U.S. v. Alvarez, 89-2670

• Decision Date: 27 September 1990
• Docket Number: No. 89-2670,89-2670
• Citation: 914 F.2d 915
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edwin ALVAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 915

914 F.2d 915

UNITED STATES of America, Plaintiff-Appellee, v. Edwin ALVAREZ, Defendant-Appellant.

No. 89-2670.

United States Court of Appeals Seventh Circuit.

Argued June 4, 1990.

Decided Sept. 27, 1990.

Michael R. Pace, Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Carol A. Brook, Lauren J. Weil, Federal Defender Program, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS and MANION, Circuit Judges.

BAUER, Chief Judge.

This case presents a series of challenges to the application of Federal Sentencing Guideline Sec. 4B1.1, the Career Offender Guideline. Under this provision, certain defendants with multiple past convictions who now face sentencing for a "crime of violence" or a "controlled substance offense" incur significantly enhanced sentences. Defendant Edwin Alvarez was convicted of a single violation of 18 U.S.C. Sec. 922(g)(1), the statute making it a federal crime for a convicted felon to knowingly possess a firearm. Due to the circumstances of his crime and his lengthy criminal history, Alvarez was sentenced, pursuant to the Federal Sentencing Guidelines, to 30 years in prison without possibility of parole. Alvarez appeals, contending that the district court improperly considered the specific facts of his case rather than the general elements of Sec. 922(g) in determining that he had committed a "crime of violence" for purposes of Guideline Sec. 4B1.1. Beyond this, Alvarez contends that Sec. 4B1.1 as applied constitutes both "cruel and unusual punishment" for purposes of the eighth amendment and a violation of the double jeopardy clause of the fifth amendment. Because we believe the district court's sentence is proper under the Guidelines and that no constitutional violation occurred, we affirm.

I. Background

Shortly after midnight on the morning of April 2, 1988, Chicago police officers David Kohn and Clark Mikes, working as part of the Gang Crimes Investigation West unit, approached a group of men drinking beer on the corner of Cullerton and Hoyne on Chicago's west side. The officers, who had already told this group to disperse half an hour ago, informed the men that they were now under arrest for drinking in public, and to stand against the wall of the building behind them. Most of the group complied. One man, Edwin Alvarez, did not. Instead, he began walking west on Cullerton away from the officers. Officer Kohn told Alvarez again that he was under arrest and to stand against the wall. This time, Alvarez complied.

Alvarez tried to distract Officer Kohn by telling him someone with a gun was behind him. Undistracted, Kohn led Alvarez to the building and placed him against the wall with the others. When Kohn began to search Alvarez, the defendant again told Kohn that a man with a gun was standing behind him. This time, Kohn looked behind him. No one was there. When Kohn spun back around he saw Alvarez pulling a gun from his pants pocket. Kohn struggled with Alvarez, wrestled the gun--a fully-loaded, .25-caliber semiautomatic handgun--away from him and pinned him against the building. In the brief struggle, Kohn injured his finger on the hammer of the gun.

Following Alvarez' arrest, the authorities discovered that he had been convicted of seven prior felonies. Thus, he was charged in the Northern District of Illinois under 18 U.S.C. Sec. 922(g)(1) as a convicted felon in knowing possession of a firearm. On December 8, 1988, Alvarez was tried by a jury which found him guilty of this charge.

Alvarez was sentenced by Judge Ann C. Williams on July 26, 1989. Because Alvarez had a criminal history of at least three violent criminal convictions, he faced a mandatory minimum sentence of 15 years and a maximum sentence of life in prison under Sec. 924(e)(2)(B)(ii). Alvarez' actual sentence, however, was to be determined under the Federal Sentencing Guidelines.

A felon convicted for possession of a handgun under Sec. 922(g) faced a base offense level of 9 under Guideline Sec. 2K2.1. This relatively low offense level is augmented by application of Sec. 4B1.1, the Career Offender Guideline. The court determined that Alvarez was eligible for sentencing under this enhancement provision, as he had committed a "crime of violence" and had multiple prior convictions. Thus, because his crime of conviction carried a maximum sentence of life in prison, his base offense level was calculated at 37. Because the terms of Sec. 4B1.1 also mandate that a defendant who qualifies under this provision is considered to have the maximum criminal history category, level VI, Judge Williams determined that Alvarez' sentencing range extended from 360 months to life imprisonment. Judge Williams then sentenced Alvarez to 30 years in prison without parole. Alvarez filed a timely notice of appeal.

