NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2008
Decided April 16, 2008
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2887
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 05 CR 50004
DAVID A. CANFIELD,
Defendant‐Appellant. Philip J. Reinhard, Judge.
O R D E R
David Canfield pleaded guilty, pursuant to a plea agreement, to robbing a bank
in violation of 18 U.S.C. § 2113(a). At sentencing, the district court found that Canfield
committed four prior crimes of violence and accordingly was a career offender under
the federal sentencing guidelines. See U.S.S.G. § 4B1.1(a). Canfield appeals his
sentence, arguing that the district court erroneously determined that he was a career
offender.
No. 07-2887 2
Although the sentencing guidelines list several criteria to determine whether a
defendant is a career offender, the only one that the parties disputed at sentencing was
whether Canfield had at least two prior felony convictions for crimes of violence. See
U.S.S.G. § 4B1.1(a). The parties agreed that Canfied’s prior conviction for burglary of a
dwelling in Florida was a crime of violence, see U.S.S.G. § 4B1.2(a)(2), but disagreed
about whether his conviction in Iowa for theft, see Iowa Code Ann. §§ 714.1, 714.2(1),
and two other convictions in Iowa for robbery, see id. §§ 711.1, 711.3, were also crimes
of violence. The court determined that all of these convictions were for crimes of
violence, and thus it concluded that Canfield was a career offender. Applying the
career offender guideline, see U.S.S.G. § 4B1.1(b), the court calculated Canfield’s base
offense level at 32. It then determined he was entitled to a 3‐point downward
adjustment for acceptance of responsibility, bringing his offense level to 29. With a
criminal history score of VI, Canfield’s guidelines imprisonment range was 151 to 188
months. The court then addressed the 18 U.S.C. § 3553(a) factors and sentenced
Canfield to a term of 168 months, just a tad short of the middle of the guideline range.
We review de novo a district court’s determination that a defendant is a career
offender. See United States v. Cole, 298 F.3d 659, 661 (7th Cir. 2002). We take a
categorical approach in deciding whether a prior conviction was for a crime of violence,
so we start by looking at the elements of the statute of conviction and the charging
document. See United States v. Newbern, 479 F.3d 506, 508 (7th Cir. 2007). If we cannot
conclude, based on the statute and charging document, whether the prior crime is a
crime of violence, we then consider information in other documents, such as plea
agreements and transcripts of plea colloquies.
On appeal, Canfield continues to press his argument that his theft and robbery
offenses are not crimes of violence. An offense is a crime of violence under three
circumstances: (1) if it involves “use, attempted use, or threatened use of physical
force,” U.S.S.G. § 4B1.2(a)(1); (2) if it is enumerated as a crime of violence in
§ 4B1.2(a)(2); or (3) if it “involves conduct that presents a serious potential risk of
physical injury to another,” U.S.S.G. § 4B1.2(a)(2). The parties agree that Canfield’s
Iowa convictions did not involve use or threats of force and are not designated
specifically as crimes of violence. The only question that remains is whether any of
Canfield’s three convictions was for a crime that posed a serious risk of injury to
another person. See U.S.S.G. § 4B1.2(a)(2).
No. 07-2887 3
We turn first to Canfield’s conviction for theft. Canfield was charged in an
information with three counts of “tak[ing] possession or control of the property of
another with the intent to deprive the owner thereof, that said theft of property was
from the person of another, to wit: Beecher’s on Asbury . . . Amoco Food Stop on JFK
Road . . . Q‐Mart on South Main Street,” in violation of Iowa Code Ann. §§ 714.1 and
714.2(1). Canfield argues that because the charging documents list names of businesses,
he was convicted of stealing from those businesses, not from other individuals. He
points out that, under Iowa law, a business can be a “person,” and thus, he insists,
stealing from a business is consistent with the charge that he took property “from the
person of another.” See Iowa Code Ann. § 4.1(20). And he contends that stealing from
a business does not pose a serious risk of injury, and therefore this crime is not a crime
of violence.
We reject Canfield’s argument because the statute and charging document show
that he was convicted of theft from individuals, not businesses. The charging document
says that Canfield was charged with theft in the first degree, which Iowa Code
§ 714.2(a) defines as “theft of property exceeding ten thousand dollars in value, or theft
of property from the person of another, or from a building which has been destroyed or
left unoccupied because of physical disaster, riot, bombing or the proximity of battle.”
