In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2801
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B RUCE S ONNENBERG ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:08-cr-00159-jtm—James T. Moody, Judge.
A RGUED S EPTEMBER 14, 2010—D ECIDED D ECEMBER 8, 2010
Before B AUER, F LAUM, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. We consolidated six appeals
by members of a crack cocaine distribution conspir-
acy. All six pled guilty. Judge James T. Moody, sitting
by designation in the Western District of Wisconsin,
imposed sentences that were either within or, in one
case, slightly below, the applicable Sentencing Guideline
ranges. All six have appealed their sentences.
In a separate unpublished order issued today, we
explain in detail why we reject all but one of the appel-
2 No. 09-2801
lants’ arguments. To summarize, we find (a) that the
district court acted well within its discretion in choosing
to impose guideline sentences despite appellants’ argu-
ments that the court should treat the differences be-
tween crack cocaine and powder cocaine sentences as
a reason to impose lower sentences; (b) that the district
court gave appropriate individual consideration to each
appellant’s case and the applicable sentencing factors
under 18 U.S.C. § 3553(a); and (c) that the district court
provided a sufficient explanation of its thinking. We
therefore affirm the sentences of all appellants except
Bruce Sonnenberg on familiar grounds that do not
require a published, precedential opinion.
Appellant Bruce Sonnenberg presents a different issue.
He argues that the district court erred by treating him as
a career offender under the sentencing guidelines. The
decisive issue is whether a prior conviction of Sonnen-
berg under a now-repealed Minnesota law for “intra-
familial sexual abuse” counts as a “crime of violence” for
purposes of the career offender guideline. The district
court followed our controlling precedents at the time
it made its decision. As explained below, however, inter-
vening developments have shown that we and the
district court had applied the wrong methodology in
answering the question. The Supreme Court’s decision
in Begay v. United States, 553 U.S. 137 (2008), and our
application of Begay in United States v. McDonald, 592
F.3d 808 (7th Cir. 2010), mean that Sonnenberg’s Min-
nesota conviction does not qualify as a crime of violence
within the meaning of U.S.S.G. § 4B1.1. We therefore
remand for re-sentencing, though the district court is
No. 09-2801 3
free to consider the specific circumstances of Sonnen-
berg’s earlier crime in exercising its discretion under
§ 3553(a). See 18 U.S.C. § 3661 (“No limitation shall be
placed on the information concerning the background,
character, and conduct of a person convicted of an
offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate
sentence.”).
The parties agree that the district court correctly calcu-
lated Sonnenberg’s offense level as 35, based upon the
quantity of crack cocaine and his decision to plead
guilty. Without a career offender enhancement under
§ 4B1.1, Sonnenberg fell within criminal history category
V, with a guideline range of 262 to 327 months in
prison. With a career offender enhancement, he fell
within criminal history category VI, with a guideline
range of 292 to 365 months. The district court im-
posed the career offender enhancement and sentenced
Sonnenberg to 292 months, the bottom of the applicable
range.1
To qualify as a career offender under § 4B1.1, a
defendant must have at least two prior felony convic-
tions for crimes of violence or controlled substance of-
fenses. Sonnenberg has a 1994 conviction for delivery of
marijuana that counts as one qualifying felony. The
dispute is whether he has a second qualifying felony as
a crime of violence. A “crime of violence” is defined in
1
This was an unusual case in which the offense level for the
crime of conviction was higher than the offense level for a
career offender under § 4B1.1(b).
4 No. 09-2801
relevant part as a crime that “has as an element the use,
attempted use, or threatened use of physical force
against the person of another,” or a crime that “otherwise
involves conduct that presents a serious potential risk
of physical injury to another.” U.S.S.G. § 4B1.2(a).
In 1985, Sonnenberg was convicted in Minnesota of
committing First Degree Intrafamilial Sexual Abuse in
violation of Minn. Stat. § 609.3641(1) (1963) (repealed in
1985). He pled guilty and was sentenced to 43 months
in prison. The execution of the 43-month sentence was
stayed, and he was sentenced to 15 years of probation
and one year of jail. In July 1987, the probation and stay
were revoked based on Sonnenberg’s violation of proba-
tion conditions. The sentence was ordered fully executed.
