Carnell Brown v. Ricardo Rios , 696 F.3d 638 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1695
C ARNELL B ROWN,
Petitioner-Appellant,
v.
R ICARDO R IOS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:10-cv-01374-MMM—Michael M. Mihm, Judge.
A RGUED JULY 11, 2012—D ECIDED A UGUST 20, 2012
Before P OSNER, M ANION, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The principal although not only
issue presented by this appeal is the often vexing ques-
tion of whether a conviction used to enhance a de-
fendant’s sentence under the Armed Career Criminal
Act is a “violent felony” within the meaning of the Act.
18 U.S.C. § 924(e). The Act defines the term to mean
either a felony that “has as an element the use, attempted
use, or threatened use of physical force against the person
2 No. 11-1695
of another” or “is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.”
§§ 924(e)(2)(B)(i), (ii). It is the catchall phrase, which
we have italicized, that presents problems of application.
Carnell Brown was convicted in 2000 of being a felon
in possession of a gun, § 922(g)(1), an offense for which
the maximum sentence is normally 10 years in prison.
§ 924(a)(2). The government urged that he be sentenced
to a minimum of 15 years on the ground that he had
three previous convictions for a violent felony or a
felony drug offense, and if this was right then the
Armed Career Criminal Act indeed required a sentence
at least that long. § 924(e)(1). We held that it was right,
United States v. Brown, 273 F.3d 747 (7th Cir. 2001), and
on remand Brown was sentenced to 264 months in
prison, and did not appeal.
In 2010, following an unsuccessful collateral attack on
his sentence under 28 U.S.C. § 2255 (the federal prisoner’s
substitute for habeas corpus), he mounted a new col-
lateral attack under the federal habeas corpus statute, 28
U.S.C. § 2241, in reliance on the Supreme Court’s deci-
sion in Begay v. United States, 553 U.S. 137 (2008). There
the Court had held that driving under the influence
is not within the catchall provision of the Armed
Career Criminal Act because a crime within the catchall
“typically involve[s] purposeful, ‘violent’, and ‘aggressive’
conduct.” Id. at 144-45. The district court in this case,
seconded by the government, held that section 2241 was a
proper vehicle for Brown’s attack on his sentence, but
No. 11-1695 3
went on to hold that he indeed had been convicted of
three violent felonies or serious drug offenses, and so
his sentence stood, and he has appealed.
The government has conceded that Brown can use the
habeas corpus statute to challenge the legality of his
sentence. Normally a federal prisoner is confined to
his remedy under 28 U.S.C. § 2255, but he may petition
under section 2241 instead if his section 2255 remedy
is “inadequate or ineffective to test the legality of his
detention.” § 2255(e). In re Davenport, 147 F.3d 605, 610-12
(7th Cir. 1998), set forth three conditions for this excep-
tion to apply. Two clearly are satisfied in this case.
First, Begay was not a constitutional case, but a statutory-
interpretation case, so Brown could not have invoked it
by means of a second or successive section 2255 motion.
28 U.S.C. § 2255(h)(2); United States v. Wyatt, 672 F.3d
519, 522 (7th Cir. 2012). Second, although he could not
have invoked it in his first section 2255 motion
either, because Begay hadn’t been decided, compare
In re Davenport, supra, 147 F.3d at 609, Begay is applicable
retroactively, id. at 610; Welch v. United States, 604 F.3d
408, 415 (7th Cir. 2010), and therefore he could invoke it
by a later motion, provided (because of the bar in
section 2255(h)(2) to second or successive section 2255
motions) that the later motion wasn’t a section 2255
motion. It wasn’t; it was a section 2241 motion.
The third condition is that Brown’s sentence enhance-
ment under the Armed Career Criminal Act, because
based on a conviction for a crime of which he was
innocent, have been a grave enough error to be deemed
4 No. 11-1695
a miscarriage of justice corrigible therefore in a habeas
corpus proceeding. Narvaez v. United States, 674 F.3d 621,
623 (7th Cir. 2011), held that such an error “was
indeed a miscarriage of justice,” even though in that
case it was a violation merely of the career-offender
sentencing guidelines, rather than a statutory violation.
