In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2488
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY W OMACK,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:08-cr-30023-DRH-PMF-1—David R. Herndon, Chief Judge.
A RGUED D ECEMBER 11, 2009—D ECIDED JUNE 25, 2010
Before B AUER, R IPPLE and K ANNE, Circuit Judges.
R IPPLE, Circuit Judge. After a three-day jury trial, An-
thony Womack was convicted of distributing cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
The district court calculated Mr. Womack’s guidelines
sentence by including the career offender enhancement
and sentenced Mr. Womack to 360 months’ imprison-
ment. Mr. Womack now appeals the application of the
career offender enhancement and contends that the
district court should have been free to depart from the
2 No. 09-2488
resultant guidelines range. For the reasons set forth
herein, we conclude that the enhancement was properly
applied; however, we remand for resentencing in light
of United States v. Corner, 598 F.3d 411, 415-16 (7th Cir.
2010) (en banc).
I
BACKGROUND
On December 13, 2007, in Madison County, Illinois,
Mr. Womack distributed cocaine base. He was tried
and convicted. The Probation Department prepared a
Presentence Investigation Report (“PSR”) calculating
Mr. Womack’s base offense level and criminal history
points, but ultimately recommended that Mr. Womack
be sentenced as a career offender pursuant to the Sen-
tencing Guidelines’ career offender enhancement, U.S.S.G.
§ 4B1.1.1 The Probation Department concluded that
Mr. Womack’s prior felony convictions qualified as
predicate convictions for purposes of applying the
career offender enhancement: a 1994 Illinois controlled
substance conviction and a 2005 Illinois conviction
under 625 ILCS 5/11-204.1(a)(1) for aggravated fleeing.2
Mr. Womack objected, contending that the 1994 con-
trolled substance conviction was too old to qualify as a
1
The PSR utilized the 2008 edition of the United States Sen-
tencing Commission Guidelines Manual.
2
The district court eventually disqualified one other prior
conviction as a predicate offense. We do not disturb that
holding.
No. 09-2488 3
predicate offense and that the 2005 aggravated fleeing
conviction was not a crime of violence. The district court
overruled Mr. Womack’s objections and accepted the
findings and calculations of the PSR. With the applica-
tion of the career offender enhancement, Mr. Womack’s
base offense level was 37 and his criminal history
category was VI, producing a guidelines range of 360
months’ to life imprisonment. After commenting that the
“crack powder disparity argument [was] taken away” in
this case, the district court sentenced Mr. Womack to
360 months’ imprisonment, at the lower end of the guide-
lines range.3
Mr. Womack now appeals the application of the
career offender enhancement in the calculation of his
guidelines sentence. He also maintains that the district
court should have been free to disagree with, and depart
from, the guidelines range.
3
During the sentencing hearing, the district court stated,
[The] Court will consider the propriety in this case of
eliminating in some fashion the disparity between
penalties for powder and crack cocaine. One would
have to suggest, however, in this case if the Court
determines that the defendant is a career offender, that
the crack powder disparity argument is taken away.
What is left is whether a guideline sentence for this
defendant is greater than is necessary.
Tr. at 31-32, June 4, 2009.
4 No. 09-2488
II
DISCUSSION
A.
We review de novo whether a prior conviction
qualifies as a predicate conviction for purposes of
applying the career offender enhancement. See United
States v. Woods, 576 F.3d 400, 408 (7th Cir. 2009). We
review sentences for reasonableness and presume that
a sentence within a correctly calculated guidelines
range is reasonable. Gall v. United States, 552 U.S. 38, 46-
47 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722,
727 (7th Cir. 2008). The career offender enhancement
applies to any defendant who is at least eighteen years
old at the time he committed the offense of conviction,
whose offense of conviction is a “crime of violence or a
controlled substance offense,” and who has at least two
prior felony convictions of either a crime of violence
or a controlled substance offense—i.e., two predicate
offenses. See U.S.S.G. § 4B1.1(a). Application of the
career offender provision subjects a defendant to an
enhanced base offense level and an automatic criminal
history category of VI. Id. § 4B1.1(b).
1.
We begin with Mr. Womack’s 1994 controlled substance
conviction and consider whether it is too old to qualify
as a predicate conviction. The career offender provision
generally excludes as predicate convictions those that are
older than ten years; however, if a prior conviction is
No. 09-2488 5
within fifteen years of the commencement of the offense
of conviction, and if the offender received a sentence of
imprisonment in excess of thirteen months for the prior
conviction, the prior conviction is included. See U.S.S.G.
