United States of America v. Kenneth Hill

*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. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 10, 2010 *
Decided March 11, 2010
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3003
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENNETH HILL,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 05‐Cr‐240‐28
Rudolph T. Randa,
Judge.
O R D E R
Kenneth Hill appeals from his 188‐month sentence for conspiring to commit
racketeering. See 18 U.S.C. § 1962(d). He contends principally that the district court
improperly classified two of his prior convictions under Wisconsin law as crimes of
violence—a classification that led him to be deemed a “career offender” and thus subject to
a higher sentence. As the government concedes, one of these crimes was indeed
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐3003 Page 2
misclassified, and we therefore vacate and remand for resentencing. On remand the district
court should also clarify its findings about Hill’s criminal history.
The racketeering charge to which Hill pleaded guilty stemmed from his activities on
behalf of the Almighty Latin King Nation, particularly his drug deals and his storage of
gang‐owned firearms. At sentencing the district court concluded that two of his prior
convictions—one for fleeing from an officer, Wis. Stat. § 346.04(3), and one for second‐
degree recklessly endangering safety, Wis. Stat. § 941.30(2)—constituted crimes of violence.
See U.S.S.G. § 4B1.2(a). That finding triggered application of the career‐offender guideline,
U.S.S.G. § 4B1.1(a). After a 3‐point reduction for acceptance of responsibility, the court
assessed Hill’s total offense level at 29 rather than the level 16 that otherwise would have
applied. With a criminal history category of VI (the same category the court would have
placed him in without the career‐offender guideline), Hill’s guideline range was 151‐188
months. The court sentenced him to the very top of that range.
On appeal Hill challenges the district court’s conclusion that his prior felonies were
both crimes of violence under U.S.S.G. § 4B1.2(a). He argues that neither crime falls within
§ 4B1.2(a)(1), which involves crimes that have “as an element the use, attempted use, or
threatened use of physical force against the person of another,” or § 4B1.2(a)(2), which
covers offenses such as burglary, extortion, use of explosives, or other conduct that creates a
serious potential risk of physical injury to another.
Hill’s argument about the conviction for fleeing from an officer is foreclosed by our
recent decision in United States v. Dismuke, No. 08‐1693, slip op. at 23 (7th Cir. Jan. 27, 2010),
where we applied Begay v. United States, 128 S. Ct. 1581 (2008) and concluded that this
offense qualified as a violent felony under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). The terms “violent felony” under the ACCA and “crime of violence” under the
career‐offender guideline are nearly identical in meaning, so that a decision interpreting one
term informs the interpretation of the other. See United States v. Templeton, 543 F.3d 378, 379‐
80 (7th Cir. 2008).
Hill is correct, however, about his conviction for recklessly endangering safety, a
point that the government concedes. As we held in United States v. Woods, 576 F.3d 400 (7th
Cir. 2009), an offense for which the mental state is recklessness is not a “crime of violence”
under the career‐offender guideline because it does not meet the parallel standards for
violent felonies established by the Supreme Court in Begay. Woods, 576 F.3d at 412‐13
(applying Begay, 128 S. Ct. 1581); see United States v. High, 576 F.3d 429 (7th Cir. 2009)
(holding that a felony conviction for violating Wis. Stat. § 941.30(2) is not a “violent felony”
as that term is used in the ACCA). Second‐degree recklessly endangering safety, in
violation of Wis. Stat. § 941.30(2), is therefore not a crime of violence for the specific purpose

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No. 08‐3003 Page 3
of the career‐offender guideline. Because Hill has only one prior felony conviction of a
crime of violence, he is not a career offender under U.S.S.G. § 4B1.1(a)(3) and must be
resentenced.
Hill also raises a challenge to the calculation of his criminal history points. He
argues that his § 941.30(2) conviction should not count because the conduct underlying that
offense stemmed from his involvement in the racketeering operation. “When calculating a
defendant’s criminal history category, a district court may not consider prior convictions for
acts which constitute relevant conduct—conduct that was part of the instant offense.”
United States v. Bryant, 557 F.3d 489, 503 (7th Cir. 2009); see U.S.S.G. § 4A1.2 cmt. n. 1; United
States v. Olson, 408 F.3d 366, 373 (7th Cir. 2005).
Here the court considered only whether the specific conduct underlying the
§ 941.30(2) conviction was charged as a predicate act in the racketeering indictment. But the
court must consider all the evidence and “make specific factual findings regarding the
underlying conduct,” and then determine the “relatedness” of the offenses on that basis.
Bryant, 557 F.3d at 503. On remand, the court should take the opportunity to squarely
address Hill’s contention that the conduct underlying his § 941.30(2) conviction was carried
out in furtherance of the racketeering operation.
For the reasons given above, we VACATE the sentence and REMAND the case for
resentencing consistent with this order.

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