U.S. v. McDonald

• Decision Date: 25 January 2010
• Docket Number: No. 08-2703.,08-2703.
• Citation: 592 F.3d 808
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwayne E. McDONALD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

592 F.3d 808

UNITED STATES of America, Plaintiff-Appellee, v. Dwayne E. McDONALD, Defendant-Appellant.

No. 08-2703.

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2009.

Decided January 25, 2010.

Michelle L. Jacobs, Attorney, Paul Kanter, Attorney (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Daniel W. Stiller, Federal Public Defender (argued), Thomas G. Wilmouth, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Defendant-Appellant.

Before KANNE, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Dwayne McDonald pleaded guilty to possessing a firearm as a felon and on appeal challenges his sentence. The district court held that McDonald's two prior Wisconsin convictions — one for first-degree reckless injury, WIS. STAT. § 940.23, and another for second-degree sexual assault of a child, id. § 948.02(2) — qualified as crimes of violence for purposes of § 2K2.1(a) of the United States Sentencing Guidelines. This substantially increased his total guidelines offense level and therefore his advisory guidelines sentencing range. Under Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and our subsequent decision in United States v. Woods, 576 F.3d 400 (7th Cir.2009), however, neither conviction qualifies as a crime of violence.

Only the "residual clause" of the crime-of-violence definition is implicated here, and Begay interpreted that part of the definition (actually, the materially identical definition in the Armed Career Criminal Act) to include only crimes that categorically involve "purposeful, violent, and aggressive conduct." 128 S.Ct. at 1586. First-degree reckless injury and second-degree sexual assault of a child do not meet this test because neither crime is categorically "purposeful" in the sense required by Begay. See Woods, 576 F.3d at 412-13. The former crime has a mens rea of recklessness and the latter is a strict-liability offense; Begay generally excludes these types of crimes from the scope of the crime-of-violence definition. Accordingly, we vacate McDonald's sentence and remand for resentencing.

I. Background

Dwayne McDonald pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His presentence report ("PSR") reflected that he had prior Wisconsin convictions for first-degree reckless injury in violation of Wis. Stat. § 940.23 and second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(2). The PSR counted these as "crimes of violence" under U.S.S.G. §§ 2K2.1(a) and 4B1.2(a), and accordingly recommended that the district court increase McDonald's base offense level to 24 pursuant to § 2K2.1(a)(2).

While McDonald was awaiting sentencing, the Supreme Court decided Begay. This gave McDonald a new argument, and at sentencing he objected to the application of the § 2K2.1(a) enhancement. Begay held that the residual clause in the definition of "violent felony" in the Armed Career Criminal Act included only crimes that categorically involve "purposeful, violent, and aggressive conduct." 128 S.Ct. at 1586. McDonald argued that neither of his prior convictions satisfied this requirement, which applies equally to the residual clause in the guidelines' definition of "crime of violence." The district judge thought McDonald's position was a reasonable reading of Begay, but ultimately decided that the issue should be resolved by this court. The judge rejected McDonald's argument, accepted the PSR's recommendation, and increased McDonald's base offense level under § 2K2.1(a)(2). McDonald's resulting advisory sentencing range was 46 to 57 months. The judge imposed a below-guidelines sentence of 31 months and this appeal followed.

II. Discussion

On appeal McDonald reiterates his objection to the application of § 2K2.1(a)(2), which ascribes a base offense level of 24 to unlawful firearms-possession convictions "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of ... a crime of violence." U.S.S.G. § 2K2.1(a)(2). A "crime of violence" for purposes of § 2K2.1(a) has the meaning given to that term under the career-offender guideline, U.S.S.G. § 4B1.2. See id. § 2K2.1 cmt. n. 1. Section § 4B1.2, in turn, defines a "crime of violence" as:

(a) ... 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.

This language is virtually identical to the definition of a "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and we have held that the definitions are interpreted in the same way. See Woods, 576 F.3d at 403-04.

To determine whether a prior conviction qualifies as a violent felony under the ACCA, the Supreme Court has instructed us to apply a "categorical approach." See Begay, 128 S.Ct. at 1584; James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This means that we may "`look only to the fact of conviction and the statutory definition of the prior offense'" and do not generally consider the defendant's actual conduct or the "particular facts disclosed by the record of conviction." Shepard, 544 U.S. at 17, 125 S.Ct. 1254 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). A modified categorical approach applies when a statute is "divisible" — that is, when it creates more than one crime or one crime with multiple enumerated modes of commission, some of which may be crimes of violence and some not. Woods, 576 F.3d at 405-06 (citing Begay; James; Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); and Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)). When the statute at issue is divisible in this sense, we may look to the charging document, plea agreement, or other comparable judicial record from the underlying conviction — not to inquire into the specific conduct of the defendant but for the more limited purpose of determining which category of crime the defendant committed. Id.

The first part of the crime-of-violence definition is not at issue in this case; neither of McDonald's predicate crimes "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). The applicability of the § 2K2.1(a) enhancement therefore turns on whether McDonald's prior convictions qualify as crimes of violence under the definition's residual clause. Moreover, as we will explain, the modified categorical approach does not come into play here; whether McDonald's prior convictions qualify as crimes of violence therefore begins and ends with the categorical approach.

Under the residual clause, a prior conviction counts as a crime of violence if it "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." Id. § 4B1.2(a)(2) (emphasis added). In Begay the Supreme Court addressed the scope of the parallel language in the ACCA; the question there was whether the defendant's New Mexico felony conviction for recidivist drunk driving qualified under the residual clause of the violent-felony definition. See 128 S.Ct. at 1583. The Court held that the residual clause covered only those offenses that present a "serious potential risk of physical injury to another" and also are "roughly similar, in kind as well as in degree of risk posed," to the specifically enumerated offenses — burglary, arson, extortion, and crimes that involve the use of explosives. Id. at 1585. The Court explained that an offense will be similar in kind to the enumerated offenses if it entails the same kind of "purposeful, violent, and aggressive conduct" as these offenses. Id. at 1586-87. New Mexico's drunk-driving felony did not qualify, the Court concluded, because it did not require "purposeful" conduct but rather was a strict-liability offense. See id. at 1588.

With these general principles in mind, we now move to whether McDonald's convictions for first-degree reckless injury and second-degree sexual assault of a child qualify as crimes of violence under §§ 2K2.1(a) and 4B1.2(a).

A. First-Degree Reckless Injury

McDonald was convicted in 1998 of first-degree reckless injury in violation of Wis. Stat. § 940.23(1)(a). That statute makes it a felony to "recklessly cause[ ] great bodily harm to another human being under circumstances which show utter disregard for human life." WIS. STAT. § 940.23(1)(a). "The elements of first-degree reckless injury are 1) the defendant caused great bodily harm to a human being, 2) by criminally reckless conduct, and 3) under circumstances which show utter disregard for human life." State v. Jensen, 236 Wis.2d 521, 613 N.W.2d 170, 173 n. 2 (2000). The Wisconsin statute is not divisible in the sense explained in Woods — that is, it does not create more than one category of crime or enumerate multiple modes of committing the offense, some of which may be crimes of violence and others not. Accordingly, there is no need to consult the charging document or other judicial record from the underlying Wisconsin proceeding; our inquiry is limited to the statutory definition of the crime.

The government initially argued that the statute's recklessness requirement is sufficiently "purposeful" to satisfy the requirements of Begay. However, in United States v. Smith, 544...