NONPRECEDENTIAL DISPOSITION
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 March 1, 2011
Decided April 21, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10‐3277
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Indiana, Hammond Division.
v.
No. 2:10cr2‐001
RICKEY SCOTT, JR,
Defendant‐Appellant. Rudy Lozano,
Judge.
O R D E R
After a plea of guilty to possession of a firearm by a felon,
18 U.S.C. § 922(g)(1),
Rickey Scott was sentenced as an armed career criminal to 15 years in prison,
id. § 924(e). On
appeal, he argues only that the district court should not have turned to § 924(e) for his
sentence, because his prior convictions do not qualify as violent felonies. Accordingly, he
believes, his sentence should have been capped at 10 years, which is the maximum
permitted for violations of
18 U.S.C. § 922(g)(1) in cases not governed by § 924(e).
Scott committed the three prior convictions on which the court relied on separate
occasions, but he pleaded guilty to all three on the same day in 1995. Two of the three
convictions are for “criminal recklessness” offenses under IND. CODE § 35‐42‐2‐2; the third is
No. 10‐3277 Page 2
for “intimidation” under IND. CODE § 35‐45‐2‐1. The issue before us is whether each one
satisfies the definition of “violent felony” set forth in
18 U.S.C. § 924(e)(2)(B), which reads as
follows:
[T]he term “violent felony” means any crime punishable by imprisonment for
a term exceeding one year . . . that–
(i) has as an element the use, attempted use, or threatened use
of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential
risk of physical injury to another[.]
For a person who violates § 922(g) after accumulating three previous convictions for a
violent felony (or a serious drug offense, not at issue here), the Armed Career Criminal Act
(ACCA) provides for a minimum sentence of 15 years.
18 U.S.C. § 924(e)(1); see United States
v. High,
576 F.3d 429, 429 (7th Cir. 2009).
A sentencing court must employ a “categorical” approach when deciding if a crime
qualifies as a violent felony. This restricts the materials that the court may consult to the fact
of conviction and the statutory definition of the crime; the court may not delve deeper and
consider the circumstances of the particular offense. James v. United States,
550 U.S. 192, 202
(2007); United States v. Woods,
576 F.3d 400, 403 (7th Cir. 2009). If, however, the same statute
covers multiple offenses, some but not all of which are violent felonies, the sentencing court
is authorized to look at the terms of the charging document and any judicial record in which
the defendant confirmed the factual basis for a guilty plea. Shepard v. United States,
544 U.S.
13, 25‐26 (2005); United States v. Dismuke,
593 F.3d 582, 589 (7th Cir. 2010), petition for cert.
filed,
79 U.S.L.W. 3062 (U.S. July 19, 2010) (No. 10‐109); Woods,
576 F.3d at 404. It does so
solely for the purpose of determining which crime under the statute the defendant
committed; the sentencing court may not rely on this “modified categorical” approach for
details about the way in which the defendant committed the crime. Dismuke,
593 F.3d at
589; Woods,
576 F.3d at 404‐06. We consider Scott’s two criminal recklessness offenses
together (as Scott does), and then turn to his intimidation offense.
1. Criminal Recklessness. Both of these convictions were based on IND. CODE § 35‐42‐2‐
2. The charging information in Scott’s first case alleges that he “recklessly, knowingly or
intentionally, and while armed with a handgun, a deadly weapon,” fired the gun “in the
direction” of the victim and “created a substantial risk of bodily injury.” In the stipulated
factual basis for his guilty plea, Scott acknowledged that the victim “encountered” him and
that Scott “approached the victim and fired six shots from a handgun at the victim,”
No. 10‐3277 Page 3
creating a substantial risk of bodily injury to the victim. Scott’s second criminal recklessness
conviction proceeded on the basis of a charging information alleging that Scott “recklessly,
knowingly or intentionally” inflicted “serious bodily injury” on the victim. In the stipulated
factual basis, Scott admitted that he and three other inmates “approached the victim in the
victim’s jail cell” and “proceeded to kick the victim about the victim’s head and body,”
causing the victim to lose consciousness and suffer a broken shoulder bone.
Scott argues that neither of these convictions qualifies as a violent felony under the
residual clause because, he says, neither one was purposeful. (He does not argue that those
two convictions did not involve violent and aggressive conduct.) As relevant here, a person
is guilty of criminal recklessness under Indiana law if he “recklessly, knowingly, or
intentionally performs . . . an act that creates a substantial risk of bodily injury to another
person.” IND. CODE § 35‐42‐2‐2(b)(1). The offense is a Class D felony if the defendant is
armed with a deadly weapon, id. § 35‐42‐2‐2(c)(2)(A), or inflicts serious bodily injury on
another person, id. § 35‐42‐2‐2(d)(1).
In United States v. Smith,
544 F.3d 781 (7th Cir. 2008), we concluded that two
convictions for criminal recklessness under the same Indiana statute were not violent
felonies. Importantly, however, this was because the statute criminalizes both purposeful
(i.e., intentional) and non‐purposeful (i.e., reckless) conduct.
Id. at 786‐87. The defendant in
Smith had never confessed to acting intentionally, and he was found guilty by juries that
were not asked to resolve this question.
Id. at 787. Furthermore, since the pertinent materials
under the categorical approach did not reveal whether the defendant had been convicted of
violating a part of the statute that addresses a violent felony, we concluded that the
convictions could not be used to enhance the defendant’s sentence under § 924(e). Id. at 786‐
87.
Scott argues that Smith controls here, but his case does not resemble Smith so much
as it does United States v. Clinton,
591 F.3d 968 (7th Cir. 2010), cert. denied,
131 S. Ct. 246
(2010). In Clinton, we considered whether the defendant had been convicted under the
“intentional” branch of the same Indiana criminal recklessness statute. After looking at the
defendant’s plea colloquy, in which he admitted stabbing his victim “too many times,” we
concluded that he had been convicted of intentionally stabbing the victim and that his
offense was a crime of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2). Clinton,
591 F.3d at 972‐74.
Similarly, the factual bases for Scott’s guilty pleas demonstrate that both of his
crimes were purposeful. Scott stipulated that he approached his first victim and fired six
shots “at” him, and he stipulated that he approached his second victim and kicked “about
the victim’s head and body,” causing the victim to suffer a broken bone and lose
No. 10‐3277 Page 4
consciousness. These admissions show that in both cases Scott intended his acts and their
consequences, and therefore they establish that he violated the intentional portion of the
statute. See Clinton,
591 F.3d at 973.
2. Intimidation Conviction. As we mentioned earlier, this conviction was under IND.
CODE § 35‐45‐2‐1. The charging information alleges that, “while drawing or using a knife, a
deadly weapon,” Scott communicated a threat to the victim with the intent that the victim
“be placed in fear of retaliation” for holding him in police custody. Scott stipulated that he
warned the victim—a police officer who was transporting him following his arrest—“You
are a marked man. I’m going to kill you as soon as I get a chance.” At the police station,
Scott repeated the threat and told the officer to remove Scott’s handcuffs so that Scott could
“kick his ass”; as Scott was being uncuffed, he pulled out a pocket knife and lunged at the
officer. Scott admitted that he threatened the officer with the intent that the officer “be
placed in fear of retaliation” for lawfully holding Scott in detention.
Scott concedes that a person is guilty of intimidation under Indiana law if he
communicates a threat to another person “with the intent . . . that the other person be placed
in fear of retaliation for a prior lawful act.” IND. CODE § 35‐45‐2‐1(a)(2). The statute defines
“threat” to include “an expression, by words or action, of an intention to . . . unlawfully
injure the person threatened or another person, or damage property.” Id. § 35‐45‐2‐1(c)(1).
Intimidation ordinarily is a misdemeanor, id. § 35‐45‐2‐1(a), but it can be a Class D felony,
id. § 35‐45‐2‐1(b)(1), or, if the defendant “draws or uses a deadly weapon,” a Class C felony,
id. § 35‐45‐2‐1(b)(2).
We held in United States v. Ellis,
622 F.3d 784, 796‐800 (7th Cir. 2010), the case on
which Scott is relying, that Class D felony intimidation of a police officer as prohibited by
IND. CODE § 35‐45‐2‐1(a)(2), (b)(1)(B)(i) is not a violent felony, because the “threatened use of
physical force against the person of another” is not an element of the crime, see
18 U.S.C.
§ 924(e)(2)(B)(i). (The government in Ellis waived the argument that the conviction was a
violent felony under the residual clause in § 924(e)(2)(B)(ii). 622 F.3d at 800.) Ellis rests on an
understanding of the term “injure” in § 35‐45‐2‐1(c)(1) as one that covers both physical and
nonphysical injuries. Ellis, 622 F.3d at 798‐99. Scott contends, in light of Ellis, that a
conviction under § 35‐45‐2‐1 (or at least a conviction for a threat as defined by § 35‐45‐2‐
1(c)(1)) cannot be a violent felony.
Although Scott and the defendant in Ellis both threatened police officers, Scott’s use
of a deadly weapon distinguishes the cases. The Indiana courts have treated the act of
drawing or using a deadly weapon as an “element” of intimidation when charged as a Class
C felony under subsection (b)(2). See Ransley v. State,
850 N.E.2d 443, 446 (Ind. Ct. App.
2006); Casey v. State,
676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997). Scott does not dispute that
No. 10‐3277 Page 5
his offense was a Class C felony. And the requirement that a deadly weapon be used or
drawn while threatening another person satisfies the requirement of § 924(e)(2)(B)(i) that the
crime have as an element “the use, attempted use, or threatened use of physical force
against the person of another,” because using or drawing a deadly weapon necessarily
conveys a threat of physical force. See United States v. Taylor,
630 F.3d 629, 634 (7th Cir.
2010); see also United States v. Jennen,
596 F.3d 594, 600‐02 (9th Cir. 2010), cert. denied,
130 S.
Ct. 3525 (2010). (We treat analyses of violent felonies under § 924(e) and crimes of violence
under the Sentencing Guidelines as interchangeable. See Woods,
576 F.3d at 403‐04.)
Scott points out that drawing a deadly weapon, rather than using it, is enough for
conviction under this particular portion of the statute. He then suggests that merely
drawing a weapon does not create a threat of physical force—that is to say, force capable of
causing physical pain or injury to the victim. See Johnson v. United States,
130 S. Ct. 1265,
1271 (2010); Flores v. Ashcroft,
350 F.3d 666, 672 (7th Cir. 2003). But that argument ignores the
fact that a conviction under the statute also requires a threat to injure the victim. A threat to
injure coupled with the presence of a deadly weapon raises at least the threat of force that
would cause physical pain or injury. See United States v. Raszkiewicz,
169 F.3d 459, 468 (7th
Cir. 1999) (holding that, in context of bank robbery, pointing unknown object at victim can
constitute threat of death, even if unaccompanied by threatening statement).
Moreover, even if Scott’s intimidation offense does not amount to a violent felony
under the “elements” approach of
18 U.S.C. § 924(e)(2)(B)(i), it qualifies as one under the
residual clause of § 924(e)(2)(B)(ii), which applies to certain crimes that present “a serious
potential risk of physical injury to another,” and that are purposeful, violent, and
aggressive. See Begay v. United States,
553 U.S. 137, 144‐48 (2008); Dismuke,
593 F.3d at 590.
Scott’s intimidation offense was certainly purposeful; the statute requires that the crime be
committed “with the intent” that the victim be placed in fear of retaliation. IND. CODE § 35‐
45‐2‐1(a). It was also violent and aggressive; although intimidation while drawing or using
a deadly weapon may not be immediately violent, it is a characteristically aggressive
offense with the potential for violence and injury. See Dismuke,
593 F.3d at 594; see also
United States v. Chapple,
942 F.2d 439, 442 (7th Cir. 1991) (“A prior conviction involving any
overt act by a defendant pointing a weapon, drawing a weapon, openly displaying a
weapon, brandishing a weapon, holding a weapon, gesturing towards a weapon, or any act
other than mere passive possession, would . . . present a sufficient potential for physical
injury to constitute a crime of violence.”).
We are unpersuaded by Scott’s argument that Ellis implies that intimidation with a
deadly weapon cannot be a violent felony under the residual clause because the offense
presents a risk of non‐physical injury as well as physical injury. Section 924(e)(2)(B)(ii) does
not say that it applies to conduct that presents only a risk of physical injury. Moreover,
No. 10‐3277 Page 6
Scott’s argument is difficult to reconcile with James, which places within the scope of the
residual clause offenses that “in the ordinary case” present a risk of physical injury, even if
they could be committed without such risk.
550 U.S. at 208‐09.
Accordingly, we AFFIRM the judgment of the district court.
