U.S. v. Sonnenberg

• Decision Date: 08 December 2010
• Docket Number: No. 09-2801,09-2801
• Citation: 628 F.3d 361
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bruce SONNENBERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

628 F.3d 361

UNITED STATES of America, Plaintiff-Appellee,

v.Bruce SONNENBERG, Defendant-Appellant.

No. 09-2801.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 14, 2010.

Decided Dec. 8, 2010.

John W. Vaudreuil, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

William R. Jones, Attorney, Jones Law Firm, Madison, WI, for Defendant-Appellant.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

We consolidated six appeals by members of a crack cocaine distribution conspiracy. All six pled guilty. Judge James T. Moody, sitting by designation in the Western District of Wisconsin, imposed sentences that were either within or, in one case, slightly below, the applicable Sentencing Guideline ranges. All six have appealed their sentences.

In a separate unpublished order issued today, we explain in detail why we reject all but one of the appellants' arguments. To summarize, we find (a) that the district court acted well within its discretion in choosing to impose guideline sentences despite appellants' arguments that the court should treat the differences between crack cocaine and powder cocaine sentences as a reason to impose lower sentences; (b) that the district court gave appropriate individual consideration to each appellant's case and the applicable sentencing factors under 18 U.S.C. § 3553(a); and (c) that the district court provided a sufficient explanation of its thinking. We therefore affirm the sentences of all appellants except Bruce Sonnenberg on familiar grounds that do not require a published, precedential opinion.

Appellant Bruce Sonnenberg presents a different issue. He argues that the district court erred by treating him as a career offender under the sentencing guidelines. The decisive issue is whether a prior conviction of Sonnenberg under a now-repealed Minnesota law for "intrafamilial sexual abuse" counts as a "crime of violence" for purposes of the career offender guideline. The district court followed our controlling precedents at the time it made its decision. As explained below, however, intervening developments have shown that we and the district court had applied the wrong methodology in answering the question. The Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and our application of Begay in United States v. McDonald, 592 F.3d 808 (7th Cir.2010), mean that Sonnenberg's Minnesota conviction does not qualify as a crime of violence within the meaning of U.S.S.G. § 4B1.1. We therefore remand for re-sentencing, though the district court is free to consider the specific circumstances of Sonnenberg's earlier crime in exercising its discretion under § 3553(a). See 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.").

The parties agree that the district court correctly calculated Sonnenberg's offense level as 35, based upon the quantity of crack cocaine and his decision to plead guilty. Without a career offender enhancement under § 4B1.1, Sonnenberg fell within criminal history category V, with a guideline range of 262 to 327 months in prison. With a career offender enhancement, he fell within criminal history category VI, with a guideline range of 292 to 365 months. The district court imposed the career offender enhancement and sentenced Sonnenberg to 292 months, the bottom of the applicable range. ¹

To qualify as a career offender under § 4B1.1, a defendant must have at least two prior felony convictions for crimes of violence or controlled substance offenses. Sonnenberg has a 1994 conviction for delivery of marijuana that counts as one qualifying felony. The dispute is whether he has a second qualifying felony as a crime of violence. A "crime of violence" is defined in relevant part as a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another," or a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a).

In 1985, Sonnenberg was convicted in Minnesota of committing First Degree Intrafamilial Sexual Abuse in violation of Minn.Stat. § 609.3641(1) (1963) (repealed in 1985). He pled guilty and was sentenced to 43 months in prison. The execution of the 43-month sentence was stayed, and he was sentenced to 15 years of probation and one year of jail. In July 1987, the probation and stay were revoked based on Sonnenberg's violation of probation conditions. The sentence was ordered fully executed.

In treating the 1985 conviction as a crime of violence, the district court relied on our decisions in United States v. Martinez-Carillo, 250 F.3d 1101, 1105-06 (7th Cir.2001), and United States v. Shannon, 110 F.3d 382 (7th Cir.1997) (en banc), which allowed a sentencing court to consider the facts of the particular case in decidingwhether a sex offense against a child was a crime of violence under § 4B1.1.

After the district court made its decision in this case, however, we held in United States v. McDonald that Shannon had been abrogated by the Supreme Court's decision in Begay. In Begay, the Supreme Court interpreted the materially identical portion of the definition of a crime of violence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and adopted the so-called "categorical" approach to classifying prior crimes as crimes of violence. Under the categorical approach of Begay, the focus is not on the facts of the defendant's particular crime, but only on the fact of conviction and the essential elements of the offense. Begay also held that the residual clause for conduct that presents a serious potential risk of physical injury applies only to crimes that categorically involve "purposeful, violent, and aggressive conduct." 553 U.S. at 144-45, 128 S.Ct. 1581 (holding that driving under influence of alcohol was not a crime of violence despite risks of physical injury to others). Under the categorical approach of Begay, therefore, a conviction can qualify as a crime of violence under the Armed Career Criminal Act only when (1) a violation of a particular statute would necessarily include as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) would, in the ordinary or typical case, present a serious risk of physical injury as a result of purposeful, violent, or aggressive conduct similar in kind and risk to the crimes enumerated in U.S.S.G. § 4B1.2(a)(2). See McDonald, 592 F.3d at 814-15; United States v. Dismuke, 593 F.3d 582, 591 (7th Cir.2010).

The Elements Clause: We turn first to the specific elements of the crime of conviction. The repealed Minnesota statute provided in relevant part:

A person is guilty of intrafamilial sexual abuse in the first degree if:

(1) He has a familial relationship to and engages in sexual penetration with a child.

Minn.Stat. § 609.3641(1) (1963). Other provisions of the statute added various aggravating factors, such as force, coercion, use of a weapon, or personal injury, but the parties do not suggest that any of these were applied to Sonnenberg. Therefore we limit our analysis to the core offense in the quoted subsection (1), without the other aggravators.² Under the statute, a "child" is defined as any person under age 16. Minn.Stat. § 609.364, Subdivision 3. A familial relationship includes situations in which the actor is both a family member of the victim and those inwhich the actor is "an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant's spouse." Minn.Stat. § 609.364, Subdivision 9.

The government argues that the Minnesota statute, on its face, satisfies the first clause, or the elements test, for a crime of violence. We disagree. The first clause of the crime of violence definition does not apply here because the statute on its face does not require 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). Nothing in the Minnesota statute requires proof of physical force against another. See McDonald, 592 F.3d at 812 n. 1 (" 'use of force' element for purposes of § 4B1.2(a)(1) means the intentional use of force"), citing United States v. Rutherford, 54 F.3d 370 (7th Cir.1995) (abrogated on other grounds). In response to any suggestion that physical force is inherent in the crime, note that the Minnesota statute may be violated by consensual sexual activity involving an eighteen-year-old adult residing intermittently in the home and a minor the day before her or his sixteenth birthday.

The Residual Clause: We turn to the second clause of the definition of a crime of violence, the "residual clause," for conduct that presents a serious potential risk of physical injury. As the Supreme Court requires under Begay, we may not use the case-specific approach of our earlier cases such as Shannon, and must use instead a categorical approach. We must "consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay, 553 U.S. at 141, 128 S.Ct. 1581; accord, United States v. Woods, 576 F.3d 400, 403-04 (7th Cir.2009), citing James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).

We first consider whether the statute categorically involves purposeful, violent, and aggressive conduct, as required by Begay. In McDonald, we held that a similar Wisconsin criminal sexual assault statute was not categorically violent because the statute was not limited to purposeful conduct. The Wisconsin statute stated: "Whoever has sexual contact or sexual...