NONPRECEDENTIAL DISPOSTION
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
Argued April 20, 2010
Decided May 26, 2010
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 09‐2548 Appeal from the United States District
Court for the Northern District of
UNITED STATES OF AMERICA, Illinois, Eastern Division.
Plaintiff‐Appellee,
v. No. 1:03‐cr‐00725‐1
MICHAEL PARTEE, John W. Darrah,
Defendant‐Appellant. Judge.
O R D E R
This is the second effort by Michael Partee to obtain relief from his sentence for being
a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), and distribution of a
controlled substance, in violation of
21 U.S.C. § 841(a)(1). Previously, in a nonprecedential
order, we affirmed Partee’s conviction but vacated his sentence and remanded the case for
resentencing. See United States v. Partee, 273 F. App’x 529 (7th Cir. 2008). We also
No. 09‐2548 Page 2
specifically held that Partee’s new sentence needed to reflect, among other things, our
determination that his prior conviction in Georgia was a “controlled substance offense” for
guidelines calculations. (This, along with other qualifications, made Partee a career
offender under U.S.S.G. § 4B1.1.) Since that time, the Supreme Court has decided United
States v. Begay,
553 U.S. 137 (2008), and United States v. Chambers,
129 S. Ct. 687 (2009).
Partee now argues that those decisions require us to reconsider our earlier determination
regarding the Georgia conviction, which the district court dutifully applied on remand.1
The government, on the other hand, contends that, because our previous analysis did not
violate Begay and Chambers, the “law of the case” doctrine precludes considering Partee’s
challenge a second time.
In the first appeal, we rejected Partee’s argument that, “although he was charged in
Georgia with selling cocaine, the sentence he received was necessarily only for possession,
which is not a controlled substance offense for guideline calculations.” Partee, 273 F. App’x
at 532 (emphasis added). We agreed, however, that it was “somewhat mysterious” that
Partee received a sentence of only two years, which was below Georgia’s mandatory
minimum of five years for selling cocaine. Because there was no explanation in the record,
we found that the district court could “examine the charging papers and the plea colloquy
to determine what the offense was.”
Id. at 533 (citing United States v. Sperberg,
432 F.3d 706
(7th Cir. 2005)).2 Applying de novo review, we agreed with the district judge in Partee’s case
that the indictment, transcript of the plea hearing, and judgment of conviction all
“substantiate that he was convicted of selling cocaine.”
Id. (emphasis added). As for the
light sentence, we thought it was reasonable to conclude that Partee “caught a break.”
On remand, the district judge applied our ruling concerning the Georgia conviction
(over defense counsel’s objection) and consequently sentenced Partee as a career offender.
The judge ultimately imposed a term of 120 months on the gun count and 262 months on
the distribution count, the terms to run concurrently. Partee now appeals, urging us to
revisit our determination regarding the Georgia conviction in light of intervening Supreme
Court precedent. This is a question of law, which we review de novo. See Moore v. Anderson,
222 F.3d 280, 283 (7th Cir. 2000).
1
Although Partee introduced two other issues on appeal, at oral argument, his counsel agreed
that disposition of the Georgia conviction issue requires us to either affirm the judgment in full or vacate
the sentence and remand the case for resentencing. Thus, it is unnecessary for us to address the
remaining issues.
2
The specific holding of Sperberg—that the felony crime of driving while intoxicated (Sperberg
had eight DUI convictions) was a “violent felony” within the meaning of the Armed Career Criminal
Act (ACCA)—was overruled by Begay. See United States v. Jackson,
549 F.3d 1115, 1117‐18 (7th Cir. 2008).
We did not, however, cite Sperberg for that point of law.
No. 09‐2548 Page 3
The “law of the case” doctrine would ordinarily prevent us from reconsidering our
earlier determination regarding the Georgia conviction. See Agostini v. Felton,
521 U.S. 203,
236 (1997); Starcon Int’l, Inc. v. Int’l Bhd. of Boilermakers,
450 F.3d 276, 278 (7th Cir. 2006). It is
not improper to depart from a prior holding, however, if we are “convinced that it is clearly
erroneous and would work a manifest injustice.” Arizona v. California,
460 U.S. 605, 618 n.8
(1983); see also Davis v. United States,
417 U.S. 333, 342 (1974) (holding that the court of
appeals erred in adhering to the doctrine despite an intervening change in law). Partee
argues that his case fits the bill because our previous analysis ran afoul of Begay and
Chambers, as well as our interpretation of those opinions in United States v. Woods,
576 F.3d
400 (7th Cir. 2009). Accordingly, we begin by briefly reviewing the relevant decisions.