In treating the 1985 conviction as a crime of violence,
the district court relied on our decisions in United States
v. Martinez-Carillo, 250 F.3d 1101, 1105-06 (7th Cir. 2001),
and United States v. Shannon, 110 F.3d 382 (7th Cir. 1997)
(en banc), which allowed a sentencing court to consider
the facts of the particular case in deciding whether a
sex offense against a child was a crime of violence under
§ 4B1.1.
After the district court made its decision in this case,
however, we held in United States v. McDonald that
Shannon had been abrogated by the Supreme Court’s
decision in Begay. In Begay, the Supreme Court inter-
preted the materially identical portion of the definition
of a crime of violence under the Armed Career Criminal
Act, 18 U.S.C. § 924(e), and adopted the so-called “categor-
ical” approach to classifying prior crimes as crimes of
violence. Under the categorical approach of Begay, the
No. 09-2801 5
focus is not on the facts of the defendant’s particular
crime, but only on the fact of conviction and the
essential elements of the offense. Begay also held that
the residual clause for conduct that presents a serious
potential risk of physical injury applies only to crimes
that categorically involve “purposeful, violent, and ag-
gressive conduct.” 553 U.S. at 144-45 (holding that
driving under influence of alcohol was not a crime of
violence despite risks of physical injury to others).
Under the categorical approach of Begay, therefore, a
conviction can qualify as a crime of violence under the
Armed Career Criminal Act only when (1) a violation of
a particular statute would necessarily include as an
element the use, attempted use, or threatened use of
physical force against the person of another, or (2) would,
in the ordinary or typical case, present a serious risk of
physical injury as a result of purposeful, violent, or ag-
gressive conduct similar in kind and risk to the crimes
enumerated in U.S.S.G. § 4B1.2(a)(2). See McDonald, 592
F.3d at 814-15; United States v. Dismuke, 593 F.3d 582, 591
(7th Cir. 2010).
The Elements Clause: We turn first to the specific
elements of the crime of conviction. The repealed Minne-
sota statute provided in relevant part:
A person is guilty of intrafamilial sexual abuse in the
first degree if:
(1) He has a familial relationship to and engages
in sexual penetration with a child.
Minn. Stat. § 609.3641(1) (1963). Other provisions of the
statute added various aggravating factors, such as force,
6 No. 09-2801
coercion, use of a weapon, or personal injury, but the
parties do not suggest that any of these were applied to
Sonnenberg. Therefore we limit our analysis to the core
offense in the quoted subsection (1), without the other
aggravators.2 Under the statute, a “child” is defined as
any person under age 16. Minn. Stat. § 609.364, Subdivi-
2
The 1985 conviction was for a violation of Minn. Stat.
§ 609.3641 (1963), which provided in full:
A person is guilty of intrafamilial sexual abuse in the
first degree if:
(1) He has a familial relationship to and engages in
sexual penetration with a child; or
(2) He has a familial relationship to and engages in
sexual penetration with a child and:
(a) the actor or an accomplice used force or
coercion to accomplish the penetration;
(b) the actor or an accomplice was armed with
a dangerous weapon or any article used or
fashioned in a manner to lead the complainant
to reasonably believe it could be a dangerous
weapon and used or threatened to use the
dangerous weapon;
(c) circumstances existed at the time of the act
to cause the complainant to have a reasonable
fear of imminent great bodily harm to the
complainant or another;
(d) the complainant suffered personal injury;
or
(e) the intrafamilial sexual abuse involved
multiple acts committed over an extended
period of time.
No. 09-2801 7
sion 3. A familial relationship includes situations in
which the actor is both a family member of the victim
and those in which the actor is “an adult who jointly
resides intermittently or regularly in the same dwelling
as the complainant and who is not the complainant’s
spouse.” Minn. Stat. § 609.364, Subdivision 9.