Iowa Code Ann. § 714.2(a). Specifically, Canfield was charged with taking “possession
or control of the property of another . . . from the person of another.” Although a
“person” can be a business for some purposes under Iowa law, the phrase “of another”
here refers to another individual, not a business. The Supreme Court of Iowa has said
that it is the taking “from the victim’s area of control” that triggers the heightened
penalty for first degree theft because it creates the potential for a violent confrontation
between the thief and the victim. See State v. Washington, 308 N.W.2d 422, 423 (Iowa
1981). This concern does not apply if the victim is a business; thus, simple theft from an
individual is first‐degree theft, but simple theft from a business is not. The charging
document is silent about the aggravating factors that could elevate theft from a business
to first‐degree theft‐‐theft of more than $10,000 or conduct that amounts to looting. So
we must conclude that Canfield was charged with theft from other individuals and that
the list of businesses in the charging document is superfluous. See Newbern, 479 F.3d
at 510.
Theft from an individual carries the risk of physical injury because there is the
“potential for physical confrontation with the thief.” Washington, 308 N.W.2d at 423.
No. 07-2887 4
And the Eighth Circuit has found that a conviction under these statutes for theft from
another person constitutes a conviction for a crime of violence for purposes of § 4B1.2(a)
because there is a “likelihood that the victim will resist or defend in a manner that will
lead to immediate violence.” United States v. Johnson, 326 F.3d 934, 937 (8th Cir. 2003).
This reasoning is in line with our holding in United States v. Howze, 343 F.3d 919 (7th
Cir. 2003), that a theft from an individual constitutes a violent felony under the Armed
Career Criminal Act, 18 U.S.C. § 924(e). Howze, 343 F.3d at 924. We use the same
analysis to determine whether a crime is a “violent felony” under the Armed Career
Criminal Act as we use to decide if it is a “crime of violence” for the career criminal
guideline. See United States v. McGee, 408 F.3d 966, 988 (7th Cir. 2005). So we agree
with the district court that Canfield’s conviction for theft is a crime of violence.
Because Canfield’s conviction for theft is his second conviction for a crime of
violence, the district court correctly concluded that he was subject to the increased
guidelines range. See U.S.S.G. § 4B1.1(b). But for the sake of completeness we address
Canfield’s two convictions for robbery and conclude that they, too, are crimes of
violence. One information charged that “with the intent to commit a theft, “ Canfield
“commit[ed] an assault upon the person of Cindy Loeffeihols, to assist or further the
commission of the intended theft or the person’s escape from the scene,” and the second
charged that “while having the intent to commit a theft,” Canfield “did commit an
assault upon another in the furtherance of his escape from the scene thereof,” both in
violation of Iowa Code Ann. §§ 711.1 and 711.3. Canfield argues that, because an
assault under Iowa law does not require physical contact (or threatened physical
conduct) with the victim, his conduct did not pose a serious potential risk of injury.
This argument, however, ignores the fact that some offenses that do not involve force
nonetheless are considered crimes of violence. It is enough that a crime presents a
serious risk of injury; it is not necessary that the crime also involves the use or
threatened use of force. U.S.S.G. § 4B1.1(a)(1); see, e.g., Cole, 298 F.3d at 661‐62 (mob
action statute did not have as element the use or threat of force but offense was a crime
of violence because it posed serious risk of injury).
Canfield is correct to point out that the charging document for one of his
robberies puts forward two alternative charges‐‐that he committed an assault to further
the commission of the theft or to further his escape. But in either case, the conduct
charged posed a serious risk of injury. First, a confrontation with another person while
taking steps to commit a theft poses a serious risk that injury will result. Whether the
No. 07-2887 5
victim is the subject of the theft or merely a bystander, the confrontation has the
potential to escalate into violence and cause serious injury.
The information charges, in the alternative, that Canfield assaulted another
person to further his escape. And Canfield’s second robbery conviction was also for
assaulting another person while escaping the scene of a theft. We have held that, when
a perpetrator flees to avoid apprehension, he creates a serious risk of harm to
bystanders, and thus the flight is a crime of violence. See Howze, 343 F.3d at 922;
United States v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002). Canfield attempts to
distinguish these cases, noting they dealt with suspects fleeing from the police or
escaping from police custody. But the same concerns apply when a perpetrator flees
the scene of a crime, even if he has not yet been caught by law enforcement. There is a
serious risk that the thief will harm an innocent person in an attempt to make a quick
getaway and to evade capture, whether or not the police are already on his tail.
Canfield has been convicted of four crimes of violence, two more than necessary
to be classified as a career offender. Thus, the district court did not err in calculating his
guidelines range using the career offender enhancement. Accordingly, we AFFIRM the
judgment of the district court.