United States v. Woods (576 F.3d 400, 2009)

WOOD, Circuit Judge.

Vernon Woods was convicted of two counts of distributing ecstasy, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a weapon by a felon, in violation of 18 U.S.C. § 922(g). The district court found that Woods was a career offender and thus was subject to an enhanced sentence under § 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.”). The court imposed a sentence of 192 months, well above the 84-month sentence Woods might have received without the career offender enhancement. Woods now appeals his sentence, challenging whether, following the Supreme Court’s decision in Begay v. United States, - U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and this court’s decision in United States v. Smith, 544 F.3d 781 (7th Cir.2008), his prior conviction for involuntary manslaughter— which required only a finding of recklessness — qualifies as a prior violent felony conviction for the purpose of the Guidelines. We conclude that Begay and Smith resolve this question in Woods’s favor, and we therefore vacate the judgment of the district court and remand for further proceedings.

I

After being caught in October and November 2006 distributing methylenedioxymethamphetamine (commonly known as ecstasy) to an undercover police officer, Woods pleaded guilty both to that offense and the offense of being a felon in possession of a firearm and ammunition that had previously been transported in interstate commerce. In the presentence investigation report (“PSR”), the Probation Service concluded that Woods was a career offender as defined by U.S.S.G. § 4B1.1. In so doing, the Probation Service relied on two prior convictions in Woods’s record: (1) a 1993 Illinois conviction for possession of cocaine with intent to deliver; and (2) a 2001 Illinois conviction for involuntary manslaughter. It is the second conviction that concerns us here.

The facts underlying Woods’s earlier conviction for involuntary manslaughter were contested at crucial points. Woods had been babysitting his infant son for several days. At a change of plea hearing (held after a jury had failed to convict him upon a first trial), Woods admitted that the child was five weeks old, and that he called 911 on the afternoon of March 18, 1999, when the child became unresponsive. The emergency authorities responded and took the baby to the hospital; six months later, he died. The state was prepared to call the deputy medical examiner, who would have testified that the child died of water on the brain (hydrocephalus due to subdural hematoma) as a result of blunt head trauma. She also would have testified that there were other signs of “wanton cruelty,” including a clinical history of cerebral palsy and a clinical history of severe mental retardation (although there is no explanation of how she came to the latter conclusion with respect to a five-week-old child). She described the manner of death as “homicide” — but as Woods notes, involuntary manslaughter is classified under Illinois law as a homicide offense. See 720 ILCS, Act 5, Part B, Article 9 (Homicide); 720 ILCS 5/9-3 (involuntary manslaughter).

One possible explanation of those- facts is that Woods took violent action against the child, shaking him and causing injury that resulted in his death six months later. But Woods, in his response to the PSR, gave an alternative explanation. According to Woods, he had dropped the baby and never intended to hurt him. When the baby lost consciousness, he shook the baby in an effort to revive him, and then he called 911 and requested an ambulance. Nothing in the plea colloquy before the state court resolved which version was true, nor were there any facts that might have shown whether the blunt head trauma could have resulted from being dropped as opposed to being shaken.

At the sentencing hearing, Woods objected to the Government’s characterization of his involuntary manslaughter conviction as a crime of violence under the Guidelines. (He conceded that the first conviction fell within the definition of § 4B1.1 because it was a controlled substance offense.) Woods argued that his involuntary manslaughter offense was not a crime of violence for two principal reasons: first, because his actions did not create a “serious potential risk of physical injury to another”; and second, because the mens rea for involuntary manslaughter in Illinois requires only criminal recklessness, and recklessness was insufficient to trigger the enhanced sentencing range recommended by the Guidelines. Further, Woods argued that even if the court were to look beyond the statute of conviction, the transcript of the plea hearing did not demonstrate that he acted in a way that presented a serious potential risk of physical injury to another.

The district court rejected all of these arguments, holding that the involuntary manslaughter statute described behavior presenting a risk analogous to the Illinois offense of reckless discharge of a firearm. This court held that the latter offense fell within the scope of § 4B1.1 of the Guidelines in United States v. Newbem, 479 F.3d 506, 508 (7th Cir.2007). The district court also held that although Newbem did not require it to go any further, that it would if necessary find the underlying facts of Woods’s conviction sufficient to support a finding that his conviction for involuntary manslaughter was a crime of violence as the Guidelines define that term. On November 16, 2007, the district court sentenced Woods to 192 months’ imprisonment, a sentence in the middle of the career offender range of 188 to 235 months. After Woods brought his appeal, the Supreme Court decided Begay, which cast new light on the Court’s interpretation of career offender enhancements like the one found in § 4B1.1. Whether Woods is entitled to succeed or fail in this appeal turns on the proper understanding of the Supreme Court’s decisions in Begay and the cases that have followed it.

