United States v. Phillip Thomas ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-1239 and 21-1240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PHILLIP T. THOMAS,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Western District of Wisconsin.
Nos. 3:11-cr-00118-wmc-1, 3:20-cr-00051-wmc-1 — William M. Conley,
Judge.
____________________
SUBMITTED JANUARY 25, 2022 — DECIDED MARCH 1, 2022
____________________
Before RIPPLE, WOOD, and JACKSON-AKIWUMI, Circuit
Judges.
PER CURIAM. Phillip Thomas, who pleaded guilty to
distributing methamphetamine while on supervised release,
appeals the district court’s ruling that, based on two past
felony convictions, he is a career offender under the
Sentencing Guidelines. He submits that his prior conviction
2 Nos. 21-1239, 1240
under Wisconsin’s child abuse statute is not a crime of
violence under the career offender Guideline because the
statute prohibits intentionally causing bodily harm but does
not separately include the use of physical force as an
element. Mr. Thomas concedes that this circuit’s controlling
precedent—which holds that the crime of intentionally
causing bodily harm is a crime of violence—defeats his
argument. Even so, he asks us to reconsider our precedent in
light of a circuit split on the issue; alternatively, he seeks to
preserve the question for Supreme Court review. Because
Mr. Thomas’s arguments are closely akin to those we have
rejected in the past, we affirm the judgment of the district
court in appeal 21-1240, the direct appeal of his criminal
conviction. We also affirm the judgment of the district court
in appeal 21-1239, Mr. Thomas’s appeal of a revocation of
supervised release. In that case, he has made no argument in
this court.
I
BACKGROUND
Mr. Thomas pleaded guilty in 2020 to distributing 50
grams or more of methamphetamine, in violation of
21 U.S.C. § 841(a)(1). At the time of this offense, he was
serving an extended term of supervised release based on an
earlier conviction for conspiracy to possess with intent to
distribute 100 grams or more of heroin, in violation of
21 U.S.C. §§ 841(a)(1), 846. Mr. Thomas did not contest
revocation of his supervision term.
Before sentencing in the present case, the probation office
determined that Mr. Thomas qualifies as a career offender
under the Sentencing Guidelines because he had committed
Nos. 21-1239, 1240 3
a controlled substance offense and had “at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.” See U.S.S.G. § 4B1.1(a).
Mr. Thomas’s first qualifying prior conviction, according to
the probation office’s calculations, is his prior federal heroin
conviction. The second is a prior conviction for Child
Abuse—Intentionally Cause Harm, in violation of Wisconsin
Statute § 948.03(2)(b). Employing the career offender
guidelines yielded a sentencing range of 262 to 327 months
in prison for his distribution conviction. Without the career
offender designation, the applicable guideline range would
have been 120 to 125 months.
Mr. Thomas objected to his designation as a career
offender. In his view, his prior Wisconsin conviction for
child abuse was not a predicate offense. The underlying
Wisconsin statute states: “Whoever intentionally causes
bodily harm to a child is guilty of a Class H felony.” Wis.
Stat. § 948.03(2)(b). Mr. Thomas argued that because the
statute did not require the use of physical force as an
element, it did not fit the definition of a “crime of violence”
under U.S.S.G. § 4B1.2(a).
Mr. Thomas readily acknowledged that his position is
contrary to the established circuit law. See, e.g., United States
v. Jennings, 860 F.3d 450 (7th Cir. 2017) (holding that the
crime of intentionally causing the bodily harm of another is
a crime of violence). Mr. Thomas submitted, nevertheless,
that this precedent should not stand in light of the rulings of
several other circuits, which have concluded that a
conviction for causing bodily harm, albeit without an
outward use of physical force, is not a crime of violence.
