UNITED STATES of America, Plaintiff-Appellee, v. Matthew EVANS, Defendant-Appellant.
No. 08-2424.
United States Court of Appeals, Seventh Circuit.
Decided Aug. 13, 2009.
Rehearing Denied Oct. 13, 2009.
Argued Jan. 5, 2009.
Thus, we find no abuse of discretion in the district court‘s handling of Juror No. 1‘s statement. In any event, the error, were there one, would be harmless. The evidence yielded in the two searches is extensive and quite damning of Smith, and the government had other evidence as well, including testimony from various coconspirators. Therefore, we hold that Smith is not entitled to a new trial.
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The judgment of the district court is AFFIRMED.
Mark Maciolek, Attorney, Madison, WI, for Defendant-Appellant.
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
PER CURIAM.
The defendant was convicted of armed bank robbery and related crimes and sentenced to 382 months in prison. The sentence was within the guidelines range, but only because the district judge deemed the defendant‘s previous conviction of aggravated battery in violation of Illinois law a “crime of violence” within the meaning of section 4B1.2(a) of the federal sentencing guidelines. The appeal challenges that ruling.
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.”
So was his conviction of “aggravated battery” a conviction of a “crime of violence“? It was if the crime of which he was convicted has “as an element the use, attempted use, or threatened use of physical force against the person of another,”
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, as it did here: the provoker was stabbed by his victim.
To fall under the second subsection of section 4B1.2(a) of the guidelines, the crime must be similar to the offenses listed in that subsection—similar, that is, to burglary of a dwelling, arson, extortion, any crime that involves the use of explosives, or any other crime that presents a serious risk of physical injury. Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008); James v. United States, 550 U.S. 192, 203-09, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Merely careless (even though criminal and dangerous) conduct will not suffice, however. Begay v. United States, supra, 128 S.Ct. at 1586-88; United States v. Woods, 576 F.3d 400, 409-13 (7th Cir.2009). That is not a problem in this case; the Illinois statute requires that the defendant‘s “insulting or provoking” physical contact with the victim be intentional or, what amounts to the same thing, knowing. See, e.g., United States v. Holland, 831 F.2d 717, 722-23 (7th Cir.1987). But an “insulting or provoking” physical contact, though intentional, could be no more violent than spitting, and a battery that consists merely of deliberately spitting on someone is not comparable to burglary, arson, extortion, or a crime involving the use of explosives. Nor could it be said to present a serious risk of physical injury, United States v. Jones, 235 F.3d 342, 346-48 (7th Cir.2000), though some courts would disagree, most clearly the Tenth Circuit. See United States v. Paxton, 422 F.3d 1203, 1205-07 (10th Cir.2005).
Although the words “insulting or provoking” make it sound as if all that the Illinois legislature had in mind is the kind of light offensive touching familiar from civil battery cases, the Illinois courts have held that it embraces more forceful blows as well, the kind that as in this case can knock a person to the ground. Allstate Ins. Co. v. Kovar, 363 Ill.App.3d 493, 299 Ill.Dec. 916, 842 N.E.2d 1268, 1270-71 (2006); People v. Young, 362 Ill.App.3d 843, 298 Ill.Dec. 712, 840 N.E.2d 825, 832-33 (2005); cf. People v. Reynolds, 359 Ill.App.3d 207, 295 Ill.Dec. 361, 832 N.E.2d 512, 517 (2005). Were it not for this judicial gloss, the aggravated-battery statute would fail to reach a class of batteries that is at least as serious as the ones it does reach. Kissing a pregnant woman knowing she didn‘t want to be kissed is an aggravated battery. But if the statute is confined to physical contacts that, like kissing, do not inflict any bodily harm, then if the defendant‘s victim did not belong to any of the vulnerable groups enumerated in
Thus, the same statute, the same form of words, embraces two crimes: offensive
Woods was circulated to the full court in advance of issuance, and a majority voted not to hear the case en banc. Woods governs, and requires that the defendant be resentenced. His sentence is therefore VACATED.
POSNER, Circuit Judge, with whom Chief Judge EASTERBROOK joins, concurring.
The Woods decision compels reversal, but I do not agree that the rule it lays down is sound. The rule is that if a statute punishes two crimes, one a crime of violence, one not, under the same name (in this case, “aggravated battery” defined as intentionally or knowingly making physical contact of an insulting or provoking nature with a pregnant woman), the defendant cannot be given the sentencing guidelines’ crime-of-violence enhancement unless the statute is generally violated by the crime of violence. It is not enough that, as in this case, as the per curiam opinion makes clear, the defendant committed the “crime of violence” version of the statutory offense, the statutory offense being battery of a pregnant woman.
