22 F.3d 736 | 7th Cir. | 1994
Lead Opinion
In March 1993, defendant pleaded guilty to two counts of knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g).
Background
In his plea agreement, defendant acknowledged that in 1975 he was convicted in Wisconsin of the crime of “theft from the person of another,” Wis.Stat.Ann. §§ 943.20(l)(a), (3)(d)(2).
Under the Sentencing Guidelines, the base offense level for the crime of possession of a firearm by a felon is dictated in part by the defendant’s criminal history. If a defendant has a “prior felony conviction of * * * a crime of violence * * U.S.S.G. § 2K2.1(a)(4)(A), his base offense level is 20. A “crime of violence” is defined as a felony that either:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a*738 serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(1). Application Note 2 of § 4B1.2 sets out a three-step inquiry for determining whether a prior conviction should be considered a “crime of violence.” Application Note 2 provides that a conviction should be considered a “crime of violence” if either (1) the conviction was for one of the offenses specifically listed in Application Note 2; or (2) the conviction was for an offense that has as an element the use, attempted use, or threatened use of physical force; or (3) the conduct for which the defendant was convicted “presented a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(1) application note 2.
Analysis
The offense of which the defendant was convicted, “theft from the person of another,” is neither an offense that has as an element the use or attempted or threatened use of physical force nor is it one of the offenses specifically listed in U.S.S.G. § 4B1.2 application note 2. The question presented to this Court, therefore, is whether the conduct for which defendant was convicted in 1975 “presented a serious risk of physical injury to another.”
This issue could be easily resolved if the Sentencing Guidelines permitted consideration of facts contained in the record but not in the actual indictment of which the defendant was convicted. The robbery complaint originally brought against the defendant— but not the “theft from the person of another” information under which he was ultimately convicted — sets out the details of the defendant’s crime: according to the victim, she was approached by three men, one of whom “grabbed both her arms and forcibly held them behind her back, while ripping her coat and removing her coin purse * * * ” (App. 58), conduct that certainly constitutes a crime of violence.
Application Note 2, however, makes clear that when determining whether an offense “presented a serious potential risk of physical injury to another,” a sentencing court should look only to the “conduct set forth (ie., expressly charged) in the count of which the defendant was convicted * * * ” U.S.S.G. § 4B1.2(1) application note 2. The Supreme Court has recently held that the Sentencing Guidelines’ Application Notes must be given controlling weight unless they are plainly erroneous or are inconsistent with the Guidelines, United States v. Stinson, — U.S.-,-, 113 S.Ct. 1913, 1918-1919, 123 L.Ed.2d 598 (1993), and here the Application Notes clearly foreclose the possibility of looking at facts not contained in the count of which the defendant was convicted. This Court’s inquiry, therefore, is limited to an analysis of the conduct expressly charged in the count of which a defendant was convicted.
Moreover, a review of previous versions of the commentary to U.S.S.G. § 4B1.2 and the various amendments made thereto reveal that the Sentencing Commission intended that the inquiry under the “otherwise” clause of § 4B1.2 be limited to an analysis of the facts charged in the relevant indictment or information. Prior to November 1, 1989 the commentary to § 4B1.2 provided that “ ‘[o]ther offenses are covered only if the conduct for which the defendant was specifically convicted meets the [relevant] definition.’” United States v. Terry, 900 F.2d 1039, 1042 (7th Cir.1990) (quoting U.S.S.G. § 4B1.2 application note 1 (1988)). In Terry, this Court interpreted this language as “vesting a sentencing court with the discretion to explore the underlying facts of a prior conviction,” id., a view then shared by the Third, Fifth, and Sixth Circuits. United States v. Williams, 892 F.2d 296, 304 (3rd Cir.1989), certiorari denied, 496 U.S. 939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990); United States v. Goodman, 914 F.2d 696, 699 (5th Cir.1990); United States v. Maddalena, 893 F.2d 815, 820 (6th Cir.1989). The Ninth and Eleventh Circuits, however, held that the language of the commentary limited the inquiry to a consideration of the abstract definition of the offense in question. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), certiorari denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991); United States v. Gonzalez-Lopez, 911 F.2d 542, 548 (11th Cir.1990), certiorari denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). In response to this dispute, the Sentencing Commission twice revised the Application Notes: first to provide that “ ‘[o]ther offenses are included where * * * the conduct set forth in the count of which the defendant was convicted * * * presented a serious potential risk of injury,’ ” United States v. Johnson, 953 F.2d at 113 (quoting U.S.S.G. § 4B1.2 application note 2 (1990)); and then to provide, as it does now, that the court
Thus the question of whether the offense for which the defendant was convicted in 1975 constituted a “crime of violence” for the purposes of U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2 turns on whether the conduct set forth in the information on which his conviction is based describes conduct that “presented a serious potential risk of injury to another.” It plainly does not. The 1975 information merely provides that defendant Unlike the robbery complaint that the 1975 information superseded, there is no indication here that the defendant used force or threat of force to accomplish his ends. The information contains no mention of the victim’s claim that force was used against her, a detail that if included would have clearly changed the outcome here. And absent any affirmative indication that the defendant engaged in conduct which presented a serious risk of physical injury, this Court cannot conclude that defendant’s 1975 conviction was for a “crime of violence.”
