                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-4135
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

ROLAND C. SPERBERG,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 04-CR-0084-S-01—John C. Shabaz, Judge.
                        ____________
 ARGUED NOVEMBER 2, 2005—DECIDED DECEMBER 19, 2005
                    ____________


 Before COFFEY, EASTERBROOK, and WILLIAMS, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Normally the maximum
penalty for possessing a firearm despite a prior felony
conviction is 10 years’ imprisonment. 18 U.S.C. §922(g). But
Roland Sperberg, who pleaded guilty to that offense, has
been sentenced to 210 months because the district judge
concluded that he had been convicted of at least three other
“violent felonies.” The Armed Career Criminal Act, 18
U.S.C. §924(e), exposes such recidivists to life imprisonment
(with a minimum term of 15 years). Sperberg contends that
the jury rather than the judge should have determined
whether he has the requisite number of qualifying felony
convictions, but Almendarez-Torres v. United States, 523
2                                                No. 04-4135

U.S. 224 (1998), scotches that contention. As recently as
United States v. Booker, 125 S. Ct. 738 (2005), the Court
has treated prior convictions as an exception to the rule
that juries determine all facts that affect maximum avail-
able punishments. We must follow Almendarez-Torres
unless the Justices direct otherwise, so we turn to the
meaning of §924(e).
  “Violent felony” is a defined term. It “means any crime
punishable by imprisonment for a term exceeding one
year . . . that—(i) has as an element the use, attempted use,
or threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”. 18
U.S.C. §924(e)(2)(B). Sperberg has a lengthy record, and
many of his convictions may come within this definition.
The district judge specified three in particular, and
Sperberg concedes that one fits the bill. He contends,
however, that the other two do not.
  One of these two is a conviction for threatening a security
guard. Sperberg stole some lobster tails from a grocery
store. While making his escape, he told the guard to get out
of the way because he had a gun. He was convicted of
violating Wis. Stat. §943.30(1). The district court treated
this offense as a “violent felony” under subsection (i)
because §943.30(1) has as an element “the threatened use
of physical force against the person of another”. Sperberg
replies that two kinds of threat violate §943.30(1): a threat
to injure another, and a threat to accuse another falsely of
crime. Moreover, Wisconsin equates physical and economic
injury: a threat to injure the guard in his wallet by trashing
his car would violate the statute. Only by examining the
charging documents could the federal court know which
kind of threat had been entailed, and Sperberg insists that
courts must stop with the statutory definition. (Sperberg
No. 04-4135                                                3

pleaded nolo contendere; as a practical matter, the criminal
information and plea colloquy are the full record.)
  True it is that recidivist enhancements depend on what
the person stands convicted of and not what he did in fact.
See, e.g., United States v. Howze, 343 F.3d 919, 921 (7th
Cir. 2003). Usually this means sticking with the text of
the statute. But when a law specifies multiple ways to
commit an offense—one within the scope of a recidivism
enhancement and the other not—the federal court may
examine the charging papers and plea colloquy to determine
which variety of offense the conviction reflects. See, e.g.,
Shepard v. United States, 125 S. Ct. 1254, 1257 (2005);
Taylor v. United States, 495 U.S. 575, 602 (1990).
  The charge was that Sperberg threatened the guard, and
during the plea colloquy the state judge said that the threat
had been with a gun (the affidavit supporting the criminal
information, and deemed part of the charge under state
practice, says that Sperberg told the guard: “I’ve got a gun
and I’ll shoot you”); Sperberg did not reply that he had
instead threatened to accuse the guard of crime or vandal-
ize his car. The district judge here looked no further than
Shepard and Taylor allow; he did not turn to police reports
or equivalent documents. The state judge let Sperberg off
with a slap on the wrist, apparently thinking that Sperberg
had been too drunk and high on other drugs to follow
through, but this does not alter the nature of the crime.
Sperberg’s conviction under §943.30(1) has been classified
correctly.
  Drunk driving is the second conviction in question—but
not just any drunk driving. Wisconsin treats driving
under the influence as a misdemeanor, but, after a sequence
of convictions have been ineffectual in deterring repetition,
Wisconsin elevates the offense to a felony. Thus Sperberg’s
eighth conviction for driving while intoxicated was a felony
under state law, see Wis. Stat. §346.63(1)(b), §346.65(2)(e),
4                                                No. 04-4135