II. Discussion

Apparently, Alvarez would be content with the mandatory minimum 15-year sentence required by Sec. 924(e). He objects, however, to the 30-year sentence imposed under Sec. 4B1.1. Thus, he raises several attacks to the use of Sec. 4B1.1 in determining his sentence. Primarily, he contends that the court erroneously characterized his crime, possession of a firearm by a convicted felon, as a "crime of violence" for purposes of the Sentencing Guidelines. Beyond this, Alvarez argues that the 30-year sentence imposed by the court through this particular application of the Guidelines constitutes cruel and unusual punishment in violation of the eighth amendment. Alvarez also contends that the Career Offender Guideline violates the double jeopardy clause of the fifth amendment. We will consider each of these several objections in turn.

Section 4B1.1 of the Guidelines provides for significant enhancement of the defendant's sentence if the defendant qualifies as a "Career Offender." The section states:

A defendant is a career offender if 1) the defendant was at least 18 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.

At the time of Alvarez' sentencing, a "crime of violence" was defined under Sec. 4B1.2(1), which in turn referred to 18 U.S.C. Sec. 16. ¹ Under 18 U.S.C. Sec. 16, a "crime of violence" is defined as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Alvarez contends that mere possession of a handgun does not involve the use, attempted use or threatened use of force, nor does it by its nature involve a substantial risk of such force, and therefore it cannot be considered a "crime of violence" for purposes of the Career Criminal Offender Guideline. The government argues that Alvarez' actions and the circumstances of his crime--the deception of the police, reaching for the gun, the struggle with Officer Kohn, and Kohn's injury--involve the use of force and therefore Sec. 4B1.1 was applicable.

Thus, we arrive at the crux of the dispute. In determining whether an offense is a "crime of violence" for purposes of the Sentencing Guidelines, do we look only to the elements of the offense as charged or do we also consider the conduct of the defendant at the time of the offense? If we looked only to the elements of the crime, the case for application of the Career Offender Guideline would be rather lean. Despite the obvious dangers of convicted felons possessing firearms, it is quite a stretch to contend that simple possession alone constitutes a crime of violence. Nevertheless, some district courts have accepted this argument. See United States v. Phillips, 732 F.Supp. 255, 262-63 (D.Mass.1990); United States v. Johnson, 704 F.Supp. 1398, 1403 (E.D.Mich.1988); United States v. Jones, 651 F.Supp. 1309, 1310 (E.D.Mich.1987). Recently, however, we held that in considering whether an offense is a "crime of violence" for purposes of the Career Offender Guideline, we must look to the underlying conduct as well as the elements of the offense as charged. See United States v. McNeal, 900 F.2d 119, 122-23 (7th Cir.1990). ² In reaching this conclusion, we considered both the commentary to the Guidelines and subsequent decisions from other circuits.

As we noted in McNeal, Application Note 1 to Sec. 4B1.2 provides ³:

The Commission interprets [a crime of violence] as follows: murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson or robbery are covered by this provision. Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction for an escape accomplished by force or threat of injury would be covered; conviction for an escape by stealth would not be covered....

(Emphasis added.) Thus, the Application Notes suggest that the sentencing court review not only the elements of the offense as charged, but also the specific conduct of the defendant as well. As we have noted before, these Application Notes are entitled to substantial weight in interpreting the Guidelines. See United States v. White, 888 F.2d 490, 497 (7th Cir.1990); United States v. Pinto, 875 F.2d 143, 144 (7th Cir.1989). Further, other circuits have looked to the conduct underlying the specific offense in applying Sec. 4B1.1. See, e.g., United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989).

Alvarez contends that allowing such consideration of the underlying conduct would undermine the Guidelines. We disagree. The Guidelines are intended to create standardized ranges for similar crimes...