U.S. v. Hicks
| Decision Date | 22 August 1997 |
| Docket Number | No. 96-4186,96-4186 |
| Citation | 122 F.3d 12 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marcus A. HICKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
W. Charles Grace (Submitted), Office of the U.S. Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
Douglas A. Forsyth, Sr., Anderson & Pruess, Clayton, MO, for Defendant-Appellant.
Before POSNER, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.
The district judge upped Hicks's sentence for drug trafficking upon finding that three Illinois convictions of Hicks for burglary were crimes of violence within the meaning of the sentencing guidelines. U.S.S.G. §§ 4B1.1-.2. A burglary "of a dwelling" is expressly made a crime of violence by the guidelines, § 4B1.2(1)(ii), and the informations under which Hicks had been charged alleged that he had committed "residential burglary" by entering a "dwelling place" with intent to commit a theft. But they were amended, pursuant to a plea agreement, to strike the word "residential" and substitute "building" for dwelling place, and in consequence Hicks was sentenced under Illinois' general burglary statute rather than under the statute punishing residential burglary. See 720 ILCS 5/19-1, 5/19-3. Yet in sentencing Hicks for the drug offense, the district judge disregarded the amendment of the informations because the federal presentence report indicated that the buildings that Hicks had been convicted of burglarizing were indeed dwellings, as the original informations had alleged.
Under settled law reaffirmed just months ago by this court sitting en banc, the characterization for sentencing-enhancement purposes of a previous conviction is to be based exclusively on the allegations of the charging document unless the document doesn't contain enough information to enable the offense of which the defendant was convicted to be characterized. United States v. Shannon, 110 F.3d 382, 384 (7th Cir.1997) (en banc); cf. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The informations here, as duly amended, enabled the unequivocal characterization of Hicks's previous convictions as being convictions of general rather than residential burglary, and so the judge was not authorized to peek behind the informations. The only purpose of such a peek in this case could be to determine not what Hicks had been convicted of--general burglary--but what he could or should have been convicted of, an illegitimate inquiry under the crime of violence guideline. See U.S.S.G. § 4B1.2, Application Note 2; United States v. Talbott, 78 F.3d 1183, 1189-90 (7th Cir.1996) (per curiam).
The Department of Justice misled the judge about the state of the law; even in this court, in its brief filed almost two months after our decision in Shannon, it cites only the long-vacated panel opinion. The Department incorrectly thought this case controlled by United States v. Sebero, 45 F.3d 1075 (7th Cir.1995), where the defendant had been convicted in Wisconsin not Illinois of burglary...
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Adams v. United States
...for failing to raise an argument that would have had no effect whatsoever on the outcome. Thus Adams’ reliance on United States v. Hicks , 122 F.3d 12 (7th Cir. 1997), is inapt. Although the court in Hicks reversed where the district court relied on the incorrect charging document, in that ......
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U.S. v. Thornton, 05-1465.
...counsel alluded to at the sentencing hearing, and Thornton himself later argued in a pro se motion to reduce sentence, United States v. Hicks, 122 F.3d 12 (7th Cir. 1997) explains that only burglary "of a dwelling," and not mere burglary of a building, is sufficient to qualify as a "crime o......
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Xiong v. I.N.S., 97-3402
...of generic burglary in order to convict the defendant"). Furthermore, in Shannon, 110 F.3d at 384, and again in United States v. Hicks, 122 F.3d 12, 12 (7th Cir.1997), and United States v. Thomas, 159 F.3d 296, 299 (7th Cir.1998), we held that a sentencing judge may not look beyond the char......
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U.S. v. Rezin
...by these documents may not be contradicted by peeking behind them to try to discover what really happened. United States v. Hicks, 122 F.3d 12, 12-13 (7th Cir.1997). But, as these and other cases make clear, if those documents don't either determine or deny some fact that is relevant to enh......