United States v. Brian Carter

961 F.3d 953

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 18-3713 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

BRIAN K. CARTER, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Central District of Illinois. No. 4:18-cr-40004-JES-JEH-1 — James E. Shadid, Judge. ____________________

ARGUED OCTOBER 2, 2019 — DECIDED JUNE 8, 2020 ____________________

Before BAUER, RIPPLE, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Brian Carter pleaded guilty to possessing a firearm as a felon, see 18 U.S.C. § 922(g), after police officers arrested him and found a stolen handgun in his possession. At sentencing, the district court calculated his Sentencing Guideline range based on a finding that he had previously sustained at least two felony convictions for “crimes of violence.” U.S.S.G. § 2K2.1(a)(2). The court im- posed a sentence of 105 months in prison, at the top of the 2 No. 18-3713

resulting guideline range. Carter appeals, arguing that the district court erred in classifying two of his prior convictions as crimes of violence. We affirm. Carter had at least two prior felony convictions that qualify as crimes of violence under the categorical ap- proach required under the Guidelines. In light of the discus- sion that follows, we also remind district courts that the clas- sification of prior convictions under the Sentencing Guide- lines can produce abstract disputes that bear little connection to the purposes of sentencing. As the Sentencing Commission itself has recognized since the Sentencing Guidelines were first adopted, district judges may and should use their sound discretion to sentence under 18 U.S.C. § 3553(a) on the basis of reliable information about the defendant’s criminal history even where strict categorical classification of a prior convic- tion might produce a different guideline sentencing range. I. Factual and Procedural Background Four months after escaping from a work-release facility, an intoxicated Brian Carter walked into an Illinois bar. He told an employee that the “Woodpile”—a white-supremacist gang—was searching for him and then walked out. The em- ployee reported the incident to the police, who stopped Carter on the street shortly after and discovered an active arrest war- rant related to his escape. As he was being handcuffed, Carter told the officers that he was “strapped” and gestured towards his pants with his head. Officers seized a stolen, loaded semi- automatic pistol from Carter’s waistband. Carter had several prior felony convictions, so federal law prohibited him from possessing any firearms. He later pleaded guilty to unlaw- fully possessing a firearm in violation of 18 U.S.C. § 922(g). No. 18-3713 3

Section 2K2.1(2) of the Sentencing Guidelines sets the base offense level for a conviction under 18 U.S.C. § 922(g) at 24 for a defendant convicted of at least two prior “crimes of vio- lence” as defined in U.S.S.G. § 4B2.1(a). According to his Presentence Investigation Report, Carter had two prior con- victions that qualified as crimes of violence under that defini- tion: assault with a deadly weapon (in California) and aggra- vated assault (in Iowa). The report did not contain many de- tails about the California conviction but noted that the 2015 Iowa conviction resulted from a guilty plea in which Carter admitted that he “displayed a knife during an altercation … in violation of sections 708.1 and 708.2(3) of the Iowa Criminal Code.” The report also documented, but did not classify, a re- lated 2015 Iowa conviction for domestic abuse assault in which Carter admitted that he “bit [his] wife … on her cheek causing bodily injury.” Based on the California conviction for assault with a deadly weapon and the Iowa conviction for ag- gravated assault, the report set Carter’s base offense level at 24. Without any prior convictions for crimes of violence, the base offense level would have been 20, and with only one crime of violence, it would have been 22. U.S.S.G. § 2K2.1(a)(2)–(4). The government agreed that the base offense level was correctly calculated but argued that all three convictions—in- cluding the Iowa conviction for domestic abuse assault—were crimes of violence under the Guidelines. For his part, Carter conceded that the California conviction for assault with a deadly weapon was a crime of violence. He argued, however, that the PSR set his base offense level too high because neither of his Iowa convictions qualified categorically as a crime of violence under the Guidelines. According to Carter, Iowa de- fined aggravated assault more broadly than the generic 4 No. 18-3713

