In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2310
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
D EW ITT F IFE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CR-242—J.P. Stadtmueller, Judge.
A RGUED A PRIL 23, 2010—D ECIDED O CTOBER 12, 2010
Before M ANION and R OVNER, Circuit Judges, and
H IBBLER, District Judge.
R OVNER, Circuit Judge. This appeal presents the
relatively rare government appeal of a criminal sen-
tence, challenging the district court’s determination
that Dewitt Fife’s prior convictions did not satisfy the
Hon. William J. Hibbler, District Judge for the Northern
District of Illinois, is sitting by designation.
2 No. 09-2310
requirements of the Armed Career Criminal Act (“ACCA”)
and therefore that he was not subject to the increased
sentence under that Act. The unusual twist here is that
the same criminal history was deemed sufficient by this
court 14 years ago to meet the requirements of that
same Act. United States v. Fife, 81 F.3d 62 (7th Cir. 1996).
The district court held in this case, however, that a sub-
sequent Supreme Court decision in Begay v. United
States, 553 U.S. 137 (2008), altered the analysis and thus
the result.
In 1995, Fife was convicted in federal court of a number
of firearms-related charges. At that time, his criminal
history included convictions for: burglary in 1980; aggra-
vated arson in 1984; manufacturing or delivery of con-
trolled substances in 1989; and armed violence in 1989.
Based on those prior convictions, the court sentenced
Fife as an armed career criminal under 18 U.S.C. § 924(e)
of the ACCA, which provides for a minimum sentence
of 15 years for defendants who meet certain criteria,
including three predicate violent felonies.
That steep sentence did not, apparently, prompt Fife
to abandon his criminal path. On September 16, 2008, he
was indicted for being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1). He
pled guilty to that charge, and at sentencing the court
considered whether he was an armed career criminal
subject to the mandatory minimum of 15 years pursuant
to 18 U.S.C. § 924(e)(1). The government relied on the
same convictions of burglary, aggravated arson, and
armed violence in arguing that he remained an armed
No. 09-2310 3
career criminal for purposes of the ACCA. The district
court, however, determined that he was not an armed
career criminal and sentenced him to 48 months in
prison, a sentence that was 11 months above the ap-
plicable range of the Sentencing Guidelines but signifi-
cantly less than he would have faced had he been
deemed an armed career criminal. The government
appeals that determination to this court.
I.
The parties dispute the proper application of the
Armed Career Criminal Act, thus we begin with the
relevant language of that Act:
In the case of a person who violates section 922(g) of
this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense, or both,
committed on occasions different from one another,
such person shall be . . . imprisoned not less than
fifteen years. . . .
18 U.S.C. § 924(e)(1). The ACCA defines “violent felony”
as:
[B] . . . any crime punishable by imprisonment for a
term exceeding one year, or any act of juvenile delin-
quency involving the use or carrying of a firearm,
knife or destructive device that would be punishable
by imprisonment for such term if committed by
an adult, that—
4 No. 09-2310
(I) has as an element the use, attempted use, or threat-
ened use of physical force against the person of an-
other; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another; . . . .
