U.S. v. Lee

• Decision Date: 25 April 1994
• Docket Number: No. 93-2910,93-2910
• Citation: 22 F.3d 736
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory L. LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 736

22 F.3d 736

UNITED STATES of America, Plaintiff-Appellee, v. Gregory L. LEE, Defendant-Appellant.

No. 93-2910.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1994.

Decided April 25, 1994.

Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, John G. McKenzie, Asst. U.S. Atty. (argued), Rockford, IL, for plaintiff-appellee.

Arthur R. Swanson (argued), Rockford, IL, for defendant-appellant.

Before CUMMINGS, CUDAHY and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

In March 1993, defendant pleaded guilty to two counts of knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C. Sec. 922(g). ¹ In July 1993, defendant was sentenced to 52 months in prison to be followed by 3 years of supervised release. This sentence was premised on a determination that the base offense level under the United States Sentencing Guidelines ("Sentencing Guidelines"), given the defendant's prior criminal history, was 20. Defendant appeals this determination and the resulting sentence.

Background

In his plea agreement, defendant acknowledged that in 1975 he was convicted in Wisconsin of the crime of "theft from the person of another," Wis.Stat.Ann. Secs. 943.20(1)(a), (3)(d)(2). ²

Under the Sentencing Guidelines, the base offense level for the crime of possession of a firearm by a felon is dictated in part by the defendant's criminal history. If a defendant has a "prior felony conviction of * * * a crime of violence * * *," U.S.S.G. Sec. 2K2.1(a)(4)(A), his base offense level is 20. A "crime of violence" is defined as a felony 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. Sec. 4B1.2(1). Application Note 2 of Sec. 4B1.2 sets out a three-step inquiry for determining whether a prior conviction should be considered a "crime of violence." Application Note 2 provides that a conviction should be considered a "crime of violence" if either (1) the conviction was for one of the offenses specifically listed in Application Note 2; or (2) the conviction was for an offense that has as an element the use, attempted use, or threatened use of physical force; or (3) the conduct for which the defendant was convicted "presented a serious potential risk of physical injury to another." U.S.S.G. Sec. 4B1.2(1) application note 2. ³

Analysis

The offense of which the defendant was convicted, "theft from the person of another," is neither an offense that has as an element the use or attempted or threatened use of physical force nor is it one of the offenses specifically listed in U.S.S.G. Sec. 4B1.2 application note 2. The question presented to this Court, therefore, is whether the conduct for which defendant was convicted in 1975 "presented a serious risk of physical injury to another."

This issue could be easily resolved if the Sentencing Guidelines permitted consideration of facts contained in the record but not in the actual indictment of which the defendant was convicted. The robbery complaint originally brought against the defendant--but not the "theft from the person of another" information under which he was ultimately convicted--sets out the details of the defendant's crime: according to the victim, she was approached by three men, one of whom "grabbed both her arms and forcibly held them behind her back, while ripping her coat and removing her coin purse * * * " (App. 58), conduct that certainly constitutes a crime of violence.

Application Note 2, however, makes clear that when determining whether an offense "presented a serious potential risk of physical injury to another," a sentencing court should look only to the "conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted * * * " U.S.S.G. Sec. 4B1.2(1) application note 2. The Supreme Court has recently held that the Sentencing Guidelines' Application Notes must be given controlling weight unless they are plainly erroneous or are inconsistent with the Guidelines, United States v. Stinson, --- U.S. ----, ---- - ----, 113 S.Ct. 1913, 1918-1919, 123 L.Ed.2d 598 (1993), and here the Application Notes clearly foreclose the possibility of looking at facts not contained in the count of which the defendant was convicted. This Court's inquiry, therefore, is limited to an analysis of the conduct expressly charged in the count of which a defendant was convicted. ⁴

