United States v. Vernon Woods ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3851
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V ERNON W OODS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 CR 50073-01—Philip G. Reinhard, Judge.
A RGUED JANUARY 6, 2009—D ECIDED A UGUST 5, 2009
Before K ANNE, W OOD , and SYKES, Circuit Judges.
W OOD , Circuit Judge. Vernon Woods was convicted
of two counts of distributing ecstasy, in violation of
21 U.S.C. § 841(a)(1), and one count of possession of a
weapon by a felon, in violation of 18 U.S.C. § 922(g). The
district court found that Woods was a career offender
and thus was subject to an enhanced sentence under
§ 4B1.1 of the United States Sentencing Guidelines
2 No. 07-3851
(“U.S.S.G.”). The court imposed a sentence of 192 months,
well above the 84-month sentence Woods might have
received without the career offender enhancement.
Woods now appeals his sentence, challenging whether,
following the Supreme Court’s decision in Begay v.
United States, 128 S. Ct. 1581 (2008), and this court’s deci-
sion in United States v. Smith, 544 F.3d 781 (7th Cir. 2008),
his prior conviction for involuntary manslaughter—
which required only a finding of recklessness—qualifies
as a prior violent felony conviction for the purpose of
the Guidelines. We conclude that Begay and Smith
resolve this question in Woods’s favor, and we there-
fore vacate the judgment of the district court and
remand for further proceedings.
I
After being caught in October and November 2006
distributing m ethylened ioxym etham phetamine
(commonly known as ecstasy) to an undercover police
officer, Woods pleaded guilty both to that offense and
the offense of being a felon in possession of a firearm and
ammunition that had previously been transported in
interstate commerce. In the presentence investigation
report (“PSR”), the Probation Service concluded that
Woods was a career offender as defined by U.S.S.G.
§ 4B1.1. In so doing, the Probation Service relied on two
prior convictions in Woods’s record: (1) a 1993 Illinois
conviction for possession of cocaine with intent to
deliver; and (2) a 2001 Illinois conviction for involuntary
manslaughter. It is the second conviction that concerns
us here.
No. 07-3851 3
The facts underlying Woods’s earlier conviction for
involuntary manslaughter were contested at crucial
points. Woods had been babysitting his infant son for
several days. At a change of plea hearing (held after a
jury had failed to convict him upon a first trial), Woods
admitted that the child was five weeks old, and that he
called 911 on the afternoon of March 18, 1999, when the
child became unresponsive. The emergency authorities
responded and took the baby to the hospital; six months
later, he died. The state was prepared to call the deputy
medical examiner, who would have testified that the
child died of water on the brain (hydrocephalus due to
subdural hematoma) as a result of blunt head trauma.
She also would have testified that there were other signs
of “wanton cruelty,” including a clinical history of
cerebral palsy and a clinical history of severe mental
retardation (although there is no explanation of how she
came to the latter conclusion with respect to a five-week-
old child). She described the manner of death as “homi-
cide”—but as Woods notes, involuntary manslaughter
is classified under Illinois law as a homicide offense.
See 720 ILCS, Act 5, Part B, Article 9 (Homicide); 720 ILCS
5/9-3 (involuntary manslaughter).
One possible explanation of those facts is that Woods
took violent action against the child, shaking him and
causing injury that resulted in his death six months
later. But Woods, in his response to the PSR, gave an
alternative explanation. According to Woods, he had
dropped the baby and never intended to hurt him. When
the baby lost consciousness, he shook the baby in an
effort to revive him, and then he called 911 and requested
4 No. 07-3851
an ambulance.1 Nothing in the plea colloquy before
the state court resolved which version was true, nor
were there any facts that might have shown whether the
blunt head trauma could have resulted from being
dropped as opposed to being shaken.
At the sentencing hearing, Woods objected to the Gov-
ernment’s characterization of his involuntary man-
slaughter conviction as a crime of violence under the
Guidelines. (He conceded that the first conviction fell
within the definition of § 4B1.1 because it was a con-
trolled substance offense.) Woods argued that his in-
voluntary manslaughter offense was not a crime of vio-
lence for two principal reasons: first, because his actions
did not create a “serious potential risk of physical injury
to another”; and second, because the mens rea for involun-
tary manslaughter in Illinois requires only criminal reck-
lessness, and recklessness was insufficient to trigger
the enhanced sentencing range recommended by the
Guidelines. Further, Woods argued that even if the court
were to look beyond the statute of conviction, the tran-
script of the plea hearing did not demonstrate that he
acted in a way that presented a serious potential risk of
physical injury to another.
1
The dissent assumes that Woods admitted that this act of
shaking was “purposeful, violent, and aggressive.” Dissent,
post, at 36. But the record is not clear on that critical point.
Whether the shaking was gentle or violent is a question of
fact; in order to resolve it, we would have to conduct an inde-
pendent investigation of the event.
No. 07-3851 5
The district court rejected all of these arguments, holding
that the involuntary manslaughter statute described
behavior presenting a risk analogous to the Illinois
offense of reckless discharge of a firearm. This court held
that the latter offense fell within the scope of § 4B1.1 of the
Guidelines in United States v. Newbern, 479 F.3d 506,
508 (7th Cir. 2007). The district court also held that al-
though Newbern did not require it to go any further, that
it would if necessary find the underlying facts of
Woods’s conviction sufficient to support a finding that
his conviction for involuntary manslaughter was a
crime of violence as the Guidelines define that term. On
November 16, 2007, the district court sentenced Woods
to 192 months’ imprisonment, a sentence in the middle
of the career offender range of 188 to 235 months. After
Woods brought his appeal, the Supreme Court decided
Begay, which cast new light on the Court’s interpretation
of career offender enhancements like the one found in
§ 4B1.1. Whether Woods is entitled to succeed or fail in
this appeal turns on the proper understanding of the
Supreme Court’s decisions in Begay and the cases that
have followed it.
II
The Sentencing Guidelines designate any defendant
convicted of a “crime of violence or a controlled sub-
stance offense” who also has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense as a “career offender.” § 4B1.1. Career
offenders are subject to an enhanced base offense level
6 No. 07-3851
and are automatically assigned to Criminal History
Category VI. A great deal therefore hangs on the proper
characterization of a defendant’s past encounters with
the law. For Woods, it meant the difference between
an advisory Guidelines range of 84 to 105 months
(without career criminal status) and a range of 188 to
235 months (with career criminal status).2
In Woods’s case, as in many, we are concerned with the
question whether the defendant’s prior offenses are
properly characterized as crimes of violence. The Guide-
lines define a crime of violence as “any offense under
federal or state law” that
(1) has as an element the use, attempted use, or threat-
ened use of physical force against the person of an-
other, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
2
It should go without saying that nothing in this opinion means
that a sentence above the advisory Guidelines range cannot
be imposed. See, e.g., Kimbrough v. United States, 552 U.S. 85(2007). On that point, we agree with the dissent that the sen-
tencing judge is entitled to impose a higher sentence based
on “the history and characteristics of the defendant.” 18 U.S.C.