Narvaez was a case in which the guidelines had been
mandatory when the defendant was sentenced; we left
open in United States v. Wyatt, supra, 672 F.3d at 523-24,
whether the result might be different now that they
are merely advisory. We needn’t try to resolve the
issue in this case.
Davenport, unlike Narvaez, had been a case in which
a defendant (Nichols, Davenport’s codefendant) had
been innocent of the crime of which he had been con-
victed (use of a firearm in connection with a drug of-
fense), whereas the present case, like Narvaez, involves
a sentencing error. A number of cases, before and after
and contrary to Narvaez, specify “actual innocence” of
the crime of which the defendant was convicted as one of
the conditions for allowing a challenge under the
habeas corpus statute. See, e.g., Unthank v. Jett, 549 F.3d
534, 536 (7th Cir. 2008); In re Bradford, 660 F.3d 226, 230
(5th Cir. 2011) (per curiam); Kinder v. Purdy, 222 F.3d 209,
213-14 (5th Cir. 2000) (per curiam). We didn’t use the
term in Davenport, although it was, as we said, an “actual
innocence” case.
But these cases involved, like Narvaez, violations of
the sentencing guidelines rather than of the Armed
Career Criminal Act. A sentence that violates a statute, as
No. 11-1695 5
distinct from a sentence permitted by a statute though
more severe than authorized by the guidelines, could
well be thought an error grave enough to warrant relief
in a habeas corpus proceeding—a “fundamental error
equivalent to actual innocence,” Taylor v. Gilkey, 314
F.3d 832, 836 (7th Cir. 2002)—whereas now that the
guidelines are merely advisory, a sentencing judge,
while still required to calculate the guidelines sentence,
is free to give a heavier (or for that matter a lighter)
sentence.
But we needn’t pursue the issue whether or what sen-
tencing errors can be corrected in a habeas corpus pro-
ceeding further in this case, in view of the government’s
concession.
And so we come to the merits, where the principal
issue is whether the felony of which Brown was
convicted in an Illinois court in 1983—namely “com-
pel[ling] a person to become a prostitute,” Ill. Rev. Stat.
1983, ch. 38, § 11-16(a)(1)—is a violent felony within
the meaning of the Armed Career Criminal Act. Our
2001 decision in the direct appeal from Brown’s sen-
tence describes the offense as “a situation where one
person, for money, compels another to submit to
nonconsensual sex with a third person. That situation,
unlike many cases of statutory rape . . ., necessarily in-
volves unconsented-to activity that is, by itself, a type
of physical injury.” 273 F.3d at 751. In other words,
paying a person to engage in sex is an injury to that
person. This formula cannot be squared with the defini-
tion of a violent felony in the Begay case, decided after
our first Brown decision.
6 No. 11-1695
Later (that is, after the Begay decision), it is true, the
Court, commenting on driving under the influence—the
crime held in Begay not to be a violent felony—said that
a crime “akin to strict liability, negligence, and reckless-
ness crimes” is not a violent felony. Sykes v. United
States, 131 S. Ct. 2267, 2276 (2011). But this can’t be read
to mean that every intentional crime is a violent felony
(tax evasion? price fixing?); that would make no sense,
and the Court immediately added that a violent felony
in the catchall category is one that is “similar in risk to
the listed crimes,” id., which means crimes such as bur-
glary and arson. Nor does Sykes back away from the
Court’s holding in Chambers v. United States, 555 U.S. 122
(2009), that failing to report to prison when ordered,
though it is an intentional felony, is not a violent one,
because the risk of violence in efforts to apprehend such
no-shows has not been shown to be significant.
Neither has it been shown that compelling a person,
within the meaning of the Illinois statute, to become a
prostitute necessarily creates a risk of violence to her.
There would be a risk—more than a risk, an actuality—of
violence if the compulsion required to convict of the
crime were physical coercion, as in our recent case of
United States v. Cephus, 684 F.3d 703 (7th Cir. 2012), where
defendants had beaten and whipped women to force
them to engage in interstate prostitution in violation
of federal law. But as far as we have been able to
learn, all that the Illinois felony of compelling prostitu-
tion requires be shown, and all that the typical case
involves, is inducing women (perhaps men also) to
engage in prostitution by promising them money or
No. 11-1695 7
other things of value, such as mind-altering drugs,
for doing so.
