United States v. Brown, Carnell

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-3521 & 00-3847
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
CARNELL BROWN,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 00-CR-50005--Philip G. Reinhard, Judge.
Argued September 13, 2001--Decided December 7, 2001
Before RIPPLE, ROVNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. A few years ago,
we observed that defendants who receive
favorable calls under the federal
sentencing guidelines should think twice
(actually we said more than twice) about
appealing their cases when they have
little likelihood of success. United
States v. Bradley, 165 F.3d 594 (1999).
That caution was appropriate, we thought,
because a defendant’s appeal often draws
a cross-appeal by the government of the
sentence imposed where it otherwise might
not be inclined to appeal. This case
comes to us in precisely the same fashion
as did Bradley, where we issued our
cautionary advice. Carnell Brown appeals
his conviction on a charge of being a
felon in possession of a firearm (18
U.S.C. sec. 922(g)), but his appeal has
little merit. On the other hand, the
government’s cross-appeal on a sentencing
issue, which may or may not have been
filed if Brown hadn’t appealed (we’ll
never know for sure), has some bite. For
the reasons we are about to state, we
affirm Brown’s conviction but vacate his
sentence and remand for further
proceedings.
Brown’s appeal can be quickly resolved.
Here are the only facts we really have to
know.
A police officer stopped a car Brown was
driving around midnight on a December
evening in an area of Rockford, Illinois,
where considerable criminal activity--
including the shooting of a police
officer a few months before--takes place.
Brown’s car was stopped because its
license plate, which was lying down in
the area of the rear window, was not
visible. When the car was stopped, the
officer said Brown appeared to be
nervous, repeatedly glanced backwards,
and seemed to be moving his hands around
his lap area. When Brown could not
produce a driver’s license (apparently it
was suspended) and had no other
identification, he was told to step out
of the car. Brown complied with the
request but made a quick move, which
caused the officer to decide to pat him
down. The pat-down revealed a loaded .38
caliber Smith & Wesson revolver to be
lurking in the right front pocket of the
jacket Brown was wearing.
A nighttime traffic stop, especially in
an area where crime is not a stranger, is
more fraught with potential danger to an
officer than would be a stop during the
light of day. And a stop by a lone
officer at night is even more dangerous.
Add to this Brown’s movements in the car,
his failure to produce a license, and his
quick movement, and we have, from the
officer’s perspective, more than what is
necessary to conclude that a limited pat-
down for weapons was a permissible and
prudent course for the officer to take to
better ensure his safety. As Terry v.
Ohio, 392 U.S. 1, holds, if the facts
demonstrate that "a reasonably prudent
man in the circumstances would be
warranted in the belief that his safety .
. . was in danger," a limited search for
a weapon is permissible. It was
permissible here. All this means that the
district judge did not err, as the
defendant now argues, when he denied a
motion to suppress the revolver from the
evidence presented at the trial which
resulted in Brown’s conviction.
Brown also makes a half-hearted attack
on the sufficiency of the evidence
against him, but once the gun was
received, any attempt to claim--as Brown
did to the jury--that he didn’t
"knowingly" possess it was feeble. The
evidence was clearly sufficient.
Brown’s final argument also comes up
dry. When he was sentenced, his guideline
range was increased by 2 levels for
obstructing justice under U.S.S.G.
sec.3C1.1 because the judge determined
that Brown lied when he testified that he
told the officer "I don’t know where that
gun come (came) from" as it was removed
from his jacket. The arresting officer
gave contrary testimony during the trial,
noting that Brown said nothing and
expressed no surprise when the gun was
discovered. The judge’s determination
that Brown lied, a finding of fact
reviewable only for clear error, will not
be disturbed.
Which brings us to the government’s
cross-appeal. The federal sentencing
guideline scheme calls for more severe
sentences when defendants have criminal
records. In addition to the general
ratcheting up of a sentence based on a
defendant’s criminal history under the
guideline grid, substantially increased
penalties are called for under several
laws, including the Armed Career Criminal
Act, 18 U.S.C. sec. 924(e), which is
involved in this case. Under that Act, a
third conviction for a "violent felony"
triggers a greater sentence, and the
issue presented by the government’s
cross-appeal is whether Brown had three
qualifying convictions. Brown concedes
that he has two qualifying "violent
felony" prior convictions,/1 but he
denies that a third conviction, one
recorded in 1984, qualifies as a violent
felony under sec. 924(e). The district
court agreed with Brown on this issue and
declined to impose sentence under the
Armed Career Criminal Act.
The Armed Career Criminal Act defines a
"violent felony" as including any crime
that "otherwise involves conduct that
presents a serious potential risk of
physical injury to another." 18 U.S.C.
sec. 924(e)(2)(B)(ii). Brown’s third
felony involved a violation of the
Illinois pandering statute, 720 ILCS sec.
5/11-16.
Everyone pretty much knows what a
panderer is--quaint language in a 70-
year-old Kentucky case colorfully tells
us that he is someone "who procures for
another the gratification for his lusts.
He is a panderer who solicits trade for a
prostitute, or lewd woman." Lutes v.
Commonwealth, 33 S.W.2d 620 (Court of
Appeals of Kentucky, 1930). The Illinois
statute under which Brown was convicted
describes two kinds of panderers, one
being someone who merely "arranges" a
situation in which a person may practice
prostitution and the other being someone
who "compels" a person to become a
prostitute. Although both types of
panderers must act "for money" and both
are guilty of Class 4 felonies in
Illinois if they do so, it is obvious
that the "compeller" is a more serious
violator of the law than a mere
"arranger." Brown was charged and
convicted under the "compelling" prong of
the statute.
