United States v. Melvin Spells ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1185
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MELVIN D. SPELLS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division
No. 06 CR 75—Sarah Evans Barker, Judge.
____________
ARGUED APRIL 18, 2008—DECIDED AUGUST 8, 2008
____________
Before BAUER, FLAUM, and KANNE, Circuit Judges.
FLAUM, Circuit Judge. Defendant Melvin Spells was
convicted by a jury on three counts stemming from a
robbery of a Papa Johns Pizza restaurant. While Spells
challenges the sufficiency of the evidence on appeal,
the main thrust of this appeal involves Spells’s sentenc-
ing. The district court, in sentencing Spells, found that he
was an armed career criminal under 18 U.S.C. § 924(e)(1),
based on what it deemed to be prior “violent felonies,” as
well as a career offender under U.S.S.G. § 4B1.1. Spells
was then sentenced to 346 months’ imprisonment—262
months, concurrent, on Counts 1 and 3, with a consecutive
2 No. 07-1185
sentence of 84 months on Count 2. In addition to chal-
lenging the sufficiency of the evidence, Spells appeals the
court’s findings that he was an armed career criminal and
a career offender, as well its imposition of a 262 month
sentence on Count 1, when the statutory maximum sen-
tence on that Count was 240 months. For the following
reasons, we affirm the district court’s judgment on all
grounds, except for the 262 month sentence on Count 1,
and order a limited remand for the district court to cor-
rect this error.
I. Background
On May 9, 2006, a three count indictment was filed
against Spells with respect to an alleged robbery of a Papa
Johns Pizza on June 13, 2005. The indictment charged
Spells with: (1) robbery affecting interstate commerce in
violation of 18 U.S.C. § 1951(a); (2) brandishing a fire-
arm during and in relation to a crime of violence in viola-
tion of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). A two day jury trial then commenced on
September 25, 2006.
At trial, the jury heard testimony from Larry Jenkins,
the employee working at Papa Johns on the day of the
robbery. Jenkins testified that at 5:00 PM, a customer
came in, wearing a blue shirt and baseball cap, and started
talking about sports with him for at least five minutes
before ordering a Coke. Jenkins placed the customer’s
money in the register and then, when he lifted his head,
found that the customer was pointing a black handgun at
his chest. The customer demanded the money from the
register, but was not satisfied with what Jenkins proceeded
No. 07-1185 3
to give him. The customer, after demanding more money,
put his gun down and reached into the drawer himself.
Then the customer ran out the door into a brown colored
van, at which point Jenkins called the police. At trial,
Jenkins identified the customer as Spells.
A second Papa Johns employee, Gregory Fleetwood, was
also present during the robbery and testified at Spells’s
trial. At the time of the robbery, Fleetwood was approxi-
mately fifteen feet from the counter, cutting pizzas.
Fleetwood’s testimony largely corroborated Jenkins
account of the events and description of the robber,
although Fleetwood believed the gun was silver in color
and recalled the entire time the robber was in the restau-
rant as lasting only about two minutes.
Deputy Paul Ziliak then testified that after hearing a
dispatch about the robbery, he spotted a brown van in
the parking lot of the strip mall where the robbery
occurred and activated his lights and siren. The driver of
the van, who Deputy Ziliak identified at trial as Spells,
did not stop the van, but instead exited the vehicle shirt-
less while it was still moving, and was almost struck by
the Deputy’s squad car as he ran away. John Mark Archer,
a canine officer, testified to receiving a dispatch put out by
Ziliak when Spells had fled the van, and apprehending
Spells shortly thereafter. Ziliak then testified to what was
found in the van—a shirt matching the description given
by Jenkins and $107 in cash. Later that evening, when
Detective Scott Scheid searched the van, he testified that
he found a loaded 9 millimeter handgun underneath the
floor mat between the two front seats and live rounds
of ammunition in the vehicle.
On the second day of trial, the jury unanimously found
Spells guilty on all three counts. The case then proceeded
4 No. 07-1185
to sentencing on January 17, 2007. The Presentence Investi-
gation Report (“PSR”) and accompanying sentencing
recommendation advised that Spells be sentenced to 362
months’ imprisonment. As is relevant to this appeal, the
PSR placed Spells’s statutory minimum sentence under
Count 3 (felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1)) at 15 years, see 18 U.S.C. § 924(e)(1),
rather than a statutory maximum sentence of 10 years, see
18 U.S.C. § 924(a)(2), on the basis of what it deemed to be
three prior violent felony convictions under the Armed
Career Criminals Act. According to the PSR, these prior
convictions also translated to sentencing enhancements
under the Guidelines. The PSR recommended that Spells’s
offense level be increased from 24 to 32 because, by having
at least two prior violent felony convictions, he was a
“career offender” under U.S.S.G. § 4B1.1. Additionally,
the PSR’s determination that Spells was an “armed career
criminal” resulted in Spells’s offense level being increased
to 34, under U.S.S.G. § 4B1.4. Spells’s designation as a
career offender and armed career criminal also resulted
in his criminal history category being placed at VI.