§ 3553(a)(1). This case therefore is only about the advisory
guideline range with which the judge begins; it is not about the
judge’s ability to impose a reasonable sentence, subject only
to statutory minima and maxima. The sentencing judge’s
ability to exercise this discretion allows for whatever fine-
tuning is necessary after the categorical approach has been
applied.
No. 07-3851 7
conduct that presents a serious potential risk of physi-
cal injury to another.
U.S.S.G. § 4B1.2(a). In deciding whether a crime fits
that definition, the Supreme Court has instructed lower
courts to use a categorical approach. In James v. United
States, 550 U.S. 192 (2007), a case dealing with the closely
analogous Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), the Court explained what it meant by
a “categorical approach”:
Under this approach, we “ ‘look only to the fact of
conviction and the statutory definition of the prior
offense,’ ” and do not generally consider the “particular
facts disclosed by the record of conviction.” Shepard
v. United States, 544 U.S. 13, 17 (2005) (quoting Taylor
[v. United States], 495 U.S. [575, 602 (1990)]). That is,
we consider whether the elements of the offense are of
the type that would justify its inclusion within the
residual provision, without inquiring into the
specific conduct of this particular offender.
550 U.S. at 202. See also Begay, 128 S. Ct. at 1584. In
United States v. Templeton, 543 F.3d 378 (7th Cir. 2008),
taking note of the identity of language between the
ACCA and §§ 4B1.1 and 4B1.2, we held that the James
analysis also applies to the Guidelines’s career offender
provisions. In the discussion that follows, we therefore
refer to the ACCA and the career offender provisions of
the Guidelines interchangeably.
In applying the categorical approach, James recognized
that the specific facts underlying certain offenses might
8 No. 07-3851
reflect either a greater or a lesser degree of violence. The
Court rejected the idea that a crime can never be one of
violence, using the categorical approach, unless “every
conceivable factual offense covered by [the] statute must
necessarily present a serious potential risk of injury . . . .”
550 U.S. at 208. Rather, it wrote, “the proper inquiry
is whether the conduct encompassed by the elements of
the offense, in the ordinary case, presents a serious poten-
tial risk of injury to another.” Id. As we understand it,
this means that a crime must be categorized as one of
violence even if, through some freak chance, the con-
duct did not turn out to be violent in an unusual case.
Importantly, the focus remains on the elements of the
offense, not the particular facts surrounding each defen-
dant’s conduct.
Although the categorical approach, as it has developed,
suffices to answer most questions about the proper charac-
terization of a prior offense, it is not enough by itself in
one class of cases: when a statute covers more than
one offense. In such cases, the Court has permitted courts
to consult “the terms of the charging document, the
terms of a plea agreement or transcript of a 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,” in
order to determine what the defendant’s prior convic-
tion was for (i.e., generic burglary or some lesser offense).
Shepard, 544 U.S. at 26. What the sentencing court cannot
do is to look at the particular facts underlying the defen-
dant’s conviction. Taylor, 495 U.S. at 600.
No. 07-3851 9
Problems often arise when statutes describe more
than one offense, but only some parts of the statute
would qualify as a crime of violence. In Smith, we ex-
plained how that issue must be approached, in light of
the governing Supreme Court cases:
Under the categorical approach, we consider the
offense generically; we may not inquire into the spe-
cific conduct of a particular offender. Begay, 128 S. Ct.
at 1584; James, 127 S. Ct. at 1594. When a statute en-
compasses multiple categories of offense conduct—
some of which would constitute a violent felony and
some of which would not—we may expand our inquiry
into a limited range of additional material [as set forth
in Shepard, supra] in order to determine whether the
jury actually convicted the defendant of (or, in the case
of a guilty plea, the defendant expressly admitted to)
violating a portion of the statute that constitutes a
violent felony. . . . Such an examination, however, is “only
to determine which part of the statute the defendant vio-
lated.” United States v. Howell, 531 F.3d 621, 623 (8th Cir.
2008); see also [United States v.] Mathews, 453 F.3d [830,
834 (7th Cir. 2006)]. This rule is not meant to circum-
vent the categorical approach by allowing courts to
determine whether the actual conduct of the individual
defendant constituted a purposeful, violent and
aggressive act. See Shepard, 544 U.S. at 25 (discussing
the problems inherent in judicial fact-finding, particu-
larly after Apprendi v. New Jersey, 530 U.S. 466 (2000),
and noting that looking further into the facts surround-
ing a prior conviction likely would violate the standard
set forth in Apprendi); Mathews, 453 F.3d at 834 n.8
10 No. 07-3851
(discussing Shepard, and noting that “this limitation
preserves the categorical approach of Taylor and
ensures that a defendant was ‘necessarily’ convicted
of a generic burglary”).
544 F.3d at 786-87 (some citations omitted) (final emphasis
added). In short, the additional materials permitted
by Shepard may be used only to determine which crime
within a statute the defendant committed, not how
he committed that crime.
We emphasize the latter point because some confusion
has arisen in our recent cases about the proper way to
apply the modified categorical approach. In particular,
our decision in Templeton, 543 F.3d at 383-84, can be read
to rely on the actual conduct of the defendant, rather
than which part of a divisible statute the defendant
violated. In Templeton, the defendant was charged under
Wisconsin’s escape offense, which states that
[a] person in custody who intentionally escapes
from custody under any of the following circum-
stances is guilty of a Class H felony . . . .
Wis. Stat. § 946.42(3). We stated—accurately enough, as far
as it goes—that “it is possible to violate Wis. Stat. § 946.42in a manner that constitutes a crime of violence under
§ 4B1.1, and possible to do so in a way that does not.”
Templeton, 543 F.3d at 383-84. The problem arises in the
next part of that passage, where we wrote, “Taylor holds
that when a state statute can be violated in a way that is,
or is not, the basis of federal recidivist treatment, a court
may look at the indictment or other charging papers
No. 07-3851 11
to determine in what way the defendant committed the
offense.” Id. at 384.
