In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2450
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JERMAINE C URTIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:09-cr-50025-1—Philip G. Reinhard, Judge.
A RGUED A PRIL 13, 2011—D ECIDED JULY 13, 2011
Before P OSNER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Appellant Jermaine Curtis was
indicted on May 19, 2009, on two counts of distributing
mixtures containing cocaine base in the form of crack
cocaine in violation of 21 U.S.C. § 841(a)(1). Curtis
agreed to plead guilty on February 22, 2010, to
distributing 56.3 grams of a mixture containing co-
caine base in the form of crack cocaine. According to the
agreement’s factual basis, Curtis sold a confidential in-
2 No. 10-2450
formant 56.3 grams of a mixture containing cocaine base
in the form of crack cocaine on September 3, 2008, for
$1,700. Curtis also acknowledged that he gave the confi-
dential informant 3 grams of cocaine base in the form
of crack cocaine on August 14, 2008, in exchange for $100.
The district court accepted the guilty plea and ordered
the preparation of a presentence investigation report. The
report placed Curtis’s base offense level at 30 (an offense
involving at least 50 grams but less than 150 grams of
cocaine base, see U.S.S.G. § 2D1.1(c)(5) (2009)) and de-
ducted three levels for acceptance of responsibility and
timely notifying the government of his intent to plead
guilty, see U.S.S.G. § 3E1.1. But the report also determined
that Curtis was a career offender pursuant to U.S.S.G.
§ 4B1.1(a): (1) he was at least eighteen years old at the
time of his instant offense; (2) his instant offense was a
controlled substance offense; and (3) he had prior
felony convictions for a crime of violence (aggravated
discharge of a firearm in 2001) and a controlled substance
offense (possession with intent to deliver a controlled
substance in 2006). His career offender status raised
his adjusted offense level to 34, his criminal history cate-
gory to VI, and his advisory guidelines range to 262 to
327 months’ imprisonment.
Curtis filed an objection to the presentence report and
a motion for a downward variance. Curtis challenged
his career offender status. He argued that his 2001 aggra-
vated discharge of a firearm conviction did not qualify
as a crime of violence and thus he was not a career of-
fender. See U.S.S.G. § 4B1.1(a)(3). Curtis also argued that
No. 10-2450 3
the disparity between powder cocaine and crack cocaine
was unfair, failed to advance justice, and did not
support the purposes of 18 U.S.C. § 3553(a). Curtis main-
tained that his conviction only established that he was
a “lower level distributor” and that the amounts
involved did not establish that he was involved in a
“large scale organization.”
The district court disagreed. At Curtis’s June 8, 2010,
sentencing hearing, the court found that Curtis’s aggra-
vated discharge of a firearm conviction qualified as a
crime of violence. The court also found that the length
of Curtis’s criminal history, namely his convictions in-
volving the sale of controlled substances and violence
and firearms and his probation and parole violations,
weighed against a downward variance. The court con-
sidered and rejected Curtis’s arguments on the crack
and powder cocaine disparity and that Curtis was
merely a “street level dealer.” The court found that a
sentence within the guidelines range was necessary
because of Curtis’s danger to society and the need to
deter further criminal conduct. The court sentenced
Curtis to 262 months’ imprisonment and five years’
supervised release. Curtis filed a timely appeal.
Curtis advances the same two arguments on appeal.
First, he argues that the district court improperly
applied the career offender enhancement pursuant to
U.S.S.G. § 4B1.2(a). We apply de novo review to the
“district court’s career offender determination, as well as
the underlying crime-of-violence determination.” United
States v. Billups, 536 F.3d 574, 578 (7th Cir. 2008) (citation
omitted). A defendant qualifies as a career offender if:
4 No. 10-2450
(1) the defendant was at least eighteen years old
at the time the defendant committed the instant
offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of
violence or a controlled substance offense; and
(3) the defendant has at least two prior felony
convictions of either a crime of violence or a con-
trolled substance offense.
U.S.S.G. § 4B1.1(a). Curtis concedes that the first two
elements of the career offender enhancement apply to his
circumstances. He also does not dispute that his 2006
conviction for possession with intent to deliver a
controlled substance qualifies as a felony controlled
substance offense. His argument is that his 2001 aggra-
vated discharge of a firearm conviction does not qualify
as a crime of violence.
A crime of violence for purposes of the career offender
enhancement is defined as any federal or state law offense
punishable by imprisonment for at least one year that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk
of physical injury to another.