The three prior offenses deemed to be violent felonies
in the PSR had been prosecuted in Indiana state court in
2001. The first conviction was for Resisting Law Enforce-
ment, a Class D felony. The PSR relied upon a probable
cause affidavit in order to provide details of the
crime—that Spells sped away from law enforcement after
he was spotted driving without a safety belt and was
apprehended after he left the vehicle on foot. Both of
the other felonies were robbery convictions prosecuted
jointly. One of the robberies occurred on March 26, 2001,
and the other occurred on April 10, 2001.
At the sentencing hearing, Spells raised two objections to
the PSR. He first objected to his designation as an “armed
No. 07-1185 5
career criminal,” claiming there was no grand jury determi-
nation as to whether his prior convictions arose from
separate occasions under 18 U.S.C. § 924(e), but this
objection was overruled by the court. Spells’s second
objection involved a point of clarification on the
resisting law enforcement conviction, and was dropped by
Defendant based on the probation officer’s response.
Having quickly dismissed Spells’s objections, the dis-
trict court then, with respect to the Guidelines, “adopt[ed]
[the PSR’s] formulation as [his] own.” The court then went
on to explain why Spells’s criminal history and total
offense level under the Guidelines had been raised. The
court detailed that Spells’s criminal history category was
increased from IV to VI based on his designation as a
“career offender” and an “armed career criminal.” When
discussing the “career offender” designation, the district
court asked Spells if he understood what that designation
meant and if that had been discussed with his attorney, to
which Spells responded, “Yes.” Similarly, when discussing
Spells’s designation as an “armed career criminal,” the
district court stated to Spells, “So it’s because of your
serious prior convictions that you’ve wound up in this
very high criminal history category. Do you understand
that?” Spells responded, “Yes.” The court then proceeded
to look at the § 3553(a) sentencing factors, and ultimately
sentenced Spells to a within Guidelines sentence of 262
months, concurrent on Counts 1 and 3, and 84 months on
Count 2, running consecutively. This brought Spells’s total
sentence to 346 months.
The next week, Spells filed a Motion to Correct Sentence.
In the motion, he argued that the district court had erred in
sentencing him to 262 months, concurrent on Counts 1 and
3, when the statutory maximum sentence for Count 1
6 No. 07-1185
under 18 U.S.C. § 1951(a) was 20 years, or 240 months. The
district court denied the motion, adopting the Govern-
ment’s reasoning in its response, which, referencing
U.S.S.G. § 5G1.2(d), claimed that no sentencing error had
occurred because Counts 1 and 3 were imposed consecu-
tively. This appeal followed.
II. Discussion
The focus of Spells’s appeal concerns his sentence,
where he makes the following claims: (1) that the district
court improperly characterized his prior conviction for
resisting law enforcement as a “violent felony” for pur-
poses of the Armed Career Criminal Act; (2) that he was
improperly designated a “career offender” because his two
prior robbery convictions should only be counted as one
conviction under U.S.S.G. § 4A1.2; and (3) that the district
court erred in sentencing him to a sentence exceeding the
statutory maximum on Count 1. Before addressing these
sentencing issues, however, we first turn our attention to
Spells’s challenge to the sufficiency of the evidence.
A. Sufficiency of the Evidence
Spells faces a “ ‘nearly insurmountable’ hurdle” in
challenging the sufficiency of the evidence for his convic-
tion. United States v. Jong Hi Bek, 493 F.3d 790, 798 (7th Cir.
2007) (quoting United States v. Orozco-Vasquez, 469 F.3d
1101, 1106 (7th Cir. 2006)). This is because, in order to
succeed on this claim, Spells must show that “after viewing
the evidence in the light most favorable to the prosecution,
[no] rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
No. 07-1185 7
States v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006) (quoting
United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)). In
conducting this review, we will not “weigh the evidence
or second-guess the jury’s credibility determinations.”
Id. (quoting United States v. Gardner, 238 F.3d 878, 879 (7th
Cir. 2001)).
