In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3622

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER BISSONETTE,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-CR-92--J.P. Stadtmueller, Chief Judge.

Argued January 18, 2002--Decided February 20, 2002



  Before MANION, ROVNER, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. Christopher
Bissonette argues that under the plain
meaning of sec.4B1.1 of the United States
Sentencing Guidelines, he should not have
been sentenced as a career offender--
which shows the degree to which "plain
meaning" is in the eye of the beholder.

  When a bystander tried to stop a bar
fight Bissonette was involved in,
Bissonette pulled out a knife and stabbed
the man, inflicting a one-inch stab wound
to his abdomen. Because Bissonette is a
Native American and the fight was in
Keshena, Wisconsin, which is in the
Menominee Indian Reservation, he was
charged in federal court. He ultimately
entered a guilty plea to assault with
intent to do bodily harm without just
cause or excuse, in violation of 18
U.S.C. sec.sec. 113(a)(3) and 1153.

  At sentencing, the probation department
and the government agreed that Bissonette
was a career offender; Bissonette, quite
naturally, disagreed. After a
postponement of the sentencing hearing so
that the probation department could seek
advice from the Sentencing Commission as
to its interpretation of certain language
in the United States Sentencing
Guidelines, Bissonette was sentenced, as
a career offender, to 77 months
imprisonment. He appeals his designation
as a career offender.

  The career offender guideline--
sec.4B1.1--sets out three requirements
which must be met before the guideline
comes into play. The qualification
relevant here is the third: "the
defendant has at least two prior felony
convictions of either a crime of violence
or a controlled substance offense." What
qualifies as a felony is subject to
further elucidation, elucidation provided
in the relevant application note, where
we learn that

"Prior felony conviction" means 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.

U.S.S.G. sec.4B1.1, Application Note 1.
Bissonette concedes that he has one prior
felony conviction. But he argues that
neither of his two prior battery
convictions (one in 1990 and one in 1997)
can be considered felonies. The batteries
of which he was convicted were labeled
misdemeanors under Wisconsin law and
carried a maximum sentence of 9 months.
But Bissonette was given an enhanced
sentence under Wisconsin’s habitual
criminality statute, raising the maximum
sentence on each battery to 3 years. See
sec.939.62 Wis. Stat. He was sentenced to
2 years imprisonment for each offense.

  In Bissonette’s eyes, the language in
the application note means that these
batteries are not felony convictions. The
maximum sentence for a battery--without
tacking on the habitual criminality
enhancement--is 9 months. So, he says,
battery is not an "offense punishable by
. . . imprisonment for a term exceeding
one year . . . regardless of the actual
sentence imposed." U.S.S.G. sec.4B1.1,
Application Note 1. He contends that the
sentence for the offense itself without
regard to enhancements is the relevant
consideration. His is a respectable
argument. It is also similar to arguments
previously made in sightly different
contexts in the guidelines. These other
arguments have at times prevailed, but,
unfortunately for Bissonette, the latest
word goes against him.

  To be specific, sec.4B1.1 contains
another phrase which has caused a similar
problem--"Offense Statutory Maximum." The
issue as to that phrase was whether it
means the maximum sentence in the statute
under which a defendant was charged or
that sentence plus any sentencing
enhancements imposed. Some people saw it
as clearly meaning the first; others the
second.

  The phrase itself was the Sentencing
Commission’s attempt to comply with
Congress’ directive in 28 U.S.C.
sec.994(h) to assure that the guidelines
"specify a prison sentence ’at or near
the maximum term authorized for
categories of’ adult offenders who commit
their third felony drug offense or
violent crime." United States v. LaBonte,
520 U.S. 751, 752 (1997). To comply with
that directive, the Sentencing Commission
promulgated the "Career Offender
Guideline" which referred to an "offense
statutory maximum," which it defined
"unhelpfully," using the Court’s word, as
"the maximum term of imprisonment
authorized for the offense of
conviction." No one knew whether the
reference to the "maximum term
authorized" in 28 U.S.C. sec.994(h) and
"the maximum term of imprisonment
authorized for the offense of conviction"
in the guidelines meant the basic
statutory maximum for a particular
offense--the base sentence--or whether
they meant the base sentence plus
relevant statutory enhancements. The
Courts of Appeals who considered the
issue determined that the "offense
statutory maximum" was the base sentence
plus enhancers. See LaBonte, n.2.

  Apparently finding their plain meaning
misinterpreted, the Sentencing Commission
amended the Commentary to guideline
sec.4B1.1 to preclude consideration of
enhancements in calculating the "offense
statutory maximum." U.S.S.G. sec. App. C,
amendment 506 (Nov. 1994). In the
inevitable cases resulting from the
amendment, the Courts of Appeals for the
First and Ninth Circuits found amendment
506 to be a reasonable implementation of
sec. 994’s directive for sentences at or
near the authorized maximum term. The
Courts of Appeals for five other circuits
(ours included) found the amendment "at
odds with the plain language of sec.
994(h)." LaBonte, at 756-57. Putting a
stop to the debate, in LaBonte the Court
concluded that "maximum term authorized"
requires a sentence at or near the
maximum available "once all relevant
statutory sentencing enhancements are
taken into account." At 762. That
particular meaning was plain to six of
the nine Justices.

  Bissonette brushes LaBonte aside by
saying that it applies only to the
statutory maximum for the offense of con
viction, not to the predicate offenses,
and he is concerned only with predicate
offenses. That is true, but we have
already extended the LaBonte approach to
a situation analogous to the one here.

  The guideline pertinent to violations of
probation and supervised release contains
language similar to that which we are
examining--language which by now we must
conclude is hardly plain at all. Section
7B1.1 classifies three grades of
violations with increasingly severe
penalties. The grade of a violation is
determined by the "conduct constituting"
any "federal, state, or local offense
punishable by" various terms of
imprisonment. The question arose as to
whether the "offense punishable" by a
certain term referred to only the base
offense sentence or to the base sentence
plus enhancements. Prior to LaBonte, in
United States v. Lee, 78 F.3d 1236, 1241
(7th Cir. 1996), we concluded that the
conduct a court may consider in
determining the grade of a violation of
supervised release under sec.7B1.1 "does
not include sentence enhancements for
habitual or recidivist offenders." But
with our understanding improved by
LaBonte, we overruled Lee last year and
said that sentence enhancements are to be
included. We pointed out that the Supreme
Court concluded that

the term of punishment to which a person
is exposed on violating a statute
includes all enhancements--for quantity
of drugs, for use of firearms, for
violence during the offense, and for
prior convictions.

United States v. Trotter, 270 F.3d 1150,
1155, 1156 (7th Cir. 2001). We felt
constrained to apply a similar approach
to sec.7B1.1.

  Bissonette’s argument is valiant and not
without appeal. But it’s not enough to
win this appeal. Recent history shows
that the language on which he relies is
capable of more than one interpretation.
But in the face of LaBonte and Trotter,
we cannot impose a different
interpretation to that language in this
context from the meaning similar language
has received in other contexts in the
guidelines. Chief Judge Stadtmueller’s
interpretation of the guideline was
correct, and the sentence he imposed is
AFFIRMED.