Other Circuits that have faced this issue have reached the same conclusion. United States v. Joshua, 976 F.2d 844, 856 (3rd Cir.1992) ("[A] sentencing court should look solely to the conduct alleged in the count of the indictment charging the offense of conviction in order to determine whether that offense is a crime of violence under subsection (ii) of the guideline."); United States v. Johnson, 953 F.2d 110, 113 (4th Cir.1991) ("In assessing a particular offense to determine if it is a crime of violence under the 'catchall' provision of U.S.S.G. Sec. 4B1.2[ (1)(ii) ], a sentencing court must confine its factual inquiry to those facts charged in the indictment."); United States v. Fitzhugh, 954 F.2d 253, 255 (5th Cir.1992) ("The sentencing court should consider conduct expressly charged in the count of which the defendant was convicted, but not other conduct that might be associated with the offense."); United States v. Young, 990 F.2d 469, 472 (9th Cir.1993), certiorari denied, --- U.S. ----, 114 S.Ct. 276, 126 L.Ed.2d 226 (The inquiry "must be limited to conduct charged in the indictment or information;" the sentencing court is not free to inquire into specific circumstances surrounding the conviction.).

Moreover, a review of previous versions of the commentary to U.S.S.G. Sec. 4B1.2 and the various amendments made thereto reveal that the Sentencing Commission intended that the inquiry under the "otherwise" clause of Sec. 4B1.2 be limited to an analysis of the facts charged in the relevant indictment or information. Prior to November 1, 1989 the commentary to Sec. 4B1.2 provided that " '[o]ther offenses are covered only if the conduct for which the defendant was specifically convicted meets the [relevant] definition.' " United States v. Terry, 900 F.2d 1039, 1042 (7th Cir.1990) (quoting U.S.S.G. Sec. 4B1.2 application note 1 (1988)). In Terry, this Court interpreted this language as "vesting a sentencing court with the discretion to explore the underlying facts of a prior conviction," id., a view then shared by the Third, Fifth, and Sixth Circuits. United States v. Williams, 892 F.2d 296, 304 (3rd Cir.1989), certiorari denied, 496 U.S. 939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990); United States v. Goodman, 914 F.2d 696, 699 (5th Cir.1990); United States v. Maddalena, 893 F.2d 815, 820 (6th Cir.1989). The Ninth and Eleventh Circuits, however, held that the language of the commentary limited the inquiry to a consideration of the abstract definition of the offense in question. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), certiorari denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991); United States v. Gonzalez-Lopez, 911 F.2d 542, 548 (11th Cir.1990), certiorari denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). In response to this dispute, the Sentencing Commission twice revised the Application Notes: first to provide that " '[o]ther offenses are included where * * * the conduct set forth in the count of which the defendant was convicted * * * presented a serious potential risk of injury,' " United States v. Johnson, 953 F.2d at 113 (quoting U.S.S.G. Sec. 4B1.2 application note 2 (1990)); and then to provide, as it does now, that the court should assess only the "conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted * * *." See generally id. at 112-113 (detailing history of the amendment of the commentary to U.S.S.G. Sec. 4B1.2). The changes made to the commentary to U.S.S.G. Sec. 4B1.2 make clear that a determination of whether an offense "presented a serious risk of physical injury to another" must be confined to an examination of the facts charged in the relevant indictment or information. See United States v. Fitzhugh, 954 F.2d at 254 ("[T]he [Sentencing] Commission has repudiated Goodman and other cases which held that a sentencing court can look beyond the face of the indictment in considering this issue.").

Thus the question of whether the offense for which the defendant was convicted in 1975 constituted a "crime of violence" for the purposes of U.S.S.G. Secs. 2K2.1(a)(4)(A) and 4B1.2 turns on whether the conduct set forth in the information on which his conviction is based describes conduct that "presented a serious potential risk of injury to another." It plainly does not. The 1975 information merely provides that defendant

did intentionally and feloniously take and carry away movable property from the person of [the victim] * * *, having a value less tha[n] $2,500, without the consent of [the victim] and with intent to deprive [the victim] permanently of possession of said property * * *. ⁵

Unlike the robbery complaint that the 1975 information superseded, there is no indication here that the defendant used force or threat of force to accomplish his ends. The information contains no mention of the victim's claim that force was used against her, a detail that if included would have clearly changed the outcome here. And absent any affirmative indication that the defendant engaged in conduct which presented a serious risk of physical injury, this Court cannot conclude that defendant's 1975 conviction was for a "crime of violence."

In reaching this conclusion we reject the contention that "theft from the person" by its nature presents a "serious potential risk of...