In appealing this issue, Spells briefly mentions the
disparity between Jenkins’s and Fleetwood’s testimony
concerning the length of time the “customer” was in the
restaurant, whether a conversation between Jenkins and
the “customer” preceded the robbery, and a dispute as to
whether the gun was black or silver. The central piece of
evidence, however, on which Spells rests his claim, is
that in the top front of his mouth, he sports six permanent
gold teeth. Spells points out that Jenkins made no men-
tion of this distinctive feature during either his initial
report of the robbery or at trial, and argues that this fact,
when coupled with other contradictions in Jenkins’s
testimony, undermines his eye-witness identification of
Spells. Despite its creativity, this “gold tooth” theory fails,
since it ultimately does little more than ask this Court to
revisit the jury’s credibility determinations regarding
Jenkins’s testimony, something this Court will not do.
Furthermore, the Government’s case against Spells did not
rest solely on Jenkins’s testimony. Fleetwood corroborated
much of Jenkins’s testimony, and the search of Spells’s
van turned up further evidence of the crime. For these
reasons, Spells’s sufficiency of the evidence challenge fails.
B. Armed Career Criminal
Spells’s appeal is primarily focused on whether his prior
conviction for resisting law enforcement constituted a
8 No. 07-1185
“violent felony,” which led to his designation as an armed
career criminal. It is first necessary, however, to deter-
mine whether we can properly hear this claim, since the
issue was not raised before the district court. The Govern-
ment argues that Spells has waived this claim, thus pre-
cluding review by this Court, while Spells contends that
the issue has only been forfeited and is therefore still
subject to review for plain error. See United States v. Harris,
230 F.3d 1054, 1058-59 (7th Cir. 2000) (“We review for-
feited issues for plain error, . . . but we cannot review
waived issues at all because a valid waiver leaves no
error for us to correct on appeal.”). Whether this claim
has been waived or forfeited depends upon Defendant’s
intent before the lower court. “Waiver occurs when a
defendant intentionally relinquishes a known right,” while
forfeiture, on the other hand, “comes about through
neglect,” and occurs when one fails to assert their rights
in a timely manner. United States v. Staples, 202 F.3d 992,
995 (7th Cir. 2000).
When this claim was first appealed and briefed to this
Court, the waiver/forfeiture distinction presented a
close question, requiring this Court to determine whether
Spells’s failure to object could be seen as part of a sound
strategic decision, and thus done intentionally. Compare
United States v. Brodie, 507 F.3d 527, 532 (7th Cir. 2007)
(waiver found to exist “where the defendant as well as
counsel stated on the record that he had no further ob-
jections to the PSR and where counsel had sound reasons
not to raise near-frivolous arguments to the sentencing
judge”), with United States v. James-Jaimes, 406 F.3d 845, 847-
49 (7th Cir. 2005) (forfeiture occurred when neither this
Court, nor the Government, could conceive of a sound
reason for failing to object to a 16-level enhancement, and
No. 07-1185 9
defense counsel’s failure to raise the issue was deemed
deficient). Two days before oral argument, however,
the Supreme Court issued Begay v. United States, 128 S. Ct.
1581 (2008), which reformulated the proper standard for
ascertaining whether a prior conviction constitutes a
“violent felony” for purposes of the Armed Career Crimi-
nal Act. As this Court has previously stated, “a sentence
founded on a clear error of law [is] appropriate for correc-
tion on review for plain error,” in circumstances where
the Supreme Court issues an applicable decision post-
sentencing, but during a pending appeal. United States v.
Taylor, 520 F.3d 746, 747 (7th Cir. 2008) (discussing the
approach taken by this Court in United States v. Paladino,
401 F.3d 471, 481-84 (7th Cir. 2005), in response to the
Booker decision, and applying the same approach in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007)). Accord-
ingly, we will review Spells’s designation as an armed
career criminal in light of Begay for plain error, meaning
the “error must be ‘clear or obvious’ and ‘affect [the
defendant’s] substantial rights.’” United States v. Alden, 527
F.3d 653, 662 (7th Cir. 2008) (quoting United States v. Schalk,
515 F.3d 768, 776 (7th Cir. 2008)). “If there is plain error,
this Court will reverse if it determines, in its discretion,
that the error ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’” Id. at 662-63
(quoting United States v. Luepke, 495 F.3d 443, 448 (7th Cir.
2007)).
Under the Armed Career Criminal Act, the statutory
minimum sentence for a felon convicted of unlawfully
possessing a firearm in violation of 18 U.S.C. § 922(g)(1) is
increased to fifteen years if the convict has three prior
convictions that qualify as “a violent felony or a serious
drug offense.” 18 U.S.C. § 924(e)(1); compare with 18 U.S.C.
10 No. 07-1185
§ 924(a)(2) (without “armed career criminal” designation,
statutory maximum sentence for a violation of 18 U.S.C.