§§ 4A1.2(e), 4B1.2 n.3. Mr. Womack’s 1994 controlled
substance conviction occurred more than ten years, but
fewer than fifteen years, prior to his commencement of
distributing cocaine base. Thus, if Mr. Womack received
a sentence of imprisonment in excess of thirteen months
for his 1994 controlled substance conviction, it qualifies
as a predicate conviction.
Mr. Womack received a sentence of five years’ imprison-
ment for his 1994 conviction. However, he contends that
his actual period of incarceration was much less than
five years. He explains that he participated in Illinois’s
Impact Incarceration Program, a boot camp rehabilitation
program, for 121 days; after service in this program, he
was released from custody. In United States v. Gajdik,
292 F.3d 555, 558 (7th Cir. 2002), we held that the period
of imprisonment imposed, not the period served in the
Illinois Impact Incarceration Program, shall be considered
in determining whether a prior sentence of imprisonment
exceeded thirteen months.4 As such, it would appear that
4
United States v. Gajdik, 292 F.3d 555, 558 (7th Cir. 2002),
interpreted the criminal history category provisions. In this
case, we are not concerned with the calculation of
Mr. Womack’s criminal history points, but rather with whether
his prior offenses qualify as career offender predicate con-
victions. The two inquiries are closely related because the
(continued...)
6 No. 09-2488
the 1994 conviction indeed received a sentence of impris-
onment well in excess of thirteen months and thus
qualifies as a predicate conviction. Nevertheless, Mr.
Womack contends that Gajdik was wrongly decided and
urges us to reconsider its holding. The Government urges
us to reaffirm Gajdik because its reasoning is sound.
In Gajdik, we considered whether a defendant’s participa-
tion in the Illinois Impact Incarceration Program worked
to reduce a prior sentence of imprisonment for purposes
of calculating criminal history points. We examined the
internal workings of U.S.S.G. § 4A1.2 and concluded
that “criminal history points are based on the sentence
pronounced, not the length of time actually served.” Gajdik,
292 F.3d at 558; see also U.S.S.G. § 4A1.2 n.2. We con-
cluded that the Illinois Impact Incarceration Program
did not fall within the exception for suspended sentences,
see U.S.S.G. § 4A1.1(b)(2), because the program “more
closely resembles a pardon or commutation by the execu-
tive,” Gajdik, 292 F.3d at 558; see also U.S.S.G. § 4A1.2
n.10 (explaining that sentences received from a pardoned
or set-aside conviction are to be counted). That conclu-
sion was based on our close examination of how the
Illinois Impact Incarceration Program functions and also,
4
(...continued)
definitions for computing criminal history points, see U.S.S.G.
§ 4A1.2, also are used to count predicate convictions for pur-
poses of U.S.S.G. § 4B1.1, see U.S.S.G. § 4B1.2 n.3 (“The provi-
sions of § 4A1.2 (Definitions and Instructions for Computing
Criminal History) are applicable to the counting of convictions
under § 4B1.1.”). Thus, Gajdik is directly relevant to our inquiry.
No. 09-2488 7
perhaps more importantly, on the purpose underlying
the criminal history provisions.
With regard to how the program functions, we noticed
two primary components that served to distinguish
the program from typical sentence suspensions. First, we
noted that the program does not allow for a probationary
period after the inmate completes the program and is
released, indicating limited judicial involvement. See
Gajdik, 292 F.3d at 558. Second, we noted that the Illinois
Department of Corrections, not the sentencing court,
determines whether the inmate may participate in the
program, whether the inmate successfully completes
the program, and thus, ultimately, whether the inmate
is released early. Id. at 558-59. We also concluded that
construing the Illinois Impact Incarceration Program as
akin to an executive pardon comports with the purpose
underlying the criminal history provisions. We noted
that “[c]riminal history is scored to assess a defendant’s
likelihood of recidivism by taking into account the seri-
ousness of the defendant’s past criminal conduct. None
of the eligibility factors listed in the Impact Incarcera-
tion statute reflect on the judge’s assessment of the serious-
ness of the crime or likelihood of recidivism.” Id. at 560
(internal citations omitted). Thus, we concluded that
time served in the program does not reflect the criminal
history provisions’ focus on judicial determinations of
proper sentences. For these reasons, we concluded that
time served in the program is a poor substitute for
the actual period of incarceration imposed by a sen-
tencing court, and we considered the program to be
more comparable to an executive pardon, not a sus-
pended sentence.
