United States v. Capler

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-3975

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

N ATHANIEL L. C APLER,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 3:07-cr-30083—Jeanne E. Scott, Judge.

No. 09-2513

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

D ONTE L. S TEWART,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:06-cr-40006-001—J. Phil Gilbert, Judge.

A RGUED A UGUST 3, 2010—D ECIDED A PRIL 1, 2011
2 Nos. 08-3975 & 09-2513

Before B AUER, M ANION, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Nathaniel Capler pleaded guilty
to two drug offenses and was sentenced to 141 months’
imprisonment based in part on an Illinois conviction for
unlawful restraint that the district court deemed to be
a “crime of violence” within the meaning of U.S.S.G.
§ 4B1.2. See 720 ILL. C OMP. S TAT. 5/10-3. On appeal
he challenges only the district court’s conclusion that
his prior conviction is a crime of violence.1
We affirm. The district court’s ruling finds direct
support in our decisions in United States v. Wallace, 326
F.3d 881, 887 (7th Cir. 2003), and United States v. Billups,
536 F.3d 574, 584 (7th Cir. 2008). Wallace analyzed the
Illinois statute in question and concluded that the
offense is a crime of violence. Billups reached the same
conclusion about the closely analogous crime of false
imprisonment in Wisconsin. Notwithstanding Capler’s
efforts to challenge the validity of Wallace and Billups,
these decisions remain sound and together control the
outcome of this appeal.

I. Background
Capler sold crack cocaine to a police informant. He
was arrested and pleaded guilty to two counts of distribu-
tion. See 21 U.S.C. § 841(a)(1). The district court sentenced

1
Donte L. Stewart, the second appellant in this consolidated
appeal, has been released from prison and is no longer in the
custody of the Bureau of Prisons. His lawyers have moved
to dismiss his appeal as moot. That motion is granted.
Nos. 08-3975 & 09-2513 3

him as a career offender to a total of 141 months’ impris-
onment. See U.S.S.G. § 4B1.1. The career-offender designa-
tion is based on two Illinois convictions, one for delivery
of a controlled substance and the other for unlawful
restraint. Capler’s appointed lawyer initially cast the
appeal as frivolous and moved to withdraw under
Anders v. California, 386 U.S. 738 (1967), but we denied
that motion after concluding that an appeal asking us
to revisit Wallace would not be frivolous. Capler’s
attorney has now briefed that argument on the merits.
In deciding if a conviction is for a crime of violence,
we look to the statutory elements and the manner in
which the offense ordinarily is committed. United States
v. Sonnenberg, 628 F.3d 361, 364 (7th Cir. 2010); United
States v. Dismuke, 593 F.3d 582, 591 (7th Cir. 2010), petition
for cert. filed, 79 U.S.L.W. 3062 (U.S. July 19, 2010) (No. 10-
109). As relevant here, a “crime of violence” is any
offense punishable by imprisonment exceeding one year
that “has as an element the use, attempted use, or threat-
ened use of physical force against the person of another,”
U.S.S.G. § 4B1.2(a)(1), or “is burglary of a dwelling,
arson, or extortion, involves use of explosives, or other-
wise involves conduct that presents a serious potential
risk of physical injury to another,” id. § 4B1.2(a)(2). In
Illinois a person “commits the offense of unlawful
restraint when he or she knowingly without legal
authority detains another.” 720 ILL. C OMP. S TAT. 5/10-3(a)
(2010). The use or threatened use of force is not an
element, see People v. Brials, 732 N.E.2d 1109, 1119
(Ill. App. Ct. 2000); People v. Bowen, 609 N.E.2d 346, 361 (Ill.
App. Ct. 1993), so the crime as defined in Illinois does
4 Nos. 08-3975 & 09-2513

