In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2358

United States of America,

Plaintiff-Appellee,

v.

Latidtus Jones,/*

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 634--Elaine E. Bucklo, Judge.


Submitted October 23, 2000--Decided December 15, 2000



      Before Posner, Diane P. Wood, and Williams, Circuit
Judges.

      Williams, Circuit Judge. After pleading guilty to
bank robbery, Latidtus Jones was sentenced to 153
months’ imprisonment, based, in part, on the
district court’s determination that he qualifies
as a career offender under the Sentencing
Guidelines. On appeal, Jones challenges the
district court’s career offender determination.
We reverse.


I

      In the summer of 1999, Latidtus Jones robbed a
bank in Aurora, Illinois. Following his
apprehension and arrest, the government charged
Jones with one count of bank robbery, in
violation of 18 U.S.C. sec. 2113(a). Jones
eventually pleaded guilty to the charge and the
district court accepted his plea.

      In the sentencing proceedings that followed, the
government sought a relatively high Sentencing
Guideline range for Jones based on the
particulars of his crime and his extensive
criminal history. Among other things, the
government argued that Jones qualified as a
career offender under sec. 4B1.1 of the
Sentencing Guidelines because bank robbery is a
crime of violence and Jones had two previous
felony convictions for crimes of violence, a 1998
Massachusetts kidnapping conviction and a 1994
Massachusetts assault and battery conviction.
Jones maintained, however, that his 1994
Massachusetts assault and battery conviction was
neither a felony conviction nor a conviction for
a crime of violence.

      Jones contended that his assault and battery
conviction was not a felony conviction because
Massachusetts classifies assault and battery as
a misdemeanor. The district court rejected
Jones’s argument on the ground that, for purposes
of the career offender guideline, a crime
punishable by a term of imprisonment exceeding
one year (as assault and battery is in
Massachusetts) qualifies as a felony, regardless
of how state law classifies the crime. The court
therefore ruled that Jones’s assault and battery
conviction must be considered a felony
conviction.

      Jones contended that his assault and battery
conviction was not a conviction for a crime of
violence because there was insufficient evidence
to establish that his offense involved actual,
attempted, or threatened physical violence. Also
at issue was what evidence could be considered in
determining whether his offense was a crime of
violence. On this latter question, it appears
that the district court decided to consider
evidence outside the contents of the particular
charge to which Jones pleaded guilty, including
testimony elicited from Jones during the
sentencing hearing and documents relating to his
assault and battery conviction.

      The documents received in evidence revealed that
Jones was originally charged with both simple
assault and battery as well as assault and
battery with a deadly weapon, namely, a paved
parking lot. According to an incident report,
Jones had "body-slammed" his then-wife’s face
into the pavement in a parking lot and, when the
police arrived, his wife was lying in a pool of
blood. The state trial court record indicates
that in exchange for an agreement to drop the
assault and battery with a deadly weapon charge,
Jones pleaded guilty to the simple assault and
battery charge, which alleged that Jones "did
assault and beat" his wife. The state court trial
judge accepted his plea and sentenced him to two
years’ imprisonment./1

      In his testimony before the district court,
Jones contested the allegation that he beat his
then-wife; he claimed that he was only trying to
stop her from hitting him and she simply fell as
they struggled. He also testified that when he
pleaded guilty to the assault and battery charge
he specifically objected to any claim that he
beat his wife and that he pleaded guilty only
because the trial judge assured him that simply
touching someone constitutes assault and battery
in Massachusetts.

      Based on this evidence, the district court
resolved the dispute over the nature of Jones’s
assault and battery conviction by concluding that
Jones had indeed pleaded guilty to beating his
then-wife. Accordingly, the district court ruled
that Jones’s assault and battery conviction was
a conviction for a crime of violence. Having
concluded that Jones’s assault and battery
conviction was both a felony conviction and a
conviction for a crime of violence, the district
court ruled that Jones qualified as a career
offender under USSG sec. 4B1.1.