The government argues that the Minnesota statute, on
its face, satisfies the first clause, or the elements test, for
a crime of violence. We disagree. The first clause of the
crime of violence definition does not apply here because
the statute on its face does not require as an element “the
use, attempted use, or threatened use of physical force
against the person of another.” U.S.S.G. § 4B1.2(a). Nothing
in the Minnesota statute requires proof of physical force
against another. See McDonald, 592 F.3d at 812 n.1 (“ ‘use
of force’ element for purposes of § 4B1.2(a)(1) means the
intentional use of force”), citing United States v. Rutherford,
54 F.3d 370 (7th Cir. 1995) (abrogated on other grounds).
In response to any suggestion that physical force is in-
herent in the crime, note that the Minnesota statute may
be violated by consensual sexual activity involving an
eighteen-year-old adult residing intermittently in the
home and a minor the day before her or his sixteenth
birthday.
The Residual Clause: We turn to the second clause of the
definition of a crime of violence, the “residual clause,” for
conduct that presents a serious potential risk of physical
injury. As the Supreme Court requires under Begay, we
may not use the case-specific approach of our earlier
cases such as Shannon, and must use instead a categorical
8 No. 09-2801
approach. We must “consider the offense generically,
that is to say, we examine it in terms of how the law
defines the offense and not in terms of how an indi-
vidual offender might have committed it on a particular
occasion.” Begay, 553 U.S. at 141; accord, United
States v. Woods, 576 F.3d 400, 403-04 (7th Cir. 2009), citing
James v. United States, 550 U.S. 192 (2007).
We first consider whether the statute categorically
involves purposeful, violent, and aggressive conduct, as
required by Begay. In McDonald, we held that a similar
Wisconsin criminal sexual assault statute was not cate-
gorically violent because the statute was not limited to
purposeful conduct. The Wisconsin statute stated: “Who-
ever has sexual contact or sexual intercourse with a
person who has not attained the age of 16 years is guilty
of a Class C felony.” Wis. Stat. § 948.02(2). The Wisconsin
courts treated the statute as a strict liability offense
because no mental state was required regarding the vic-
tim’s age. McDonald, 592 F.3d at 814, citing State v.
Lackershire, 734 N.W.2d 23, 31 (Wis. 2007), and State v.
Jadowski, 680 N.W.2d 810, 816, 822 (Wis. 2004). We said
in McDonald that the purposeful requirement in Begay
had “removed strict-liability crimes from the reach of
the residual clause.” 592 F.3d at 814.
Turning to the Minnesota statute at issue here, the
Minnesota Court of Appeals has held that statutes with-
out an intent element create general intent crimes rather
than strict liability crimes. See State v. Hart, 477 N.W.2d
732, 736 (Minn. App. 1992) (holding that an absence of
an intent element in Minnesota’s criminal sexual conduct
No. 09-2801 9
statute creates not a strict liability crime but a general
intent crime). On that basis, one might argue that we
should distinguish the Minnesota statute from our
holding in McDonald, and find that a conviction under
§ 609.3641(1) required purposeful conduct.
But even if we construed the statute as requiring pur-
poseful conduct, we could not say that a violation of
§ 609.3641(1) categorically or typically involves “violent
and aggressive conduct” of a nature similar to burglary
of a dwelling, arson, extortion, or crimes involving the
use of explosives, the examples in § 4B1.2(a)(2). The
proper inquiry is not whether every violation of the
statute would be violent and aggressive but “whether
the elements of the offense entail conduct that, in the
ordinary case, presents a serious risk of potential injury
to another.” United States v. Fife, 624 F.3d 441, 448 (7th
Cir. 2010), citing James, 550 U.S. at 208; Dismuke, 593 F.3d
at 594 (“[T]he ‘violent and aggressive’ limitation re-
quires only that a residual-clause predicate crime be
characterized by aggressive conduct with a similar po-
tential for violence and therefore injury as the enu-
merated offenses, not that it must ‘insist on’ or require a
violent act.”); see also Woods, 576 F.3d at 404 (“[A] crime
must be categorized as one of violence even if, through
some freak chance, the conduct did not turn out to be
violent in an unusual case.”). The requirement that we
look to the “typical” or “ordinary” case is helpful in that
it requires us to move beyond a purely theoretical ap-
proach to categorical examination of statutes. Instead,
at least in the absence of detailed statistical information
that is unlikely to be available, the best we can do is use
10 No. 09-2801
common sense and experience to determine the variety
of crimes a statute would cover, and to decide whether,
in the ordinary, typical case, a statute applies to con-
duct that is categorically violent or aggressive in ways
similar to the examples in § 4B1.2(a)(2).
