United States v. Peters, Ryan ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2554
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RYAN J. PETERS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 107—J.P. Stadtmueller, Judge.
____________
ARGUED JANUARY 9, 2006—DECIDED AUGUST 30, 2006
____________
Before POSNER, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Ryan Peters pleaded guilty to
possession of a firearm as a convicted felon, for which the
maximum penalty is ten years in prison. 18 U.S.C.
§§ 922(g)(1), 924(a)(2). His base offense level under the
Sentencing Guidelines would have been 15 (resulting in
a sentencing range of 41-51 months), but the district court
held that Peters’s two prior convictions—one for substantial
battery with intent to commit bodily harm in violation of
section 940.19(2) of the Wisconsin Statutes and one for
battery, habitual criminality in violation of sections
940.19(1), 939.62(1)(a), and 939.62(2) of the Wisconsin
Statutes—were “crimes of violence” as defined by the
guidelines. See U.S.S.G. 4B1.2(a)(1). This increased his
2 No. 05-2554
offense level to 24, resulting in a sentencing range of 110 to
137 months. See U.S.S.G. 2K2.1(a)(2).
Peters objected, arguing that the Fifth and Sixth Amend-
ments required that a jury determine beyond a reasonable
doubt whether his prior convictions were crimes of violence.
He argued that the logic of United States v. Booker, 543
U.S. 220 (2005) had undermined the holding of Almendarez-
Torres v. United States, 523 U.S. 224 (1998), which held
that judges may determine the fact and nature of prior
convictions at sentencing, even when those findings expose
the defendant to higher maximum penalties. Peters also
argued that the information in the presentence report about
his prior convictions did not comport with the requirements
of Shepard v. United States, 544 U.S. 13 (2005). The district
court rejected his arguments and imposed a sentence of
110 months. Peters has appealed, reiterating his constitu-
tional arguments, which we review de novo. Gonzalez v.
O’Connell, 355 F.3d 1010, 1019 (7th Cir. 2004).
Peters maintains that Almendarez-Torres is no longer
good law in light of Booker—that juries, not judges, must
determine beyond a reasonable doubt the fact and nature of
prior convictions that increase penalties. That argument is
foreclosed by several of this court’s post-Booker cases. We
note as an initial matter that this case does not squarely
implicate the question of whether Almendarez-Torres
survives Booker because the two battery convic-
tions increased only Peters’s guidelines range, not his
statutory maximum penalty, and the remedial opinion in
Booker cured the constitutional problem posed by the
guidelines by making them advisory. Peters’s sentence
was statutorily capped at ten years, and findings that move
him up in the guidelines range do not implicate the rule of
Almendarez-Torres. See United States v. Ngo, 406 F.3d 839,
843 n.1 (7th Cir. 2005) (distinguishing between the use of
prior convictions to increase guidelines ranges and the use
of prior convictions to increase statutory maximums, noting
No. 05-2554 3
that the former no longer raise constitutional concerns
because the remedial opinion in Booker rendered the
guidelines advisory).
In any event, Booker explicitly maintained the
Almendarez-Torres rule permitting judges rather than
juries to determine the fact and nature of prior convic-
tions used to increase sentences. Booker, 543 U.S. at 244
(“Any fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”). To the extent that
Almendarez-Torres is in tension with the logic of Booker and
its predecessors, we may not decline to follow it. See
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477, 484 (1989) (“If a precedent of this Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own
decisions.”); United States v. Sperberg, 432 F.3d 706, 707
(7th Cir. 2005) (“We must follow Almendarez-Torres unless
the Justices direct otherwise . . . .”); United States v.
Stevens, 453 F.3d 963, 967 (7th Cir. 2006).
Accordingly, we have repeatedly declined invitations to
hold that Almendarez-Torres is no longer valid after Booker.
United States v. Williams, 410 F.3d 397, 402 (7th Cir. 2005);
United States v. Lechuga-Ponce, 407 F.3d 895, 896-97 (7th
Cir. 2005); United States v. Lewis, 405 F.3d 511, 513 (7th
Cir. 2005); United States v. Schlifer, 403 F.3d 849, 852 (7th
Cir. 2005). We do so again here. Peters did not have a Sixth
Amendment right to a jury determination of his prior
convictions.
Similarly, we have previously rejected the argument
that the fact and character of prior convictions for guide-
4 No. 05-2554
lines purposes must be proven beyond a reasonable doubt.
We have noted that guidelines calculations are conducted
the same way now as they were before Booker. See, e.g.,
United States v. Robinson, 435 F.3d 699, 700-01 (7th Cir.
2006); United States v. Cunningham, 429 F.3d 673, 675 (7th
Cir. 2005). That means judges must resolve disputed factual
issues, but there is no requirement of proof beyond a
reasonable doubt because the guidelines are now advisory.
