United States v. Stacy Harden, Jr.United States v. Stacy Harden, Jr.
Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
Stacy Lee Harden, Jr., pled guilty to possessing with intent to distribute five kilograms of cocaine in violation of
In October 2010, the Drug Enforcement Administration received information that Harden had transported a large quantity of cocaine from Dallas to the St. Louis area for distribution. After observing him leave a residence in Swansea, Illinois, with a plastic shopping bag and then enter and leave another residence carrying a black bag, they followed him and executed a traffic stop of his vehicle. As they approached his vehicle, Harden sped away at a high rate of speed, traveling through a residential neighborhood in the course of that flight. The flight took place at around 5:30 pm on a Friday. The district court found that he attained speeds that were at least 21 miles per hour (mph) over the 25 mph speed limit which was the require-
Harden filed an earlier appeal in this case, and we granted his request to vacate his guilty plea as improperly taken by a magistrate judge. United States v. Harden, 758 F.3d 886 (7th Cir. 2014). On remand, he again entered a guilty plea, but without a plea agreement. With a total offense level of 29 and criminal history category I, and a reduction for acceptance of responsibility, the Guidelines range was 87-108 months but with a statutory minimum of 10 years which the district court imposed.
Harden raises only one challenge to his sentence—that the court erred in determining that he was not eligible for the “safety valve” in
the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
[emphasis added]
The Probation Office in the Presentence Investigation Report (PSR) conclud-
The Guidelines do not define the terms “use of violence or the threat of violence,” and Harden urges that the term “use” requires “active employment,” and that a defendant uses violence only when he “actively” employs force against another that is capable of causing physical pain or injury. Harden‘s definition does not veer far from the common conception of violence used by the courts in other contexts, albeit with the inclusion of the modifier “actively” based on his interpretation of the word “use” as a term of art. The problem, however, inheres in Harden‘s application of that definition, under which the standard is met only if Harden purposefully used his vehicle to physically strike the officers. Harden asserts that he did not “actively” employ the vehicle as a weapon to inflict force capable of causing pain because he did not intentionally hit anyone and thus there is no evidence that he used the car as a weapon. Under his restrictive interpretation of the terms, only the active employment of violent physical force against another person would suffice. Accordingly, he stated in his brief and at oral argument that if a defendant purposefully slammed on his brakes while being closely pursued by the police, resulting in a collision, that would not satisfy the requirement that he actively employed violent physical force; he reasons that although the element of force might be present in those circumstances, he could not be said to have used violence because he would instead be the recipient of the violence. Finally, Harden argues that his conduct did not constitute a threat of violence. He asserts that there is no threat of violence because his purpose was simply to escape and not to inflict violence on others, and that the reference to “threat of violence” in the safety valve provision should be limited to a communicated intent to inflict harm rather than including actions that place persons in a position of danger.
We decline to interpret “use of violence or threat of violence” so narrowly, as it is contrary to a common understanding of what constitutes violent conduct, inconsistent with the interpretation of those terms in other contexts, and inappropriate given the context of the safety valve provision. That safety valve provision allows the district court to impose a sentence below the statutory minimum in cases in which the listed characteristics are met and which take the case out of the ordinary run of cases; a tortured parsing of the language to include only a very narrow band of the spectrum of conduct that is commonly considered “violent” is particularly inappropriate in the context of authorizing a deviation below the statutory minimum. And Harden‘s proposed definition, at least as he would apply it, would except a range of the type of conduct that would undeniably be considered violent conduct by any straightforward reading of that term. For instance, the distinction between Harden causing a collision by sudden deceleration or by rapid acceleration, with only the latter constituting violent conduct, is an interpretation that defies a common-sense understanding of the term. The purposeful abrupt braking with the police in close pursuit would cause a collision just as surely as would the acceleration into the police vehicle, and the term “use of vio-
Harden‘s understanding of the terms therefore conflicts with a consistent, plain reading of such terms. In addition, it conflicts with the interpretation of violence that has been employed in other contexts. For instance, in the Armed Career Criminal Act (ACCA), the term “violent felony” was defined to include any felony 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
In fact, the Court in Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), overruled by Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson“), applied that definition of violence to conduct similar to that presented here—vehicular flight. Because the vehicular flight statute did not contain as elements the use or threat of violence, the Court analyzed it under the residual clause definition of violence, which assessed the risk of physical injury to another. Applying that definition, the Sykes Court held that fleeing from law enforcement in a vehicle constituted a violent felony. The Court recognized that flight posed a danger of physical harm to the persons in the path of the vehicle, as well as to the law enforcement persons pursuing them. Sykes, 564 U.S. at 10-11. Sykes was later abrogated by the Court in Johnson, because the Court held that the residual clause (subclause ii) was unconstitutionally vague in light of the standard set forth in the clause, the confusing list of offenses it references as examples, and the categorical nature of the inquiry. The Court reasoned that the residual clause required application of the “serious potential risk” standard to an idealized ordinary case of the crime and such an abstract inquiry offers significantly less predictability than would inhere in applying such a standard to an actual situation. Johnson, 135 S.Ct. at 2561. The Court made clear, however, that it “[does] not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct; ‘the law is full of instances where a man‘s fate depends on his estimating rightly . . . some matter of degree.‘” Id., quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913). Therefore, the Johnson Court‘s concerns extended only to categorical determinations under that standard rather than determinations based on the actual individual circumstances. The Johnson Court did not negate the reasoning in Sykes that vehicular flight can pose a threat to the safety of others and constitute a violent offense. In fact, the Johnson Court appears to acknowledge that under some circumstances such vehicular flight
A similar conclusion follows if we consider the meaning of “violence” in other contexts. For instance, in the Fourth Amendment context, in considering whether the deadly force used by the officers was reasonable, courts have similarly considered whether the officers, in the context of vehicular flight, were responding to acts that posed a threat of serious physical harm. The Supreme Court in Brosseau v. Haugen, 543 U.S. 194, 199-201, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), recognized that depending upon the facts, a person fleeing in a vehicle at high speeds may pose an imminent threat of serious physical harm to other persons including other motorists and the officers themselves. See also Scott v. Harris, 550 U.S. 372, 383-84, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present and other motorists and officers in driving at extremely high speeds, swerving around cars, crossing the double yellow lines at times, and running multiple red lights); Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308-13, 193 L.Ed.2d 255 (2015); Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2021-22, 188 L.Ed.2d 1056 (2014) (a chase exceeding 100 miles per hour and lasting over five minutes threatened the lives of innocent bystanders). Thus, at a minimum, our cases have consistently recognized that conduct constitutes the use or threat of violence if it involves the use or threat of force capable of injuring another, and includes conduct jeopardizing the life of another by the use of a dangerous weapon. Moreover, courts have repeatedly recognized that vehicular flight may pose such a use or threat of violence.
Here, the district court did not err in holding that Harden‘s action constituted acts of violence or the threat of violence. Harden traveled at a high rate of speed of between 45 and 65 miles per hour in a 25-mile-per-hour residential zone. We have recognized that a vehicle can constitute a weapon, and a vehicle traveling at those high speeds in a residential area at around 5:30 on a Friday evening poses a very real threat of physical injury to persons in that residential area as well as the agents in pursuit. But here we have even more than high-speed flight through the residential neighborhood. We have a collision—the actual application of physical force. As the district court found, Harden pulled into the lot with the police in close pursuit, and then, rather than pull over and surrender to the pursuing agents, he completed an abrupt U-turn placing him in the path of the pursuing agents and resulting in a collision. That use of the vehicle—a deadly