United States v. Ker Yang

In the

United States Court of Appeals

For the Seventh Circuit

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No. 14-3688

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KER YANG,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:14-CR-00070-001 — William M. Conley, Chief Judge.

____________________

ARGUED MAY 27, 2015 — DECIDED AUGUST 21, 2015

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Before POSNER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Ker Yang pled guilty to being a

felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). The district court then found that Yang had three

felony convictions that could be classified as violent under

the Armed Career Criminal Act, often called ACCA. The

court imposed the resulting mandatory minimum sentence

of fifteen years in prison. 18 U.S.C. § 924(e)(1). Yang appeals,

arguing that one of the three felony convictions cannot be a

2 No. 14-3688

violent felony under ACCA. The state court document re-

cording the conviction did not clearly identify the statute of

conviction. Yang argues that the district court was not per-

mitted to look beyond the face of the document to identify

the statute of conviction and thereby impose the heavier

ACCA sentence.

We affirm. The conviction in question was for felony do-

mestic assault in violation of Minnesota Statute § 609.224(4),

which is a violent felony under ACCA. The district court

could consult the relevant sentencing and plea transcripts to

identify the statute of conviction without running afoul of

ACCA or the Supreme Court’s decisions interpreting it.

Before turning to what a district court may or must do

with an ambiguous judgment of conviction, we first provide

some background about how a sentencing court must de-

termine whether a prior conviction qualifies under ACCA.

The statute requires an enhanced sentence for a felon in pos-

session of a firearm who “has three previous convic-

tions … for a violent felony or a serious drug offense.”

§ 924(e)(1). The statute 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 anoth-

er; or (ii) is burglary, arson, or extortion, [or] involves use of

explosives.” § 924(e)(2)(B).1

1 The Supreme Court recently invalidated as unconstitutionally

vague ACCA’s so-called “residual clause” that had extended the defini-

tion of “violent felony” to include any felony that “otherwise involves

conduct that presents a serious potential risk of physical injury to anoth-

er.” Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551, 2563 (2015); 18

No. 14-3688 3

Determining which prior convictions were for violent

felonies under ACCA can be difficult in some cases. In most

cases, a federal sentencing court determines whether a prior

conviction counts as a violent felony under ACCA by using

the “categorical approach.” See Descamps v. United States, 570

U.S. —, 133 S. Ct. 2276, 2281 (2013). Under the categorical

approach, the sentencing court looks at the elements of the

statute of conviction to determine if it “has as an element the

use, attempted use, or threatened use of physical force

against the person of another,” see § 924(e)(2)(B)(i), or it has

elements that are the same as, or narrower than, those of the

“generic” crimes listed in § 924(e)(2)(B)(ii), burglary, arson,

extortion, or a crime involving the use of explosives.

The issue is “whether the elements of the offense are of the

type” that makes the offense a violent felony, and the court

must answer this question “without inquiring into the spe-

cific conduct of this particular offender.” United States v.

Woods, 576 F.3d 400, 403 (7th Cir. 2009), quoting James v.

United States, 550 U.S. 192, 202 (2007); see also id. at 405 (sen-

tencing under ACCA “precludes deciding on a case-by-case

basis whether a particular prior violation of a general statute

posed the kind of risk of violence that would justify the re-

cidivism enhancements provided by the ACCA”). The sen-

tencing judge need not and may not consult any of the facts

underlying the prior conviction. It does not matter if the de-

fendant violated the statute of conviction in a particularly

violent or non-violent way. The inquiry looks only at the

statutory elements of the prior conviction to determine

whether it qualifies as a violent felony. See Descamps, 133 S.

U.S.C. § 924(e)(2)(B)(ii). Yang’s case does not involve the residual clause,

so Johnson does not affect him.

4 No. 14-3688

Ct. at 2285–86; Shepard v. United States, 544 U.S. 13, 16 (2005);

Taylor v. United States, 495 U.S. 575, 600 (1990); United States v.

Misleveck, 735 F.3d 983, 984 (7th Cir. 2013).

In some circumstances, however, ACCA permits the sen-

tencing judge to look beyond the judgment and statute of

conviction as part of this inquiry. Using what has been called

the “modified categorical approach,” the court may look to a

limited selection of additional documents, including charg-

ing documents, plea agreements, jury instructions, plea and

sentencing transcripts, and findings of fact and conclusions

of law from a bench trial, when necessary to determine the

elements of conviction—as opposed to the facts underlying

that conviction. See Descamps, 133 S. Ct. at 2281; Johnson v.