If the words “in a way” in that sentence mean under
one distinct portion of the statute or another, then
Templeton is consistent with the line of Supreme Court
decisions discussed above. If, however, the words “in a
way” refer to the facts of the individual defendant’s
case, then it is inconsistent with that line of cases and
with our own Smith decision. In Templeton itself, the
Wisconsin offense of escape covers a wide variety of
conduct, some of which may pose a risk of violence
and some of which may not, but the statute is not
divisible in the sense called for by the modified
categorical approach. Rather than specifying various
subcategories of conduct, it simply states that “escape” is
an offense and defines “escape” broadly to mean “leave
[custody] in any manner without lawful permission or
authority.” Wis. Stat. § 946.42(1)(b). We recognize that
this definition can, as a factual matter, include conduct
that would constitute a crime of violence as well as
conduct that would not. Some may think that this is
enough to justify a finding that the violent conduct is
covered, if the charging papers or other permissible
sources show that the particular offense was violent. One
could argue that it is artificial to draw a line between, on
the one hand, general statutes that prohibit both violent
and nonviolent conduct, and, on the other, statutes that
differentiate between violent and nonviolent offenses.
Whether this viewpoint would have merit on its own is,
however, no longer open to us. The Supreme Court has
12 No. 07-3851
spoken to the issue in a line of cases including Shepard,
James, Begay, Chambers v. United States, 129 S. Ct. 687 (2009),
and, most recently, Nijhawan v. Holder, 129 S. Ct. 2294(2009). In all of them, it has opted for a rule that pre-
cludes deciding on a case-by-case basis whether a par-
ticular prior violation of a general statute posed the kind
of risk of violence that would justify the recidivism en-
hancements provided by the ACCA or the career
offender Guidelines. We see no other way to read the
operative language of James. As we pointed out in Smith,
“This rule [permitting the expanded inquiry] is not
meant to circumvent the categorical approach by
allowing courts to determine whether the actual conduct
of the individual defendant constituted a purposeful,
violent and aggressive act.” 544 F.3d at 786. The Supreme
Court used similar language in Chambers, where it em-
phasized the need to interpret the statutes underlying
prior convictions in light of the normal way in which a
crime is committed and commented, “by so construing
the statute, one avoids the practical difficulty of trying to
ascertain at sentencing, perhaps from a paper record
mentioning only a guilty plea, whether the present defen-
dant’s prior crime, as committed on a prior occasion, did
or did not involve violent behavior.” 129 S. Ct. at 690.
Chambers made a point of noting that the failure-to-report
offense at issue there was identified in a separate part of
the statute. Thus, in Nijhawan, in the course of distin-
guishing between a statute like the ACCA, which uses
a categorical approach, and a statute like the provision of
the Immigration and Nationality Act directly at issue in
Nijhawan’s case (8 U.S.C. § 1101(a)(43)(M)(i)), which uses
No. 07-3851 13
a circumstance-specific approach, the Court discussed
the categorical approach at length:
[T]he categorical method is not always easy to apply.
That is because sometimes a separately numbered
subsection of a criminal statute will refer to several
different crimes, each described separately. And it
can happen that some of these crimes involve
violence while others do not. A single Massachusetts
statute section entitled “Breaking and Entering at
Night,” for example, criminalizes breaking into a
“building, ship, vessel or vehicle.” Mass. Gen. Laws,
ch. 266, § 16 (West 2006). In such an instance, we
have said, a court must determine whether an of-
fender’s prior conviction was for the violent, rather
than the nonviolent, break-ins that this single
five-word phrase describes (e.g., breaking into a
building rather than into a vessel), by examining “the
indictment or information and jury instructions,”
Taylor, [495 U.S.] at 602, or, if a guilty plea is at issue,
by examining the plea agreement, plea colloquy or
“some comparable judicial record” of the factual basis
for the plea. Shepard v. United States, 544 U.S. 13,
26 (2005).
129 S. Ct. at 2299. Later in the Nijhawan opinion, the
Court (speaking of the ACCA) wrote, ”Taylor, James, and
Shepard, the cases that developed the evidentiary list to
which petitioner points, developed that list for a very
different purpose, namely that of determining which
statutory phrase (contained within a statutory provision that
covers several different generic crimes) covered a prior con-
viction.” Id. at 2303 (emphasis added). (Nijhawan thus also
14 No. 07-3851
demonstrates that it does not matter whether the earlier
statute placed the statutory phrase in its own subsection,
or if it merely made it part of a list. The point is that the
statute itself is “divisible”—that is, it expressly identifies
several ways in which a violation may occur.)
Nijhawan supports our understanding that the permissi-
ble additional materials may be consulted only for the
purpose of determining under which part of a divisible
statute the defendant was charged. In the Massachusetts
example given by the Court, that material could be used
to determine whether the crime fit under the “building” or
“vessel” part of the statute, but it could not be used to
see whether a particular act of breaking into a vessel
gave rise to a substantial risk of injury to a person. To
the extent that Templeton may be read as permitting
reference to those materials to ascertain whether the
particular crime was a violent one, we reject its analysis
as inconsistent with the Supreme Court’s decisions.
Because this opinion has the effect of changing the ap-
proach this court has taken to the application of the ACCA
and U.S.S.G. § 4B1.1, it was circulated to the full court
pursuant to Circuit Rule 40(e). Judges Flaum, Kanne,
Rovner, Evans, Williams, and Sykes voted to approve this
opinion and its understanding of Begay and the cases that
have followed it. Chief Judge Easterbrook, Judge Posner,
and Judge Tinder voted to hear the case en banc.
The dissent argues that Taylor cannot be reconciled
with this approach because it deals with a non-divisible
statute (one defining burglary as entry into a building
with intent to commit a felony), yet it permits a sen-
tencing judge to consider the charging papers or guilty-
No. 07-3851 15
plea colloquy. We do not see Taylor this way. As the
dissent concedes, post at 32-33, the statute before the
Court in Taylor was a divisible one, as we are using that
term. See 495 U.S. at 578 n.1. As the Court noted, “Missouri
had seven different statutes under which one could be
charged with second-degree burglary. All seven offenses
required entry into a structure, but they varied as to
the type of structure and the means of entry involved.” Id.
One of those statutes, as described by the Court, even
included a list. Id. Missouri adopted a more generic
statute only after the defendant’s second-degree
burglary conviction. Id. At the end of its opinion, the
Taylor Court observed that in Taylor’s case “most but not
all the former Missouri statutes defining second-degree
burglary include all the elements of generic burglary. . . .
Despite the Government’s argument to the contrary, it
is not apparent to us from the sparse record before us
which of those statutes were the bases for Taylor’s prior
convictions.” 495 U.S. at 602. Second, the dissent
suggests that the Court was indifferent to the change
in Missouri’s laws. Dissent, post, at 33. But this sheds little
light on the problem before us, for the simple reason that
Missouri’s amended statute mirrors the generic definition
of burglary that the Court endorsed in Taylor: “an unlawful
or unprivileged entry into, or remaining in, a building
or other structure, with intent to commit a crime.”
