In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3257

United States of America,

Plaintiff-Appellee,

v.

Tierney M. Hoults,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:00CR30039-001--William D. Stiehl, Judge.


Argued January 31, 2001--Decided February 15, 2001



  Before Bauer, Coffey, and Diane P. Wood, Circuit
Judges.

  Diane P. Wood, Circuit Judge. The consequences of
being deemed a career offender for purposes of
section 4B1.1 of the U.S. Sentencing Guidelines
are grave: the defendant automatically is
assigned a criminal history category of VI, and
the offense level is typically increased. This
case concerns the requirement for career offender
status of "at least two prior felony convictions
of either a crime of violence or a controlled
substance offense." U.S.S.G. sec. 4B1.1. Tierney
Hoults claims that the district court should not
have characterized one of his prior felony
convictions as a "crime of violence," and that
without this error, he was not a career offender
for guideline purposes. We find Hoults’s argument
to be well taken, and we therefore vacate the
sentence and remand for resentencing.

I

  Hoults was convicted after a jury trial of
distributing cocaine base, or crack, in violation
of 21 U.S.C. sec. 841(a)(1). The issue before us
arose in conjunction with the sentencing
proceedings that followed. The presentence report
recommended that Hoults should be sentenced as a
career offender, based in part on a 1995 Illinois
conviction for burglary in Hoults’s record. The
probation officer reasoned that this conviction
was for a "crime of violence" within the meaning
of U.S.S.G. sec. 4B1.2(a), which defines this
term for purposes of sec. 4B1.1 as follows:

The term "crime of violence" means any offense
under federal or state law, punishable by
imprisonment 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.

The government agreed with this recommendation,
both on the ground that the 1995 Illinois
conviction was burglary of a "dwelling," and on
the broader ground that in any event it presented
a "serious potential risk of physical injury" to
another.

  Hoults contested this interpretation of the
conviction. He pointed out that the amended
information, to which he had pleaded guilty,
charged only that he had committed the offense of
"BURGLARY--in that said defendant knowingly and
without authority entered the Building of Gay R.
Harris, located at 1112 Apartment 3 Cherokee,
Collinsville, Madison County, Illinois, with the
intent to commit therein a theft, in violation of
720 ILCS 5/19-1 . . . ." This is not how the
information had initially read. Visible deletions
and additions written by hand show that the word
"RESIDENTIAL" had originally preceded the word
"BURGLARY" in the information, that it had
originally said "entered the dwelling place of
Gay R. Harris," and that it had originally
charged Hoults with violating 720 ILCS 5/19-3.
The effect of the changes (no doubt inspired by
some kind of plea agreement, although we do not
know that and it is unimportant for our purposes)
was to reduce the charge against Hoults from
residential burglary, a Class 1 felony, to
general burglary of a building, a Class 2 felony.


  Notwithstanding these deliberate changes to the
charge--unmistakable on the face of the
information--the district court concluded that
even the amended information demonstrated that
Hoults had committed burglary of a dwelling,
since it used the word "apartment." This led the
court also to conclude that because the burglary
occurred at an "apartment," the offense posed a
serious potential risk of physical injury to
others. On this basis, the court decided that the
1995 Illinois conviction qualified for purposes
of sec. 4B1.1 and that Hoults was a career
offender. This made a significant difference to
the sentencing range Hoults faced. Had the
district court found that the Illinois conviction
was not for a "crime of violence" under the
guidelines, Hoults would not have qualified for
career offender treatment, his offense level
would have been 26, his criminal history category
IV, and the applicable range 92-115 months. As it
was, Hoults of course had a criminal history
category of VI, and a total offense level of 34,
for a range of 262-327 months. The court
sentenced him at the bottom of that range, to 262
months.

