*1 370 offense; accomplice accessory an need
tence of Instruction Number One2 State’s aid, potentially confusing respect only person another to induce cause was juror proof: could have inter- an v. burden commit offense. See United States (7th Cir.1989) Wesson, 134, preted prosecution it to mean that the was 135 required prove beyond a (“aiding abetting nothing not to reasonable is not crime charged. each element of the offense you may performing doubt without all of commit argues offense”); this claim has been The state the elements of the substantive see because, procedurally 10, defaulted on review of v. also U.S. Standefer post-conviction petition, (1980) (dis- 1999, the denial L.Ed.2d Appeals Court of of Indiana found the issue history aiding abetting cussing stat- Reed, v. utes). waived. Under Harris im- The instruction therefore did not (1989), only 109 S.Ct. 103 L.Ed.2d properly proof. shift the burden explicit procedural invocation of state AFFIRMED. bar blocks federal consideration of an issue. language opinion The the state court’s explicit. Appeals The state’s Court of Supreme
recited that Indiana “[t]he Court consistently party that a
has held waives
errors that concern the trial court’s instruc-
tions when he does not tender his own in-
structions.” 577 n. 1. But N.E.2d following instead of observation with America, UNITED STATES of Kappos’s conclusion such “and claim is Plaintiff-Appellee, standard,” pro- waived under immediately to ceeded address the merits. ambiguous
This is no less than the state RUTHERFORD, D. Shawn itself, court’s discussion in Harris so waiver Defendant-Appellant. independent adequate does not offer an No. 94-3130. Therefore, ground state of decision. we will Kappos’ address claim. Appeals, United States Court of Seventh Circuit. prosecution
The
bears the bur
proving beyond
den of
a reasonable doubt
Argued March
1995.
“every
necessary
fact
to constitute the crime
2,May
Decided
1995.
charged.”
with which [the defendant] was
Winship,
re
397 U.S.
90 S.Ct.
Rehearing
Suggestion
Rehearing
(1970);
see also McMillan v.
En Banc Denied June
1995.
79, 84,
Pennsylvania, 477 U.S.
2411, 2415,
(1986);
Gramley,
use to the effect necessary prove
that it was not that an
accessory participated in the commission of offense,
each element of the did not misin jury
form the proof. about the burden of jury instruction informed the that an
accomplice accessory participate need not
in the commission of each element of the charged State's Instruction Number One reads: indictment or information and person responsible tried in the same manner as if he were a A conduct of when, person during principle. necessary prove either before or It is not knowingly the commission of an offense he person participated such a in the commission aids, person induces or causes other of each element of the offense. commit an offense. Such a shall be *2 (ar- Coleman, Atty.
Robert T. Asst. U.S. Div., IL, gued), Heights, Fairview Crim. plaintiff-appellee. (argued), Office of Federal
Lee T. Lawless MO, Defender, Louis, Public St. defen- dant-appellant. EASTERBROOK, CUMMINGS,
Before ROVNER, Judges. and Circuit CUMMINGS, Judge. Circuit pled guilty to D. Rutherford bank Shawn 2113(a), robbery, a of 18 U.S.C. violation felon, of a firearm possession 922(g). The district violation of 18 U.S.C. previ- had two that Rutherford court found violence, ren- for crimes of ous convictions dering him offender under U.S.S.G. a career guideline The career offender 4B1.1.1 of 29 and a gave Rutherford an offense level VI, yielding history category criminal months. If sentencing range of 151 to 188 qualified as a career Rutherford had not offender, level have had an offense he would V, history category of a criminal sentencing range of 70 to 87 resulting in a imposed a sen- The district months. imprisonment and months of tence of 188 supervised release. years of three that his 1993 argues Rutherford appeal, On court for first- in an Alabama state qualify as a crime of degree' assault does of assault for was convicted violence.2 He a controlled sub- of violence or a crime is a either that "A defendant 1. Section 4B1.1 states (1) at least was offense." offender if defendant stance career eighteen years offense, (2) of the instant old the time of conviction is the instant offense violence was crime of 2. Rutherford's other or a either a crime of violence that is burglary in Alabama third-degree also committed offense, the defen- substance controlled the district does not contest Rutherford in 1993. prior felony convictions of at least two dant has 4B1.2(1)(i) or wheth “driving a motor vehicle under the influence force” under causing bodily injury presented serious er it “a serious of alcohol 4B1.2(1)(ii). injury” of another with the motor Report Presentence at 9.3 Ruther- vehicle.” *3 ford that the definition of crime of contends 4B1.2(l)(i) § II. of Force Under Use guideline
violence under the career offender
government
argue
not
does
encompass
does not
vehicular assault.
