United States of America v. Deandre Bishop

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 6, 2009
Decided August 17, 2009
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08-1950
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEANDRE BISHOP,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District
of Wisconsin
No. 07-CR-157-bbc
Barbara B. Crabb, Chief Judge.
O R D E R
This appeal is one of several recent cases challenging a district court’s classification of
a prior offense as a crime of violence under U.S.S.G. § 4B1.2. Deandre Bishop pleaded guilty
to possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
district court found that Bishop was a career offender under U.S.S.G. § 4B1.1 because Bishop
had two prior felony convictions for a crime of violence. The court accordingly sentenced
N ON PRECED EN TIAL D ISPOSITION
To be cited on ly in accord an ce w ith
Fed . R. Ap p . P. 32.1

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No. 08-1950 Page 2
Bishop to 188 months imprisonment. One of the two crimes that predicated the enhancement
was a conviction under Wisconsin law for second-degree reckless endangerment. See Wis.
Stat. § 941.30(2). Bishop argues that, under Begay v. United States, 128 S. Ct. 1581 (2008), and
United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008), a crime requiring a mental state of
recklessness is not a “crime of violence” under § 4B1.1.
Bishop is correct. As we recently held in United States v. Woods, No. 07-3851, 2009 WL
2382700 (7th Cir. Aug. 5, 2009), the mental state of recklessness does not satisfy the standards
established by the Supreme Court in Begay. Second-degree reckless endangerment, in violation
of Wis. Stat. § 941.30(2), is therefore not a crime of violence for the specific purpose of the
career-offender enhancement, and the district court therefore erred by sentencing Bishop
under § 4B1.1. See United States v. High, No. 08-1970, 2009 WL 2382747 (7th Cir. Aug. 5, 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 Armed Career Criminal Act).
In light of these recent decisions, Bishop’s other arguments – that his sentence is
substantively unreasonable and that the district court mistakenly believed that the state would
make his state sentence concurrent to the federal sentence – are moot.
We therefore V ACATE the sentence and R EMAND for further proceedings in light of
Begay.

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