United States v. Carter

• Decision Date: 08 June 2020
• Docket Number: No. 18-3713,18-3713
• Citation: 961 F.3d 953
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian K. CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

961 F.3d 953

UNITED STATES of America, Plaintiff-Appellee,

v.Brian K. CARTER, Defendant-Appellant.

No. 18-3713

United States Court of Appeals, Seventh Circuit.

Argued October 2, 2019

Decided June 8, 2020

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff - Appellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, for Defendant - Appellant.

Before Bauer, Ripple, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Brian Carter pleaded guilty to possessing a firearm as a felon, see 18 U.S.C. § 922(g), after police officers arrested him and found a stolen handgun in his possession. At sentencing, the district court calculated his Sentencing Guideline range based on a finding that he had previously sustained at least two felony convictions for "crimes of violence." U.S.S.G. § 2K2.1(a)(2). The court imposed a sentence of 105 months in prison, at the top of the resulting guideline range. Carter appeals, arguing that the district court erred in classifying two of his prior convictions as crimes of violence.

We affirm. Carter had at least two prior felony convictions that qualify as crimes of violence under the categorical approach required under the Guidelines. In light of the discussion that follows, we also remind district courts that the classification of prior convictions under the Sentencing Guidelines can produce abstract disputes that bear little connection to the purposes of sentencing. As the Sentencing Commission itself has recognized since the Sentencing Guidelines were first adopted, district judges may and should use their sound discretion to sentence under 18 U.S.C. § 3553(a) on the basis of reliable information about the defendant's criminal history even where strict categorical classification of a prior conviction might produce a different guideline sentencing range.

I. Factual and Procedural Background

Four months after escaping from a work-release facility, an intoxicated Brian Carter walked into an Illinois bar. He told an employee that the "Woodpile"—a white-supremacist gang—was searching for him and then walked out. The employee reported the incident to the police, who stopped Carter on the street shortly after and discovered an active arrest warrant related to his escape. As he was being handcuffed, Carter told the officers that he was "strapped" and gestured towards his pants with his head. Officers seized a stolen, loaded semi-automatic pistol from Carter's waistband. Carter had several prior felony convictions, so federal law prohibited him from possessing any firearms. He later pleaded guilty to unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g).

Section 2K2.1(2) of the Sentencing Guidelines sets the base offense level for a conviction under 18 U.S.C. § 922(g) at 24 for a defendant convicted of at least two prior "crimes of violence" as defined in U.S.S.G. § 4B2.1(a). According to his Presentence Investigation Report, Carter had two prior convictions that qualified as crimes of violence under that definition: assault with a deadly weapon (in California) and aggravated assault (in Iowa). The report did not contain many details about the California conviction but noted that the 2015 Iowa conviction resulted from a guilty plea in which Carter admitted that he "displayed a knife during an altercation ... in violation of sections 708.1 and 708.2(3) of the Iowa Criminal Code." The report also documented, but did not classify, a related 2015 Iowa conviction for domestic abuse assault in which Carter admitted that he "bit [his] wife ... on her cheek causing bodily injury." Based on the California conviction for assault with a deadly weapon and the Iowa conviction for aggravated assault, the report set Carter's base offense level at 24. Without any prior convictions for crimes of violence, the base offense level would have been 20, and with only one crime of violence, it would have been 22. U.S.S.G. § 2K2.1(a)(2)–(4).

The government agreed that the base offense level was correctly calculated but argued that all three convictions—including the Iowa conviction for domestic abuse assault—were crimes of violence under the Guidelines. For his part, Carter conceded that the California conviction for assault with a deadly weapon was a crime of violence. He argued, however, that the PSR set his base offense level too high because neither of his Iowa convictions qualified categorically as a crime of violence under the Guidelines. According to Carter, Iowa defined aggravated assault more broadly than the generic meaning of the offense and did not require the state to prove threatened use of physical force as an element. He further argued that the Iowa conviction for domestic abuse assault did not require proof that he used or threatened to use physical force. The district court "adopt[ed] the position of the government" that both Iowa convictions were crimes of violence" and ruled that Carter had three qualifying convictions without further elaboration. Starting with a base offense level of 24, the court added two more levels because Carter's firearm was stolen, § 2K2.1(b)(4), and subtracted three levels for acceptance of responsibility, § 3E1.1, producing a total offense level of 23. With criminal history category V, this calculation yielded a guideline range of 84 to 105 months in prison. The court sentenced Carter to 105 months in prison, the high end of that range.

II. Analysis

On appeal, Carter argues that the district court erred in calculating his guideline range by using base offense level 24. The Sentencing Guidelines are no longer binding, but the correct calculation of a defendant's guideline range is "the starting point and the initial benchmark" for federal sentencing. Gall v. United States , 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). An incorrect calculation of the guideline range is a procedural error that we presume influenced the sentence unless the judge said otherwise. E.g., United States v. Marks , 864 F.3d 575, 582 (7th Cir. 2017), citing United States v. Adams , 746 F.3d 734, 743 (7th Cir. 2014) ; see generally Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1347–48, 194 L.Ed.2d 444 (2016) (under plain-error review, even a guideline error not challenged in district court is presumed to affect defendant's substantial rights, at least if sentencing court did not indicate it would have imposed same sentence absent the error).

Carter concedes that his California conviction for assault with a deadly weapon counts as a crime of violence, so if either of the Iowa convictions properly counts, the district court's guideline calculation was correct. We conclude that his conviction for aggravated assault counts as a crime of violence under the "elements clause" of the guideline definition. That's enough to affirm.

Application Note 1 of U.S.S.G. § 2K2.1 instructs courts to determine the base offense level for a violation of 18 U.S.C. § 922(g)(1) by using the definition of "crime of violence" in the career offender guideline, § 4B1.2(a) and its Application Note 1. Here is the definition:

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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use of unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a).

We review de novo whether prior offenses are crimes of violence under the Sentencing Guidelines. United States v. Edwards , 836 F.3d 831, 834 (7th Cir. 2016). To determine whether a prior conviction amounts to a "crime of violence," we apply a categorical approach that compares the elements in the statute of conviction to the federal statute or guideline definition. E.g., Descamps v. United States , 570 U.S. 254, 260–61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The categorical approach has developed primarily under the mandatory statutory provisions of 18 U.S.C. § 924(c) and (e), as in Descamps , but it also applies under guideline provisions such as § 4B1.2. See Edwards , 836 F.3d at 834–35. If the state law defines an offense more broadly than the Guidelines, the prior conviction does not qualify as a crime of violence; if the state-law elements match up with or are narrower than the Guidelines, however, then the prior conviction qualifies. Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (applying 18 U.S.C. § 924(e) ).

When the statute of conviction contains multiple parts, the comparison is more complex. A statute may create multiple offenses, each with its own distinct set of elements, or it may list multiple "means" of satisfying broader elements. Haynes v. United States , 936 F.3d 683, 688 (7th Cir. 2019). A statute that creates multiple offenses is "divisible," and if it is not clear from the prior judgment which portion was violated, a court may modify the categorical approach to examine a limited set of documents to determine the crime of conviction. See Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2250, 195 L.Ed.2d 604 (2016) ; Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). If the state statute lists only "means"—alternative ways of committing a crime—so that jurors may convict without agreeing on how a defendant committed it, the statute is not divisible. Mathis , 136 S. Ct. at 2251. Whether particular variants of a statute are "means" or "elements" is thus a threshold inquiry. A state supreme court decision construing the statute can provide the answer.

Id . at 2256. In the absence of a controlling court decision, the text and structure of the statute may resolve the...