18 U.S.C. § 924(e)(2)(B) (emphasis added).
The emphasized language, regarding conduct that
“presents a serious potential risk of physical injury to
another,” is known as the residual clause, and is the
critical phrase for this appeal. The three previous convic-
tions which the court considered in determining armed
career criminal status are the convictions for: burglary
in 1980; aggravated arson in 1984; and armed violence
in 1989. There is no debate in this appeal as to the ap-
plicability of the burglary and aggravated arson convic-
tions, but Fife argues that the armed violence conviction
is not for “conduct that presents a serious potential risk
of physical injury to another” as that term is understood
by the courts. Although we held that it met that defini-
tion at the time of Fife’s earlier federal conviction, Fife, 81
F.3d 62, Fife argues that the Supreme Court in Begay
clarified the meaning of that phrase, and that his armed
violence conviction does not fall within it. In Begay, 553
U.S. at 142-43, the Supreme Court made clear that the
residual clause of the ACCA encompassed only offenses
that were similar to the enumerated crimes of burglary,
arson, extortion, or crimes involving the use of explosives,
both in kind as well as in the degree of risk posed. United
No. 09-2310 5
States v. Woods,1 576 F.3d 400, 407 (7th Cir. 2009). Begay
therefore clarified that only offenses that reflected the
same “purposeful, violent, and aggressive manner” as the
listed crimes would fall within the residual clause. Begay,
553 U.S. at 144-45; Woods, 576 F.3d at 407.
The difficulty in analyzing the armed violence convic-
tion under the ACCA stems from its broad reach. The
Illinois armed violence statute, 720 ILCS 5/33A-2, is
violated when, while armed with a dangerous weapon,
a person “commits any felony defined by Illinois Law”
with the exception of murder and a number of other
enumerated felonies—none of which are applicable
here. The district court’s determination that the armed
violence conviction did not fall within the ACCA was
based primarily on its conclusion that at least some
categories of armed violence could not be considered
violent felonies under the ACCA. As an example, the
district court noted that a person arrested for driving
under the influence who had a firearm in his vehicle
would fall within the Illinois armed violence statute.
Similarly, Fife references the possibility of a person con-
victed of armed violence because she possessed a gun
while filing a false tax return. Those armed violence
convictions presumably would not be “purposeful, vio-
1
Although in Woods we addressed the characterization of the
defendant’s prior offense as a “crime of violence” under § 4B1.1
of the Sentencing Guidelines, rather than the ACCA, we noted
that the identity of language between the two rendered the
analyses interchangeable. Woods, 576 F.3d at 403-04.
6 No. 09-2310
lent, and aggressive” as required after Begay in order for
a conviction to fall within the residual clause of the
ACCA. Because the Illinois armed violence statute
includes offenses such as those, the district court and Fife
assert that the armed violence conviction cannot fall
within the ACCA. A proper analysis of the ACCA, how-
ever, reveals that their concerns are unfounded and
that the armed violence conviction in this case con-
stitutes a violent felony for purposes of the ACCA.
II.
Whether a prior conviction constitutes a violent felony
under the ACCA is a legal conclusion that we review de
novo. United States v. Sykes, 598 F.3d 334, 335 (7th Cir.
2010). Our initial task is to identify precisely what
offense is involved. United States v. McDonald, 592 F.3d
808, 810 (7th Cir. 2010). That inquiry is a categorical one,
focusing on the particular elements of the statutory
offense, without consideration of the underlying facts
of the individual case. Id.; Woods, 576 F.3d at 403;
United States v. Dismuke, 593 F.3d 582, 589 (7th Cir. 2010).
At times, however, analysis of the elements reveals that
a statute may be violated in several ways, such as a
statute which creates more than one crime or one that
defines one crime with multiple enumerated modes of
commission. Woods, 576 F.3d at 405-06; Sykes, 598 F.3d
at 339; Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265,
1273 (2010). In that case, some of those modes of con-
duct may constitute a violent offense under the ACCA,
whereas other branches of the statute do not. It is critical,
No. 09-2310 7
then, to determine precisely which offense is involved
within that statutory scheme. Under those conditions,
courts may employ a “modified categorical approach” to
determine the statutory offense at issue. McDonald, 592
F.3d at 810-11; Woods, 576 F.3d at 405-06; United States
v. Sykes, 598 F.3d 334, 339 (7th Cir. 2010).
Because the inquiry must remain an objective one,
focused on identifying the statutory offense itself but
not the individual actions in the particular case, the
modified categorical approach allows consideration of
a limited range of outside documents to isolate the
specific statutory offense which formed the basis for the
conviction. Documents which may be consulted under
this approach include the charging document, the plea
agreement or the transcript of the colloquy between
the judge and the defendant in which the factual basis
for the plea was confirmed by the defendant, or com-
parable judicial records of such information. Shepard v.
