                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1033

U NITED STATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

V INCENT C ORNER,
                                            Defendant-Appellant.


            Appeal from the United States District Court
                for the Western District of Wisconsin.
       No. 3:07-cr-00104-bbc-1—Barbara B. Crabb, Chief Judge.


  A RGUED S EPTEMBER 12, 2008—D ECIDED D ECEMBER 17, 2009



  Before R IPPLE, R OVNER and E VANS, Circuit Judges.
  R IPPLE, Circuit Judge. On October 2, 2007, Vincent
Corner pleaded guilty to possessing with intent to distrib-
ute five grams or more of cocaine base. The district court
sentenced him to 188 months’ imprisonment. Mr. Corner
now challenges the district court’s decision to classify
him as a career offender under section 4B1.1 of the
United States Sentencing Guidelines and maintains that
his sentence is unreasonable in light of Kimbrough v.
United States, 552 U.S. 85 (2007). For the reasons set forth
in this opinion, we affirm the judgment of the district
court.
2                                              No. 08-1033

                             I
                    BACKGROUND
  On May 31, 2007, the Madison, Wisconsin Police De-
partment and the Dane County Narcotics and Gang Task
Force conducted surveillance at a Red Roof Inn in Madi-
son. The police had information that Mr. Corner and his
girlfriend, who were wanted for state probation viola-
tions, were staying at the motel. When Mr. Corner and a
woman left the motel in a car, the police stopped their
vehicle. The police arrested Mr. Corner, searched
him and found over $2,600 in cash and a bag containing
11.31 grams of cocaine base.
  A grand jury in the Western District of Wisconsin issued
a one-count indictment on June 27, 2007, charging
Mr. Corner with possessing with intent to distribute
five grams or more of cocaine base. Mr. Corner pleaded
guilty on October 2, 2008. The United States Probation
Office filed a presentence investigation report, which
recommended that Mr. Corner be sentenced as a career
offender and calculated Mr. Corner’s total offense level
to be 31 and his advisory guidelines range to be 188 to
235 months’ imprisonment.
  At the sentencing hearing, the district court calculated
Mr. Corner’s base offense level at 24 because the
offense involved more than five grams, but less than
twenty grams, of cocaine base. See U.S.S.G. § 2D1.1(c)(8).1
The district court found, however, that, based on his



1
 Mr. Corner was sentenced under the November 2007
United States Sentencing Commission Guidelines Manual.
No. 08-1033                                                      3

prior convictions for maintaining a drug trafficking
place and for criminal trespass to a dwelling, Mr. Corner
was a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2.2
Consequently, he received a criminal history category of
VI and an adjusted offense level of 34.3 The court
decreased his offense level by three points for his accep-
tance of responsibility, which yielded a total offense
level of 31. The district court sentenced Mr. Corner to
188 months’ imprisonment, which was at the bottom of
the Guidelines range.
  During the hearing, Mr. Corner invited the district
court’s attention to Kimbrough, which had been decided
two weeks earlier; he noted the disparity between the
Guidelines’ treatment of crack and powder cocaine of-
fenses. Mr. Corner submitted that, in light of this
disparity, he should receive a lower sentence. The
district court, however, did not address this argument.
Mr. Corner subsequently filed this appeal.




2
  To be convicted as a career offender, the defendant must
have at least two prior felony convictions for either a crime of
violence or a controlled substance offense. U.S.S.G. § 4B1.1.
3
  Under U.S.S.G. § 4B1.1(b), a career offender’s offense level is
calculated based on the statutory maximum that the offense
carries. The court then employs this offense level if it is greater
than the offense level otherwise applicable. In this case,
Mr. Corner’s possession of 11.31 grams of crack cocaine
carried a maximum sentence of forty years under 21 U.S.C.
§ 841(b)(1)(B)(iii), yielding a career offender offense level of
34 under section 4B1.1(b)(B).
4                                                   No. 08-1033

                                II
                        DISCUSSION
  Mr. Corner challenges his classification as a career
offender and the length of his sentence based on the
crack/powder disparity addressed in Kimbrough. We
review de novo whether the district court erred in sen-
tencing Mr. Corner as a career offender. See United States
v. Kindle, 453 F.3d 438, 440 (7th Cir. 2006). We also
review de novo whether an offense constitutes a “crime
of violence” for sentencing purposes. Id.


