Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 360-John F. Grady, Judge. Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 106-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before EASTERBROOK, Chief Judge, and EVANS and SYKES, Circuit Judges.
For reasons which will become apparent later, we are consolidating these two seemingly unrelated cases for decision.
First to Ortiz. Adolfo Ortiz is a citizen of Mexico who was removed from the United States on two occasions. He never sought permission to re-enter the country. How-ever, he did re-enter and was charged with illegal re-entry into the United States after removal in violation of 8 U.S.C. § 1326(a) and (b)(2). He pled guilty and was sentenced to a term of 77 months in prison, a sentence he now appeals.
The judge determined under the United States Sentencing Guidelines that Ortiz's base offense level was 8; she then adjusted the range to reflect a 16-level increase after she concluded that a prior conviction for false imprisonment constituted a crime of violence under the illegal re-entry guideline, U.S.S.G. § 2L1.2(b)(1)(A)(ii). She also awarded a 3-level downward adjustment for acceptance of responsibility. With a criminal history category of VI, the offense level resulted in a guideline range of 77 to 96 months. What Ortiz objects to is the 16-level increase. He contends that the judge erred in concluding that she could look to the plea agreement and the complaint to determine whether he had, in fact, committed a crime of violence. He contends that United States v. Billups, 536 F.3d 574 (7th Cir. 2008) (decided after his sentencing), and Taylor v. United States, 495 U.S. 575 (1990), prohibit a court from looking beyond the fact of conviction and the statutory definition of the prior offense to determine whether it is a crime of violence.
This is the square-peg-in-the-round-hole problem. Quite naturally, state legislatures do not define their crimes with an eye to the federal sentencing guidelines. The result is that federal judges must often grapple with whether a state crime fits the definitions found in the federal sentencing guidelines. In this case, the relevant guideline says that a crime of violence includes a number of listed offenses (false imprisonment is not among them) "or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another." Wisconsin's false imprisonment statute-Wis. Stat. § 940.30-says that 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 . . . felony." Contrasting the two, we see that while the guideline requires the use of force, there is no element of force involved in § 940.30. Wisconsin law also defines the term "without consent" as "no consent in fact" or consent given because of the use of "physical violence," or (we simplify here) for various other reasons (trickery, for example) the victim did not understand what she was consenting to. Wis. Stat. § 939.22(48).
Given this definition, the district judge concluded she was faced with an offense which could be committed by either violent or nonviolent means (and ironically, perhaps, while the use of violence seems more serious than the other methods, it might actually be the easier one to prove). To determine which method Ortiz was convicted of, the judge looked to the plea agreement and the complaint. She found the crime was committed by violent means-"grabbing the victim by the arm, pulling her back into the car while driving at a high rate of speed, leading her to report to police shortly after the incident that she felt threatened." But, as we said, Ortiz argues that the judge should not have looked beyond the elements of the crime set out in § 940.30.
There are limited circumstances in which a judge can look to other documents to determine what crime a defendant was convicted of: "[W]here the statutory elements and the charging documents 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." Billups, 536 F.3d at 577. See also Shepard v. United States, 544 U.S. 13 (2005).
Putting aside a determination as to when it is proper to look to other documents, we note that simply looking at the elements of the crime as compared to the sentencing guidelines can be a complex undertaking. In Billups, we considered whether Wisconsin's false imprisonment statute qualified as a crime of violence under U.S.S.G. §§ 4B1.1(a) and 4B1.2(a). We looked to both § 940.30 itself and the definition of "without consent" in § 939.22(48)(c). We determined that the statute involves "purposeful, aggressive conduct" that presents, and here we quoted from § 4B1.2(a), "a serious potential risk of physical injury to another." That does not answer the question before us today, however, because "crime of violence" is defined differently under § 4B1.2(a) than it is under § 2L1.2(b)(1)(A)(ii), the guideline relevant to Ortiz's case. The Application Note to the latter section does not include the clause involving a "potential risk" on which we relied so heavily in Billups. Rather, it says merely that a crime of violence includes enumerated offenses and an offense "that has as an element the use, attempted use, or threatened use of physical force against the person of another."
It's certainly possible that in some of its manifestations, the Wisconsin statute meets that definition, too. Section 939.22(48)(c) has elements of the use, attempted use, or threatened use of physical force. This is where the district judge found herself when she decided to look to the plea agreement and the complaint to see what Ortiz was convicted of.
Sorting through all of this at a sentencing proceeding is bunglesome, to say the least. And in this case there was no reason to do it. Facing this knotty issue was not only unnecessary, but as we shall explain later, perhaps could just as easily have been avoided altogether. So we pass this issue for consideration in a case where all of this actually matters.
We will come back to Ortiz's case in a moment, but first we will look at the facts of the case against defendant*fn1 and his sentence. Sanner was involved in a bank robbery. As relevant here, the facts show that the robbery was committed by four men. Sanner was the getaway driver, driving a Chevrolet Malibu that one of the robbers stole. Sanner and the other three robbers drove to a bank in Montgomery, Illinois. Three went into the bank while Sanner waited outside in the car with a walkie-talkie he was to use to warn those inside if any complications arose. Inside the bank, one of the robbers pointed a gun at the branch manager's head while another man robbed the teller drawers. The men could not open the vault and left the bank with only the $7,605 they retrieved from the drawers. Sanner was given between $400 and $500 for his role in the robbery, and the other three robbers split the rest. The Malibu was abandoned but later recovered and returned to its owner. Sanner was indicted for bank robbery, conspiracy to commit bank robbery, and knowingly possessing a firearm in furtherance of a bank robbery. At trial, a jury found him guilty on all counts.
At sentencing, the judge determined that Sanner's base offense level was 20 under U.S.S.G. § 2B3.1. Two points were added under § 2B3.1(b)(4)(B) because the robbers had restrained bank employees; two more points were added under § 2B3.1(b)(1) because the property of a financial institution was taken. Also, the court added the Sanner -who also objects to his guideline calculations value of the stolen car to the amount of money taken from the bank and found that the loss exceeded $10,000, which raised the level one more notch. Sanner's criminal history put him in category II (two levels lower than the probation department had recommended). So with an offense level of 25 and a criminal history category of II, Sanner faced a guidelines sentence between 147 and 162 months. But the judge adjusted the sentence upward because of statements Sanner made at sentencing and in other pro se ...