NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 11, 2009*
Decided June 15, 2010
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐2196
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 04‐CR‐278
DANTE COLEMAN,
Defendant‐Appellant. Charles N. Clevert, Jr.,
Chief Judge.
O R D E R
Dante Coleman pleaded guilty to possessing a firearm after a felony conviction,
18
U.S.C. § 922(g)(1), possessing crack cocaine with intent to distribute,
21 U.S.C. § 841(a)(1),
and carrying a firearm in relation to a drug trafficking crime,
18 U.S.C. § 924(c)(1). After a
*
This successive appeal has been submitted to the original panel pursuant to Internal
Operating Procedure 6(b). After examining the briefs and the record, we have concluded
that oral argument is unnecessary. See FED. R. APP. P. 34(a); CIR. R. 34(f).
No. 08‐2196 Page 2
successful appeal, Coleman was resentenced as a career offender to 198 months’
imprisonment, running concurrently with his state sentence, and eight years of supervised
release. Coleman appeals, but his appointed counsel has moved to withdraw because they
cannot identify any nonfrivolous argument to pursue on appeal. See Anders v. California,
386
U.S. 738, 744 (1967). Coleman declined our invitation to comment on his counsel’s
submission. See CIR. R. 51(b). We confine our review to the two potential issues identified in
counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 974 (7th Cir. 2002).
This is not our first encounter with this case. Coleman appealed his original sentence;
we vacated his sentence on all counts and remanded for resentencing. See United States v.
Coleman, 232 F. App’x 594 (7th Cir. 2007) (unpublished). This appeal raises two issues: (1)
whether Coleman’s previous conviction for vehicular fleeing under WIS. STAT. § 346.04(3)
constitutes a “crime of violence” under § 4B1.1 such that it would support the district
court’s determination that he is a career offender; and (2) whether his sentence is
reasonable.
Counsel is correct that Coleman may challenge his sentence based on the Supreme
Court’s decision in Begay v. United States,
553 U.S. 137 (2008). Coleman was sentenced as a
career offender on April 9, 2008; the Supreme Court decided Begay on April 16, 2008. Since
that time, we have devoted considerable attention to how Begay is to be applied. See, e.g.,
United States v. Woods,
576 F.3d 400 (7th Cir. 2009); United States v. Hart,
578 F.3d 674 (7th
Cir. 2009); United States v. Hampton,
585 F.3d 1033 (7th Cir. 2009); United States v. Clinton,
591
F.3d 968 (7th Cir. 2010); United States v. Dismuke,
593 F.3d 582 (7th Cir. 2010). We have held
this case in order to have the benefit of those decisions.
While it may not have been clear at the outset, it is now settled in this circuit that a
properly divisible part of the Wisconsin crime of vehicular fleeing qualifies as a “crime of
violence” under U.S.S.G. § 4B1.1. Coleman’s offense was a violation of WIS. STAT.
§ 346.04(3), which provides: “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 operators vehicle or
extinguish the lights of the vehicle in an attempt to elude or flee.” We addressed this statute
in Dismuke,
supra,
593 F.3d at 590‐96. In that case, we noted that this provision of Wisconsin
law was divisible: one category is fleeing or attempting to elude an officer “by willful or
wanton disregard of [the officer’s] signal so as to interfere with or endanger the operation of
the police vehicle, or the traffic officer or other vehicles or pedestrians” and the other
involved “increas[ing] the speed of the operator’s vehicle or extinguish[ing] the lights of the
vehicle in an attempt to elude or flee.”
Id. at 590. Relying on United States v. Spells, 537 F.3d
No. 08‐2196 Page 3
743 (7th Cir. 2008), we held that the second offense was a “crime of violence” for the specific
purpose of the career‐offender enhancement.
Id. at 594. See also United States v. Howze,
343
F.3d 919, 921‐22 (7th Cir. 2003) (finding, prior to Woods, that WIS. STAT. § 346.04(3) described
a “crime of violence”); Welch v. United States,
604 F.3d 408 (7th Cir. 2010) (taking same
approach to comparable provision of Illinois law).
Coleman was convicted of the same offense as Dismuke – a violation of WIS. STAT.
§ 346.04(3). Under the modified categorical approach, see United States v. Woods,
576 F.3d
400 (7th Cir. 2009), we may look at a limited range of additional material to determine
which portion of a divisible statute the defendant violated. Here, Coleman is under an extra
disadvantage because he did not argue in the district court that his fleeing from an officer in
his vehicle was not a crime of violence. Our review would therefore be only for plain error.
See United States v. Olano,
507 U.S. 725, 734‐36 (1993). If he were not confined by the plain
error standard, our evaluation of the potential issue on appeal might be different. As it is,
however, we see nothing in the record that indicates that Coleman’s earlier conviction was
merely for disregarding a signal from a traffic officer; instead, it appears to describe actual
“fleeing” from the officer as that term applies to the second category of the Wisconsin
statute. This is the divisible part of the statute that we characterized as a “crime of violence”
in Dismuke. On this understanding, we agree with counsel that the district court properly
determined that Coleman is a career offender under the Guidelines.
We also agree with counsel that any appeal in which Coleman tried to argue that the
district court’s sentence of 198 months’ imprisonment was reasonable would be doomed.
See Gall v. United States,
552 U.S. 38 (2007); Rita v. United States,
551 U.S. 338 (2007). The
sentence was 22 months below the recommended range, and there is nothing in the record
to suggest that the sentence was unreasonably high.
Accordingly, we GRANT the motion and DISMISS Coleman’s appeal.