not satisfy subsection (a)(1). Our analysis thus shifts to
subsection (a)(2).
Unlawful restraint is not one of the specific crimes
listed in the first part of § 4B1.2(a)(2), so to count as a
violent felony, the crime must fall within the residual
clause, which covers offenses that “otherwise involve[]
conduct that presents a serious potential risk of physical
injury to another.” This requires a determination that
the offense is “roughly similar” to those that are specifi-
cally enumerated. See Begay v. United States, 553 U.S.
137, 143 (2008); United States v. Woods, 576 F.3d 400, 404
(7th Cir. 2009). Before the Supreme Court decided Begay,
we had analyzed the residual clause by asking only
whether the crime in question typically encompasses
conduct creating a risk of injury similar to the enumerated
crimes. See, e.g., United States v. Mathews, 453 F.3d 830, 836-
37 (7th Cir. 2006); United States v. Franklin, 302 F.3d 722,
723 (7th Cir. 2002). Begay added a second level of
analysis, a similar-in-kind inquiry, which asks whether
the crime as ordinarily committed reflects the same
“purposeful, violent, and aggressive” conduct as the
listed crimes. 553 U.S. at 144-45. Only if a crime is
similar both in kind and degree of risk posed can it
qualify as a crime of violence under § 4B1.2(a)(2). Id.
After Begay we held in Woods that when the statute
in question is divisible—when it defines alternative
means of committing a crime, some violent and some
not—the district court may expand its categorical
inquiry by examining a limited set of additional
materials to determine whether the defendant was con-
Nos. 08-3975 & 09-2513 5

victed of the violent version of the crime. See Woods, 576
F.3d at 403. The Illinois statute does not define alterna-
tive means of committing the crime of unlawful
restraint and thus is not “divisible” as we explained the
concept in Woods, id. at 404-07. The offense is a crime
of violence, then, only if it is categorically similar to
burglary, arson, extortion, and crimes involving the use
of explosives. See Begay, 553 U.S. at 144-45; Dismuke, 593
F.3d at 594; United States v. Hart, 578 F.3d 674, 680-81
(7th Cir. 2009); United States v. Evans, 576 F.3d 766, 768-
69 (7th Cir. 2009). This similarity was found to be
present in Wallace, 326 F.3d at 887, a pre-Begay decision
concluding that a violation of the Illinois unlawful-
restraint statute generally will carry a risk of violence.
We have not reevaluated that position since Begay, but
we have concluded post-Begay that the analagous crime
of false imprisonment as defined by Wisconsin statute
is categorically violent. See W IS. S TAT. § 940.30; Billups,
536 F.3d at 584.

II. Discussion
The sole issue in this appeal is whether unlawful re-
straint as defined by Illinois law falls within § 4B1.2(a)’s
residual clause for crimes roughly similar to the enumer-
ated offenses. Capler argues that the statute encom-
passes too much nonviolent conduct for it to be cate-
gorically labeled as a violent felony. Although Capler
concedes that Wallace and Billups are on point, he
contends that both decisions are incorrect and urges us
to reconsider them in light of more recent opinions
6 Nos. 08-3975 & 09-2513

from this court. Because Capler preserved this argument
for appeal, our review is plenary. See United States v.
Clinton, 591 F.3d 968, 972 (7th Cir. 2010), cert. denied, 79
U.S.L.W. 3202 (U.S. Oct. 4, 2010) (No. 10-5137).
In Wallace we held that unlawful restraint as defined
in Illinois is a violent felony for purposes of the Armed
Career Criminal Act, see 18 U.S.C. § 924(e)(2)(B), which
tracks the language in § 4B1.2(a). Wallace, 326 F.3d at 887.
Applying the pre-Begay categorical approach, we reasoned
that unlawful restraint generally precipitates a risk of
violence, whether in the initial restraint or a resulting
confrontation between victim and assailant. Id. Although
we did not expressly conclude that unlawful restraint
is “similar in kind” to the crimes enumerated before
the residual clause (that requirement was added in
Begay), our analysis of the risk of injury strongly implies
that this sort of categorical similarity is present. Id.
Our decision in Wallace, then, is not a dead letter. If
anything it anticipated Begay even though we did not
articulate the analysis in precisely the same terms as the
standard later announced by the Supreme Court. Like
any precedential decision, Wallace stands until we are
given good reason to overrule it. See United States v.
Sykes, 598 F.3d 334, 338 (7th Cir. 2010), cert. granted, 79
U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-11311); Tate
v. Showboat Marina Casino P’ship, 431 F.3d 580, 583 (7th
Cir. 2005). We invited Capler to identify a reason, but
his response is simply to write off Wallace on the
ground that the opinion was issued five years before
Begay. Instead, he mostly focuses on trying to overcome
Nos. 08-3975 & 09-2513 7

