United States of America v. Jamell C. Newbern

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4709
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J AMELL C. N EWBERN ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30071—David R. Herndon, Judge.
____________
A RGUED J ULY 12, 2006—D ECIDED M ARCH 13, 2007
____________
Before C OFFEY , R IPPLE , and S YKES , Circuit Judges.
S YKES , Circuit Judge. Jamell Newbern was convicted of
possessing crack cocaine with intent to distribute. The
district court sentenced him as a career offender to
300 months’ imprisonment after deciding that two of his
prior convictions were for crimes of violence. Newbern
argues that one of those crimes, reckless discharge of a
firearm in violation of Illinois law, is not a crime of
violence. Because it is, we affirm.
I. Background
Federal and state agents staking out a residence in St.
Clair County, Illinois, encountered Newbern leaving the

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2 No. 05-4709
premises carrying more than 50 grams of crack cocaine
and over 30 grams of powder cocaine in his pocket and
sock. He was charged with one count of possession of crack
with intent to distribute. 21 U.S.C. § 841(a)(1). Because
Newbern had a prior state conviction for felony posses-
sion of drugs, the government filed an information under
21 U.S.C. § 851 to trigger a higher statutory maximum
under § 841(b)(1). He pleaded guilty without a plea
agreement.
At sentencing the district court concluded that Newbern
was a career offender under U.S.S.G. § 4B1.1, the offense
guideline applicable to a defendant convicted of committing
a crime of violence or a controlled-substance offense after
incurring two prior convictions for crimes of violence or
controlled-substance offenses. Id. § 4B1.1(a), (b). The
district court identified two of Newbern’s prior Illinois
convictions as crimes of violence. The first is a 2000
conviction for reckless discharge of a firearm, 720 I LL .
C OMP . S TAT . 5/24-1.5 (1993), which, according to the
charging document, resulted in a man being shot in the
leg. The second conviction, for aggravated battery, 720 I LL .
C OMP . S TAT . 5/12-4(b)(6) (2000), was incurred in 2001 as a
result of Newbern’s attempt to disarm a police officer, see
720 I LL . C OMP . S TAT . 5/31-1(a) (2000).
Newbern objected to classifying his conviction for
reckless discharge of a firearm as a crime of violence. He
conceded that the charging document accurately re-
counted that he shot someone in the leg. He argued
nonetheless that reckless discharge of a firearm under
Illinois law does not have “as an element the use, at-
tempted use, or threatened use of physical force against
the person of another” as required by U.S.S.G.
§ 4B1.2(a)(1). He also maintained that the offense does not
require conduct that creates “a serious potential risk of
physical injury to another” for purposes of the alternative
definition of a crime of violence under the guidelines.
U.S.S.G. § 4B1.2(a)(2). The district court held that the

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No. 05-4709 3
Illinois offense of reckless discharge of a firearm satisfied
the alternative definition of a crime of violence under
§ 4B1.2(a)(2) in that it involved conduct that presented a
serious risk of injury to another.
After ruling on the dispute, the court arrived at an
imprisonment range of 262 to 327 months based on a total
offense level of 34 (after a reduction for acceptance of
responsibility) and a criminal history category of VI. This
range was significantly higher than it would have been had
the court not adjudged Newbern a career offender. Apply-
ing the guidelines as advisory and considering the factors
in 18 U.S.C. § 3553(a), the court sentenced Newbern to 300
months’ imprisonment and a ten-year term of supervised
release.
II. Discussion
On appeal Newbern renews his argument that the
Illinois offense of reckless discharge of a firearm does not
meet the definition of “crime of violence” in the guidelines.
That definition provides:
(a) The term “crime of violence” means any offense
under federal or state law, punishable by impris-
onment for a term exceeding 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) (emphasis added). Newbern focuses on
§ 4B1.2(a)(2), on which the district court based its holding,
and parses the Illinois statute, which provides as follows:

