United States v. Giavonni Cunningham ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3203
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GIAVONNI CUNNINGHAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-CR-0056(1) — Rebecca R. Pallmeyer, Chief Judge.
____________________
SUBMITTED OCTOBER 5, 2021 — DECIDED OCTOBER 7, 2021
____________________
Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
PER CURIAM. Giavonni Cunningham appeals his sentence
for unlawful possession of ammunition, 18 U.S.C. § 922(g)(1),
on the ground that the district court miscalculated his range
under the Sentencing Guidelines. He contends that the court
erred in determining that one of his two convictions for ag-
gravated battery under Illinois law, 720 ILCS 5/12-4 (2010),
was a “crime of violence.” In Cunningham’s view, the court
should have relied on unspecified information from the
2 No. 20-3203
Illinois Department of Corrections to find that he was con-
victed under a subsection of the statute that does not categor-
ically define a crime of violence. But the court-certified record
of conviction—which was consistent with criminal records
from two separate police departments—shows that Cunning-
ham was convicted under 720 ILCS 5/12-4(a), which, he con-
cedes, is a crime of violence. Because the district court appro-
priately relied on the certified record, we affirm.
I. BACKGROUND
While on parole, Cunningham was riding in a car that po-
lice officers stopped for having an unregistered license plate.
As the officers approached, the driver sped away, provoking
a high-speed chase. At some point, Cunningham exited the
car and ran until he fell and dropped a 9mm round of ammu-
nition.
Cunningham, a felon, pleaded guilty to unlawful posses-
sion of ammunition, 18 U.S.C. § 922(g)(1), and the probation
office prepared a presentence investigation report. The PSR
calculated a base offense level of 24 under U.S.S.G.
§ 2K2.1(a)(2) because Cunningham had two previous convic-
tions for a crime of violence, as defined by U.S.S.G.
§ 4B1.2(a)(1). See U.S.S.G. § 2K2.1 cmt. n.1 (adopting “crime of
violence” definition from § 4B1.2(a)). Namely, in 2007 and
2010, Cunningham was convicted of aggravated battery
against a peace officer. But the PSR also introduced ambiguity
about the 2010 conviction:
It is noted that [the government] provided the certi-
fied disposition, which reflects, as does the [Chicago
Police Department] and [Illinois State Police] rap
sheets, that the defendant was convicted of 720 ILCS
5/12-4(a); however, information provided by the
No. 20-3203 3
[Illinois Department of Corrections] indicates that
the defendant was convicted of 720 ILCS 5/12-
4(b)(6).
After subtracting three levels for acceptance of responsibility,
U.S.S.G. § 3E1.1(a)–(b), the PSR calculated a total offense of
21. Based on this offense level and a criminal history category
of V, the guidelines range was 70 to 87 months in prison fol-
lowed by up to three years’ supervised release.
As relevant to this appeal, Cunningham objected to the
calculation on the ground that his 2010 conviction was not a
crime of violence and, therefore, his base offense level should
be 22 rather than 24. At the time of Cunningham’s conviction,
the aggravated battery statute, 720 ILCS 5/12-4 (2010), had
two subsections. Subsection (a) required that the defendant
“intentionally or knowingly causes great bodily harm,” and,
thus, a conviction under that subsection necessarily consti-
tuted a crime of violence under § 4B1.2(a)(1) (which requires
the offense to have “as an element the use, attempted use, or
threated use of physical force against the person of another”).
See Johnson v. United States, 559 U.S. 133, 140 (2010) (describing
the force necessary for a violent felony as the force capable of
causing physical pain or injury to another person)see also
United States v. Lynn, 851 F.3d 786, 797 (7th Cir. 2017) (convic-
tion under first prong of Illinois simple battery statute, which
requires causing bodily harm, was a crime of violence); United
States v. Jennings, 860 F.3d 450, 458–61 (7th Cir. 2017) (same,
regarding Illinois aggravated domestic battery). Subsection
(b) required the commission of simple battery—which could
include mere “physical contact of an insulting or provoking
nature,” 720 ILCS 5/12-3(a) (2010)—against a certain class of
victim, including a correctional officer. 720 ILCS 5/12-4(b)(6).
4 No. 20-3203
A conviction under subsection (b), therefore, is not a crime of
violence under the categorical approach.
Citing the PSR’s reference to “information” from the De-
partment of Corrections, Cunningham argued that his 2010
conviction was under subsection (b) of the Illinois aggra-
vated-battery statute—not subsection (a), as the PSR con-
cluded. And because there is no information in the PSR, or
anywhere in the record, about the facts of the 2010 offense or
the specific conduct to which he pleaded guilty in 2010, the
court should not count this conviction as a crime of violence.
