U.S. v. Sperberg, 04-4135.

• Decision Date: 19 December 2005
• Docket Number: No. 04-4135.,04-4135.
• Citation: 432 F.3d 706
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roland C. SPERBERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

432 F.3d 706

UNITED STATES of America, Plaintiff-Appellee, v. Roland C. SPERBERG, Defendant-Appellant.

No. 04-4135.

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2005.

Decided December 19, 2005.

Rita M. Rumbelow (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Christopher T. Van Wagner (argued), Van Wagner & Wood, Madison, WI, for Defendant-Appellant.

Before COFFEY, EASTERBROOK, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

Normally the maximum penalty for possessing a firearm despite a prior felony conviction is 10 years' imprisonment. 18 U.S.C. § 922(g). But Roland Sperberg, who pleaded guilty to that offense, has been sentenced to 210 months because the district judge concluded that he had been convicted of at least three other "violent felonies." The Armed Career Criminal Act, 18 U.S.C. § 924(e), exposes such recidivists to life imprisonment (with a minimum term of 15 years). Sperberg contends that the jury rather than the judge should have determined whether he has the requisite number of qualifying felony convictions, but Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), scotches that contention. As recently as United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court has treated prior convictions as an exception to the rule that juries determine all facts that affect maximum available punishments. We must follow Almendarez-Torres unless the Justices direct otherwise, so we turn to the meaning of § 924(e).

"Violent felony" is a defined term. It "means any crime punishable by imprisonment for a term exceeding one year . . . that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another". 18 U.S.C. § 924(e)(2)(B). Sperberg has a lengthy record, and many of his convictions may come within this definition. The district judge specified three in particular, and Sperberg concedes that one fits the bill. He contends, however, that the other two do not.

One of these two is a conviction for threatening a security guard. Sperberg stole some lobster tails from a grocery store. While making his escape, he told the guard to get out of the way because he had a gun. He was convicted of violating Wis. Stat. § 943.30(1). The district court treated this offense as a "violent felony" under subsection (i) because § 943.30(1) has as an element "the threatened use of physical force against the person of another". Sperberg replies that two kinds of threat violate § 943.30(1): a threat to injure another, and a threat to accuse another falsely of crime. Moreover, Wisconsin equates physical and economic injury: a threat to injure the guard in his wallet by trashing his car would violate the statute. Only by examining the charging documents could the federal court know which kind of threat had been entailed, and Sperberg insists that courts must stop with the statutory definition. (Sperberg pleaded nolo contendere; as a practical matter, the criminal information and plea colloquy are the full record.)

True it is that recidivist enhancements depend on what the person stands convicted of and not what he did in fact. See, e.g., United States v. Howze, 343 F.3d 919, 921 (7th Cir.2003). Usually this means sticking with the text of the statute. But when a law specifies multiple ways to commit an offense—one within the scope of a recidivism enhancement and the other not—the federal court may examine the charging papers and plea colloquy to determine which variety of offense the conviction reflects. See, e.g., Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1257, 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).

The charge was that Sperberg threatened the guard, and during the plea colloquy the state judge said that the threat had been with a gun (the affidavit supporting the criminal information, and deemed part of the charge under state practice, says that Sperberg told the guard: "I've got a gun and I'll shoot you"); Sperberg did not reply that he had instead threatened to accuse the guard of crime or vandalize his car. The district judge here looked no further than Shepard and Taylor allow; he did not turn to police reports or equivalent documents. The state judge let Sperberg off with a slap on the wrist, apparently thinking that Sperberg had been too drunk and high on other drugs to follow through, but this does not alter the nature of the crime. Sperberg's conviction under § 943.30(1) has been classified correctly.

Drunk driving is the second conviction in question—but not just any drunk driving. Wisconsin treats driving under the influence as a misdemeanor, but, after a sequence of convictions have been ineffectual in deterring repetition, Wisconsin elevates the offense to a felony. Thus Sperberg's eighth conviction for driving while intoxicated was a felony under state law, see Wis. Stat. § 346.63(1)(b), § 346.65(2)(e), and because it was punishable by imprisonment for more than one year met the first requirement of § 924(e). But the state law does not include actual or threatened use of force as an element; it is possible to operate a vehicle while under the influence without hitting another car or threatening to do so. Thus the question becomes whether this offense satisfies subsection (ii) because it "involves conduct that presents a serious potential risk of physical injury to another". Our decision in United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), gives an affirmative answer, holding that drunk driving poses serious risks to other motorists and pedestrians—which is, after all, why it is forbidden.

Although Rutherford dealt with a provision of the Sentencing Guidelines now codified at U.S.S.G. § 4B1.2(a)(2), its language is identical to that of § 924(e)(2)(B)(ii). Context as well as the text is identical; there is no basis for reading these provisions differently. This leads Sperberg to contend that Rutherford is wrongly decided and should be discarded. He relies on Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), which holds that drunk driving is not a ...