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4 No. 05-4709
“A person commits reckless discharge of a firearm by
discharging a firearm in a reckless manner which endan-
gers the bodily safety of an individual.” 720 I LL . C OMP .
S TAT . 5/24-1.5(a). This offense, he argues, does not require
a “serious” risk of physical injury “to another” and there-
fore does not qualify as a crime of violence. Moreover,
although he concedes that he shot the victim in the leg,
Newbern asserts that the charging document does not
provide enough detail about the circumstances of the
shooting to assess the risk or eliminate the possibility that
the shooting was a freak accident.
In deciding whether a prior conviction qualifies as a
crime of violence under § 4B1.2(a), we start—and usually
will end—with the elements of the statute of conviction
and the facts as stated in the charging document. See
United States v. Jackson, 177 F.3d 628, 632 (7th Cir.
1999); United States v. Shannon, 110 F.3d 382, 384 (7th
Cir. 1997) (en banc). Only where the statutory elements
and the content of the charging document do not resolve
whether the crime of conviction constitutes a “crime of
violence” should a court look further, and then only to
documents like plea agreements and transcripts of plea
colloquies, or to admissions by the defendant. See United
States v. Kindle, 453 F.3d 438, 441-42 (7th Cir. 2006);
United States v. Lewis, 405 F.3d 511, 514-15 (7th Cir.
2005); United States v. Cole, 298 F.3d 659, 662-63 (7th Cir.
2002); see also Shepard v. United States, 544 U.S. 13, 26
(2005) (applying the Armed Career Criminal Act). Whether
a prior conviction was for a crime of violence is a ques-
tion of law. Cole, 298 F.3d at 661.
With these rules and the guidelines definition of crime of
violence in mind, we turn to the Illinois statute of convic-
tion, 720 I LL . C OMP . S TAT . 5/24-1.5(a). Violation of this
statute constitutes a class 4 felony, 720 I LL . C OMP . S TAT .
5/24-1.5(c), punishable by one to three years in prison, 730

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No. 05-4709 5
I LL . C OMP . S TAT . 5/5-8-1(a)(7) (1994). It therefore satisfies
the threshold requirement of § 4B1.2(a) that a crime of
violence be a felony punishable by more than a year in
prison.
As we have noted, section 5/24-1.5 provides: “A person
commits reckless discharge of a firearm by discharging a
firearm in a reckless manner which endangers the bodily
safety of an individual.” 720 I LL . C OMP . S TAT . 5/24-1.5(a).
The Illinois criminal code defines recklessness as:
A person is reckless or acts recklessly, when he con-
sciously disregards a substantial and unjustifiable
risk that circumstances exist or that a result will
follow, described by the statute defining the offense;
and such disregard constitutes a gross deviation from
the standard of care which a reasonable person would
exercise in the situation. An act performed recklessly
is performed wantonly, within the meaning of a statute
using the latter term, unless the statute clearly
requires another meaning.
720 I LL . C OMP . S TAT . 5/4-6 (1992).
Accordingly, “a person commits the offense of reckless
discharge of a firearm when he (1) recklessly discharges a
firearm, and (2) endangers the bodily safety of an individ-
ual.” People v. Collins, 824 N.E.2d 262, 265 (Ill. 2005).
Conviction for a violation of this statute requires proof
that the “defendant’s reckless conduct created a dangerous
situation—such that an individual was in peril of probable
harm or loss.” Collins, 824 N.E.2d at 266. The state need
not show that the defendant was pointing a gun in any-
body’s direction or that any particular individual was
likely to be hit by a bullet. Id. at 268. Rather, because of
the “inherent danger caused by the reckless discharge of a
firearm,” the endangerment element can be satisfied by
evidence that people or homes were in the general vicinity
of the reckless discharge. Id.; see also People v. Watkins,

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6 No. 05-4709
837 N.E.2d 943, 946 (Ill. App. Ct. 2005) (holding that
endangerment element was established where “stipulated
evidence showed that the defendant repeatedly fired a gun
into the air in a residential neighborhood”); People v. Kasp,
815 N.E.2d 809, 817 (Ill. App. Ct. 2004) (explaining that
the state must establish that the defendant put someone
in danger by firing and need not prove that defendant
pointed gun toward anyone in particular), appeal denied,
829 N.E.2d 791 (Ill. 2005). The required recklessness can
be established, for example, by proof that the defendant
fired a gun in a residential neighborhood knowing of the
general danger, thus disregarding a substantial and
unjustifiable risk. See Watkins, 837 N.E.2d at 946.
The Illinois offense of reckless discharge of a firearm
plainly requires conduct that presents a “serious potential
risk of physical injury to another” within the meaning of
§ 4B1.2(a)(2). We have previously held that “[t]he general
rule is that possession of a weapon plus some overt action
implying or indicating its use is a crime of violence.”
United States v. Chapple, 942 F.2d 439, 441 (7th Cir.
1991); see also United States v. Vahovick, 160 F.3d 395,
397 (7th Cir. 1998) (citing Chapple, 942 F.2d at 441). We
have also held that firing a gun randomly without aiming
at or targeting anyone in particular is a crime of violence
because of the inherent risk of physical injury to others.
See Cole, 298 F.3d at 661-62 (“mob action” in violation of
720 I LL . C OMP . S TAT . 5/25-1 is a crime of violence where
defendant was convicted as part of a mob that fired
random shots at a passing car without aiming at anyone
in particular); United States v. McNeal, 900 F.2d 119, 123
(7th Cir. 1990) (firing a gun from a car without targeting
anyone is a crime of violence). Our conclusion that the
Illinois offense of reckless discharge of a firearm is a crime
of violence under § 4B1.1(a)(2) is consistent with a recent
holding of the Eighth Circuit evaluating a similar Iowa
statute. See United States v. Smith, 422 F.3d 715, 722-23