      Taking into account this ruling, as well as
other considerations relevant under the
Sentencing Guidelines,/2 the district court
sentenced Jones to 153 months’ imprisonment to be
followed by 3 years’ supervised release and
ordered Jones to pay $500 in restitution and a
$100 assessment. Jones now appeals his sentence
on the ground that the district court erred in
determining that he qualified as a career
offender under USSG sec. 4B1.1.

II

      Section 4B1.1 of the Sentencing Guidelines
provides, in relevant part:

A defendant is a career offender if (1)
the defendant was at least eighteen years
old at the time the defendant committed
the instant offense of conviction, (2) the
instant offense of conviction is a felony
that is either a crime of violence or a
controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence
or a controlled substance offense.

USSG sec. 4B1.1. There is no dispute that Jones
was over 18 at the time of the bank robbery or
that bank robbery is a felony crime of violence,
and there is no suggestion that Jones has any
felony controlled substance convictions. The only
question the parties dispute is whether Jones has
two prior felony convictions for crimes of
violence, and more particularly, whether Jones’s
1994 Massachusetts assault and battery conviction
is a felony conviction for a crime of violence.
Jones contends, as he did in the district court,
that, for purposes of the career offender
guideline, his assault and battery conviction is
neither a felony conviction nor a conviction for
a crime of violence. The government confesses
error on the latter point and we are persuaded
that the government did so correctly. Still, for
completeness sake, we will address both of
Jones’s arguments, beginning with his argument
that his assault and battery conviction is not a
felony conviction for purposes of the career
offender guideline.

A.   Felony Conviction

      Under Massachusetts law, simple assault and
battery is a misdemeanor punishable by up to 2
years’ imprisonment. Mass. Gen. Laws ch. 265,
sec. 13A; Mass. Gen. Laws ch. 274, sec. 1. Jones
argues that because his offense of conviction is
a misdemeanor under Massachusetts law, it should
not be considered a felony under the career
offender guideline. The problem for Jones is that
the Sentencing Guidelines adopt an independent
felony/misdemeanor classification system for
purposes of that guideline. The Guidelines define
"prior felony conviction," as that term is used
in USSG sec. 4B1.1, to mean "a prior adult
federal or state conviction for an offense
punishable by death or imprisonment for a term
exceeding one year, regardless of whether such
offense is specifically designated as a felony
and regardless of the actual sentence imposed."
USSG sec. 4B1.2, comment. (n.1). And, all of the
courts that have considered the question have
concluded that the only relevant consideration in
determining whether a prior conviction is a
felony conviction is whether the offense of
conviction is punishable by death or imprisonment
for more than one year. United States v. Dorsey,
174 F.3d 331, 332 (3d Cir. 1999); United States
v. Baker, 961 F.2d 1390, 1392 (8th Cir. 1992);
United States v. Davis, 932 F.2d 752, 763 (9th
Cir. 1991); United States v. Pinckney, 938 F.2d
519, 521-22 (4th Cir. 1991); see also United
States v. Belanger, 936 F.2d 916, 920 (7th Cir.
1991) (suggesting in dicta such a conclusion). It
simply does not matter whether state law
classifies the offense as a misdemeanor or a
felony.

      Jones offers a different reading of the
Guidelines’ definition of "prior felony
conviction." He contends that the definition is
simply a default rule applicable only to crimes
that are not "specifically designated" as
felonies or misdemeanors--that is, crimes defined
by so-called "wobbler" statutes, which provide
that a crime may be a felony or a misdemeanor
depending on the length of the sentence imposed,
see United States v. Hester, 917 F.2d 1083, 1086-
87 (8th Cir. 1990) (dissenting opinion)
(discussing a wobbler statute). Under his view,
federal courts must, in all other situations,
respect the felony/misdemeanor designation state
law gives the crime in question.

      We cannot accept Jones’s reading of the
definition of "prior felony conviction." To begin
with, his reading disregards the significance of
the first clause of the definition, "a prior
adult federal or state conviction for an offense
punishable by death or imprisonment for a term
exceeding one year," a clause that is not limited
or qualified in any way by the remaining portions
of the definition. To the contrary, the
"regardless" clauses that follow emphasize that
the definition is as broad as it reads. Jones’s
reading also ignores the fact that the provision
at issue is a definition, not a default rule. It
purports to establish, for all cases, what
qualifies as a "prior felony conviction" under
the career offender guideline. Put simply,
Jones’s reading of the definition of "prior
felony conviction" takes the "specifically
designated" clause out of context and then
overemphasizes its importance.