495 U.S. at 598.
Once the prior crime has properly been identified, the
court must ascertain whether it is expressly identified by
the ACCA or Guidelines, or if it is covered (if at all) only
by the residual clause, describing an offense that “other-
wise involves conduct that presents a serious potential
16 No. 07-3851
risk of physical injury to another.” We can put to one
side for purposes of this opinion those offenses that are
more specifically identified, either because they have as
an element the use (or attempted or threatened use) of
physical force against the person of another, or because
they are included in the statutory list (burglary, arson,
extortion, or something involving the use of explosives). It
is the residual clause that has posed most of the
problems, and it is the residual clause that we are con-
cerned with in this case. In Begay, the Supreme Court
held that the residual clause was limited to offenses that
were similar to the listed crimes, both in kind as well as
in degree of risk posed. 128 S. Ct. at 1585. Only offenses
that reflect the same “purposeful, violent, and aggressive
manner” as the listed offenses satisfy the definition. Id.
at 1586.
The Supreme Court recently addressed the issue of
violence, for these purposes. As it had already noted in
James, the offense must in the ordinary run of cases de-
scribe behavior that poses a sufficiently great risk of
physical injury to another before it will satisfy the ACCA
or § 4B1.1. Chambers v. United States, 129 S. Ct. 687, 691-93
(2009). Relying in part on empirical data collected by
the U.S. Sentencing Commission, the Court concluded
that the crime of failure to report for penal confinement
did not pose the required degree of risk.
The aspect of Begay that has come to the fore in
Woods’s appeal is the requirement that the crime involve
“purposeful” conduct. In Smith, we held that “those crimes
with a mens rea of negligence or recklessness do not trigger
the enhanced penalties mandated by the ACCA [or
No. 07-3851 17
§ 4B1.1].” 544 F.3d at 786. We therefore must decide
whether the crime of involuntary manslaughter, as
defined by Illinois law, is a crime of violence. This is a
question of law that this court reviews de novo. United
States v. Franco-Fernandez, 511 F.3d 768, 769 (7th Cir. 2008).
Before turning to the specifics of Woods’s case, it is
helpful to review the general law of mens rea. The first
point is one of the most important: the state of mind in
question must exist, as the Model Penal Code (“MPC”)
puts it, “with respect to each material element of the
offense.” MPC § 2.02(1). It is possible, however, that the
mental state required might differ with regard to each
element of the crime. See generally 1 W AYNE R. L AF AVE,
S UBSTANTIVE C RIMINAL L AW § 5.1(d), at 338 (2d ed. 2003).
The important point is to match the mental state in ques-
tion to the conduct that is being made criminal by the
statute, rather than to incidental steps along the way.
As another treatise puts it, “[C]onduct is a neutral or
indifferent term in the sense that it may or may not consti-
tute a crime. It constitutes a crime only if the ‘act or omis-
sion’ is voluntary and penally prohibited, and only if the
‘accompanying mental state’ is a recognized culpable
mental state.” 1 W HARTON’S C RIMINAL L AW § 25, at 146
(Charles E. Torcia ed., 15th ed. 1993).
A number of “recognized culpable mental states” exist.
The MPC refers to these as the “kinds of culpability.”
Section 2.02 identifies four levels or categories: purposely,
knowingly, recklessly, and negligently. (Exceptions to this
rule are set forth in MPC § 2.05, but they are not pertinent
here.) Once again, the state of mind (or kind of culpability)
must be linked to each material element of the crime.
18 No. 07-3851
So, for example, here is the MPC language describing a
reckless state of mind:
A person acts recklessly with respect to a material
element of an offense when he consciously disregards
a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The
risk must be of such a nature and degree that, con-
sidering the nature and purpose of the actor’s
conduct and the circumstances known to him, its
disregard involves a gross deviation from the
standard of conduct that a law-abiding person
would observe in the actor’s situation.
MPC § 2.02(2)(c). It is noteworthy that the person must
consciously disregard the risk in question. It is also impor-
tant to bear in mind that he must be disregarding the
risk that the material element exists or will result from
his conduct.
The Supreme Court’s decision in Begay shows how these
distinctions operate in practice. The petitioner, Larry
Begay, pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Begay, 128
S. Ct. 1583-84. He had a dozen prior convictions for
Driving Under the Influence (“DUI”). The sentencing
judge concluded that these were crimes that fell within
the residual clause of the ACCA, because they involved
conduct that presented a serious potential risk of physical
injury to another. Based on that finding, the judge sen-
tenced Begay to the mandatory minimum of 15 years in
prison. The Court did not question the fact that DUI
involves conduct with the necessary serious risk of physi-
No. 07-3851 19
cal injury to another. Importantly, however, it placed
no weight on the fact that the driver consciously
intended to drink, id. at 1587, or that he intended to get
behind the wheel of a car. What did matter was that the
state law at issue did not criminalize any intentional
behavior. Instead, it “criminaliz[ed] conduct in respect to
which the offender need not have had any criminal intent
at all.” Id. at 1586-87. Underscoring the point, the Court
noted that “the conduct for which the drunk driver
is convicted (driving under the influence) need not be
purposeful or deliberate.” Id. at 1587. This is so even
though there is ample evidence that drunk drivers
often inflict physical injuries—even death—on others in
their pathway. In Begay, therefore, the Court rejected a
reading of the ACCA that would have allowed the
drunk driver’s intentional acts of drinking and driving,
followed by recklessness with regard to the behavior
that the statute made criminal (behavior that represented
the consequences of the intentional act of drinking),
to satisfy the statute.
Nothing in Begay, and nothing we say here, is meant to
suggest that the presence of any recklessness component
in a crime means that the conviction cannot be one of
violence. An example that roughly reverses the facts
of Begay illustrates the point. In this example, the drinking
is reckless, and the dangerous driving is intentional;
in Begay the opposite was true. Suppose that Jane goes to
a party at which there are two large bowls of punch: one
is nonalcoholic, and one is spiked with a clear, odorless,
tasteless alcoholic drink. Knowing that one has a high
alcoholic content, Jane nevertheless recklessly drinks
20 No. 07-3851
from both bowls, paying no attention to which one she
is using. At the party, she spots her ex-husband Tom
leaving; she decides to follow him in her car. She does
so, intending to bash her car into Tom’s so that he will
have an expensive repair bill; unfortunately, however,
Jane causes Tom’s car to swerve off the road and he dies
in the resulting crash. The fact that Jane recklessly drank
the alcohol would in no way insulate her from prosecu-
tion for the intentional assault on Tom in which she
used her car as a weapon. That is true even though there
is a reckless component to these events, since Jane might
have had the sense not to assault Tom had she been sober.