Billups, but that strategy is shortsighted. Capler has not
offered a principled basis to overturn Wallace, and as
we discuss below, his lengthy effort to indirectly under-
mine Wallace by challenging Billups is unpersuasive.
In Billups we made explicit what we left to inference
in Wallace: Restraining another against his will, apart
from carrying a serious risk of injury, is an aggressive
act categorically similar to the crimes enumerated in
§ 4B1.2(a)(2). The Wisconsin statute analyzed in Billups
provides that “[w]hoever intentionally confines or
restrains another without the person’s consent and with
knowledge that he or she has no lawful authority to do
so is guilty of a Class H felony.” W IS. S TAT. § 940.30. A
separate chapter of the code, § 939.22(48), defines “without
consent” to mean “no consent in fact” or consent given
because the assailant threatened violence, or because
the victim did not give knowing consent, either by
reason “of ignorance or mistake of fact or of law other
than criminal law or by reason of youth or defective
mental condition, whether permanent or temporary.” We
examined the elements of § 940.30 and the definition
of “without consent” in concluding that the conduct
encompassed by the statute is categorically violent.
Billups, 536 F.3d at 578-79.
Billups read the Wisconsin statute to reach five types
of victims. The first four variations of the offense—a
nonconsenting victim, a victim who consented to the
confinement out of fear, a victim who consented
because she believed the assailant had authority to
confine her, and a victim who was tricked into con-
8 Nos. 08-3975 & 09-2513

senting—carry a substantial risk of physical injury
because each scenario sets the stage for a violent con-
frontation between victim and assailant. Id. at 580-81. In
the fifth variation where the victim is legally incapable
of giving consent, we recognized that the risk of con-
frontation, while lower, is not insubstantial because
the potential remains that the victim could be injured
trying to escape. We never decided whether the fifth
variation involves a serious risk of injury because we
were satisfied that a crime with four out of five dan-
gerous modes of commission is categorically violent.
Id. at 582.
Moreover, we distinguished a subsection of Indiana’s
criminal-confinement statute that had been held to be
a nonviolent felony. See United States v. Gilbert, 464 F.3d
674, 676-82 (7th Cir. 2006). The Indiana offense crim-
inalizes removal from one place to another by trick, see
IND. C ODE § 35-42-3-3(a)(2), and in Billups we were un-
willing to assume—at least without empirical evi-
dence—that deceiving someone into changing locations
poses the same risk as involuntary confinement. Billups,
536 F.3d at 582. We went on to observe that the Wis-
consin statute criminalizes conduct that is “inherently
more coercive” than the conduct within the sweep of the
Indiana statute, since in Wisconsin the victim must be
confined, not merely tricked into moving. On this point
our opinion in Billups cites approvingly to Wallace and
notes that the crime of unlawful restraint in Illinois is
“akin” to false imprisonment as defined by Wisconsin. Id.
Because Billups analyzes a statute that is closely analo-
gous to the Illinois crime of unlawful restraint, the rea-
Nos. 08-3975 & 09-2513 9