As of 1961, Illinois defined as “pandering” the conduct of
anyone who “for money” either “compels a female to
become a prostitute” or “arranges or offers to arrange
a situation in which a female may practice prostitution.”
The first offense, “pandering by compulsion,” carried a
sentence of 1 to 10 years; the second, “pandering other
than by compulsion” (that is, “pandering by arranging”),
a sentence only of 0 to 5 years. 720 ILCS 11-16(1)(b). In
1977 the statute was amended, and it was that amended
version under which Brown was convicted. (The statute
now appears, with an irrelevant further amendment, at
720 ILCS 5/11-14.3.) The only material change between
the 1961 and 1977 versions was the punishment. No
longer was compulsion punished more heavily than
arranging. Both were now to be punished as Class 4
felonies, which prescribe a sentencing range of 1 to
3 years. Ill. Rev. Stat. 1973, ch. 38, § 1005-8-1(b)(5).
Thus the punishment for compulsion was reduced to the
punishment for arranging.
The fact that it probably is easier to prove arrange-
ment than compulsion may explain why we can’t find
any cases other than Brown’s in which anyone has been
convicted of compulsion since the 1977 amendment.
Even more surprising, we can’t find any earlier such
convictions either. All we have is a tiny shard of legisla-
tive history—a 1961 comment by a Joint Committee
that had been formed by the Governor and Supreme
Court of Illinois in conjunction with the Illinois and
8 No. 11-1695
Chicago Bar Associations to draft a new criminal code
for Illinois. The comment states that the crime of compel-
ling prostitution “deals with the use of some kind of
coercion to place the woman in the trade or to keep
her there,” but that “this description accords more with
the historical view of pandering,” and that “while at
the turn of the century the coercion when employed
probably arose from financial destitution, today coercion
probably arises more frequently from drug addiction.”
720 ILCS 5/11-16, Committee Comments—1961, at 466
(Smith-Hurd 2002). The implication is that the “compul-
sion” is of the “here’s an offer you can’t resist” character.
Indeed that may be the only compulsion that the
statute reaches, because of the statute’s limited sen-
tencing range. If a panderer uses physical coercion, as in
the Cephus case, he is committing a more serious crime
than one punishable by a maximum sentence of three
years in prison, and will doubtless be charged accord-
ingly. This may be another reason why we can’t find
prosecutions for compelling prostitution other than the
prosecution of Brown.
Maybe, as the government hints, the violence to
which such pandering gives rise is not by the panderer
but by the prostitute’s customer, as we noted in United
States v. Patterson, 576 F.3d 431, 441-42 (7th Cir. 2009),
a case that involved transporting a minor in inter-
state commerce with the intent that she engage in prosti-
tution. Such transportation endangers the minor, but
would endanger an adult prostitute as well, given the well-
documented frequency of assaults against prostitutes
No. 11-1695 9
by their customers. E.g., Kaethe Morris Hoffer, “A Re-
sponse to Sex Trafficking Chicago Style: Follow the Sisters,
Speak Out,” 158 U. Pa. L. Rev. 1831, 1838-39 (2010); Jody
Raphael and Jessica Ashley, “Domestic Sex Trafficking
of Chicago Women and Girls” (Ill. Crim. Justice Informa-
tion Authority, May 2008), www.enddemandillinois.org/
sites/default/files/ICJIA_Research_Jody.pdf; Steven D.
Levitt et al., “An Empirical Analysis of Street-Level
Prostitution” 3, 14 (Sept. 2007), http://economics.uchicago.
edu/pdf/Prostitution%205.pdf?q=venkatesh; Donna M.
Hughes, “Best Practices to Address the Demand Side
of Trafficking” 10-12 (Women’s Studies Program, Univer-
sity of Rhode Island, August 2004), www.uri.edu/artsci/
wms/hughes/demand_sex_trafficking.pdf; David G. Som-
mer, “Recent Decisions,” 60 Md. L. Rev. 994, 1011 (2001);
Evelina Giobbe et al., “Impressions of a Public Policy
Initiative,” 16 Hamline J. Pub. Law & Policy 1, 13 n. 69 (1994);
but see Ronald Weitzer, “Sex Trafficking and the Sex
Industry: The Need for Evidence Based Theory and
Legislation,” 101 J. Crim. L. & Criminology 1337, 1362-63
(2011). (The Web sites were visited on August 5, 2012.) But
if the possibility of such an assault makes compelling
prostitution a violent felony, it likewise makes arranging
prostitution a violent felony, which no one is arguing.
