Appeal from the United States District Court for the Western District of Wisconsin. No. 07-CR-18-C-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge.
Before EASTERBROOK, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.
Although the principal issue in this appeal concerns the scope of the career-offender sentencing guideline after Begay v. United States, 128 S.Ct. 1581 (2008), Todd Templeton begins with a challenge to his conviction. When pleading guilty to two bank robberies, 18 U.S.C. §2113, Templeton reserved the right to challenge the seizure of evidence from his car. See Fed. R. Crim. P. 11(a)(2). The district judge denied his motion to suppress the evidence, and properly. Templeton threatened to shoot a teller during the first robbery. Police knew that Templeton was their man because both his mother and his ex-wife told them that he had robbed the bank. When the police saw a pellet-gun wrapper in his car, they had probable cause to believe that the car contained a weapon, if not loot. See Illinois v. Gates, 462 U.S. 213 (1983). Templeton thinks that the police should have disregarded his statement to the teller. Maybe he was lying about having a gun, but the police were entitled to find out. The threat, the wrapper in plain view, and Templeton's ownership of the car were enough to supply probable cause to believe that it contained evidence. (In light of Carroll v. United States, 267 U.S. 132 (1927), and its successors, Templeton does not argue that a warrant was required.)
Templeton was sentenced to 235 months' imprisonment as a career offender. Congress has required the Sentencing Commission to ensure that such a criminal is sentenced at or near the statutory maximum. 28 U.S.C. §994(h). A person is a career offender when "the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and . . . the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. §4B1.1.
(a) The term "crime of violence" means 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. Templeton acknowledges that bank robbery, his "instant offense of conviction", is a crime of violence. He argues, however, that he does not have "two prior felony convictions of either a crime of violence or a controlled substance offense."
Templeton had been convicted of four felonies before the robberies: escape from prison (twice), failing to report to jail, and drunk driving. Under this circuit's precedents, each of these offenses is a "violent felony" for the purpose of 18 U.S.C. §924(e). See United States v. Franklin, 302 F.3d 722 (7th Cir. 2002) (escape); United States v. Golden, 466 F.3d 612 (7th Cir. 2007) ("escape" by failing to return from furlough, or failure to report for imprisonment); United States v. Sperberg, 432 F.3d 706 (7th Cir. 2005) (felony drunk driving). Section 924-a part of the Armed Career Criminal Act-defines "violent felony" in the same way as §4B1.2 defines "crime of violence", and we interpret §4B1.2 in the same way as §924(e). See United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008); United States v. Howze, 343 F.3d 919, 924 (7th Cir. 2003). At the time the district court sentenced Templeton, therefore, he had four convictions for crimes of violence, twice the requirement for career-offender status. But Begay requires us to rethink the subject.
Begay dealt with felony drunk driving, the subject of Sperberg. (Many states, including Wisconsin, treat driving while intoxicated as a felony when the driver is a recidivist or a serious injury ensues.) Drunk driving does not have the use of physical force as an element of the crime. Thus the Court asked whether drunk driving came within §924(e)(2)(B)(ii), which covers conduct "that presents a serious potential risk of physical injury to another." The Court acknowledged that drunk driving does present such a risk-but it added that not all risky activity fits within subsection (ii). Applying the ejusdem generis canon, the Court held that a crime comes within subsection (ii) only if it is "similar" to the offenses listed in the subsection: burglary of a dwelling, arson, extortion, and the use of explosives. The Court thought that these crimes have in common "purposeful, 'violent,' and 'aggressive' conduct." Begay, 128 S.Ct. at 1586. Drunk driving may be intentional, but it is not intentionally violent or aggressive and so does not fit, the Court held.
Perhaps Begay has broken the link between §924(e) and §4B1.2. The Court noted that §924 is part of the Armed Career Criminal Act, which implies a focus "upon the special danger when a particular type of offender-a violent criminal . . ."-possesses a gun. Begay, 128 S.Ct. at 1587. Section 4B1.1, the "career offender" guideline, does not single out armed criminals. Nevertheless, the Court interpreted the words of §924(e), which the Sentencing Commission repeated verbatim in §4B1.2. It would be inappropriate to treat identical texts differently just because of a different caption. This means-as the prosecutor conceded in a post-argument memorandum-that Templeton's conviction for drunk driving is not a "crime of violence" under §4B1.2.
Whether Begay affects the classification of Templeton's other convictions is a harder question. Our pre-Begay approach to escapes, and similar offenses, asked whether a particular crime posed a significant risk of physical injury. Even before Begay, we had expressed some doubt about the affirmative answer that our initial decisions had given on the basis of armchair empiricism. Escapes may well lead to injuries-either when the prisoner makes the bid for freedom or when he is recaptured (escape is a continuing offense, so the risks of recapture are properly included in the calculus). But when a statute inquires into risk, data trump judicial guesses.
[I]t is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences or fail to return from furloughs or to halfway houses.
United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007). Chambers announced that our classification of escapes was provisional and would be reexamined if data could be assembled. Estimates may be essential and must suffice when data are unavailable or inconclusive (as crime statistics often are), and a statutory classification such as the one in §924(e)(2)(B)(i) always prevails. But when the legislature requires judges to assess "risk", as §924(e)(2)(B)(ii) does, provisional estimates must yield to better sources of knowledge.
Templeton hired an expert to collect and analyze statistics about escapes in Wisconsin. The expert discovered that about 11% of those convicted of felony failure to report under Wis. Stat. §946.425, and 15% of those convicted of escape under Wis. Stat. §946.42(3), also are charged under one of four statutes punishing some form of resisting arrest: Wis. Stat. §946.41 (resisting or obstructing an officer), Wis. Stat. §946.415 (failure to comply with an officer's attempt to take a person into custody), Wis. Stat. §346.04 (vehicular eluding), and Wis. Stat. §940.20(2) (battery of a ...