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005). We
have held that “the fact of a prior conviction need not be
proven beyond a reasonable doubt,” Lechuga-Ponce, 407
F.3d at 896, and have characterized the determination of
the nature of a prior conviction as a legal rather than
factual inquiry as a result of the Supreme Court’s hold-
ings in Shepard and Taylor v. United States, 495 U.S. 575,
600-02. See Lewis, 405 F.3d at 514 (“That legal criteria
(‘what kind of crime is this’) rather than factual inquiries
(‘what did this person do when violating that statute?’)
identify a ‘crime of violence’ is the principal reason why the
proviso to Booker exists, as Part III of Justice Souter’s
opinion in Shepard explains.”). Peters pleaded guilty to
possessing a firearm as a convicted felon. That admission
exposed him to a maximum ten-year sentence. As long as
Peters was not sentenced to more than ten years, nothing
had to be found beyond a reasonable doubt.
Peters argues in the alternative that the information
upon which the district court based its determination that
his prior convictions were crimes of violence did not satisfy
the requirements of Shepard. He says the presentence
report referred only to the criminal complaints in his
prior cases, not the actual judgments against him. It is
unclear why Peters thinks the judgments are necessary—he
did not dispute that he was convicted of the two offenses.
Even if the presentence report referenced only the charging
documents, as Peters asserts, that (coupled with his
admission that the convictions were his) would be sufficient.
No. 05-2554 5
Shepard—which dealt with mandatory penalty increases
for recidivists under the Armed Career Criminal Act, but
which also applies to guidelines recidivist enhancements,
United States v. McGee, 408 F.3d 966, 988 (7th Cir.
2005)—limited the universe of material sentencing courts
may consider when determining whether a conviction
obtained by guilty plea qualifies as a violent felony.
Shepard, 544 U.S. at 16. Shepard held that “a later court
determining the character of an admitted [prior convic-
tion] is generally limited to examining the statutory
definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factfinding by
the trial judge to which the defendant assented,” or other
“comparable judicial record[s]” of the prior conviction. Id. at
16. Charging documents are specifically listed within this
universe of material the sentencing judge may consider.
The court does not need the actual physical charging
document, either; a presentence report that recounts the
charging document’s terms will suffice. Id. at 26 (limiting
court’s inquiry to, among other things, “the terms of the
charging document” (emphasis added)).
In any event, Peters’s presentence report does reference
judgments. It states that Peters “was convicted of substan-
tial battery-intended bodily harm in Case No. 96CF218
on 2/21/97 and of battery, habitual criminality in Case
No. 99CM574 on 2/16/00,” and in an addendum notes that
the report writer examined only “the judgment and criminal
complaint to determine if the underlying offenses were
crimes of violence.” The district court’s reliance on the
information in the presentence report did not run afoul of
Shepard. Accordingly, the only question left is whether the
court correctly concluded that the two battery convictions
were crimes of violence.
As we have noted, whether a prior conviction was for a
crime of violence is a legal inquiry into the nature of the
crime of conviction, not a factual inquiry into the underly-
6 No. 05-2554
ing conduct of the defendant. Lewis, 405 F.3d at 513-15.
Peters’s two convictions qualify as crimes of violence as
defined by § 4B1.2 of the sentencing guidelines. Guidelines
§ 4B1.2 defines “crime of violence” for purposes of the
enhancement under § 2K2.1 as any offense punishable by
imprisonment for a term exceeding one year that has as
an element “the use, attempted use, or threatened use
of physical force against a person of another,” or that
“involves conduct that presents a serious potential risk of
physical injury to another.” U.S.S.G. §§ 4B1.2(a)(1) and
(a)(2). Peters was found guilty of substantial battery in
violation of section 940.19(2) of the Wisconsin Statutes,
which is a felony punishable by a term of imprisonment
of more than one year and requires that the defendant
caused substantial bodily harm to another by an act done
with intent to harm the other person. That satisfies the
guidelines definition of a crime of violence. So does his other
conviction for battery in violation of section 940.19(1) of the
Wisconsin Statutes, which requires that the defendant
caused bodily harm to another with the intent to harm that
person and without that person’s consent. Although classi-
fied as a misdemeanor, by operation of the habitual crimi-
nality penalty provision applied in Peters’s case, the offense
was punishable by a term of imprisonment of more than one
year. See United States v. Bissonnette, 281 F.3d 645, 646
(7th Cir. 2002) (holding that conviction for violation of Wis.
Stat. Sec. 940.19(1), the misdemeanor battery provision,
when coupled with state sentencing enhancements for
habitual criminality, qualifies as a crime of violence
punishable by a prison sentence of more than one year).
Accordingly, for the foregoing reasons, we reject Peters’s
argument that he was entitled to have a beyond-a-
reasonable-doubt jury determination of the fact and nature
of his prior convictions. The district court properly con-
cluded that his two battery convictions are crimes of
violence for purposes of calculating his advisory sentenc-
No. 05-2554 7
ing range. Peters has not challenged the reasonableness
of his sentence under Booker.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-30-06