4 Nos. 21-1239, 1240
The district court conducted a joint plea, revocation, and
sentencing hearing in February 2021. The court accepted
Mr. Thomas’s plea on the distribution charge, and based on
that plea, it also revoked his supervised release. The court
then sentenced Mr. Thomas. Rejecting his argument that his
prior child abuse conviction was not a crime of violence
under the Guidelines, it ruled that Mr. Thomas satisfied the
requirements of the career offender designation. The court
imposed a sentence of 100 months in prison in the present
distribution case—a term well below the 262 to 327 months
in the guideline range. It then imposed a consecutive
sentence of 30 months in prison in the revocation case.
Mr. Thomas appealed and raised a single issue: the
career offender designation under U.S.S.G. § 4B1.1(b).
II
DISCUSSION
As he did in the district court, Mr. Thomas concedes that
his status as a career offender is consistent with circuit law.
He asks us to reconsider our existing precedent regarding
the definition of a “crime of violence” under U.S.S.G.
§ 4B1.2(a).
Sentencing Guideline § 4B1.2(a) defines a crime of
violence as any felony offense that “has as an element the
use, attempted use, or threatened use of physical force
against the person of another.” Id. We have consistently held
that the crime of intentionally causing bodily harm
necessarily requires physical force, and thus is a crime of
violence. See, e.g., United States v. Waters, 823 F.3d 1062, 1064
(7th Cir. 2016). Mr. Thomas maintains that intentionally
inflicting bodily harm on a child—the only requirement of
Nos. 21-1239, 1240 5
the Wisconsin child abuse statute under which he was
convicted—does not necessarily involve violent force. See
Wis. Stat. § 948.03(2)(b).
Mr. Thomas’s situation cannot be distinguished from
cases involving domestic abuse convictions in which we
rejected arguments similar to those that Mr. Thomas raises.
For example, the defendant in Jennings argued that, because
the crime of conviction required the prosecution to prove the
infliction of bodily harm on the (domestic abuse) victim, it
did not necessarily require proof of physical force, and so is
not a crime of violence. 860 F.3d at 457–61. We rejected that
argument as “a line of reasoning that we have considered
and rejected on multiple occasions.” Id. at 458 (collecting
cases). We have taken the same stance in numerous other
cases in which we examined domestic battery statutes that
lacked a separate element of physical force and have held
repeatedly that an offense under these statutes was a crime
of violence. See, e.g., LaGuerre v. Mukasey, 526 F.3d 1037, 1039
(7th Cir. 2008); De Leon Castellanos v. Holder, 652 F.3d 762,
766–67 (7th Cir. 2011); Waters, 823 F.3d at 1065–66.
Mr. Thomas asks us to reconsider this precedent in light
of a circuit split over whether a crime involving the
intentional infliction of bodily harm without overt violent
force is a violent felony under the Armed Criminal Career
Act, see 18 U.S.C. § 924(e), or a crime of violence under
U.S.S.G. § 4B1.2(a). As Mr. Thomas characterizes the split,
the Third, Fifth, Sixth, and Ninth Circuits have held that
such offenses cannot be considered violent felonies or crimes
6 Nos. 21-1239, 1240
1
of violence, while the First, Second, Seventh, Eighth, Tenth,
and Eleventh Circuits on the other hand have held that they
2
can be. Mr. Thomas also asserts that the Fourth Circuit has
fallen on each side of the split, but reading his cited cases
3
shows them to be reconcilable. The issue was recently
raised in a petition for writ of certiorari following an en banc
opinion by the Second Circuit, but the Supreme Court
denied the petition. See United States v. Scott, 990 F.3d 94 (2d
Cir. 2021), cert. denied, 595 U.S. — (Oct. 18, 2021).
Respectful consideration of the differing views of other
circuits is, without doubt, a continuing obligation of every
circuit. Differences in law of national applicability, once
aired thoroughly throughout the Country, need to be
resolved, and the courts of appeals can contribute to that
1 See United States v. Mayo, 901 F.3d 218 (3d Cir. 2018); United States v.
Resendiz-Moreno, 705 F.3d 203 (5th Cir. 2013), overruled by United States v.