A sentencing judge is not permitted to base a recidivist enhancement on conduct that violates a statute other than the one the defendant had been charged with violating. The judge is not to base the sentence on his “own conception of the offense actually constituted by the defendant‘s conduct.” Stephen J. Schulhofer, “Due Process of Sentencing,” 128 U. Pa. L.Rev. 733, 757 (1980). He is not to “consider the nature and characteristics of the criminal conduct involved without regard to the offense charged.” Michael H. Tonry, “Real Offense Sentencing: The Model Sentencing and Corrections Act,” 72 J.Crim. L. & Criminology 1550, 1555-56 (1981) (emphasis in original).
Suppose, therefore, that Evans had been indicted and convicted of simple larceny based on his theft of Lauderdale‘s television set, and at the guilty-plea hearing the prosecutor described the circumstances surrounding the theft, including the pushing of Lauderdale, and the defendant admitted under oath that the circumstances had been exactly as the prosecutor described. Nevertheless the district judge, in applying the guidelines in the present case, would not have been authorized to treat the defendant‘s conviction of simple larceny (akin to stealing a bicycle from a bicycle stand, the owner being nowhere in
But since the statutory term “insulting or provoking” covers a range of kinds or concepts of battery, some of which create a serious risk of injury and some of which do not, and the indictment or other charging document does not indicate where in the range the defendant‘s conduct fell, we can look at the record of the guilty-plea hearing to disambiguate the application of statute to the case. In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court ruled that if burglary under state law includes entry into a boat, but “crime of violence” for purposes of the Armed Career Criminal Act requires entry into a building, the sentencing judge can, and in fact has to, look to the guilty-plea hearing to determine whether the defendant admitted to entering a building. See also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); United States v. Smith, 544 F.3d 781, 786-87 (7th Cir.2008); United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir.2008); United States v. Rosa, 507 F.3d 142, 151-54 (2d Cir.2007).
Shepard was a case in which the same state criminal statute punished both conduct that was not a crime of violence under federal law and conduct that was: punished, in effect, two crimes, and the question was which the defendant had committed. To answer that question required knowing what the defendant had done. Admissions in a guilty-plea hearing, being 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 for purposes of deciding which niche it fits in—the offense that is not a crime of violence or the offense that is, both being covered by the same statutory language. Brown v. Green, 738 F.2d 202, 206 (7th Cir.1984); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003). The making of such a factual determination would be objectionable as requiring trials within sentencing hearings and (if the result was to increase the maximum punishment of the defendant) infringing the right to trial by jury conferred by the Sixth Amendment. Taylor v. United States, supra, 495 U.S. at 600-02, 110 S.Ct. 2143; 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); United States v. Rosa, supra, 507 F.3d at 152-53. The question in this case as in Taylor is not what the defendant did—that is not in dispute—but what crime he was convicted of. “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.” 495 U.S. at 600, 110 S.Ct. 2143.
It is the same here. A single statutory provision creates crimes both within the federal domain and outside it. In Chambers v. United States, supra, the two crimes were breaking out of a jail and failing to report for weekend confinement, and the Court held that the latter was not
I cannot see what difference it makes that these crimes are not in separate sections of the battery statute. The division of a statute into sections has never been regarded as having substantive significance; it is merely a device for ease of reference. No Supreme Court decision attaches significance to the presence or absence of sections. If the same section covers two crimes, the court can look at the conceded facts of the defendant‘s conduct to determine which crime the defendant committed. The “categorical” approach requires the court to identify the crime committed by the defendant and to stop there and not consider how he committed it—whether for example he committed a crime in a violent manner though violence was not an element of the crime. That limitation upon the court‘s inquiry does not make “category” a synonym for “section.”
Since the indictment doesn‘t indicate which kind of battery the defendant committed, we may look behind the indictment to the factual allegations that the defendant admitted in pleading guilty, and when we do this we learn that he not only shoved a pregnant woman to the ground but by shouting for “the girls” to beat her up made her fear a more serious physical injury—and the combination of physical force and fear of serious injury could induce a miscarriage. Cf. Brownback v. Frailey, 78 Ill.App. 262 (Ill.App.1898); Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 1023-24 (1906); Whitsel v. Watts, 98 Kan. 508, 159 P. 401, 401-02 (1916); Kirby v. Jules Chain Stores Corp., 210 N.C. 808, 188 S.E. 625 (1936). In the language of the guideline, the defendant created “a serious potential risk of physical injury to another.”
In Taylor the Supreme Court said that “in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.” 495 U.S. at 602, 110 S.Ct. 2143. If for “burglary” we substitute “battery,” for “automobile” a merely “offensive” touching, and for “building” creating a risk of physical harm by shoving a pregnant woman to the ground, we have this case.
Both in Shepard and in Chambers the two crimes that the Supreme Court considered were found in the same statutory section.
But since a majority of the court has voted not to rehear Woods, I bow to its precedential force and thus agree that the defendant‘s sentence must be vacated.