United States of America v. Rodney T. Howze

Rodney Howze fired a
gun into the air to disperse a group of unruly teenagers.
This was not a good idea: Howze, who had several criminal
convictions, was not allowed to possess a gun, let alone
fire one on a crowded street. He pleaded guilty to violating
18 U.S.C. §922(g), which prohibits felons from having guns.
The prosecutor proposed to treat three of Howze's prior
convictions as "violent felonies," which would require a
15-year mandatory minimum sentence under the Armed
Career Criminal Act, 18 U.S.C. §924(e). The district court
agreed with the prosecutor and sentenced Howze to 180 months' imprisonment. He concedes on appeal that one of
the priors - making terroristic threats - meets the statutory
definition. But he objects to giving the same characterization
to his convictions for theft from a person and fleeing
from an officer. Howze has other convictions whose significance
is not argued, so we limit attention to these two.

For purposes of §922(g), "violent felony" is a crime punishable
by imprisonment for more than a 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 potential risk of physical injury to
another[.]

18 U.S.C. §924(e)(2)(B). Taylor v. United States, 495 U.S.
575 (1990), the Supreme Court's only decision interpreting
this language, sets the stage for analysis.

The issue in Taylor was whether every crime bearing the
label "burglary" in every state's criminal code is "burglary"
under §924(e)(2)(B)(ii). The defendant argued that his particular
burglaries should not be counted under subsection
(ii) because they did not present a risk of physical injury.
The Supreme Court decided, first, that classification depends
on the nature of the offense as defined in the criminal
code rather than either the label the state applies or the
specific acts the defendant committed, and, second, that the
best way to determine which offenses count as "burglary"
for purposes of federal law is to determine which offenses
pose risks that force will be used. Classification, in other
words, is categorical, as one might expect for a recidivist
statute. See 495 U.S. at 590, 601-02. The Court concluded
that "burglary" in subsection (ii) comprises all offenses that
entail entries into (potentially) occupied buildings such as residences and offices, because these present a risk that the
burglar will encounter the occupant and violence ensue.
Because states may draw the line between burglary and
other theft crimes differently, however, the Court observed
that it may be necessary to look at the charging papers (the
indictment or information) to determine whether a particular
crime concerned a building or some other structure,
such as a box car or chicken coop. What follows from Taylor
is that courts classify convictions rather than acts - that is,
recidivist sentencing under §922(g) follows charge-offense
rather than real-offense principles - but that the acts alleged
in the charge may be essential to determine what
offense the accused stands convicted of. Any dispute about
the nature of the conviction must be resolved from the text
of the charge and not by holding an evidentiary hearing.

Now let us take up Howze's conviction for fleeing from an
officer. He pleaded guilty to violating this rule of Wisconsin
law:

No operator of a vehicle, after having received a
visual or audible signal from a traffic officer, or
marked police vehicle, shall knowingly flee or attempt
to elude any traffic officer by willful or wanton
disregard of such signal so as to interfere with
or endanger the operation of the police vehicle, or
the traffic officer or other vehicles or pedestrians,
nor shall the operator increase the speed of the
operator's vehicle or extinguish the lights of the vehicle
in an attempt to elude or flee.

Wis. Stat. §346.04(3). This statute must be classified under
the "serious potential risk" aspect of subsection (ii). We
have held that Taylor's categorical approach applies to
that issue. See United States v. Shannon, 110 F.3d 382,
384-85 (7th Cir. 1997) (en banc).

Howze insists that one can violate Wis. Stat. §346.04(3)
without creating a "serious potential risk of physical injury to another". In his view, a motorist who disobeys police instructions
and increases speed in an attempt to flee does
not threaten the safety of bystanders so long as he does not
exceed the speed limit or violate some other law along the
way. We rejected a similar argument in United States v.
Bryant, 310 F.3d 550 (7th Cir. 2002). Bryant held that
escape from custody always is a "crime of violence". Bryant
failed to return to a halfway house after a spell of work release;
he broke no walls and did nothing illegal other than
to remain outside the halfway house beyond the permitted
time. We concluded that bust-out escapes and simple failures
to return should be classified the same because the
crime is the same and because that crime holds the potential
for violence during attempted recaptures. Drawing a
distinction based on the way in which the defendant got
loose would be inconsistent with the categorical approach
required by Taylor, we held. See 310 F.3d at 553-54. Because
the statute calls for an assessment of risk rather
than actual outcomes, and the risk that someone will get
hurt during recapture (or flight to avoid recapture) does not
depend on how the offender got away in the first place, all escapes must be classified as crimes of violence. See also
United States v. Franklin, 302 F.3d 722, 725 (7th Cir. 2002).
Every other circuit that has addressed this issue has come
to the same conclusion. See United States v.
Springfield, 196 F.3d 1180, 1185 (10th Cir. 1999); United
States v. Houston, 187 F.3d 593, 594 (6th Cir. 1999); United
States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. 2002);
United States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995);
United States v. Ruiz, 180 F.3d 675, 677 (5th Cir. 1999).

