550 F. App'x 731

HILL, Circuit Judge,
dissenting:
I believe that the trend among the courts to resurrect the statute of conviction as a valid crime of violence under the residual clause, when it has been specifically disqualified as a crime of violence under the elements or enumerated clauses, is error. It is one thing to determine that a crime is one of violence under the residual clause because it poses a significant risk of physical injury when that crime has not previously been disqualified as a crime of violence under the elements or enumerated clauses. But, in my view, it is quite another thing to hold that a crime that has been specifically disqualified under those clauses — either because its elements are over inclusive and permit conviction for clearly non-violent conduct, or because it is an enumerated crime but allows conviction for non-generic versions of that crime— can still be used to enhance because, under the residual clause, the court can posit circumstances under which its violation might pose a serious risk of physical injury to someone. If this is permitted, then the elements and enumerated clauses have no legal significance. They become mere surplusage, and should be disregarded entirely. In the future, no court should waste its time on any claim that a crime does not qualify as a crime of violence under these clauses. Only claims that a crime does not qualify under the residual clause should be entertained, and even then the outcome cannot seriously be in doubt. Any crime can pose a serious threat of physical injury if we are free to speculate and invent a set of circumstances under which such a risk might arise. There is no principled limit to this exercise. Because I believe such an enterprise violates the constitutional principle that a law must provide notice of what conduct is prohibited or what conduct might be used to significantly enhance a criminal sentence, I respectfully dissent.
. For example, I can imagine that Bernie Madoffs victims might easily have gone berserk and, one or more, attacked him. Thus, felony financial fraud upon a victim, measured by the residual clause, is a crime of violence.

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