United States, 544 U.S. 13, 26 (2005); Welch v. United States,
604 F.3d 408, 421 (7th Cir. 2010); Woods, 576 F.3d at 404;
Chambers v. United States, ___ U.S. ___, 129 S. Ct. 687,
691 (2009). Reports focusing on the individual conduct
of the defendant such as arrest reports are not consid-
ered. Welch, 604 F.3d at 422.
A.
Although Fife argues that the statute must be con-
sidered as a whole without any subdivisions, and the
district court apparently accepted that viewpoint, the
8 No. 09-2310
armed violence offense in this case encompasses the
type of statute for which the modified categorical ap-
proach is appropriate. The armed violence statute ap-
plies whenever a person commits a felony while armed
with a dangerous weapon. In order to determine the
precise statutory offense, therefore, we need to first
identify the underlying felony. Ascertaining the under-
lying felony merely identifies the precise offense, but
does not involve the court in examination of the actual
conduct of the defendant in the offense. Fife’s assertion
that we are limited to the language of the statute
without consideration of the felony involved is incon-
sistent with our cases concerning the modified categorical
approach. By defining the crime of armed violence as
the commission of a felony while armed with a dan-
gerous weapon, the statute necessarily establishes
multiple modes of commission of the crime, dependent
upon the underlying felony. There is no need that
each potential felony be explicitly listed and separately
enumerated as a subsection, because the practical effect
is the same. In either scenario, it is a divisible statute
not because each subcategory is separately listed, but
because by its terms it creates several crimes or a single
crime with several modes of commission. Woods, 576
F.3d at 406, 411 (“[I]t does not matter whether the
earlier statute placed the statutory phrase in its own
subsection, or if it merely made it part of a list. The point
is that the statute itself is “divisible”—that is, it expressly
identifies several ways in which a violation may occur.”).
Thus, in Dismuke, 593 F.3d at 590, we considered Wis-
consin’s vehicular fleeing statute, and held that the modi-
No. 09-2310 9
fied categorical approach was appropriate because it
defined more than one category of vehicular fleeing
even though those categories were not separately num-
bered. The statute in Dismuke provided:
No operator of a vehicle, after having received a
visual or audible signal from a traffic officer, or
marked police vehicle, shall knowingly flee or at-
tempt to elude any traffic officer by willful or wanton
disregard of such signal so as to interfere with or
endanger the operation of the police vehicle, or the
traffic officer or other vehicles or pedestrians, nor
shall the operator increase the speed of the operator’s
vehicle or extinguish the lights of the vehicle in an
attempt to elude or flee.
Wis. Stat. § 346.04(3) (2000); Dismuke, 593 F.3d at 590. The
statute did not create separate subsections delineating
multiple offenses, but we held that by its language it
clearly set forth multiple categories of vehicular fleeing:
first, “fleeing or attempting to elude an officer ‘by willful
or wanton disregard of [the officer’s] signal so as to
interfere with or endanger the operation of the police
vehicle, or the traffic officer or other vehicles or pedestri-
ans.’ ” and second, “ ‘increas[ing] the speed of the opera-
tor’s vehicle or extinguish[ing] the lights of the vehicle in
an attempt to elude or flee.’ ” Id. Dismuke makes clear that
the focus is on the language of the criminal statute itself,
not the presence or absence of numbered subdivisions. If
the language creates multiple offense categories, then the
modified categorical approach is proper. Here, the armed
violence offense creates multiple modes of commission,
10 No. 09-2310
defined by the felony committed while armed with a
dangerous weapon. Each distinct felony is a separate
mode of committing armed violence. Therefore, we may
examine underlying documents to determine the precise
offense committed—specifically, to determine which
felony Fife committed while possessing a weapon.