The very able district court in this
case concluded that Brown’s pandering-by-
compulsion conviction was not a violent
felony because "the potential risk of
physical injury to another is not always
present in this type of offense." The
judge’s conclusion was reached after
comparing Brown’s conviction to the prior
convictions at issue in United States v.
Shannon, 110 F.3d 382 (7th Cir. 1997) (en
banc) (holding that statutory rape of 13-
year-old girl is violent felony), and
United States v. Thomas, 159 F.3d 296
(7th Cir. 1998) (holding that statutory
rape where age of victim did not appear
on charging document was not a violent
felony). Focusing on the age of the
victim in the two cases, the judge held
that Brown’s conviction "falls closer to"
the conviction in Thomas.
We respectfully disagree with the
district judge’s conclusion because we
think it ignores the compelled,
nonconsensual nature of the prostitute’s
acts under the compelling prong of the
Illinois pandering law. We think forced
nonconsensual sex with strangers is
"conduct that presents a serious
potential risk of physical injury to
another" as proscribed under the
"otherwise" clause of the Armed Career
Criminal Act.
We have broadly interpreted the
"otherwise" clause of sec. 924(e) to
include certain types of even nonforcible
consensual sex, such as certain
variations of statutory rape. Shannon,
110 F.3d at 387. In Thomas, we observed
that compelled, "unconsented-to sex" with
strangers is, "at the least, battery."
159 F.3d at 299. It really is more than
that in our case because the prostitute,
acting under compulsion, is not capable
of giving "meaningful consent" to paid
sexual acts. As we have explained, "[a]ll
forcible sex offenses are crimes of
violence," but "it does not follow that
no nonforcible ones are." Shannon, 110
F.3d at 387. Pandering by compulsion may
not always involve actual force, but it
is always a coerced sex offense,
tantamount, we think, to a form of rape.
It is thus a "violent felony" under sec.
924(e)(2)(B)(ii) because the compelled
sex act itself causes a "physical injury"
to the prostitute acting, at least in
part, not on her own volition.
We recently held that a sexual assault
of a minor, though not involving
intercourse, was nevertheless a "crime of
violence" under U.S.S.G. sec.2L1.2,
comment. (n.5). United States v.
Martinez-Carillo, 250 F.3d 1101, 1105
(7th Cir. 2001). A crime of violence
under the guidelines includes a felony
that "presents a serious potential risk
of physical injury to another," U.S.S.G.
sec.4B1.2(a), a definition similar to the
one for violent felonies under sec.
924(e)(2)(B)(ii). The defendant in
Martinez-Carillo, pointing to Shannon,
argued that his offense was not a "crime
of violence" because "inserting a finger
into a vagina, could not possibly lead to
the pregnancy of the child." Martinez-
Carillo, 250 F.3d at 1105. We rejected
that argument and distinguished Shannon
on the ground that the prior conviction
in that case was classified as statutory
rape while the prior conviction then
under consideration "punishes more than
sexual intercourse with a minor [and] is
concerned with the nature of the
relationship between the defendant and
the child-victim." Id. We explained that
"[d]espite the general similarities
between" the charges in Martinez-Carillo
and Shannon, the "statute creates a
critical difference in our analysis
because each case ’must be considered one
by one to see whether the conduct
punished by the particular law under
which the defendant was convicted
involves a serious risk of physical injury.’"
Id. at 1105-06.
 The Illinois statute prohibiting
pandering by compulsion punishes more
than unlawful sexual intercourse. It is
concerned with the nature of the
relationship between a panderer and a
prostitute--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 as discussed in Shannon
and Thomas, necessarily involves
unconsented-to activity that is, by
itself, a type of physical injury.
Collateral injuries, such as sexually
transmitted diseases, only make it more
clear that the offense of pandering by
compulsion involves "a serious potential
risk of physical injury."
Finally, the judge’s conclusion that
"the potential risk of physical injury to
another is not always present in this
type of offense" ignores the plain
language of the statute, which only
requires a "potential risk." Actual
physical injury need not be present. But
in a case of pandering by compulsion, the
"risk" of physical injury is always
present, and that satisfies the
requirement of sec. 924(e).
There may be other reasons--like the
risk of contracting sexually transmitted
diseases--for finding that pandering by
compulsion qualifies as a violent felony
under sec. 924(e)’s "otherwise" clause,
but we need not consider them here. With
what we have said, Brown qualified for
treatment as an armed career criminal,
and he should have been sentenced as
such.
One final matter before the book on this
case is closed. On May 21, 2001, we
issued an order to Brown’s attorney, Mark
A. Byrd, directing him to show cause "why
disciplinary action should not be taken
against him pursuant to Circuit Rule
31(c)(1) and Fed. R. App. P. 46(c)." We
need not repeat here what was said in
that order.
Byrd responded to our order. To his
credit, he acknowledges that his actions
in this case are not defensible, and he
has, to use his words, refused to "insult
this Court with outlandish and
unbelievable excuses or explanations" for
his conduct. He "apologizes to this Court
for his misconduct" and promises that "if
given an opportunity, he can and will
conform his conduct to the requisites of
Circuit Rule 26, as well as all other
rules of this Court."
Based on the entire record, we believe
a reprimand is appropriate. Attorney
Byrd, accordingly, is reprimanded. As to
Brown’s appeal and the government’s
cross-appeal, the judgment of conviction
is AFFIRMED, Brown’s sentence is VACATED,
and the case is REMANDED for resentencing.
FOOTNOTE
/1 Brown’s criminal record, reproduced in the pre-
sentence report, is horrid. In addition to an
attempted murder conviction in 1991 and an Illi-
nois "armed violence" conviction in 1993, his rap
sheet is peppered with multiple convictions for
things like theft and battery dating back to his
days as a teenager.