8 No. 09-2488
Mr. Womack believes that part of our analysis in Gajdik
was flawed. He contends that the Illinois Impact Incarcera-
tion Program actually does provide for a period of super-
vised release. See Appellant’s Br. 30 (citing 730 ILCS 5/5-8-
1.1(g)). Although that may be so, our holding in Gajdik
did not depend wholly on that distinction. Nor does the
availability of supervised release have any bearing on
an inmate’s acceptance into the boot camp program. Ulti-
mately, the decision whether or not to accept an
inmate into the program is beyond the purview of
judicial officers. Primarily for that reason, participation
in the program is unlike a suspended sentence. Addi-
tionally, our focus on the purpose of the criminal
history provisions is unaffected by the supervised
release component of the boot camp program. We
reiterate that the criminal history provisions focus on
determinations by judicial officers of the seriousness of
convictions. The Illinois Impact Incarceration Program
simply does not fall within that metric.
Furthermore, our general approach in Gajdik—focusing
on the purpose of the criminal history provisions—is
appropriately applied in this case, where we must
interpret § 4B1.1. The career offender enhancement pro-
vision reflects Congress’s preference that certain “career”
offenders receive a sentence of imprisonment “at or near
the maximum term authorized.” See U.S.S.G. § 4B1.1
background (internal quotation marks and citations
No. 09-2488 9
omitted).5 To disqualify a § 4B1.1 predicate conviction
merely based on an offender’s fortuitous participation
in the boot camp program would frustrate Congress’s
and the Sentencing Commission’s goal of categorizing
and penalizing these offenders. This goal directly
depends on the seriousness of prior offenses because
§§ 4B1.1 and 4A1.2 are cross-referenced and criminal
history points reflect the seriousness of prior crimes. See
Gajdik, 292 F.3d at 560. Because the sentence articulated
by the sentencing court is a better reflection of the atten-
dant crime’s seriousness, using the sentence imposed
helps categorize recidivists. Thus, we believe the better
approach when qualifying career offender predicate
convictions is to look to the term of imprisonment
imposed by a sentencing court in Illinois, even if the
inmate participated in the Illinois Impact Incarceration
Program.
Finally, Mr. Womack contends that Gajdik conflicts with
United States v. Brooks, 166 F.3d 723, 726 (5th Cir. 1999), and
United States v. Murray, No. 97-3871, 1998 WL 552823, at *1
(6th Cir. Aug. 13, 1998) (unpublished). However, as
Mr. Womack recognizes, both decisions preceded Gajdik,
thus we already have considered them. Nor have those
5
The Sentencing Commission clearly was concerned with
“more precisely” defining “the class of recidivists offenders
for whom a lengthy term of imprisonment is appropriate and
[avoiding] unwarranted sentencing disparities among defen-
dants with similar records who have been found guilty of
similar criminal conduct.” U.S.S.G. § 4B1.1 background
(internal quotation marks and citations omitted).
10 No. 09-2488
decisions influenced other circuits, which predominantly
have adopted our approach in various forms. See, e.g.,
United States v. Chavez-Diaz, 444 F.3d 1223, 1227 (10th Cir.
2006); United States v. Brothers, 209 F. App’x 460, 463-64
(6th Cir. 2006); United States v. Garcia-Gomez, 380 F.3d
1167, 1172 (9th Cir. 2004).6
We consider Gajdik to be controlling authority on the
question of whether Mr. Womack’s 1994 controlled sub-
stance conviction qualifies as a career offender predicate
conviction. The district court correctly concluded that
the conviction qualifies.
2.
Next, we turn to the 2005 Illinois aggravated fleeing
conviction under 625 ILCS 5/11-204.1(a)(1),7 and consider
6
United States v. Burrell, 303 F. App’x 144, 145 (4th Cir. 2008),
cited Gajdik as support for the different proposition that “time
served in a boot-camp style program counts as a form of
imprisonment under the sentencing guidelines.”
7
The specific section of the crime of aggravated fleeing of
which Mr. Womack was convicted reads,
(a) The offense of aggravated fleeing or attempting to
elude a peace officer is committed by any driver or
operator of a motor vehicle who flees or attempts to
elude a peace officer, after being given a visual or
audible signal by a peace officer in the manner pre-
scribed in subsection (a) of Section 11-204 of this Code
(continued...)
No. 09-2488 11
7
(...continued)
[unaggravated fleeing], and such flight or attempt to
elude:
(1) is at a rate of speed at least 21 miles per hour over
the legal speed limit . . . .
625 ILCS 5/11-204.1(a)(1). The statute includes other subsets of
conduct that may qualify as aggravated fleeing. However, we
need not consider the other subsections of the statute because
Mr. Womack was convicted specifically of violating 625 ILCS
5/11-204.1(a)(1).
