United States v. Cole, Brian K.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1301
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN K. COLE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01 CR 20053—Michael P. McCuskey, Judge.
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ARGUED JULY 9, 2002—DECIDED AUGUST 1, 2002
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Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Brian Cole pleaded guilty to dis-
tributing five or more grams of cocaine base in violation
of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii). At sentenc-
ing the district court determined that Mr. Cole qualified
as a career offender based on two prior convictions. Mr.
Cole appeals, arguing that the district court erred in sen-
tencing him as a career offender. We affirm.
I
BACKGROUND
In June 2001, federal authorities in the Central District
of Illinois charged Mr. Cole with five counts of distribut-
2 No. 02-1301
ing cocaine and cocaine base. Mr. Cole ultimately pleaded
guilty to Count 2 of the indictment, which charged him
with distributing five or more grams of cocaine base. The
Presentence Investigation Report (“PSR”) revealed that Mr.
Cole had a lengthy criminal record, including two felony
convictions that potentially qualified him as a career of-
fender. See U.S.S.G. § 4B1.1. Under the guidelines, a defen-
dant is deemed a career offender and faces a steeper sen-
tence if he has two or more prior felony convictions for
either controlled substance offenses or crimes of violence.
See U.S.S.G. §§ 4B1.1, 4B1.2(a). The PSR showed that Mr.
Cole had a prior state conviction for unlawful delivery of
a controlled substance and a prior state conviction for
“mob action.”
At sentencing Mr. Cole conceded that his state drug con-
viction qualified as a controlled substance offense but
argued that the “mob action” offense was not a crime of
violence. See id. § 4B1.2(a). In the state mob action case, Mr.
Cole pleaded guilty to acting with a group of people who
shot out the windows of several vehicles. Mr. Cole argued
at sentencing that the mob action offense involved only
damage to property and thus did not constitute a crime
of violence under the guidelines. The district court dis-
agreed, concluding that discharging a firearm in a popu-
lated area posed a “serious potential risk of physical injury”
to others and therefore constituted a crime of violence.
Cole’s Short App. at 13. Based on the mob action convic-
tion and the state drug conviction, the court concluded
that Mr. Cole qualified as a career offender.
Because Mr. Cole’s current drug offense carries a maxi-
mum life sentence, see 21 U.S.C. § 841(b)(1)(B), the court
calculated his offense level at 37. See U.S.S.G. § 4B1.1. Based
on his guilty plea, the court reduced Mr. Cole’s offense level
by three points for acceptance of responsibility. Mr. Cole’s
No. 02-1301 3
total offense level, combined with the criminal history
category of VI that automatically applies to career offenders,
yielded a sentencing range of 262 to 327 months. On the
Government’s motion the court granted Mr. Cole a three-
level downward departure for substantial assistance. See
U.S.S.G. § 5K1.1. This yielded a sentencing range of
188 to 235 months. The court sentenced Mr. Cole to 200
months’ imprisonment, eight years’ supervised release
and a $100 special assessment. Mr. Cole filed a timely no-
tice of appeal.
II
ANALYSIS
Mr. Cole raises one argument on appeal, namely, that
the district court erred in sentencing him as a career of-
fender. Whether the district court properly sentenced Mr.
Cole as a career offender is a question of law we review
de novo. See United States v. Hoults, 240 F.3d 647, 650 (7th
Cir. 2001). Under the guidelines, a defendant qualifies as
a career offender if three criteria are met: (1) the defendant
is over 18 at the time he committed the instant offense; (2)
the instant offense is a felony that constitutes either a crime
of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions for either
crimes of violence or controlled substance offenses. See
U.S.S.G. § 4B1.1.
Here, the first two elements are not in dispute. Mr. Cole
was more than 18 years old when he committed the in-
stant offense, and his offense of conviction, distributing
five or more grams of cocaine base, qualifies as a con-
trolled substance offense. See U.S.S.G. § 4B1.2(b); 21 U.S.C.
§ 841(a)(1), § 841(b)(1)(B)(iii). With respect to the third
element, prior felony convictions, the parties agree that
4 No. 02-1301
Mr. Cole’s prior conviction for unlawful delivery of a con-
trolled substance qualifies as a controlled substance offense
for purposes of § 4B1.1. The only dispute on appeal is
whether Mr. Cole’s state mob action conviction constitutes
a “crime of violence” under the guidelines. The sentenc-
ing guidelines define a “crime of violence” as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year that (1) has
as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(2) is burglary of a dwelling, arson, or extortion, in-
volves use of explosives, or otherwise involves con-
duct that presents a serious potential risk of physical
injury to another.