§ 922(g) is 10 years). The statute, in turn, defines a “vio-
lent felony” as:
any crime punishable by imprisonment for a term
exceeding one year, . . . that—
(i) has as an element the use, attempted use, or threat-
ened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another;
18 USCS § 924(e)(2)(B) (emphasis added). The issue before
this Court is whether Spells’s prior conviction in Indiana
state court for Resisting Law Enforcement, a Class D
felony, falls within the residual clause in § 924(e)(2)(B)(ii).
Before turning to the substance of whether Spells’s prior
conviction constituted a “violent felony,” however, we
first note the procedures courts are to follow in making
this determination. In evaluating whether a crime consti-
tutes a “violent felony,” courts are instructed to examine
“the crime of conviction, not the defendant’s actual con-
duct or the details of the proceedings in state court.” United
States v. Perkins, 449 F.3d 794, 796 (7th Cir. 2006) (dis-
cussing Shepard v. United States, 544 U.S. 13 (2005) and
Taylor v. United States, 495 U.S. 575 (1990)). While the
Supreme Court has made clear that district courts “gener-
ally must use ‘a formal categorical approach, looking only
to the statutory definitions of the prior offenses, and not
to the particular facts underlying those convictions,’”
United States v. Mathews, 453 F.3d 830, 833-34 (7th Cir.
2006) (quoting Taylor, 495 U.S. at 600) (citing Shepard, 544
No. 07-1185 11
U.S. at 16), the Court has allowed limited, additional
materials to be consulted when a statute is “divisible,”
meaning that “a single statutory provision defines
several different crimes.” Id. at 833, n.7. The Supreme
Court has held that the additional materials that may be
consulted are limited to “the terms of the charging docu-
ment, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information.” Id. at
834 (quoting Shepard, 544 U.S. at 26). These additional
documents, however, are to be consulted “[o]nly where
the statutory elements and the content of the charging
document do not resolve whether the crime of conviction
constitutes a [violent felony].” United States v. Newbern,
479 F.3d 506, 508 (7th Cir. 2007) (determining whether a
prior conviction was a “crime of violence” for “career
offender” status under U.S.S.G. § 4B1.1).1
In this case, the Indiana statute for Resisting Law En-
forcement that Spells was convicted under is a divisible
statute. The law first provides the elements for the misde-
meanor offense of resisting law enforcement:
1
This Court treats “the career offender guideline and the
Armed Career Criminal Act as ‘interchangeable.’” United States
v. Rosas, 401 F.3d 843, 845 (7th Cir. 2005). This analytical
parallel applies not only to the substantive designation of a
prior conviction as a “violent felony” or a “crime of violence,”
see id., but also to the documents that may be utilized under
Shepard in applying the formal categorical approach. See United
States v. McGee, 408 F.3d 966, 988 (7th Cir. 2005) (“The Court’s
holding [in Shepard, with respect to the Armed Career Criminal
Act,] applies with equal force to the guidelines’ career offender
provision.”).
12 No. 07-1185
(a) A person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a
law enforcement officer or a person assisting
the officer while the officer is lawfully engaged
in the execution of the officer’s duties;
(2) forcibly resists, obstructs, or interferes with the
authorized service or execution of a civil or
criminal process or order of a court; or
(3) flees from a law enforcement officer after the
officer has, by visible or audible means, includ-
ing operation of the law enforcement officer’s
siren or emergency lights, identified himself
or herself and ordered the person to stop;
commits resisting law enforcement, a Class A misde-
meanor, except as provided in subsection (b).
IND. CODE § 35-44-3-3(a). The statute then goes on to
provide the circumstances under which the offense be-
comes a Class D felony:
(b) The offense under subsection (a) is a:
(1) Class D felony if:
(A) the offense is described in subsection (a)(3)
and the person uses a vehicle to commit
the offense; or
(B) while committing any offense described
in subsection (a), the person draws or uses
a deadly weapon, inflicts bodily injury on
or otherwise causes bodily injury to an-
other person, or operates a vehicle in a
manner that creates a substantial risk of
bodily injury to another person;
No. 07-1185 13
IND. CODE § 35-44-3-3(b). Spells claims that the district
court failed to properly determine which subsection of
this statute he was convicted under. Whether such a
procedural violation occurred is only of significance if
certain Class D felony violations of Indiana’s Resisting
Law Enforcement offense would not constitute a “vio-
lent felony.” See United States v. Thigpen, 456 F.3d 766, 770
(7th Cir. 2006) (finding that although the PSR relied upon
police reports and other non-Shepard-approved documents,
no Shepard violation occurred since the prior felonies, on
their face, constituted crimes of violence or controlled
substance violations), overruled on separate grounds in
United States v. Sawyer, 521 F.3d 792, 798-99 (7th Cir. 2008).