II

  The question whether the district court erred
in sentencing Hoults as a career offender is one
of law, which we review de novo. United States v.
Nelson, 143 F.3d 373, 374 (7th Cir. 1998). There
are, in a sense, two questions here: first, did
the district court follow the correct procedures
in categorizing Hoults’s prior Illinois
conviction, and second, was that conviction a
"crime of violence" for purposes of U.S.S.G.
sec.sec. 4B1.1 and 4B1.2? With respect to the
procedural question, it is firmly established in
this circuit that the court was required to
confine its inquiry to the face of the charging
instrument--here, the information. See United
States v. Shannon, 110 F.3d 382, 384-85 (7th Cir.
1997) (en banc). Both the facts contained in the
charging document and the statutory definition of
the charged offense are fair game. See id.;
United States v. Jackson, 177 F.3d 628, 632 (7th
Cir. 1999). Here, as we explain below, we are
concerned that the district court based its
decision on assumed additional facts that do not
appear on the record. Without those additional
facts, Hoults’s prior offense takes on a
different character.

  The task before both the sentencing court, and
now this court on review, is strictly limited to
deciding whether any facts in the information to
which Hoults pleaded guilty reveal his offense to
be a "crime of violence," or if that is inherent
in the statutory definition of the offense with
which he was charged. We can dismiss immediately
the idea that Hoults committed an offense
included within the first part of the definition
of "crime of violence" under sec. 4B1.2(a)(1),
because it is undisputed that Hoults’s burglary
did not have as an element the use (or attempted
or threatened use) of force against the person of
another. The question instead is whether the face
of the information shows that he either committed
"burglary of a dwelling," which the guidelines
presume is a crime of violence, or if his conduct
otherwise presented a "serious potential risk of
physical injury to another." See sec.
4B1.2(a)(2).

  We conclude that the information does not
support such a conclusion. The statutory
provision that Hoults ultimately admitted
violating through his guilty plea was 720 ILCS
5/19-1, which reads:

[a] person commits burglary when without
authority he knowingly enters or without
authority remains within a building,
housetrailer, watercraft, aircraft, motor vehicle
as defined in the Illinois Vehicle Code, railroad
car, or any part thereof, with intent to commit
therein a felony or theft.

This is the general Illinois burglary statute. At
the time of Hoults’s offense, it was clear that
the use of the term "building" excluded a
dwelling, because the statute said exactly that:
"[t]his offense shall not include . . . the
offense of residential burglary as defined in
Section 19-3 hereof." 720 ILCS 5/19-1. See also
People v. Childress, 633 N.E.2d 635, 647 (Ill.
1994); United States v. Hicks, 122 F.3d 12 (7th
Cir. 1997) (recognizing difference between
residential burglary under 720 ILCS 5/19-3 and
general burglary under 720 ILCS 5/19-1). Later,
the Illinois legislature deleted that sentence,
and effective June 1, 2001, the residential
burglary statute will expressly provide that
residential burglary "includes the offense of
burglary as defined in Section 19-1." But those
changes do not affect Hoults, as the government
concedes.

  In fact, this case is quite similar to Hicks.
There too the defendant had originally been
charged with residential burglary under 5/19-3,
but the information was later amended pursuant to
a plea agreement to reduce the charge to burglary
of a building under 5/19-1. See 122 F.3d at 12.
The district court, relying on information in the
PSR indicating that the buildings the defendant
burglarized were in fact dwellings, decided that
the offense was the burglary of a dwelling for
purposes of sec. 4B1.2 (a)(2). Id. This court
reversed, admonishing the district court to look
only to the allegations of the charging document
when characterizing the offense.

  The same problem is present here. The district
court, perhaps influenced by the original charge
Hoults faced in the state court, made it clear
that it thought Hoults had "really" burglarized
a dwelling and thus fell within the guideline
definition. Among other things, the court said
"[t]he mere fact that the defendant pleaded to
and was convicted of the unlawful entry of an
apartment carries with it, and I so find, a
serious potential risk of injury to others,
including but not limited to other residents of
the apartment house, visitors to those
apartments, whether you are a social visitor or
trade visitor . . . ." One can only interpret
this statement as reflecting an assumption that
the burglary took place at a residence or
dwelling. But such an assumption flies in the
fact of the obvious and deliberate efforts to
scratch from the face of the information
references to "residential" and "dwelling place,"
leaving only the word "apartment" in the clause
describing where the building was located.
Indeed, as counsel for Hoults argued, although it
is normal to assume that a building described as
an apartment might be a dwelling, it is not
inevitable that this should be the case. Only
assumptions that go beyond the face of the
information would supply that last crucial fact,
and the court is neither permitted to make those
assumptions nor to conduct proceedings to fill in
the gaps. To put it bluntly, it just does not
matter what Hoults "really" did; the only
question is what he was convicted of, and the
only thing that answers that question is the
charging document. We conclude that this
information did not charge, and Hoults thus was
not convicted of, "burglary of a dwelling" within
the meaning of sec. 4B1.2(a)(2).

