                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 07-3738

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

R AY S ANNER,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 06 CR 360—John F. Grady, Judge.



No. 08-1344

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

A DOLFO O RTIZ,
                                               Defendant-Appellant.


           Appeal from the United States District Court
               for the Western District of Wisconsin.
           No. 07 CR 106—Barbara B. Crabb, Chief Judge.



       A RGUED A PRIL 3, 2009—D ECIDED M AY 14, 2009
2                                    Nos. 07-3738 & 08-1344

   Before E ASTERBROOK, Chief Judge, and E VANS and
S YKES, Circuit Judges.
  E VANS, Circuit Judge. For reasons which will become
apparent later, we are consolidating these two seemingly
unrelated cases for decision.
  First to Ortiz. Adolfo Ortiz is a citizen of Mexico who
was removed from the United States on two occasions.
He never sought permission to reenter the country. How-
ever, he did reenter and was charged with illegal reentry
into the United States after removal in violation of 8 U.S.C.
§ 1326(a) and (b)(2). He pled guilty and was sentenced
to a term of 77 months in prison, a sentence he now
appeals.
   The judge determined under the United States Sentenc-
ing Guidelines that Ortiz’s base offense level was 8; she
then adjusted the range to reflect a 16-level increase
after she concluded that a prior conviction for false im-
prisonment constituted a crime of violence under the
illegal reentry guideline, U.S.S.G. § 2L1.2(b)(1)(A)(ii). She
also awarded a 3-level downward adjustment for accep-
tance of responsibility. With a criminal history category
of VI, the offense level resulted in a guideline range of
77 to 96 months. What Ortiz objects to is the 16-level
increase. He contends that the judge erred in concluding
that she could look to the plea agreement and the com-
plaint to determine whether he had, in fact, committed
a crime of violence. He contends that United States v.
Billups, 536 F.3d 574 (7th Cir. 2008) (decided after his
sentencing), and Taylor v. United States, 495 U.S. 575 (1990),
prohibit a court from looking beyond the fact of convic-
Nos. 07-3738 & 08-1344                                   3

tion and the statutory definition of the prior offense to
determine whether it is a crime of violence.
  This is the square-peg-in-the-round-hole problem.
Quite naturally, state legislatures do not define their
crimes with an eye to the federal sentencing guidelines.
The result is that federal judges must often grapple with
whether a state crime fits the definitions found in the
federal sentencing guidelines. In this case, the relevant
guideline says that a crime of violence includes a
number of listed offenses (false imprisonment is not
among them) “or any other offense under federal, state,
or local law that has as an element the use, attempted use,
or threatened use of physical force against the person of
another.” Wisconsin’s false imprisonment statute—Wis.
Stat. § 940.30—says that whoever “intentionally confines
or restrains another without the person’s consent and
with knowledge that he or she has no lawful authority
to do so is guilty of a . . . felony.” Contrasting the two,
we see that while the guideline requires the use of
force, there is no element of force involved in § 940.30.
Wisconsin law also defines the term “without consent” as
“no consent in fact” or consent given because of the use
of “physical violence,” or (we simplify here) for various
other reasons (trickery, for example) the victim did not
understand what she was consenting to. Wis. Stat.
§ 939.22(48).
  Given this definition, the district judge concluded she
was faced with an offense which could be committed by
either violent or nonviolent means (and ironically,
perhaps, while the use of violence seems more serious
4                                   Nos. 07-3738 & 08-1344

than the other methods, it might actually be the easier
one to prove). To determine which method Ortiz was
convicted of, the judge looked to the plea agreement and
the complaint. She found the crime was committed by
violent means—“grabbing the victim by the arm, pulling
her back into the car while driving at a high rate of speed,
leading her to report to police shortly after the incident
that she felt threatened.” But, as we said, Ortiz argues
that the judge should not have looked beyond the ele-
ments of the crime set out in § 940.30.
  There are limited circumstances in which a judge can
look to other documents to determine what crime a
defendant was convicted of: “[W]here the statutory
elements and the charging documents fail to resolve
the issue, we may then look to additional sources, includ-
ing the written plea agreement, the transcript of the plea
colloquy, admissions by the defendant, or comparable
judicial records.” Billups, 536 F.3d at 577. See also Shepard
v. United States, 544 U.S. 13 (2005).
   Putting aside a determination as to when it is proper
to look to other documents, we note that simply looking
at the elements of the crime as compared to the sentencing
guidelines can be a complex undertaking. In Billups, we
considered whether Wisconsin’s false imprisonment
statute qualified as a crime of violence under U.S.S.G.
§§ 4B1.1(a) and 4B1.2(a). We looked to both § 940.30
itself and the definition of “without consent” in
§ 939.22(48)(c). We determined that the statute involves
“purposeful, aggressive conduct” that presents, and here
we quoted from § 4B1.2(a), “a serious potential risk of
Nos. 07-3738 & 08-1344                                     5