Although Spells does not contest that a violation of
the latter subsection, IND. CODE § 35-44-3-3(b)(1)(B),
constitutes a “violent felony,” he argues that fleeing a law
enforcement officer in a vehicle, in violation of § 35-44-3-
3(b)(1)(A), does not meet this standard, and accordingly
that the district court committed both procedural and
substantive errors.
The substantive question, then, for this Court to address,
is whether fleeing a law enforcement officer, in a vehicle,
qualifies as a “violent felony” under the residual clause
found in 18 USCS § 924(e)(2)(B)(ii) of the Armed Career
Criminal Act, which applies to:
any crime punishable by imprisonment for a term
exceeding one year, . . . that—
...
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another;
14 No. 07-1185
18 USCS § 924(e)(2)(B) (emphasis added). In focusing
upon this residual clause, the Supreme Court had previ-
ously instructed courts to determine “whether the con-
duct encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of injury
to another.” James v. United States, 127 S. Ct. 1586, 1597
(2007). This Court had addressed the question of whether
fleeing an officer in a vehicle presented a “serious potential
risk of injury to another” under Wisconsin law, which is
similar to the Indiana law in question.2 United States v.
Howze, 343 F.3d 919, 921-22 (7th Cir. 2003). Although the
Wisconsin statute required that the flight ”interfere
with or endanger the operation of the police vehicle, or the
traffic officer or other vehicles or pedestrians,” id. at 921(quoting WIS. STAT. § 346.04(3)), something not found in
the Indiana subsection at issue, this distinction played no
part in this Court’s analysis. Instead, this Court, relying
upon a prior opinion holding that “escape from custody
always is a ‘crime of violence,’” concluded that, “[t]hus, if
all escapes are violent crimes, all flights to avoid arrest
2
In Howze, the defendant pled guilty to violating WIS. STAT.
§ 346.04(3), which read:
No operator of a vehicle, after having received a visual or
audible signal from a traffic officer, or marked police
vehicle, shall knowingly flee or attempt to elude any traffic
officer by willful or wanton disregard of such signal so as to
interfere with or endanger the operation of the police
vehicle, or the traffic officer or other vehicles or pedestrians,
nor shall the operator increase the speed of the operator’s
vehicle or extinguish the lights of the vehicle in an attempt
to elude or flee.
United States v. Howze, 343 F.3d 919, 921 (7th Cir. 2003).
No. 07-1185 15
must be violent crimes.” Id. at 921-22 (citing United States
v. Bryant, 310 F.3d 550 (7th Cir. 2002)).
In Howze, this Court focused its inquiry on the “serious
potential risk of physical injury to another,” characterizing
the Bryant decision as reflecting a conclusion that escape
from custody “holds the potential for violence during
attempted recaptures,” and observing with respect to
flight in a vehicle, that “[c]ollisions between fleeing
vehicles and pedestrians or others who get in the way are
common.” Id. The reasoning in Howze, particularly when
coupled with Bryant’s holding that “every escape involves
‘a serious potential risk of physical injury to an-
other,’ ” Bryant, 310 F.3d at 554, would seemingly com-
pel this Court to also find that fleeing an officer, in a
vehicle, under Indiana law was a “violent felony.” The
Supreme Court, however, two days before oral argument,
issued Begay v. United States, which modified the analytical
framework for determining which crimes fall within
§ 924(e)(2)(B)(ii)’s residual clause.
At issue in Begay was whether New Mexico’s DUI statute,
which made it “unlawful for a person who is under the
influence of intoxicating liquor to drive a vehicle within
this state,” N.M. STAT. § 66-8-102(A), or for “a person to
drive a vehicle in this state if the person has an alcohol
concentration of eight one hundredths or more in the
person’s blood or breath within three hours of driving
the vehicle and the alcohol concentration results from
alcohol consumed before or while driving the vehicle,”
N.M. STAT. § 66-8-102(B), fell under the residual clause
in 18 U.S.C. § 924(e)(2)(B)(ii). Begay, 128 S. Ct. at 1584 (the
crime became a felony after three convictions under
this statute). The Court acknowledged that a DUI offense
did, in accord with the express language of the residual
16 No. 07-1185
clause, “present[] a serious potential risk of physical
injury to another,” but stated that this was not the sole
criterion for qualifying as a “violent felony” under that
clause. Instead, the Court determined that “the provision’s
listed examples—burglary, arson, extortion, or crimes
involving the use of explosives—illustrate the kinds of
crimes that fall within the statute’s scope.” Id. at 1584-85.
Thus, the residual clause in § 924(e)(2(b)(ii) covers only
“crimes that are roughly similar, in kind as well as in
degree of risk posed, to the examples themselves.” Id.
at 1585.