II

The Sentencing Guidelines designate any defendant convicted of a “crime of violence or a controlled substance offense” who also has at least two prior felony convictions of either a crime of violence or a controlled substance offense as a “career offender.” § 4B1.1. Career offenders are subject to an enhanced base offense level and are automatically assigned to Criminal History Category VI. A great deal therefore hangs on the proper characterization of a defendant’s past encounters with the law. For Woods, it meant the difference between an advisory Guidelines range of 84 to 105 months (without career criminal status) and a range of 188 to 235 months (with career criminal status).

In Woods’s case, as in many, we are concerned with the question whether the defendant’s prior offenses are properly characterized as crimes of violence. The Guidelines define a crime of violence as “any offense under federal or state law” that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). In deciding whether a crime fits that definition, the Supreme Court has instructed lower courts to use a categorical approach. In James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), a case dealing with the closely analogous Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the Court explained what it meant by a “categorical approach”:

Under this approach, we “ ‘look only to the fact of conviction and the statutory definition of the prior offense,’ ” and do not generally consider the “particular facts disclosed by the record of conviction.” Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (quoting Taylor [v. United States], 495 U.S. [575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)]). That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.

550 U.S. at 202, 127 S.Ct. 1586. See also Begay, 128 S.Ct. at 1584. In United States v. Templeton, 543 F.3d 378 (7th Cir.2008), taking note of the identity of language between the ACCA and §§ 4B1.1 and 4B1.2, we held that the James analysis also applies to the Guidelines’s career offender provisions. In the discussion that follows, we therefore refer to the ACCA and the career offender provisions of the Guidelines interchangeably.

In applying the categorical approach, James recognized that the specific facts underlying certain offenses might reflect either a greater or a lesser degree of violence. The Court rejected the idea that a crime can never be one of violence, using the categorical approach, unless “every conceivable factual offense covered by [the] statute must necessarily present a serious potential risk of injury....” 550 U.S. at 208, 127 S.Ct. 1586. Rather, it wrote, “the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Id. As we understand it, this means that a crime must be categorized as one of violence even if, through some freak chance, the conduct did not turn out to be violent in an unusual case. Importantly, the focus remains on the elements of the offense, not the particular facts surrounding each defendant’s conduct.

Although the categorical approach, as it has developed, suffices to answer most questions about the proper characterization of a prior offense, it is not enough by itself in one class of cases: when a statute covers more than one offense. In such cases, the Court has permitted courts to consult “the terms of the charging document, the terms of a plea agreement or transcript of a colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information,” in order to determine what the defendant’s prior conviction was for (i.e., generic burglary or some lesser offense). Shepard, 544 U.S. at 26, 125 S.Ct. 1254. What the sentencing court cannot do is to look at the particular facts underlying the defendant’s conviction. Taylor, 495 U.S. at 600, 110 S.Ct. 2143.

Problems often arise when statutes describe more than one offense, but only some parts of the statute would qualify as a crime of violence. In Smith, we explained how that issue must be approached, in light of the governing Supreme Court cases:

Under the categorical approach, we consider the offense generieally; we may not inquire into the specific conduct of a particular offender. Begay, 128 S.Ct. at 1584; James, 127 S.Ct. at 1594. When a statute encompasses multiple categories of offense conduct — some of which would constitute a violent felony and some of which would not — we may expand our inquiry into a limited range of additional material [as set forth in Shepard, supra] in order to determine whether the jury actually convicted the defendant of (or, in the case of a guilty plea, the defendant expressly admitted to) violating a portion of the statute that constitutes a violent felony.... Such an examination, however, is “only to determine which part of the statute the defendant violated.” United States v. Howell, 531 F.3d 621, 623 (8th Cir.2008); see also [United States v.] Mathews, 453 F.3d [830, 834 (7th Cir.2006)]. This rule is not meant to circumvent the categorical approach by allowing courts to determine whether the actual conduct of the individual defendant constituted a purposeful, violent and aggressive act. See Shepard, 544 U.S. at 25, 125 S.Ct. 1254 (discussing the problems inherent in judicial fact-finding, particularly after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and noting that looking further into the facts surrounding a prior conviction likely would violate the standard set forth in Apprendi); Mathews, 453 F.3d at 834 n. 8 (discussing Shepard, and noting that “this limitation preserves the categorical approach of Taylor and ensures that a defendant was ‘necessarily’ convicted of a generic burglary”).