soning in that decision provides post-Begay support for
our holding in Wallace. The Wisconsin statute analyzed
in Billups is substantively indistinguishable from its
Illinois counterpart. Compare 720 ILL. C OMP. S TAT. 5/10-3(a)
(2010) (“A person commits the offense of unlawful
restraint when he or she knowingly without legal
authority detains another.”), with W IS. S TAT. § 940.30
(“Whoever intentionally confines or restrains another
without the person’s consent and with knowledge that
he or she has no lawful authority to do so is guilty of a
Class H felony.”). One minor difference is that Wisconsin
makes nonconsent an express requirement and defines the
phrase by statute, while the Illinois offense is silent
about consent. Illinois caselaw, however, shows that
nonconsent is an implicit requirement, its contours
shaped by state common law that appears to adopt a
common-sense understanding of the term. See People v.
Hunt, 502 N.E.2d 464, 466-67 (Ill. App. Ct. 1986) (reversing
conviction for unlawful restraint where State failed to
prove defendant’s knowledge that victim was too in-
toxicated to effectively consent); People v. Kittle, 489
N.E.2d 481, 484-85 (Ill. App. Ct. 1986) (concluding that
unlawful restraint is a lesser-included crime of kid-
napping by fraud or deceit); People v. Warner, 424 N.E.2d
747, 749-50 (Ill. App. Ct. 1981) (upholding conviction
for unlawful restraint where restraint of children was
achieved by threat of physical punishment); cf. 720 ILL.
C OMP. S TAT. 5/12-17(a) (defining consent in context of
sexual assault as “freely given agreement”). But if less
concrete, the definition of consent in Illinois does not
appear to be any broader than that in Wisconsin; nor
10 Nos. 08-3975 & 09-2513

does the crime of unlawful restraint appear to cover
any forms of nonviolent conduct that would not also
be covered by the Wisconsin statute.
Furthermore, Billups stands alone as the only post-
Begay decision from this court involving criminal con-
finement, and its holding is consistent with previous
decisions interpreting similar crimes. See United States
v. Franco-Fernandez, 511 F.3d 768, 771-72 (7th Cir. 2008)
(distinguishing nonviolent state offense of child abduc-
tion by putative father from violent offense of unlawful
restraint); Gilbert, 464 F.3d at 676-82 (declining to apply
Wallace to subsection of Indiana’s criminal-confinement
statute involving action not necessarily taken without
victim’s consent); United States v. Hagenow, 423 F.3d 638,
644 (7th Cir. 2005). The holding in Billups also falls
in line with the weight of authority from other circuits.
Before Begay several circuits had examined similar
statutes and uniformly characterized them as violent
crimes. United States v. Riva, 440 F.3d 722, 723-25 (5th
Cir. 2006) (holding that Texas crime of unlawfully re-
straining person under age 17 is crime of violence under
residual clause of § 4B1.2(a)(2) because offense involves
serious potential risk of physical injury); Dickson v.
Ashcroft, 346 F.3d 44, 49-50 (2d Cir. 2003) (holding that
New York offense of unlawful imprisonment of com-
petent adult is crime of violence within meaning of Immi-
gration and Nationality Act); United States v. Zamora,
222 F.3d 756, 764-65 (10th Cir. 2000) (holding that New
Mexico crime of false imprisonment is violent felony
under § 4B1.2(a)(2) because of substantial risk of vio-
lence); United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir.
Nos. 08-3975 & 09-2513 11

1994). After Begay no out-of-circuit published opinion
has evaluated a statute comparable to the Illinois crime
of unlawful restraint, but the Third Circuit in two unpub-
lished opinions has kept with the trend of characterizing
criminal confinement as a categorically violent crime.
See United States v. McMiller, 376 F. App’x 199, 202-03
(3d Cir. 2010); United States v. Smith, 284 F. App’x 943, 944-
45 (3d Cir. 2008).
Capler, not surprisingly, seeks to overturn Wallace by
arguing that Billups too was wrongly decided, albeit after
Begay. Specifically, he contends that Billups should
be disregarded because we decided it on the incorrect
assumption that the Wisconsin statute at issue was in-
divisible; that our opinion in Billups improperly applied
the Begay analysis and offered only conclusory support
for its holding; that subsequent decisions in this circuit
applying the crime-of-violence inquiry call Billups into
question; and that Billups should be reassessed in light
of the Supreme Court’s decision in Chambers v. United
States, 129 S. Ct. 687, 692-93 (2009).
Before addressing Capler’s challenges to Billups, we
must resolve a threshold dispute over how to approach
the question of what conduct typifies the “ordinary case”
of unlawful restraint. Capler insists that the “ordinary
case” of unlawful restraint should encompass only sepa-
rately punishable instances of the offense—that is, it
should exclude cases in which a judgment of conviction
for unlawful restraint cannot be entered because the
conduct at issue supports a separate conviction for a
more serious crime, thus making unlawful restraint a
12 Nos. 08-3975 & 09-2513

