United States v. Dwayne McDonald ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2703
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D WAYNE E. M C D ONALD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07 CR 307—J.P. Stadtmueller, Judge.
A RGUED JANUARY 6, 2009—D ECIDED JANUARY 25, 2010
Before K ANNE, W OOD , and SYKES, Circuit Judges.
S YKES, Circuit Judge. Dwayne McDonald pleaded
guilty to possessing a firearm as a felon and on
appeal challenges his sentence. The district court held
that McDonald’s two prior Wisconsin convictions—one
for first-degree reckless injury, W IS. S TAT. § 940.23, and
another for second-degree sexual assault of a child, id.
§ 948.02(2)—qualified as crimes of violence for purposes
of § 2K2.1(a) of the United States Sentencing Guidelines.
This substantially increased his total guidelines offense
2 No. 08-2703
level and therefore his advisory guidelines sentencing
range. Under Begay v. United States, 128 S. Ct. 1581 (2008),
and our subsequent decision in United States v. Woods, 576
F.3d 400 (7th Cir. 2009), however, neither conviction
qualifies as a crime of violence.
Only the “residual clause” of the crime-of-violence
definition is implicated here, and Begay interpreted
that part of the definition (actually, the materially
identical definition in the Armed Career Criminal Act)
to include only crimes that categorically involve “pur-
poseful, violent, and aggressive conduct.” 128 S. Ct. at
1586. First-degree reckless injury and second-degree
sexual assault of a child do not meet this test because
neither crime is categorically “purposeful” in the sense
required by Begay. See Woods, 576 F.3d at 412-13. The
former crime has a mens rea of recklessness and the latter
is a strict-liability offense; Begay generally excludes these
types of crimes from the scope of the crime-of-violence
definition. Accordingly, we vacate McDonald’s sentence
and remand for resentencing.
I. Background
Dwayne McDonald pleaded guilty to one count of
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). His presentence report (“PSR”)
reflected that he had prior Wisconsin convictions for first-
degree reckless injury in violation of Wis. Stat. § 940.23and second-degree sexual assault of a child in violation
of Wis. Stat. § 948.02(2). The PSR counted these as
“crimes of violence” under U.S.S.G. §§ 2K2.1(a) and
No. 08-2703 3
4B1.2(a), and accordingly recommended that the
district court increase McDonald’s base offense level to
24 pursuant to § 2K2.1(a)(2).
While McDonald was awaiting sentencing, the Supreme
Court decided Begay. This gave McDonald a new argu-
ment, and at sentencing he objected to the application of
the § 2K2.1(a) enhancement. Begay held that the
residual clause in the definition of “violent felony” in
the Armed Career Criminal Act included only crimes
that categorically involve “purposeful, violent, and aggres-
sive conduct.” 128 S. Ct. at 1586. McDonald argued
that neither of his prior convictions satisfied this require-
ment, which applies equally to the residual clause in the
guidelines’ definition of “crime of violence.” The district
judge thought McDonald’s position was a reasonable
reading of Begay, but ultimately decided that the
issue should be resolved by this court. The judge
rejected McDonald’s argument, accepted the PSR’s recom-
mendation, and increased McDonald’s base offense level
under § 2K2.1(a)(2). McDonald’s resulting advisory
sentencing range was 46 to 57 months. The judge
imposed a below-guidelines sentence of 31 months and
this appeal followed.
II. Discussion
On appeal McDonald reiterates his objection to the
application of § 2K2.1(a)(2), which ascribes a base
offense level of 24 to unlawful firearms-possession con-
victions “if the defendant committed any part of the
4 No. 08-2703
instant offense subsequent to sustaining at least two
felony convictions of . . . a crime of violence.” U.S.S.G.
§ 2K2.1(a)(2). A “crime of violence” for purposes of
§ 2K2.1(a) has the meaning given to that term under the
career-offender guideline, U.S.S.G. § 4B1.2. See id. § 2K2.1
cmt. n.1. Section § 4B1.2, in turn, defines a “crime of
violence” as:
(a) . . . any offense under federal or state law, punish-
able by imprisonment for a term exceeding one year,
that–
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) 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.