“use,
the
Rutherford’s offense involved
at
use,
tempted
or threatened use of
I. Definition
of “Crime
Violence” Un-
Still,
against
argu
force
another.”
der the Career Offender Guideline
by injuring
ment that Rutherford used force
4B1.2
Section
of the Guidelines defines
person
driving
in a drunk
accident
purposes
for the
“crime of violence”
begin,
merits discussion. We
as we must
guideline.
§
offender
Under
career
interpreting any
gmdeline,
when
statute or
any
‘crime of
“The term
violence’ means
4B1.2(1)(i).
§
plain language
with the
punisha-
offense under federal or state law
Rosado,
United States v.
969
by imprisonment
exceeding
ble
for a term
(7th Cir.1989).
year that—
one
argues
Rutherford
the word “use”
use, attempted
has as an element the
implies an intentional act
than
rather
use,
or threatened use of
force
application
mere
or exertion of force. The
another,
against
person of
or
understanding
common
of the word “use”
(ii)
arson,
burglary
dwelling,
of a
or
supports this view. “Use” is defined as
extortion,
explosives,
involves use of
or
employing thing
any (esp.
“[t]he act of
presents
otherwise involves conduct that
profitable) purpose.”
English
The Oxford
physical injury
(Claren-
Dictionary, 2d ed. vol. XIX at 350
to another.”
1989).
many
don Press
Force is
exerted
Application
§
requires
Note 2 to
4B1.2
employed
it
instances where
is not
inquiry
limit
we
our
to “the conduct set forth
particular purpose.
example,
For
earth-
(i.e., expressly charged) in
count
of which
quakes and avalanches involve the exertion of
Application
the defendant was convicted.”
a tremendous amount of force. Such disas-
2;
Lee,
Note
v.
22
United States
F.3d
ters, however,
nature;
are freaks of
we can
(7th Cir.1994).4
identify
intelligence
purpose
no
or
behind
First-degree
Referring
randomly
is a
occurring
Ala-
them.
to a
bama,
13A-6-20(b),
§
Ala.Code
and Ruther-
avalanche as a “use” of force would torture
Likewise,
years
ford received a
English language.
sentence
five
a drunk
imprisonment, although
only
he
driving
plan,
served nine
accident is not
result of
direction,
months. The offense at
an of-
purpose
issue
but of recklessness at
4B1.2(l)(ii)
Ap-
fense enumerated
worst and
at
A
misfortune
best.
drunk driv-
Thus,
plication
injures
pedestrian
Note 2.5
we must determine
er who
would not de-
by saying
whether Rutherford’s offense involved the
scribe the incident
he “used” his
“use,
use,
attempted
ordinary English,
threatened use of
car to hurt someone.
finding
burglary
plea agreement,
findings
court's
that the
was a crime óf
or factual
of the sen-
Sebero,
violence.
tencing court. See
United States
(7th Cir.1995), citing
F.3d
law,
person
3. Under Alabama
"A
commits
Smith,
733-34
Cir.
degree
crime of assault in the first
if ...
1993).
While
influence of alcohol or a
controlled substance or
combination thereof
“murder,
5.Application
2Note
states that
man-
bodily injury
person
... he causes serious
assault,
slaughter, kidnapping, aggravated
forc-
of another
awith motor vehicle.” Ala.Code
offenses,
arson, extortion,
robbery,
ible sex
extor-
13A-6-20(a)(5).
credit,
burglary
tionate extension of
of a
dwelling” qualify
necessary
ambiguity
If
as crimes of violence. The
resolve an
in the
document,
also,
charging
circumstances,
government
argue
the courts
in some
does not
that the conviction at
presentence report,
aggravated
examine the
issue was an
assault.
law,
specific
attempt “include[s]
mon
availment.6
implies intentional
“use”
the word
act.” Braxton
achieve an
commit the unlawful
in order to
intent to
of force
availment
No
**,
driving accident.
351 n.
present
in a
500 U.S.
v. United
end is
language approach,
plain
**,
pure
Thus under
n.