lesser-included offense. See, e.g., Brials, 732 N.E.2d at
1119; Kittle, 489 N.E.2d at 485. This argument misunder-
stands the categorical approach, which asks whether
the elements of the offense ordinarily involve conduct
that falls within the scope of the residual clause. See
James v. United States, 550 U.S. 192, 202 (2007); Sonnenberg,
628 F.3d at 365. Whether in the ordinary case the
offense conduct can support a separate punishment is of
no consequence; courts look instead at the conduct en-
compassed within the statutory definition of the crime
to determine what an ordinary case is like. See United
States v. Goodpasture, 595 F.3d 670, 672 (7th Cir. 2010)
(“[T]he Supreme Court’s question is what the offense as
generally committed entails, not which offenses lead to
criminal prosecutions.”).
Capler holds little back in his attack on Billups. As
a preliminary matter, he contends that the Billups
analysis is flawed from the outset because in
applying the categorical approach, we did not treat the
false-imprisonment statute as divisible. His point has
some appeal: Wisconsin law, which requires that false
imprisonment occur without the consent of the victim,
provides four definitions for “without consent” and
so would appear to create several divisible means of
committing false imprisonment. W IS. S TAT. § 939.22(48).
But even if Billups was mistaken in analyzing the Wis-
consin statute as a whole instead of focusing on the
particular subsections of the definition of “without con-
sent,” our holding in Billups—that false imprisonment
as generally committed carries a risk of violence—can
still inform our analysis. The Illinois crime of unlawful
Nos. 08-3975 & 09-2513 13

restraint is indivisible; that is, it resembles the Wisconsin
false-imprisonment statute as we conceptualized it in
Billups.
Capler contends that Billups bungled the Begay in-
quiry—both in terms of its assessment of the crime’s
similarity to the listed offenses in the residual clause
and its assessment of the risks posed by unlawful re-
straint. With respect to the similar-in-kind inquiry,
Capler contends that Billups offers only conclusory
support for the holding that unlawful restraint typically
involves violent and aggressive behavior. Not so. In
Billups we concluded that restraining a person against
his will generally creates a significant risk of violence,
even where restraint is not accomplished by force.
536 F.3d at 580-81. That determination informed the
similar-in-kind analysis just as it did the risk-of-
injury analysis. See Dismuke, 593 F.3d at 594 (explaining
that categorically violent felonies are those that carry a
genuine risk of violence); United States v. Patterson, 576
F.3d 431, 442 (7th Cir. 2009), cert. denied, 78 U.S.L.W.
3438 (U.S. Jan. 25, 2010) (No. 09-7158) (explaining that
risk of violence need only “attend” a violation of
predicate crime for purposes of crime-of-violence inquiry).
Describing the Wisconsin offense as “inherently . . .
coercive,” our decision in Billups goes on to draw
parallels between false imprisonment and the listed
crimes of extortion and burglary—crimes that can be
committed in a nonviolent manner and yet still carry
a substantial risk of harm. 536 F.3d at 583.
Capler insists that recent precedent in this circuit
calls into question the similar-in-kind analysis. In sup-
14 Nos. 08-3975 & 09-2513

