United States v. Martell Norris ( 2021 )

NONPRECEDENTIAL DISPOSITION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
Submitted February 5, 2021
Decided February 12, 2021
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-1197
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v. No. 19-CR-67-JDP
MARTELL A. NORRIS, James D. Peterson,
Defendant-Appellant. Chief Judge.
ORDER
Martell Norris pleaded guilty to possession with intent to distribute crack
cocaine, 21 U.S.C. § 841(a)(1), and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).
The district court sentenced Norris to 180 months’ imprisonment and five years’
supervised release, the statutory minimum for his firearm offense under the Armed
Career Criminal Act, 18 U.S.C. § 924(e). Norris appealed, but his appointed counsel
asserts that the appeal is frivolous and moves to withdraw. See Anders v. California,
386 U.S. 738 (1967). Since Norris did not respond to counsel’s motion, see CIR. R. 51(b),
and counsel’s brief addresses the issues that an appeal of this kind would be expected to
No. 20-1197 Page 2
involve, we limit our review to those issues. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014).
Having confirmed that Norris does not wish to withdraw his plea, see United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012), counsel properly considers only the
potential arguments she could make to challenge Norris’s sentence. She considers first
whether Norris could argue that his prior convictions did not qualify him for an
enhanced sentence under the Armed Career Criminal Act. We agree with her that any
such argument would be pointless. The Act applies to defendants who have been
convicted of three prior violent felonies or serious drug offenses. 18 U.S.C. § 924(e).
Under the Act, a “violent felony” includes any crime punishable by more than one
year’s imprisonment that “has as an element the use, attempted use, or threatened use
of physical force.” 18 U.S.C. § 924(e)(2)(B). In Norris’s case, the district court found that
he had been convicted of three violent felonies that meet this definition: two convictions
in Wisconsin for battery to law enforcement officers, WIS. STAT. § 940.20(2), in 2000 and
2009, and one conviction in Illinois for vehicular hijacking, 720 ILCS 5/18-3, in 2001.
It would be frivolous to argue that battery to law enforcement officers in
Wisconsin is not a violent felony. The 2000 and 2009 versions of the crime, WIS. STAT.
§ 940.20(2), had different penalties, but both permitted sentences exceeding one year.
Although we have not yet addressed this precise statute, we have held that the crime,
Battery by a Prisoner, WIS. STAT. § 940.20(1), is a violent felony under the Armed Career
Criminal Act. See Yates v. United States, 842 F.3d 1051, 1053 (7th Cir. 2016). Both laws
criminalize “intentionally caus[ing] bodily harm,” and both define bodily harm the
same way: “physical pain or injury, illness, or any impairment of physical condition,”
WIS. STAT. § 939.22(4). They differ only as to the identity of the batterer and the victim,
which is irrelevant to whether the crime is “violent.” We would therefore apply the
same analysis to the use-of-force element for both crimes and conclude they are equally
violent felonies. See Jones v. United States, 870 F.3d 750, 753 (8th Cir. 2017).
For similar reasons, there would be no point in arguing that vehicular hijacking
in Illinois is not a violent felony. At the relevant time, Illinois defined vehicular
hijacking as taking a motor vehicle “by the use of force or by threatening the imminent
use of force.” 720 ILCS 5/18-3. We have likewise never addressed this specific statute,
but we have held that the crime of robbery, 720 ILCS 5/18-1, is a violent felony.
See Klikno v. United States, 928 F.3d 539, 546 (7th Cir. 2019). Robbery has the identical
force element: taking property “by the use of force or by threatening the imminent use
of force.” See 720 ILCS 5/18-1. We therefore would consider them both violent felonies
under § 924(e). See United States v. Sykes, 914 F.3d 615, 620 (8th Cir. 2019) (applying
No. 20-1197 Page 3
same reasoning to conclude vehicular hijacking is a crime of violence under U.S.S.G.
§ 4B1.2(a)(1)).
We may quickly dispatch the other potential arguments. Norris’s 15-year prison
sentence is the statutory minimum for an armed career criminal, and so it would be
frivolous to argue that it is too long. See United States v. Moody, 770 F.3d 577, 580
(7th Cir. 2014). His five-year term of supervised release is one year above the four-year
statutory minimum for his drug conviction. See 21 U.S.C. § 841(b)(1)(B)(iii). The
justifications for a prison term also apply to supervised release, see United States
v. Bickart, 825 F.3d 832, 839 (7th Cir. 2016), and the court here adequately justified its
prison sentence by considering the relevant statutory factors: It recognized Norris’s
arguments in mitigation, such as his difficult childhood, but it also weighed Norris’s
history of evading arrest and the danger that his drug dealing poses to the community.
18 U.S.C. § 3353(a)(1), (a)(2)(C). Norris therefore cannot make a reasonable argument
that his prison sentence or term of supervised release was unlawful.
Although it was overlooked by counsel, we address a clerical error in the
judgment on the first offense of conviction. For that offense, Norris was charged with,
and pleaded guilty to, possession with intent to distribute 28 grams or more of crack
cocaine in violation of 21 U.S.C. § 841(a)(1). The judgment cites this crime correctly, but
mistakenly cites the wrong sentencing provision, § 841(b)(1)(B)(viii)
(methamphetamine), instead of § 841(b)(1)(B)(iii) (28 grams or more of crack cocaine).
This had no effect on the calculation of his sentence; it is merely a clerical error on the
judgment. A remand is unnecessary; we may correct the error ourselves. Under Federal
Rule of Criminal Procedure 36, “[a]fter giving any notice it considers appropriate, the
court may at any time correct a clerical error in a judgment.” United States v. Anobah,
734 F.3d 733, 739 (7th Cir. 2013) (citing FED. R. CRIM. P. 1(a)(1) to apply Rule 36 to courts
of appeals). We thus order the clerk of the district court to amend the written judgment
and commitment orders to reflect that the first offense of conviction falls under 21
U.S.C. § 841(a)(1) & (b)(1)(B)(iii).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.