U.S.S.G. § 4B1.2(a). To determine whether a given crime
qualifies as a crime of violence we apply the “categorical
approach.” United States v. Woods, 576 F.3d 400, 403 (7th
No. 10-2450 5
Cir. 2009). We may only look “to the fact of conviction
and the statutory definition of the prior offense,” and will
“not generally consider the particular facts disclosed by
the record of conviction.” Id. (quoting James v. United
States, 550 U.S. 192, 202 (2007)) (internal quotations and
citations omitted). The question is “whether the elements
of the offense are of the type that would justify its
inclusion . . . without inquiring into the specific conduct
of this particular offender.” United States v. Taylor, 630
F.3d 629, 633 (7th Cir. 2010) (quoting James, 550 U.S. at
202). When a statute describes more than one offense,
and parts of the statute describe conduct that qualifies
as a crime of violence and other conduct that does not
(dubbed “divisible” statutes), we employ the “modified
categorical approach.” Id. Under this approach, we look
at the conviction’s judicial record to determine whether
it qualifies as a crime of violence, but we will still not
examine the particular facts of the conviction. See id. at
633 (citations omitted); Woods, 576 F.3d at 404 (citations
omitted).
Curtis’s conviction for aggravated discharge of a
firearm pursuant to 720 Ill. Comp. Stat. 5/24-1.2(a) de-
scribes the following conduct:
A person commits aggravated discharge of a firearm
when he or she knowingly or intentionally:
(1) Discharges a firearm at or into a building he or
she knows or reasonably should know to be occu-
pied and the firearm is discharged from a place
or position outside that building;
6 No. 10-2450
(2) Discharges a firearm in the direction of another
person or in the direction of a vehicle he or
she knows or reasonably should know to be occu-
pied by a person; . . . .
The statute also describes other methods of committing
the crime by “knowingly or intentionally” discharging
a firearm in the direction of certain officials (such as
firemen, teachers, or paramedics) or shooting a gun in
the direction of a particular vehicle the shooter knows to
be occupied by certain officials. See id. 5/24-1.2(a)(3)-(9).
The parties agree that Curtis was convicted of subsec-
tion (a)(2).
Because there is more than one mode of violating sub-
section (a)(2), we must determine whether the statute is
divisible. Actions that violate subsection (a)(2) require
the elements of (1) knowingly or intentionally (2) dis-
charging a firearm (3) in the direction of either a person
or a vehicle the shooter knows or reasonably should
know to be occupied. See id. Under the first U.S.S.G.
§ 4B1.2(a) “crime of violence” definition, the offense
must have as an element the (1) use, attempted use, or
threatened use of (2) physical force (3) against another
person. Discharging a firearm is unquestionably the
use, attempted use, or threatened use of physical force.
See Johnson v. United States, 130 S. Ct. 1265, 1271 (2010)
(defining “physical force” as “force capable of causing
physical pain or injury to another person” for a similar
definition in the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B)(i) (citing Flores v. Ashcroft, 350 F.3d 666,
672 (7th Cir. 2003))). When the firearm’s discharge is in
No. 10-2450 7
the direction of another person or vehicle the shooter
knows or reasonably should know to be occupied, which
it must be under all modes of violating 720 Ill. Comp.
Stat. 5/24-1.2(a)(2), that use, attempted use, or threatened
use of physical force is “against the person of another.”
U.S.S.G. § 4B1.2(a)(1). Thus, the statute is not divisible
because there are no methods of committing the actions
in subsection (a)(2) without using, attempting to use, or
threatening to use physical force against another per-
son.1 See Taylor, 630 F.3d at 633; Woods, 576 F.3d at 406.
Curtis argues that because the elements of aggravated
discharge of a firearm do not require the firearm’s dis-
charge to result in injuring or striking a person, 720 Ill.
Comp. Stat. 5/24-1.2(a) lacks the element of physical force
required in U.S.S.G. § 4B1.2(a)(1). Curtis’s argument
ignores that § 4B1.2(a)(1) is not limited to the use of
force; rather, it includes attempted and threatened uses
of physical force. Discharging a firearm in the direction
1
We noted in United States v. Calderon-Asevedo, 290 Fed. App’x.