In McDonald we expressed doubt as to whether
the Wisconsin statutory rape law “could qualify as cate-
gorically ‘violent and aggressive’ and therefore [be consid-
ered] similar in kind to the enumerated offenses in the
residual clause,” McDonald, 592 F.3d at 814, and we are
persuaded by our sister circuits’ interpretations of statu-
tory rape laws that encompass conduct similar to
conduct covered by the Minnesota statute. In United
States v. Thornton, 554 F.3d 443, 449 (4th Cir. 2009), the
Fourth Circuit held that a conviction under a Virginia
statute was not a “violent felony” for purposes of the
Armed Career Criminal Act: “Although nonforcible
adult-minor sexual activity can present grave physical
risks to minors, and although states are entitled to
criminalize nonforcible adult-minor sexual activity to
protect minor victims from these risks, such risks are not
sufficiently ‘similar, in kind as well as in degree of risk
posed to the examples’ ” listed in § 4B1.2(a)(2). 554 F.3d at
449, quoting Begay, 553 U.S. at 143. Similarly, the Ninth
Circuit found in United States v. Christensen, 559 F.3d
1092, 1095 (9th Cir. 2009) (internal citation omitted), that
a Washington state felony was not a violent crime
under Begay “because statutory rape may involve con-
sensual sexual intercourse, it does not necessarily
involve either ‘violent’ or ‘aggressive’ conduct.” Similarly,
No. 09-2801 11
the Eleventh Circuit held in United States v. Harris, 608
F.3d 1222, 1233 (11th Cir. 2010), citing Begay, 553 U.S. at
144-45, that a conviction for sexual battery of a child
under age sixteen did not constitute a crime of violence
under the Armed Career Criminal Act’s residual clause
because the statute, viewed categorically, imposed strict
liability and covered a broad range of conduct. The court
concluded that it could not say that a violation of the
statute “typically” involves “purposeful, ‘violent,’ and
‘aggressive’ conduct.”
In contrast, the Second Circuit found that a Vermont
statute making it a felony to engage in a sex act with a
person under the age of 16 was a violent felony. See
United States v. Daye, 571 F.3d 225, 234-35 (2d Cir. 2009)
(emphasizing that Begay “does not require that every
instance of a particular crime involve purposeful, violent,
and aggressive conduct,” but “[i]nstead, all that is
required is that a crime, in a fashion similar to burglary,
arson, extortion, or crimes involving the use of explosives,
‘typically involve[s] purposeful, violent, and aggressive
conduct’ ” as do crimes that involve a sexual act with a
minor in violation of the Virginia statute). Likewise, in
United States v. Rooks, 556 F.3d 1145, 1150 (10th Cir. 2009),
quoting Begay, 553 U.S. at 143, the Tenth Circuit found
that “Sexual assault involving intentional penetration
without consent is similar ‘in kind as well as in degree
of risk posed’ to the [examples] set forth in § 4B1.2(a)’s
commentary.”
Unlike the narrower statutes at issue in Daye and Rooks,
the Minnesota statute under which Sonnenberg was
convicted did not take into consideration such factors
12 No. 09-2801
as consent or differences in age. Instead, as in McDonald,
592 F.3d at 815, the Minnesota statute swept broadly,
applying to all acts of sexual penetration of a minor
under the age of 16 by any adult with a “familial relation-
ship.” The sexual activity could be consensual, and the
“familial relationship” element could be satisfied even
by an entirely unrelated adult who merely resided in the
same home as the child. We acknowledge that some,
perhaps many, violations of the statute would include
conduct and relationships that would fit the definition
of a crime of violence (for example, with significant age
differences, a very young child, and the use of force).
