The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on Defendant's objection to the Presentence Investigation Report (PSR) regarding his status as an Armed Career Criminal. This court has carefully considered the arguments of the parties and the applicable case law. Following this careful review, this court adopts the position of the probation officer and the Government. Accordingly, this court denies Defendant's objection.
On December 2, 2008, Defendant was charged by indictment with the offense of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) and 924(e). A jury trial commenced on August 3, 2009. Defendant testified on August 4, 2009, and the jury found him guilty of the offense charged in the indictment the same day. Sentencing was scheduled for November 20, 2009, at 2:30 p.m.
Probation subsequently prepared the PSR. The PSR recommended increasing Defendant's offense level by two levels for obstruction of justice because Defendant testified falsely at his jury trial. The PSR also stated that Defendant qualified as an Armed Career Criminal, pursuant to United States Sentencing Guideline § 4B1.4. The PSR stated that Defendant had three prior convictions for violent felony offenses as defined in 18 U.S.C. § 924(e)(2)(B). The PSR listed the three qualifying convictions as: (1) Home Invasion (Kankakee County Circuit Court, Case #99-CF-324); (2) Aggravated Battery on a Peace Officer (Kankakee County Circuit Court, Case #99-CF-357); and (3) Aggravated Battery on a Peace Officer (Kankakee County Circuit Court, Case #04-CF-614). The PSR stated that, as an Armed Career Criminal, Defendant's offense level is 33. With a Criminal History category of VI, Defendant's advisory guideline sentencing range is 235-293 months.
The PSR stated that Defendant had advised the probation office of two unresolved objections. Defendant objected to the two-level increase for obstruction of justice and also objected to being classified as an Armed Career Criminal. Defendant argued that his conviction for Aggravated Battery in Kankakee County Circuit Court Case #99-CF-357 was a conviction based on "physical contact of an insulting or provoking nature" and therefore is not a violent felony based upon United States v. Evans, 576 F.3d 766, 767 (7th Cir. 2009).
On November 16, 2009, the Government filed a Commentary on Sentencing Factors and Objections to the Presentence Report (#48). The Government argued that Defendant's conviction for Aggravated Battery of a Peace Officer (insulting and provoking contact) in Kankakee County Circuit Court Case #99-CF-357 is a violent felony under the applicable case law. In support of this argument, the Government attached a report released by the United States Department of Justice-Federal Bureau of Investigation (FBI) in October 2009 entitled "Uniform Crime Report, Law Enforcement Officers Killed and Assaulted, 2008."
On November 20, 2009, the sentencing hearing was not held and the case proceeded to a status conference. This court allowed Defendant until January 4, 2010, to respond to the Government's Commentary. This court also allowed the Government until January 25, 2010, to file a Reply to Defendant's Response.
On December 30, 2009, Defendant filed his Response to the Government's Commentary (#49). Defendant noted that the Government had accurately set out the cases controlling the result here. Defendant argued, however, that the "clearest way to resolve the issue is to strictly follow Evans." On January 25, 2010, the Government filed its Reply (#50). The Government argued that Evans is distinguishable and does not resolve the issue in this case. The Government also noted that it believes that Evans was wrongly decided based upon a decision of the Eleventh Circuit in United States v. Johnson, 528 F.3d 1318, 1321 (11th Cir. 2008). The United States Supreme Court granted certiorari in Johnson and held oral argument during the first week of October 2009. The Government noted that no decision has been issued by the Supreme Court as of the date of its Reply. This court notes that no decision has been issued by the United States Supreme Court in Johnson as of the date of this Opinion.
On January 29, 2010, a status conference was held. This court took Defendant's objections to the PSR under advisement and set Defendant's sentencing for February 25, 2010, at 1:30 p.m.
In this case, there is no dispute that Defendant's prior conviction of home invasion and prior conviction of aggravated battery of a peace officer in Case #04-CF-614, which involved Defendant pleading guilty to knowingly causing bodily harm to a police officer, are violent felonies for purposes of the Armed Career Criminal Act. The issue is whether his 1999 conviction of aggravated battery of a peace officer qualifies as a violent felony. This court notes that the issue of whether certain convictions qualify as a violent felony for purposes of the Armed Career Criminal Act has been the subject of a number of recent Seventh Circuit decisions. See, e.g., United States v. Goodpasture, ___ F.3d ___, 2010 WL 424577 (7th Cir. 2010) (prior California conviction for lewd or lascivious act involving person under the age of 14 not a violent felony under the Armed Career Criminal Act); United States v. Dismuke, ___ F.3d ___, 2010 WL 292671 (7th Cir. 2010) (defendant's prior Wisconsin conviction for vehicular fleeing was a violent felony under Armed Career Criminal Act); United States v. McDonald, 592 F.3d 808 (7th Cir. 2010) (applying same standard as standard set out for convictions under Armed Career Criminal Act, court found defendant's prior Wisconsin convictions for first-degree reckless injury and second-degree sexual assault of a child did not qualify as crimes of violence).
Section 924(e)(2)(B) defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year . . . that - (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). To determine whether a prior conviction qualifies as a violent felony under the Armed Career Criminal Act, the United States Supreme Court has instructed courts to apply a "categorical approach." McDonald, 592 F.3d at 810, citing Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1584 (2008), James v. United States, 550 U.S. 192, 202 (2007), Shepard v. United States, 544 U.S. 13, 17 (2005), Taylor v. United States, 495 U.S. 575, 602 (1990). This means that courts may "look only to the fact of conviction and the statutory definition of the prior offense" and do not generally consider the defendant's actual conduct or the "particular facts disclosed by the record of conviction." McDonald, 592 F.3d at 810, quoting Shepard, 544 U.S. at 17. "[F]ederal recidivist statutes such as § 924(e) ask what the defendant was convicted of, not what he did in fact." Goodpasture, 2010 WL 424577, at *2.
A modified categorical approach applies when a statute is "divisible"-that is, when it creates more than one crime or one crime with multiple enumerated modes of commission, some of which may be crimes of violence and some not. McDonald, 592 F.3d at 810, citing United States v. Woods, 576 F.3d 400, 405-06 (2009). "When the statute at issue is divisible in this sense, [courts] may look to the charging document, plea agreement, or other comparable judicial record from the underlying conviction-not to inquire into the specific conduct of the defendant but for the ...