  Realizing the difficulty of defending the
"dwelling" possibility, the government’s
principal effort at oral argument was devoted to
defending the district judge’s alternate finding
that this burglary presented a "serious potential
risk of physical injury to another." But, as the
passage just quoted demonstrates, the only reason
the court thought that this kind of risk of
injury existed was because the court believed
that the burglary had been of a residence. Yet,
if it had really been a burglary of a residence,
Hoults would have had to plead guilty to 720 ILCS
5/19-3 (i.e., to the unamended information) and
the offense would have been one specifically
covered by sec. 4B1.2(a)(2). Apart from the
unfounded assumption about the residential nature
of the building, there was nothing else on the
face of the information that would tend to
indicate a serious potential risk of physical
injury. Compare Shannon, where the age of the
victim and the nature of the sexual act both
appeared on the face of the charging document,
thus permitting the finding that such a risk of
injury indeed existed. 110 F.3d at 387.

 The only way we could uphold the district
court’s decision would be to conclude that, as a
matter of law, burglary of a building other than
a dwelling is always a crime of violence under
the "otherwise" clause of sec. 4B1.2 (a)(2). On
two other occasions, we have declined to take
this step. See Nelson, 143 F.3d at 375; Hicks,
122 F.3d at 13. Other circuits to consider this
question are divided. Two have held that there is
indeed a per se rule under which burglaries of
non-residential structures is always a crime of
violence. See United States v. Fiore, 983 F.2d 1,
4-5 (1st Cir. 1992); United States v. Hascall, 76
F.3d 902, 904-05 (8th Cir. 1996). (This across-
the-board conclusion may be difficult to
reconcile with the Supreme Court’s decision in
Taylor v. United States, 495 U.S. 575 (1990),
which held that the word "burglary" in 18 U.S.C.
sec. 924(e) had a uniform federal definition and
that it did not necessarily encompass anything
and everything the states chose to label
"burglary.") Three other circuits have said that
the per se rule never applies. See United States
v. Smith, 10 F.3d 724, 732-33 (10th Cir. 1993)
(per curiam); United States v. Spell, 44 F.3d
936, 938 (11th Cir. 1995) (per curiam); United
States v. Harrison, 58 F.3d 115, 119 (4th Cir.
1995). Two more have concluded that the inquiry
must be undertaken on a case-by-case basis. See
United States v. Jackson, 22 F.3d 583, 585 (5th
Cir. 1994); United States v. Wilson, 168 F.3d
916, 926-29 (6th Cir. 1999).

  Although we have not spoken on the particular
question about burglaries presented here, our en
banc decision in Shannon came down squarely on
the case-by-case approach for purposes of the
sexual assault statute involved there. We see
nothing in Shannon, however, that logically
limited this analytical approach to the
particular statute or circumstances of that case.
Moreover, both the Supreme Court’s methodology in
Taylor and the one used by another panel of this
court in the related context of deportation
proceedings argue for a particularized approach.
See Solorzano-Patlan v. INS, 207 F.3d 869, 875-76
(7th Cir. 2000) (requiring further review of
charging papers because the statute "defines
’burglary’ broadly, encompassing both conduct
that does involve a substantial risk that
physical force may be used and conduct that does
not involve a substantial risk that physical
force may be used"). Finally, if all burglaries
are to be treated as qualifying offenses, we
presume the guidelines would have said so,
instead of carefully singling out only "burglary
of a dwelling." For all these reasons, we align
ourselves with the courts that have required each
burglary of a non-dwelling to be judged
individually, based on the information properly
before the court. Here, that information does not
justify inclusion of Hoults’s 1995 Illinois
offense on "risk of injury" grounds, any more
than it does on "dwelling" grounds.

III

  Because the inclusion of the 1995 Illinois
offense made the difference to Hoults between
treatment as an ordinary offender and career
offender treatment, his sentence is hereby VACATED
and the case is REMANDED to the district court for
resentencing in accordance with this opinion.