                               A.
  Mr. Corner maintains that the district court erred in
classifying him as a career offender because criminal
trespass to a dwelling is not a “crime of violence”
under the residual clause of U.S.S.G. § 4B1.2(a)(2). The
Wisconsin “criminal trespass to a dwelling” statute
provides: “Whoever intentionally enters the dwelling of
another without the consent of some person lawfully
upon the premises, under circumstances tending to
create or provoke a breach of the peace, is guilty of a
Class A misdemeanor.” Wis. Stat. § 943.14.4 Mr. Corner



4
   Mr. Corner conceded before the district court that the convic-
tion qualified as a felony for purposes of § 4B1.1(a). The convic-
tion triggered a repeat offender enhancement under Wis. Stat.
§ 939.62(1)(a), producing a sentence of three years’ imprison-
ment. In United States v. Bissonette, we held that a prior con-
viction that triggered the Wis. Stat. § 939.62(1)(a) recidivist
                                                    (continued...)
No. 08-1033                                                        5

maintains that, although a breach of the peace can
occur from conduct that puts the victim “in fear of bodily
harm,” it also can result from any conduct that merely
disturbs or disrupts “the peace and sanctity of the
home.” Reply Br. 6-7; see also State v. Sykes, 695 N.W.2d
277, 283 (Wis. 2005). For example, Mr. Corner notes that
a breach of the peace could “consist of profane and
abusive language.” Appellant’s Br. 12 (quoting Wisconsin
Jury Instructions—Criminal, Vol. II § 1437 (2002)). He
contends that, because criminal trespass encompasses
such a broad range of conduct, it cannot present gen-
erally a serious potential risk of physical injury to an-
other. Mr. Corner contrasts criminal trespass with
burglary and emphasizes that the motive for entering
a dwelling when trespassing is not to steal or to commit
a felony. Compare Wis. Stat. § 943.14 (criminal trespass to
dwellings), with Wis. Stat. § 943.10 (burglary). Finally,
Mr. Corner notes that two other courts of appeals have
determined, in unpublished dispositions, that criminal
trespass is not a crime of violence.5


4
   (...continued)
enhancement and produced a sentence of imprisonment
greater than one year qualified as “a felony” under § 4B1.1(a).
281 F.3d 645, 647 (7th Cir. 2002); see also United States v. Clanton,
538 F.3d 652, 657-58 (7th Cir. 2008) (citing Bissonette). Accord-
ingly, because Mr. Corner’s criminal trespass to a dwelling
conviction carried a three years’ imprisonment sentence
under Wis. Stat. § 939.62(1)(a), we shall treat the conviction as
a felony.
5
    Mr. Corner relies upon United States v. Ortuno-Caballero, 187
                                                   (continued...)
6                                                   No. 08-1033

  We take a categorical approach to determining whether
an offense is a crime of violence and therefore may not
inquire into the conduct of a particular offender. Chambers
v. United States, 129 S. Ct. 687, 690 (2009). The relevant
portion of the Sentencing Guidelines states:
    The term “crime of violence” means any offense
    under federal or state law, punishable by imprison-
    ment for a term exceeding one year, that—
    ...
    (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.


