United States v. Newbern, Jamell C.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 05-4709

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMELL C. NEWBERN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Illinois.

No. 05 CR 30071—David R. Herndon, Judge.

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ARGUED JULY 12, 2006—DECIDED MARCH 13, 2007

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Before COFFEY, RIPPLE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Jamell Newbern was convicted of

possessing crack cocaine with intent to distribute. The

district court sentenced him as a career offender to

300 months’ imprisonment after deciding that two of his

prior convictions were for crimes of violence. Newbern

argues that one of those crimes, reckless discharge of a

firearm in violation of Illinois law, is not a crime of

violence. Because it is, we affirm.

I. Background

Federal and state agents staking out a residence in St.

Clair County, Illinois, encountered Newbern leaving the

2 No. 05-4709

premises carrying more than 50 grams of crack cocaine

and over 30 grams of powder cocaine in his pocket and

sock. He was charged with one count of possession of crack

with intent to distribute. 21 U.S.C. § 841(a)(1). Because

Newbern had a prior state conviction for felony posses-

sion of drugs, the government filed an information under

21 U.S.C. § 851 to trigger a higher statutory maximum

under § 841(b)(1). He pleaded guilty without a plea

agreement.

At sentencing the district court concluded that Newbern

was a career offender under U.S.S.G. § 4B1.1, the offense

guideline applicable to a defendant convicted of committing

a crime of violence or a controlled-substance offense after

incurring two prior convictions for crimes of violence or

controlled-substance offenses. Id. § 4B1.1(a), (b). The

district court identified two of Newbern’s prior Illinois

convictions as crimes of violence. The first is a 2000

conviction for reckless discharge of a firearm, 720 ILL.

COMP. STAT. 5/24-1.5 (1993), which, according to the

charging document, resulted in a man being shot in the

leg. The second conviction, for aggravated battery, 720 ILL.

COMP. STAT. 5/12-4(b)(6) (2000), was incurred in 2001 as a

result of Newbern’s attempt to disarm a police officer, see

720 ILL. COMP. STAT. 5/31-1(a) (2000).

Newbern objected to classifying his conviction for

reckless discharge of a firearm as a crime of violence. He

conceded that the charging document accurately re-

counted that he shot someone in the leg. He argued

nonetheless that reckless discharge of a firearm under

Illinois law does not have “as an element the use, at-

tempted use, or threatened use of physical force against

the person of another” as required by U.S.S.G.

§ 4B1.2(a)(1). He also maintained that the offense does not

require conduct that creates “a serious potential risk of

physical injury to another” for purposes of the alternative

definition of a crime of violence under the guidelines.

U.S.S.G. § 4B1.2(a)(2). The district court held that the

No. 05-4709 3

Illinois offense of reckless discharge of a firearm satisfied

the alternative definition of a crime of violence under

§ 4B1.2(a)(2) in that it involved conduct that presented a

serious risk of injury to another.

After ruling on the dispute, the court arrived at an

imprisonment range of 262 to 327 months based on a total

offense level of 34 (after a reduction for acceptance of

responsibility) and a criminal history category of VI. This

range was significantly higher than it would have been had

the court not adjudged Newbern a career offender. Apply-

ing the guidelines as advisory and considering the factors

in 18 U.S.C. § 3553(a), the court sentenced Newbern to 300

months’ imprisonment and a ten-year term of supervised

release.

II. Discussion

On appeal Newbern renews his argument that the

Illinois offense of reckless discharge of a firearm does not

meet the definition of “crime of violence” in the guidelines.

That definition provides:

(a) The term “crime of violence” means any offense

under federal or state law, punishable by impris-

onment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or

threatened use of physical force against the

person of another, or

(2) 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.

U.S.S.G. § 4B1.2(a) (emphasis added). Newbern focuses on

§ 4B1.2(a)(2), on which the district court based its holding,

and parses the Illinois statute, which provides as follows:

4 No. 05-4709

“A person commits reckless discharge of a firearm by

discharging a firearm in a reckless manner which endan-

gers the bodily safety of an individual.” 720 ILL. COMP.

STAT. 5/24-1.5(a). This offense, he argues, does not require

a “serious” risk of physical injury “to another” and there-

fore does not qualify as a crime of violence. Moreover,

although he concedes that he shot the victim in the leg,

Newbern asserts that the charging document does not

provide enough detail about the circumstances of the

shooting to assess the risk or eliminate the possibility that

the shooting was a freak accident.

