U.S. v. Kindle, 05-2741.

• Decision Date: 05 July 2006
• Docket Number: No. 05-2741.,05-2741.
• Citation: 453 F.3d 438
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome KINDLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

453 F.3d 438

UNITED STATES of America, Plaintiff-Appellee, v. Jerome KINDLE, Defendant-Appellant.

No. 05-2741.

United States Court of Appeals, Seventh Circuit.

Argued January 10, 2006.

Decided July 5, 2006.

Colin S. Bruce (argued), Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Alexander T. Nguyen (argued), Kirkland & Ellis, Chicago, IL, for Defendant-Appellant.

Before BAUER, RIPPLE, and WOOD, Circuit Judges.

BAUER, Circuit Judge.

Jerome Kindle pleaded guilty to possession of five or more grams of cocaine base with the intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. He appeals the district court's finding that he qualified as a Career Offender and contends that the court should have used a lower Sentencing Guideline range. We affirm the decision of the district court.

I. Background

On March 6, 2003, a federal grand jury charged Jerome Kindle with four counts of distribution of cocaine, 21 U.S.C. § 841(a)(1), (counts one through four); one count of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), (count five); one count of possession of five or more grams of cocaine base with the intent to distribute, 21 U.S.C. § 841(a)(1), (count six); one count of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), (count seven); and one count of possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c), (count eight).

On April 30, 2004, Kindle pleaded guilty to counts six and eight. His guilty pleas were entered pursuant to a written plea agreement. While Kindle waived his right to appeal the sentence, he expressly reserved the right to appeal Judge Jeanne Scott's finding that under U.S.S.G. § 4B1.1 he qualified as a Career Offender. He also expressly reserved the right to appeal any upward departure from the applicable Sentencing Guideline range.

The Pre-Sentence Report (PSR) determined that Kindle was a Career Offender under U.S.S.G. § 4B1.1 with a criminal history of category VI and an offense level of 37. The district court found that as a Career Offender, Kindle's offense level was 34, which included a three-point downward adjustment for accepting responsibility under U.S.S.G. § 3E1.1. Judge Scott also concluded that Kindle's criminal history category was VI. Based on his prior record, Kindle's criminal history point total was 15, placing him in criminal history category VI regardless of a Career Offender finding. The resulting advisory Sentencing Guideline range for an offense level of 34 and criminal history category VI was 262 to 327 months on count six and a consecutive 60 months on count eight.¹ The government recommended a 20 percent reduction from the low-end of the Guideline range and a sentence of 257 months in prison. But, employing judicial discretion and noting Kindle's cooperation with authorities that included substantial personal risk, Judge Scott instead concluded that a 30 percent departure from the low-end of the Guideline range was appropriate. She applied the 30 percent reduction to the total sentence, reducing Kindle's time in prison from 322 months to 225 months. The court further sentenced Kindle to eight years of supervised release and ordered him to pay a $200 special assessment. The court granted the government's motion to dismiss the remaining counts of the indictment. The district court sentenced Kindle on June 3, 2005, and he filed a timely appeal.

II. Analysis

The main issue for our review is whether the district court erred in finding that Kindle qualified as a Career Offender under U.S.S.G. § 4B1.1. Kindle specifically appeals the district court's reliance on a 1996 conviction for second-degree burglary in Missouri. He argues that because neither the charging papers nor his guilty plea from the 1996 conviction state that Kindle had burglarized a "dwelling," his second-degree burglary conviction should not be considered a "crime of violence" and therefore he should not be labeled a Career Offender under the Sentencing Guidelines.

Whether the district court erred in sentencing Kindle as a Career Offender is a question of law that we review de novo. United States v. Hoults, 240 F.3d 647, 650 (7th Cir.2001). Similarly, the question of whether an offense constitutes a "crime of violence" for purposes of sentencing is also subject to de novo review. United States v. Bryant, 310 F.3d 550, 552 (7th Cir.2002).

The PSR suggested that Kindle should be considered a Career Offender for sentencing purposes because he had two prior felony convictions for "crimes of violence" as defined in U.S.S.G. § 4B1.2, namely, a 1990 involuntary manslaughter conviction and a 1996 second-degree burglary conviction. Under the Guidelines, a defendant is deemed a Career Offender if

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;

(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.

U.S.S.G. § 4B1.1(a).

To clarify U.S.S.G. § 4B1.1(a)(3), we must look to the definition of a "crime of violence" under the Guidelines. A "crime of violence" for Career Offender purposes is defined in U.S.S.G. § 4B1.2, and provides:

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that —

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) 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.

U.S.S.G. § 4B1.2.

Kindle focuses his appeal on the elements of his second-degree burglary conviction and whether it can be considered a "crime of violence." Specifically, Kindle argues that the Missouri Second-Degree Burglary Statute, which defines the burglary as "knowingly enter[ing] unlawfully or knowingly remain[ing] unlawfully in a building or inhabitable structure for the purpose of committing a crime therein," foreclosed the district court from finding that the second offense constituted a crime of violence because the burglary of a dwelling is not an element of the offense. MO. ANN. STAT. § 569.170 (West 1996). Because in Missouri, inhabitable structures include both dwellings and non-dwellings, Kindle contends that the district court made an improper logical leap in using the terms "inhabitable structure" and "dwelling" interchangeably. Further, Kindle argues that at sentencing the Judge was not permitted to draw any conclusions about Kindle's past convictions beyond the face of the charging documents and statutory definitions of those crimes. What Kindle does not account for, however, is the actual wording of his plea agreement in this case and the entirety of the discussion at sentencing.

In the district court, Kindle objected to the PSR's recommendation and Judge Scott's conclusion that he qualified as a...