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United States v. Cole

August 01, 2002

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.

Before Posner, Ripple and Williams, Circuit Judges.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED JULY 9, 2002

Brian Cole pleaded guilty to distributing five or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii). At sentencing 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 sentencing 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 distributing 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 offender. See U.S.S.G. § 4B1.1. Under the guidelines, a defendant is deemed a career offender and faces a steeper sentence 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 conviction 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 disagreed, concluding that discharging a firearm in a populated 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 conviction 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 maximum 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 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 threelevel 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 notice of appeal.

II. ANALYSIS

Mr. Cole raises one argument on appeal, namely, that the district court erred in sentencing him as a career offender. 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 instant offense, and his offense of conviction, distributing five or more grams of cocaine base, qualifies as a controlled 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 Mr. Cole's prior conviction for unlawful delivery of a controlled 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 sentencing 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, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a).

In determining whether a prior conviction constitutes a crime of violence, the district court must confine its inquiry to the face of the charging document 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 statute does not have as a necessary element the use or threatened 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) (burglary of a dwelling, arson, extortion, or an offense involving use of explosives). The remaining ...


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