United States, 559 U.S. 133, 144 (2010); Shepard, 544 U.S. at 16;

United States v. Mathews, 453 F.3d 830, 835 (7th Cir. 2006).2

Resort to such materials is necessary when the prior con-

viction is for violating a “divisible” statute. Such statutes list

one or more elements in the alternative, giving the prosecu-

tion multiple ways to prove the offense. If the judgment

identifies only the statute of conviction, it will not specify

which elements necessarily served as the basis for the con-

viction. If not all alternatives would qualify the conviction as

2 While the modified categorical approach allows a court to look be-

yond the judgment and the statute of conviction to documents such as

plea agreements and transcripts of guilty pleas and sentencings, the

court may not consider police reports, complaint applications, or other

sources that do not reflect either the defendant’s own admissions or the

findings of a judge or jury. Formal charging documents may be used,

however, to identify just which elements of a crime were resolved by a

judgment of conviction. See Shepard, 544 U.S. at 16; see also United States

v. Black, 636 F.3d 893, 898 (7th Cir. 2011).

No. 14-3688 5

a violent felony under ACCA, a court may try to determine

which alternative served as the basis of a defendant’s convic-

tion.

For this limited inquiry, these outside documents (often

called “Shepard documents” after Shepard v. United States, 544

U.S. 13) are available and can prove decisive. See Descamps,

133 S. Ct. at 2281, 2284–85. Once the elements of conviction

are definitively established, the inquiry is identical to the

categorical approach described above: those elements are

evaluated to determine whether they establish a violent fel-

ony under ACCA. Id. at 2281, 2285. Even when this modified

categorical approach is used, the sentencing court may use

these additional sources “only to determine which crime

within a statute the defendant committed, not how he com-

mitted that crime.” Woods, 576 F.3d at 405.

Against this backdrop, Yang argues that one of his three

convictions relied upon by the district court could not quali-

fy under ACCA because it was not clear from the judgment

of conviction which provision of the Minnesota criminal

code he had violated. The judgment is a printed form with

handwriting. Its only identification of the crime of convic-

tion is the handwritten note “felony domestic” for the

charge, without any more specific citation to a state statute.

Unless the district judge could tell what the statute was,

Yang argues, it would be impossible for the judge to apply

the categorical approach to determine whether the convic-

tion counted as an ACCA predicate. Instead, as happened

here, the judge would need to look beyond the judgment of

conviction to the plea and sentencing transcripts to deter-

mine that he was convicted of felony domestic assault in vio-

lation of Minn. Stat. § 609.224(4).

6 No. 14-3688

Yang argues that Supreme Court precedent prohibited

the sentencing judge from looking beyond the judgment un-

less the statute of conviction was divisible. In his view, only

when the sentencing court confronts a conviction under a

divisible statute may the court consult the documents al-

lowed under the modified categorical approach. Yang relies

on Descamps, where the Court wrote: “A court may use the

modified approach only to determine which alternative ele-

ment in a divisible statute formed the basis of the defend-

ant’s conviction.” 133 S. Ct. at 2293 (emphasis added). As

Yang sees it, the modified approach was used here for a dif-

ferent purpose, so the district court erred by doing what

Descamps prohibits.

The government argues that the district court did not ac-

tually base its finding that the conviction was for a violent

felony on anything other than the judgment of conviction

and a look at the Minnesota criminal code, which is always

permissible under ACCA. One can read the sentencing tran-

script that way, but it is also clear that the district judge did

in fact consult the so-called Shepard documents at the very

least to confirm his conclusion that Yang was convicted un-

der the felony provision of § 609.224.

We think the better approach here is to assume that the

judge’s examination of the Shepard documents to confirm his

research may well have been decisive. Even if those docu-

ments made a decisive difference, we find no error. A sen-

tencing judge faced with an arguably ambiguous judgment

of conviction may consult Shepard documents, such as plea

and sentencing transcripts, to determine under which statute

the defendant was convicted. Cf. United States v. Meherg, 714

F.3d 457, 459 (7th Cir. 2013) (noting that defendant could

No. 14-3688 7

have disputed the interpretation of an unclear judgment by

offering “evidence, such as a plea colloquy or sentencing

transcript, indicating that he was convicted of a crime differ-

ent from the one charged”).

But what of the Descamps language quoted above saying

the modified categorical approach may be used “only to de-

termine which alternative element in a divisible statute

formed the basis of the defendant’s conviction”? 133 S. Ct. at

2293. Similar language has echoed through our opinions, as

well. See Black, 636 F.3d at 899 (district court did not err

when it declined to consider underlying documents, even in

the face of ambiguity, because “the controlled substance

statutes under which [defendant] was convicted are not di-

visible”); United States v. Ramirez, 606 F.3d 396, 399 (7th Cir.

2010) (“When an offense is not divisible, plea colloquies, ju-

dicial admissions, judicial findings, and jury instructions

from the prior prosecutions cannot be used to classify the

prior convictions.”); Woods, 576 F.3d at 411 (“As we ex-

plained earlier, James, Taylor, and Shepard permit a court to

go beyond the statutory definition of the crime to consult ju-

dicial records (charging documents, plea colloquy, etc.) only

where the statute defining the crime is divisible.”).