meaning of the offense and did not require the state to prove threatened use of physical force as an element. He further ar- gued that the Iowa conviction for domestic abuse assault did not require proof that he used or threatened to use physical force. The district court “adopt[ed] the position of the govern- ment” that both Iowa convictions were crimes of violence” and ruled that Carter had three qualifying convictions with- out further elaboration. Starting with a base offense level of 24, the court added two more levels because Carter’s firearm was stolen, § 2K2.1(b)(4), and subtracted three levels for ac- ceptance of responsibility, § 3E1.1, producing a total offense level of 23. With criminal history category V, this calculation yielded a guideline range of 84 to 105 months in prison. The court sentenced Carter to 105 months in prison, the high end of that range. II. Analysis On appeal, Carter argues that the district court erred in calculating his guideline range by using base offense level 24. The Sentencing Guidelines are no longer binding, but the cor- rect calculation of a defendant’s guideline range is “the start- ing point and the initial benchmark” for federal sentencing. Gall v. United States, 552 U.S. 38, 49 (2007). An incorrect calcu- lation of the guideline range is a procedural error that we pre- sume influenced the sentence unless the judge said otherwise. E.g., United States v. Marks, 864 F.3d 575, 582 (7th Cir. 2017), citing United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014); see generally Molina-Martinez v. United States, 136 S. Ct. 1338, 1347–48 (2016) (under plain-error review, even a guideline er- ror not challenged in district court is presumed to affect de- fendant’s substantial rights, at least if sentencing court did not No. 18-3713 5

indicate it would have imposed same sentence absent the er- ror). Carter concedes that his California conviction for assault with a deadly weapon counts as a crime of violence, so if ei- ther of the Iowa convictions properly counts, the district court’s guideline calculation was correct. We conclude that his conviction for aggravated assault counts as a crime of vio- lence under the “elements clause” of the guideline definition. That’s enough to affirm. Application Note 1 of U.S.S.G. § 2K2.1 instructs courts to determine the base offense level for a violation of 18 U.S.C. § 922(g)(1) by using the definition of “crime of violence” in the career offender guideline, § 4B1.2(a) and its Application Note 1. Here is the definition: The term “crime of violence” means any offense under federal or state law punishable by impris- onment for a term exceeding one year, that – (1) has as an element the use, attempted use, or threatened use of physical force against the per- son of another, or (2) is murder, voluntary manslaughter, kidnap- ping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use of unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). U.S.S.G. § 4B1.2(a). We review de novo whether prior offenses are crimes of violence under the Sentencing Guidelines. United States v. 6 No. 18-3713

Edwards, 836 F.3d 831, 834 (7th Cir. 2016). To determine whether a prior conviction amounts to a “crime of violence,” we apply a categorical approach that compares the elements in the statute of conviction to the federal statute or guideline definition. E.g., Descamps v. United States, 570 U.S. 254, 260–61 (2013). The categorical approach has developed primarily un- der the mandatory statutory provisions of 18 U.S.C. § 924(c) and (e), as in Descamps, but it also applies under guideline provisions such as § 4B1.2. See Edwards, 836 F.3d at 834–35. If the state law defines an offense more broadly than the Guide- lines, the prior conviction does not qualify as a crime of vio- lence; if the state-law elements match up with or are narrower than the Guidelines, however, then the prior conviction qual- ifies. Taylor v. United States, 495 U.S 575, 602 (1990) (applying 18 U.S.C. § 924(e)). When the statute of conviction contains multiple parts, the comparison is more complex. A statute may create multiple offenses, each with its own distinct set of elements, or it may list multiple “means” of satisfying broader elements. Haynes v. United States, 936 F.3d 683, 688 (7th Cir. 2019). A statute that creates multiple offenses is “divisible,” and if it is not clear from the prior judgment which portion was violated, a court may modify the categorical approach to examine a limited set of documents to determine the crime of conviction. See Mathis v. United States, 136 S. Ct. 2243, 2250 (2016); Shepard v. United States, 544 U.S. 13, 26 (2005). If the state statute lists only “means”—alternative ways of committing a crime—so that jurors may convict without agreeing on how a defendant com- mitted it, the statute is not divisible. Mathis, 136 S. Ct. at 2251. Whether particular variants of a statute are “means” or “ele- ments” is thus a threshold inquiry. A state supreme court de- cision construing the statute can provide the answer. Id. at No. 18-3713 7