The question for this Court, then, is whether fleeing
an officer in a vehicle is sufficiently similar to burglary,
arson, extortion, or the use of explosives, to constitute a
“violent felony.” The Court’s reasoning in distinguishing
DUI from the enumerated offenses in clause (ii) guides
our inquiry in this case. In Begay, the Court noted that
all the listed offenses “typically involve purposeful,
‘violent,’ and ‘aggressive’ conduct.” Id. at 1586 (citing
United States v. Begay, 470 F.3d 964, 980 (10th Cir. 2006)
(McConnell, J., dissenting in part). More specifically, the
Court observed that this type of conduct “makes [it] more
likely that an offender, later possessing a gun, will use that
gun deliberately to harm a victim,” id., which is “ ‘charac-
teristic of the armed career criminal, the eponym of the
statute.’” Id. (quoting Begay, 470 F.3d at 980 (McConnell, J.,
dissenting in part). The Court then noted that a DUI
violation does not require purposeful, violent, and aggres-
sive conduct. Rather drunk driving was akin to a strict
liability offense, where the conduct “need not be purpose-
ful or deliberate.” Id. at 1586-87. The Court reasoned
that while driving drunk “reveal[s] a degree of callous-
ness toward risk,” unlike burglary or arson, it did not
No. 07-1185 17
“show an increased likelihood that the offender is the
kind of person who might deliberately point the gun and
pull the trigger.” Id. at 1587.
Based on the Court’s reasoning, we find that fleeing an
officer, in a vehicle, in violation of IND. CODE § 35-44-3-
3(b)(1)(A), constitutes a “violent felony.” That offense
criminalizes using a vehicle to “knowingly or intentionally
. . . flee[] from a law enforcement officer after the officer
has, by visible or audible means, including operation of
the law enforcement officer’s siren or emergency lights,
identified himself or herself and ordered the person to
stop.” IND. CODE § 35-44-3-3(b)(1)(A); § 35-44-3-3(a)(3). The
primary distinction the Supreme Court relied upon to
distinguish drunk driving from the enumerated crimes
in § 924(e)(2)(B)(ii)—the strict liability nature of DUI—does
not exist with respect to Indiana’s fleeing statute. The
Indiana law specifically provides that the flight must be
done “knowingly or intentionally,” thus ensuring that
the law is only violated when an individual makes
a “purposeful” decision to flee from an officer. Addition-
ally, such conduct, when committed with a vehicle, is
inherently “aggressive,” despite Indiana law’s absence of
a requirement that the conduct endanger others. Compare
IND. CODE § 35-44-3-3(b)(1)(A), with WIS. STAT. § 346.04(3)
(requiring that the flight include “willful or wanton
disregard of such signal so as to interfere with or endanger
the operation of the police vehicle, or the traffic officer or
other vehicles or pedestrians”). Taking flight calls the
officer to give chase, and aside from any accompanying
risk to pedestrians and other motorists, such flight dares
the officer to needlessly endanger himself in pursuit.
Moreover, the inquiry in Begay ultimately sought to
determine whether the prior conviction made it more
18 No. 07-1185
likely that the “offender is the kind of person who might
deliberately point the gun and pull the trigger.” Begay, 128
S.Ct. at 1587. According to statistics published by the
Department of Justice, one out of every four state and
federal inmates convicted for brandishing or displaying
a firearm, had used the gun in this manner in an effort to
“get away.”3 BUREAU OF JUSTICE STATISTICS, U.S. DEPART-
MENT OF JUSTICE, SURVEY OF INMATES IN STATE AND FEDERAL
CORRECTIONAL FACILITIES: FIREARM USE BY OFFENDERS 11,
Table 14 (Nov. 2001), http://www.ojp.usdoj.gov/bjs/
pub/pdf/fuo.pdf. An individual’s purposeful decision
to flee an officer in a vehicle when told to stop, reflects
that if that same individual were in possession of a fire-
arm and asked to stop by police, they would have a
greater propensity to use that firearm in an effort to evade
3
The survey compiled a table regarding the “Extent of firearm
use during current offense for State and Federal prison inmates
possessing a firearm, 1997.” BUREAU OF JUSTICE STATISTICS, U.S.
DEPARTMENT OF JUSTICE, SURVEY OF INMATES IN STATE AND
FEDERAL CORRECTIONAL FACILITIES: FIREARM USE BY OFFENDERS
11, Table 14 (Nov. 2001), http://www.ojp.usdoj.gov/bjs/
pub/pdf/fuo.pdf. According to the survey, 73.2% of state
inmates, and 46.2% of federal inmates had “brandished” or
“displayed” their firearm. Id. Additionally, 18.9% of all state
inmates convicted of possessing a firearm had brandished or
displayed the weapon to “get away,” compared with 11.6% of
all federal inmates. Id. This means that of those state inmates
who had brandished or displayed their firearm, 25.8% had
done so to “get away,” compared with 25.1% of federal inmates.
