USA v. Richard Lee

Filing 2

Opinion

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued September 16, 2009 Decided November 18, 2009 Before RICHARD D. CUDAHY, Circuit Judge DIANE P. WOOD, Circuit Judge DIANE S. SYKES, Circuit Judge No. 082799 UNITED STATES OF AMERICA, PlaintiffAppellee, v. No. 07 CR 500441 RICHARD A. LEE, DefendantAppellant. Frederick J. Kapala, Judge. O R D E R On June 15, 2007, officers from the Rockford, Illinois Police Department executed a search warrant at a house where Richard A. Lee had hidden a digital scale and a bag containing powder and crack cocaine. The police returned to the house five days later and arrested Lee for a parole violation. The officers searched Lee incident to the arrest and found a handgun in his possession. Lee confessed to owning the narcotics the officers seized during the June 15 search. Lee pleaded guilty to possession with intent to distribute crack cocaine in violation of 18 U.S.C. 841(a)(1) and being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). As part of his plea bargain, Lee agreed that he qualified as a career offender Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 082799 Page 2 under U.S.S.G. 4B1.1 based on a 1998 felony conviction for possession with intent to distribute cocaine and a 2002 Illinois conviction for seconddegree murder. At sentencing the district court adopted the presentenceinvestigationreport ("PSR") finding that Lee was a career offender under 4B1.1; Lee did not object. He did argue, however, that 4B1.1 failed to account for the Sentencing Commission's intent to reduce the penalties for crack cocaine offenses. The district court rejected this argument but did note that the career offender guidelines are "strict," "harsh," and "tough." The district court correctly calculated the relevant guidelines range and imposed a withinguidelines sentence of 198 months' imprisonment. Lee challenges his sentence on two grounds. First, he argues that we must remand his case for resentencing in light of Kimbrough v. United States, 128 S. Ct. 558 (2007), because the district court failed to give reasons for rejecting his argument based on the crack/powder cocaine disparity. Second, Lee contends that the district court erred when it sentenced him as a career offender because his Illinois conviction for seconddegree murder is not a crime of violence.1 Our precedent forecloses Lee's first argument. In Kimbrough the Supreme Court held that district courts have discretion to disregard the 100to1 crack/powder ratio when fashioning sentences under U.S.S.G. 2D1.1. 128 S. Ct. at 575. But Lee was sentenced as a career offender under 4B1.1, and we have held that 4B1.1 does not implicate Kimbrough because the crack/powder disparity in the careeroffender guideline "arises from a statute, not the advisory guidelines." United States v. Harris, 536 F.3d 798, 813 (7th Cir. 2008). We recently reaffirmed Harris in United States v. Welton, 583 F.3d 494, 499 (7th Cir. 2009) (defendants sentenced as career offenders under 4B1.1 "have no sentencing challenge based on the severity of the crack/powder disparity"). Therefore, to the extent Lee argues that Kimbrough necessitates a remand for resentencing, his argument fails. In his pro se brief, Lee argues that the careeroffender guideline does not apply to him on the ground that his Illinois conviction for seconddegree murder does not qualify as a crime of violence because it is not "purposeful" as required by Begay v. United States, 128 S. Ct. 1581 (2008). Lee failed to raise this argument below, so our review is for plain error. See United States v. Olano, 507 U.S. 725, 73235 (1993); United States v. Myers, 569 F.3d 794, 800 (7th Cir. 2009). As a threshold matter, we interpret the careeroffender guideline in the same way we interpret the Armed Career Criminal Act ("ACCA"), United States v. Lee made the careeroffender argument in a supplemental pro se brief. In that brief he also raised a claim of ineffective assistance of counsel. Although we address the careeroffender argument here, we express no judgment on the ineffectiveassistance claim. Such claims are best brought on collateral review in a petition for habeas corpus under 28 U.S.C. 2255. See United States v. Allison, 59 F.3d 625, 629 (7th Cir. 1995). 1 No. 082799 Page 3 Woods, 576 F.3d 400, 40304 (7th Cir. 2009), and it is not error for a sentencing court to rely on an unchallenged PSR when determining whether qualifying convictions exist for purposes of the ACCA, United States v. Thornton, 463 F.3d 693, 70001 (7th Cir. 2006). Lee did not object to his PSR, which classified him as a career offender, and the district judge relied on the PSR when he sentenced Lee as a career offender. Furthermore, Lee was convicted of seconddegree murder, not "seconddegree manslaughter" as he argues. Indeed, there is no crime in Illinois called "seconddegree manslaughter." See 720 ILL. COMP. STAT. 5/91 to 93 (listing Illinois' homicide crimes). Seconddegree murder obviously qualifies as a crime of violence under either definition of the term; it has as an element the "use of physical force against the person of another," 4B1.2(a)(1), and is purposeful conduct that "presents a serious potential risk of physical injury to another," 4B1.2(a)(2). See 720 ILL. COMP. STAT. 5/92. Accordingly, the district court did not err in sentencing Lee as a career offender. AFFIRMED

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