What does remain important is the precise crime for
which the defendant was convicted in the earlier case. It
often will happen that a course of conduct could be
charged under either a greater crime, such as murder
or voluntary manslaughter, or a lesser crime, such as
involuntary manslaughter. We are well aware that pros-
ecutors sometimes begin with the greater charge and
settle for the lesser charge after plea bargaining. That
said, the only thing that counts for purposes of the ACCA
or the career offender Guidelines is the prior crime for
which the defendant was actually convicted. There is
nothing that this court either could or should do about
the prosecutorial discretion that is exercised at the charg-
ing stage. See In re United States, 503 F.3d 638, 642 (7th
Cir. 2007). Thus, a prosecutor might charge one person
who shoots a gun into a crowd with reckless endanger-
ment, but then charge another person who does the same
thing under a statute that prohibits aggravated assault
with intent to cause bodily injury to another. If the defen-
No. 07-3851 21
dant is convicted and then later is foolish enough to
commit a crime that brings him before a federal court,
the former crime would not count for purposes of the
ACCA or the career offender guidelines, but the latter
one would.
III
We turn now to Woods and his prior conviction for
involuntary manslaughter. Illinois defines involuntary
manslaughter as follows:
A person who unintentionally kills an individual
without lawful justification commits involuntary
manslaughter if his acts whether lawful or unlawful
which cause the death are such as are likely to
cause death or great bodily harm to some individual,
and he performs them recklessly.
720 ILCS 5/9-3(a) (emphasis added). The Illinois Criminal
Code defines the term “recklessness” more precisely:
A person is reckless or acts recklessly, when he con-
sciously disregards a substantial and unjustifiable risk
that circumstances exist or that a result will follow,
described by the statute defining the offense; and
such disregard constitutes a gross deviation from the
standard of care which a reasonable person would
exercise in the situation.
720 ILCS 5/4-6 (emphasis added). No one argues that
Illinois involuntary manslaughter falls within either
U.S.S.G. § 4B1.2(a)(1), which requires that the offense
22 No. 07-3851
have as an element the use, attempted use, or threatened
use of physical force against the person of another, or
the first part of U.S.S.G. § 4B1.2(a)(2), which covers bur-
glary of a dwelling, arson, extortion, and the use of ex-
plosives. The question is whether Illinois’s involuntary
manslaughter offense should be categorized as a crime
of violence under the residual clause in U.S.S.G.
§ 4B1.2(a)(2) as one that otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
Applying the categorical approach required by the
Supreme Court, we held in Smith that crimes with the mens
rea of negligence or recklessness do not trigger the en-
hanced penalties mandated by the ACCA. Woods
argues that this holding disposes of his case as well. He
relies on the fact that the statute under which he was
convicted covers unintentional killings, resulting from
either lawful or unlawful acts that are performed recklessly.
Recognizing that Smith poses a problem for its position,
the Government suggests that Smith categorically excludes
only some crimes of recklessness from the ambit of the
residual clause. Specifically, the Government claims that
the Illinois involuntary manslaughter statute is ex-
cluded from Smith’s scope because, under the statute, a
defendant must consciously disregard a substantial and
unjustifiable risk, and this conscious disregard is itself
the kind of voluntary and purposeful act that Begay
had in mind. That is, the Government claims that if
a defendant, such as Woods, intends the act but was
reckless as to the consequences of that act, then the crime
No. 07-3851 23
is not excluded from the scope of the residual clause
under Begay.
In our view, this is precisely the distinction that the Begay
Court rejected. In Begay itself, the defendant intended
both the act of drinking alcoholic beverages and the act of
driving his car; he was reckless only with respect to the
consequences of those acts. As we have explained at
more length above, this position was entirely consistent
with the classic line that has been drawn between the
actus reus and the mens rea of a criminal offense.
The Government’s argument not only blurs that line; it
obliterates it. The proposed ground on which the Gov-
ernment attempts to distinguish Smith would require
this court to find that as long as a defendant’s act is
volitional, he or she has acted purposefully under Begay’s
interpretation of the career offender guidelines, even if
the mens rea for the offense is recklessness. Unlike the
dissent, post at 36, we understand this to cover criminal
recklessness, which is the type of recklessness involved
in most crimes. Every crime of recklessness necessarily
requires a purposeful, volitional act that sets in motion
the later outcome. Indeed, when pressed at oral
argument to provide an example of a situation where
a defendant would be reckless as to the outcome and
not begin with an intentional act, the Government could
not provide one.
It is worth underscoring, as we did in Smith, that the
enhanced sentencing range under the ACCA or the career
offender guidelines is imposed in addition to any punish-
ment that already has been imposed on a defendant.
24 No. 07-3851
(Nor, in this post-Booker world, does our interpretation
prevent a sentencing judge from taking the circumstances
of the prior crime into account in the process of selecting
a reasonable sentence for the current crime.) Within very
broad constitutional bounds, the legislature is entitled
to establish a penalty as harsh as it believes is warranted
for the prior crime. In separating out purposeful, violent,
and aggressive crimes as the bases for enhancement of
a later, unrelated criminal sentence, Congress was at-
tempting to focus on “those offenders whose criminal
history evidenced a high risk for recidivism and future
violence . . . [who] exhibited a special need for an
increased sentence in order to deter future violent
crimes.” Id. at 785. The overbreadth of the Government’s
proposed principle can be seen in a simple example.
Suppose a physician prescribes penicillin to a patient
but consciously disregards the risk that the patient had
an allergy to penicillin. Suppose then that the patient
does have an allergy and dies as a result of the medica-
tion, and the physician is convicted of involuntary man-
slaughter under the Illinois statute in question here
(because, under the Illinois statute, even lawful acts, such
as a physician’s prescribing medication to a patient, can
be the foundation for an involuntary manslaughter con-
viction). It seems clear that this physician is not the type
of violent and aggressive criminal that the sentencing
enhancements are intended to encompass, yet, under the
principle espoused by the Government, this conviction
would be the basis for a sentencing enhancement.
The Government also urges us to apply the “modified
categorical approach,” but we do not agree with it that the
No. 07-3851 25
Illinois involuntary manslaughter statute is one to which
the modified categorical approach applies. As we ex-
plained earlier, James, Taylor, and Shepard permit a court
to go beyond the statutory definition of the crime to
consult judicial records (charging documents, plea collo-
quy, etc.) only where the statute defining the crime is
divisible, which is to say where the statute creates
several crimes or a single crime with several modes of
commission. By “modes of commission” we mean modes
of conduct identified somehow in the statute. The
Illinois involuntary manslaughter statute is not divisible
in this way, and we have no occasion to consult the
record further in order to resolve Woods’s appeal.