and because it was punishable by imprisonment for more
than one year met the first requirement of §924(e). But the
state law does not include actual or threatened use of force
as an element; it is possible to operate a vehicle while under
the influence without hitting another car or threatening to
do so. Thus the question becomes whether this offense
satisfies subsection (ii) because it “involves conduct that
presents a serious potential risk of physical injury to
another”. Our decision in United States v. Rutherford, 54
F.3d 370 (7th Cir. 1995), gives an affirmative answer,
holding that drunk driving poses serious risks to other
motorists and pedestrians—which is, after all, why it is
forbidden.
  Although Rutherford dealt with a provision of the Sen-
tencing Guidelines now codified at U.S.S.G. §4B1.2(a)(2), its
language is identical to that of §924(e)(2)(B)(ii). Context as
well as the text is identical; there is no basis for reading
these provisions differently. This leads Sperberg to contend
that Rutherford is wrongly decided and should be discarded.
He relies on Leocal v. Ashcroft, 543 U.S. 1 (2004), which
holds that drunk driving is not a “crime of violence” under
18 U.S.C. §16, even when it is a felony under state law. If
driving while intoxicated isn’t a “crime of violence,” then
how can it be a “violent felony,” Sperberg inquires. The
answer lies in the statutory language. A “crime of violence”
means “(a) an offense that has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, or (b) any other offense
that is a felony and that, by its nature, involves a substan-
tial risk that physical force against the person or property
of another may be used in the course of committing the
offense.” Notice the emphasis: §16 speaks of using force
(as an element of the offense in sub-a or a risk in sub-b),
while §924(e) speaks of conduct that “presents” a serious
risk. The outcome of Leocal turned on the way §16 employed
the word “use.” The Court thought that to “use” force is to
No. 04-4135                                                5

apply it deliberately, which let out the offense of drunk
driving—for although driving is deliberate, the application
of force is not. Section 924(e)(2)(B)(ii), by contrast, asks
about consequences—is someone likely to be hurt?—rather
than whether the offender deliberately applied force.
Rutherford therefore survives Leocal: materially different
language justifies a different interpretation.
  The most one can say for Sperberg’s position is that
Leocal cited with apparent approval United States v. Doe,
960 F.2d 221, 225 (1st Cir. 1992) (Breyer, J.), which stated
that §924(e) as a whole “calls to mind a tradition of crimes
that involve the possibility of more closely related, ac-
tive violence.” Most of the crimes classified as “violent
felonies” under §924(e) indeed fit that description—but
most is not all, and the catch-all in subsection (ii) calls
for risky activity to be classified with more traditional
crimes of violence.
  Other circuits are divided on the question whether, after
Leocal, felony drunk driving is a “violent felony” under
§924(e)(2)(B)(ii). One holds that it is. United States v.
Moore, 420 F.3d 1218, 1224 (10th Cir. 2005). A panel of
the eighth circuit has gone the other way. See United States
v. Walker, 393 F.3d 819, 828 (8th Cir. 2005). But disagree-
ment within that court has led to rehearing in United States
v. McCall, 397 F.3d 1028 (8th Cir.), rehearing en banc
granted, 2005 U.S. App. LEXIS 7043 (argued Sept. 12, 2005),
where a divided panel followed Walker but doubted its
correctness. If we were to switch sides, it would more likely
aggravate than eliminate a conflict. Rutherford shall
remain this circuit’s position.
                                                  AFFIRMED
6                                         No. 04-4135

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—12-19-05
