Seventh Circuit Criminal Case of the Week: What Is a Crime of Violence?

seventh circuit

The Armed Career Criminal Act and § 4B1.1 of the federal sentencing guidelines both provide for lengthened prison terms for certain defendants with three or more prior convictions for crimes of violence.  It’s clear that certain prior convictions qualify (e.g., rape and armed robbery), but there are a surprisingly large number of offenses in the gray area between violent and nonviolent. 

As I discussed in an earlier post, the Supreme Court recently developed a new definition for “crime of violence” in Begay v. United States, 128 S. Ct. 1581 (2008), in which the Court held that prior DUI convictions do not trigger ACCA’s fifteen-year mandatory minimum.  Begay cast a lot of circuit-court precedent into doubt, and the Seventh Circuit has been struggling ever since to develop a consistent, coherent approach to identifying what types of offenses count as “violent.”  (See, for example, this post.)  Meanwhile, the Supreme Court has also remained active in this area.  Last term, for instance, the Court held that failure to report to prison and walkaway escapes are not crimes of violence in Chambers v. United States, 129 S. Ct. 687 (2009).  And the Court recently granted cert in Johnson v. United States to decide whether a battery offense counts as violent.

Reflecting the turbulence in this area of the law, the Seventh Circuit had three — count ’em, three — notable new opinions dealing with the “crime of violence” question last week. 

In one, United States v. Patterson (No. 08-2240), the court (per Judge Flaum) held that transporting a minor for prostitution is a crime of violence.  But in another, United States v. High (No. 08-1970), the court (per curiam) held that second-degree reckless endangerment under Wisconsin law is not.

The most important of the three, though, was United States v. Woods (No. 07-3851).  In Woods, the court (per Judge Wood) self-consciously sought to clarify the Seventh Circuit’s post-Begay approach to “crime of violence.”  Reflecting the opinion’s importance, Woods was circulated in draft form to the full court.  Seven judges approved Judge Wood’s opinion, while just three voted to hear the case en banc.  (Chief Judge Easterbrook authored a thoughtful dissenting opinion on behalf of the three.)

Much of Woods focuses on the so-called “categorical approach” developed by the Supreme Court for use in “crime of violence” cases.  Under this approach, offenses are categorized as violent or nonviolent based not on the particular facts of the defendant’s conduct, but on the formal elements of the crime of which the defendant was convicted.  For instance, a defendant convicted of failure to report to prison may have violently resisted police when finally apprehended, but the conviction would still count as nonviolent because all failure-to-report convictions are treated the same under the categorical approach, and the Supreme Court held in Chambers that failure to report is not violent.  The categorical approach has efficiency on its side; if sentencing judges had to evaluate the conduct underlying prior convictions, the result would be a great deal of collateral litigation regarding things the defendant may have done years earlier.

The big question with the categorical approach (which has produced a few seemingly inconsistent post-Begay opinions in the Seventh Circuit) is under what circumstances the sentencing judge can look beyond the bare elements of the offense of conviction and consider such additional sources as the charging document, the plea agreement, and the guilty plea colloquy. The Supreme Court has sometimes permitted recourse to such documents as a limited exception to the categorical approach, but the Court has not clearly delineated the scope of the exception.   

Woods now clears up the matter in the Seventh Circuit: “[T]he additional materials . . . may be used only to determine which crime within a statute the defendant committed, not how he committed that crime” (10).  Thus, the “expanded inquiry” may be made only when a defendant has been convicted under a statute that is “‘divisible’ — that is, expressly identifies several ways in which a violation may occur” (14).  For instance, a single burglary statute will sometimes list several different types of structures (house, vessel, garage, etc.) whose unlawful entry constitutes the crime of burglary.  The statute is thus divisible, and the additional materials may be consulted for the limited purpose of determining which type of structure the defendant entered.  It is possible that burlary of certain types of structures would be treated as violent, while burlary of others would not.

Having clarified how to use the categorical approach, Woods turned to the specific offense at issue, involuntary manslaughter under Illinois law (720 ILCS 5/9-3(a)).  The key language from the statute was:

A person who unintentionally kills an individual . . . commits manslaughter if his acts . . . which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.

Because the statute did not specify different means by which it could be violated, it was not “divisible”; hence, the “expanded inquiry” was impermissible. 

In determining whether the elements of the statute established a crime of violence, Woods reaffirmed the important holding of United States v. Smith, 544 F.3d 781 (7th Cir. 2008), that a crime is not violent if its mens rea is merely negligence or recklessness.  Because the key mens rea element of involuntary manslaughter is recklessness, the court determined that the offense was not a crime of violence.

The government tried to distinguish Smith by arguing that the Illinois statute required that the defendant perform an intentional act; the recklessness requirement pertained only to the consequences of the act.  But, as anyone who has taken first-year Criminal Law should appreciate, the requirement of a volitional act is a basic requirement that applies to nearly all crimes.  Thus, as the Seventh Circuit observed, the government’s reasoning would “obliterate[]” the “classic line that has been drawn between the actus reus and mens rea of a criminal offense” (23). 

Other new opinions in criminal cases last week were:

United States v. Williams (Nos. 08-1470 & 08-1493) (Wood, J.) (reversing conviction because district court abused discretion in denying request for continuance).

United States v. Ramirez (No. 08-3216) (Tinder, J.) (affirming conviction in wire fraud case over defendant’s objection that “ostrich instruction” was improper).

United States v. Aguilar-Huerta (No. 08-2505) (Posner, J.) (“[W]e do not think a judge is required to consider . . . an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.”).

United States v. Wescott (No. 08-1211) (Rovner, J.) (holding that defendant in Section 922(g)(8) case may not “wage a collateral challenge to the predicate state court hearing”).

United States v. Jackson (No. 08-2295) (Cudahy, J.) (holding that police had probable cause to arrest defendant and affirming sentence).

United States v. Gearhart (No. 08-1558) (Cudahy, J.) (affirming conviction over objections based on rights to speedy trial and counsel of one’s choice).

United States v. Peleti (No. 08-1507) (Wood, J.) (holding that district court did not abuse discretion in refusing to permit defendant to withdraw guilty plea).

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.