In deciding whether a prior conviction qualifies as a

crime of violence under § 4B1.2(a), we start—and usually

will end—with the elements of the statute of conviction

and the facts as stated in the charging document. See

United States v. Jackson, 177 F.3d 628, 632 (7th Cir.

1999); United States v. Shannon, 110 F.3d 382, 384 (7th

Cir. 1997) (en banc). Only where the statutory elements

and the content of the charging document do not resolve

whether the crime of conviction constitutes a “crime of

violence” should a court look further, and then only to

documents like plea agreements and transcripts of plea

colloquies, or to admissions by the defendant. See United

States v. Kindle, 453 F.3d 438, 441-42 (7th Cir. 2006);

United States v. Lewis, 405 F.3d 511, 514-15 (7th Cir.

2005); United States v. Cole, 298 F.3d 659, 662-63 (7th Cir.

2002); see also Shepard v. United States, 544 U.S. 13, 26

(2005) (applying the Armed Career Criminal Act). Whether

a prior conviction was for a crime of violence is a ques-

tion of law. Cole, 298 F.3d at 661.

With these rules and the guidelines definition of crime of

violence in mind, we turn to the Illinois statute of convic-

tion, 720 ILL. COMP. STAT. 5/24-1.5(a). Violation of this

statute constitutes a class 4 felony, 720 ILL. COMP. STAT.

5/24-1.5(c), punishable by one to three years in prison, 730

No. 05-4709 5

ILL. COMP. STAT. 5/5-8-1(a)(7) (1994). It therefore satisfies

the threshold requirement of § 4B1.2(a) that a crime of

violence be a felony punishable by more than a year in

prison.

As we have noted, section 5/24-1.5 provides: “A person

commits reckless discharge of a firearm by discharging a

firearm in a reckless manner which endangers the bodily

safety of an individual.” 720 ILL. COMP. STAT. 5/24-1.5(a).

The Illinois criminal code defines recklessness as:

A person is reckless or acts recklessly, when he con-

sciously disregards a substantial and unjustifiable

risk that circumstances exist or that a result will

follow, described by the statute defining the offense;

and such disregard constitutes a gross deviation from

the standard of care which a reasonable person would

exercise in the situation. An act performed recklessly

is performed wantonly, within the meaning of a statute

using the latter term, unless the statute clearly

requires another meaning.

720 ILL. COMP. STAT. 5/4-6 (1992).

Accordingly, “a person commits the offense of reckless

discharge of a firearm when he (1) recklessly discharges a

firearm, and (2) endangers the bodily safety of an individ-

ual.” People v. Collins, 824 N.E.2d 262, 265 (Ill. 2005).

Conviction for a violation of this statute requires proof

that the “defendant’s reckless conduct created a dangerous

situation—such that an individual was in peril of probable

harm or loss.” Collins, 824 N.E.2d at 266. The state need

not show that the defendant was pointing a gun in any-

body’s direction or that any particular individual was

likely to be hit by a bullet. Id. at 268. Rather, because of

the “inherent danger caused by the reckless discharge of a

firearm,” the endangerment element can be satisfied by

evidence that people or homes were in the general vicinity

of the reckless discharge. Id.; see also People v. Watkins,

6 No. 05-4709

837 N.E.2d 943, 946 (Ill. App. Ct. 2005) (holding that

endangerment element was established where “stipulated

evidence showed that the defendant repeatedly fired a gun

into the air in a residential neighborhood”); People v. Kasp,

815 N.E.2d 809, 817 (Ill. App. Ct. 2004) (explaining that

the state must establish that the defendant put someone

in danger by firing and need not prove that defendant

pointed gun toward anyone in particular), appeal denied,

829 N.E.2d 791 (Ill. 2005). The required recklessness can

be established, for example, by proof that the defendant

fired a gun in a residential neighborhood knowing of the

general danger, thus disregarding a substantial and

unjustifiable risk. See Watkins, 837 N.E.2d at 946.

The Illinois offense of reckless discharge of a firearm

plainly requires conduct that presents a “serious potential

risk of physical injury to another” within the meaning of

§ 4B1.2(a)(2). We have previously held that “[t]he general

rule is that possession of a weapon plus some overt action

implying or indicating its use is a crime of violence.”

United States v. Chapple, 942 F.2d 439, 441 (7th Cir.

1991); see also United States v. Vahovick, 160 F.3d 395,

397 (7th Cir. 1998) (citing Chapple, 942 F.2d at 441). We

have also held that firing a gun randomly without aiming

at or targeting anyone in particular is a crime of violence

because of the inherent risk of physical injury to others.