But subsection (1) of the Minnesota statute, under
which Sonnenberg was convicted, swept much more
broadly to include as well sexual activity that could be
consensual and non-violent under the standards of Begay
and McDonald. For these reasons, the offense described
in the Minnesota statute, “in the typical or ordinary
case,” would not meet Begay’s requirement of purposeful,
aggressive, and violent conduct.
To avoid this result, the government also argues that
the “modified categorical approach” should be ap-
plied. That approach may be applied under a recidivist
enhancement where a statute specifies distinct modes
of committing the prior offense. In that case, if the judg-
ment of conviction does not specify exactly which provi-
sion was violated, a court considering a recidivist en-
hancement may consider certain additional materials,
such as charging and plea documents, but only for the
limited purpose of determining “under which part of a
divisible statute the defendant was charged.” United States
No. 09-2801 13
v. Woods, 576 F.3d 400, 406 (7th Cir. 2009). We are not
persuaded by the government’s argument that the Min-
nesota statute is divisible because it includes “separate
modes of committing the offense” in its definition
of “sexual penetration.” Subsection (1) of the statute
simply was not drafted so as to be divisible in that manner.
Following the approach in McDonald, we therefore
conclude that a categorical approach is appropriate here,
so that Sonnenberg does not qualify as a career offender
under § 4B1.1. We must vacate his sentence and remand
his case for re-sentencing without the career offender
enhancement.
We recognize that the categorical approach can seem
artificial and abstract, though it helps to narrow the
scope of recidivist statutes or sentencing guidelines that
can impose dramatic enhancements on sentences for
those defendants who clearly fall within their intended
scope. If we could still use a different method, as we did
in Shannon, and could focus on the defendant’s actual
conduct, we might reach a different conclusion about
the career offender enhancement for Sonnenberg. The
record here indicates that his 1985 conviction was based
on sexual intercourse with his stepdaughter twice a
month for four years, from the time she was seven years
old until she was eleven years old. A court could reason-
ably consider that particular course of criminal conduct
as involving purposeful, forceful, and aggressive
behavior posing a serious risk of physical injury to such
a young victim. In any event, regardless of the final
decision on the career offender enhancement, on
14 No. 09-2801
remand the district court will be able to consider all
factors relevant under 18 U.S.C. § 3553(a), including the
defendant’s history and characteristics. Nothing in the
law would require the court, in exercising its judgment
and discretion under § 3553(a), to close its eyes to the
actual conduct that led to the prior conviction. See
18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and
conduct of a person convicted of an offense which a
court of the United States may receive and consider for
the purpose of imposing an appropriate sentence.”).
Finally, Sonnenberg also argues on appeal that his
sentence, 82 months higher than any of the other named
non-leader conspirators in the consolidated appeals, is
an unreasonably high and disparate sentence, that the
court should have considered the factors under 18 U.S.C.
§ 3553(a), and should have better explained its reasoning
for the sentences it imposed. Sonnenberg specifically
challenges the reasonableness of his sentence in light of
what he argues was a limited role in the conspiracy—based
on the fact that he was a “hard core crack addict” and not
allowed “to handle the drugs or money from the [drug]
transactions”—and was therefore entitled to a minor
participant role reduction in his sentence. Sonnenberg’s
argument as to the reasonableness of his sentence based on
the § 3553(a) factors is without merit. The district court
explicitly addressed his argument for a lower sentence
based on a mitigating role in the conspiracy. The court
explained that it viewed Sonnenberg as “an average
participant in this conspiracy” and that his role “included
aiding his wife and transporting crack cocaine which
No. 09-2801 15
was obtained from a source in Minnesota and brought
back to Wisconsin for distribution to his own people.”
In addition, the judge considered and discussed
Sonnenberg’s relationship with his wife, his prior con-
victions, his abuse of alcohol and drugs, and his neglect
of his children in determining his sentence. To the
extent that Sonnenberg raised other issues about his
sentencing, our explanation of our affirmance of the
other appellants’ sentences in the unpublished order
addresses them. The district court adequately considered
the § 3553(a) factors.
Appellant Bruce Sonnenberg’s sentence is V ACATED ,
and his case is remanded for re-sentencing consistent
with this opinion.
12-8-10