In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1815
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ISRAEL R AMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:08-CR-30182-001-JPG— J. Phil Gilbert, Judge.
S UBMITTED M AY 5, 2010—D ECIDED M AY 21, 2010
Before E ASTERBROOK, Chief Judge, and C OFFEY and
H AMILTON, Circuit Judges.
E ASTERBROOK, Chief Judge. Israel Ramirez pleaded guilty
to possessing more than two tons of marijuana
with intent to distribute. 21 U.S.C. §841(a)(1). He was
sentenced to 300 months’ imprisonment as a career
offender. See U.S.S.G. §4B1.1(a). Although his appellate
lawyer initially believed that an appeal would be
frivolous, we denied the motion to withdraw
2 No. 09-1815
after concluding that it might be possible to
challenge the career-offender classification. Counsel
then developed that argument, and the prosecutor
confessed error.
Among Ramirez’s convictions are two for domestic
assault in Texas. His status as a career offender
depends on whether these convictions are for crimes
of violence. Texas makes it a felony for a person
to “intentionally, knowingly, or recklessly” cause bodily
injury to a family member. Tex. Penal Code §22.01(a)(1),
(b)(2) (1999). This offense does not have, as an element,
the use or threatened use of physical force, and it is
not specifically enumerated in the Guideline, so it can
be a crime of violence only under the residual clause
of §4B1.2(a)(2), which covers conduct that presents “a
serious potential risk of physical injury to another.”
Because conviction is possible only if injury occurs, it
seems appropriate to say that the statute covers a
category of acts that entail a serious risk of injury. But
since Begay v. United States, 553 U.S. 137 (2008), we
have understood subsection (a)(2) of the career-offender
Guideline to be limited to purposeful offenses, a
category that excludes recklessness. See United States
v. Woods, 576 F.3d 400, 412–13 (7th Cir. 2009). And the
Texas statute permits conviction for reckless conduct.
Because the domestic-assault statute covers three
possible mental states, two of which (intentional and
knowing conduct) meet the standard of Begay and Woods,
it is divisible (as we defined that term in Woods). This
means that a court may examine the charging papers,
No. 09-1815 3
plea colloquy, and any judicial findings or admissions
to ascertain the nature of the conviction—not what the
defendant did, but what crime the conviction represents.
See Taylor v. United States, 495 U.S. 575 (1990); Shepard
v. United States, 544 U.S. 13 (2005). Ramirez pleaded guilty
to the Texas charges, but the record in the federal case
contains only the indictments and judgments, which
simply track the statutory language. We therefore do
not know (at least, we do not know from any
document in the record that may be used under the
standards of Taylor and Shepard) whether Ramirez has
been convicted of state crimes that use the mental states
that qualify for federal treatment as crimes of violence.
According to Ramirez, it follows that the state
offenses are not crimes of violence and that he is
entitled to be resentenced. The prosecutor agrees with this
conclusion. We must evaluate independently a confession
of error, and we conclude that the record does not
demonstrate plain error—the appropriate standard,
because Ramirez did not object at sentencing to
the classification of the Texas convictions as crimes of
violence.
For all we can tell, the reason the record does
not contain the plea colloquy, or any other judicial
admissions that Ramirez made in the Texas prosecutions,
is precisely because his lawyer did not contest the
presentence report’s classification of his convictions—and
one reason for counsel’s decision may have been that he
knew what these documents would show. The PSR states
that Ramirez’s convictions were based on violence of a
4 No. 09-1815
kind that appears to have been deliberate, such as striking
and kicking family members. It is unclear what led to
the PSR’s summary. Perhaps the writer was taking
assertions from police reports, which under Shepard can’t
be used, or perhaps the writer had access to plea
colloquies or other documents on which Taylor and
Shepard permit a federal judge to rely. Because Ramirez
did not object to the PSR’s classification of the state
convictions, the prosecution was never put to its proof.
The United States’ confession of error is based on
the conclusion that “[i]t is impossible to determine
from the existing record whether Ramirez’s conduct was
the type of purposeful conduct contemplated by the
residual provision in U.S.S.G. §4B1.2(a)(2).” We agree
with that statement—but not with the assumption that, on
plain-error review, silence in the record means that the
accused wins.
On plain-error review, the burden of demonstrating
both error and prejudice is on the defendant. See, e.g.,
United States v. Olano, 507 U.S. 725, 734–35 (1993);
United States v. Vonn, 535 U.S. 55 (2002); United States
v. Dominguez Benitez, 542 U.S. 74 (2004); Puckett v. United
States, 129 S. Ct. 1423 (2009). Ramirez not only has
not demonstrated that the PSR’s statements are
incorrect (or at least that they are unsupported by the
sort of evidence permitted to the federal tribunal by
Taylor and Shepard) but has not even argued that
they could not be supported by allowable sources. Nor
has he argued that he was deceived or misled
into not protesting in the district court. For his
No. 09-1815 5
part, the prosecutor does not discuss who bears the risk
of non-persuasion when the record is incomplete. Because
Ramirez has not established that an error occurred—that
is, has not shown it more likely than not that the PSR’s
description of events could not be supported under the
standards of Taylor and Shepard—there is no warrant for
reversal under a plain-error standard.
The post-Begay cases in which we have reversed
on plain-error review arose from non-divisible prior
offenses. See, e.g., United States v. High, 576 F.3d 429
(7th Cir. 2009); United States v. Gear, 577 F.3d 810 (7th Cir.
2009); United States v. Booker, 579 F.3d 835 (7th Cir.
2009). When an offense is not divisible, plea colloquies,
judicial admissions, judicial findings, and jury instructions
from the prior prosecutions cannot be used to
classify the prior convictions. It is then possible to say
with certainty that an error occurred. By contrast, when
the offense is divisible, a silent record leaves up in
the air whether an error has occurred, and the allocation
to defendant of the burdens of production and persuasion
makes a difference.
A FFIRMED
5-21-10