923, 925 & n.3 (7th Cir. 2008) (unpublished order) that whether
a 720 Ill. Comp. Stat. 5/24-1.2(a)(1) conviction was a crime of
violence for U.S.S.G. § 2L1.2(b)(1)(A)(ii) (applying a 16-level
enhancement for unlawfully entering or remaining in the
country offenses) was a close question, but we withheld
ruling because an alternative holding barred the challenge
regardless. The § 2L1.2 application notes include a “crime
of violence” definition identical to § 4B1.2(a)(1). Because
Curtis agrees that his conviction was for subsection (a)(2)
of 720 Ill. Comp. Stat. 5/24-1.2, we once again postpone what
we described in Calderon-Asevedo as a “novel challenge.”
8 No. 10-2450
of a person or a vehicle containing a person (regardless
of what the shooter knows or reasonably should know)
is unquestionably the use, attempted use, or threatened
use of “physical force against the person of another.”
U.S.S.G. § 4B1.2(a)(1).
Our precedent supports holding that aggravated dis-
charge of a firearm in violation of 720 Ill. Comp. Stat. 5/24-
1.2(a)(2) constitutes the use, attempted use, or threatened
use of force against another person. In United States v.
Rice, 520 F.3d 811, 821 (7th Cir. 2008), we held that
a conviction for aggravated discharge of a firearm
in violation of 720 Ill. Comp. Stat. 5/24-1.2(a)(2) was a
U.S.S.G. § 4B1.2(a) crime of violence. In doing so, we
relied on § 4B1.2(a)(2)’s residual clause in finding that
firing a gun in the direction of another person or a vehicle
the shooter “reasonably should know to be occupied
carries . . . ‘a serious potential risk of physical injury
to another.’ ” Rice, 520 F.3d at 821 (quoting U.S.S.G.
§ 4B1.2(a)(2)). We emphasized that 720 Ill. Comp. Stat. 5/25-
1.2(a)(2) “required proof that the defendant know or should
reasonably know that another person occupied the vehi-
cle.” Id. (emphasis in original). Rice relied on our
holding in Quezada-Luna v. Gonzales, 439 F.3d 403 (7th
Cir. 2006) that a 720 Ill. Comp. Stat. 5/24-1.2(a)(1) convic-
tion contains an element of the “use, attempted use, or
threatened use of physical force against the person
or property of another” for purposes of 18 U.S.C. § 16(a).
Underlying both Rice and Quezada-Luna was the “common-
sense notion that firing a gun is a use of physical
force.” Rice, 520 F.3d at 820; Quezada-Luna, 439 F.3d at 406.
No. 10-2450 9
We apply that same common-sense in holding that
knowingly or intentionally discharging a firearm in the
direction of a person or a vehicle the shooter “knows
or reasonably should know to be occupied by a person,”
see 720 Ill. Comp. Stat. 5/24-1.2(a)(2), “has 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)(1).
Our holding in United States v. Jaimes-Jaimes, 406 F.3d
845, 849-50 (7th Cir. 2005), is instructive. In Jaimes-Jaimes,
a Wisconsin statute contained the elements of inten-
tionally discharging a firearm into a building or vehicle
but only required that the shooter “should have realized
that there might be a human being present.” Id. at 849
(quoting State v. Grady, 499 N.W.2d 285, 287 (Wis. 1993)).
All that was necessary in Jaimes-Jaimes for a conviction
was that “the defendant should have realized that there
might be a person present.” Id. at 850. We distinguish
Jaimes-Jaimes here for the same reason we distinguished
it in Rice: the Wisconsin offense includes action “even
where a person only should have realized that there
might be a person inside the vehicle or building.” 520 F.3d
at 821. The Wisconsin law simply “did not require as an
element the use, attempted use, or threatened use of
physical force against another.” Id. Our Illinois offense
by contrast requires “proof that the defendant know or
should reasonably know that another person occupied
the vehicle.” Id.
Consider the Fifth Circuit’s United States v. Alfaro deci-
sion. 408 F.3d 204, 209 (5th Cir. 2005). There the court
held that a conviction for shooting into an occupied
dwelling did not have “as a necessary element, the use,
10 No. 10-2450
attempted use, or threatened use of force against an-
other” because a person could commit the act described
in the statute “merely by shooting a gun at a building
that happens to be occupied without actually shooting,
attempting to shoot, or threatening to shoot another
person.” Id. By contrast, 720 Ill. Comp. Stat. 5/24-1.2(a)(2)
only mentions vehicles. Buildings are confined to sub-
section (a)(1). Vehicles as a class are generally quite
smaller than buildings. This difference in size in propor-
tion to the average size of a person causes us to draw a
conclusion opposite Alfaro: shooting in the direction of an
occupied vehicle has as a necessary element the use,
attempted use, or threatened use of force against a person
because one cannot commit that act without shooting,
attempting to shoot, or threatening to shoot at that
person in the vehicle. See generally United States v.