Offenders characterized as brandishing or displaying a fire-
arm also may have “discharged” the weapon to “get away,” see
id. (“Percents of subtotals do not add to totals because inmates
may have used a firearm in more than one way.”), but the
data provided did not offer a way to compute that figure.
No. 07-1185 19
arrest. This link between using a vehicle to flee an officer,
and that same individual’s likelihood of using a gun
when fleeing in the future, distinguishes this crime from
those listed by the Court in Begay as being “dangerous,”
but not reflective of someone “whom one normally labels
[an] ‘armed career criminal[].’” Begay, 128 S.Ct. at 1587
(“See, e.g., ARK. CODE ANN. § 8-4-103(a)(2)(A)(ii) (2007)
(reckless polluters); 33 U.S.C. § 1319(c)(1) (individuals
who negligently introduce pollutants into the sewer
system); 18 U.S.C. § 1365(a) (individuals who recklessly
tamper with consumer products); § 1115 (seamen whose
inattention to duty causes serious accidents).”). For these
reasons, we affirm the district court’s judgment with
respect to Spells’s designation as an armed career criminal.4
4
Because we have determined that IND. CODE § 35-44-3-
3(b)(1)(A) is a “violent felony,” and Spells does not contest that
designation’s applicability to § 35-44-3-3(b)(1)(B), it was unnec-
essary for the district court to examine which portion of Indi-
ana’s “divisible” statute for Class D felonies Spells was con-
victed under. Therefore, we need not determine whether the
district court impermissibly consulted materials beyond those
approved by the Supreme Court in Shepard.
Spells also contends that finding general flight statutes to
fall under § 924(e)(2)(B)(ii)’s residual clause raises certain
constitutional concerns. In his initial brief to this Court, Spells
argued that issues regarding separation-of-powers and the void-
for-vagueness doctrine arose from the lack of a requirement
that crimes falling under the residual clause in § 924(e)(2)(B)(ii)
bear a relationship to the enumerated offenses in that subsec-
tion. Begay, although not addressing these constitutional
matters, held that a nexus needed to exist between the enumer-
ated and residual crimes, thus providing the general analytic
(continued...)
20 No. 07-1185
C. Career Offender Designation
Spells also argues that the district court improperly
found him to be a “career offender” under the Guidelines.
U.S.S.G. § 4B1.1. A defendant is designated a “career
offender” if:
(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense
of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled sub-
stance offense; and
(3) the defendant has at least two prior felony con-
victions of either a crime of violence or a con-
trolled substance offense.
U.S.S.G. § 4B1.1(a). Spells does not contest that his “instant
offense of conviction” or his prior convictions for robbery
4
(...continued)
framework Spells sought. Spells also raises an Apprendi chal-
lenge, arguing that the Sixth Amendment requires that a jury
determine whether his prior conviction involved the requisite
“serious potential risk of physical injury” to constitute a “violent
felony.” This Court, however, has repeatedly rejected such
claims, in light of the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). See
United States v. Thornton, 463 F.3d 693, 699-700 (7th Cir. 2006)
(rejecting the claim “that the jury was required to pass on the
existence of all qualifying convictions” under the Armed Career
Criminal Act); see also United States v. Salahuddin, 509 F.3d 858,
863 (7th Cir. 2007) (“A prior conviction need not be put to a
jury before it may be used to enhance a defendant’s sentence.”).
The Supreme Court has not overruled that decision, and
therefore, we reject this claim.
No. 07-1185 21
under Indiana law constituted “crimes of violence.”
Instead, he argues that because his two robbery convictions
were consolidated for sentencing, they were “related,” and
thus should only be counted as a single prior conviction.
See U.S.S.G. § 4B1.2(c) (stating that the “two prior felony
convictions” needed to be designated a “career offender,”
must be offenses counted separately under the terms of
§ 4A1.1(a), (b), or (c)).
The Government claims that Spells has waived this
argument by failing to raise it before the district court.
Even if we were to deem this claim only forfeited, how-
ever, and subject to review for plain error, United States v.
Harris, 230 F.3d 1054, 1058-59 (7th Cir. 2000), our decision
that using a vehicle to flee an officer is a “violent felony”
forecloses any need for this Court to address this claim.