physical injury to another.” That does not answer the
question before us today, however, because “crime of
violence” is defined differently under § 4B1.2(a) than it
is under § 2L1.2(b)(1)(A)(ii), the guideline relevant to
Ortiz’s case. The Application Note to the latter section
does not include the clause involving a “potential risk” on
which we relied so heavily in Billups. Rather, it says
merely that a crime of violence includes enumerated
offenses and an offense “that has as an element the use,
attempted use, or threatened use of physical force
against the person of another.”
  It’s certainly possible that in some of its manifestations,
the Wisconsin statute meets that definition, too. Section
939.22(48)(c) has elements of the use, attempted use, or
threatened use of physical force. This is where the
district judge found herself when she decided to look to
the plea agreement and the complaint to see what Ortiz
was convicted of.
  Sorting through all of this at a sentencing proceeding
is bunglesome, to say the least. And in this case there
was no reason to do it. Facing this knotty issue was not
only unnecessary, but as we shall explain later, perhaps
could just as easily have been avoided altogether. So
we pass this issue for consideration in a case where
all of this actually matters.
 We will come back to Ortiz’s case in a moment, but first
we will look at the facts of the case against defendant
6                                  Nos. 07-3738 & 08-1344

Sanner1 —who also objects to his guideline calculations
and his sentence. Sanner was involved in a bank robbery.
As relevant here, the facts show that the robbery was
committed by four men. Sanner was the getaway driver,
driving a Chevrolet Malibu that one of the robbers stole.
Sanner and the other three robbers drove to a bank in
Montgomery, Illinois. Three went into the bank while
Sanner waited outside in the car with a walkie-talkie
he was to use to warn those inside if any complications
arose. Inside the bank, one of the robbers pointed a gun
at the branch manager’s head while another man
robbed the teller drawers. The men could not open the
vault and left the bank with only the $7,605 they
retrieved from the drawers. Sanner was given between
$400 and $500 for his role in the robbery, and the other
three robbers split the rest. The Malibu was abandoned
but later recovered and returned to its owner. Sanner
was indicted for bank robbery, conspiracy to commit
bank robbery, and knowingly possessing a firearm in
furtherance of a bank robbery. At trial, a jury found him
guilty on all counts.
  At sentencing, the judge determined that Sanner’s base
offense level was 20 under U.S.S.G. § 2B3.1. Two points
were added under § 2B3.1(b)(4)(B) because the robbers
had restrained bank employees; two more points were
added under § 2B3.1(b)(1) because the property of a
financial institution was taken. Also, the court added the



1
 The appeal of one of Sanner’s codefendants, Jonathan
Gordon, was recently resolved in a nonprecedential order.
Nos. 07-3738 & 08-1344                                   7

value of the stolen car to the amount of money taken
from the bank and found that the loss exceeded $10,000,
which raised the level one more notch. Sanner’s criminal
history put him in category II (two levels lower than the
probation department had recommended). So with an
offense level of 25 and a criminal history category of II,
Sanner faced a guidelines sentence between 147 and 162
months. But the judge adjusted the sentence upward
because of statements Sanner made at sentencing and
in other pro se filings. The result was that his sentence
was concurrent terms of 60 months and 96 months, re-
spectively, on the conspiracy and bank robbery counts
and a consecutive term of 84 months on the firearms
count—a total of 180 months.
  The issues Sanner raises on appeal are whether the
judge committed error when he included the value of
the stolen Malibu in the loss calculation under U.S.S.G.
§ 2B3.1 and when he increased Sanner’s sentence based
on statements he made during his sentencing hearing.
  We will look first to the statements Sanner made at
sentencing. He expressed his opinion that he was a
“sovereign,” not a “person” and was beyond the venue
and jurisdiction of the United States government. For
that reason, he said, the federal criminal statutes did not
apply to him. He said the federal government did not
have jurisdiction over crimes committed in the
individual states. He also questioned whether the
district judge was operating under the authority of the
U.S. Constitution and, in fact, whether Title 18 of the
United States Code was properly enacted by Congress.
8                                  Nos. 07-3738 & 08-1344