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No. 05-4709 7
(8th Cir. 2005), cert. denied sub. nom. Jordan v. United
States, 126 S. Ct. 1112 (2006).
In reaching this conclusion we reject Newbern’s argu-
ment that the Illinois statute does not satisfy
§ 4B1.2(a)(2)’s requirement of a “serious” potential risk of
physical injury to another. Illinois’s definition of reck-
lessness requires a conscious disregard of a “substantial
and unjustifiable risk,” and the offense itself requires
the endangerment of the “bodily safety of an individual.”
Thus, the requirement of a serious risk of injury is spelled
out in the elements of the offense and the statutory
definition of recklessness.
Newbern also suggests that a defendant might violate
the statute by recklessly endangering an “individ-
ual”—himself—without posing “a serious potential risk of
physical injury to another” within the meaning of
§ 4B1.2(a)(2). At oral argument he gave the example of
playing “Russian roulette” on an empty farm. But Newbern
has not offered any authority for his assumption that a
person can violate the Illinois statute by endangering
himself, and the Illinois cases applying the law have
uniformly assumed that “individual” means someone
other than the shooter. See, e.g., Collins, 824 N.E.2d at
268-70; Watkins, 837 N.E.2d at 946. These decisions have
required proof of endangerment of another individual to
sustain a conviction, even in cases when the shooter had
also endangered himself by shooting directly into the air
above his head. See Collins, 824 N.E.2d at 268-70;
Watkins, 837 N.E.2d at 946. Indeed, one Illinois court has
condemned the state’s attempt to prosecute a person who
shot himself for violating an analogous statute that
criminalizes reckless conduct that “ ‘causes bodily harm to
or endangers the bodily safety of an individual.’ ” See
People v. Peters, 536 N.E.2d 465, 466-69 (Ill. App. Ct. 1989)
(quoting former section 5/12-5(a)). Calling the state’s

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8 No. 05-4709
construction of this analogous statute “unreasonable,” the
Peters court explained that the statute was intended to
protect the innocent from the reckless, not the reckless
from themselves. Id. at 466-69.
Finally, we reject Newbern’s argument regarding the
level of detail in the charging document. Because the
statute itself makes clear that reckless discharge of a
firearm qualifies as a crime of violence, the factual detail
in the charging document is irrelevant to this case. But
had this not been a clear-cut case, the content of the
charging document would be fair game, see Shepard, 544
U.S. at 26; Lewis, 405 F.3d at 514-15, especially consider-
ing that at sentencing Newbern conceded its factual
accuracy, see Kindle, 453 F.3d at 441-42; United States v.
Washington, 417 F.3d 780, 788 (7th Cir. 2005). The
charging document states that Newbern “endangered the
bodily safety of Charlton Chaney in that while acting in
a reckless manner, he discharged a firearm and in so
doing, he shot Charlton Chaney in the right leg.” That is
all we need to know. Even disregarding that Chaney
was actually injured, the charging document makes
clear he was put at serious risk of injury by Newbern’s
reckless shooting, which is enough to hold that the offense
is a crime of violence. See Cole, 298 F.3d at 661-62; accord
United States v. Terry-Crespo, 356 F.3d 1170, 1177-78 (9th
Cir. 2004) (firing gun at building in city); United States v.
Rutledge, 33 F.3d 671, 674 (6th Cir. 1994) (firing gun
toward person in jest); United States v. Thompson,
891 F.2d 507, 510 (4th Cir. 1989) (pointing gun at some-
one).
Newbern’s Illinois conviction for reckless discharge of
a firearm involved conduct that presented a serious
potential risk of physical injury to another within the
meaning of § 4B1.1(a)(2). The district court properly
counted it as a prior crime of violence. The judgment of the
district court is A FFIRMED .

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No. 05-4709 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-13-07

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