The approach we take today invites comparison with the
one adopted by the en banc court in United States v. Shan-
non, 110 F.3d 382 (7th Cir. 1997). In that case, we had to
decide whether the defendant, Shannon, had a prior
felony conviction of a crime of violence for purposes of
the offense of being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1). Whether Shannon had such a con-
viction or not depended on the same Guidelines pro-
vision we are considering here, U.S.S.G. § 4B1.2(a), and in
particular the meaning of a “serious potential risk of
physical injury to another.” Shannon’s prior conviction
was for second-degree sexual assault of a child, which is
committed by anyone who “has sexual contact or sexual
intercourse with a person who has not attained the age
of 16.” Wis. Stat. § 948.02(2). We acknowledged that we
could not “peek behind the information” and look at the
particulars of Shannon’s conduct. Shannon, 110 F.3d at
384. We did, however, consult the information, which
26 No. 07-3851
indicated that the child in question was 13 years old—
a fact that Shannon had admitted. That fact made it
unnecessary to decide whether any felonious sexual act
with a child was, by definition, a crime of violence,
though at the time we expressed doubt about the
wisdom of such a conclusion. Since Shannon was decided,
the Supreme Court has handed down Shepard (2005),
James (2007), Begay (2008), Chambers (2009), and Nijhawan
(2009). Statutes addressing sexual contact with children
vary widely. We acknowledge that we have already
found that a violation of Wis. Stat. § 948.02(2) is not
necessarily a crime of violence. See Xiong v. I.N.S., 173 F.3d
601, 607 (7th Cir. 1999) (finding that consensual sex be-
tween an 18-year-old and his 15-year-old girlfriend
was not a crime of violence for purposes of 18 U.S.C.
§ 16(b)). Because we do not have a concrete statute of
that type before us in this case, we leave for a more ap-
propriate occasion any further consideration of the effect
of today’s decision on the general approach taken in
Shannon and the question whether Xiong is consistent
with Shannon.
We note in this connection that the Court has just
granted certiorari in another case in this line, Johnson v.
United States, 528 F.3d 1318 (11th Cir. 2008), cert. granted,
129 S. Ct. 1315 (2009) (No. 08-6925). In Johnson, the
Court accepted two questions for review: first, whether
a holding from the highest court of a state that a given
offense does not have as an element the use or
threatened use of physical force is binding on federal
courts applying the ACCA; and second, whether a
prior state conviction for simple battery is in all cases a
No. 07-3851 27
“violent felony” no matter how little force is used. Johnson
may throw further light on the Court’s application of
its modified categorical approach. We note, however,
that it is not scheduled for argument until October 6, 2009.
If the Court holds in Johnson that simple battery is in all
cases a violent felony, then our en banc judgment in Shan-
non will be ratified, but on a broader ground, since one
cannot commit the offense of sexual assault of a child
without physical sexual contact or intercourse. If the
Court adopts a different approach in Johnson, then it will
be our duty to follow it. We have considered the possi-
bility of holding this case and the many others presently
before this court involving similar issues, but we have
concluded that the costs of doing so outweigh the bene-
fits. It may be of some assistance to the Supreme Court to
know how we have interpreted the decisions it has issued
thus far, and both the parties and the district courts
deserve a disposition from us sooner rather than later.
That observation takes us back to where we began. Our
best effort to read the applicable Supreme Court
decisions leads us to the conclusion that the Court has
rejected the technique of categorizing prior crimes based
on the particular way in which they were committed. That
observation guides our categorization of the conduct
involved in a prior offense as something fitting the
residual clause of the ACCA or the career offender guide-
lines, or not. As for the mental state requirement, we
adhere to our holding in Smith that the residual clause
encompasses only purposeful crimes; crimes with the
mens rea of recklessness do not fall within its scope.
In Woods’s case, these conclusions mean that the
28 No. 07-3851
district court should not have included his conviction for
involuntary manslaughter when it applied the career
offender guidelines. Woods thus does not have the requi-
site number of predicate convictions to authorize sentenc-
ing him as a career offender.
The judgment of the district court is V ACATED and the
case is R EMANDED for further proceedings consistent
with this opinion.
E ASTERBROOK, Chief Judge, with whom Posner and Tinder,
Circuit Judges, join, dissenting. Begay v. United States, 128
S. Ct. 1581 (2008), called into question many of this court’s
decisions interpreting U.S.S.G. §4B1.2(a)(2) and similar
recidivism provisions, such as 18 U.S.C. §16(b) and
§924(e)(2)(B)(ii). Last January the court set for argument
before two panels several appeals that presented issues
affected by Begay. As it happens, the six judges on those
panels do not agree on how Begay applies, so proposed
opinions in two cases were circulated to the full court
under Circuit Rule 40(e). We decided to resolve the dis-
putes through this circulation, without argument en banc.
The approach proposed by the panel in Woods has the
support of a majority and becomes the law of the circuit.
I disagree with some aspects of the panel’s analysis and
would proceed differently.
No. 07-3851 29
The career-offender portion of the Sentencing Guide-
lines, like 18 U.S.C. §16 and §924(e)(2)(B), counts toward
the total of the defendant’s “crimes of violence” or “violent
felonies” any conviction of an offense that has as an
element the use or attempted use of force against the
person of another. These provisions also include a
residual category. The Guidelines define as a “crime of
violence” any offense that:
is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another.
U.S.S.G. §4B1.2(a)(2). Begay understands the “otherwise
involves . . .” language of §924(e)(2)(B)(ii) to cover only
crimes “similar” to burglary, arson, extortion, and explo-
sives offenses in the sense that they involve “purposeful,
violent, and aggressive conduct”. 128 S. Ct. at 1586. This
led the Court to hold in Begay that drunk driving does
not qualify, because the driver does not set out to harm
anyone, and in Chambers v. United States, 129 S. Ct. 687(2009), that failure to report to prison and walkaway
escapes are not violent felonies. See also United States
v. Templeton, 543 F.3d 378 (7th Cir. 2008) (anticipating
the holding of Chambers).
Begay creates problems of classification. It may be easy
to tell when a person’s conduct was violent and aggressive,
but whether a crime of conviction entails such conduct
can be tricky, because it is necessary to think through the
many varieties of behavior within a law’s domain. States
did not write their statutes with Begay in mind. Many
30 No. 07-3851
laws penalize categories of activity, some violent and
some not. Or they may penalize reckless conduct. Criminal
recklessness is a form of intent, see Farmer v. Brennan, 511
U.S. 825 (1994), but particular laws may employ that
mental state in idiosyncratic ways. Still other laws
may apply a negligence standard to one element of an
offense, recklessness to a second, knowledge to a third,
and purpose to a fourth. There are many thousands of
state and federal criminal statutes. The judiciary needs a
list or a set of categories rather than an open-ended
standard, but for now we must make do.