      Beyond being more textually sound, our reading
of the definition of "prior felony conviction"
also makes considerable sense. By ignoring how
crimes in different jurisdictions are classified
and looking instead to what punishment is
authorized, a court can avoid the vagaries of
sentencing defendants on the basis of
idiosyncratic or unusual felony/misdemeanor
classifications. It seems likely to us that the
punishment chosen for a crime will more
accurately and equitably reflect, for cross-
jurisdictional purposes, the seriousness of that
crime than will the crime’s felony/misdemeanor
classification. As such, looking to the
punishment authorized is more consistent with the
goal of the Sentencing Guidelines to treat
similarly situated defendants similarly. Cf.
United States v. Shannon, 110 F.3d 382, 386 (7th
Cir. 1997) (en banc) (citing the Guidelines’ goal
of "bringing about a reasonable uniformity in
federal sentencing" as a reason for rejecting
mechanical reliance on state law in determining
whether statutory rape is a crime of violence);
United States v. Unthank, 109 F.3d 1205, 1211
(7th Cir. 1997) (noting that, in order to
maintain uniformity in the application of the
Guidelines, this court has "rejected attempts to
sidestep the career offender provisions of the
Guidelines based on minor, non-substantive
differences in the way that a particular crime is
designated or labeled by a state").

      Finally, we must also reject Jones’s alternative
argument on this issue, that the definition of
"prior felony conviction" is ambiguous and
therefore, pursuant to the rule of lenity, must
be read in favor of defendants. Any ambiguity
created by the "specifically designated" clause
is definitively resolved by placing that clause
in context. As we have already explained, the
rest of the definition and the broader purposes
of the Sentencing Guidelines both indicate that
the definition of "prior felony conviction"
should be read to require courts to look only to
the punishment authorized for a crime in
determining whether that crime is a felony.

      Because the only thing that matters in
determining whether a conviction is a felony
conviction for purposes of the career offender
guideline is whether the offense of conviction
"is punishable by death or imprisonment for a
term exceeding one year," and because
Massachusetts law authorizes a sentence of up to
2 years’ imprisonment for assault and battery,
the district court did not err in holding that
Jones’s assault and battery conviction is a
felony conviction.

B.  Crime of Violence
      Under Massachusetts law, simple assault and
battery encompasses two sorts of crimes--one
involving actual (or potential) physical harm and
one involving a nonconsensual but unharmful
touching. Mass. Gen. Laws ch. 265, sec. 13A;
United States v. Harris, 964 F.2d 1234, 1236 (1st
Cir. 1992). Jones contends that the government
failed to properly establish that he was
convicted of the former crime and therefore
failed to establish that his assault and battery
conviction was for a crime of violence because
only that crime can be considered a crime of
violence. The government agrees and confesses
error on this point. Nevertheless, we must still
independently evaluate the merits of Jones’s
claim. United States v. Wilson, 169 F.3d 418, 427
(7th Cir. 1999); United States v. Locklear, 97
F.3d 196, 198 (7th Cir. 1996).

      For purposes of the career offender guideline,
the Sentencing Guidelines define "crime of
violence" as:

[A]ny 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.
USSG sec. 4B1.2(a). Jones’s assault and battery
conviction does not qualify as a crime of
violence under subsection one since actual,
attempted, or threatened physical force is not a
necessary element of the offense. Likewise,
assault and battery is not one of the crimes
specifically enumerated in subsection two.
Accordingly, the question becomes whether Jones’s
offense involved conduct presenting a "serious
potential risk of physical injury to another."

