USA v. Dewitt Fife

• Decision Date: 12 October 2010
• Docket Number: No. 09-2310.,09-2310.
• Citation: 624 F.3d 441
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. DeWitt FIFE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

624 F.3d 441

UNITED STATES of America, Plaintiff-Appellant,

v.DeWitt FIFE, Defendant-Appellee.

No. 09-2310.

United States Court of Appeals,Seventh Circuit.

Argued April 23, 2010.

Decided Oct. 12, 2010.

COPYRIGHT MATERIAL OMITTED.

Mel S. Johnson, Attorney (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellant.

Nancy Joseph, Attorney (argued), Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Defendant-Appellee.

Before MANION and ROVNER, Circuit Judges, and HIBBLER, District Judge. ^*

ROVNER, Circuit Judge.

This appeal presents the relatively rare government appeal of a criminal sentence, challenging the district court's determination that Dewitt Fife's prior convictions did not satisfy the requirements of the Armed Career Criminal Act (“ACCA”) and therefore that he was not subject to the increased sentence under that Act. The unusual twist here is that the same criminal history was deemed sufficient by this court 14 years ago to meet the requirements of that same Act. United States v. Fife, 81 F.3d 62 (7th Cir.1996). The district court held in this case, however, that a subsequent Supreme Court decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), altered the analysis and thus the result.

In 1995, Fife was convicted in federal court of a number of firearms-related charges. At that time, his criminal history included convictions for: burglary in 1980; aggravated arson in 1984; manufacturing or delivery of controlled substances in 1989; and armed violence in 1989. Based on those prior convictions, the court sentenced Fife as an armed career criminal under 18 U.S.C. § 924(e) of the ACCA, which provides for a minimum sentence of 15 years for defendants who meet certain criteria, including three predicate violent felonies.

That steep sentence did not, apparently, prompt Fife to abandon his criminal path. On September 16, 2008, he was indicted for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He pled guilty to that charge, and at sentencing the court considered whether he was an armed career criminal subject to the mandatory minimum of 15 years pursuant to 18 U.S.C. § 924(e)(1). The government relied on the same convictions of burglary, aggravated arson, and armed violence in arguing that he remained an armed career criminal for purposes of the ACCA. The district court, however, determined that he was not an armed career criminal and sentenced him to 48 months in prison, a sentence that was 11 months above the applicable range of the Sentencing Guidelines but significantly less than he would have faced had he been deemed an armed career criminal. The government appeals that determination to this court.

I.

The parties dispute the proper application of the Armed Career Criminal Act, thus we begin with the relevant language of that Act:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be ... imprisoned not less than fifteen years....

18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as:

[B] ... any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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) (emphasis added).

The emphasized language, regarding conduct that “presents a serious potential risk of physical injury to another,” is known as the residual clause, and is the critical phrase for this appeal. The three previous convictions which the court considered in determining armed career criminal status are the convictions for: burglary in 1980; aggravated arson in 1984; and armed violence in 1989. There is no debate in this appeal as to the applicability of the burglary and aggravated arson convictions, but Fife argues that the armed violence conviction is not for “conduct that presents a serious potential risk of physical injury to another” as that term is understood by the courts. Although we held that it met that definition at the time of Fife's earlier federal conviction, Fife, 81 F.3d 62, Fife argues that the Supreme Court in Begay clarified the meaning of that phrase, and that his armed violence conviction does not fall within it. In Begay, 553 U.S. at 142-43, 128 S.Ct. 1581, the Supreme Court made clear that the residual clause of the ACCA encompassed only offenses that were similar to the enumerated crimes of burglary, arson, extortion, or crimes involving the use of explosives, both in kind as well as in the degree of risk posed. United States v. Woods, ¹ 576 F.3d 400, 407 (7th Cir.2009). Begay therefore clarified that only offenses that reflected the same “purposeful, violent, and aggressive manner” as the listed crimes would fall within the residual clause. Begay, 553 U.S. at 144-45, 128 S.Ct. 1581; Woods, 576 F.3d at 407.

The difficulty in analyzing the armed violence conviction under the ACCA stems from its broad reach. The Illinois armed violence statute, 720 ILCS 5/33A-2, is violated when, while armed with a dangerous weapon, a person “commits any felony defined by Illinois Law” with the exception of murder and a number of other enumerated felonies-none of which are applicable here. The district court's determination that the armed violence conviction did not fall within the ACCA was based primarily on its conclusion that at least some categories of armed violence could not be considered violent felonies under the ACCA. As an example, the district court noted that a person arrested for driving under the influence who had a firearm in his vehicle would fall within the Illinois armed violence statute. Similarly, Fife references the possibility of a person convicted of armed violence because she possessed a gun while filing a false tax return. Those armed violence convictions presumably would not be “purposeful, violent, and aggressive” as required after Begay in order for a conviction to fall within the residual clause of the ACCA. Because the Illinois armed violence statute includes offenses such as those, the district court and Fife assert that the armed violence conviction cannot fall within the ACCA. A proper analysis of the ACCA, however, reveals that their concerns are unfounded and that the armed violence conviction in this case constitutes a violent felony for purposes of the ACCA.

II.

Whether a prior conviction constitutes a violent felony under the ACCA is a legal conclusion that we review de novo. United States v. Sykes, 598 F.3d 334, 335 (7th Cir.2010). Our initial task is to identify precisely what offense is involved. United States v. McDonald, 592 F.3d 808, 810 (7th Cir.2010). That inquiry is a categorical one, focusing on the particular elements of the statutory offense, without consideration of the underlying facts of the individual case. Id.; Woods, 576 F.3d at 403; United States v. Dismuke, 593 F.3d 582, 589 (7th Cir.2010). At times, however, analysis of the elements reveals that a statute may be violated in several ways, such as a statute which creates more than one crime or one that defines one crime with multiple enumerated modes of commission. Woods, 576 F.3d at 405-06; Sykes, 598 F.3d at 339; Johnson v. United States, ---U.S. ----, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010). In that case, some of those modes of conduct may constitute a violent offense under the ACCA, whereas other branches of the statute do not. It is critical, then, to determine precisely which offense is involved within that statutory scheme. Under those conditions, courts may employ a “modified categorical approach” to determine the statutory offense at issue. McDonald, 592 F.3d at 810-11; Woods, 576 F.3d at 405-06; United States v. Sykes, 598 F.3d 334, 339 (7th Cir.2010).

Because the inquiry must remain an objective one, focused on identifying the statutory offense itself but not the individual actions in the particular case, the modified categorical approach allows consideration of a limited range of outside documents to isolate the specific statutory offense which formed the basis for the conviction. Documents which may be consulted under this approach include the charging document, the plea agreement or the transcript of the colloquy between the judge and the defendant in which the factual basis for the plea was confirmed by the defendant, or comparable judicial records of such information. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Welch v. United States, 604 F.3d 408, 421 (7th Cir.2010); Woods, 576 F.3d at 404; Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 691, 172 L.Ed.2d 484 (2009). Reports focusing on the individual conduct of the defendant such as arrest reports are not considered. Welch, 604 F.3d at 422.

A.

Although Fife argues that the statute must be considered as a whole without any subdivisions, and the district court apparently accepted that viewpoint, the armed violence offense in this case encompasses the type of statute for which the modified categorical approach is appropriate. The armed violence statute applies whenever a person commits a felony while armed with a dangerous weapon. In order to determine the precise statutory offense, therefore, we need to first identify the underlying felony. Ascertaining the underlying felony merely identifies the precise offense, but...