                           In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 07-4038 & 07-4039

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

JONATHAN G EAR,
                                          Defendant-Appellant.


       Appeals from the United States District Court for the
           Northern District of Illinois, Western Division.
    Nos. 01 CR 50004 & 06 CR 50067—Philip G. Reinhard, Judge.


    A RGUED JANUARY 5, 2009—D ECIDED A UGUST 17, 2009




 Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
  P ER C URIAM .     Jonathan Gear pleaded guilty to
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 to 63 months’ imprisonment. Because
he committed that crime while on supervised release
from an earlier firearms conviction, the judge revoked his
release and directed him to spend 21 additional months
of the earlier sentence in custody. The effective sentence
2                                   Nos. 07-4038 & 07-4039

thus is 84 months. Gear contends that it is too high, for
three principal reasons: first, the judge did not give
him enough credit for assistance to the prosecutor (who
filed a motion under U.S.S.G. §5K1.1); second, 84 months
exceeds the Guideline for his new crime (57 to 71 months)
and is unreasonable; third, the judge miscalculated the
recommended range by starting with a base offense
level of 20 under §2K2.1(a)(4) rather than 14 under
§2K2.1(a)(6).
  The first two arguments are unavailing. The district
judge acknowledged the prosecutor’s motion but con-
cluded that Gear’s criminal history (he is in category
IV) and risk of recidivism justify a sentence within
the recommended range notwithstanding the assistance.
That conclusion does not constitute an abuse of discretion.
Nor is there any error (or abuse of discretion) in running
the new sentence consecutively to 21 months imposed on
the revocation of supervised release. A felon who obtains
and uses a firearm promptly after being released from
prison on another firearms offense is dangerous; the
appropriate sentence for such a person, who effectively
proclaims himself undeterrable, is higher than the sen-
tence for someone who lets several years pass between
episodes of unlawful possession. A felony committed
while on supervised release from an earlier conviction
for the same offense cries out for lengthy imprisonment
to protect society by incapacitating a person who scoffs
at both legal and moral obligations.
 The third argument, by contrast, is substantial. Section
2K2.1(a)(4) sets a base offense level of 20 for a person who
Nos. 07-4038 & 07-4039                                     3

has a prior felony conviction for a crime of violence. A
felon-in-possession conviction is not a “crime of violence”
under §2K2.1(a)(4), which incorporates by reference the
definitions in U.S.S.G. §4B1.2(a). See §2K2.1 Application
Note 1 ¶3. A felon-in-possession conviction makes one
a “prohibited person”, and a “prohibited person” who
does not have a conviction for a “crime of violence” starts
with a base offense level of 14 under §2K2.1(a)(6)(A).
Six offense levels is the difference between a range of
30 to 37 months and a range of 57 to 71 months.
  Section 4B1.2(a) is in the career-offender section of the
Sentencing Guidelines. We concluded in United States
v. Woods, No. 07-3851 (7th Cir. Aug. 5, 2009), that the
language defining crimes of violence for career-
offender purposes should be read the same way as the
definitions of “violent felonies” in statutes such as
18 U.S.C. §16 and 18 U.S.C. §924(e), recidivist-
sentencing statutes from which the Sentencing Com-
mission borrowed when drafting §4B1.2. And Begay v.
United States, 128 S. Ct. 1581 (2008), which was decided
after Gear’s sentencing, has substantially changed the rules
for the identification of qualifying convictions. Gear did
not object at sentencing to the classification of his earlier
conviction, but that classification was plain error under
the approach this court has adopted in Woods. See United
States v. Olano, 507 U.S. 725 (1993) (spelling out the stan-
dards for plain-error review).
  When using §2K2.1(a)(4), the district court relied on
Gear’s conviction for reckless discharge of a firearm, in
violation of 720 ILCS 5/24-1.5(a). This statute provides:
4                                      Nos. 07-4038 & 07-4039

    A person commits reckless discharge of a firearm
    by discharging a firearm in a reckless manner
    which endangers the bodily safety of an individual.
This statute does not have as an element the use or at-
tempted use of force against the person of another. Most
convictions under this law appear to arise from shooting
guns into the air. See, e.g., People v. Collins, 214 Ill. 2d 206,
824 N.E.2d 262 (2005); People v. Watkins, 361 Ill. App. 3d
498, 837 N.E.2d 943 (2005). Thus the crime is violent, or not,
under the residual category of U.S.S.G. §4B1.2(a)(2), which
includes a crime that 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.” And the problem with classify-
ing reckless discharge of a firearm as violent under the
residual category is that Begay deems an offense
included only if it is similar to burglary or arson in the
sense of entailing “purposeful, violent, and aggressive
conduct”. 128 S. Ct. at 1586.
  Section 720 ILCS 5/24-1.5(a) includes at least two variet-
ies of weapons offenses. In one, the person discharges the
gun recklessly. (Think of someone carrying a pistol in his
waistband who draws it out to show it to a friend and
recklessly pulls the trigger in the process, firing a bullet
into the crowd even though he did not mean to shoot.)
In the other, the person fires the gun deliberately but is
reckless about the consequences. (Think of someone who
stands on an overpass and shoots toward passing cars.)
The second variety satisfies Begay because firing a gun
toward occupied cars is purposeful, violent, and aggressive
Nos. 07-4038 & 07-4039                                       5

conduct that creates a substantial risk of harm. The first
does not. If the judge could peek at the charging papers
and plea colloquy, it would often be possible to learn
whether the defendant engaged in purposeful, aggressive
conduct. But the Supreme Court has held that federal
recidivism enhancements depend on the crime of con-
viction, not what the defendant did in fact. See, e.g.,
Taylor v. United States, 495 U.S. 575 (1990); Shepard v. United
States, 544 U.S. 13 (2005).
  May we disambiguate Gear’s crime of conviction by
reference to his deeds? Woods reaches two conclusions
that bear on that question. 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 federal “violent felony” standard and
some of which don’t. Only when an offense is divisible
may a court examine the charging papers and plea collo-
quy to classify the conviction. Woods holds, second, that
as a rule an offense in which the mental state is reck-
lessness does not meet the standards established by the
Supreme Court in Begay. Those conclusions control here.
  Illinois’s reckless-discharge offense is not “divisible” as
Woods uses that term. It establishes a single offense;
neither subsections nor a list mark any discrete offense
as one in which the defendant intends to shoot and is
reckless about the bullet’s destination. As 720 ILCS 5/24-
1.5(a) creates only one offense, the “recklessness” compo-
nent applies to all of its elements, including the dis-
charge of the gun. This means that conviction under 720
ILCS 5/24-1.5(a) need not denote the sort of purposeful,
6                                    Nos. 07-4038 & 07-4039

aggressive, and violent conduct that Begay requires for
classification as a violent felony under the residual cate-
gory.
  After United States v. Booker, 543 U.S. 220 (2005),
the Guidelines are advisory. A judge is free to mete out
a 63-month sentence to someone in Gear’s position if
the judge concludes that Gear’s criminal history shows
him to be dangerous, and in need of incapacitation,
whether Gear’s base offense level is 14 or 20. See Spears
v. United States, 129 S. Ct. 840 (2009); Kimbrough v. United
States, 552 U.S. 85 (2007). But the judge should start by
knowing what sentence the Guidelines recommend. Gear’s
sentence is vacated, and the case is remanded for
resentencing consistent with this opinion.




                           8-17-09