In Begay, the Court held that New Mexico’s crime of driving under the influence of
alcohol is not a “violent felony” within the meaning of the ACCA. In so holding, the Court
reiterated that, when determining whether a crime is a violent felony, a categorical
approach should be used. This means that judges should “consider the offense generically,
that is to say, [they] examine it in terms of how the law defines the offense and not in terms
of how an individual offender might have committed it on a particular occasion.” Begay,
553 U.S. at 141 (citing Taylor v. United States,
495 U.S. 575, 602 (1990), and James v. United
States,
550 U.S. 192, 208‐09 (2007)).
In Chambers, the Court held that Illinois’s crime of failure to report for penal
confinement is not a “violent felony” within the meaning of the ACCA. Like Begay,
Chambers reaffirmed the categorical approach described in Taylor and James. Importantly,
the Court also looked to the state court record—that is, to the “charging document, plea
agreement, jury instructions, or transcript of plea colloquy”—to determine the precise crime
at issue. Chambers,
129 S. Ct. at 691 (citing Shepard v. United States,
544 U.S. 13, 25 (2005)).
In Woods, we held that Illinois’s crime of involuntary manslaughter was not a “crime
of violence” for purposes of career offender guidelines. Because the categorical approach
also applies to the guidelines’ career offender provisions, see United States v. Templeton,
543
F.3d 378, 380 (7th Cir. 2008), we based our decision there on the Taylor/James line of cases.3
We also discussed the proper analysis when the statute at issue is divisible, meaning that it
covers more than one offense. In that situation, we found, pursuant to Shepard, that courts
may consult the charging document, the plea agreement or transcript of the plea colloquy,
or some comparable judicial record. We emphasized, however, that “the additional
3
Although the issue here specifically concerns whether a prior conviction qualifies as a
“controlled substance offense” as opposed a “crime of violence,” neither party has argued that the
categorical approach does not apply. Indeed, our sister circuits have expressly held the opposite. See,
e.g., United States v. Bryant,
571 F.3d 147, 157 n.7 (1st Cir. 2009); United States v. Savage,
542 F.3d 959, 964
(2d Cir. 2008).
No. 09‐2548 Page 4
materials permitted by Shepard may be used only to determine which crime within a statute
the defendant committed, now how he committed that crime.” Woods,
576 F.3d at 405. We
highlighted the latter point because language in our previous opinions (specifically,
Templeton) could be read to the contrary.
Partee concedes that, because the Georgia statute under which he was charged was
divisible,4 and there was (at best) some ambiguity regarding the specific offense of
conviction, we properly consulted Shepard materials in the first appeal. His argument
purportedly centers around the concern expressed in Woods that some of our recent cases
had incorrectly applied the categorical approach. Specifically, Partee contends that, in
examining the Shepard materials, we impermissibly looked to the particular facts of his case
and determined how he committed the crime, not which crime he committed. We disagree.
In the first appeal, as we previously discussed, we examined the state court indictment, plea
colloquy, and judgment of conviction and determined that Partee “was convicted of selling
cocaine.” Partee, 273 F. App’x at 533 (emphasis added). We neither addressed nor relied
upon Partee’s actual conduct. Because our analysis did not violate the categorical approach
outlined in Begay, Chambers, or Woods, there is no “manifest injustice,” and the law of the
case doctrine precludes Partee’s claim.
Partee’s real argument (although he tries to get around it to avoid the law of the case
doctrine) is that our analysis was correct but our conclusion was wrong. But even if it were
proper to reexamine that holding now, our decision would not change. As in the first
appeal, the only evidence that Partee points to in support of his position is the length of his
Georgia sentence. At oral argument, however, his counsel could not explain why one piece
of the state court record should trump all the rest. We fully comprehend that Partee’s
sentence was inconsistent with the applicable statute and possibly improper under Georgia
law. But this is neither the time nor the place for Partee to collaterally attack his prior
conviction.5 See Custis v. United States,
511 U.S. 485, 497 (1994) (holding that the defendant
could not use the federal sentencing forum to gain review of his state convictions). Here,
the indictment says that Partee was charged with selling cocaine, the plea transcript indicates
that Partee was pleading to the indictment as charged, and the judgment of conviction notes
that Partee was convicted of counts one and two of the indictment, not lesser included
4
Subsection (a) of the Georgia statute prohibited “any person to . . . possess . . . any controlled
substance” whereas subsection (b) prohibited “any person to . . . sell . . . any controlled substance.” GA.
CODE ANN. § 16‐13‐30. For violations of subsection (a), the term of imprisonment could be “not less than
two years nor more than 15 years,” whereas for violations of subsection (b), the term could be “not less
than five years nor more than 30 years.” Id.
5
Of course, Partee, who as we noted the first time around probably “caught a break,” had no
incentive to appeal. The same probably cannot be said for the state of Georgia.
No. 09‐2548 Page 5
offenses. Those pieces of the state court record resolve this appeal. This conclusion moots
the other arguments Partee presses this second time around.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