Because 625 ILCS 5/11-204.1(a) also cross-references 625 ILCS
5/11-204 (the unaggravated version of the offense), we provide
the text of that statute as well:
Fleeing or attempting to elude a peace officer.
(a) Any driver or operator of a motor vehicle
who, having been given a visual or audible
signal by a peace officer directing such driver
or operator to bring his vehicle to a stop, wil-
fully fails or refuses to obey such direction,
increases his speed, extinguishes his lights, or
otherwise flees or attempts to elude the officer,
is guilty of a Class A misdemeanor. The signal
given by the peace officer may be by hand,
voice, siren, red or blue light. Provided, the
officer giving such signal shall be in police
uniform, and, if driving a vehicle, such vehicle
shall display illuminated oscillating, rotating
or flashing red or blue lights which when used
in conjunction with an audible horn or siren
would indicate the vehicle to be an official
(continued...)
12 No. 09-2488
whether it qualifies as a “crime of violence” predicate
conviction for purposes of applying the § 4B1.1(a) career
offender enhancement. This question has been resolved
by our recent decision Welch v. United States, 604 F.3d
408, 415-25 (7th Cir. 2010), where we held that a con-
viction under 625 ILCS 5/11-204.1 constitutes a violent
felony within the meaning of the Armed Career Criminal
Act (“ACCA”). We interpret coterminously the ACCA and
the career offender § 4B1.1 provision. United States v.
Templeton, 543 F.3d 378, 380 (7th Cir. 2008) (noting that
the ACCA “violent felony” provision and the Guidelines’
career offender “crime of violence” provision are nearly
identical and that we apply the same interpretation to
both provisions when determining whether a prior con-
viction triggers the enhancements); see also United States v.
Spells, 537 F.3d 743, 749 n.1 (7th Cir. 2008). Thus, 625 ILCS
5/11-204.1 constitutes a crime of violence, and the district
court correctly qualified Mr. Womack’s aggravated fleeing
conviction as a § 4B1.1(a) career offender predicate con-
viction.
7
(...continued)
police vehicle. Such requirement shall not
preclude the use of amber or white oscillating,
rotating or flashing lights in conjunction with
red or blue oscillating, rotating or flashing
lights as required in Section 12-215 of Chapter
12 [625 ILCS 5/12-215].
625 ILCS 5/11-204.
No. 09-2488 13
3.
Because we conclude that the 1994 controlled sub-
stance conviction was not too old to qualify as a
predicate conviction and that the 2005 aggravated
fleeing conviction was a crime of violence, thus
qualifying it as a predicate conviction, the district court
did not err by applying the career offender enhancement
in Mr. Womack’s guidelines calculation. The sentence
imposed was within a correctly calculated guidelines
range.
B.
Mr. Womack raises one last challenge to his sentence.
He contends that the district court erred when it stated
that it could not consider the sentencing disparity
between crack and powder cocaine offenses under the
Guidelines because Mr. Womack’s guidelines range was
based on the career offender enhancement. Our recent
decisions support Mr. Womack’s position.
In United States v. Corner, 598 F.3d 411, 415-16 (7th Cir.
2010) (en banc), we overruled a series of decisions that
had held that district courts had no discretion to deviate
from guidelines sentences based on the § 4B1.1 career
offender enhancement. We recognized that, pursuant to
United States v. Booker, 543 U.S. 220 (2005), the sentencing
guidelines—all guidelines—are advisory only. As such,
although “28 U.S.C. § 994(h) requires the Sentencing
Commission to ensure that the Guidelines for career
offenders are at or near the statutory maximum sen-
14 No. 09-2488
tences and the [crack/powder cocaine] conversion ratio
affects the statutory maximum (and minimum) sentences
under 21 U.S.C. § 841,” the § 4B1.1 career offender en-
hancement is still advisory only. Thus, district courts
may disagree with the career offender enhancement on
policy grounds related to the crack/powder disparity
and impose sentences accordingly.
Given the state of our case law at the time, the district
court understandably did not fully appreciate its dis-
cretion under the Guidelines when it noted during the
sentencing hearing that “the crack powder disparity
argument” was foreclosed. At the time of Mr. Womack’s
sentencing, we had not yet decided Corner. The district
court should have felt free to factor policy disagreements
with the Guidelines into its consideration of the full
panoply of sentencing factors. We express, of course, no
opinion as to the length of the sentence given to
Mr. Womack.
Conclusion
Accordingly, Mr. Womack’s sentence is vacated and
the case is remanded for resentencing.
V ACATED and R EMANDED
6-25-10