5
  (...continued)
F. App’x 814 (10th Cir. 2006), and United States v. Calloway, 189
F. App’x 486 (6th Cir. 2006). Both of these cases are different
from the one before us. In Ortuno-Caballero, the court inter-
preted U.S.S.G. § 2L1.2(b)(1)(A); the residual clause in that
provision defines “crime of violence” more narrowly than a
mere potential risk of physical injury. See Ortuno-Caballero, 187
F. App’x at 817 (quoting U.S.S.G. § 2L1.2, cmt. n.1(B)(iii)). In
Calloway, the court took issue with the fact that the Ohio
trespass statute at issue was not limited to dwellings, as is
U.S.S.G. § 4B1.2(a)(2), but also included trespass to commercial
buildings. Calloway, 189 F. App’x at 489. Calloway is inapposite
because the statute at issue in this case is limited to trespass
to dwellings. More recently, in United States v. Skipper, 552
F.3d 489 (6th Cir. 2009), the Sixth Circuit, addressing a more
recent version of the statute that applies to the “permanent or
temporary habitation of any person,” id. at 492, determined
that the requirements of U.S.S.G. § 4B1.2(a)(2) were met.
No. 08-1033                                                     7

U.S.S.G. § 4B1.2(a). Because criminal trespass to a
dwelling is not one of the offenses listed in the provision,
we must determine whether commission of the crime
“presents a serious potential risk of physical injury to
another.” Id. In determining whether such a risk exists,
we shall give significant weight to reliable empirical data.
See United States v. Templeton, 543 F.3d 378, 381 (7th Cir.
2008) (“But when a statute inquires into risk, data
trump judicial guesses.”). Although the record does
not contain data regarding the likelihood of violence ac-
companying the commission of criminal trespass to a
dwelling, we previously have held that the similar crime
of residential entry, under Indiana state law, “is a crime
of violence because of the serious risk that an occupant
could be injured.” United States v. Gardner, 397 F.3d
1021, 1024 (7th Cir. 2005). Recently, in light of the
Supreme Court’s holding in Begay v. United States, 128 S.
Ct. 1581, 1586 (2008), we reaffirmed Gardner’s holding.
See United States v. Hampton, 585 F.3d 1033, 1042-44 (7th
Cir. 2009).6 We observed in Gardner that entering a resi-
dence without permission, as in the case of burglary,
could lead to an encounter with an occupant, and thereby



6
  See also United States v. Venegas-Ornelas, 348 F.3d 1273, 1278
(10th Cir. 2003) (holding that the defendant’s prior residential
trespass conviction was a “crime of violence” under 18 U.S.C.
§ 16(b) because, although residential trespass does not
require specific intent, “there is still a substantial risk that a
defendant will need to use force against people or property to
either gain entry or remain in a dwelling unlawfully”); United
States v. Delgado-Enriquez, 188 F.3d 592, 595 (5th Cir. 1999)
(same).
8                                                No. 08-1033

could create a serious potential risk of injury. Gardner, 397
F.3d at 1024. The same is true for an offender engaging
in criminal trespass to a dwelling.
  The fact that a crime creates a serious potential risk of
injury, however, is not enough to make it a crime of
violence. In Begay, 128 S. Ct. at 1586, the Supreme Court
considered whether drunk driving is a violent felony
under section 924(e)(2)(B)(ii) of the Armed Career
Criminal Act (“ACCA”).7 Although the Court acknowl-
edged that drunk driving presents a serious potential risk
of physical injury, the Court nevertheless concluded that
the offense does not fall under that provision. Id. at 1588.
The Court held that the residual clause applies only if a
crime is similar to the listed offenses. Id. at 1584-85. Bur-
glary, arson, extortion and the use of explosives, said the
Court, are all “purposeful, ‘violent,’ and ‘aggressive’
conduct,” whereas drunk driving is not. Id. at 1586. It
observed that, unlike the crimes listed in the statute,
driving under the influence “need not be purposeful or
deliberate.” Id. at 1587.
  Unlike drunk driving, which is significantly different
from the crimes listed in the provision, criminal trespass
to a dwelling is similar to burglary. Both are purposeful
property offenses that involve the deliberate entry into



