United States v. Rosas, Freddy ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2929
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDDY ROSAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-239—Rudolph T. Randa, Chief Judge.
____________
ARGUED DECEMBER 15, 2004—DECIDED MARCH 24, 2005
____________
Before BAUER, COFFEY, and SYKES, Circuit Judges.
PER CURIAM. Freddy Rosas was convicted of drug and
gun crimes and sentenced as a career offender under
U.S.S.G. § 4B1.1 to a total of 262 months imprisonment,
based in part on his prior Wisconsin conviction for fleeing
a police officer. In this appeal Rosas argues that he is not a
career offender because, he says, his conviction for fleeing
a police officer is not a qualifying “crime of violence.” Like
the district court, however, we conclude that United States
v. Howze, 343 F.3d 919, 921 (7th Cir. 2003), compels the
2 No. 04-2929
conclusion that under the Wisconsin statute at issue,
fleeing a police officer is categorically a crime of violence.
Accordingly, we affirm.
I.
Rosas pleaded guilty to distributing cocaine, 21 U.S.C.
§ 841(a)(1), possessing a firearm during and in relation to
a drug offense, 18 U.S.C. § 924(c), and possession of a fire-
arm by a felon, id. § 922(g)(1). Rosas had several prior
Wisconsin convictions, including a felony conviction for a
drug offense and another under Wis. Stat. § 346.04(3) for
fleeing a police officer. The probation officer recommended
that Rosas be sentenced under U.S.S.G. § 4B1.1 as a career
offender, a guideline applicable if the defendant has at least
two prior felony convictions for either a crime of violence or
a controlled substance offense. The probation officer
concluded that Rosas’ flight conviction under § 346.04(3),
which qualified as a crime of violence, along with his state
drug conviction provided the two convictions necessary for
sentencing him as a career offender. Rosas’ base offense
level otherwise would have been 24, and with a three-level
downward adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1 and a Category VI criminal history score,
he might have faced an imprisonment range of 77 to 96
months. The proposed career offender guideline, however,
increased his base offense level to 37, and with the decrease
for acceptance of responsibility, Rosas’ total offense level
was 34, yielding a recommended imprisonment range of 262
to 327 months. The district court imposed concurrent
sentences for 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 922(g)(1), 240 and 120 months respectively, and a 60-
month consecutive sentence for 18 U.S.C. § 924(c) for a
“total term of 262 months imprisonment.” Additionally, the
court ordered Rosas to serve five years of supervised release
and pay a 300 dollar assessment and a 2,000 dollar fine.
No. 04-2929 3
At sentencing Rosas objected to the characterization of his
fleeing conviction as a crime of violence. He offered three
reasons. First, he argued that Howze, which holds in the
context of 18 U.S.C. § 924(e) that all flights to avoid arrest
pose a serious potential risk of physical injury and thus are
categorically “violent felonies,” did not control because
Howze analyzes § 924(e) and the related armed career
criminal guideline, U.S.S.G. § 4B1.4, rather than the career
offender guideline, id. § 4B1.1. Second, Rosas argued that,
even if applicable, Howze should be reconsidered because a
recent addition to the Wisconsin statute creating an
additional misdemeanor provision for flight from the police
renders the decision overbroad. And, third, he argued that
certain conduct prohibited by § 346.04(3) does not include
an element of risk to qualify it as a “crime of violence.” The
district court concluded that it was bound by Howze and
held that Rosas’ fleeing conviction did qualify as a “crime of
violence” because, despite the different sentencing provi-
sions at stake, the conduct described in Howze and in Rosas’
case is the same. Regarding Rosas’ argument about the
amendment to § 346.04 after Howze was decided, the
district court reasoned that the change was irrelevant since,
as Rosas concedes, even after the amendment his conduct
would amount to a felony, not a misdemeanor. Finally, the
court looked to the conduct underlying Rosas’ conviction and
concluded that, indeed, his flight from police had created a
potential risk of physical injury. On appeal Rosas reasserts
the three arguments he made in district court, and adds a
fourth contesting the district court’s reliance on information
from outside his charging instrument in concluding that the
conduct underlying his fleeing conviction presented a
serious potential risk of physical injury. Rosas also contends
that his sentence runs afoul of Blakely v. Washington, 124
S. Ct. 2531 (2004), and this court’s decision in United States
v. Booker, 375 F.3d 508 (7th Cir. 2004).
4 No. 04-2929
II.
Under § 4B1.1, a defendant is a career offender if he is
being sentenced for a crime of violence or drug trafficking
offense committed after he turned 18 and he has at least
two prior felony convictions for either crimes of violence or
controlled substance offenses. U.S.S.G. § 4B1.1(a). A “crime
of violence” is a state or federal felony that is either enu-
merated in the guideline definition, or “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” or “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a). Fleeing a police
officer is not one of the felonies enumerated in the guideline
definition, and Wisconsin’s statute does not include any
element of force, so flight from police can be a crime of
violence only if it fits within the “otherwise” clause of
§ 4B1.2. A district court’s decision to sentence a defendant
as a career offender is a question of law reviewed de novo.
United States v. Cole, 298 F.3d 659, 661 (7th Cir. 2002).