U.S.S.G. § 4B1.2(a). In determining whether a prior con-
viction constitutes a crime of violence, the district court
must confine its inquiry to the face of the charging docu-
ment and the statutory definition of the offense. See Hoults,
240 F.3d at 650; United States v. Shannon, 110 F.3d 382, 384
(7th Cir. 1997).
Here, Mr. Cole was charged with violating the Illinois
mob action statute, 730 ILCS 5/25-1. Mob action constitutes
a felony for purposes of the guidelines because the offense
is punishable by a maximum of three years’ imprisonment.
See § 4B1.2(a); 730 ILCS 5/5-8-1(a)(7). The mob action stat-
ute does not have as a necessary element the use or threat-
ened use of physical force against a person. See U.S.S.G.
§ 4B1.2(a)(1). Rather, the statute encompasses both violent
and nonviolent offenses, criminalizing “the use of force
or violence disturbing the peace by 2 or more persons,”
as well as the more general “assembly of 2 or more persons
to do an unlawful act.” See 730 ILCS 5/25-1. Nor is mob
action one of the enumerated offenses in § 4B1.2(a)(2) (bur-
glary of a dwelling, arson, extortion, or an offense involv-
No. 02-1301 5
ing use of explosives). The remaining question, then,
is whether Mr. Cole’s offense “otherwise involves con-
duct that presents a serious potential risk of physical injury
to another.” See id. at § 4B1.2(a)(2) (emphasis added); Hoults,
240 F.3d at 650.
In the mob action case, the state information alleged
that Mr. Cole “knowingly, by the use of force and vio-
lence, disturbed the public peace . . . while acting to-
gether with one or more persons without authority of
law, shot out windows and struck the motor vehicles of
Judy Green, Andy Grimm, and J.H. Stewart, thereby in-
flicting injury to the property of another.” Cole’s Short App.
at 21. Mr. Cole argues in his brief that the mob action
offense is not a crime of violence because “the conduct
involved only violence against property and not to people.”
Cole’s Br. at 8.
We have held, however, that an offense posing a risk
of harm to persons may constitute a crime of violence
even when the defendant did not intend to cause such
harm. In United States v. Rutherford, 54 F.3d 370 (7th Cir.
1995), we observed that reckless criminal acts can be just
as dangerous as intentional conduct. Accordingly, we con-
cluded that the “otherwise” clause of § 4B1.2(a)(2) in-
cludes crimes of recklessness where the crime, by its na-
ture, presents a substantial risk of harm to others. See id.
at 376 (drunk driving presents serious potential risk of
physical injury to another and thus qualified as a crime
of violence); see also United States v. Jernigan, 257 F.3d 865,
866-67 (8th Cir. 2001) (offense of negligent homicide consti-
tuted crime of violence); United States v. Jackson, 177 F.3d
628, 632-33 (7th Cir. 1999) (criminal recklessness offense
constituted crime of violence).
As the district court concluded here, discharging a fire-
arm is an inherently risky act. Even though shots were not
6 No. 02-1301
aimed at a particular person, the actions of the mob could
easily have caused an injury; the case law is replete with
examples of bystanders being hurt by ricocheting bullets.
See, e.g., Medeiros v. O’Connell, 150 F.3d 164, 166 (2d Cir.
1998) (bullet fired by state trooper ricocheted off van and
hit bystander); United States v. Page, 84 F.3d 38, 41 (1st Cir.
1996) (bullet aimed at ground ricocheted up and struck
victim); Johnson v. United States, 628 F.2d 187, 192 (D.C. Cir.
1980) (noting danger posed to bystanders from ricochet-
ing bullets fired by federal agent); United States v. Molina,
963 F. Supp. 213, 214 (E.D.N.Y. 1997) (during bank robbery,
bystander was struck by ricocheting bullet from gun of
armored car guard).
Because of the inherent risks associated with firearms,
courts have concluded that firing—or in some cases even
pointing—a firearm constitutes a crime of violence. See
United States v. Chapple, 942 F.2d 439, 441 (7th Cir. 1991);
United States v. McNeal, 900 F.2d 119, 121 (7th Cir. 1990); see
also United States v. Rutledge, 33 F.3d 671, 674 (6th Cir. 1994)
(firing gun in direction of coworker, even though in jest,
constituted crime of violence because it placed coworker
in imminent danger of serious injury); United States v.
