USA v. Aviles-solarzano

• Citation: 623 F.3d 470
• Decision Date: 13 October 2010
• Docket Number: No. 09-3992.,09-3992.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cirilo AVILES-SOLARZANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

623 F.3d 470

UNITED STATES of America, Plaintiff-Appellee,

v.Cirilo AVILES-SOLARZANO, Defendant-Appellant.

No. 09-3992.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 20, 2010.

Decided Oct. 13, 2010.

Jessica Romero (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Janis D. Roberts (argued), Durkin & Roberts, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and POSNER and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The defendant pleaded guilty to having reentered the United States after having been removed (deported) as an illegal alien, in violation of 8 U.S.C. § 1326(a). The judge sentenced him to 70 months in prison. This was below the federal sentencing guidelines range of 77 to 96 months that she thought applicable, but considerably above the guidelines range of 33 to 41 months that would have been applicable had she not determined that the defendant's conviction for aggravated battery under Illinois law at a time when he was in the United States illegally was a conviction for a “crime of violence” within the meaning of section 2L1.2(b)(1)(A)(ii) of the guidelines. That section defines the term, so far as bears on this case, as a crime “that has as an element the use, attempted use, or threatened use of physical force,” which the Supreme Court has interpreted to mean “force capable of causing physical pain or injury to another person.” Johnson v. United States, --- U.S. ----, 130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010). The crime must, moreover, be a felony to count as a crime of violence.

U.S.S.G. § 2L1.2, Application Note 1(B)(iii).

Under Illinois law “a person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3(a). This is “simple battery,” a misdemeanor. Id., 5/12-3(b). A person commits “aggravated battery,” a felony, either if, “in committing a [simple] battery, [he] intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement,” id., 5/12-4(a), or if the battery involves one or more aggravating factors other than intentionally or knowingly causing great bodily harm or permanent disability or disfigurement. Id., 5/12-4(b). The present case is of the second type, and the aggravating factor is committing the battery on a “public way.” Id., 5/12-4(b)(8). It may seem odd that committing a battery on a street or a sidewalk rather than on private property should make it a felony; but a battery that occurs in private is less worrisome to the public at large because more likely to arise from a private quarrel than from a mugging-or so at least the Illinois legislature seems to have believed. See People v. Cole, 47 Ill.App.3d 775, 6 Ill.Dec. 3, 362 N.E.2d 432, 435 (1977).

The district judge ruled that the defendant had committed a battery on a public way, and therefore a crime of violence within the meaning of the sentencing guideline, and it was on this basis that she concluded that the 77 to 96 month guidelines range was the proper starting point for deciding how long a sentence to impose. The defendant challenges that ruling. He also complains that the judge should have dipped even farther below the applicable guideline range in sentencing him than she did, but that complaint is frivolous and requires no discussion.

He begins by noting correctly that not every crime that Illinois classifies as an aggravated battery is a crime of violence within the meaning of the sentencing guideline. Violence is not an element of battery under Illinois law, or even of aggravated battery under 720 ILCS 5/12-4(b), as distinct from under 4(a). Remember that under 4(b) aggravated battery is simple battery plus an aggravating factor, and neither simple battery nor the 4(b) aggravating factor need be violent. Simple battery can consist of just “physical contact of an insulting or provoking nature” with the victim, and the aggravating factor can just be the fact that, as in this case, the simple battery occurred on a public way. But this means that had the defendant merely spat on his victim while the two were standing on a public sidewalk, this would be an aggravated battery but not a crime of violence, as it would involve a merely “insulting or provoking” physical contact. The terms “insulting” and “provoking” are taken from the common law tort of battery, which requires only an offensive contact-the sort of thing that might provoke a breach of the peace. Spitting on a person is the standard example of a provoking act, e.g., Alcorn v. Mitchell, 63 Ill. 553 (1872); Cohen v. Smith, 269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329, 331-33 (1995), as distinct from a violent one. Cf. United States v. Evans, 576 F.3d 766, 767-68 (7th Cir.2009) (per curiam). By its reference to conduct that “causes bodily harm,” the statute embraces violent batteries as well, id. at 768-69; Allstate Ins. Co. v. Kovar, 363 Ill.App.3d 493, 299 Ill.Dec. 916, 842 N.E.2d 1268, 1270-71 (2006), but just being told that a person was convicted of aggravated battery because he committed a battery on a public way does not enable an inference that he was convicted of a crime of violence.

When the same state criminal statute punishes conduct that is and conduct that is not a crime of violence for purposes of federal sentencing, the federal court is not permitted to determine which kind of conduct the defendant engaged in if the determination would require resolving a factual dispute. For that would require a trial within the sentencing hearing and if the result was to increase the maximum punishment of the defendant would infringe his constitutional right to trial by jury. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir.1997) (en banc); United States v. Browning, 436 F.3d 780, 780-82 (7th Cir.2006). “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Taylor v. United States, supra, 495 U.S. at 600, 110 S.Ct. 2143.

The Supreme Court thus held in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), that in seeking to classify a prior state conviction for federal sentencing purposes the sentencing judge “is limited to the terms of the charging document, the terms of a plea agreement or transcript or colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” See also United States v. Ramirez, 606 F.3d 396, 398 (7th Cir.2010); United States v. Dismuke, 593 F.3d 582, 589 (7th Cir.2010). There is no objection to using judicial admissions, such as admissions in a guilty-plea hearing (including the guilty plea itself), to determine whether the crime of which the defendant was convicted is within a category specified by federal law because judicial admissions bind the defendant in subsequent proceedings and so avoid any occasion for the federal sentencing judge to determine contested facts regarding an earlier crime.

The judge in this case did not base her determination that the defendant's aggravated battery was a crime of violence on a judicial record, however-not directly at any rate. She based it on a summary in the presentence investigation report of the two-count indictment in the battery case, and on the further statement in the report that the defendant had pleaded guilty to both counts. A presentence investigation report is prepared by the federal probation service. Fed.R.Crim.P. 32(c), (d). It is not a judicial record.

One count in the indictment, according to the summary, was not a battery count at all; it charged the defendant with having committed theft by reaching into his victim's pocket and removing $10 from it. There is no contention that this count charged a crime of violence. The other count, however, charged the defendant with having committed aggravated battery by having “knowingly caused bodily harm” to the victim (the same person named in the theft count) by “stri [king him] in the face with his fist” on a public sidewalk.

Here is the summary in full:

According to the indictment filed, the defendant on or about August 18, 2006, committed the offense of theft, in that he knowingly obtained unauthorized control over the property of James R. Raymond, being $10.00 in United States currency, intending to deprive James R. Raymond permanently of the use or benefit of such property, in that he forcefully removed such property from the person of James R. Raymond, by reaching into the pocket of James R. Raymond. The indictment further charges that, on [or about August 18, 2006], the defendant committed the offense of aggravated battery in that, while James R. Raymond was on a public sidewalk, located in Villa Park, Illinois, the defendant knowingly caused bodily harm to James R. Raymond, in that he struck James R. Raymond in the face with his fist.

The defendant as we said pleaded guilty to both theft and aggravated battery, and since punching someone in the face is a crime of violence within the meaning of the relevant sentencing guideline because it involves the use of physical force “capable of causing physical pain or injury to another person,” Johnson v. United States, supra, 130 S.Ct. at 1271; United States v. Rodriguez-Gomez, 608 F.3d 969, 973 (7th Cir.2010), the defendant may seem nailed. But there's a rub. The indictment was never placed in the record, either in the district court or in this court. All we have is the summary. In Rodriguez-Gomez we held that a quotation from the indictment in a government submission to the probation service that was...