U.S. v. Coleman

• Decision Date: 26 October 1994
• Docket Number: No. 94-1428,94-1428
• Citation: 38 F.3d 856
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewellis COLEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 856

38 F.3d 856

UNITED STATES of America, Plaintiff-Appellee, v. Lewellis COLEMAN, Defendant-Appellant.

No. 94-1428.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1994.

Decided Oct. 26, 1994 ^*.

Barry Rand Elden, Asst. U.S. Atty., John J. Tharp (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Michael B. Brohman (argued), Stuart M. Gimbel, Kamensky & Rubinstein, Lincolnwood, IL, for defendant-appellant.

Before BAUER and FLAUM, Circuit Judges, and FOREMAN, District Judge. ^**

FLAUM, Circuit Judge.

Lewellis Coleman ("Defendant") argues that he was wrongly sentenced as a career offender under the United States Sentencing Guidelines following a guilty plea to residential burglary on federal land. He contends that the burglary was not a crime of violence and that he did not have two prior felony convictions, as required by the Guidelines. The defendant further argues that his sentence violates his Fifth and Eighth Amendment rights under the United States Constitution. We find that the district court properly sentenced Coleman as a career offender and thus affirm.

I.

Lewellis Coleman broke into an apartment on the Great Lakes Naval Training Center on November 19, 1992, by prying open a locked door with a butter knife. At the time, he was under the influence of crack cocaine and was looking for money to buy more. In the house he found and stole more than $8,200 worth of jewelry. While Coleman was still inside, however, the occupant returned home. When he heard her, he jumped out of a second story window and escaped. He pawned the jewelry for $120 and bought some crack. After his arrest, Coleman took police to the pawn shop, where they recovered $5,300 worth of the stolen jewelry.

On September 10, 1993, the defendant pled guilty to one count of residential burglary in violation of the Assimilative Crimes Act, 18 U.S.C. Sec. 13, and in violation of Ill.Rev.Stat., ch. 38, Sec. 19-3 (now 720 ILCS 5/19-3 (1993)). The Assimilative Crimes Act provides that the federal government will borrow the elements of a state crime when it has no applicable statute of its own, as with residential burglary. The federal government does have sentencing guidelines, however, under which Coleman was sentenced as a career offender based on two prior felony convictions, permitting a range of punishment of 120 to 150 months. Judge Holderman sentenced the defendant to 120 months incarceration, to be followed by 3 years of supervised release.

Coleman's two prior felony convictions resulted from acts he committed at age 17. On August 9, 1989, and again on December 13, 1989, he was arrested and charged with possession of a controlled substance. On January 18, 1990, the Cook County State's Attorney's Office swore out an information against Coleman, converting the December 13 possession charge to manufacture of/delivery of/possession with intent to deliver a controlled substance. On January 22, 1990, that office swore out an information charging Coleman with manufacture of/delivery of/possession with intent to deliver a controlled substance relating to his conduct on August 9. He pled guilty to these more serious charges and was sentenced to 18 months probation for each of them, to run concurrently.

The defendant challenges his sentence as a career offender on several grounds. First, he argues that the residential burglary was not a crime of violence. He also argues that his two prior convictions were related and, therefore, only count as one prior felony conviction. Coleman next contends that his two prior convictions, for acts committed while he was under 18 years of age, do not count because he was not sentenced to more than 13 months incarceration for those crimes. Finally, he argues that his sentencing as a career offender violated his due process rights and constitutes cruel and unusual punishment.

II.

The United States Sentencing Guidelines ("Guidelines") state that a criminal is a career offender if "(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. Sec. 4B1.1. At the time he committed the residential burglary Coleman was 20 years old. He contends that the other criteria are not met in his case.

A.