Begay requires us to ask whether a crime that poses a
“serious potential risk of physical injury” to another
person is also sufficiently intentional, violent, and aggres-
sive that it is similar to burglary and arson. Woods con-
cludes that homicide does not meet this definition.
How can homicide not be an intentional, violent, and
aggressive act? How can it be that burglary is a crime
of violence, even though people rarely are injured in
burglaries, and homicide is not, even though a person’s
death is an element of the offense? The panel’s answer
is that involuntary manslaughter, though treated in
Illinois as a form of homicide (effectively third-degree
murder), see 720 ILCS 5/9-3, has a definition broad enough
to include some killings in which the mental element
is recklessness rather than knowledge or purpose. Illinois
calls the offense “involuntary” manslaughter when the
defendant, though intending to perform the acts that end
in death, does not want the victim to die, but is recklessly
indifferent to the risk of death. This causes a problem
No. 07-3851 31
for classification because federal recidivism statutes
(and similar parts of the Guidelines) ask what crime
the defendant has been convicted of, not what he did in
fact. That categorical approach sends us to the state stat-
ute’s text rather than the facts of the defendant’s conduct.
The panel in Woods understands the categorical
approach to ask whether a crime is “divisible”: unless
all (or almost all) varieties of conduct within a law’s
domain meet the Begay standard, then any conviction
under the statute must be deemed one for a non-
violent offense. As it is possible to commit involuntary
manslaughter in Illinois without purposeful, violent, and
aggressive conduct, the panel concludes that no con-
viction for involuntary manslaughter may be the basis of
a federal recidivism enhancement. We know that Woods
was violent toward the victim. He concedes dropping and
then shaking the baby, who died as a result. But because
the drop may have been thoughtless, and conviction did
not require proof that Woods intended the baby’s death,
the panel holds that his federal sentence is too high.
I think that the sentencing judge should be allowed to
look at the charging papers and plea colloquy in the
criminal prosecution whether or not the statute is “divisi-
ble” in the panel’s sense. To see why, it is essential to start
with Taylor v. United States, 495 U.S. 575 (1990), which
established the categorical approach to recidivist enhance-
ments.
Taylor holds, and Shepard v. United States, 544 U.S. 13(2005), reiterates, that the question to ask is: of what crime
does the defendant stand convicted? Taylor holds that
32 No. 07-3851
federal recidivist statutes use a charge-offense rather
than a real-offense approach. The Justices wrote:
“Congress intended the sentencing court to look only to
the fact that the defendant had been convicted of crimes
falling within certain categories, and not to the facts
underlying the prior convictions.” 495 U.S. at 600. But
how can one tell what the conviction represents, when a
single state crime covers acts both within and without
the federal domain?
Taylor concluded that the federal statute covered what
it called “generic burglary”: only entering a residence
with the intent to commit a felony is the crime of “bur-
glary” for a federal recidivist enhancement. Some
states have a statute with these elements. Other states
use lists, as in “any person who enters a tent, railroad
car, chicken coop, or dwelling with intent to commit
a felony within” commits burglary. The panel treats
statutes with lists as divisible. Still a third kind of statute
provides that “any person who enters a building with
intent to commit a felony therein” commits burglary.
There’s nothing “divisible” about that law: the word
“building” covers barns, ships, and dwellings. Yet
Taylor says that here, too, the sentencing judge may look
at the charging papers or guilty-plea colloquy to see
whether the person was convicted of entering a house
rather than a barn. A “divisibility” principle that ex-
cludes this aspect of Taylor is incompatible with the
Supreme Court’s understanding.
Here is how the Justices summed up their conclusion:
We think the only plausible interpretation of
§924(e)(2)(B)(ii) is that, like the rest of the enhance-
No. 07-3851 33
ment statute, it generally requires the trial court to look
only to the fact of conviction and the statutory defini-
tion of the prior offense. This categorical approach,
however, may permit the sentencing court to go
beyond the mere fact of conviction in a narrow range
of cases where a jury was actually required to find
all the elements of generic burglary. For example, in a
State whose burglary statutes include entry of an
automobile as well as a building, if the indictment
or information and jury instructions show that the
defendant was charged only with a burglary of a
building, and that the jury necessarily had to find an
entry of a building to convict, then the Government
should be allowed to use the conviction for enhance-
ment.
495 U.S. at 602 (footnote omitted). The Justices observed
that Missouri had seven different burglary statutes, some
with subdivisions or lists and some without. 495 U.S. at578–79 n.1. They did not suggest that the difference
mattered; instead the Justices adopted the approach
quoted above as the approach to all seven. So instead of
asking whether a state law is “divisible,” we should ask
whether the jury (or judge) necessarily found all the
elements required to classify the crime as “violent” for
federal purposes.
What Taylor excludes is calling something “burglary”
because that is what the defendant did, even if he was
convicted of something else (such as unlawful entry of a
residence, after a plea bargain that excluded the “with
intent to commit a felony therein” element). And Shepard
34 No. 07-3851
blocks using anything other than the charging papers
and plea colloquy to establish what the defendant was
convicted of. Neither opinion makes “divisibility” indis-
pensable to classification. And, as far as I can see, no
other circuit treats “divisibility” as a sine qua non. In this
circuit the word first appeared in United States v. Mathews,
453 F.3d 830, 833 (7th Cir. 2006), which used it as short-
hand for Taylor’s categorical approach rather than as a
stand-alone requirement. Two other circuits have used
the word, though neither has treated divisibility as a
legal requirement. See Dulal-Whiteway v. Department of
Homeland Security, 501 F.3d 116 (2d Cir. 2007); Huerta-
Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003).
Woods suggests that decisions after Taylor create a
divisibility requirement, even though the Justices them-
selves have not used the word or its functional equiva-
lent. Yet Nijhawan v. Holder, 129 S. Ct. 2294 (2009), shows
that Taylor’s original analysis remains the Court’s ap-
proach. Nijhawan posed the question whether immigra-
tion officials may consider the size of a fraud when
implementing 8 U.S.C. §1227(a)(2)(A)(iii), which allows
removal based on certain felony convictions, when the
dollar value of the fraud is not an element of the of-
fense. The court of appeals gave an affirmative answer; a
dissenting opinion invoked a “divisibility” requirement in
support of an argument that value must be ignored.
Nijhawan v. Attorney General, 523 F.3d 387, 402–05 (3d Cir.
2008) (Stapleton, J., dissenting). The Supreme Court
affirmed in Nijhawan without mentioning “divisibility.”
