U.S. v. Rutherford, 94-3130

• Citation: 54 F.3d 370
• Decision Date: 06 June 1995
• Docket Number: No. 94-3130,94-3130
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawn D. RUTHERFORD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 370

54 F.3d 370

UNITED STATES of America, Plaintiff-Appellee, v. Shawn D. RUTHERFORD, Defendant-Appellant.

No. 94-3130.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 1995.

Decided May 2, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied June 6, 1995.

Robert T. Coleman, Asst. U.S. Atty. (argued), Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

Lee T. Lawless (argued), Office of Federal Public Defender, St. Louis, MO, for defendant-appellant.

Before CUMMINGS, EASTERBROOK, and ROVNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Shawn D. Rutherford pled guilty to bank robbery, a violation of 18 U.S.C. Sec. 2113(a), and possession of a firearm by a felon, a violation of 18 U.S.C. Sec. 922(g). The district court found that Rutherford had two previous convictions for crimes of violence, rendering him a career offender under U.S.S.G. Sec. 4B1.1. ¹ The career offender guideline gave Rutherford an offense level of 29 and a criminal history category of VI, yielding a sentencing range of 151 to 188 months. If Rutherford had not qualified as a career offender, he would have had an offense level of 21 and a criminal history category of V, resulting in a sentencing range of 70 to 87 months. The district court imposed a sentence of 188 months of imprisonment and three years of supervised release.

On appeal, Rutherford argues that his 1993 conviction in an Alabama state court for first-degree assault does not qualify as a crime of violence. ² He was convicted of assault for "driving a motor vehicle under the influence of alcohol and causing serious bodily injury to the person of another with the motor vehicle." Presentence Report at 9. ³ Rutherford contends that the definition of crime of violence under the career offender guideline does not encompass vehicular assault.

I. Definition of "Crime of Violence" Under the Career Offender Guideline

Section 4B1.2 of the Guidelines defines "crime of violence" for the purposes of the career offender guideline. Under Sec. 4B1.2(1)

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

(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."

Application Note 2 to Sec. 4B1.2 requires that we limit our inquiry to "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted." Application Note 2; United States v. Lee, 22 F.3d 736, 738 (7th Cir.1994). ⁴

First-degree assault is a felony in Alabama, Ala.Code Sec. 13A-6-20(b), and Rutherford received a sentence of five years of imprisonment, although he only served nine months. The offense at issue is not an offense enumerated in Sec. 4B1.2(1)(ii) or in Application Note 2. ⁵ Thus, we must determine whether Rutherford's offense involved the "use, attempted use, or threatened use of physical force" under Sec. 4B1.2(1)(i) or whether it presented "a serious potential risk of physical injury" under Sec. 4B1.2(1)(ii).

II. Use of Force Under Sec. 4B1.2(1)(i)

The government does not argue that Rutherford's offense involved the "use, attempted use, or threatened use of physical force against ... another." Still, the argument that Rutherford used force by injuring another person in a drunk driving accident merits discussion. We begin, as we must when interpreting any statute or guideline, with the plain language of Sec. 4B1.2(1)(i). United States v. Rosado, 866 F.2d 967, 969 (7th Cir.1989).

Rutherford argues that the word "use" implies an intentional act rather than the mere application or exertion of force. The common understanding of the word "use" supports this view. "Use" is defined as "[t]he act of employing a thing for any (esp. a profitable) purpose." The Oxford English Dictionary, 2d ed. vol. XIX at 350 (Clarendon Press 1989). Force is exerted in many instances where it is not employed for any particular purpose. For example, earthquakes and avalanches involve the exertion of a tremendous amount of force. Such disasters, however, are freaks of nature; we can identify no intelligence or purpose behind them. Referring to a randomly occurring avalanche as a "use" of force would torture the English language. Likewise, a drunk driving accident is not the result of plan, direction, or purpose but of recklessness at worst and misfortune at best. A drunk driver who injures a pedestrian would not describe the incident by saying he "used" his car to hurt someone. In ordinary English the word "use" implies intentional availment. ⁶ No availment of force in order to achieve an end is present in a drunk driving accident. Thus under a pure plain language approach, one would be hard-pressed to argue that Rutherford's accident involved the use of force.