did intentionally and feloniously take and carry away movable property from the person of [the victim] * * *, having a value less tha[n] $2,500, without the consent of [the victim] and with intent to deprive [the victim] permanently of possession of said property * * *.5
In reaching this conclusion we reject the contention that “theft from the person” by its nature presents a “serious potential risk of injury to another.” See United States v. DeJesus, 984 F.2d 21, 24-25 (1st Cir.1993); United States v. McVicar, 907 F.2d 1, 2-3 (1st Cir.1990). Under Wisconsin law, the crime of “theft from the person of another” does not include an element of force, Moore v. State, 55 Wis.2d 1, 197 N.W.2d 820, 822 (1972), and a defendant who uses even minimal force in taking the property from the person of his victim may be charged with robbery. See, e.g., Walton v. State, 64 Wis.2d 36, 218 N.W.2d 309 (1974) (pulling money pouch from under arm of victim constitutes sufficient force to convict defendant of robbery rather than theft). While it is true that even in the paradigmatic example of “theft from the person of another” — pickpocketing
Conclusion
Had the information under which the defendant was convicted described the violent nature of his offense, the district court’s determination that defendant’s 1975 conviction was a crime of violence would have been correct. Since the 1975 information did not contain such a description and since the Guidelines makes clear that the sentencing court may not look beyond the facts alleged in the information, the district court’s determination of the defendant’s base offense level is REVERSED and the case is Remanded for re-sentencing.
. In July 1992 defendant sold a .22-caliber revolver to an undercover agent. A month later, the defendant sold a .38-caliber revolver to the undercover agent.
. Defendant also acknowledged that he was convicted of forgery, burglary, and misdemeanor battery. None of these convictions are at issue however.
. U.S.S.G. § 4B1.2 application note 2 provides in relevant part (emphasis supplied):
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives * * * or, by its nature, presented a serious risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of the inquiry.
. The Government cites United States v. Bedell, 981 F.2d 915, 916 (7th Cir.1992), certiorari denied, — U.S.-, 113 S.Ct. 1397, 122 L.Ed.2d 770 (1993), for the proposition that a sentencing court may inquire into the facts underlying a previous conviction when the offense in question is not listed in U.S.S.G. § 4B1.2 application note 2. The statements to this effect in Bedell were, however, merely dicta since the issue before the Court was whether an inquiry into the facts underlying a conviction is appropriate when the offense in question is listed as a per se crime of violence in U.S.S.G. § 4B1.2 application note 2 — a question the Bedell court answered in the negative. Moreover, the Bedell court itself relied on dicta from United States v. Jones, 932 F.2d 624 (7th Cir.1991), a case also involving a per se crime of violence. This is not to say that this Court has never previously held that an inquiry into the facts underlying a prior conviction is appropriate when the offense is not a per se crime of violence. This was the holding of United States v. Terry, 900 F.2d 1039, 1042 (7th Cir.1990). As discussed infra, however, that case relied on a now superseded version of U.S.S.G. § 4B1.2 and commentary.
. This essentially tracks the relevant portions of the Wisconsin criminal statute under which defendant was charged. The statute provides in pertinent part:
(1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):
(a) Intentionally takes and carries away, * * * moveable property of another without his consent and with intent to deprive the owner permanently of possession of such property.
* ‡ :H jfc
(3) Penalties. Whoever violates this section:
SH # * 8}t if!
(d) If the value of the property does not exceed $2,500 and any of the following circumstances exist, is guilty of a Class D felony:
2. The property is taken from the person of another or from a corpse;
Wis.Stat.Ann. § 943.20(l)(a), (3)(d)(2).
. In the chapter describing offense conduct, the Guidelines lists "pick-pocketing [and] non-forcible purse-snatching, such as theft of a purse from a shopping cart” as examples of "theft from the person of another.” U.S.S.G. § 2B1.1 application note 7.
Concurrence Opinion
I agree with the court’s determination that, based solely on the conduct as charged in the 1975 information, Lee’s conduct did not amount to the potential risk of injury to another for purposes of the “crime of violence” sentence enhancement of U.S.S.G. § 4B1.2(1). I write separately to emphasize that our opinion should not be read as categorically ruling that prior convictions for theft can never constitute a crime of violence. Rather, as the court points out, had the theft information expressly set out the aggressive steps Lee and the others took in pinning the victim’s arms behind her back and snatching her purse, then we would surely have a crime of violence. But the information before us contained no such detail and, as correctly set out by the court, a district court is not at liberty, pursuant to Application Note 2(B) of § 4B1.2(1), to look beyond the facts expressly charged in the information or indictment in determining whether to boost the defendant’s base offense level. Therefore I join the court’s conclusion that the district court’s application of the § 4B1.2(1) enhancement was in error.