2256. In the absence of a controlling court decision, the text and structure of the statute may resolve the question; in par- ticular, if different variants carry different punishments, they necessarily constitute distinct crimes with different elements. Id. We focus our analysis on Carter’s 2015 conviction for ag- gravated assault under § 708.2(3) of the Iowa Code. “Aggra- vated assault” is an enumerated crime of violence under U.S.S.G. § 4B1.2(a)(2), but Carter argues that the Iowa offense is broader than the generic offense for guideline purposes. This court, unlike some other circuits, has not identified a ge- neric definition of aggravated assault to which the Iowa stat- ute could be compared. See, e.g., United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 2012). But we need not take that route here because a conviction under Iowa’s aggravated as- sault statute based on display of a deadly weapon, § 708.2(3), contains the threatened use of physical force as an element. Under the elements clause of § 4B1.2(a), a “crime of vio- lence” is any state or federal offense punishable by a prison term exceeding one year that “has as an element the use, at- tempted use, or threatened use of physical force against the person of another.” § 4B1.2(a)(1). The Supreme Court defines “physical force” in this context as “force capable of causing physical pain or injury to another person.” Curtis Johnson v. United States, 559 U.S. 133, 140 (2010) (applying Armed Career Criminal Act). Carter pleaded guilty to a violation of § 708.2(3) of the Iowa Code, which provides that an offender “who commits assault, as defined in section 708.1, and uses or displays a dan- gerous weapon in connection with the assault, is guilty of an 8 No. 18-3713

aggravated misdemeanor.” 1 Iowa Code § 708.2(3) (2010). Sec- tion 708.1, in turn, lists three different ways for an offender to commit an assault: (a) Any act which is intended to cause pain or injury to, or which is intended to result in phys- ical contact which will be insulting or offensive to another, coupled with the apparently ability to execute the act. (b) Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act. (c) Intentionally pointing any firearm toward another, or displaying in a threatening manner any dangerous weapon towards another. § 708.1(2). The Iowa Supreme Court has concluded that the different subsections of the simple assault statute, § 708.1, constitute distinct crimes. See, e.g., State v. Fountain, 786 N.W.2d 260, 265 (Iowa 2010) (explaining essential elements of “assault alternatives”). 2 Accordingly, we apply the modified categorical approach and may consult the so-called Shepard

1 Under Iowa law, “aggravated misdemeanors” are punishable by up to two year in prison. See Iowa Code § 903.1 (2014). They can therefore qualify as predicate offenses under U.S.S.G. § 4B1.2(a) despite the “misde- meanor” label in state law. 2 Iowa amended § 708.1 in 2013, but that amendment was stylistic and

affected only the numbering of the statute’s subdivisions. We use here the current numbering, which was also in effect in Carter's case. No. 18-3713 9

documents to determine what Carter’s offense of conviction. See Mathis, 136 S. Ct. at 2249–50. The judgment does not specify which type of simple as- sault under § 708.1 provided the basis for the aggravated as- sault conviction. And Carter’s plea agreement is not illumi- nating: it simply reproduced the entire assault statute instead of identifying what specific conduct the state would be re- quired to prove in addition to the aggravating factor. The charging information and the criminal complaint allege that Carter “assaulted” the victim and “used or displayed a dan- gerous weapon in connection with the assault” without spec- ifying which kind of underlying assault. Carter admitted in his plea agreement, however, that he displayed a knife during an altercation. And his brief, addresses only one type of un- derlying simple assault—”displaying in a threatening man- ner any dangerous weapon towards another.” Section 708.1(2)(c) thus provided the basis for his aggravated assault conviction. Carter insists that this type of aggravated assault does not require proof of “the use, attempted use, or threatened use of physical force against the person of another.” See § 4B1.2(a). Merely displaying a weapon, he argues, does not necessarily imply or indicate its use. He attempts to draw a distinction between displaying a dangerous weapon in a threatening manner and threatening to use physical force, and he says that a person could have been convicted of this crime even if the victim was not aware that the defendant displayed a weapon. In support of his arguments, Carter relies primarily on the non-precedential decision in United States v. Rico-Mendoza, 548 F. App’x 210, 213–14 (5th Cir. 2013), a pre-Mathis case in which the Fifth Circuit applied the “crime of violence” 10 No. 18-3713

definition in U.S.S.G. § 4B1.2 and decided that the Iowa ag- gravated assault statute did not “clearly requir[e] the commis- sion of the acts constituting an underlying generic ‘assault.’” The court continued: “The statutes do not require use of the weapon, threatened use of the weapon, touching another per- son with the weapon, or that a victim even be aware that the weapon is pointed or displayed toward them.” Id. at 214. The government responds that Rico-Mendoza was wrongly de- cided and urges us to adopt the reasoning of the Eighth Cir- cuit, which has repeatedly held that Iowa’s aggravated assault statute, § 708.2(3), defines a crime of violence. See, e.g., United States v. McGee, 890 F.3d 730, 737 (8th Cir. 2018); United States v. Boots, 816 F.3d 971, 974 (8th Cir. 2016); United States v. Maid, 772 F.3d 1118, 1121 (8th Cir. 2014). Carter’s conviction qualifies as a crime of violence because it required that he displayed a dangerous weapon at another person in a threatening manner. Under the Iowa statute of conviction, the state had to prove that: (1) in connection with an assault, Carter “used or displayed,” § 708.2(3); (2) a dan- gerous weapon,—i.e., an “operational weapon capable of le- thal use,” § 702.7; and that he (3) “[i]ntentionally point[ed] any firearm toward another, or display[ed] in a threatening manner any dangerous weapon towards another.” § 708.1(2)(c). Brandishing a deadly weapon in the context of an assault threatens “force capable of causing physical pain or injury to another person.” Curtis Johnson, 559 U.S. at 140. The Supreme Court has clarified that the threat of physical force “does not require any particular degree of likelihood or probability that the force used will cause physical pain or in- jury; only potentiality.” Stokeling v. United States, 139 S. Ct. 544, 554 (2019) (emphasis added). Given the emphasis on potential No. 18-3713 11

