                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1970

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

JOHN H IGH,
                                          Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Wisconsin.
        No. 07-CR-91-C-01—Barbara B. Crabb, Chief Judge.



     A RGUED JANUARY 5, 2009—D ECIDED A UGUST 5, 2009




 Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
  P ER C URIAM. John High was convicted of possessing
a firearm, despite prior convictions that made it
unlawful for him to do so. 18 U.S.C. §922(g)(1). He was
sentenced as an armed career criminal, see 18 U.S.C.
§924(e), after the district judge found that he had four
prior convictions for serious drug offenses or violent
felonies. His sentence of 212 months’ imprisonment is
below the Guideline range for a person with his criminal
2                                               No. 08-1970

history, but above the 10-year maximum sentence for
someone who violates §922(g) and does not qualify as
an armed career criminal. 18 U.S.C. §924(a)(2).
  High contends that the evidence is insufficient; to
the contrary, it is strong. He also maintains that the
gun should have been suppressed as the product of an
unlawful search, but the district judge rightly rejected
this argument. High was living with his grandmother,
who consented to the officers’ entry. Relying on the
consent, officers came in but did not begin searching
until a warrant had been issued. That the officers
secured the premises, and prevented the destruction of
evidence, before obtaining a warrant, does not justify
exclusion. See, e.g., Segura v. United States, 468 U.S. 796
(1984).
  Sentencing is the only substantial appellate question.
The district court relied on four of High’s convictions to
conclude that he is an armed career criminal: (1) posses-
sion of cocaine with intent to distribute; (2) recklessly
endangering safety; (3) failure to report to jail for impris-
onment; and (4) battery as a repeat offender. High con-
cedes that the first of these counts under 18 U.S.C.
§924(e)(2)(A)(ii) because it is a “serious drug offense”; he
contests the other three. The failure-to-report crime
cannot be counted, given Chambers v. United States, 129
S. Ct. 687 (2009). The status of the battery conviction may
be decided in Johnson v. United States, cert. granted, 129
S. Ct. 1315 (2009) (to be argued Oct. 6, 2009). High’s
argument is that, because state law treats battery as a
misdemeanor unless the defendant is a recidivist, it
No. 08-1970                                                  3

cannot be a violent felony for federal purposes. That line
of argument is cut short by United States v. Rodriquez, 128
S. Ct. 1783 (2008), which holds that recidivist enhance-
ments count when classifying a conviction as a misde-
meanor or a felony. Whether felony battery meets the
standards of Begay v. United States, 128 S. Ct. 1581 (2008), is
the question posed in Johnson. We need not attempt to
anticipate the answer, because High’s conviction for
recklessly endangering safety does not count, and it
takes three countable convictions to support sentencing
as an armed career criminal.
  United States v. Woods, No. 07-3851 (7th Cir. Aug. 5,
2009), reaches two conclusions bearing on the treatment
of the endangerment conviction. Woods holds, first, that
courts must not look beyond the statutory ingredients of
a crime, unless the offense is “divisible” into parts, some
of which meet the standard of §924(e) and some of which
don’t. Only when an offense is divisible may a court
examine the charging papers and plea colloquy to
classify the conviction. Woods holds, second, that as a
rule an offense in which the mental state is reckless-
ness does not meet the standards established by the
Supreme Court in Begay. Those conclusions control here.
   High was convicted of second-degree recklessly en-
dangering safety, in violation of Wis. Stat. §941.30(2).
This statute provides: “Whoever recklessly endangers
another’s safety is guilty of a Class G felony.” This statute
is not divisible, as Woods uses that word. And, given how
Woods treats recklessness offenses, lack of divisibility
means that a conviction does not necessarily signify any
4                                                No. 08-1970

intentional, violent, and aggressive act of the sort that
Begay requires. A person who twirls a gun, intending to
show his skill but recklessly permitting it to fire, violates
§941.30(2) without intending to shoot, even if no one
is injured. (Recklessness in Wisconsin law means the
creation of an unreasonable and substantial risk of great
bodily harm, if the actor is aware of the risk. See Wis. Stat.
§939.24(1). It does not require intent to harm anyone.)
Likewise a person who deliberately shoots at a passing
car and misses violates this law. The fact that the same
statute covers both situations, and is not divisible, means
that a conviction does not establish a violent felony,
because (given Woods) the sentencing judge is forbidden
to look at the charging papers and plea colloquy to see
in which way a person violated the state statute.
  High did not object at sentencing to the classification of
his reckless-endangerment conviction. But Begay, which
was decided after his sentencing, changed the rules, and
under the holding of Woods the district court’s classifica-
tion of this offense was plain error. See United States v.
Olano, 507 U.S. 725 (1993) (spelling out the standards
for plain-error review). The judgment of conviction is
affirmed, and the case is remanded with instructions
to impose a sentence no greater than 120 months. We
know from the record of the state proceeding that
High fired a gun at an occupied car; he may have been
trying to hit the occupant (who escaped harm) or may
have been trying to hit the tires. The district judge is free
to consider those facts when deciding what sentence
to impose, see 18 U.S.C. §3661, because the events that
led to the reckless endangerment conviction reflect what
No. 08-1970                                          5

kind of person High is and how dangerous he may be in
the future, but the court cannot treat him as an armed
career criminal.




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