ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

Before the Court is the defendant's objection to the base level offense of 20 in the Pre-Sentence Report. For the reasons that follow, the objection is SUSTAINED; the base offense level should be 14.

Background

On November 14, 2012 Antonio Jones pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).1 Jones faces a maximum penalty of 10 years imprisonment, followed by a 3-year term of supervised release, a $250,000 fine, and a $100 special assessment.

Paragraph 15 of the Pre-Sentence Report assigns Jones a base offense level of 20, noting that the guideline for a Section 922(g)(1) offense is found in U.S. Sentencing Guideline § 2K2.1, and further noting that if the defendant committed any part of the instant offense after sustaining one felony conviction of a crime of violence, the base offense level is 20. Jones objects to being assigned a base level offense of 20; he contends that it should instead be 14 because his prior conviction for firing a gun in the air does not constitute a crime of violence.2

I.

The Sentencing Guidelines ascribe an enhanced base offense level of 20 to a defendant who "committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence...." U.S.S.G. § 2K2.1(a)(4)(A)

Antonio Jones' prior offense for firing a gun in the air is an Ascension Parish conviction under La.R.S. 14:94(A), which criminalizes illegal use of a weapon defined as:

The legal issue presented by the defendant's objection to his base offense level is whether Jones' prior conviction for firing a gun in the air was in law a "crime of violence" within the meaning of the guidelines. He submits that La.R.S. 14:94(A) does not meet the definition for a "crime of violence" and that, instead of assigning a base offense level of 20, he should be assigned a base level of 14 under § 2K2.1(a)(6).3 The Court agrees.

The U.S. Sentencing Guidelines require enhanced sentencing treatment when a defendant has previously been convicted of a "crime of violence." U.S. Sentencing Guideline § 4B1.2(a)4 defines a crime of violence as a prior offense, punishable by imprisonment for more than one year, that

Jones contends that 4B1.2(a)(1) does not apply here because subsection (1) requires that the prior offense must have, as an element, that the force be arrayed "against the person of another". La.R.S. 14:94(A) lacks this element. And the government concedes that the defendant correctly points out that La.R.S. 14:94(A) may be violated by discharging a firearm in the proximity of others (thus, satisfying the "foreseeable" element of that statute) without directing that use "against the person of another" as required by the guidelines.5 Because La.R.S. 14:94(A) does not mandate as an essential element "the use, attempted use, or threatened use of physical force against the person of another", U.S.S.G. § 4B1.2(a)(1) is not implicated under the facts presented. See Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1584, 170 L.Ed.2d 490 (2008)(New Mexico DUI statute at issue "nowhere `has as an element the use, attempted use or threatened use of physical force against the person of another'"; accordingly, the 16 level enhancement did not apply);6 see also United States v. Alfaro, 408 F.3d 204-207 (5th Cir.2005), cert. denied, 546 U.S. 911, 126 S.Ct. 271, 163 L.Ed.2d 243 (2005) (in an immigration case, the same element was required for a prior conviction to qualify for enhancement; the court held that shooting into an occupied building does not satisfy the element requiring proof of "the use, attempted use, or threatened use of physical force against the person of another").

It is likewise clear that La.R.S. 14:94(A) does not involve the enumerated offenses of "burglary of a dwelling, arson, or extortion, involves use of explosives"; thus, the first clause of U.S.S.G. § 4B1.2(a)(2) is obviously not implicated. The true dispute — to the extent there is one — is whether Jones was convicted of a crime of violence under the "or otherwise ..." language of subsection (2), the residual clause; that is, whether Jones' conviction under La.R.S. 14:94(A) "otherwise involves conduct that presents a serious potential risk of physical injury to another" within the meaning of U.S.S.G. § 4B1.2(a)(2). Jones submits that it does not. The Court, bound by a rather anemic case literature, agrees.

In order for the illegal discharge of a weapon conviction to qualify as a crime of violence, it must be condemned under the "otherwise ..." clause of (a)(2). The Supreme Court has instructed, "[the] presence [of the examples that precede the `otherwise' clause] indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another'"; thus, the Supreme Court instructs, the statute must be read "as limiting the crimes that [(a)(2)] covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves." See Begay, 128 S.Ct. at 1584-85.

In Begay, the Supreme Court considered whether New Mexico's driving under the influence statute constituted a crime of violence. Finding that it did not, the Supreme Court observed:

Id.

Firing a gun in the air, though potentially as deadly as an inebriated driver on the road, Jones submits, is, like drunk driving, insufficiently similar to and not as regularly risky as the enumerated offenses listed in (a)(2).7 See Begay, 128 S.Ct. at 1584-85. Indeed, firing in the air, without any statutory requirement that a non-participant be close by, the defendant contends, is less dangerous than the listed offenses. Cf. United States v. Alexander, 609 F.3d 1250 (11th Cir.2010)(holding that Florida statute that criminalized the discharge of a weapon if it was both fired from a vehicle and within 1,000 feet of another person was a "crime of violence", and distinguishing the statute from danger present whenever a gun is fired in public).8 There must be additional statutory elements, Jones submits, that aggravate the danger of the circumstances of the firing a gun to a level presented by the enumerated crimes. The Court agrees. A conviction for illegal use of a weapon under La.R.S. 14:94(A) does not in the text "insist on purposeful, violent, and aggressive conduct"; instead, it arguably is more comparable to a crime imposing strict liability because it criminalizes conduct, as the Supreme Court points out, that does not require the offender to have any criminal intent.

Finally, it is worth noting that the government does not meaningfully dispute Jones' position; in fact, the government draws attention to United States v. Jack, 352 Fed.Appx. 919, 920 n. 1 (5th Cir.2009) as potentially supportive of Jones' position here.

In Jack, the Fifth Circuit did not reach the question of whether La.R.S. 14:94 is a crime of violence for guideline purposes. However, the court noted that, because it appeared likely that the defendant (who was sentenced to six years imprisonment) was convicted under both La.R.S. 14:94(A) and (E), such combined conviction would likely be a crime of violence. In concluding that "[r]ead together, subsections A and E constitute a crime that `presents a serious potential risk of physical injury to another'", the Fifth Circuit found it significant that subsection E added the additional element that the firearm discharge was done with the "intent to injure, harm, or frighten another human being".9 Significantly, that intent is not an element of La.R.S. 14:94(A), which is the only crime for which Jones was previously convicted.

Accordingly, the defendant's objection to the assigned base level offense is SUSTAINED.