This language is virtually identical to the definition of a
“violent felony” in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), and we have held that the
definitions are interpreted in the same way. See Woods,
576 F.3d at 403-04.
To determine whether a prior conviction qualifies as a
violent felony under the ACCA, the Supreme Court has
instructed us to apply a “categorical approach.” See
Begay, 128 S. Ct. at 1584; James v. United States, 550 U.S. 192,
202 (2007); Shepard v. United States, 544 U.S. 13, 17 (2005);
Taylor v. United States, 495 U.S. 575, 602 (1990). This
means that we may “ ‘look only to the fact of conviction
No. 08-2703 5
and the statutory definition of the prior offense’ ” and do
not generally consider the defendant’s actual conduct or
the “particular facts disclosed by the record of convic-
tion.” Shepard, 544 U.S. at 17 (quoting Taylor, 495 U.S. at
602). A modified categorical approach applies when a
statute is “divisible”—that is, when it creates more
than one crime or one crime with multiple enumerated
modes of commission, some of which may be crimes of
violence and some not. Woods, 576 F.3d at 405-06 (citing
Begay; James; Chambers v. United States, 129 S. Ct. 687 (2009);
and Nijhawan v. Holder, 129 S. Ct. 2294 (2009)). When
the statute at issue is divisible in this sense, we may
look to the charging document, plea agreement, or
other comparable judicial record from the underlying
conviction—not to inquire into the specific conduct of
the defendant but for the more limited purpose of deter-
mining which category of crime the defendant com-
mitted. Id.The first part of the crime-of-violence definition is not
at issue in this case; neither of McDonald’s predicate
crimes “has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). The applicability of the
§ 2K2.1(a) enhancement therefore turns on whether Mc-
Donald’s prior convictions qualify as crimes of violence
under the definition’s residual clause. Moreover, as we
will explain, the modified categorical approach does not
come into play here; whether McDonald’s prior con-
victions qualify as crimes of violence therefore begins
and ends with the categorical approach.
6 No. 08-2703
Under the residual clause, a prior conviction counts as
a crime of violence if it “is burglary of a dwelling, arson, or
extortion, involves the use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” Id. § 4B1.2(a)(2) (emphasis
added). In Begay the Supreme Court addressed the scope
of the parallel language in the ACCA; the question there
was whether the defendant’s New Mexico felony con-
viction for recidivist drunk driving qualified under the
residual clause of the violent-felony definition. See
128 S. Ct. at 1583. The Court held that the residual clause
covered only those offenses that present a “serious poten-
tial risk of physical injury to another” and also are
“roughly similar, in kind as well as in degree of risk
posed,” to the specifically enumerated offenses—burglary,
arson, extortion, and crimes that involve the use of ex-
plosives. Id. at 1585. The Court explained that an
offense will be similar in kind to the enumerated offenses
if it entails the same kind of “purposeful, violent, and
aggressive conduct” as these offenses. Id. at 1586-87. New
Mexico’s drunk-driving felony did not qualify, the
Court concluded, because it did not require “purposeful”
conduct but rather was a strict-liability offense. See id.
at 1588.
With these general principles in mind, we now move
to whether McDonald’s convictions for first-degree reck-
less injury and second-degree sexual assault of a child
qualify as crimes of violence under §§ 2K2.1(a)
and 4B1.2(a).
No. 08-2703 7
A. First-Degree Reckless Injury
McDonald was convicted in 1998 of first-degree
reckless injury in violation of Wis. Stat. § 940.23(1)(a). That
statute makes it a felony to “recklessly cause[] great
bodily harm to another human being under circum-
stances which show utter disregard for human life.”
W IS. S TAT. § 940.23(1)(a). “The elements of first-degree
reckless injury are 1) the defendant caused great bodily
harm to a human being, 2) by criminally reckless
conduct, and 3) under circumstances which show utter
disregard for human life.” State v. Jensen, 613 N.W.2d 170,
173 n.2 (Wis. 2000). The Wisconsin statute is not divisible
in the sense explained in Woods—that is, it does not
create more than one category of crime or enumerate
multiple modes of committing the offense, some of which
may be crimes of violence and others not. Accordingly,
there is no need to consult the charging document or
other judicial record from the underlying Wisconsin
proceeding; our inquiry is limited to the statutory defini-
tion of the crime.
The government initially argued that the statute’s
recklessness requirement is sufficiently “purposeful” to
satisfy the requirements of Begay. However, in United
States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008), we held
that crimes requiring a mens rea of recklessness are not
“purposeful” in the way that Begay requires. We
reaffirmed this understanding of Begay in Woods, rejecting
the argument that a crime with a mens rea of recklessness
is sufficiently purposeful if it involves a volitional or
purposeful act with recklessness as to the consequences:
8 No. 08-2703
[T]he 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 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 Government attempts to dis-
tinguish 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. Every crime of reck-
lessness 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.
