United States v. Lee - 22 F.3d 736 (7th Cir. 1994)

Rule:

The United States Sentencing Guidelines Application Note 2 of U.S. Sentencing Guidelines Manual § 4B1.2 sets out a three-step inquiry for determining whether a prior conviction should be considered a crime of violence. Application Note 2 provides that a conviction should be considered a crime of violence if either 1) the conviction was for one of the offenses specifically listed in Application Note 2; or 2) the conviction was for an offense that has as an element the use, attempted use, or threatened use of physical force; or 3) the conduct for which the defendant was convicted presented a serious potential risk of physical injury to another.

Facts:

In March 1993, defendant Gregory L. Lee pleaded guilty to two counts of knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C.S. § 922(g). In his plea agreement, defendant acknowledged that in 1975 he was convicted in Wisconsin of the crime of theft from the person of another, Wis. Stat. Ann. §§ 943.20(1)(a), (3)(d)(2). He was sentenced to 52 month imprisonment to be followed by 3 years of supervised release. The district court based the sentence on a determination that given the defendant's prior criminal history, the base offense level was 20 under the United States Sentencing Guidelines. Defendant appealed his sentence arguing that prior conviction was not a crime of violence under the U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A) and 4B1.2.

Issue:

Was the sentence imposed upon the defendant proper?

Answer:

No.

Conclusion:

The court reversed the sentence imposed on defendant and remanded for resentencing. The court found that the prior offense of which defendant was convicted was neither an offense that had as an element the use or attempted or threatened use of physical force. The court ruled that when determining whether an offense presented a serious potential risk of physical injury to another, a sentencing court could look only to the conduct expressly charged in the count of which the defendant was convicted. The court determined that since the prior information did not indicate that defendant used force or threat of force to accomplish his ends, the sentencing court could not conclude that the prior conviction was for a crime of violence. To be clear, the court could not look beyond the facts alleged in that information in determining defendant's base offense level.