Because a prior offense’s characterization as a “violent
felony” under the Armed Career Criminal Act is “inter-
changeable” with the “crime of violence” designation
under the career offender guideline, United States v. Rosas,
401 F.3d 843, 845 (7th Cir. 2005), Spells’s prior con-
viction for Resisting Law Enforcement under Indiana law
is a “crime of violence.” Therefore, even if Spells’s two
robbery convictions were “related,” and thus counted as a
single “crime of violence,” Spells would still have the two
prior felony convictions needed to be found a “career
offender.”
D. 262 Month, Concurrent Sentence on Counts 1 and 3
Spells’s final claim is that the district court erred in
sentencing him to “262 months, concurrent” on Counts 1
and 3, since the statutory maximum sentence for Count 1,
robbery in violation of 18 U.S.C. § 1951(a), was 240 months.
18 U.S.C. § 1951(a) (violators of this statute “shall be . . .
22 No. 07-1185
imprisoned not more than twenty years”). The Govern-
ment, in response to Spells’s Motion to Correct Sentence
below, noted that Count 3 carried a statutory maximum
sentence of life imprisonment, and then relied upon
U.S.S.G. § 5G1.2(d) for the proposition that, in fact, “the
[district] Court did not err in sentencing because the
sentences were imposed consecutively.” The district
court then denied Spells’s motion, stating that the Gov-
ernment’s response brief “reflect[ed] the Court’s reasoning
in structuring the sentence as imposed.” We review this
application of the Guidelines de novo. United States v.
Samuels, 521 F.3d 804, 815 (7th Cir. 2008).
Despite the fact that this sentencing error is little more
than a minor technicality, a limited remand is required
in this case. The Guidelines recommended a sentence of
262-327 months on Counts 1 and 3, plus an 84 month
consecutive sentence for Count 2. The district court
chose to impose a sentence at the low end of the Guide-
lines. The 262 month sentence on Count 3 is unproblematic,
since as an armed career criminal, the statutory maxi-
mum sentence for Spells’s violation of 18 U.S.C. § 922(g)
was life imprisonment. 18 U.S.C. § 924(e)(1). On Count 1,
however, 240 months imprisonment was the statutory
maximum sentence that could be imposed, as Spells
noted below.
In responding to Spells’s Motion to Correct Sentence, the
Government, and subsequently the district court, incor-
rectly relied upon U.S.S.G. § 5G1.2(d) to explain the
sentence. That provision states:
If the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then
the sentence imposed on one or more of the other
counts shall run consecutively, but only to the
No. 07-1185 23
extent necessary to produce a combined sentence
equal to the total punishment. In all other respects,
sentences on all counts shall run concurrently, except
to the extent otherwise required by law.
U.S.S.G. § 5G1.2(d) (emphasis added). This first clause of
this Guidelines provision reflects that it only applies
when the recommended sentence under the Guidelines
exceeds the highest statutory maximum. See, e.g., United
States v. Hernandez, 330 F.3d 964, 982-83 (7th Cir. 2003)
(applying § 5G1.2(d) when the Guidelines range was 30
years to life, and the statutory maximum penalty on each
of the four counts of conviction was 20 years). That is not
the case here, where the statutory maximum sentence on
Count 3 was life imprisonment, and the Guidelines sen-
tence was only 262 months.
Instead, U.S.S.G. § 5G1.2(c) explains that, “[i]f the
sentence imposed on the count carrying the highest
statutory maximum is adequate to achieve the total punish-
ment, then the sentences on all counts shall run concur-
rently, except to the extent otherwise required by law.”
This is the provision applicable here, since the statutory
maximum sentence of life imprisonment under Count 3
covers the Guidelines recommended sentence of 262
months on Counts 1 and 3.5 On appeal, the Government
5
The Comments to the Guidelines explain this in more detail:
Usually, at least one of the counts will have a statutory
maximum adequate to permit imposition of the total
punishment as the sentence on that count. The sentence on
each of the other counts will then be set at the lesser of the
total punishment and the applicable statutory maximum,
(continued...)
24 No. 07-1185
has apparently conceded that this is the proper approach,
now arguing that “[t]he [district] court effectively sen-
tenced Spells to 240 months on Count One and 262
months on Count Three to run concurrently.” A limited
remand is necessary to allow the district court to clarify
for the record if this is, in fact, what it “effectively” sought
to do at sentencing.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court in all respects, except for the district court’s
sentence of 262 months concurrent on Counts 1 and 3,
and order a limited REMAND for the district court to clarify
this sentence in accord with the statutory maximum of
240 months on Count 1.
5
(...continued)
and be made to run concurrently with all or part of the
longest sentence. If no count carries an adequate statutory
maximum, consecutive sentences are to be imposed to the
extent necessary to achieve the total punishment.
U.S.S.G. § 5G1.2 cmt. 1.
8-8-08