U.S. v. Terry, s. 89-1885

• Decision Date: 25 April 1990
• Docket Number: 89-2000 and 89-2005,Nos. 89-1885,s. 89-1885
• Citation: 900 F.2d 1039
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee TERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1039

900 F.2d 1039

UNITED STATES of America, Plaintiff-Appellee, v. Lee TERRY, Defendant-Appellant.

Nos. 89-1885, 89-2000 and 89-2005.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 15, 1990.

Decided April 19, 1990.

As Amended April 25, 1990.

Richard N. Cox, Asst. U.S. Atty., Danville, Ill., for plaintiff-appellee.

Michael R. Cornyn, Thomas, Mamer & Haughey, Champaign, Ill., for defendant-appellant.

Before WOOD, Jr., COFFEY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Lee Terry pleaded guilty to armed robbery of a credit union in violation of 18 U.S.C. Sec. 2113(a) and (d). At sentencing, the district court found the applicable Guideline range to be insufficient and departed upward, enhancing both the defendant's Criminal History Category and Offense Level in sentencing the defendant to 130 months incarceration followed by a five-year term of supervised release. The defendant appeals the court's enhancement and subsequent upward departure. The government cross-appeals, claiming that the district court erred in refusing to enhance the defendant's sentence as a career offender pursuant to Sec. 4B1.1 of the Guidelines.

I.

On July 28, 1988, a grand jury indicted defendant Lee Terry on charges of armed robbery of a credit union in violation of 18 U.S.C. Sec. 2113(a) and (d), along with the use of a firearm in the commission of a violent felony in violation of 18 U.S.C. Sec. 924(c). On October 3, 1988, Terry entered a plea of guilty to the armed robbery charge pursuant to a plea agreement in which the government agreed to dismiss the Sec. 924(c) charge at sentencing. Following the plea a presentence report was prepared which calculated the applicable sentencing range under the Sentencing Guidelines. The report calculated Terry's initial Criminal History Category as IV and Offense Level as 22 but concluded that based on the defendant's 1971 conviction for armed robbery and 1985 conviction for aggravated battery, he had two prior convictions involving crimes of violence and thus he should be sentenced as a career offender pursuant to Sec. 4B1.1 of the Guidelines. This determination served to elevate Terry's Criminal History Category to VI and Offense Level to 34, resulting in an applicable sentencing range of 262-327 months.

At sentencing, Terry challenged the report's finding that he was a career offender, contending that he lacked the requisite two prior felony convictions for crimes of violence. He argued that his 1985 state conviction for aggravated battery was not a felony or a "crime of violence" but was rather a misdemeanor conviction in which he did not engage in any violent activity. In support of this claim, he presented the testimony of his appointed attorney in that conviction, Pricilla Ebden, who testified that Terry was a bystander to the underlying events and that there was nothing in the evidence to indicate that he participated in any violence. She further testified that his trial had resulted in a mistrial because the jury could not reach a decision, and that the State had threatened to hold the defendant for up to six months before retrying the case. In that circumstance, she stated, the defendant agreed to the State's offer of a plea of guilty to aggravated battery for a sentence of confinement for time already served (188 days) and one year conditional discharge. This enabled him to be released from prison at the earliest possible time. Based on this uncontroverted testimony, the trial court found that the 1985 aggravated battery conviction was not a "crime of violence" and should be treated as a misdemeanor for the purposes of Sec. 4B1.1. The court reasoned that although the conviction had a felony title, the state prosecutor had been willing to treat the offense as a misdemeanor, and the actual sentence imposed was appropriate for a misdemeanor rather than a felony. The court concluded, therefore, that the career offender provision did not apply.

The trial court then determined that the defendant's initial Criminal History Category of IV and Offense Level of 22 with an applicable range of 63-78 months was insufficient and departed upwards. Initially, the court considered departing to Category VI, Level 22, but found that the applicable range of 84-105 months "would denigrate the seriousness of the defendant's offense." Therefore, the court departed further upward to Category V, Level 28, arriving at a sentencing range of 130-162 months, and sentenced the defendant to 130 months followed by a five year term of supervised release. The defendant appeals, contending that the district court failed to follow the dictates of the Guidelines in enhancing his Criminal History Category and Offense Level and departing upward. The government also appeals, challenging the district court's refusal to enhance the defendant's sentence as a career offender pursuant to Sec. 4B1.1.

A.

We begin with the government's claim. Under Sec. 4B1.1 of the Guidelines, a defendant is considered a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense 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 where each was either a "crime of violence" or a controlled substance offense. The government's claim concerns whether Terry had the requisite two prior felony convictions involving crimes of violence. Terry admits that his 1971 conviction for armed robbery was a crime of violence for the purposes of Sec. 4B1.1. As mentioned above, the district court reviewed the underlying facts of his 1985 aggravated battery conviction and determined that it was not a crime of violence and that it was a misdemeanor rather than a felony. The government's principle contention on appeal is that the district court committed reversible error because the Guidelines expressly confine the sentencing court to the statutory elements of the offense in making such a determination. The government argues that since aggravated battery is classified as a Class 3 felony which carries a possible sentence of 2-5 years imprisonment under Illinois law, and has an element of physical violence in its statutory definition, Ill.Rev.Stat. Ch. 38, Sec. 12-4(a), the court is bound to consider it a felony conviction for a crime of violence. ¹ We disagree.

The Guidelines define a "crime of violence" as an offense that:

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

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. Sec. 16 (1988); Guidelines Sec. 4B1.2(1). ² The language of subsection (a) of this provision appears, at first blush, to support the government's position since the statutory definition of aggravated battery includes as an element the use of physical force. The Guidelines, however, must be read in light of their Commentary. "The Sentencing Commission's application notes are contemporaneous explanations of the Guidelines by their authors and are entitled to substantial weight." United States v. White, 888 F.2d 490, 494 (7th Cir.1989); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989). Here, the application note to the Commentary under Sec. 4B1.2 provides:

The Commission interprets [crimes of violence] as follows: murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sexual offenses, arson, or robbery are covered by this provision. Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction for an escape accomplished by force or threat of injury would be covered; conviction for an escape by stealth would not be covered. Conviction for burglary of a dwelling would be covered; conviction for burglary of other structures would not be covered.

Sec. 4B1.2, application note 1. We read this note as vesting a sentencing court with the discretion to explore the underlying facts of a prior conviction when that conviction is for a crime that is not one of the crimes specifically enumerated in the application note. When the offense is not one expressly enumerated in the note, the proper inquiry for the court is whether the conduct for which the defendant was specifically convicted involved the substantial risk that force may have been used. This is precisely what the sentencing court did in the case at bar. Aggravated battery is not one of the offenses enumerated in the application note to Sec. 4B1.2 and thus the court properly turned to an examination of the underlying facts to determine whether the specific conduct for which the defendant was convicted, by its nature, involved a substantial risk that physical force would be used. The trial court did not err in undertaking such an inquiry.

Our interpretation of the discretion vested in the trial court under the Guidelines' career offender provisions finds further support in another section of the Guidelines. Section 1B1.3(b), entitled "Relevant Conduct (Factors that Determine the Guideline Range)," provides that "[t]o determine the criminal history category and applicability of the career offender and criminal livelihood guidelines, the court shall consider all conduct relevant to a determination of the factors" specified in the Guidelines. Sec. 1B1.3(b) (emphasis added). Furthermore, the Commentary to Sec. 1B1.3 provides that "[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into a determination of the applicable sentencing range."

Other courts that have addressed whether a sentencing court may properly examine the underlying facts of a particular conviction as directed by the ...