The opinion of the court was delivered by: David Herndon Chief Judge United States District Court
Petitioner Anthony Wilbourn filed this action pursuant to 28 U.S.C. § 2241 to challenge his sentence enhancement as a career offender under U.S.S.G. §4B1.2(a).
Wilbourn was convicted of bank robbery and brandishing a firearm in furtherance of a crime of violence, for which he is serving an aggregate term of 384 months imprisonment. United States v. Wilbourn, Case No. 01-cr-00064-RLM (N.D. Ind., filed Oct. 11, 2001), aff'd 336 F.3d 558 (7th Cir. 2003). In 2004, Wilbourn filed a motion pursuant to 28 U.S.C. § 2255, asserting ineffective assistance of counsel, prosecutorial misconduct, and vagueness and misapplication of the "career offender" provisions of the sentencing guidelines; his motion was denied. Wilbourn v. United States, Case No. 04-cv-747 RM (N.D. Ind., filed July 29, 2004), appeal dismissed, Appeal No. 05-3052 (7th Cir., filed June 20, 2005). Wilbourn later filed a second motion under § 2255, but it was denied as an unauthorized second or successive petition. Wilbourn v. United States, Case No. 07-cv- 467 RM (N.D. Ill., filed Oct. 1, 2007). ARGUMENT PRESENTED
As summarized by the district judge in Wilbourn's first § 2255 proceeding, Wilbourn was sentenced as a career offender based upon "his Indiana state court convictions for residential burglary (class B felony), and for criminal recklessness (class D felony)." Wilbourn, Case No. 04-cv-747 RM (Doc. 3, p. 12). Primarily at issue in this action is Wilbourn's conviction for criminal recklessness. The district judge stated the following in discussing that conviction:
Section 4B1.2(a) also includes in its definition of "crime of violence" any federal or state crime that "involves conduct that presents a serious potential risk of physical injury to another." Mr. Wilbourn's felony conviction for criminal recklessness plainly fits this definition because the Indiana statute under which he was convicted defines criminal recklessness as "(1) an act that creates a substantial risk of bodily injury to another person; or (2) hazing." IND. CODE § 35-42-2-2(b). Under that same statute, an essential element of "hazing" is forcing or requiring another person "to perform an act that creates a substantial risk of bodily injury." IND. CODE § 35-42-2-2(a). So by its very own statutory definition "criminal recklessness" fits well within the guidelines' definition of a "crime of violence."
Wilbourn, Case No. 04-cv-747 RM (Doc. 3, p. 13).
On April 16, 2008, the Supreme Court decided the case of Begay, holding that the New Mexico felony offense of driving under the influence of alcohol does not constitute a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). The Supreme Court reasoned that, unlike the examples provided in the statute ("burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another"), "statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct." Begay v. United States, - U.S. -, 128 S.Ct. 1581,1586 (2008). Thus, to determine whether a prior conviction constitutes a "violent felony," or "crime of violence" as defined by 18 U.S.C. § 16, Begay mandates a two-part inquiry.
First, the court must find that the potentially qualifying conviction "involves conduct that presents a serious potential risk of physical injury" to another. Second, the court must determine whether such conviction is "roughly similar, in kind as well as in degree of risk posed, to the examples" listed immediately prior to the phrase "involves conduct that presents a serious potential risk of physical injury to another." Id. at 1584-87.
Shortly after Begay was decided, the Seventh Circuit had the opportunity to consider whether an Indiana conviction for "criminal recklessness" constitutes a crime of violence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). United States v. Smith, 544 F.3d 781 (7th Cir. 2008). The Seventh Circuit noted, first, that
[t]he language of Indiana's criminal recklessness statute partially mirrors that of the ACCA -- it requires that the person perform an act that "creates a substantial risk of bodily injury to another person." Ind.Code § 35-42-2-2(b)(1). The criminal recklessness statute departs from the language of the ACCA in one important respect, however; in addition to encompassing those offenders who intentionally perform an act that creates a substantial risk of bodily injury to another person, the statute also expressly encompasses those individuals who do so recklessly. The Indiana statute therefore criminalizes non-purposeful conduct as well as purposeful conduct. Under the categorical approach, we consider the offense generically; we may not inquire into the specific conduct of a particular offender. Begay, 128 S.Ct. at 1584; James, 127 S.Ct. at 1594. When a statute encompasses multiple categories of offense conduct -- some of which would constitute a violent felony and some of which would not -- we may expand our inquiry into a limited range of additional material in order to determine whether the jury actually convicted the defendant of (or, in the case of a guilty plea, the defendant expressly admitted to) violating a portion of the statute that constitutes a violent felony. Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Spells, 537 F.3d 743, 749; United States v. Mathews, 453 F.3d 830, 833-34 (7th Cir. 2006). These additional materials are limited to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Such an examination, however, is " only to determine which part of the statute the defendant violated." United States v. Howell, 531 F.3d 621, 623 (8th Cir. 2008); see also Mathews, 453 F.3d at 834. This rule is not meant to circumvent the categorical approach by allowing courts to determine whether the actual conduct of the individual defendant constituted a purposeful, violent and aggressive act. See Shepard, 544 U.S. at 25, 125 S.Ct. 1254 (discussing the problems inherent in judicial fact-finding, particularly after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and noting that looking further into the facts surrounding a prior conviction likely would violate the standard set forth in Apprendi); Mathews, 453 F.3d at 834 n. 8 (discussing Shepard, and noting that "this limitation preserves the categorical approach of Taylor and ensures that a defendant was 'necessarily' convicted of a generic burglary").
Id. at 786-87 (emphasis in original; footnote omitted).*fn1 It is upon this line of cases that Wilbourn ...