Hernandez-Rodriguez, 467 F.3d 492, 495 (5th Cir. 2006)
(holding that a statute requiring the discharge of a
firearm in the direction of a person is unlike Alfaro).
As the government properly conceded at oral argu-
ment, had Curtis fired in the direction of a car he should
not have reasonably known to be occupied, (for instance,
Curtis fired in the direction of a parked car awaiting
crushing at a junkyard), he could not be convicted of this
aggravated discharge of a firearm offense because that
action would be akin to criminal damage to property—not
aggravated discharge of a firearm. And that conduct
would not involve the use, attempted use, or threatened
use of physical force against another person for U.S.S.G.
§ 4B1.2(a)(1). By contrast, if the shooter ignored telltale
signs of the vehicle’s occupancy, such as its presence at
No. 10-2450 11
a toll booth where the shooter “reasonably should
know” the vehicle is occupied, the shooter’s intentional or
knowing discharge of a firearm in the direction of the
vehicle would violate 720 Ill. Comp. Stat. 5/24-1.2(a)(2) and
in turn, such conduct would constitute a § 4B1.2(a)(1)
“crime of violence.” Although the shooter may not have
known of the vehicle’s occupancy, the shooter still used,
attempted to use, or threatened to use physical force
against another person. Cf. United States v. Tapia, 610
F.3d 505, 513 (7th Cir. 2010) (holding that there was
sufficient evidence that the defendant was alleged to
have violated 720 Ill. Comp. Stat. 5/24-1.2(a)(1) because
“the shooting occurred in the early hours of the morning
when the home would likely be occupied, and in fact
was”); People v. Juarez, 662 N.E.2d 567, 572 (Ill. App. Ct.
1996) (holding that a witness’s testimony that he saw
the “defendant point the gun and shoot in the direction
of a moving vehicle, knowing that the vehicle was occu-
pied” supported a 720 Ill. Comp. Stat. 5/24-1.2(a)(2)
conviction).
Curtis argues that 720 Ill. Comp. Stat. 5/24-1.2(a)(2)
violations fail to fit U.S.S.G. § 4B1.2(a)(2)’s residual clause,
which encompasses offenses that otherwise involve
“conduct that presents a serious potential risk of physical
injury to another.” He believes that intentionally or
knowingly firing a gun in the direction of a person or
a vehicle containing a person fails to present a serious
potential risk of physical injury because such action
lacks “a high degree of probability as to its outcome.”
We do not need to address this argument because
Curtis’s aggravated discharge of a firearm conviction
12 No. 10-2450
contains “an element the use, attempted use, or
threatened use of physical force against the person of
another” under U.S.S.G. § 4B1.2(a)(1). The district court
did not err in finding that Curtis’s discharge of a
firearm conviction qualified as a crime of violence for
purposes of the career offender enhancement.
Curtis next argues that the district court abused its
discretion in refusing to apply a downward variance
in light of the sentencing disparity between crack and
powder cocaine and his claim that he was a low-level
street distributor. We presume that a sentence within
or below a properly calculated guideline range is rea-
sonable. United States v. Liddell, 543 F.3d 877, 885
(7th Cir. 2008). We do not find that the district court
abused its discretion in sentencing Curtis. The district
court considered, and rejected, Curtis’s arguments re-
garding the crack/powder disparity and that he was
merely a low-level distributor because of his criminal
history. Curtis asserted at oral argument that the
district court erred in finding that Curtis had an ex-
tensive criminal record. We disagree. The district court
relied on Curtis’s conviction for distribution of a
controlled substance and that he had been in “serious
trouble” since the age of 12. The court also relied on
Curtis’s conviction for the above-discussed crime
involving “violence and firearms” and his probation and
parole violations. The court noted that Curtis committed
this immediate offense within a year of being released
from his state court conviction and that his return to “a
lifestyle of committing criminal offenses” made him
“a danger to society” and that deterrence was necessary
No. 10-2450 13
to prevent further criminal conduct. The district court
justified its finding that Curtis had an extensive
criminal record and did not abuse its discretion in
finding that this record weighed against a downward
variance despite the disparity and his alleged low-level
distributor status. We will not disturb the district court’s
use of its discretion.
We A FFIRM the judgment of the district court.
7-13-11