Yang’s argument illustrates the hazards of reading too lit-

erally the language in judicial opinions. The actual issue in

Descamps was what a federal court could do when evaluating

a conviction under California’s broad burglary statute, which

does not require proof of an unlawful entry. The Supreme

Court has treated unlawful entry as an essential element un-

der ACCA’s use of a generic “burglary” as a predicate vio-

lent felony. See 133 S. Ct. at 2282. The Supreme Court held in

Descamps that a sentencing court could not look at Shepard

8 No. 14-3688

documents to determine if the prosecution had actually

proven defendant’s unlawful entry even though no element,

or alternative element, of the statute required such proof. See

id. at 2287–88, 2293. In other words the Court held that a

court may not consult sources outside the judgment and

statute of conviction to determine whether or not a given de-

fendant’s actions would be an ACCA violent felony. Id. at

2293.

The issue here is determining the identity of the statute of

conviction, not the particular way in which it was violated.

Looking to a limited set of outside sources—here the plea

and sentencing transcripts—to identify the statute of convic-

tion is consistent with the modified categorical approach and

the limits ACCA places on federal sentencing courts. Despite

the general language Yang quotes, the Supreme Court has

made clear that a sentencing court may reach beyond the

judgment of conviction when it needs to “determine which

statutory phrase was the basis for the conviction.” Johnson v.

United States, 559 U.S. 133, 144 (2010).

The precise statutory basis for the conviction (the “statu-

tory phrase”) can be ambiguous either because the statute

lists elements in the alternative or (less often) because the

statute is not identified clearly. We see no reason to distin-

guish between the two situations in deciding how the sen-

tencing court may resolve the ambiguity. For the same rea-

sons that the “modified categorical approach” may be used

as a tool to determine the correct statutory subsection of con-

viction—in effect, to choose among several different

crimes—it makes equal sense to use that tool to determine

the correct statutory section of conviction. See Descamps, 133

S. Ct. at 2285 (“All the modified approach adds is a mecha-

No. 14-3688 9

nism for making that comparison when a statute lists multi-

ple, alternative elements, and so effectively creates ‘several

different Y crimes.’”), quoting Nijhawan v. Holder, 557 U.S. 29,

41 (2009). Either way, the approach is used only to “identify,

from among several alternatives, the crime of conviction” so

that the court can correctly apply the categorical approach.

Id. at 2285.

If we read the language of Descamps too literally, without

regard for the issue decided and the reasoning behind the

decision, we would be attributing to the Supreme Court an

imprudently wooden formalism with the language of its

own opinions. The “language of an opinion is not always to

be parsed as though we were dealing with language of a

statute,” Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979), for

“[j]udges expect their pronunciamentos to be read in con-

text.” Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005); see

also Illinois v. Lidster, 540 U.S. 419, 424 (2004) (general lan-

guage in judicial opinions must be read in context and not as

“referring to quite different circumstances that the Court

was not then considering”); Cohens v. Virginia, 19 U.S. 264,

399 (1821) (Marshall, C.J.) (“general expressions, in every

opinion, are to be taken in connection with the case in which

those expressions are used. If they go beyond the case, they

may be respected, but ought not to control the judgment in a

subsequent suit when the very point is presented for deci-

sion.”).

Extending the use of the Shepard documents from identi-

fying the right statutory subsection to identifying the right

statutory section does not threaten to transform the “ele-

ments-based” inquiry under the categorical approach to the

“evidence-based” inquiry rejected in Descamps, 133 S. Ct. at

10 No. 14-3688

2287. When faced with an ambiguous judgment, the sentenc-

ing court will look to the approved sources to determine the

statute of conviction—that is, the elements of the crime of

conviction—to compare it to the requirements of ACCA.

At no point does this approach permit the sentencing

judge to look beyond the elements of the crime of conviction

when determining whether the felony is violent. The use of

Shepard documents is therefore nothing like the use prohibit-

ed in Descamps, where the government sought to use the ad-

ditional materials to establish that the state had actually

proven a violent felony as defined by ACCA even though the

words of the underlying statute did not necessarily require

the jury (or judge accepting a plea) to find that one of the

ACCA-defined violent felony elements was met. See 133 S.

Ct. at 2285–87.

The district court properly determined that Yang was

convicted of felony domestic assault under Minn. Stat. §

609.224 and that the crime qualifies as a violent felony under

ACCA. As it happens, § 609.224 can be violated in a number

of ways: as a misdemeanor, as a “gross misdemeanor,” or as

a felony. Using the same documents consulted to determine

the overall statute of conviction—those permitted by the

modified categorical approach—it is easy to find that Yang’s

conviction was under the subdivision describing felony as-

sault, § 609.224(4). Under the statute, an individual is guilty

of felony domestic assault if he “(1) commits an act with an

intent to cause fear in another of immediate bodily harm or

death; or (2) intentionally inflicts or attempts to inflict bodily

harm upon another” and does so within a specified amount

of time of having committed other qualified domestic vio-

lence-related offenses. Minn. Stat. § 609.224(1), (4). A convic-

No. 14-3688 11

tion under this statute qualifies as a violent felony because it

has “as an element the use, attempted use, or threatened use

of physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(i).

The judgment of the district court is AFFIRMED.