In arguing that Howze should not control, Rosas correctly
observes that the decision actually decided that flight under
§ 346.04(3)—the very statute at issue in this case—is a
“violent felony” under the Armed Career Criminal Act, 18
U.S.C. § 924(e), which the guidelines implement in § 4B1.4,
not § 4B1.1. This distinction is significant, says Rosas,
because Application Note 1 to § 4B1.4 states that the
definitions of “violent felony” and “crime of violence” are
“not identical.” True enough, but the relevant language in
the definition of “violent felony” at issue in Howze—“or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”—is identical to the
“otherwise” clause of the definition of “crime of violence”
found in § 4B1.2. Compare 18 U.S.C. § 924(e)(2)(B)(ii),
U.S.S.G. § 4B1.4, comment. (n.1), with U.S.S.G. § 4B1.2(a).
Rosas concedes this point, but simply insists, without elab-
No. 04-2929 5
oration, that there is a material distinction between Howze
and his case because different provisions of the guidelines
are at stake.
In fact there is no distinction. In Howze itself, we ex-
plained that United States v. Shannon, 110 F.3d 382 (7th
Cir. 1997) (en banc), viewed the career offender guideline
and the Armed Career Criminal Act as “interchangeable.”
See Howze, 343 F.3d at 924. And at least as to the “other-
wise” clause in both the definition of “violent felony” and
the career offender definition of “crime of violence,” Rosas
makes no argument as to why cases interpreting the same
language in one provision should not apply equally to the
other. We note that, at the time Howze was decided, the
clause at stake in both the Armed Career Criminal Act and
in the career offender definition (“or otherwise involves
conduct that presents a serious potential risk of physical
injury to another”) was identical to what is in use today.
Moreover, although the precise question has not been before
this court, the Sixth Circuit—relying on Howze—has
concluded that flight does qualify as a “crime of violence”
under § 4B1.2. See United States v. Martin, 378 F.3d 578,
582-83 (6th Cir. 2004) (characterizing § 924(e) analysis in
Howze as “a comparable conclusion”).
Rosas also argues that Howze’s holding should not control
because, he contends, a recent amendment that expanded
Wis. Stat. § 346.04 to allow charging flight from the police
either as a misdemeanor or felony renders Howze overbroad
and undermines the decision. The statute now includes a
new subsection (2t) that reads: “No operator, after having
received a visible or audible signal to stop his or her vehicle
from a traffic officer or marked police vehicle, shall know-
ingly resist the traffic officer by failing to stop his or her
vehicle as promptly as safety reasonably permits.” Wis. Stat.
§ 346.04(2t). Rosas takes the position that the Wisconsin
legislature, by creating a misdemeanor provision, has rec-
ognized that “all flights do not create felonious risk-creating
6 No. 04-2929
conduct.” Appellant’s Br. at 28. The short answer is that a
misdemeanor cannot be a crime of violence and that Howze
analyzes § 346.04(3), not § 346.04(2t). In any event, the new
section does not appear to alter the approach to conduct
previously proscribed by § 346.04(3), but rather criminalizes
a new class of conduct. Compare Wis. Stat. § 346.04(3), with
id. § 346.04(2t). Moreover, Rosas’ argument regarding the
implications of misdemeanor flight is purely hypothetical, as
Rosas concedes that his conduct would still be charged and
resolved as a felony even after the amendment to § 346.04.
As applied to Rosas and § 346.04(3), Howze is not under-
mined at all.
Because Howze compels the conclusion that a violation of
§ 346.04(3) is categorically a crime of violence, Rosas’ next
two arguments have no relevance. Rosas insists that his
particular violation of § 346.04(3), as charged in the
Information, did not pose a potential risk of physical injury
to another. Under a categorical approach, though, there is
no need to evaluate the language of the charging instru-
ment: Howze rejected the argument that there is a way to
violate § 346.04(3) that does not involve the creation of risk
and concluded, as a per se rule with respect to that provi-
sion, “all flights involve that risk-creating conduct.” Howze,
343 F.3d at 922. For the same reason it does not matter
that the district court appears to have erroneously evalu-
ated Rosas’ flight conviction by looking to the underlying
conduct. See, e.g., United States v. Cole, 298 F.3d 659, 662
(7th Cir. 2002) (confining a district court’s evaluation to
charging documents, except in certain circumstances).
That leaves only Rosas’ argument under Blakely and
Booker. While Rosas acknowledges that prior convictions
used to enhance sentences need not be proven to a jury be-
yond a reasonable doubt, see Almendarez-Torres v. United
States, 523 U.S. 224, 244 (1998); Pittman v. United States,
388 F.3d 1104, 1109 (7th Cir. 2004) (holding that
Almendarez-Torres survives Blakely), he contends that it is
No. 04-2929 7
the nature, not the mere existence, of a previous conviction
that requires a jury determination. This argument is
misguided because whether a previous offense constitutes
crime of violence for purposes of sentencing enhancement is
a question of law, see United States v. Bryant, 310 F.3d 550,
552 (7th Cir. 2002), whereas Blakely implicates only
questions of fact, Blakely, 124 S. Ct at 2536; see also United
States v. Trala, 386 F.3d 536, 547 n.15 (3d Cir. 2004)
(holding that whether an offense is a “crime of violence or
a controlled substance offense” is a legal determination that
does not raise an issue of fact under Blakely or Apprendi v.
New Jersey, 530 U.S. 466 (2000)); United States v. Moorer,
383 F.3d 164, 169 n.4 (3d Cir. 2004) (holding that status as
a career offender is purely a legal question and does not
implicate Blakely).
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-24-05