Although Fife questions in a footnote the govern-
ment’s contention that Fife pled guilty to delivery of a
controlled substance as the underlying felony for the
armed violence conviction, Fife does not pursue that
argument in his brief and at oral argument his counsel
acknowledged that the underlying felony was posses-
sion with intent to deliver cocaine. Therefore, under the
modified categorical approach, we consider whether a
conviction for possession with intent to deliver cocaine
while armed with a dangerous weapon is a violent
felony under the ACCA.
B.
The offense of armed violence does not have as an
element the use or threatened use of physical force, nor
is it one of the enumerated offenses in the ACCA defini-
tion of violent offense, and therefore we must consider
whether it falls within the residual clause of the ACCA
as an offense that “otherwise involves conduct that pres-
ents a serious potential risk of physical injury to another.”
See 18 U.S.C. § 924(e)(2)(B)(ii). In order for an offense to
constitute a violent felony under the residual clause of
the ACCA, it must “(1) present a serious potential risk
of physical injury similar in degree to the enumerated
No. 09-2310 11
crimes of burglary, arson, extortion, or crimes involving
the use of explosives; and (2) involve the same or
similar kind of ‘purposeful, violent, and aggressive’
conduct as the enumerated crimes.” Dismuke, 593 F.3d
at 591.
1.
There is no doubt, nor is it seriously contested, that
the possession of cocaine with intent to deliver while
armed with a weapon presents a serious potential risk
of physical injury similar in degree to the enumerated
crimes. The association between drug dealing and weap-
ons, and the corresponding violence inexorably linked
to the drug trade, is well-documented in our opinions.
Evidence of weapons, particularly firearms, and violent
acts have repeatedly been allowed in trials involving
drug conspiracy charges, because weapons are “tools of
the drug trade” and the courts have recognized the indis-
putable fact that violence is endemic to the trade in
drugs. See, e.g., United States v. Williams, 81 F.3d 1434, 1437
(7th Cir. 1996) (noting that El Rukn gang members “com-
mitted many murders, and engaged in much other vio-
lence, in the turf wars that are endemic to the trade in
illegal drugs.”); United States v. Martinez, 938 F.2d 1078,
1083-84 (10th Cir. 1991) (recognizing that a high level of
violence is not uncommon in the drug distribution busi-
ness and “weapons are often viewed as necessary tools
to facilitate it.”); United States v. Thompson, 286 F.3d
950, 969 (7th Cir. 2002) (allowing evidence of several
shootings and an alleged kidnapping as intricately
12 No. 09-2310
related to the drug conspiracy charge because it demon-
strates how the conspiracy conducted its business); United
States v. Ramirez, 45 F.3d 1096, 1103 (7th Cir. 1995) (admit-
ting evidence of a pistol found at the defendant’s apart-
ment because weapons are the tools of the drug trade).
Congress has recognized the connection between drugs
and violent crime as well. In 42 U.S.C. § 11901, addressing
public housing drug elimination, Congress found that
“drug dealers are increasingly imposing a reign of terror
on public and other federally assisted low-income housing
tenants,” and “the increase in drug-related and violent
crime not only leads to murders, muggings, and other
forms of violence against tenants, but also to a deteriora-
tion of the physical environment that requires sub-
stantial government expenditures.” Given the well-estab-
lished connection between violent crime and the illegal
drug trade, the possession of a weapon while dealing
cocaine presents a serious potential risk of physical
injury that is certainly similar to, if not substantially
greater than, the enumerated crimes of burglary, arson,
extortion, or crimes involving the use of explosives.
2.
We turn, then, to the remaining consideration of
whether the armed violence offense involves the same
or similar kind of purposeful, violent and aggressive
conduct as those offenses explicitly named in the ACCA.
The Supreme Court recognized that the enumerated
offenses in the ACCA typically involved purposeful,
violent and aggressive conduct “such that it makes it
No. 09-2310 13
more likely that an offender, later possessing a gun,
will use that gun deliberately to harm a victim.” Begay,
553 U.S. at 144-45; Welch, 604 F.3d at 416. Therefore, in
order for an offense to fall within the residual clause, the
Court held that the offense must be similar in kind
to those enumerated offenses, and specifically must
similarly be purposeful, violent and aggressive such
that subsequent gun ownership would portend greater
danger.