Consequently, we are aware
crime”); Wayne
specific
commit a
intent to
than an intentional
anything less
holding that
Scott, Jr., Sub-
LaFave and Austin W.
force under R.
may qualify
a “use” of
act
(West
4B1.2(l)(i).
authority that ex-
Law 6.2 at
sparse
Criminal
stantive
*4
reading.
language
1986) (“The
plain
required for the
supports the
mental state
ists
Young, 990 F.2d
commit
attempt
See United
...
is an intent to
crime of
Cir.1993)
pos-
(discussing whether
crime.”).
attempted use of
Thus
some other
crime of vio-
prison
of firearm
session
Likewise,
act.
a
requires an intentional
force
“An intent to use
§ 4B1.2:
under
lence
intentional;
of force must be
threatened use
required
is not a
object in a violent manner
accidentally make a threat.7 Sec-
cannot
one
then,
Clearly,
of
offense.
element
4B1.2(l)(i)
attempts,
places threats and
tion
the crime does
statutory definition of
“use,”
acts, alongside
which
both intentional
‘use, attempted
as an element
contain
Parson,
ordinary mean-
Young,
and its
under
force.’”)
physical
use,
use of
or threatened
This
implies an intentional act.
ing also
—
denied,
U.S. —,
(citation omitted), cert.
of inten-
grouping together of different forms
(1993);
Unit
that
conduct
demonstrates
tional
(3rd
Parson,
858, 866
ed States
4B1.2(l)(i)
address intention-
was meant to
Cir.1992)
of
of crime
(comparing definitions
only.
al acts
§ 16: “Use
§in 4B1.2 and 18 U.S.C.
violence
act, and
intentional
physical force is an
of
recognized,
Sentencing
The
Commission
4B1.2(1)(i) requires specif
]
[§
therefore
however,
many
acts with a
criminal
force.”).
intent to use
ic
.to use
of less than an intent
mental state
Thus,
qualify
violent crimes.
force should
as
sup-
addition,
of
4B1.2
the structure
In
4B1.2(1)(ii) (Prong
implies
added
the “use” of force
Commission
ports the view that
II),
of violence
divides
classifies as crime
intentional act. Section
which
into two
of violence
conduct
definition of crime
that “otherwise involves
offense
prong discusses intention-
prongs.
physical
potential
first
risk of
presents a serious
acts,
4B1.2(1)(ii) (often
prong discusses acts
the second
al
while
injury to another.” See
clause).
of less than intent.
a mental state
Sections
to as the “otherwise”
referred
(ii)
.2(1)(i)
together;
in
and
work
4B1
I)
4B1.2(l)(i)
(Prong
classifies
Section
analyzed
subsection
tentional acts are
use,
“use, attempted
or
involving
crimes
negligent acts are
(i),
while reckless
as crimes of
of
force”
threatened use
clause in
analyzed under the “otherwise”
threats,
the acts
Attempts and
violence.
(ii).8
“use”
subsec
If the word
I,
subsection
Prong
the “use” of force
grouped with
negligent
(i) included the reckless
com-
tion
acts. Under the
both intentional
are
privileged
to enforce
something
which the actor is
implies availing
as a
oneself of
6. “Use
by a threat
Webster’s
contact or
to an end.”
of the threatened
or instrument
infliction
means
(1986).
Torts,
(Second)
Dictionary
Collegiate
at Ninth New
to inflict it.” Restatement
1965).
(ALI
§ 30
communicated intent
“[a]
is defined as
7. A threat
harm on
inflict
or other
of force as
do not include the use
8.Offenses
Dictionary,
property."
5th ed. at
Law
Black's
nature,
may, by
create
their
an element but
1979).
(West
treats
common law
(e.g.,
be used
that force will
an inherent risk
actor is liable
of assault. An
threats as
form
analyzed
escape)
burglary
are also
"intentionally puts
if he
threat
(ii).
subsection
apprehension
imminent and harmful
of an
contact,
is one
... unless the command
offensive
force,
exertion of
the “otherwise” clause
III. The “Otherwise” Clause
cases,
many
In
would often be redundant.9
Next, we must determine whether
(i)
(ii)
overlap
subsections
would
rather
presented
conduct
“serious
together.
light Young,
than work
Par-
potential
physical injury
risk of
to another”
son,
“use,”
govern
under the otherwise clause.11 The
plain meaning
and the
we are
ment asserts
creates a
persuaded that
the Commission intended
injury
squarely
serious risk of
and thus falls
(ii)
complement
subsections
rather
4B1.2(l)(ii).
plain language
within the
compete
than
with each other.
arguments
makes
Rutherford
two
in re
First,
sponse.
