U.S.A. v. Hoults

• Citation: 240 F.3d 647
• Decision Date: 15 February 2001
• Docket Number: No. 00-3257,00-3257
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Tierney M. Hoults, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 647

240 F.3d 647 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Tierney M. Hoults, Defendant-Appellant.

No. 00-3257

In the United States Court of Appeals For the Seventh Circuit

Argued January 31, 2001

Decided February 15, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 3:00CR30039-001--William D. Stiehl, Judge.

Before Bauer, Coffey, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

The consequences of being deemed a career offender for purposes of section 4B1.1 of the U.S. Sentencing Guidelines are grave: the defendant automatically is assigned a criminal history category of VI, and the offense level is typically increased. This case concerns the requirement for career offender status of "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. sec. 4B1.1. Tierney Hoults claims that the district court should not have characterized one of his prior felony convictions as a "crime of violence," and that without this error, he was not a career offender for guideline purposes. We find Hoults's argument to be well taken, and we therefore vacate the sentence and remand for resentencing.

I

Hoults was convicted after a jury trial of distributing cocaine base, or crack, in violation of 21 U.S.C. sec. 841(a)(1). The issue before us arose in conjunction with the sentencing proceedings that followed. The presentence report recommended that Hoults should be sentenced as a career offender, based in part on a 1995 Illinois conviction for burglary in Hoults's record. The probation officer reasoned that this conviction was for a "crime of violence" within the meaning of U.S.S.G. sec. 4B1.2(a), which defines this term for purposes of sec. 4B1.1 as follows:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that- -

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) 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.

The government agreed with this recommendation, both on the ground that the 1995 Illinois conviction was burglary of a "dwelling," and on the broader ground that in any event it presented a "serious potential risk of physical injury" to another.

Hoults contested this interpretation of the conviction. He pointed out that the amended information, to which he had pleaded guilty, charged only that he had committed the offense of "BURGLARY--in that said defendant knowingly and without authority entered the Building of Gay R. Harris, located at 1112 Apartment 3 Cherokee, Collinsville, Madison County, Illinois, with the intent to commit therein a theft, in violation of 720 ILCS 5/19-1 . . . ." This is not how the information had initially read. Visible deletions and additions written by hand show that the word "RESIDENTIAL" had originally preceded the word "BURGLARY" in the information, that it had originally said "entered the dwelling place of Gay R. Harris," and that it had originally charged Hoults with violating 720 ILCS 5/19-3. The effect of the changes (no doubt inspired by some kind of plea agreement, although we do not know that and it is unimportant for our purposes) was to reduce the charge against Hoults from residential burglary, a Class 1 felony, to general burglary of a building, a Class 2 felony.

Notwithstanding these deliberate changes to the charge--unmistakable on the face of the information--the district court concluded that even the amended information demonstrated that Hoults had committed burglary of a dwelling, since it used the word "apartment." This led the court also to conclude that because the burglary occurred at an "apartment," the offense posed a serious potential risk of physical injury to others. On this basis, the court decided that the 1995 Illinois conviction qualified for purposes of sec. 4B1.1 and that Hoults was a career offender. This made a significant difference to the sentencing range Hoults faced. Had the district court found that the Illinois conviction was not for a "crime of violence" under the guidelines, Hoults would not have qualified for career offender treatment, his offense level would have been 26, his criminal history category IV, and the applicable range 92-115 months. As it was, Hoults of course had a criminal history category of VI, and a total offense level of 34, for a range of 262-327 months.

The court sentenced him at the bottom of that range, to 262 months.

II

The question whether the district court erred in sentencing Hoults as a career offender is one of law, which we review de novo. United States v. Nelson, 143 F.3d 373, 374 (7th Cir. 1998). There are, in a sense, two questions here: first, did the district court follow the correct procedures in categorizing Hoults's prior Illinois conviction, and second, was that conviction a "crime of violence" for purposes of U.S.S.G. sec.sec. 4B1.1 and 4B1.2? With respect to the procedural question, it is firmly established in this circuit that the court was required to confine its inquiry to the face of the charging instrument--here, the information. See United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc). Both the facts contained in the charging document and the statutory definition of the charged offense are fair game. See id.; United States v. Jackson, 177 F.3d 628, 632 (7th Cir. 1999). Here, as we explain below, we are concerned that the district court based its decision on assumed additional facts that do not appear on the record. Without those additional facts, Hoults's prior offense takes on a different character.

The task before both the sentencing court, and now this court on review, is strictly limited to deciding whether any facts in the information to which Hoults pleaded guilty reveal his offense to be a "crime of violence," or if that is inherent in the statutory definition of the offense with which he was charged. We can dismiss immediately the idea that Hoults committed an offense included within the first part of the definition of "crime of violence" under sec. 4B1.2(a)(1), because it is undisputed that Hoults's burglary did not have as an element the use (or attempted or threatened use) of force against the person of another. The question instead is whether the face of the information shows that he either committed "burglary of a dwelling," which the guidelines presume is a crime of violence, or if his conduct otherwise presented a "serious potential risk of physical injury to another." See sec. 4B1.2(a)(2).

We conclude that the information does not support such a conclusion. The statutory provision that Hoults ultimately admitted violating through his guilty plea was 720 ILCS 5/19-1, which reads:

[a] person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft.

This is the general Illinois burglary statute. At the time of Hoults's offense, it was clear that the use of the term "building" excluded a dwelling, because the statute said exactly that: "[t]his offense shall not include . . . the offense of residential burglary as defined in Section 19-3 hereof." 720 ILCS 5/19-1. See also People v. Childress, 633 N.E.2d 635, 647 (Ill. 1994); United States v. Hicks, 122 F.3d 12 (7th Cir. 1997) (recognizing difference between residential burglary under 720 ILCS 5/19-3 and general burglary under 720 ILCS 5/19-1). Later, the Illinois legislature deleted that sentence, and effective June 1, 2001, the residential burglary statute will expressly provide that residential burglary "includes the offense of burglary as defined in Section 19-1." But those changes do not affect Hoults, as the government concedes.

In fact, this case is quite similar to Hicks. There too the defendant had originally been charged with residential burglary under 5/19-3, but the information was later amended pursuant to a plea agreement to reduce the charge to burglary of a building under 5/19-1. See 122 F.3d at 12. The district court, relying on information in the PSR indicating that the buildings the defendant burglarized were in fact dwellings, decided that the offense was the burglary of a dwelling for purposes of sec. 4B1.2 (a)(2). Id. This court reversed, admonishing the district court to look only to the allegations of the charging document when characterizing the offense.

The same problem is present here. The district court, perhaps...