port he relies on several recent cases in which we
vacated crime-of-violence determinations because the
predicate statutes covered nonviolent conduct. See Good-
pasture, 595 F.3d at 672; Hart, 578 F.3d at 679; Evans, 576
F.3d at 769; United States v. Templeton, 543 F.3d 378, 384
(7th Cir. 2008). None of these cases, however, addresses
unlawful restraint; nor does any case purport to modify
the legal inquiry followed in Billups. These cases do not,
as Capler suggests, support the proposition that an in-
divisible statute can never be categorized as a violent
crime if it encompasses some nonviolent conduct. Rather,
the predicate offenses in these cases simply involved
relatively passive conduct, conduct too dissimilar to
warrant comparison with unlawful restraint. For ex-
ample, Templeton and Hart involved escape offenses that
cover such passive, nonaggressive conduct as walking
away from nonsecure custody, see Templeton, 543 F.3d
at 381; Hart, 578 F.3d at 677, and Goodpasture examined
a statute prohibiting lewd and lascivious conduct in-
volving a person under fourteen, see Goodpasture, 595
F.3d at 672. And though the aggravated-battery crime
deemed nonviolent in Evans would appear closer to the
mark, the outcome of that case is misleading because the
government gave it away by failing to argue that the
predicate crime of conviction (insulting or provoking
physical contact with a pregnant woman) is characteristi-
cally violent and agressive. See Evans, 576 F.3d at 769.
As for the second part of the Begay inquiry that
focuses on the potential for physical injury, Capler
argues that Billups and Wallace should be reconsidered
in light of the Supreme Court’s decision in Chambers, 129
Nos. 08-3975 & 09-2513 15

S. Ct. at 692-93. Noting that Chambers places an emphasis
on empirical data in the analysis of potential risk, Capler
appears to contend that Chambers calls into question
the validity of any evaluation conducted without bene-
fit of statistics. But Capler can point to no language in
Chambers requiring the use of empirical data; nor does
he cite a federal decision interpreting Chambers as
doing so. The Supreme Court in Chambers may have en-
couraged the use of statistical data in determining
whether an offense carries a risk of injury, but the Court
does not require it. See United States v. Alexander, 609
F.3d 1250, 1256-57 (11th Cir. 2010); see also Sonnenberg,
628 F.3d at 366 (“[I]n the absence of detailed statistical
information that is unlikely to be available, the best we
can do is use common sense and experience to deter-
mine the variety of crimes a statute would cover . . . .”);
Welch v. United States, 604 F.3d 408, 424 (7th Cir. 2010),
petition for cert. filed, 79 U.S.L.W. 3129 (Sept. 1, 2010)
(No. 10-314) (post-Chambers case conducting risk-of-
injury analysis without data); Patterson, 576 F.3d at 442
(same).
Capler maintains that Chambers dislodged certain
precedents underlying this court’s holding in Wallace,
casting further doubt on the decision. In Wallace we
cited two escape cases, United States v. Franklin, 302
F.3d 722, 725 (7th Cir. 2002), and United States v.
Bryant, 310 F.3d 550, 554 (7th Cir. 2002), as examples of
categorically violent offenses that encompass potentially
harmful conduct. See Wallace, 326 F.3d at 887. Our
focus was on the crime of escape and the dangers
16 Nos. 08-3975 & 09-2513

attendant to fleeing confinement. Id. The holding in
Chambers, however, concerned only the crime of failure
to report—an offense the Supreme Court distinguished
from traditional escape as being far less likely to result
in harm. Chambers, 129 S. Ct. at 691.
As yet another basis for attacking Wallace, Capler con-
tends that the decision is inconsistent with Hagenow,
423 F.3d at 644, which holds that one part of Indiana’s
criminal-confinement statute is not a violent felony.
This argument has no merit. We addressed the apparent
tension between Wallace and Hagenow in Gilbert, 464 F.3d
at 682, and then again in Billups, 536 F.3d at 582. These
decisions foreclose the need for further discussion.
In the end we are left with no reason to question the
continuing validity of Wallace and Billups. As a faithful
application of Begay to a closely analogous crime, Billups
lends support to our holding here. But our lengthy
defense of Billups should not distract focus from
Wallace, the only decision in this circuit that has
analyzed the Illinois crime of unlawful restraint, and
accordingly, the decision that controls the outcome of
this appeal. For the reasons we have explained, we are
satisfied that Wallace survived Begay, that the decision’s
analysis is in harmony with the present-day approach of
the Supreme Court, and that its holding remains sound.
The judgment of the district court is A FFIRMED.

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