Furthermore, if compelling prostitution typically in-
volved the use or threat of violence, it would be
punishable by a heavier sentence, and it is not. All that
compulsion under the Illinois statute may mean is
paying a person to become a prostitute, whereas
arranging could mean managing a brothel in which
the prostitutes are paid by the johns rather than by the
10 No. 11-1695
manager, who merely takes a cut of their earnings, so that
there is no element of financial inducement. This inter-
pretation is further supported by comparison of the
maximum sentence for compulsion—three years—with the
maximum sentences that Illinois law decrees for what
are clearly “violent felonies” within the meaning of the
Armed Career Criminal Act. For residential burglary the
maximum is 15 years, for residential arson also 15 years,
for intimidation (Illinois’s counterpart to extortion in
federal law, United States v. Unthank, 109 F.3d 1205, 1210
(7th Cir. 1997), a listed offense in the Armed Career
Criminal Act) 10 years, and for possession of explosives 30
years. 720 ILCS 5/19-3, 5/20-1.2, 5/12-6, 5/20-2; 730 ILCS 5/5-
45-30, 40. We conclude that compelling a person to
become a prostitute has not been shown to be a violent
felony within the meaning of the Armed Career Crim-
inal Act.
There is, however, a second merits issue: whether a 1993
conviction of Brown for “armed violence” under Illinois
law, defined as “committing any felony defined by
Illinois law while armed,” Ill. Rev. Stat. 1978, ch. 38, § 33A-
2—the felony was possession of illegal drugs—was a
violent felony within the meaning of the federal Act
because of the frequent linkage remarked in many cases
between guns and drugs. See, e.g., United States v. Fife, 624
F.3d 441, 447-48 (7th Cir. 2010); United States v.
Cunningham, 517 F.3d 175, 179 (3d Cir. 2008); United States
v. Crawford, 130 F.3d 1321, 1323 (8th Cir. 1997). If so, Brown
has three qualifying convictions even if the pandering
conviction, as we hold, doesn’t count.
No. 11-1695 11
We would agree with the government and the district
court that the felony that Brown had been convicted of
committing while armed was a violent felony if it had
involved the sale of drugs. United States v. Fife, supra, 624
F.3d at 447-48. But it had involved merely possession.
Originally, it is true, he had also been charged with
manufacturing and delivering the drugs, but that charge
had been dropped and the government does not rely on
it; so, as far as we know—and as we must therefore
assume for purposes of deciding this appeal—Brown was
a consumer of drugs who happened to own a gun. The
more than 22 million Americans estimated to consume
illegal drugs, see Substance Abuse and Mental Health
Services Administration, “Results from the 2010 National
Survey on Drug Use and Health: Summary of National
Findings” (NSDUH Series H-41, HHS Publication No.
(SMA) 11-4658, 2011), www.oas.samhsa.gov/NSDUH/
2k10NSDUH/2k10Results.htm (visited Aug. 5, 2012), and
the 57 million Americans estimated to own guns, see L.
Hepburn et al., “The U.S. Gun Stock: Results from the 2004
National Firearms Survey,” 13 Injury Prevention 15 (2007),
are overlapping sets. And while there is evidence of a
connection between “Congress’s attempt to keep firearms
away from habitual drug users and its goal of reducing
violent crime,” United States v. Yancey, 621 F.3d 681, 686
(7th Cir. 2010), it has not been shown that the mere posses-
sion of a gun by a drug user (who might not be a habitual
user, that is, an addict) can be described as pur-
poseful, violent, or aggressive conduct within the
meaning of Begay.
For these reasons, we reverse the district judge’s deci-
sion and remand with instructions to reduce Brown’s
12 No. 11-1695
sentence to 10 years’ imprisonment. This will require
his release, though the district judge may want to con-
sider releasing him on bail in order to protect the gov-
ernment’s right to seek review of our decision by
the Supreme Court.
R EVERSED AND R EMANDED.
8-20-12