      This court has announced specific rules
regarding what sources of information may be
referred to in conducting this inquiry.
Ordinarily, a court may look only to the facts
contained in the charging document (that is, the
indictment or information) since only those facts
are deemed established by the defendant’s
conviction. United States v. Jackson, 177 F.3d
628, 632 (7th Cir. 1999); United States v.
Shannon, supra, 110 F.3d at 384; see also USSG
sec. 4B1.2, comment. (n.1) (an offense that does
not otherwise qualify as a crime of violence will
qualify if "the conduct set forth (i.e.,
expressly charged) in the count of which the
defendant was convicted . . ., by its nature,
presented a serious potential risk of physical
injury to another."); cf. Taylor v. United
States, 495 U.S. 575, 602 (1990) (announcing a
similar rule for determining whether a prior
conviction was for a violent felony under 18
U.S.C. sec. 924(e)). If, however, it is
impossible to discern from the charging document
whether the offense of conviction was a crime of
violence, a court may look beyond the charging
document provided that doing so does not require
a hearing to resolve contested factual issues.
United States v. Hicks, 122 F.3d 12, 12 (7th Cir.
1997); Shannon, 110 F.3d at 384.

      The charging document underlying Jones’s assault
and battery conviction alleges that Jones "did
assault and beat" the victim. Ordinarily, such an
allegation would suffice to establish that the
defendant committed a crime of violence. See,
e.g., Jackson, 177 F.3d at 633. In this case,
however, the charging document’s use of the
phrase "did assault and beat" is somewhat
deceptive. As the government points out, the
phrase "did assault and beat" is the standard
charging language for all assault and battery
charges in Massachusetts. Mass. Gen. Laws ch.
277, sec. 79; Harris, 964 F.2d at 1237
(acknowledging this language is boilerplate). As
a result, no inference regarding whether Jones
committed a crime of violence can be drawn from
the charging document’s use of the phrase "did
assault and beat." And, there is no other
language in the charging document that indicates
whether Jones’s offense was a crime of violence.

      As the charging document does not indicate
whether Jones’s offense of conviction was a crime
of violence, it is permissible to look to
evidence outside the charging document, but only
if doing so would not require a hearing to
resolve contested issues of fact. See Shannon,
110 F.3d at 384. Such a hearing would be
necessary here, however. Whether Jones physically
assaulted his ex-wife and whether he pleaded
guilty to doing so are vigorously contested
questions that are impossible to answer on the
basis of undisputed evidence. The district court,
in fact, held a hearing to resolve just those
questions. And, the parties offered evidence,
both documentary and testimonial, in support of
their positions that required the district court
to make choices about which evidence to believe
and what inferences to draw. Since a hearing
would be (and was) necessary to resolve contested
issues of fact regarding the nature of Jones’s
assault and battery conviction, the allegations
in the charging document are the only "evidence"
that may be considered in determining whether
Jones’s offense of conviction was a crime of
violence. As we have already noted, however,
these allegations do not answer that question.
Consequently, we hold that the district court
erred in ruling that Jones’s assault and battery
conviction was for a crime of violence.

III

      Because Jones’s 1994 Massachusetts assault and
battery conviction was not for a crime of
violence, Jones does not qualify as a career
offender under sec. 4B1.1 of the Sentencing
Guidelines. The district court’s ruling to the
contrary was therefore in error. Accordingly, we
Reverse Jones’s sentence and Remand the case for
resentencing in accordance with this opinion.



/* It is not entirely clear how the defendant’s name
is spelled. Defense counsel refers to the
defendant as Latitus Jones, while the government
refers to him as Latidtus Jones. We adopt the
latter spelling as that is the one that was used
in the district court.

/1 Originally, his sentence was suspended, but not
long after his release from custody, Jones was
back in court facing a charge that he had
violated his probation. The trial court found
that Jones had indeed violated his probation and
reinstated his two-year sentence.

/2 The district court’s ruling that Jones qualified
as a career offender made his base offense level
32, which the court reduced by 3 levels for
acceptance of responsibility. Jones’s extensive
criminal history placed him in criminal history
category VI. An offense level of 29 and a
criminal history category of VI require a
sentence of between 151 months and 188 months. If
Jones had not been found to be a career offender
he, in all likelihood, would have been assigned
an offense level of 23, which would have required
a sentence of between 92 months and 115 months.