Flight to avoid apprehension is one means through which
the risk of escape may be realized. When the crime is flight
to avoid apprehension, what is only a risk for escape becomes
a certainty. Bystanders are in particular jeopardy.
Collisions between fleeing vehicles and pedestrians or others
who get in the way are common. See, e.g., Sacramento v. Lewis, 523 U.S. 833 (1998); Mays v. East St. Louis, 123
F.3d 999 (7th Cir. 1997); Campbell v. White, 916 F.2d 421
(7th Cir. 1990). Thus, if all escapes are violent crimes, all
flights to avoid arrest must be violent crimes. Indeed, flight
may be even more dangerous than escape, because many
escapes do not entail flight to avoid capture - but all flights
involve that risk-creating conduct. Howze observes that
the custodial status of a person fleeing from the police is
different from that of a prisoner escaping from a place of
incarceration. True enough, but not very helpful. To distinguish
Bryant and Franklin on the basis of the defendant's
custodial status, Howze would have to present evidence
that flight after custody (that is, escape) is more likely to
result in a "serious potential risk of physical injury to
another" than is flight before custody (the crime defined by
Wis. Stat. §346.04(3)). Howze has not come up with any
evidence along these lines, and we are not aware of any.

Robbery is the other conviction that requires classification.
Howze was convicted of violating Minn. Stat.
§609.52, which covers a variety of theft offenses - such a
large variety, indeed, that it is necessary to consult the
charging papers to see which kind Howze committed. He
was charged with stealing a bicycle from its rider, in violation
of Minn. Stat. §609.52(2)(1) and (3)(3)(d). Here is the
statutory language:

Subdivision 2. Whoever does any of the following commits
theft and may be sentenced as provided in subdivision
3:

(1) intentionally and without claim of right takes,
uses, transfers, conceals or retains possession of
movable property of another without the other's
consent and with intent to deprive the owner
permanently of possession of the property[.]

Subdivision 3. Whoever commits theft may be sentenced
as follows:

* * *

(3) to imprisonment for not more than five years or
to payment of a fine of not more than $10,000, or
both, if:

* * *

(d) the value of the property or services
stolen is not more than $500, and any of
the following circumstances exist:

(i) the property is taken from the
person of another or from a corpse,
or grave or coffin containing a
corpse[.]

Howze, the prosecutor, and the district court all treat subdivision
(3), nominally a sentencing rule, as establishing
elements of a distinct offense. The charging papers show,
moreover, that Howze took the bicycle from a live person
rather than from a corpse, coffin, or grave. Thus Howze
has been convicted of theft "from the person of another", a
crime that in Minnesota carries a maximum punishment of
five years' imprisonment. Other examples of this offense are
purse snatching, pickpocketing, and most varieties of
grab-and-run robbery.

What theft from a person has in common with generic
burglary is that both entail a risk that violence will erupt
between the thief and the victim. The Court held in Taylor
that the risk of meeting someone is enough to include within
the statute all burglaries of potentially occupied buildings,
even though about 87% of all these occur when the
building is empty. See Gertrud M. Fremling & John R. Lott,
Jr., The Surprising Finding That "Cultural Worldviews"
Don't Explain People's Views on Gun Control, 151 U. Pa. L. Rev. 1341, 1345-46 (2003). A meeting between criminal and
victim, which occurs in 13% of burglaries, occurs in 100% of
robberies from persons. In Minnesota, it is impossible
to steal anything "from the person" without physical proximity
to the victim. See In re Welfare of D.D.S., 396 N.W.2d
831, 832-33 (Minn. 1986); In re Welfare of D.I.S., 2002 WL
378084 at *1-2 (Minn. App. Mar. 12, 2002) (a theft is "from
the person" when "the perpetrator's actual or threatened
violence causes the victim to flee the scene, thus preventing
the victim from protecting the property left at the scene").
Doubtless the chance of running into someone during the
commission of a theft gives only a rough estimate for the
risk of injury. People may dig in their heels (or frighten
more easily) when cornered indoors, so the risk that violence
will erupt may be greater when a burglar encounters
a householder than when a thief makes off with a purse or
bicycle. But the thief is eight times more likely to encounter
the victim in these street crimes than in burglaries, so the
expected risk is substantial even if the risk per encounter
is lower for street thefts than for thefts from buildings.