Finally, defining any negligent
he contends that
or reckless
crimes of
pure recklessness should not be considered
criminal act that results in
a “use”
alternative,
crimes of violence.
In the
he
(and
violence)
of force
thus a crime of
creates
argues that his conduct did not
create
disturbing consequences. Namely,
some
it
physical injury
“serious
engage in
classifies criminals who
low-risk
another.”
activity
unluckily manage
but
to hurt some
instance,
accept
We decline to
Rutherford’s ar
as violent
one
offenders. For
gument
that crimes of recklessness
nev
speeding driver causes an accident and is
er constitute
crimes
violence under the
*5
assault,
quali
convicted of vehicular
he would
“otherwise” clause. Certain reckless conduct
fy as a violent offender under subsection
just
conduct,
dangerous
as
as intentional
though
speeding
even
the risks of mere
Sentencing
obviously
and the
Commission
in
probably
would
not be deemed “serious” un
dangerous,
tended some
reckless criminal
(ii).
der subsection
This creates a sense of
qualify
acts to
as crimes of violence. See
speeder barely
arbitrariness:
avoids an
Rutledge,
United States v.
674
accident,
offender,
he is not violent
but if the
(6th Cir.1994) (conviction for reckless endan
speeder
same
is not so fortunate and hits
germent where defendant fired shot in di
someone,
suddenly
he is
transformed into a
rection of co-worker held “crime of violence”
violent criminal.
4B1.2
Section
does not en
§
although
under
4B1.2:
defendant claimed
arbitrary
dorse
such
scheme.10 Thus
jest,
shot was fired in
conduct was “at least
first-degree
assault conviction
obviously
...
placed
[and]
reckless
...
[the
did
involve a “use” of force under
danger
co-worker]
imminent
of serious
—
4B1.2(1)(i).
denied,
§
injury”),
—,
cert.
negligent
activity
inju-
9.
thority
adopt
If
or reckless
resulted in
a broader definition of career
ry,
purposes
the conduct would be classified as a "use” of
offenders for the
of the Guidelines.
force, making
analysis superflu-
Congress' delegation
authority
the serious risk
to the Commis
ous.
sentencing ranges
sion to set
does not end with
994(h).
994(d)(10) grants
§
§
28 U.S.C.
general authority
Nor is the arbitrariness
the result
here
Commission
to consider the
underlying
history
state law.
Even if
state in this
relevant criminal
of offenders. Section
994(i)
hypothetical punished speeding and vehicular as-
"specify
commands that the Guidelines
alike, only
qualify
sault
imprisonment
vehicular assault would
sentence to a substantial term of
§
as a crime of violence
over,
history
under
4B1.2. More-
...
[where] the
has a
defendant —
any given
organizes
prior
how
state
its criminal
two or more
...
convictions for
code should not affect our determination of what
offenses committed on different occasions.” In
addition,
legislative history
constitutes a crime of violence. A state
states that
994(h)
punish
994(i)
severely
§§
decide to
vehicular
necessarily
assault more
are “not
intend
speeding
than
types
as a form of retribution for the
ed to be an exhaustive list of the
of cases in
not, however,
guidelines
harm done. This does
make a
which the
specify
should
a substantial
person
any
imprisonment,
types
convicted of vehicular assault
more
term of
nor of
of cases in
dangerous
ordinary speeder
violent or
than an
which terms at or close to authorized maxima
purposes
98-225,
§
specified."
for the
S.Rep.
4B1.2.
should be
No.
98th
(1983),
Cong.,
reprinted
2nd Sess. 176
in 1984
Sentencing
994(h)
11. Rutherford contends that
U.S.C.C.A.N.
3359. Section
identi
adopted
Commission
a definition of crime of
fies a minimum number of cases in which near-
4B1.2(1)(ii)
mandated;
§
violence in
imprisonment
broader than that envi
maximum terms of
are
by Congress
sioned
when it drafted the career
the Commission is free to conclude that other
statute,
994(h).
§
offender
28 U.S.C.
Even if this
situations warrant substantial terms as well. See
true,
Parson,
Sentencing
Commission has the au
separate the
(holding
offender’s actions from the ef