See Cole, 298 F.3d at 661-62 (“mob action” in violation of

720 ILL. COMP. STAT. 5/25-1 is a crime of violence where

defendant was convicted as part of a mob that fired

random shots at a passing car without aiming at anyone

in particular); United States v. McNeal, 900 F.2d 119, 123

(7th Cir. 1990) (firing a gun from a car without targeting

anyone is a crime of violence). Our conclusion that the

Illinois offense of reckless discharge of a firearm is a crime

of violence under § 4B1.1(a)(2) is consistent with a recent

holding of the Eighth Circuit evaluating a similar Iowa

statute. See United States v. Smith, 422 F.3d 715, 722-23

No. 05-4709 7

(8th Cir. 2005), cert. denied sub. nom. Jordan v. United

States, 126 S. Ct. 1112 (2006).

In reaching this conclusion we reject Newbern’s argu-

ment that the Illinois statute does not satisfy

§ 4B1.2(a)(2)’s requirement of a “serious” potential risk of

physical injury to another. Illinois’s definition of reck-

lessness requires a conscious disregard of a “substantial

and unjustifiable risk,” and the offense itself requires

the endangerment of the “bodily safety of an individual.”

Thus, the requirement of a serious risk of injury is spelled

out in the elements of the offense and the statutory

definition of recklessness.

Newbern also suggests that a defendant might violate

the statute by recklessly endangering an “individ-

ual”—himself—without posing “a serious potential risk of

physical injury to another” within the meaning of

§ 4B1.2(a)(2). At oral argument he gave the example of

playing “Russian roulette” on an empty farm. But Newbern

has not offered any authority for his assumption that a

person can violate the Illinois statute by endangering

himself, and the Illinois cases applying the law have

uniformly assumed that “individual” means someone

other than the shooter. See, e.g., Collins, 824 N.E.2d at

268-70; Watkins, 837 N.E.2d at 946. These decisions have

required proof of endangerment of another individual to

sustain a conviction, even in cases when the shooter had

also endangered himself by shooting directly into the air

above his head. See Collins, 824 N.E.2d at 268-70;

Watkins, 837 N.E.2d at 946. Indeed, one Illinois court has

condemned the state’s attempt to prosecute a person who

shot himself for violating an analogous statute that

criminalizes reckless conduct that “ ‘causes bodily harm to

or endangers the bodily safety of an individual.’ ” See

People v. Peters, 536 N.E.2d 465, 466-69 (Ill. App. Ct. 1989)

(quoting former section 5/12-5(a)). Calling the state’s

8 No. 05-4709

construction of this analogous statute “unreasonable,” the

Peters court explained that the statute was intended to

protect the innocent from the reckless, not the reckless

from themselves. Id. at 466-69.

Finally, we reject Newbern’s argument regarding the

level of detail in the charging document. Because the

statute itself makes clear that reckless discharge of a

firearm qualifies as a crime of violence, the factual detail

in the charging document is irrelevant to this case. But

had this not been a clear-cut case, the content of the

charging document would be fair game, see Shepard, 544

U.S. at 26; Lewis, 405 F.3d at 514-15, especially consider-

ing that at sentencing Newbern conceded its factual

accuracy, see Kindle, 453 F.3d at 441-42; United States v.

Washington, 417 F.3d 780, 788 (7th Cir. 2005). The

charging document states that Newbern “endangered the

bodily safety of Charlton Chaney in that while acting in

a reckless manner, he discharged a firearm and in so

doing, he shot Charlton Chaney in the right leg.” That is

all we need to know. Even disregarding that Chaney

was actually injured, the charging document makes

clear he was put at serious risk of injury by Newbern’s

reckless shooting, which is enough to hold that the offense

is a crime of violence. See Cole, 298 F.3d at 661-62; accord

United States v. Terry-Crespo, 356 F.3d 1170, 1177-78 (9th

Cir. 2004) (firing gun at building in city); United States v.

Rutledge, 33 F.3d 671, 674 (6th Cir. 1994) (firing gun

toward person in jest); United States v. Thompson,

891 F.2d 507, 510 (4th Cir. 1989) (pointing gun at some-

one).

Newbern’s Illinois conviction for reckless discharge of

a firearm involved conduct that presented a serious

potential risk of physical injury to another within the

meaning of § 4B1.1(a)(2). The district court properly

counted it as a prior crime of violence. The judgment of the

district court is AFFIRMED.

No. 05-4709 9

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-13-07