576 F.3d at 410-11 (holding that the Illinois involuntary-
manslaughter statute’s mens rea of recklessness pre-
cluded it from qualifying as a crime of violence); see also
No. 08-2703 9
United States v. High, 576 F.3d 429, 430-31 (7th Cir.
2009) (holding, in light of Woods, that Wisconsin’s crime
of second-degree recklessly endangering safety was not
categorically a violent felony). After the release of Woods
and High, the government filed a letter under Circuit
Rule 28(e) and Rule 28(j) of the Federal Rules of
Appellate Procedure conceding that its argument re-
garding the recklessness mens rea of this crime is now
foreclosed.
The government also argued that the Wisconsin
statute’s additional requirement that the defendant’s
conduct be committed “under circumstances which show
utter disregard for human life,” W IS. S TAT. § 940.23(1)(a),
was sufficient to make this crime categorically “purpose-
ful” under Begay. It is not entirely clear from the gov-
ernment’s Rule 28(j) letter whether it continues to press
this argument; the letter addressed only the recklessness
mens rea but in closing acknowledged more generally
that Woods and High “suggest that the first degree
reckless injury conviction is not a crime of violence.” For
completeness, therefore, we note that the first-degree
reckless injury statute’s “utter disregard” element
does not affect our analysis here. The Wisconsin
Supreme Court has held that the “utter disregard”
element is not an aspect of the crime’s subjective
mens rea but rather is an objective element that, if
present, aggravates the base crime of reckless injury
from the second degree to the first degree. Jensen, 613
N.W.2d at 174. Jensen made it clear that notwithstanding
the additional “utter disregard” element, first-degree
reckless injury falls short of a purposeful or intentional
10 No. 08-2703
crime. Id. (“If proven, the offender is considered more
culpable because the conduct, according to the standards
observed by the great mass of mankind, went beyond
simple criminal recklessness to encompass something
that, although falling short of an intentional crime, still de-
serves to be treated more seriously under the law and
punished more severely.” (emphasis added)). Accordingly,
under Begay and Woods, McDonald’s conviction for first-
degree reckless injury does not qualify as a crime of
violence for purposes of § 2K2.1(a)(2).1
B. Second-Degree Sexual Assault of a Child
Our conclusion regarding McDonald’s first-degree-
reckless-injury conviction does not end matters. McDon-
ald’s guidelines offense level may still be enhanced
under § 2K2.1—albeit to a lesser offense level—if he has
just one prior conviction for a crime of violence. See
U.S.S.G. § 2K2.1(a)(4)(A). McDonald was convicted in
2000 of second-degree sexual assault of a child in
violation of Wis. Stat. § 948.02(2). He argues that this
conviction does not count as a crime of violence under
Begay because the crime of second-degree sexual assault
1
The government very briefly argued that § 940.23(1) has as an
element the “use of physical force” and therefore falls within
the first part of the definition of crime of violence, § 4B1.2(a)(1).
We have previously held, however, that the “use of force”
element for purposes of § 4B1.2(a)(1) means the intentional use
of force. See, e.g., United States v. Rutherford, 54 F.3d 370, 373-
74 (7th Cir. 1995) (abrogated on other grounds).
No. 08-2703 11
of a child is a strict-liability offense under Wisconsin
law and is not categorically “violent and aggressive.”
The statute at issue provides: “Whoever has sexual
contact or sexual intercourse with a person who has not
attained the age of 16 years is guilty of a Class C felony.”
W IS. S TAT. § 948.02(2). The government maintains that
second-degree sexual assault of a child qualifies as a
crime of violence and for support relies largely on this
court’s pre-Begay holding in United States v. Shannon,
110 F.3d 382 (7th Cir. 1997) (en banc).
Shannon involved the same Wisconsin statute at issue
here, and in that case the government argued that any
sexual contact with a minor presented a serious risk of
injury for purposes of the residual clause in the career-
offender guideline definition. See id. at 385. We rejected
that argument, holding that because of Wis. Stat.
§ 948.02(2)’s breadth—not all sexual conduct with a
victim under the age of 16 presents a serious risk of
injury—the crime was not categorically a crime of vio-
lence. See id. at 387 (“The Wisconsin statute covers a lot of
ground, and some of it may not be crime of
violence ground.”). We nevertheless held in Shannon
that the defendant’s particular violation of the statute
qualified as a crime of violence because judicial records
established that he had engaged in consensual sexual
intercourse with a 13-year-old girl. See id. at 384. We
reasoned that sexual intercourse with a 13-year-old—even
if consensual—presented serious risks of injury to the
victim, including pregnancy and the medical complica-
tions that encompass a pregnancy at that young age.