It would help to know the likelihood that unarmed street
crimes lead to injury. Unfortunately, the FBI's Uniform
Crime Statistics do not include measures of these injuries,
and victimization surveys approach the subject only indirectly,
by counting how many days of work the victims miss.
This proxy is imperfect, for victims may lose time from work
for many reasons, including the need to appear in court as
well as the need to nurse injuries. Still, while the
short-term worktime loss may be caused by the need
to complete incident-related paperwork and replace stolen
documents, people rarely miss more than a week from work
unless they were injured. Thus, the frequency of substantial
absence from work may be a good estimate of the injury
rate. A study conducted by the Department of Justice shows
that about 0.7% of all victims of purse snatching and pickpocketing
lose more than 11 days of work; 0.75% lose 6 to 10 days, and 58% lose 1 to 5 days. See Bureau of Justice
Statistics, Criminal Victimization in the United States 2001
Table 89 (Selected Personal and Property Crimes) (January
2003), at www.ojp.usdoj.gov/bjs/abstract/cvusst.htm. That
is to say, about 1.5% of all victims of the most common varieties
of street thefts lose more than 6 days from work, a
loss implying injury. The real number may well be higher;
most injured victims may not be hurt badly enough to miss
more than 6 days of work. And the survey category is dominated
by pickpocketing, a stealthy crime about five times
more common than purse snatching and similar acts (see
Table 26, Personal Crimes, 2001) but less likely to injure
the victim. But injury in 2% or so of all street thefts is
enough, we think, to fall within the statutory definition;
this is at least as likely (in the aggregate) as injury from
burglary or escape.

Every other circuit that has addressed this subject has
held that street thefts are crimes of violence under the
definition in §924(e)(2)(B)(ii). See, e.g., United States v.
Griffith, 301 F.3d 880, 885 (8th Cir. 2002); United States v.
Payne, 163 F.3d 371, 374-75 (6th Cir. 1998); United States
v. Wofford, 122 F.3d 787, 794 (9th Cir. 1997); United States
v. Hawkins, 69 F.3d 11, 13 (5th Cir. 1995); United States v.
De Jesus, 984 F.2d 21, 24-25 (1st Cir. 1993). This is not,
however, our court's first encounter with an issue of this
kind. United States v. Lee, 22 F.3d 736 (7th Cir. 1994), dealt
with the career offender enhancement in the Sentencing
Guidelines, U.S.S.G. §4B1.2 and Application Note 2, a provision
sufficiently similar to the Armed Career Criminal
statute that in Shannon we treated the two as interchangeable.
Lee held, among other things, that theft from a person
is not a crime of violence because "[t]he Government's claim
that pick-pocketing and similar crimes pose a substantial
risk of injury is, in fact, little more than conjecture". 22 F.3d
at 741.

The United States asks us to overrule this aspect of Lee
and eliminate the conflict. That's a good reason for reconsideration;
a circuit that stands alone against the considered
view of coordinate courts should be willing to rethink. See
United States v. Carlos-Colmenares, 253 F.3d 276 (7th Cir.
2001). Lee neglected to apply Taylor's framework (indeed,
did not cite that decision) and did not inquire whether it
was significant that every street theft entails a close
encounter between criminal and victim, an encounter that
creates the potential not only for violence but also for injury
caused by the act of taking. A purse snatching may dislocate
the victim's shoulder or elbow, or lacerate her arm; a
bicycle theft may injure the owner if the thief blocks his
path or shoves the bike over to dislodge its rider; and so on.
It was logical arguments of this kind, and not data, that
won the day in Taylor and our escape cases. Thus Lee is out
of line not only with other circuits, but also with how this
circuit has analyzed related issues in later decisions such as
Bryant and Franklin. See also United States v. Davis, 16
F.3d 212, 217 (7th Cir. 1994) (proximity of thief and victim
used as indicator of likely injury from attempted burglary).
In order to bring harmony both within and among the
circuits, we now overrule the portion of Lee dealing withthe
treatment of theft and hold that theft from a person is a
violent felony under the Armed Career Criminal Act. The
other principal holding of Lee - that classification must be
based on the elements of the offense as revealed by the
charging papers, rather than on the facts of the particular
case - is compatible with Taylor and was adopted en banc
by Shannon, 110 F.3d at 384-85. It remains good law. As an
overruling opinion, this decision was circulated to all judges
in regular active service. See Circuit Rule 40(e). No judge
requested a hearing en banc.

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