over probability of injury, we agree with the Eighth Circuit’s conclusion that “displaying an operational weapon before an- other in an angry or threatening manner qualifies as a threat- ened use of physical force.” McGee, 890 F.3d at 736 (citations omitted). At a minimum, Carter’s conviction required proof of the “threatened use of physical force against the person of an- other” sufficient to satisfy the elements prong of the “crime of violence” definition under the Guidelines. U.S.S.G. § 4B1.2(a)(1). Carter’s arguments to the contrary are not persuasive. Re- lying on Rico-Mendoza, he hypothesizes that a person could be convicted under § 708.2(3) and § 708.1(2)(c) without proof that the underlying assault occurred. But committing assault is an element of the aggravated assault offense: the enhanced penalty applies only to “a person who commits an assault as defined in section 708.1.” The court in Rico-Mendoza appar- ently concluded otherwise, but that conclusion is difficult to square with the statutory texts. Moreover, we have found no examples of Iowa courts convicting a defendant for aggra- vated assault for accidentally displaying a weapon or display- ing a weapon without a victim. This makes sense because the underlying assault statute requires the “intentional” display of a weapon “in a threatening manner” “toward another.” Ag- gravated assault under § 708.2(3) of the Iowa Code, with a predicate assault under § 708.1(2)(c), necessarily involves at least the threat to use physical force. The district court there- fore did not err in ruling that Carter’s conviction for aggra- vated assault in Iowa was a crime of violence. Because Carter’s conviction for aggravated assault quali- fies as a crime of violence, we do not address whether his do- mestic abuse assault conviction also counts. We close with 12 No. 18-3713

another of our occasional reminders about sentencing judges’ power and responsibility to exercise sentencing discretion un- der 18 U.S.C. § 3553(a). Correct application of the Sentencing Guidelines as written requires use of the categorical method to classify prior convictions, as in this case. But given the facts known about Carter’s aggravated assault conviction, or for that matter his domestic abuse conviction, a judge could sen- sibly ask why the abstract and hypothetical classifications based on other ways that other defendants might violate the same statute should be deemed important in deciding an ap- propriate sentence in the particular defendant’s case. See, e.g., United States v. Sonnenberg, 628 F.3d 361, 367–68 (7th Cir. 2010) (reversing sentence based on error in classifying de- fendant’s prior sexual abuse conviction, but noting that dis- trict court would be free on remand to consider the facts of defendant’s actual conduct in exercising its sentencing discre- tion). Congress has provided: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. This power is subject to the constitutional constraint that a con- victed defendant has a due process right to be sentenced on the basis of accurate information. E.g., United States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Adams, 879 F.3d 826, 829 (7th Cir. 2018); United States ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984). The Sentencing Commission has rec- ognized from the first edition of the Guidelines that the crim- inal history provisions were drafted so that some arbitrary consequences would be inevitable, which is why the Guide- lines have always encouraged departures (and now No. 18-3713 13

variances) based on criminal history scores that are over- or under-representative of the defendant’s culpability. See U.S.S.G. § 4A1.3 (1987); United States v. Marks, 864 F.3d 575, 582–83 (7th Cir. 2017). The categorical classification of Carter’s Iowa convictions poses a case where it would be entirely appropriate for a sen- tencing judge to signal that he or she has used the discretion under § 3553(a) to impose a sentence that does not depend on that categorical classification. When the sentencing judge does not take that course and hews closely to the Guidelines, we will go through the analysis and reverse when necessary for guideline errors. In this case, however, we agree with Judge Shadid’s classification and the resulting guideline cal- culation. The judgment of the district court is AFFIRMED.