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United States v. Billups

July 29, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BRIAN K. BILLUPS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin. No. 06 CR 213-Barbara B. Crabb, Chief Judge.

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

ARGUED APRIL 3, 2008

Before FLAUM, MANION, and TINDER, Circuit Judges.

BrianBillups was convicted of a drug crime and sentenced as a career offender under U.S.S.G. § 4B1.1(a), based in part on a prior Wisconsin felony conviction for false imprisonment. The career offender designation increased Billups's total offense level and resulted in an advisory guidelines imprisonment range of 151-188 months. The district court sentenced Billups to 151 months of imprisonment and three years of supervised release. On appeal, Billups challenges his career offender designation, arguing that his false imprisonment conviction was not a "crime of violence" under U.S.S.G. § 4B1.2(a). Because we agree with the district court's determination that the Wisconsin offense constitutes a crime of violence, we affirm.

I. Background

Billups sold cocaine in Madison, Wisconsin. He pled guilty, pursuant to a plea agreement, to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The presentence report indicated, and the district court found at sentencing, that Billups was a career offender, U.S.S.G. § 4B1.1(a), based upon two prior felony convictions, one for delivery of a controlled substance and one for false imprisonment. Billups's career offender status increased his total offense level, which incorporated a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, from 25 to 29. This increase, when combined with Billups's category VI criminal history score, triggered a corresponding increase in the recommended imprisonment range, from 110-137 to 151-188 months. The district court found that "a sentence at the low end of the advisory guideline range when coupled with the maximum term of supervised release is reasonable, necessary, and sufficient to protect the community, provide just punishment, and achieve parity with the sentences of similarly situated offenders." Accordingly, the court sentenced Billups to 151 months of imprisonment, three years of supervised release, and a $100 special assessment.

Billups now appeals his sentence, contending that the district court erred in classifying him as a career offender. Because his instant offense was a controlled substance offense, and because he was at least eighteen years old at the time he committed the offense, Billups was properly classified as a career offender if he had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Billups concedes that his prior felony conviction for delivery of a controlled substance qualifies as a controlled substance offense. However, he contests the categorization of his Wisconsin false imprisonment conviction, under Wis. Stat. § 940.30, as a "crime of violence" for purposes of §§ 4B1.1(a), 4B1.2(a). Thus, the sole issue on review is the classification of Billups's false imprisonment conviction as a crime of violence.

II. Discussion

A crime of violence is an offense punishable by more than one year of imprisonment 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). The crime-of-violence determination is a legal inquiry into the nature of the conviction, not a factual inquiry into the underlying conduct of the defendant. United States v. Peters, 462 F.3d 716, 719 (7th Cir. 2006). Thus, in determining whether a prior conviction qualifies as a crime of violence, "we start-and usually will end-with the elements of the statute of conviction and the facts as stated in the charging document." United States v. Newbern, 479 F.3d 506, 508 (7th Cir. 2007) (citation omitted). However, where the statutory elements and the charging document fail to resolve the issue, we may then look to additional sources, including the written plea agreement, the transcript of the plea colloquy, admissions by the defendant, or comparable judicial records. Peters, 462 F.3d at 719 (citing Shepard v. United States, 544 U.S. 13, 16 (2005)); Newbern, 479 F.3d at 508.

Because the instant charging document-alleging that Billups did "intentionally restrain[ ] another . . . without that person's consent and with knowledge that he had no lawful authority to do so"-offers little beyond the statutory language, we first focus on that statutory language. See Newbern, 479 F.3d at 508 (crime-of-violence inquiry ordinarily begins and ends with statutory elements and charging document). The false imprisonment statute, Wis. Stat. § 940.30, provides, "Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class H felony." The statute does not have as a requisite element the use, attempted use, or threatened use of physical force.U.S.S.G. § 4B1.2(a)(1). Nor is it burglary, arson, or extortion, and it does not involve the use of explosives. U.S.S.G. § 4B1.2(a)(2). Therefore, the sole question, and the crux of the current appeal, is whether Wisconsin's false imprisonment offense "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id.

The district court concluded that the Wisconsin false imprisonment offense does present such a risk. At sentencing, Billups pointed out that the offense does not have a statutory element involving the use or threat of force. In addition, he directed the court's attention to the Wisconsin jury instructions, which indicate that confinement or restraint may be achieved without the use of physical force. However, the court rejected this argument, and explained:

It seems to me . . . that any time that you have one person exercising power over another person, whether it's by physical force, words, threats, that there is an inherent risk of serious potential injury. The person [who is] restrained may not want to be restrained and may react by causing injury. The person-if the person does try to leave, get out, get away, get out from under the restraint of the person that's imposing the restraint, that person may resort to physical means even if he or she hasn't done so before that. So it just seems to me to connote a dangerous situation and dangerous to the victim in particular when the person restrains the victim somehow in a car, moving car, in a room, in a place, any time when the person's freedom of movement is being restricted for no lawful reason.

Thus, the court concluded that the offense "involves conduct that presents a serious potential risk of physical injury to another," § 4B1.2(a)(2), rendering it a crime of violence and Billups a career offender pursuant to § 4B1.1(a).

Before turning to the merits of Billups's challenge to this determination, we must resolve a dispute regarding the standard of review. Ordinarily, our review of the district court's career offender determination, as well as the underlying crime-of-violence determination, is de novo. United States v. Kindle, 453 F.3d 438, 440 (7th Cir. 2006). However, the government argues that we should review only for plain error. At sentencing, Billups made the same overall argument that he makes here-that his false imprisonment conviction should not be classified a crime of violence. However, whereas in the district court he relied primarily upon the Wisconsin jury instructions for the false imprisonment offense and the absence of a statutory element involving the use of force, here he introduces the statutory definition of "without consent" as additional support for his argument. The government argues that because the statutory definition of "without consent" was not before the district court, Billups forfeited that aspect of his challenge, limiting our review to plain error. We disagree. Billups's challenge below was sufficient to preserve his current argument, even if he offers a new twist on that argument based upon additional authority on appeal. See Bew v. City of Chicago, 252 F.3d 891, 895-96 (7th Cir. 2001) (citing Yee v. City of Escondido, 503 U.S. 519, ...


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