Appeal from the United States District Court for the Central District of Illinois. No. 3:07-cr-30083-Jeanne E. Scott, Judge. Appeal from the United States District Court for the Southern District of Illinois. No. 4:06-cr-40006-001-J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before BAUER, MANION, and SYKES, Circuit Judges.
Nathaniel Capler pleaded guilty to two drug offenses and was sentenced to 141 months' imprisonment based in part on an Illinois conviction for unlawful restraint that the district court deemed to be a "crime of violence" within the meaning of U.S.S.G. § 4B1.2. See 720 ILL. COMP. STAT. 5/10-3. On appeal he challenges only the district court's conclusion that his prior conviction is a crime of violence.*fn1
We affirm. The district court's ruling finds direct support in our decisions in United States v. Wallace, 326 F.3d 881, 887 (7th Cir. 2003), and United States v. Billups, 536 F.3d 574, 584 (7th Cir. 2008). Wallace analyzed the Illinois statute in question and concluded that the offense is a crime of violence. Billups reached the same conclusion about the closely analogous crime of false imprisonment in Wisconsin. Notwithstanding Capler's efforts to challenge the validity of Wallace and Billups, these decisions remain sound and together control the outcome of this appeal.
Capler sold crack cocaine to a police informant. He was arrested and pleaded guilty to two counts of distribution. See 21 U.S.C. § 841(a)(1). The district court sentenced him as a career offender to a total of 141 months' imprisonment. See U.S.S.G. § 4B1.1. The career-offender designation is based on two Illinois convictions, one for delivery of a controlled substance and the other for unlawful restraint. Capler's appointed lawyer initially cast the appeal as frivolous and moved to withdraw under Anders v. California, 386 U.S. 738 (1967), but we denied that motion after concluding that an appeal asking us to revisit Wallace would not be frivolous. Capler's attorney has now briefed that argument on the merits.
In deciding if a conviction is for a crime of violence, we look to the statutory elements and the manner in which the offense ordinarily is committed. United States v. Sonnenberg, 628 F.3d 361, 364 (7th Cir. 2010); United States v. Dismuke, 593 F.3d 582, 591 (7th Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3062 (U.S. July 19, 2010) (No. 10-109). As relevant here, a "crime of violence" is any offense punishable by imprisonment exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1), or "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," id. § 4B1.2(a)(2). In Illinois a person "commits the offense of unlawful restraint when he or she knowingly without legal authority detains another." 720 ILL. COMP. STAT. 5/10-3(a) (2010). The use or threatened use of force is not an element, see People v. Brials, 732 N.E.2d 1109, 1119 (Ill. App. Ct. 2000); People v. Bowen, 609 N.E.2d 346, 361 (Ill. App. Ct. 1993), so the crime as defined in Illinois does not satisfy subsection (a)(1). Our analysis thus shifts to subsection (a)(2).
Unlawful restraint is not one of the specific crimes listed in the first part of § 4B1.2(a)(2), so to count as a violent felony, the crime must fall within the residual clause, which covers offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another." This requires a determination that the offense is "roughly similar" to those that are specifically enumerated. See Begay v. United States, 553 U.S. 137, 143 (2008); United States v. Woods, 576 F.3d 400, 404 (7th Cir. 2009). Before the Supreme Court decided Begay, we had analyzed the residual clause by asking only whether the crime in question typically encompasses conduct creating a risk of injury similar to the enumerated crimes. See, e.g., United States v. Mathews, 453 F.3d 830, 836-37 (7th Cir. 2006); United States v. Franklin, 302 F.3d 722, 723 (7th Cir. 2002). Begay added a second level of analysis, a similar-in-kind inquiry, which asks whether the crime as ordinarily committed reflects the same "purposeful, violent, and aggressive" conduct as the listed crimes. 553 U.S. at 144-45. Only if a crime is similar both in kind and degree of risk posed can it qualify as a crime of violence under § 4B1.2(a)(2). Id.
After Begay we held in Woods that when the statute in question is divisible-when it defines alternative means of committing a crime, some violent and some not-the district court may expand its categorical inquiry by examining a limited set of additional materials to determine whether the defendant was con- victed of the violent version of the crime. See Woods, 576 F.3d at 403. The Illinois statute does not define alternative means of committing the crime of unlawful restraint and thus is not "divisible" as we explained the concept in Woods, id. at 404-07. The offense is a crime of violence, then, only if it is categorically similar to burglary, arson, extortion, and crimes involving the use of explosives. See Begay, 553 U.S. at 144-45; Dismuke, 593 F.3d at 594; United States v. Hart, 578 F.3d 674, 680-81 (7th Cir. 2009); United States v. Evans, 576 F.3d 766, 768-69 (7th Cir. 2009). This similarity was found to be present in Wallace, 326 F.3d at 887, a pre-Begay decision concluding that a violation of the Illinois unlawful-restraint statute generally will carry a risk of violence. We have not reevaluated that position since Begay, but we have concluded post-Begay that the analagous crime of false imprisonment as defined by Wisconsin statute is categorically violent. See WIS. STAT. § 940.30; Billups, 536 F.3d at 584.
The sole issue in this appeal is whether unlawful restraint as defined by Illinois law falls within § 4B1.2(a)'s residual clause for crimes roughly similar to the enumerated offenses. Capler argues that the statute encompasses too much nonviolent conduct for it to be categorically labeled as a violent felony. Although Capler concedes that Wallace and Billups are on point, he contends that both decisions are incorrect and urges us to reconsider them in light of more recent opinions from this court. Because Capler preserved this argument for appeal, our review is plenary. See United States v. Clinton, 591 F.3d 968, 972 (7th Cir. 2010), cert. denied, 79 U.S.L.W. 3202 (U.S. Oct. 4, 2010) (No. 10-5137).
In Wallace we held that unlawful restraint as defined in Illinois is a violent felony for purposes of the Armed Career Criminal Act, see 18 U.S.C. § 924(e)(2)(B), which tracks the language in § 4B1.2(a). Wallace, 326 F.3d at 887. Applying the pre-Begay categorical approach, we reasoned that unlawful restraint generally precipitates a risk of violence, whether in the initial restraint or a resulting confrontation between victim and assailant. Id. Although we did not expressly conclude that unlawful restraint is "similar in kind" to the crimes enumerated before the residual clause (that requirement was added in Begay), our analysis of the risk of injury strongly implies that this sort of categorical similarity is present. Id.
Our decision in Wallace, then, is not a dead letter. If anything it anticipated Begay even though we did not articulate the analysis in precisely the same terms as the standard later announced by the Supreme Court. Like any precedential decision, Wallace stands until we are given good reason to overrule it. See United States v. Sykes, 598 F.3d 334, 338 (7th Cir. 2010), cert. granted, 79 U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-11311); Tate v. Showboat Marina Casino P'ship, 431 F.3d 580, 583 (7th Cir. 2005). We invited Capler to identify a reason, but his response is simply to write off Wallace on the ground that the opinion was issued five years before Begay. Instead, he mostly focuses on trying to overcome Billups, but that strategy is ...