12 No. 08-2703
See id. at 388. Our decision, however, left open
the question whether a violation of the statute involving
a 14- or 15-year-old victim could be a crime of violence.
See id. at 389.
The government argues here that McDonald’s second-
degree-sexual-assault conviction, which involved sexual
intercourse with a 15-year-old girl, posed the same
serious risks of injury that we identified in Shannon. This
argument is problematic for several reasons. First, it
essentially amounts to a claim that all convictions
under Wis. Stat. § 948.02(2) should count as crimes of
violence, and as we have already noted, Shannon itself
forecloses this argument. Id. at 386; see also Chue Xiong v.
INS, 173 F.3d 601, 605 (7th Cir. 1999) (citing Shannon for
the proposition that “a violation of the statute is not, per se,
a crime of violence” and finding that consensual sex
between an 18-year-old and his 15-year-old girlfriend
did not present a substantial risk of intentional force
under 18 U.S.C. § 16(b)). Second, to the extent that the
government asks us to consider the age of the victim
involved in McDonald’s particular violation of § 948.02(2),
we explained in Woods why doing so after Begay would
be improper—§ 948.02(2) is not divisible as to the age of
the victim.2 Woods, 576 F.3d at 406-07. That is, the statute
does not enumerate multiple categories of the offense,
some of which may be crimes of violence and others not.
2
In this regard, Shannon’s approach to the modified categorical
approach is no longer valid in light of the Supreme Court’s
decision in Begay and this court’s decision in Woods.
No. 08-2703 13
Moreover, as we have discussed above, to qualify as
a crime of violence under the residual clause after Begay,
the offense must not only involve conduct that presents
a serious potential risk of physical injury to an-
other—which was the focus of the analysis in Shan-
non—but it must also be categorically “purposeful, violent,
and aggressive.” Begay explained that New Mexico’s
drunk-driving statute did not satisfy this requirement
because “crimes involving intentional or purposeful
conduct . . . are different than DUI, a strict liability crime.”
128 S. Ct. at 1587; see also id. at 1586-87 (“By way of con-
trast, statutes that forbid driving under the influence . . .
typically do not insist on purposeful, violent, and aggres-
sive conduct; rather, they are, or are most nearly compara-
ble to, crimes that impose strict liability, criminalizing
conduct in respect to which the offender need not have
had any criminal intent at all.”).
Wisconsin’s crime of second-degree sexual assault of a
child is a strict-liability offense—no mens rea is required
with respect to the age of the victim, and neither the
victim’s consent nor a mistake or misrepresentation
regarding the victim’s age is relevant. See State v.
Lackershire, 734 N.W.2d 23, 31 (Wis. 2007) (“A violation
of Wis. Stat. § 948.02(2) is generally viewed as a strict
liability offense. Unlike other sexual assault offenses,
where consent of the victim may be a central issue, the
consent of the child in a Wis. Stat. § 948.02(2) violation
is not relevant.”); State v. Jadowski, 680 N.W.2d 810, 816,
822 (Wis. 2004) (holding that Ҥ 948.02(2) is a strict
liability crime with regard to knowledge of the child’s
age” and recognizing “[t]he long history of statutory
14 No. 08-2703
rape as a recognized exception to the requirement of
criminal intent and the well accepted legislative
purpose for omitting [a] scienter” requirement from
§ 948.02(2)). The act of sexual intercourse or contact,
of course, must be volitional, but there is no mens rea
requirement with respect to the statutory element that
makes that conduct illegal—the age of the victim. By
including only crimes that require “purposeful” conduct,
Begay has removed strict-liability crimes from the reach
of the residual clause of the ACCA’s definition of
violent felony and the identical definition of crime of
violence in the career-offender guideline.
Even if this understanding of Begay’s “purposeful”
requirement is wrong, we doubt that Wisconsin’s crime
of second-degree sexual assault could qualify as categori-
cally “violent and aggressive” and therefore similar in
kind to the enumerated offenses in the residual clause.
We note first that a circuit split has emerged on the ques-
tion whether, after Begay, statutory rape can be classified
as a violent felony under the ACCA. In United States v.