Along the way, he continued to deny responsibility for
the robbery. Perhaps somewhat taken aback by Sanner’s
statements, the judge asked the parties for additional
filings addressing the question of what sentence would
be sufficient but not greater than necessary to protect the
public from further crimes which Sanner might commit,
particularly whether he was a danger to the public
because of his attitude toward the law. The judge wanted
to know specifically whether a sentence above the high
end of the guidelines would be necessary. The parties
filed responses and the sentencing hearing reconvened
a few days later.
  At the hearing, the judge expressed his view that to
“ignore the way in which this defendant has denigrated
the law in a misguided effort to benefit himself somehow
would not promote respect for the law.” Sanner’s state-
ments were seen as a “self-serving effort to come up
with something that he could advance in a hopeless
quest to win an acquittal somehow in this case” and that
he was saying that the “responsibility for his predica-
ment lies with those people who have erroneously
charged him with an offense which they have no juris-
diction to charge before a court that has no jurisdiction
to adjudicate.” Sanner also said he wanted to take
paralegal courses in prison, and the judge reasonably
assumed that Sanner was likely to assist other inmates in
prison and would be “broadcasting these theories to other
inmates.” While recognizing that no one could prevent
Sanner from speaking, the judge felt that what he could
do was to impose a sentence reflecting his “very strong
disagreement with the defendant’s manipulation of legal
Nos. 07-3738 & 08-1344                                   9

authority for his own ends.” The judge imposed a sen-
tence 18 months above the guideline range he had calcu-
lated (which, as we shall see, Sanner contends was wrong)
and above the recommendation of the government.
  Relying on United States v. Clemmons, 48 F.3d 1020 (7th
Cir. 1995) (overruled on other grounds), Sanner’s argu-
ment is that his right to allocution was undermined
because what he said in allocution was used against him.
Clemmons does not carry the day for him. In fact, in
Clemmons, decided back when the guidelines were manda-
tory, we deferred to the district court’s judgment that a
sentence at the top of the guideline range was warranted.
  Considerable thought was given to the effect Sanner’s
statements should have on his sentence. Between the two
sentencing hearings, the judge specifically and independ-
ently researched whether reliance on Sanner’s statements
at sentencing would violate the First Amendment. Deter-
mining that it would not, the judge then recited the
objectives of sentencing (the § 3553 factors), particularly
promoting respect for the law and protecting the public.
His reasoning was sound. We find no clear error in the
decision that an upward adjustment was necessary
under the circumstances of this case.
  The other issue Sanner raises involves the adjustment
for the value of the stolen car. The guidelines provide for
a one-level increase in the offense level if the loss from
a robbery is more than $10,000 and up to $50,000. Here, as
we have said, the take from the bank was $7,605. At
sentencing the judge added to that amount the value of
the stolen car, which resulted in the one-level increase.
10                                   Nos. 07-3738 & 08-1344

Sanner objected to the increase on the basis that it was not
foreseeable to him that his codefendants would steal a
car for use in the robbery and that the increase should
be $295, the amount of damage to the car, rather than its
Blue Book value, which was $9,200. There was also argu-
ment about whether the Blue Book was the appropriate
way to value the car. Ultimately, the judge said, all the
government had to show was that the loss was over
$10,000 and the robbery itself was $7,000, so, he asked,
“was that car worth three [thousand dollars]? I think so.”
  The issue as it is framed on appeal is whether the
amount properly included as loss is the value of the car
or just the amount of the damage done to the car while
it was in the robbers’ possession. Sanner argues that
United States v. Donaby, 349 F.3d 1046 (7th Cir. 2003), stands
for the proposition that the damage done to the car is
the proper measure.
  In Donaby, the robbers obtained $47,965. Upon leaving
the bank, they stole a van which was parked in front of
the bank. The van was worth $34,435 and it was
damaged to the tune of $5,189.85. The issue in that case
was whether the amount of the damage could be added
to the $47,965 taken from the bank to lift the amount of
loss over the $50,000 mark. The amount of damage
by itself was sufficient to reach the $50,000 threshold for
a 2-point upward adjustment, and adding the value of the
vehicle would not reach the next threshold which is
$250,000 for a 3-level adjustment. In that case, there was
no point in considering whether the value of the van
would properly have been included as “loss.”
Nos. 07-3738 & 08-1344                                   11