Reyes-Contreras, 910 F.3d 169, 183–84, 187 (5th Cir. 2018) (en banc); United
States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en banc); United States v.
Trevino-Trevino, 178 F. App’x 701 (9th Cir. 2006). Note that, after
Reyes-Contreras, the Fifth Circuit no longer requires bodily contact for a
crime of violence. 910 F.3d at 183–84.
2 See United States v. Báez-Martínez, 950 F.3d 119 (1st Cir. 2020); United
States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc); United States v. Waters,
823 F.3d 1062 (7th Cir. 2016); United States v. Peeples, 879 F.3d 282 (8th
Cir. 2018); United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017); United
States v. Sanchez, 940 F.3d 526 (11th Cir. 2019).
3 Compare United States v. Gomez, 690 F.3d 194, 202–03 (4th Cir. 2012)
(remanding for resentencing where the district court applied the
incorrect categorical approach), with United States v. Rumley, 952 F.3d 538,
550 (4th Cir. 2020) (holding a conviction of Virginia’s “unlawful
wounding” statute to be a violent felony).
Nos. 21-1239, 1240 7
effort by respectful consideration of the views of others
coupled by candid self-examination of earlier work. There
are, however, countervailing considerations rooted in the
doctrines of stare decisis and precedent. Consequently, we
have made clear that before overruling longstanding circuit
precedent, we will identify explicit reasons that justify our
taking such an action. We have identified some of the
reasons that might justify such a course: (1) “when the
circuit is an outlier and can save work for Congress and the
Supreme Court by eliminating a conflict”; (2) when
overruling “might supply a new line of argument that
would lead other circuits to change their positions in turn”;
and (3) “when prevailing doctrine works a substantial
injury.” Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir.
2009) (en banc).
Here, however, we can identify no consideration that
would justify our deviation from a path so well-trod. At
least five other circuits have taken the same position; we
certainly are not an outlier. Moreover, Mr. Thomas presents
no persuasive argument that would warrant this circuit’s
altering its position that overt force from the defendant is
not necessary when the crime of conviction otherwise
4
prohibits the intentional infliction of bodily harm.
4 Mr. Thomas’s argument that some convictions under the Wisconsin
child abuse statute do not involve overt force is beside the point and
overstated. Mr. Thomas invites our attention to several cases where, in
his view, there was no overt use of violent force. For example,
Mr. Thomas cites State v. Williquette, 385 N.W.2d 145, 147 (Wis. 1986), in
which the defendant was convicted of failing to prevent her spouse from
abusing their child. But he fails to note that this case was decided under
(continued … )
8 Nos. 21-1239, 1240
The district court correctly concluded that Mr. Thomas’s
previous conviction for child abuse was a crime of violence.
That conviction, together with his prior (and uncontested)
felony drug conviction for heroin, met the requirements for
the career offender designation under the guidelines. See
U.S.S.G. § 4B1.1.
We therefore affirm the judgments of the district court.
( … continued)
a now-superseded statute. Later cases explain that passive conduct like
that in Williquette is properly charged under § 948.03(4) of the current
child abuse statute, for failing to act to prevent a child’s bodily harm, not
the intentional harm provision under which Mr. Thomas was convicted.
See, e.g., State v. Rundle, 488 N.W.2d 125 (Wis. Ct. App. 1992).
Mr. Thomas also misreads State v. McGee, No. 98-3012-CR, 2000 WL
156866 (Wis. Ct. App. Feb. 15, 2000), to argue that the defendant there
was prosecuted under the intentional harm statute for sleeping with a
loaded gun next to a child. But the prosecution for the sleeping conduct
was based on reckless causation of bodily harm, not intentional
causation. See id. at *6. We thus conclude that the statute’s goal is to
target crimes of violence and therefore falls under U.S.S.G. § 4B1.2(a).