The Justices explained the categorical approach this way:
No. 07-3851 35
We also noted [in James v. United States, 550 U.S. 192(2007)] that the categorical method is not always easy
to apply. That is because sometimes a separately
numbered subsection of a criminal statute will refer
to several different crimes, each described separately.
And it can happen that some of these crimes involve
violence while others do not. A single Massachusetts
statute section entitled “Breaking and Entering at
Night,” for example, criminalizes breaking into a
“building, ship, vessel or vehicle.” Mass. Gen. Laws,
ch. 266, § 16 (West 2006). In such an instance, we have
said, a court must determine whether an offender’s
prior conviction was for the violent, rather than the
nonviolent, break-ins that this single five-word phrase
describes (e.g., breaking into a building rather than
into a vessel), by examining “the indictment or infor-
mation and jury instructions,” Taylor, supra, at 602, or,
if a guilty plea is at issue, by examining the plea
agreement, plea colloquy or “some comparable
judicial record” of the factual basis for the plea.
Shepard v. United States, 544 U.S. 13, 26 (2005).
129 S. Ct. at 2299. If a judge may look at the charging
papers and plea colloquy to ascertain whether the defen-
dant burgled a house or a vessel, even though a single
subsection covers both, what role can “divisibility” play?
Surely not that there must be a list (as there was in the
Massachusetts law quoted in Nijhawan); recall that Taylor
dealt with statutes that did not have lists and made it a
crime to break into any building with intent to commit a
felony inside. Nijhawan shows that Taylor has not been
modified by later decisions.
36 No. 07-3851
Woods dropped a five-week-old baby on his head, then
shook the comatose child to death. That is purposeful,
violent, and aggressive conduct. The possibility that
Woods did not intend to drop the child need not detain us;
the state statute requires some knowing conduct, a stan-
dard satisfied by the shaking if not the dropping. (The
state judge did not pin this down, because it was not
relevant as a matter of state law.) The Woods panel con-
cludes that recklessness does not meet Begay’s require-
ment of intentional conduct, but Farmer holds that
criminal recklessness—the kind involved here—is a form
of intent, and I think it likely that the Justices will deem
it sufficient for recidivism enhancements too.
Recklessness in criminal law means creating a risk of
serious harm, usually by knowingly doing dangerous
things with eyes closed to consequences. See generally
Model Penal Code §220.2(2). That mental state has been
equated with intent not only in eighth-amendment cases
but also in securities law, where proof of fraud depends
on showing intent to deceive. Ernst & Ernst v. Hochfelder,
425 U.S. 185 (1976). We held in Sundstrand Corp. v. Sun
Chemical Corp., 553 F.2d 1033, 1044–45 (7th Cir. 1977), that
recklessness equates to intent when danger is so
obvious that a reasonable person must be aware of it.
Every other court of appeals has concluded that reckless-
ness (appropriately defined) is a form of intent, and,
though the question remains open in the Supreme Court,
the Justices have not suggested restiveness. See Tellabs, Inc.
v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 n.3 (2007).
Why, then, should we declare that for recidivist enhance-
ments a reckless indifference to the danger caused by
one’s deliberate acts cannot satisfy the Begay standard?
No. 07-3851 37
The Woods panel writes: “nothing we say here is meant
to suggest that the presence of any recklessness
component in a crime means that the conviction cannot
be one of violence.” Slip op. 19 (emphasis in original). The
opinion then gives an elaborate example involving
spiked punch and a purpose to commit mayhem. “Pur-
pose” is the most exacting standard of intent under the
Model Penal Code’s typology; it suffices by any standard.
I grant that recklessness is not universally equivalent to
intent; statutory context matters. But in the main a
violent or aggressive crime that produces injury or
death should meet the Begay standard, even if the actor
recklessly ignored the risks to others.
Take a person who draws a gun and fires six shots into
a crowded night club, not caring whether anyone is
injured or killed. The intentional discharge of a gun is a
violent and aggressive act; that the shooter is indifferent
to the consequences shows his danger and is a good
reason for a recidivist enhancement following his next
conviction; it is not a reason to ignore the conduct. Like-
wise a person who drops a baby on his head, and inten-
tionally shakes the inert body violently, has committed
an aggressive and dangerous act; the person’s indif-
ference to consequences should not prevent counting
the conviction. I disagree with the approach of Woods to
the extent that it commits this circuit to a contrary course.
One final observation. Taylor, Shepard, James, Chambers,
and Nijhawan all involve the interpretation of statutes.
This appeal involves the interpretation and application of
the Sentencing Guidelines. We have held that the career-
38 No. 07-3851
offender enhancement must be treated as a statute to
the extent it implements 28 U.S.C. §994(h), which
requires the sentences for recidivists who commit
specified crimes to be “at or near the maximum term
authorized” for the new federal crimes. And this means, as
we have also held, that the language in §4B1.2 should be
understood the same way as the language in §16(b) and
§924(e), to the extent that the Guideline and the statutes
use the same words. But Guideline 4B1.2 goes beyond
§994(h) by including federal offenses for which Congress
has not specified a sentence “at or near the maximum” for
recidivists. For these other offenders, the Guideline is
merely advisory, and district judges may disagree. See
United States v. Knox, No. 06-4101 (7th Cir. July 20, 2009),
slip op. 11–16.
Moreover, a conclusion that a particular prior convic-
tion is not one for a “crime of violence” does not limit
the judge’s discretion to give a higher sentence based on
the defendant’s actual criminal history. See Spears v.
United States, 129 S. Ct. 840 (2009); Kimbrough v. United
States, 552 U.S. 85 (2007). The career-offender guideline
does not affect the maximum allowable sentence. Since
“[n]o limitation shall be placed on the information con-
cerning the background, character, and conduct of a
person convicted of an offense which a court of the United
States may receive and consider for the purpose of impos-
ing an appropriate sentence” (18 U.S.C. §3661), a district
judge is entitled to ask what Woods actually did.
Neither the categorical approach of Taylor nor the
divisibility approach of Woods prevents the judge from
No. 07-3851 39
giving Woods the same sentence that would be appropri-
ate if involuntary manslaughter in Illinois were a “crime of
violence” under §4B1.2(a)(2). Woods just requires a
more roundabout approach at sentencing. Is that sensible?
When a recidivism enhancement raises the statutory
floor under a sentence, or the maximum allowable sen-
tence, a court should be punctilious about ensuring that
the enhancement applies. But when the prior conviction
just affects an exercise of discretion, the approach should
be more flexible: when selection of the sentence is not
governed by rule, why employ elaborate rules about
“divisibility” and “recklessness” that the district judge
may elect to bypass in the end?
8-5-09