544 F.3d at 786-87 (some citations omitted) (final emphasis added). In short, the additional materials permitted by Shepard may be used only to determine which crime within a statute the defendant committed, not how he committed that crime.

We emphasize the latter point because some confusion has arisen in our recent cases about the proper way to apply the modified categorical approach. In particular, our decision in Templeton, 543 F.3d at 383-84, can be read to rely on the actual conduct of the defendant, rather than which part of a divisible statute the defendant violated. In Templeton, the defendant was charged under Wisconsin’s escape offense, which states that

[a] person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class H felony....

Wis. Stat. § 946.42(3). We stated — accurately enough, as far as it goes — that “it is possible to violate Wis. Stat. § 946.42 in a manner that constitutes a crime of violence under § 4B1.1, and possible to do so in a way that does not.” Templeton, 543 F.3d at 383-84. The problem arises in the next part of that passage, where we wrote, “Taylor holds that when a state statute can be violated in a way that is, or is not, the basis of federal recidivist treatment, a court may look at the indictment or other charging papers to determine in what way the defendant committed the offense.” Id. at 384.

If the words “in a way” in that sentence mean under one distinct portion of the statute or another, then Templeton is consistent with the line of Supreme Court decisions discussed above. If, however, the words “in a way” refer to the facts of the individual defendant’s case, then it is inconsistent with that line of cases and with our own Smith decision. In Temple-ton itself, the Wisconsin offense of escape covers a wide variety of conduct, some of which may pose a risk of violence and some of which may not, but the statute is not divisible in the sense called for by the modified categorical approach. Rather than specifying various subcategories of conduct, it simply states that “escape” is an offense and defines “escape” broadly to mean “leave [custody] in any manner without lawful permission or authority.” Wis. Stat. § 946.42(l)(b). We recognize that this definition can, as a factual matter, include conduct that would constitute a crime of violence as well as conduct that would not. Some may think that this is enough to justify a finding that the violent conduct is covered, if the charging papers or other permissible sources show that the particular offense was violent. One could argue that it is artificial to draw a line between, on the one hand, general statutes that prohibit both violent and nonviolent conduct, and, on the other, statutes that differentiate between violent and nonviolent offenses.

Whether this viewpoint would have merit on its own is, however, no longer open to us. The Supreme Court has spoken to the issue in a line of cases including Shepard, James, Begay, Chambers v. United States, - U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), and, most recently, Nijhawan v. Holder, - U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). In all of them, it has opted for a rule that precludes deciding on a case-by-case basis whether a particular prior violation of a general statute posed the kind of risk of violence that would justify the recidivism enhancements provided by the ACCA or the career offender Guidelines. We see no other way to read the operative language of James. As we pointed out in Smith, “This rule [permitting the expanded inquiry] is not meant to circumvent the categorical approach by allowing courts to determine whether the actual conduct of the individual defendant constituted a purposeful, violent and aggressive act.” 544 F.3d at 786. The Supreme Court used similar language in Chambers, where it emphasized the need to interpret the statutes underlying prior convictions in light of the normal way in which a crime is committed and commented, “by so construing the statute, one avoids the practical difficulty of trying to ascertain at sentencing, perhaps from a paper record mentioning only a guilty plea, whether the present defendant’s prior crime, as committed on a prior occasion, did or did not involve violent behavior.” 129 S.Ct. at 690.

Chambers made a point of noting that the failure-to-report offense at issue there was identified in a separate part of the statute. Thus, in Nijhawan, in the course of distinguishing between a statute like the ACCA, which uses a categorical approach, and a statute like the provision of the Immigration and Nationality Act directly at issue in Nijhawan’s case (8 U.S.C. § 1101(a)(43)(M)(i)), which uses a circumstance-specific approach, the Court discussed the categorical approach at length:

[T]he categorical method is not always easy to apply. That is because sometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involve violence while others do not. A single Massachusetts statute section entitled “Breaking and Entering at Night,” for example, criminalizes breaking into a “building, ship, vessel or vehicle.” Mass. Gen. Laws, ch. 266, § 16 (West 2006). In such an instance, we have said, a court must determine whether an offender’s prior conviction was for the violent, rather than the nonviolent, break-ins that this single five-word phrase describes (e.g., breaking into a building rather than into a vessel), by examining “the indictment or information and jury instructions,” Taylor, [495 U.S.] at 602 [110 S.Ct. 2143], or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy or “some comparable judicial record” of the factual basis for the plea. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

129 S.Ct. at 2299. Later in the Nijhawan opinion, the Court (speaking of the ACCA) wrote, “Taylor; James, and Shepard, the cases that developed the evidentiary list to which petitioner points, developed that list for a very different purpose, namely that of determining which statutory phrase (