Coleman argues that the residential burglary was not a crime of violence because Illinois does not consider the offense a "forcible felony." People v. Edgeston, 243 Ill.App.3d 1, 183 Ill.Dec. 196, 201, 611 N.E.2d 49, 54 (1993). Coleman contends that the state's characterization should govern because the elements of the state crime were borrowed under the Assimilative Crimes Act. 18 U.S.C. Sec. 13. While that is true, the defendant was convicted of a federal crime, for which the Guidelines govern sentencing. See United States v. Young, 916 F.2d 147, 150 (4th Cir.1990); United States v. Leake, 908 F.2d 550, 553 (9th Cir.1990); United States v. Garcia, 893 F.2d 250, 254 (10th Cir.1989). See also U.S.S.G. Sec. 2X5.1 Background (explicitly mentioning assimilated crimes as those which must be analogized to other offenses for Guideline purposes). Thus, Illinois' characterization of the felony is irrelevant.

U.S.S.G. Sec. 4B1.2, which defines the terms used in Sec. 4B1.1, the career offender provision, clearly states that " 'crime of violence' means any offense under federal or state law punishable by imprisonment for a term exceeding one year that.... (b) is burglary of a dwelling ..." The defendant makes two arguments in the face of this clear language. He first contends that "burglary of a dwelling" applies only to the federal crime of residential burglary on Indian land, and not to crimes borrowed from state law under the Assimilative Crimes Act. This contention overlooks the fact that Sec. 4B1.2 specifically refers to "any offense under federal or state law." U.S.S.G. Sec. 4B1.2 (emphasis added). The guidelines show no indication that enumerated crimes refer only to federal offenses and we have assumed the opposite in the past. See United States v. Pinto, 875 F.2d 143, 144 (7th Cir.1989). In any event, the defendant was convicted of a federal crime based on conduct which amounted to burglary of a dwelling, with state law supplying the elements of the crime. We find that Sec. 4B1.2 designates Coleman's offense as a crime of violence.

Coleman further claims that notwithstanding the enumeration of "burglary of a dwelling" as a crime of violence, the District Court still had to focus on the circumstances of his offense, which did not present any real danger. As support for this position, he points to Application Note 2 of Sec. 4B1.2, which states that "the conduct of which the defendant was convicted is the focus of the inquiry." However, such an inquiry is only made for non-enumerated crimes. Enumerated crimes, like burglary of a dwelling, are conclusively "crimes of violence," regardless of their circumstances. See United States v. Lee, 22 F.3d 736, 738 (7th Cir.1994); United States v. Fredette, 15 F.3d 272, 277 (2d Cir.) ("When a crime is designated a crime of violence under Sec. 4B1.2 the district court must accept the designation without scrutinizing the conduct underlying the prior conviction."), cert. denied, --- U.S. ----, 114 S.Ct. 2119, 128 L.Ed.2d 677 (1994); United States v. Smith, 10 F.3d 724, 731-33 (10th Cir.1993). Cf. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990).

B.

Next, the defendant asserts that he did not have two prior felony convictions, as required by the career offender provision of the guidelines. He makes this argument in two ways: that his two prior convictions were related crimes not separated by an intervening arrest; and that they cannot be used against him because he was less than 18 years old at the time and was not sentenced to prison for more than 13 months for either of them.

Related sentences are treated as only one conviction. Sentences are considered related if they were consolidated for trial or sentencing, unless separated by an "intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." U.S.S.G. Sec. 4A1.2 Application Note 3.

The defendant argues both that there was no intervening arrest and that his prior convictions were consolidated for sentencing. The state court did not formally order consolidation until August 2, 1994, nunc pro tunc March 12, 1990. The defendant and the government dispute whether this order is properly part of the case on appeal. The parties also dispute whether the trial court's actions at the original sentencing constituted consolidation, even absent a formal order. ¹ However, because we find that the District Court correctly decided that there was an intervening arrest, we need not decide these issues.

Coleman was arrested twice in 1989, four months apart, and both times was originally charged with possession of a controlled substance. No one disputes that had he been convicted of these charges, they would not count as prior felony convictions under the career offender provision. See U.S.S.G. Sec. 4B1.2. However, the Cook County State's Attorney's Office later charged the defendant with more serious offenses, to which he pled guilty. He does not deny that these convictions constitute prior felony convictions under Sec. 4B1.1. However, the defendant contends that the offenses are related (for this purpose we will assume that they were consolidated for sentencing) because there was no intervening arrest. Coleman rests this argument on the fact that he was not arrested between January 18 and January 22, when the more serious charges were filed.

The defendant places too much weight on the arresting...