NONPRECEDENTIAL DISPOSITION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
Submitted January 21, 2010*
Decided January 21, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08‐3049
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 07‐CR‐329
DONTA PHELON DAVIS, Rudolph T. Randa,
Defendant‐Appellant. Judge.
O R D E R
Donta Phelon Davis appeals from his conviction and 105‐month sentence for being a
felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Davis contends that the district
court improperly classified his prior conviction under Wisconsin law for second‐degree
reckless homicide, see WIS. STAT. § 940.06(1), as a crime of violence under U.S.S.G. § 4B1.2(a).
See id. § 2K2.1(a)(2). The government concedes error and agrees that in light of this court’s
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐3049 Page 2
decision in United States v. Woods, 576 F.3d 400 (7th Cir. 2009), the correct disposition is to
vacate and remand for resentencing.
In Woods, 576 F.3d at 412‐13, we held that an offense in which the mental state is
recklessness does not meet the standards for crimes of violence established by the Supreme
Court in Begay v. United States, 128 S.Ct. 1581, 1586 (2008). Second‐degree reckless
homicide, in violation of WIS. STAT. § 940.06(1), is therefore not a crime of violence under
§ 2K2.1(a)(2). See United States v. High, 576 F.3d 429, 430‐31 (7th Cir. 2009). Davis did not
object at sentencing to the classification of his reckless‐homicide conviction, but in light of
Begay and our recent post‐Begay precedent, the district courtʹs classification of this offense
was plain error. See United States v. Gear, 577 F.3d 810, 812 (7th Cir. 2009); High, 576 F.3d at
431.
We therefore VACATE Davis’s sentence and REMAND for further proceedings in
light of Begay and Woods.
United States v. Donta Davis
Combined Opinion