U.S. v. Bradford

766 F.Supp.2d 903

UNITED STATES of America, Plaintiff,

v.William BRADFORD, Defendant.

Case No. 09–CR–71.

United States District Court, E.D. Wisconsin.

Feb. 24, 2011.

Bridget J. Domaszek, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.

MEMORANDUM

LYNN ADELMAN, District Judge.

Defendant William Bradford pleaded guilty to possessing a firearm as felon, contrary to 18 U.S.C. § 922(g)(1). Ordinarily, this offense carries a penalty range of 0–10 years' imprisonment, 18 U.S.C. § 924(a)(2), but defendant's pre-sentence report (“PSR”) determined that he qualified for an enhanced sentence under the Armed Career Criminal Act (“ACCA”), U.S.C. § 924(e). Under the ACCA, a person who violates § 922(g) and has three previous convictions for a “violent felony” or a “serious drug offense,” or both, committed on occasions different from one another, must be imprisoned for not less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA further explains that:

the term “serious drug offense” means-

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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[.]

18 U.S.C. § 924(e)(2).

Defendant's PSR sets forth three possible ACCA predicates—(1) possession of a short-barreled shotgun, (2) substantial battery, and (3) possession with intent to distribute cocaine—all in Wisconsin state court. Defendant concedes that the third conviction qualifies as a serious drug offense but argues that the first two are not violent felonies. I disagree with defendant regarding the substantial battery conviction but agree regarding the short-barreled shotgun case. I therefore find that he does not qualify as an armed career criminal.

I. STANDARD FOR DETERMINING ACCA PREDICATES

In determining whether a particular conviction qualifies as a violent felony under the ACCA, the court must apply a categorical approach, looking to the statutory elements of the offense in question rather than the specific conduct in which the defendant engaged. See, e.g., James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); United States v. Fife, 624 F.3d 441, 445 (7th Cir.2010), cert. denied, 2011 WL 124217 (U.S. Feb. 22, 2011); United States v. Dismuke, 593 F.3d 582, 589 (7th Cir.2010); United States v. Woods, 576 F.3d 400, 403 (7th Cir.2009). If the defendant was convicted under a statute that may be violated in several ways, some that might constitute a violent crime and some that might not, the court may apply a modified categorical approach and look to the defendant's charging document, plea agreement, or other similar judicial record for the limited purpose of determining which part of a divisible statute he violated. See, e.g., Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Fife, 624 F.3d at 445; United States v. Ellis, 622 F.3d 784, 798 (7th Cir.2010).

II. SUBSTANTIAL BATTERY

Under Wisconsin's battery statute, “Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.” Wis. Stat. 940.19(1). If the person “causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another” then he is guilty of a felony. Wis. Stat. § 940.19(2). Defendant was convicted of violating sub-section (2) of the statute. In United States v. Peters, 462 F.3d 716, 720 (7th Cir.2006), the court of appeals held that the defendant's conviction for substantial battery in violation of Wis. Stat. § 940.19(2) qualified as a “crime of violence” under the career offender sentencing guideline, U.S.S.G. § 4B1.2, which employs a virtually identical definition as the ACCA. See United States v. Taylor, 630 F.3d 629, 633, n. 2 (7th Cir.2010) (“As we have done in prior cases, we refer to cases dealing with the ACCA and the career offender guideline provision interchangeably.”). Peters thus appears to doom defendant's claim that his battery conviction does not qualify as a violent felony under the ACCA.

Defendant cites Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), for the proposition that battery convictions do not automatically qualify under the ACCA. In Johnson, the Supreme Court determined that a violation of Florida's battery statute did not constitute a violent felony under the “use of force” prong of the definition. However, Johnson did not involve a battery statute like Wisconsin's; nor did the Court consider the so-called “residual clause” of the violent felony definition, i.e. whether the offense “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The case is therefore distinguishable.

First, Florida's battery statute, unlike Wisconsin's, may be violated by mere offensive touching, no matter how slight, id. at 1269–70, while the ACCA's use of force prong requires the use of “violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 1271. As I explained in United States v. Marciniak, No. 10–CR–184, 2011 WL 124299 (E.D.Wis. Jan. 14, 2011), Wisconsin's battery statute is not violated by conduct that is merely “offensive”; rather, the defendant must cause bodily harm, which necessarily requires the use of violent physical force. Second, the government did not in Johnson argue that the defendant's conviction qualified under the residual clause, id. at 1274, so the Court had no occasion to consider whether the offense involved conduct that presented a serious potential risk of physical injury. It seems plain that such a risk will exist—indeed, the risk will have materialized—when the defendant, in fact, “causes substantial bodily harm to another by an act done with intent to cause bodily harm.” For these reasons, I find that substantial battery under Wis. Stat. § 940.19(2) is a violent felony.¹

III. POSSESSION OF SHORT–BARRELED SHOTGUN

Under Wis. Stat. § 941.28(2), “No person may sell or offer to sell, transport, purchase, possess or go armed with a short-barreled shotgun or short-barreled rifle.” The parties agree, and the PSR without objection states, that defendant was convicted of possession of a short-barreled shotgun. ² Because this offense is not one of the listed examples, and it does not involve the use of force, I must determine whether it qualifies under the residual clause.

The Seventh Circuit previously held that the possession of a sawed-off shotgun constitutes a violent felony under the residual clause. See United States v. Upton, 512 F.3d 394, 404 (7th Cir.2008). However, the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which came down after Upton, requires reconsideration of the issue. See Dismuke, 593 F.3d at 590 (noting that although it had previously determined that Wisconsin's vehicular-fleeing offense qualified as a violent felony under the residual clause, “ Begay's alteration of the framework for deciding residual-clause cases requires us to reconsider the matter”); see also United States v. Polk, 577 F.3d 515, 517 (3d Cir.2009) (holding that the court had to reconsider, post- Begay, whether the offense of possession of a weapon in prison qualified as a crime of violence).

At issue in Begay was whether a felony conviction for recidivist drunk driving qualified as a violent felony. The Supreme Court assumed that drunk driving involved conduct that presented a serious potential risk of physical injury to another, but concluded that this was not enough. 128 S.Ct. at 1584. Focusing on the offenses enumerated in the statute—burglary, arson, extortion, and crimes involving the use of explosives—the Court concluded that the residual clause covers only “crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. at 1585. The Court stated that the presence of the word “otherwise” after the list of included crimes did not undermine this limiting construction because “otherwise” could “refer to a crime that is similar to the listed examples in some respects but different in others—similar, say, in respect to the degree of risk it produces, but different in respect to the way or manner in which it produces that risk.” Id. at 1586 (internal quotation marks omitted). The Court further stated that a predicate crime will be “similar in kind” to the enumerated crimes if it involves the same sort of “purposeful, violent, and aggressive” conduct as the enumerated crimes. Id. at 1586–87. Because drunk driving is a strict liability crime, the Court concluded it was too unlike the example crimes to be covered by the residual clause and thus did not qualify as a violent felony under the ACCA. Id. at 1588.

Under Begay, then, a residual clause predicate crime must (1) present a serious potential...