110 F.3d 382 (7th Cir. 1996), 95-2367, United States v. Shannon

Docket Nº:95-2367.
Citation:110 F.3d 382
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Defabian C. SHANNON, Defendant-Appellant.
Case Date:September 03, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 382

110 F.3d 382 (7th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Defabian C. SHANNON, Defendant-Appellant.

No. 95-2367.

United States Court of Appeals,Seventh Circuit.

September 3, 1996

Argued Jan. 3, 1996.

Reargued En Banc Dec. 18, 1996.

Decided April 1, 1997.

Rehearing Denied May 23, 1997.

Page 383

Mel S. Johnson (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Mark S. Rosen, Michael Holzman (argued), Rosen & Holzman, Waukesha, WI, for Defendant-Appellant.

Before POSNER, Chief Judge, and CUMMINGS, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD, and EVANS, Circuit Judges.

POSNER, Chief Judge.

The defendant, Defabian Shannon, pleaded guilty in 1995 to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 115 months in prison, and challenges the sentence on several grounds. The panel before which his appeal was argued found merit in only one of his challenges, 94 F.3d 1065 (7th Cir.1996), and we reject the others on the basis of the panel's opinion. By a vote of 2 to 1, the panel held that the district judge had erred in enhancing the defendant's base offense level because of a previous conviction for sexual assault, which the judge classified as a crime of violence. We decided to rehear the case en banc in order to consider the important question of the circumstances in

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which a sexual offense against a minor not involving the use of force is nevertheless a crime of violence within the meaning of the sentencing guidelines.

The normal base offense level for the crime of being a felon in possession of a firearm is 14, but if the defendant has a "prior felony conviction of ... a crime of violence," the base offense level rises to 20. See U.S.S.G. §§ 2K2.1(a)(4)(A), (6). The guidelines define a crime of violence as a state or federal offense punishable by imprisonment for more than a year that either "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1).

In 1992 Shannon had been charged with second-degree sexual assault of a child, a felony under Wisconsin law committed by anyone who "has sexual contact or sexual intercourse with a person who has not attained the age of 16." Wis.Stat. § 948.02(2). The criminal complaint alleged facts that if believed showed that Shannon had committed a forcible rape. But the information filed against him omitted all these facts except the name and the date of birth of the girl and that he had indeed had sexual intercourse (not mere "sexual contact") with her. Shannon was permitted to plead guilty to the information, which means that he admitted only the facts contained in it--intercourse with a girl who we know from the date of birth in the information was 13 years 10 months old at the time of the act. Shannon was 17 years 10 months old when the crime was committed and 19 when he was sentenced to three years in prison for the offense. The maximum sentence for second-degree sexual assault in Wisconsin is 10 years.

Forcible rape is of course a crime of violence, so that if we were permitted to peek behind the information and credit the allegations in the complaint we could affirm the sentence without difficulty. But this course is not open to us. There has never been a judicial finding that the sexual act that Shannon perpetrated upon the 13 year old was forcible rape. The use of force is not an element of second-degree sexual assault, so no finding on the question was necessary for conviction. Nor was there a finding of forcible rape when Shannon was sentenced for sexual assault--on the contrary, the judge said at the sentencing hearing that "you haven't pled to a crime here that requires ... use of force or anything like that." In his federal criminal proceeding Shannon has vigorously contested the allegation of forcible rape and has offered to present evidence that it is false. An evidentiary hearing would be necessary to determine the nature of the rape.

