U.S. v. Shannon

• Citation: 94 F.3d 1065
• Decision Date: 02 October 1996
• Docket Number: No. 95-2367,95-2367
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Defabian SHANNON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1065

94 F.3d 1065

UNITED STATES of America, Plaintiff-Appellee, v. Defabian SHANNON, Defendant-Appellant.

No. 95-2367.

United States Court of Appeals Seventh Circuit.

Argued Jan. 3, 1996.

Decided Sept. 3, 1996.

Order Granting Rehearing En Banc and

Vacating Opinion Oct. 2, 1996.

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 COFFEY, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

Defabian Shannon challenges the sentence he received after pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). For the following reasons, we vacate the sentence and remand for resentencing.

I.

On June 14, 1994, Shannon was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count I) and for intimidating a witness to the possession in violation of 18 U.S.C. § 1512(b)(1) (Count II). The court appointed Paul Barrett to represent Shannon. Mr. Barrett reached a deal with the government in which Shannon agreed to plead guilty to both counts. Thereafter a presentence report (PSR) was ordered and completed. On October 14, 1994, the government informed the district court that it intended to seek an increase in Shannon's sentence based on evidence that he had committed a homicide for which he was never charged. Soon after, Mr. Barrett withdrew as Shannon's attorney for health reasons and his colleague, Monika Neu, took on the case. Ms. Neu then filed a motion to withdraw the guilty plea, but a week later Shannon changed his mind and withdrew the motion, thus maintaining the original plea.

At a sentencing hearing held on December 15, 1994, the district judge found that Shannon's conviction for second degree sexual assault of a child (statutory rape) was a prior crime of violence which would affect his offense level under United States Sentencing Guideline (USSG) § 2K2.1(a)(4)(A). He further found that Shannon had threatened a witness, which would also impact his offense level under USSG §§ 2J1.2(b) and 3C1.1. Finally, the judge found that Shannon had participated in an uncharged homicide, which could justify an upward departure under USSG § 4A1.3, though no decision on whether to depart upward was made at that time. The case was then recessed with sentencing to continue a few days later. In the interim, fearing the magnitude of the potential sentence, Shannon's mother retained new counsel, Alan Eisenberg, who revived the motion to withdraw the guilty plea at the next hearing on December 19, 1994. The merits of the motion were debated in further proceedings on January 18 and February 15, 1995. Concerned that Shannon had not been properly informed of his potential sentence, the court granted the motion to withdraw and set the case for trial.

Mr. Eisenberg then withdrew and Michael Holzman, Shannon's current attorney, was appointed counsel in his stead. Mr. Holzman negotiated a new plea agreement in which Shannon pleaded guilty only to the firearm charge (Count I). Sentencing on the second plea was set for June 2, 1995 and a second PSR was ordered.

Before sentencing Shannon filed a motion to reopen the factual determinations made at the previous hearings regarding the sexual assault, intimidation of a witness (i.e., obstruction of justice), and homicide. The court denied this request, holding that its prior findings were the law of the case, [R.71:p.5,7] though at the hearing the court did consider and address specific defense objections to the PSR. [Id. at 7]

The court computed Shannon's sentence as follows: The finding that Shannon had previously been convicted of a violent felony (second degree sexual assault) increased his initial base offense level from 14 to 20. USSG § 2k2.1(a)(4). The obstruction of justice finding further increased it by two, USSG § 3C1.1, but Shannon's willingness to accept responsibility and provide complete information to the government decreased it by three, USSG §§ 3E1.1(a) & 3E1.1(b), for a total offense level of 19. Depending on a defendant's criminal history, an offense level of 19 yields a sentence between 30 and 78 months. Though only 22 years old, Shannon had a lengthy criminal resume that included car theft, retail theft, battery, damaging property, obstructing an officer, and sexual assault. His criminal history category therefore was computed at V, which combined with an offense level of 19 established a sentencing range of 57 to 71 months. However, there was persuasive evidence that Shannon had committed an uncharged murder, and the court decided to depart upward and impose a sentence of 115 months, five months short of the statutory maximum. See USSG § 4A1.3 (authorizing upward departure where "criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that [he] will commit other crimes").

