Brown v. Rios, 11–1695.

Decision Date20 August 2012
Docket NumberNo. 11–1695.,11–1695.
Citation696 F.3d 638
PartiesCarnell BROWN, Petitioner–Appellant, v. Ricardo RIOS, Warden, Respondent–Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Melissa A. Cox (argued), Barry Levenstam, Attorneys, Jenner & Block LLP, Chicago, IL, for PetitionerAppellant.

Linda L. Mullen (argued), Attorney, Office of the United States Attorney, Rock Island, IL, for RespondentAppellee.

Before POSNER, MANION, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

The principal although not only issue presented by this appeal is the often vexing question of whether a conviction used to enhance a defendant's sentence under the Armed Career Criminal Act is a “violent felony” within the meaning of the Act. 18 U.S.C. § 924(e). The Act defines the term to mean either a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. § 924(e)(2)(B)(i), (ii). It is the catchall phrase, which we have italicized, that presents problems of application.

Carnell Brown was convicted in 2000 of being a felon in possession of a gun, § 922(g)(1), an offense for which the maximum sentence is normally 10 years in prison. § 924(a)(2). The government urged that he be sentenced to a minimum of 15 years on the ground that he had three previous convictions for a violent felony or a felony drug offense, and if this was right then the Armed Career Criminal Act indeed required a sentence at least that long. § 924(e)(1). We held that it was right, United States v. Brown, 273 F.3d 747 (7th Cir.2001), and on remand Brown was sentenced to 264 months in prison, and did not appeal.

In 2010, following an unsuccessful collateral attack on his sentence under 28 U.S.C. § 2255 (the federal prisoner's substitute for habeas corpus), he mounted a new collateral attack under the federal habeas corpus statute, 28 U.S.C. § 2241, in reliance on the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). There the Court had held that driving under the influence is not within the catchall provision of the Armed Career Criminal Act because a crime within the catchall “typically involve[s] purposeful, ‘violent’, and ‘aggressive’ conduct.” Id. at 144–45, 128 S.Ct. 1581. The district court in this case, seconded by the government, held that section 2241 was a proper vehicle for Brown's attack on his sentence, but went on to hold that he indeed had been convicted of three violent felonies or serious drug offenses, and so his sentence stood, and he has appealed.

The government has conceded that Brown can use the habeas corpus statute to challenge the legality of his sentence. Normally a federal prisoner is confined to his remedy under 28 U.S.C. § 2255, but he may petition under section 2241 instead if his section 2255 remedy is “inadequate or ineffective to test the legality of his detention.” § 2255(e). In re Davenport, 147 F.3d 605, 610–12 (7th Cir.1998), set forth three conditions for this exception to apply. Two clearly are satisfied in this case. First, Begay was not a constitutional case, but a statutory-interpretation case, so Brown could not have invoked it by means of a second or successive section 2255 motion. 28 U.S.C. § 2255(h)(2); United States v. Wyatt, 672 F.3d 519, 522 (7th Cir.2012). Second, although he could not have invoked it in his first section 2255 motion either, because Begay hadn't been decided, compare In re Davenport, supra, 147 F.3d at 609,Begay is applicable retroactively, id. at 610;Welch v. United States, 604 F.3d 408, 415 (7th Cir.2010), and therefore he could invoke it by a later motion, provided (because of the bar in section 2255(h)(2) to second or successive section 2255 motions) that the later motion wasn't a section 2255 motion. It wasn't; it was a section 2241 motion.

The third condition is that Brown's sentence enhancement under the Armed Career Criminal Act, because based on a conviction for a crime of which he was innocent, have been a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding. Narvaez v. United States, 674 F.3d 621, 623 (7th Cir.2011), held that such an error “was indeed a miscarriage of justice,” even though in that case it was a violation merely of the career-offender sentencing guidelines, rather than a statutory violation. Narvaez was a case in which the guidelines had been mandatory when the defendant was sentenced; we left open in United States v. Wyatt, supra, 672 F.3d at 523–24, whether the result might be different now that they are merely advisory. We needn't try to resolve the issue in this case.

Davenport, unlike Narvaez, had been a case in which a defendant (Nichols, Davenport's codefendant) had been innocent of the crime of which he had been convicted (use of a firearm in connection with a drug offense), whereas the present case, like Narvaez, involves a sentencing error. A number of cases, before and after and contrary to Narvaez, specify “actual innocence” of the crime of which the defendant was convicted as one of the conditions for allowing a challenge under the habeas corpus statute. See, e.g., Unthank v. Jett, 549 F.3d 534, 536 (7th Cir.2008); In re Bradford, 660 F.3d 226, 230 (5th Cir.2011) (per curiam); Kinder v. Purdy, 222 F.3d 209, 213–14 (5th Cir.2000) (per curiam). We didn't use the term in Davenport, although it was, as we said, an “actual innocence” case.

But these cases involved, like Narvaez, violations of the sentencing guidelines rather than of the Armed Career Criminal Act. A sentence that violates a statute, as distinct from a sentence permitted by a statute though more severe than authorized by the guidelines, could well be thought an error grave enough to warrant relief in a habeas corpus proceeding—a “fundamental error equivalent to actual innocence,” Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir.2002)—whereas now that the guidelines are merely advisory, a sentencing judge, while still required to calculate the guidelines sentence, is free to give a heavier (or for that matter a lighter) sentence.