  We upheld the addition of the repair cost in Donaby.
Because that was the issue in the case; that was the hold-
ing. However, in reaching that result we also expressed
our agreement with the Eighth Circuit in United States v.
Powell, 283 F.3d 946 (2002), which allows the value of a
stolen vehicle used during a robbery to be included as
loss. In addition, the Application Note to § 2B3.1 seems to
allow for the inclusion of either the value of the car or of
the damage; it says that loss means the “value of the
property taken, damaged, or destroyed.” We are in agree-
ment with the dicta in Donaby that the value of the car
can be included in the calculation of loss.
  In Sanner’s case, the district judge wisely avoided
meaningless arguments about whether the value of the
car was $9,000 or $3,000. The additional $6,000 could
make no difference in the guideline calculation. There
was no point in wasting time on it.
  All of which bring us to the reason we have con-
solidated the Ortiz and Sanner cases: they illustrate how
guideline calculations can sometimes bog a case
down—and generate an appeal—even if the end result
has little importance in the big picture.
  First Ortiz. Whether or not his Wisconsin false imprison-
ment conviction was a crime of violence that permitted
a 16-point enhancement to his guideline range (certainly
he would have got at least a 4-point kick for “any other
felony” or perhaps even an 8-point bump for an “aggra-
vated felony”) under 2L1.2(b)(1)(A)(ii) did not have to
be decided. Ortiz also had a battery conviction as a habit-
ual offender which is a crime of violence under the guide-
12                                   Nos. 07-3738 & 08-1344

line. Wisconsin Statute § 940.19(1) provides that who-
ever “causes bodily harm to another by an act done with
intent to cause bodily harm to that person or another
without the consent of the person so harmed is guilty of
a Class A misdemeanor.” A person convicted as a
habitual offender under Wisconsin Statute § 939.62 has
his penalty increased to no more than 2 years, which
makes it a felony for purposes of U.S.S.G. § 2L1.2. The
judge could have easily increased Ortiz’s offense level on
the basis of the battery conviction alone.
  But also because the guidelines are advisory, in con-
sidering the § 3553(a) factors, the judge could have
viewed the factual basis for Ortiz’s false imprisonment
conviction as an indication that he was a bad guy and
that the public deserved protection from further criminal
acts he might be inclined to commit. The judge could have
said that she had made her best assessment of the guide-
line calculation but that Ortiz’s sentence was not depend-
ent on that calculation. She could have said that Ortiz’s
actions as evidenced by the facts in the false imprison-
ment case made him both violent and dangerous
because he prevented the victim from leaving a vehicle
by grabbing her arm and yanking her back into the car
twice. He then drove through parking lots and residential
streets at a high rate of speed. He accelerated toward a tree,
swerving at the last moment. Based on this behavior, the
judge could have increased Ortiz’s sentence pursuant to
the § 3553(a) factors, regardless of whether the crime
technically fit under U.S.S.G. § 2L1.2(b)(1)(A)(ii) of the
guidelines. When a judge proceeds in this manner, she
must make clear that the § 3553(a) factors drive the sen-
Nos. 07-3738 & 08-1344                                 13

tence without regard as to how the prior conviction fits
under a particular guideline. Doing so will make the
often nit-picking review of issues like this under our
now advisory guideline scheme unnecessary.
  In Sanner’s case, the issue of the value of the car
raises the offense level for the bank robbery from 24 to
25—or from a range of 57 to 71 months to 63 to 78 months,
a difference which might be significant to a defendant
but, one would hope, be of limited concern to the gov-
ernment. The meaninglessness of the one-point difference
is stark in Sanner’s case because on this count he was, in
fact, sentenced to 96 months due to his lack of respect
for the law, an adjustment well beyond his guideline
range. It is hard to see, in that circumstance and in
cases more difficult than this one, why a district judge
should bother with a possibly controversial adjustment
which will have no—or little—effect on the sentence. In
Sanner’s case, even if the value of the car was not used
to raise the guideline level a smidgeon, the judge could
have considered the § 3553(a) factors and imposed the
same sentence. In doing so, however, a judge must make
clear that the sentence is based—as this one certainly
was—on the § 3553(a) factors.
  In both cases, the judgments of the district courts are
A FFIRMED.




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