The district judge refused to hold such a hearing. He considered himself bound by the principle, recognized in most circuits including our own, that the characterization of a previous conviction offered to enhance the defendant's federal sentence is to be based on the facts charged in the indictment (or, as here, the information), without a deeper inquiry into the circumstances of the offense. E.g., United States v. Lee, 22 F.3d 736 (7th Cir.1994); United States v. Palmer, 68 F.3d 52 (2d Cir.1995). We are not disposed to abandon this principle, which is contained in the guideline commentary itself, U.S.S.G. § 4B1.2(1), Application Note 2, and which is necessary to avoid greatly complicating sentencing hearings with little offsetting gain. We have deviated from this principle only when it was otherwise impossible to determine the proper classification of the offense under the sentencing guidelines and--a critical condition not satisfied here--the deviation did not require a hearing to resolve contested factual issues. United States v. Sebero, 45 F.3d 1075, 1078 (7th Cir.1995); see also United States v. Spell, 44 F.3d 936, 939 (11th Cir.1995); United States v. Smith, 10 F.3d 724, 733-34 (10th Cir.1993).

It is true that an evidentiary hearing on a defendant's previous conduct is often a part of the sentencing process under the guidelines. We need look no further than the present case; the district judge further increased the sentence after a hearing in which he found that Shannon had committed a murder for which he had not been charged. But in dealing with uncharged conduct there is no

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charging document on which the judge can rely; an evidentiary hearing is unavoidable. Allowing the parties to go behind a charging document could result in an evidentiary hearing in most federal sentencing proceedings--not merely in those in which previous uncharged conduct is brought in to enhance the sentence--because most federal criminal defendants have a criminal record and consideration of that record is a mandatory part of sentencing under the guidelines.

Current uncharged conduct, it is true, is typically rather than just occasionally involved in federal sentencing, because the charge is typically limited to a subset of the defendant's criminal conduct that gave rise to the charge--for example, an ounce of cocaine when he's actually sold a kilo. See U.S.S.G. § 1B1.3 (relevant conduct). But criminal history deals with old, not current, conduct. If the district judge were required to go behind the charging document to determine the defendant's criminal history, the evidentiary burden of exploring the circumstances of old crimes would potentially be borne in every case in which the defendant had a criminal history. It would be a heavy burden not only because of the frequency with which it would have to be borne but also because of the unusual evidentiary difficulties and uncertainties involved in exploring criminal conduct that may have occurred many years ago and in jurisdictions remote from that of the current sentencing. It is not surprising that the guidelines direct the judge, in computing a defendant's criminal history, to give primary attention to his previous convictions. See U.S.S.G. § 4A1.1.

Of course, just as with the uncharged murder, the judge could have based an upward departure on the uncharged forcible rape. U.S.S.G. § 4A1.3(e); United States v. Ruffin, 997 F.2d 343 (7th Cir.1993). But upward departures are exceptional; enhancement on the basis of the defendant's criminal history is automatic. (And under section 4A1.1(f), a prior sentence for a crime of violence is one of the grounds for a mandatory enhancement.) Limiting judicial inquiry in the computation of the defendant's criminal history to the formal charging document thus saves the district judge considerable time in the majority of cases.

The criminal complaint that touched off the sexual-assault proceeding against Shannon might be thought a charging document. The critical difference between it and the information, however, is that the information was the basis of the conviction and sentence and all its allegations were admitted and must be deemed established, while the complaint contains factual allegations that are contested and would require an evidentiary hearing to confirm. We are told that in some states the criminal complaint may be the only charging document. When that is so, the judge might have to determine disputed facts alleged in it, although probably the better alternative, by analogy to the doctrine of collateral estoppel, would be for the judge to consider only the minimum facts required to support the conviction--the facts that must have been found (or admitted) in the earlier proceeding.

Confined as we are to the information, we must decide whether sexual intercourse, not shown or conceded to be forcible, with a 13 year old is a crime of violence within the meaning of the guidelines, an issue of federal law even though the crime is one defined by state law. United States v. Phipps, 68 F.3d 159, 161 (7th Cir.1995). The government argues that any felonious sexual act with a minor should be deemed either to involve force, because the minor is incapable of giving legally recognized consent, or to involve conduct that presents a serious risk of physical injury. (A "risk" is by definition probable not certain, hence potential rather than actual; "potential risk" appears to be a redundancy in the guideline.) An inference of violence from mere unconsented-to...

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