally” breaking and
entering into someone’s home. Ind. Code § 35-43-2-1.5;
see also 

. Additionally, the act of
intentionally breaking into another person’s home, re-
gardless of the unwanted intruder’s intention once
inside, is inherently aggressive and creates a serious risk
that the homeowner may resort to violence to defend
himself or his loved ones. “The main risk of burglary
arises not from the simple physical act of wrongfully
entering another’s property, but from the possibility that
20                                              No. 07-3134

an innocent person might confront the burglar during
the crime.” James v. United States, 

, 194 (2007)
(holding that attempted burglary qualifies as a “violent
felony” under the ACCA). For these reasons, residential
entry qualifies as a “violent felony” within the meaning
of the ACCA.
  Although we conclude that residential entry qualifies
as a predicate violent felony, our inquiry does not end
there. Upon reviewing the record, we discovered that one
of Hampton’s other prior convictions, an Indiana convic-
tion for criminal recklessness, similarly presents a Begay
problem. At sentencing, the district court relied on three
of Hampton’s prior felony convictions to sentence him
as an armed career criminal—resisting law enforcement,
residential entry and criminal recklessness, a class D felony
under Indiana Code § 35-42-2-2. Neither of the parties
identified Hampton’s 1992 conviction for criminal reck-
lessness as an issue in the district court or on appeal. But,
until we decided otherwise in United States v. Smith, a case
issued after Hampton was sentenced, a conviction in
Indiana for criminal recklessness served as a predicate
violent felony under the ACCA. 

, 787 (7th
Cir. 2008); United States v. Jackson, 

, 633 (7th
Cir. 1999) (Indiana conviction for criminal recklessness
qualified as “crime of violence”). Our recent post-Begay
precedent has further illuminated the proper analysis
for determining whether a prior conviction qualifies for
a recidivist enhancement. See United States v. Woods, 

, 401 (7th Cir. 2009) (reiterating Smith’s holding);
see also United States v. High, 

, 430 (7th Cir.
No. 07-3134                                               21

2009) (plain error occurs if a district court incorrectly
classifies a defendant’s prior conviction as a violent
felony).
  We asked both parties to file statements of position to
address how Smith and Woods applied to the criminal
recklessness conviction relied on by the district court to
sentence Hampton as an armed career criminal. The
government contends that Hampton has waived this
issue, thus precluding our review. Waiver however,
requires the intentional relinquishment or abandonment
of a known right. United States v. Sumner, 

,
537 (7th Cir. 2001). Begay, Chambers, Smith, and Woods
were all decided after Hampton was sentenced, and all
but Begay were decided after Hampton’s opening brief
was filed. We construe waiver principles liberally in
favor of defendants, 

so here requires
finding that Hampton has forfeited, rather than waived,
this issue. Counsel’s decision not to pursue this issue
was not intentional. Neither party noticed the prob-
lematic reliance on the criminal recklessness conviction
as a basis for enhancement, and Hampton never affirma-
tively waived the argument. This case is not like United
States v. Foster, 

, 815-16 (7th Cir. 2009), where
defense counsel at oral argument affirmatively waived
any argument that a prior Indiana criminal recklessness
conviction was not a crime of violence. Hampton
certainly did not waive it in this court, and there is no
evidence in the record that Hampton waived the issue
in the district court.
  The government concedes that if there was no waiver
a remand would be necessary, and we agree. Forfeiture,
22                                               No. 07-3134

the failure to make a timely assertion of a right, permits
plain error review. 

. In light of
Begay and its progeny, the district court committed plain
error when it enhanced Hampton’s sentence based on
the determination that criminal recklessness in Indiana
constituted a violent felony under the ACCA. Without
Hampton’s criminal recklessness conviction, he does not
have the requisite number of felony convictions to
qualify for the sentence enhancement. Hampton’s classifi-
cation as an armed career criminal subjected him to a
statutory minimum sentence of fifteen years and also
increased his offense level under the Guidelines from
Level 28 to Level 34. See 18 U.S.C. § 924(e)(1); U.S.S.G.
§ 4B1.4. So, we remand his case for resentencing. Cf.
Greenlaw v. United States, 

, 2566 (2008) (“This
Court has indeed noticed, and ordered correction of,
plain errors not raised by defendants, but we have done
so only to benefit a defendant who had himself petitioned
the Court for review on other grounds.”); DeRoo v. United
States, 

, 926-27 (8th Cir. 2000) (raising, sua
sponte, that prior conviction did not count as predicate
offense under ACCA and remanding for resentencing).


                    III. CONCLUSION
  Therefore, we A FFIRM Hampton’s conviction, but
V ACATE his sentence and R EMAND his case for
resentencing.



                            11-4-09