At the sentencing hearing, the district court heard argu-
ment on Cunningham’s objection. After confirming with the
government and the probation office that the verified PSR,
certified record of conviction, and criminal records from two
police departments listed 720 ILCS 5/12-4(a) as the statute of
conviction for Cunningham’s 2010 aggravated-battery of-
fense—and no certified document listed subsection (b)—the
court overruled the objection. After adopting the other calcu-
lations from the PSR, the court sentenced Cunningham to
60 months in prison—a term below the range of 70 to
87 months—and three years’ supervised release.
II. ANALYSIS
Cunningham raises one argument on appeal—that the
district court erred in counting his 2010 conviction as a crime
of violence because the PSR’s sources conflict about the stat-
ute of conviction, and the record contains “no documents” de-
scribing the offense. He contends that the court was obligated
to look to the Shepard documents—e.g., the plea agreement or
indictment—to determine whether he was convicted under
720 ILCS 5/12-4(a) or (b) and whether his offense qualified as
No. 20-3203 5
a crime of violence. See generally Shepard v. United States, 544
U.S. 13 (2005). Having not done so, Cunningham continues,
the district court could not be certain of his statute of convic-
tion and therefore should have accounted for only one prior
crime of violence (the 2007 aggravated battery). This would
have set his base offense level at 22, see U.S.S.G. § 2K2.1(a)(3),
with his adjusted offense level generating a guidelines range
of 57 to 71 months.
We detect three fatalities to Cunningham’s argument.
First, the district court did not err in relying on the PSR’s state-
ment that, in 2010, Cunningham was convicted of aggravated
battery under 720 ILCS 5/12-4(a). In determining a defend-
ant’s criminal history, a district court can rely on a PSR “so
long as the report is well-supported and appears reliable.”
United States v. Mehrig, 714 F.3d 457, 459 (7th Cir. 2013). The
PSR here met that bar, notwithstanding the unspecified “in-
formation” from the Department of Corrections. As the dis-
trict court confirmed with the prosecutor and the probation
officer during the sentencing hearing, the PSR’s characteriza-
tion of the 2010 conviction was based on the certified record
of conviction and was bolstered by separate criminal-history
reports from the Chicago Police Department and the Illinois
State Police.
Second, if Cunningham doubted the reliability of the PSR,
it was his burden to “produce evidence that questions the re-
liability or correctness of the facts in the report,” Mehrig,
714 F.3d at 459. Cunningham’s lawyer reported to the court
that he attempted to pull Cunningham’s court files at Cook
County’s criminal court and could not. But he never probed
the nature of the unspecified “information” suggesting Cun-
ningham was convicted under subsection 5/12-4(b)—for
6 No. 20-3203
example, by asking the court to have the probation office pro-
duce it or testify. Therefore, the district court can hardly be
faulted for relying on the court-certified record of conviction,
a dependable source that courts may consult to obtain cer-
tainty about a defendant’s criminal record. See Shepard, 544
U.S. at 23 (in determining a defendant’s statute of conviction
for a previous offense, courts should look only “to records ...
approaching the certainty of the record of conviction … .”).
Finally, Cunningham’s contention that the district court
should have looked to the Shepard documents to determine
the statute of his 2010 conviction is incorrect. True, 720 ILCS
5/12-4 is a divisible statute, meaning that it describes two of-
fenses—i.e., subsections (a) and (b)—the second of which can
be committed without the use of sufficient force to be a crime
of violence. Mathis v. United States, 136 S. Ct. 2243, 2248–49
(2016); United States v. Rodriguez-Gomez, 608 F.3d 969, 973 (7th
Cir. 2010). Therefore, had Cunningham’s record of conviction
failed to delineate which subsection he violated, the district
court would have had to use Shepard’s modified categorical
approach to investigate further, and consider reliable court
documents such as a guilty plea, plea colloquy, or indictment
to examine the conduct underlying Cunningham’s convic-
tion. See Mathis, 136 S. Ct. at 2249.
But that process was unnecessary here, because the district
court had reliable evidence that Cunningham was convicted
under 720 ILCS 5/12-4(a). See Shepard, 544 U.S. at 25 (explain-
ing that district courts can look to limited, reliable documents
when “the fact necessary to show a generic crime is not estab-
lished by the record of conviction” (emphasis added));
United States v. Ker Yang, 799 F.3d 750, 753 (7th Cir. 2015). And
Cunningham admits that subsection (a) categorically defines
No. 20-3203 7
a crime of violence. There was no need for the court to inves-
tigate the nature of his unlawful conduct.
III. CONCLUSION
The district court’s sentencing decision is AFFIRMED.