Consequently, we are aware of no cases holding that anything less than an intentional act may qualify as a "use" of force under Sec. 4B1.2(1)(i). The sparse authority that exists supports the plain language reading. See United States v. Young, 990 F.2d 469, 471 (9th Cir.1993) (discussing whether possession of firearm in prison is crime of violence under Sec. 4B1.2: "An intent to use the object in a violent manner is not a required element of the offense. Clearly, then, the statutory definition of the crime does not contain as an element the 'use, attempted use, or threatened use of physical force.' ") (citation omitted), cert. denied, --- U.S. ----, 114 S.Ct. 276, 126 L.Ed.2d 226 (1993); United States v. Parson, 955 F.2d 858, 866 (3rd Cir.1992) (comparing definitions of crime of violence in Sec. 4B1.2 and 18 U.S.C. Sec. 16: "Use of physical force is an intentional act, and therefore ... [Sec. 4B1.2(1)(i) ] requires specific intent to use force.").

In addition, the structure of Sec. 4B1.2 supports the view that the "use" of force implies an intentional act. Section 4B1.2(1) divides the definition of crime of violence into two prongs. The first prong discusses intentional acts, while the second prong discusses acts with a mental state of less than intent.

Section 4B1.2(1)(i) (Prong I) classifies crimes involving the "use, attempted use, or threatened use of physical force" as crimes of violence. Attempts and threats, the acts grouped with the "use" of force in Prong I, are both intentional acts. Under the common law, an attempt "include[s] a specific intent to commit the unlawful act." Braxton v. United States, 500 U.S. 344, 351 n. **, 111 S.Ct. 1854, 1859 n. **, 114 L.Ed.2d 385 (1991); see also M. Cherif Bassiouni, Substantive Criminal Law ch. 5 Sec. 2.2.1 at 205 (Charles C. Thomas 1978) ("To be charged with attempt, a person must possess the intent to commit a specific crime"); Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law Sec. 6.2 at 24 (West 1986) ("The mental state required for the crime of attempt ... is an intent to commit some other crime."). Thus attempted use of force requires an intentional act. Likewise, a threatened use of force must be intentional; one cannot accidentally make a threat. ⁷ Section 4B1.2(1)(i) places threats and attempts, both intentional acts, alongside "use," which under Young, Parson, and its ordinary meaning also implies an intentional act. This grouping together of different forms of intentional conduct demonstrates that Sec. 4B1.2(1)(i) was meant to address intentional acts only.

The Sentencing Commission recognized, however, that many criminal acts with a mental state of less than an intent to use force should qualify as violent crimes. Thus, the Commission added Sec. 4B1.2(1)(ii) (Prong II), which classifies as a crime of violence any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." See Sec. 4B1.2(1)(ii) (often referred to as the "otherwise" clause). Sections 4B1.2(1)(i) and (ii) work together; intentional acts are analyzed under subsection (i), while reckless and negligent acts are analyzed under the "otherwise" clause in subsection (ii). ⁸ If the word "use" in subsection (i) included the reckless or negligent exertion of force, the "otherwise" clause would often be redundant. ⁹ In many cases, subsections (i) and (ii) would overlap rather than work together. In light of Young, Parson, and the plain meaning of "use," we are persuaded that the Commission intended subsections (i) and (ii) to complement rather than compete with each other.

Finally, defining any negligent or reckless criminal act that results in injury as a "use" of force (and thus a crime of violence) creates some disturbing consequences. Namely, it classifies criminals who engage in low-risk activity but unluckily manage to hurt someone as violent offenders. For instance, if a speeding driver causes an accident and is convicted of vehicular assault, he would qualify as a violent offender under subsection (i) even though the risks of mere speeding would probably not be deemed "serious" under subsection (ii). This creates a sense of arbitrariness: if a speeder barely avoids an accident, he is not violent offender, but if the same speeder is not so fortunate and hits someone, he is suddenly transformed into a violent criminal. Section 4B1.2 does not endorse such an arbitrary scheme. ¹⁰ Thus Rutherford's first-degree assault conviction did not involve a "use" of force under Sec. 4B1.2(1)(i).

III. The "Otherwise" Clause

Next, we must determine whether Rutherford's conduct presented a "serious potential risk of physical injury to another" under the otherwise clause. ¹¹ The government asserts that drunk driving creates a serious risk of injury and thus falls squarely within the plain language of Sec. 4B1.2(1)(ii). Rutherford makes two arguments in response. First, he contends that crimes of pure recklessness should...