II.

Shannon appeals his sentence on three grounds. First, he argues the district court erred in determining that his prior conviction for statutory rape was a violent crime under the Sentencing Guidelines. Next, Shannon challenges the court's willingness to consider and ultimately believe evidence that he participated in an uncharged homicide and its concomitant decision to depart upward from the recommended sentence. Finally, he disputes the court's use of the doctrine of law of the case to bar reconsideration of its factual determinations on the obstruction of justice issue. We address each of these contentions in turn.

A. Whether Statutory Rape Is a Crime of Violence

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. United States v. Lee, 22 F.3d 736, 737 (7th Cir.1994). If a defendant has a "prior felony conviction of ... a crime of violence," his base offense level is 20. USSG § 2k2.1(a)(4)(A). The Sentencing Guidelines define a "crime of violence" as "any offense under federal or state law 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

USSG § 4B1.2(1).

Shannon pleaded guilty to second degree sexual assault under Wisconsin law. Shannon denies this constitutes a conviction for a violent felony for purposes of the Sentencing Guidelines. Second degree sexual assault in Wisconsin is a statutory rape offense: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony." Wis. Stat. § 948.02(2). By the terms of the statute, no physical force, or even the slightest threat of physical force, is necessary for a conviction; there is no "element" of force, threatened or otherwise, in the crime. That excludes the possibility that it is a crime of violence under the definition in § 4B1.2(1)(i).

Section 4B1.2(1)(ii) defines a crime of violence to include a conviction for conduct that "present[ed] a serious potential risk of physical injury to another." Here the criminal complaint alleged that Shannon forced his victim into a house, dragged her down the stairs into the basement, and then raped her. If we were permitted to credit such allegations, we would obviously conclude that Shannon had committed a crime of violence. But we cannot. The Guidelines plainly limit our inquiry into whether the offense "presented a serious risk of physical injury" to "an examination of the facts charged in the relevant indictment or information." Lee, 22 F.3d at 740. ¹

The information in its entirety simply stated:

[Defendant] [i]ntentionally and feloniously had sexual intercourse with a person who had not attained the age of Sixteen (16 years), to wit: Josanthia S. Lawrence, d/o/b: 04/27/77, contrary to the form of the statute § 948.01(2), in such case made and provided and against the peace and dignity of the State of Wisconsin.

These facts standing alone do not suggest violence. They merely indicate that Shannon, who at the time was 17, had sex with a girl under the age of 16. (Because the date of birth was included, we know she was 13 years, 10 months old.) Confined to these sparse details, we cannot say Shannon's conviction for second degree sexual assault was a conviction for a crime of violence under § 4B1.2(1)(ii).

Which leaves us with the possibility that in Wisconsin second degree sexual assault is by its nature--that is, always, without regard to circumstance--violent. Based upon his own "viewing of many sexual assault victims [and] studies done by sexual assault units," the district judge adopted this position, concluding that second degree sexual assault poses an inherent risk of physical injury. We review this determination de novo. United States v. Bauer, 990 F.2d 373, 374 (8th Cir.1993) ("Whether statutory rape is a violent crime is a legal, rather than a factual, determination and therefore is reviewed de novo.").

We are unable to accept the district court's reasoning. In United States v. Lee, the underlying facts disclosed a victim who was forcibly seized and had her coat ripped as one of three robbers took her purse. But the actual charge of conviction recited only the terms of the statute. On appeal we declined to hold that the crime of "theft from the person of another"--a crime also without an explicit element of violence--was an inherently violent offense since some such thefts, pick-pocketings for instance, can be essentially nonviolent. 22 F.3d at 740-41; cf. United States v. Smith, 10 F.3d 724, 733-34 (10th Cir.1993) (second degree burglary conviction deemed not "crime of...