The requirement that an offense be purposeful focuses
on the mens rea element. Dismuke, 593 F.3d at 592. In
order to satisfy this provision, the offense must require,
either explicitly or implicitly, knowing or intentional
conduct, rather than a lesser mens rea such as reck-
lessness or strict liability. Welch, 604 F.3d at 417-18; United
States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008); United
States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008);
McDonald, 592 F.3d at 809. Offenses that rely on a lesser
mens rea such as recklessness could sweep within the
provision offenses that do not portend a greater threat
to potential victims in future gun possession. In con-
trast, the requirement of knowing or intentional con-
duct ensures that the ACCA reaches only defendants
who purposefully committed offenses that presented
a serious risk of physical injury to others and were
violent and aggressive in nature. These are the type of
defendants for whom subsequent possession of a firearm
creates a greater risk that the firearm will be used against
a victim. The offense of armed violence for which Fife
was convicted required a showing that Fife possessed
cocaine with intent to deliver it, and while committing
14 No. 09-2310
that felony he knowingly was armed. See People v. Adams,
638 N.E.2d 254, 258 (Ill. App. 4 Dist. 1994); People v. Olson,
420 N.E.2d 1161, 1163 (Ill. App. 2 Dist. 1981). The knowl-
edge and intent requirements demonstrate the type of
purposeful conduct that falls within the ACCA.
The remaining factor that must be met is that the of-
fense must involve a similar kind of violent and aggres-
sive conduct as the enumerated crimes. In order to
satisfy this standard, it is not necessary that every con-
ceivable factual offense covered by the statute neces-
sarily presents a serious risk of potential injury. James v.
United States, 550 U.S. 192, 208 (2007); Dismuke, 593 F.3d
at 594. Instead, the proper inquiry is whether the
elements of the offense entail conduct that, in the
ordinary case, presents a serious risk of potential injury
to another. Id. The focus remains on the elements of the
offense at issue, not the actual conduct of the particular
defendant in this case. Therefore, offenses involving
forms of inaction, such as escape involving failure to
report for penal confinement, do not meet the criteria of
purposeful and aggressive conduct, because one who
fails to report is unlikely to call attention to herself by
simultaneously engaging in violent and unlawful con-
duct. Chambers, 129 S. Ct. at 691-92; see also Welch, 604
F.3d at 424 and Dismuke, 593 F.3d at 595-96. In contrast,
escape or fleeing an officer, when encompassing by its
language active rather than passive conduct, has been
held to be a violent offense under the ACCA. Dismuke,
593 F.3d at 595-96; Sykes, 598 F.3d at 336-37; Welch, 604
F.3d at 424; Spells, 537 F.3d at 752. The offense of posses-
sion of cocaine with the intent to distribute while
No. 09-2310 15
armed has a much greater potential for violence than the
active escape cases noted above. As was discussed
earlier, there is an unmistakable connection between the
illegal drug trade and violence, that in the ordinary case
presents a serious risk of potential injury—which is all
that is required under the ACCA. See Williams, 81 F.3d at
1437; Martinez, 938 F.2d at 1083-84; Thompson, 286 F.3d at
969; Ramirez, 45 F.3d at 1103; 42 U.S.C. § 11901. Because
the armed violence conviction in this case “by its nature,
presents a serious potential risk of injury to another,” it
satisfies the requirements of the ACCA. See James, 550
U.S. at 209. Accordingly, the Illinois armed violence
conviction is a violent offense under the ACCA. Combined
with the two other violent offenses in his criminal
history, the armed violence conviction renders Fife
an armed career criminal under the ACCA. The de-
cision of the district court is R EVERSED and the case
R EMANDED for resentencing consistent with this opinion.
10-12-10