Thompson, 891 F.2d 507, 510 (4th Cir. 1989) (pointing firearm
at another person constituted crime of violence because
risk of physical force was “invariably present”). The state
charging document here alleges that Mr. Cole, along with
others, used “force and violence” to shoot out the car win-
dows. The mere act of firing at a vehicle poses some in-
herent risk to others, for how could the shooter be sure that
the vehicle is unoccupied? Although the indictment it-
self does not describe whether people were present dur-
ing the shooting, we have another source—one to which
Mr. Cole did not object—that clarifies any ambiguity in the
charging document about the dangerous nature of Mr.
Cole’s conduct.
No. 02-1301 7
Ordinarily, a sentencing court must confine itself to the
charging document and statutory definition of the of-
fense; we have, however, allowed some deviation from
this rule when both of these sources prove ambiguous.
In Shannon, while affirming the general rule, our court
sitting en banc observed that a court may look beyond
the charging document in cases where it is “otherwise
impossible to determine the proper classification of the
offense.” See Shannon, 110 F.3d at 384. A court may look
to such evidence only when doing so does not require a
hearing to resolve contested issues of fact. Id. In Shannon,
we cited with approval prior cases in which the court
looked to undisputed extrinsic evidence to resolve ambigu-
ity in a charging document. See id. (citing United States v.
Sebero, 45 F.3d 1075, 1078 (7th Cir. 1995); United States v.
Spell, 44 F.3d 936, 939 (11th Cir. 1995); United States v.
Smith, 10 F.3d 724, 733-34 (10th Cir. 1993)). For example, in
Sebero, we found no error in the district court’s examina-
tion of a presentence report which “merely helped clarify
a potential ambiguity in the charging document,” since
the facts in the report did not contradict any of the other
evidence presented. Sebero, 45 F.3d at 1078; see also Xiong
v. INS, 173 F.3d 601, 606 (7th Cir. 1999) (considering un-
disputed facts outside indictment to determine wheth-
er offense constituted crime of violence under 18 U.S.C.
§ 16(b) because indictment itself was ambiguous).
At sentencing the government introduced a transcript
from Mr. Cole’s state plea hearing to shed light on the un-
derlying events in the mob action case. Mr. Cole’s attorney
had summarized the factual basis for his guilty plea as
follows:
[B]asically what the evidence would show is there was
a fight involving Mr. Cole and one of the named vic-
tims; that the other people or other Co-Defendants
8 No. 02-1301
in this case became involved in that fight. Subsequent
to that fight, shots were fired in the manner charged
in the information in this case. Some of the witnesses
said Mr. Cole did it. Mr. Cole has denied that, but
there is evidence that would make him guilty of that
or potentially make him guilty of that as a co-con-
spirator or part of the group that was involved in this
action.
Cole’s Short App. at 22-23. Mr. Cole did not object to the
transcript at sentencing. Indeed, Mr. Cole relied on the
transcript to support his argument that the mob action
offense could not be a crime of violence because he disputed
that he was the actual shooter. Mr. Cole makes a similar
argument on appeal and attaches a copy of the state tran-
script in support. The state transcript shows that other
people were present in the area at the time of the shoot-
ing; the incident occurred after a fight, and there were oth-
er people near enough to identify Mr. Cole as the shoot-
er. Accordingly, Mr. Cole’s mob action offense posed a
“serious potential risk of physical injury to another” and
therefore constitutes a crime of violence. See U.S.S.G.
§ 4B1.2(a).
Mr. Cole raises a somewhat undeveloped argument in
his brief that the mob action offense cannot be considered
a crime of violence because the charging document and
plea hearing transcript are “insufficient to demonstrate
beyond a reasonable doubt” that he himself fired any shots.
Cole’s Br. at 11. Without explanation, Mr. Cole cites Ap-
prendi v. New Jersey, 530 U.S. 466 (2000), in support of this
argument. Apprendi, however, does not affect sentenc-
ing guidelines determinations like the one at issue here;
rather, it is “limited to situations in which findings affect
statutory maximum punishments.” United States v. Behrman,
235 F.3d 1049, 1054 (7th Cir. 2000) (emphasis in original).
No. 02-1301 9
Moreover, whether Mr. Cole fired any shots during the
incident is beside the point. Mr. Cole concedes that he was
“accountable for the actions of the group.” His active
participation in a violent mob posed a danger to others
regardless of who in the group actually fired the shots.
Conclusion
For all of the foregoing reasons, the judgment of the
district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-1-02