But we needn't pursue the issue whether or what sentencing errors can be corrected in a habeas corpus proceeding further in this case, in view of the government's concession.

And so we come to the merits, where the principal issue is whether the felony of which Brown was convicted in an Illinois court in 1983—namely “compel[ling] a person to become a prostitute,” Ill.Rev.Stat.1983, ch. 38, § 11–16(a)(1)—is a violent felony within the meaning of the Armed Career Criminal Act. Our 2001 decision in the direct appeal from Brown's sentence describes the offense as “a situation where one person, for money, compels another to submit to nonconsensual sex with a third person. That situation, unlike many cases of statutory rape ..., necessarily involves unconsented-to activity that is, by itself, a type of physical injury.” 273 F.3d at 751. In other words, paying a person to engage in sex is an injury to that person. This formula cannot be squared with the definition of a violent felony in the Begay case, decided after our first Brown decision.

Later (that is, after the Begay decision), it is true, the Court, commenting on driving under the influence—the crime held in Begay not to be a violent felony—said that a crime “akin to strict liability, negligence, and recklessness crimes” is not a violent felony. Sykes v. United States, –––U.S. ––––, 131 S.Ct. 2267, 2276, 180 L.Ed.2d 60 (2011). But this can't be read to mean that every intentional crime is a violent felony (tax evasion? price fixing?); that would make no sense, and the Court immediately added that a violent felony in the catchall category is one that is “similar in risk to the listed crimes,” id., which means crimes such as burglary and arson. Nor does Sykes back away from the Court's holding in Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), that failing to report to prison when ordered, though it is an intentional felony, is not a violent one, because the risk of violence in efforts to apprehend such no-shows has not been shown to be significant.

Neither has it been shown that compelling a person, within the meaning of the Illinois statute, to become a prostitute necessarily creates a risk of violence to her. There would be a risk—more than a risk, an actuality—of violence if the compulsion required to convict of the crime were physical coercion, as in our recent case of United States v. Cephus, 684 F.3d 703 (7th Cir.2012), where defendants had beaten and whipped women to force them to engage in interstate prostitution in violation of federal law. But as far as we have been able to learn, all that the Illinois felony of compelling prostitution requires be shown, and all that the typical case involves, is inducing women (perhaps men also) to engage in prostitution by promising them money or other things of value, such as mind-altering drugs, for doing so.

As of 1961, Illinois defined as “pandering” the conduct of anyone who “for money” either “compels a female to become a prostitute” or “arranges or offers to arrange a situation in which a female may practice prostitution.” The first offense, “pandering by compulsion,” carried a sentence of 1 to 10 years; the second, “pandering other than by compulsion” (that is, “pandering by arranging”), a sentence only of 0 to 5 years. 720 ILCS 5/11–16(1)(b). In 1977 the statute was amended, and it was that amended version under which Brown was convicted. (The statute now appears, with an irrelevant further amendment, at 720 ILCS 5/11–14.3.) The only material change between the 1961 and 1977 versions was the punishment. No longer was compulsion punished more heavily than arranging....

To continue reading

Request your trial
531 cases
  • Mitchell v. Warden, FCI-Greenville, Case No. 19-cv-0539-RJD
    • United States
    • U.S. District Court — Southern District of Illinois
    • November 8, 2019
    ...Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See also Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). Since Davenport, the Seventh Circuit has made it clear that "there must be some kind ofstructural problem with § 2255 before §......
  • Santiago v. Streeval
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 2, 2022
    ...U.S.C. § 2255 filed in the district of conviction. Webster v. Daniels , 784 F.3d 1123, 1124 (7th Cir. 2015) (en banc); Brown v. Rios , 696 F. 3d 638, 640 (7th Cir. 2012). Section 2255 imposes strict deadlines and limits most prisoners to just one motion per judgment. A narrow alternative pa......
  • Hawkins v. United States
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 7, 2013
    ...our opinion emphasized, unlike Hawkins, had been sentenced when the guidelines were mandatory. Id. at 628–29; see also Brown v. Rios, 696 F.3d 638, 640 (7th Cir.2012); United States v. Wyatt, 672 F.3d 519, 523 (7th Cir.2012). It was arguable therefore that his sentence exceeded the maximum ......
  • Deka v. Countryside Ass'n for People With Disabilities, Inc.
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 14, 2015
  • Request a trial to view additional results
2 books & journal articles
  • Sex Work
    • United States
    • Georgetown Journal of Gender and the Law No. XXIV-2, January 2023
    • January 1, 2023
    ...749 (7th Cir. 2001) (citing Lutes v. Commonwealth, 33 S.W.2d 620, 622 (Ky. Ct. App. 1930)), rev’d on other grounds sub nom. Brown v. Rios, 696 F.3d 638, 643–44 (7th Cir. 2012). 68. People v. Hashimoto, 54 Cal. App. 3d 862, 866 (Cal. Ct. App. 1976); see People v. Bowman, No. A126930, 2011 WL......
  • Sex Work
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • January 1, 2022
    ...749 (7th Cir. 2001) (citing Lutes v. Commonwealth, 33 S.W.2d 620, 622 (Ky. Ct. App. 1930)), rev’d on other grounds sub nom. Brown v. Rios, 696 F.3d 638, 643-44 (7th Cir. 2012)). 72. People v. Hashimoto, 54 Cal. App. 3d 862, 866 (Cal. Dist. Ct. App. 1976); see People v. Bowman, No. A126930, ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT