United States v. Elleck Christopher Vesey ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3068
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELLECK CHRISTOPHER VESEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:18-cr-40048-SLD-1 — Sara Darrow, Chief District Judge.
____________________
ARGUED MAY 20, 2020 — DECIDED JULY 21, 2020
____________________
Before SYKES, Chief Judge, and RIPPLE and KANNE, Circuit
Judges.
RIPPLE, Circuit Judge. Elleck Christopher Vesey pleaded
guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g). He was sentenced to 72 months’ im-
prisonment. He now challenges his sentence, contending
that the district court based its sentencing calculations on an
erroneous determination that his prior conviction for Illinois
aggravated assault was a “crime of violence” within the
2 No. 19-3068
meaning of the United States Sentencing Guidelines. Because
the district court correctly classified Mr. Vesey’s prior con-
viction as a crime of violence, we affirm the judgment of the
district court.
I
BACKGROUND
Mr. Vesey was a passenger in a vehicle that was stopped
by police when its driver failed to signal. The driver, whose
license was revoked, was arrested. Officers conducted an in-
ventory search of the car and discovered a baggie of mariju-
ana on the driver’s side and a white plastic bag on the pas-
senger’s side. After Mr. Vesey identified the white plastic
bag as his, an officer stated that he needed to search the bag.
Mr. Vesey fled from the vehicle, tripped after running a
short distance, and was arrested. The white plastic bag con-
tained a loaded firearm.
Mr. Vesey pleaded guilty to being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).
Prior to sentencing, the Probation Office prepared a presen-
tence investigation report (“PSR”). The PSR calculated a base
offense level of 20 because Mr. Vesey had a prior conviction
for a crime of violence, namely, Illinois aggravated assault
under 720 ILCS 5/12-2. According to the PSR, Mr. Vesey
“swung a shower rod at Christopher Serra, a correctional of-
1
ficer performing his official duties … .”
After subtracting 3 levels for acceptance of responsibility,
the PSR calculated a total offense level of 17. Based on this
1 R.19 at 12.
No. 19-3068 3
offense level and a criminal history category of VI, the
guidelines range was 51 to 63 months’ imprisonment.
Mr. Vesey objected, contending that his prior conviction was
not a “crime of violence” and that, therefore, his base offense
level should have been 14 rather than 20. The district court
overruled the objection. It held that Mr. Vesey’s aggravated
assault conviction was a crime of violence and that the ap-
plicable guidelines range was 51 to 63 months’ imprison-
ment.
The court then turned to the 18 U.S.C. § 3553(a) factors. It
noted Mr. Vesey’s extensive criminal history and described
2
him as “an absolute risk to the public.” It then explained:
And even if my legal analysis on determining
whether that prior aggravated assault is a
crime of violence to raise your base offense
level up to the 20 from the 14 and yield the—
and result in the 51 to 63 is wrong, I still think
based on the 3553(a) factors that I’ve comment-
ed on thus far, specifically your personal histo-
ry and characteristics and your risk to recidi-
vate because you’ve been undeterred by any
prior sentences, fully supports at least a range
there independent of any of the guideline cal-
culations. So, I think you get there, whether it’s
under my legal ruling in resolving the objec-
2 R.32 at 33–34.
4 No. 19-3068
tion to the guidelines but also under the
3
3553(a) factors.
The court ultimately imposed an above-guidelines sentence
of 72 months’ imprisonment. Mr. Vesey timely appealed.
II
DISCUSSION
A.
Under § 2K2.1(a)(4)(A) of the Guidelines, a defendant
faces increased penalties if he has a prior conviction for a
4
“crime of violence.” Although that section does not define
the term, the application notes provide that it “has the mean-
ing given that term in § 4B1.2(a) and Application Note 1 of
the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1 cmt. 1. To
qualify as a crime of violence under § 4B1.2(a)—and, there-
fore, under § 2K2.1—an offense must be
any offense under federal or state law, punish-
able by imprisonment for a term exceeding one
year, that—
3 Id. at 34.
4 As relevant here, § 2K2.1 outlines base offense levels for firearms of-
fenses involving the unlawful receipt, possession, or transportation of
firearms or ammunition. A base level of 20 is assessed if “the defendant
committed any part of the instant offense subsequent to sustaining one
felony conviction of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 2K2.1(a)(4)(A).
No. 19-3068 5
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is murder, voluntary manslaughter, kid-
napping, aggravated assault, a forcible sex of-
fense, robbery, arson, extortion, or the use or
unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as de-
fined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a). The first of these clauses is referred to as
the “elements clause”; the second is the “enumerated offens-
es clause.” It is undisputed that Mr. Vesey’s conviction for
Illinois aggravated assault does not constitute aggravated
assault under the enumerated offenses clause. The only
question presented before us is whether his prior conviction
is a crime of violence under the elements clause, that is,
whether it is an offense that “has as an element the use, at-
tempted use, or threatened use of physical force against the
person of another.” We review de novo the question wheth-
er a prior conviction qualifies as a crime of violence under
the Guidelines. United States v. Edwards, 836 F.3d 831, 834
(7th Cir. 2016).
B.
We employ the categorical approach to determine
whether an offense is a crime of violence for Guidelines pur-
poses. See, e.g., United States v. Montez, 858 F.3d 1085, 1092
(7th Cir. 2017); see also United States v. Taylor, 630 F.3d 629,
633 n.2 (7th Cir. 2010) (explaining that courts apply the cate-
gorical approach to the Armed Career Criminal Act and the
Guidelines in the same manner). That is, we consider wheth-
6 No. 19-3068
er the elements of the offense match the definition of a crime
of violence without looking to the specific underlying facts
of the conviction. See Taylor v. United States, 495 U.S. 575,
600–02 (1990).
1.
We first determine whether the statute in question is “in-
divisible,” meaning it contains a single set of elements, or
“divisible,” meaning it contains multiple alternative ele-
ments. Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016).
If a statute is indivisible, our analysis is straightforward. We
then “line[] up that crime’s elements alongside those of the
generic offense and see[] if they match.” Id. at 2248; see Mon-
tez, 858 F.3d at 1092 (explaining that when used in the con-
text of the elements clause, a court compares the offense’s
elements to the definition of a “crime of violence”).
If a statute is divisible, we must take an extra step and
determine which of the alternative elements applies. To
complete the task, “a sentencing court looks to a limited
class of documents (for example, the indictment, jury in-
structions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted
of.” Mathis, 136 S. Ct. at 2249 (citing Shepard v. United States,
544 U.S. 13, 26 (2005)). After looking at the Shepard docu-
ments, a court can determine whether an offense is a “crime
5
of violence.” Id.
5 In Shepard v. United States, 544 U.S. 13, 26 (2005), the Supreme Court
limited the class of documents “to the terms of the charging document,
the terms of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was confirmed by
(continued … )
No. 19-3068 7
With this understanding of the categorical framework,
we turn to an examination of the statute at issue here, the
Illinois aggravated assault statute. The Illinois legislature has
deemed assault to be “aggravated” when it is based on one
of several aggravating conditions, including the status of a
victim. Thus, as relevant here, assault is aggravated when
the perpetrator “knows the individual assaulted to be … [a]
correctional officer or probation officer … performing his or
her official duties … .” 720 ILCS 5/12-2(b)(5). The term “as-
sault” is defined in a different section of the Illinois Criminal
Code. An individual commits assault “when, without lawful
authority, he or she knowingly engages in conduct which
places another in reasonable apprehension of receiving a
battery.” 720 ILCS 5/12-1. “A person commits battery if he or
she knowingly without legal justification by any means (1)
causes bodily harm to an individual or (2) makes physical
contact of an insulting or provoking nature with an individ-
ual.” 720 ILCS 5/12-3(a).
Our precedent is clear—and the parties agree—that the
Illinois battery statute is divisible. United States v. Lynn, 851
F.3d 786, 797 (7th Cir. 2017) (applying the modified categori-
cal approach). A conviction under the first clause of the stat-
ute has as an element the use, attempted use, or threatened
use of force. Hill v. Werlinger, 695 F.3d 644, 649 (7th Cir.
2012). A conviction under the second clause does not. Mon-
tez, 858 F.3d at 1092.
( … continued)
the defendant, or to some comparable judicial record of this infor-
mation.”
8 No. 19-3068
2.
The district court examined the Shepard documents and
determined that Mr. Vesey was convicted under the first
part of the statute. It considered both the document filed by
the Government informing the court of Mr. Vesey’s Illinois
aggravated assault offense and the transcript of the plea col-
loquy in that state conviction. Although the documents
made clear that he was convicted of placing a correctional
officer in reasonable apprehension of receiving a battery,
neither document specified explicitly whether that battery
was bodily harm or physical contact of an insulting or pro-
voking nature. The documents did, however, show that
Mr. Vesey was convicted for an incident in which he, “in
committing an assault … , swung a shower rod at Christo-
pher Serra, a correctional officer performing his official du-
6
ties … .” It was noted during the plea colloquy that
Mr. Vesey tore the shower rod from the wall before swing-
7
ing it at Officer Serra. Although Mr. Vesey objected to the
classification of the offense as a crime of violence, he did not
object to the facts as set forth in the Shepard documents.
Mr. Vesey now contends that by looking at the facts of
the incident, the district court did precisely what the categor-
ical approach forbids: review the underlying facts of the
conviction. We cannot accept this argument. It is true that
“the underlying facts of the defendant’s conduct do not mat-
ter.” Van Cannon v. United States, 890 F.3d 656, 663 (7th Cir.
6 R.21-1 at 1.
7 R.21-2 at 10.
No. 19-3068 9
8
2018). A court may examine Shepard documents “only for the
limited purpose of determining whether the elements of the
crime of conviction match (or are narrower than) the ele-
ments of the generic offense.” Id. Here, the district court’s
review of the Shepard documents was not improper. The
court simply considered the undisputed facts to determine
which prong of the battery statute formed the basis of the de-
fendant’s conviction. As we have stated, “the additional ma-
terials permitted by Shepard may be used only to determine
which crime within a statute the defendant committed, not
how he committed that crime.” United States v. Woods, 576
F.3d 400, 405 (7th Cir. 2009); see Montez, 858 F.3d at 1092–93
(holding that a district court may rely on uncontested find-
ings in the PSR to conclude that a defendant was convicted
under the “bodily harm” clause of the Illinois aggravated
battery statute). The district court here was entitled to use
the Shepard documents to determine under which clause of
the statute Mr. Vesey was convicted.
Mr. Vesey nevertheless contends that the Government
has not met its burden to show that his offense was a crime
of violence. He submits that the documents do not conclu-
sively establish that his conviction rested on the first prong
of the battery statute, and not the second. He acknowledges
that the Government has shown that he swung a shower rod
at an officer. In his view, however, this concession does not
settle the matter because of the lack of information regarding
the distance between Mr. Vesey and the officer. As he sees it,
8 See United States v. Franklin, 895 F.3d 954, 958 (7th Cir. 2018) (“Recall
that under Taylor the actual facts of the underlying case are off-limits.”).
10 No. 19-3068
the lack of information on this point renders the nature of
the interaction ambiguous; a close distance between the two
would indicate that Mr. Vesey placed the officer in reasona-
ble apprehension of bodily harm, but a farther distance
would show that the officer’s apprehension of bodily harm
was not objectively reasonable.
This argument misses the mark. The distance between
Mr. Vesey and the officer is irrelevant to the question
whether Mr. Vesey was convicted under the first part of the
statute or the second. Under either prong of the statute,
Mr. Vesey had to be close enough for the officer to have a
reasonable apprehension of some sort of physical touching
by the defendant.
C.
Mr. Vesey brings one more challenge to the court’s deci-
sion to classify his prior conviction as a crime of violence. He
submits that Illinois aggravated assault is categorically not a
crime of violence because it does not require the State to
prove the defendant’s specific intent. We rejected a similar
argument in United States v. Campbell, 865 F.3d 853 (7th Cir.
2017). There, the defendant argued that general intent crimes
could not satisfy the Guidelines definition of a crime of vio-
lence. We noted that the Supreme Court had “never stated
that general intent crimes could not constitute crimes of vio-
lence.” Id. at 857. We observed that Congress mandated en-
hancements for “‘purposeful, violent, and aggressive
crimes’” to focus on offenders with “‘a high risk for recidi-
vism and future violence.’” Id. (quoting Woods, 576 F.3d at
411). The defendant’s conviction for bank robbery by intimi-
dation was a “‘purposeful, violent, and aggressive crime’”
despite the fact that it was a general intent crime. Id. The ab-
No. 19-3068 11
sence of a specific intent requirement did not disqualify the
offense from being a “crime of violence.” Id.; see United States
v. Williams, 864 F.3d 826, 829–30 (7th Cir. 2017). The same
rationale applies here; that Illinois aggravated assault is a
general intent crime does not prevent its classification as a
crime of violence for Guidelines purposes. Mr. Vesey’s chal-
9
lenge therefore lacks merit.
9 Finally, for the sake of completeness, we conclude that even if the dis-
trict court’s classification of Mr. Vesey’s Illinois aggravated assault con-
viction was error, it was harmless error. “When we are convinced the
sentence would have been the same absent the error, we deem the error
harmless.” United States v. Glosser, 623 F.3d 413, 419 (7th Cir. 2010). At
Mr. Vesey’s sentencing, the court made expressly clear that it would
have imposed the same sentence regardless of whether it characterized
the offense as a crime of violence. See supra p. 3. We have upheld a sen-
tence improperly classifying an offense as a crime of violence when the
district court “adequately explained that … it would have imposed the
same … term of imprisonment … regardless of whether [the offense] was
classified a ‘crime of violence.’” United States v. Jackson, 549 F.3d 1115,
1118 (7th Cir. 2008) (citations omitted).
Mr. Vesey submits that, had the district court imposed the same sen-
tence of 72 months even if the prior conviction was not a crime of vio-
lence, this would have been far higher than the guidelines range. (With-
out the increased base offense level for a crime of violence, the guidelines
range would have been 30 to 37 months’ imprisonment.) He asserts that
he likely would have challenged the reasonableness of the sentence. Yet
the district court explained its reasons for the sentence it imposed, focus-
ing on Mr. Vesey’s criminal history and the danger he posed to the pub-
lic. Because the district court made clear that the sentence would have
been the same even if Mr. Vesey’s prior conviction was not a “crime of
violence,” any error would not have affected his sentence. See R.32 at 35
(“I just cannot—I cannot, in good conscience, sentence you to something
that would be less than necessary to protect the public from future
crimes by you.”).
12 No. 19-3068
Conclusion
We affirm the judgment of the district court.
AFFIRMED