Thornton, 554 F.3d 443, 444 (4th Cir. 2009), the Fourth
Circuit held that a Virginia statute making it a felony
to have nonforcible sexual contact with a child between
the ages of 13 and 15 could not be counted as an ACCA
violent felony after Begay. The Fourth Circuit did not
address whether this crime presented a serious risk of
physical injury, but instead concluded that it was not
“violent” or “aggressive” under Begay’s interpretation
of the ACCA’s residual clause because the statute
criminalized nonforcible (i.e., consensual) sexual
conduct with 13- to 15-year-olds. See id. at 447-49.
No. 08-2703 15
Similarly, in United States v. Christensen, 559 F.3d 1092,
1093 (9th Cir. 2009), the Ninth Circuit addressed a Wash-
ington statute criminalizing sexual intercourse between
a 14- or 15-year-old victim and a “perpetrator [who] is
at least forty-eight months older than the victim.”
The court noted that “because statutory rape may
involve consensual sexual intercourse, it does not neces-
sarily involve either ‘violent’ or ‘aggressive’ conduct.” Id.
at 1095 (internal citation omitted). Accordingly, the
court held that the Washington crime was not
categorically a violent felony under the ACCA in light
of Begay’s requirement that the crime be typically
“violent and aggressive.” Id.In contrast, in United States v. Daye, 571 F.3d 225, 234 (2d
Cir. 2009), the Second Circuit held that a Vermont statute
making it a felony to engage in any sex act with a person
under 16 years of age qualified as a violent felony for
purposes of the ACCA post-Begay. Relying largely on pre-
Begay circuit precedents, the Second Circuit concluded
that crimes involving sexual contact between adults and
children inherently create a substantial likelihood of the
use of coercive force against the child, and that “[s]uch
likely use of force not only creates a risk of injury to the
victim, but also establishes that the perpetrator will
commonly act in a purposeful, violent, and aggressive
manner.” Id. The court considered sex crimes by adults
against young teens to be substantially more aggressive
and violent than burglary, one of the residual clause’s
enumerated offenses:
At a minimum, we have no doubt that a typical in-
stance of this crime will involve conduct at least as
16 No. 08-2703
intentionally aggressive and violent as a typical in-
stance of burglary. . . . Indeed, given the peculiar
susceptibility of minors to coercion by adults into
sexual acts, we think it is more likely that violent and
aggressive force will actually be employed in the
course of committing the crime at issue here than in
the course of committing an ordinary burglary.
Id.The Second Circuit did not explain this generalization
about the prevalence of the use of force in sex offenses
involving 13- to 15-year-old victims. In any event, the
analysis of the Fourth and Ninth Circuits seems to be
more consistent with the requirements of Begay; Wiscon-
sin’s second-degree-sexual-assault statute (like many
statutory-rape statutes) sweeps broadly, criminalizing
all acts of sexual intercourse or contact with a child age
13 to 15 without regard to consent-in-fact or whether the
perpetrator and the victim are close in age.3 This breadth
3
Wisconsin’s statute is effectively the same as the Virginia
statute at issue in Thornton. Although § 948.02(2) is not specifi-
cally limited to nonforcible sexual conduct with a child under
the age of 16 (as was the Virginia statute in Thornton), other
subsections of the Wisconsin statute provide that a forcible
commission of the offense aggravates the crime from the
second degree to the first degree. That is, the Wisconsin
statute provides that sexual intercourse or contact with a
child under the age of 16 “by the use or threat of force or
violence” constitutes a first-degree sexual assault of a child,
which carries a harsher penalty than the second-degree of-
(continued...)
No. 08-2703 17
makes it difficult to conclude that the offense is typically
“violent and aggressive.” But because the offense is not
categorically “purposeful” in the sense required by Begay,
we need not decide whether it is also categorically “violent
and aggressive.” As a strict-liability offense, a conviction
under § 948.02(2) does not qualify as a crime of violence
after Begay. Accordingly, McDonald’s second-degree-
sexual-assault conviction should not have been used to
increase his offense level under § 2K2.1(a).4
For the foregoing reasons, we V ACATE McDonald’s
sentence and R EMAND for resentencing.
3
(...continued)
fense. W IS . S TAT . § 948.02(1)(c), (d). Section 948.02(2) is
broader than the Washington statute in Christensen because
it does not require any age difference between the victim and
the perpetrator.
4
McDonald is entitled to resentencing based on the miscal-
culation of his advisory guidelines range even though he
received a below-guidelines sentence. Although the district
court is not required to sentence within the guidelines, it must
at least start with a properly calculated guidelines range. See
United States v. Parr, 545 F.3d 491, 504 (7th Cir. 2008) (remanding
for resentencing based on guidelines-calculation error even
though the defendant received a below-guidelines sentence).
1-25-10