7
   Because section 924(e) of the ACCA contains language
identical to that found in U.S.S.G. § 4B1.2, we interpret the
two provisions to have the same meaning. See United States
v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008). Thus, Supreme
Court precedent that interprets section 924(e) of the ACCA
is relevant to our analysis.
No. 08-1033                                                  9

a dwelling without the permission of the owner.8 Both
offenses are also violent and aggressive in nature because
the perpetrator could encounter the occupants of the
dwelling and provoke a confrontation. See Chambers, 129
S. Ct. at 691-92. The fact that the latter offense does not
include an intent to steal or to commit a felony does not
lessen the risk of such an encounter. Consequently, we
hold that criminal trespass to a dwelling is a crime of
violence and conclude that Mr. Corner was sentenced
properly as a career offender.


                              B.
  We now turn to whether this case should be remanded
for resentencing. In Kimbrough, the Supreme Court ac-
knowledged that section 2D1.1 of the Sentencing Guide-
lines contained a disparity between the sentences of
persons charged with trafficking powder cocaine and of
those charged with trafficking crack cocaine, creating
a 100:1 crack/powder ratio in sentencing. The Court
observed that this disparity can produce disproportion-
ately harsh sanctions for crack cocaine offenders and
held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sen-


8
  Under Wisconsin Statute Section 943.10, a person who
intentionally enters any building or dwelling “without the
consent of the person in lawful possession and with intent to
steal or commit a felony” is guilty of Class F felony burglary.
Thus, the distinguishing factor between burglary and
criminal trespass is intent to steal or commit a felony.
10                                              No. 08-1033

tence ‘greater than necessary’ to achieve [18 U.S.C.]
§ 3553(a)’s purposes, even in a mine-run case.”
Kimbrough, 552 U.S. at 110. Consequently, we remand for
resentencing those cases in which the defendant was
sentenced under section 2D1.1 and in which the issue
of the crack/powder disparity has been preserved. United
States v. Bruce, 550 F.3d 668, 675 (7th Cir. 2008) (citing
United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008)).
  Mr. Corner and the Government both submit that,
although the district court had the discretion under
Kimbrough to impose a below-guidelines sentence based
upon a policy disagreement with the career offender
Sentencing Guidelines, it may not have realized that it
had such discretion. Both parties observe that the
statutory maximum for possession with intent to
distribute five to fifty grams of crack cocaine is forty
years’ imprisonment, see 21 U.S.C. § 841(b)(1)(B)(iii),
resulting in a career offender offense level of 34, see
U.S.S.G. § 4B1.1(b)(B).9 In contrast, had Mr. Corner pos-
sessed an equivalent amount of powder cocaine, the
statutory maximum would have been twenty years’
imprisonment, see 21 U.S.C. § 841(b)(1)(C), resulting in a
career offender offense level of only 32, see U.S.S.G.
§ 4B1.1(b)(C). Consequently, given that Mr. Corner has
been assigned a criminal history category of VI
and received a three-level decrease for acceptance of
responsibility, his guidelines range would have been 151-



9
   The Government withdrew the contention by a letter sub-
mitted under Rule 28(j) after our decision in United States
v. Welton, 583 F.3d 494, 497 (7th Cir. 2009).
No. 08-1033                                              11

188 months’ imprisonment for powder cocaine, as
opposed to 188-235 months’ imprisonment for crack
cocaine.
  The Supreme Court has not addressed whether
Kimbrough applies to crack offenders sentenced as
career offenders under U.S.S.G. § 4B1.1(b). Although the
Government makes a powerful argument to the contrary,
we are constrained by the decision of this court in United
States v. Welton, 583 F.3d 494, 497 (7th Cir. 2009). In that
case, this court held that defendants who are sentenced
as career offenders are not entitled to a sentencing re-
mand. Rather, career offenders’ base offense levels
track the statutory maximums of their convictions. While
we cannot give relief to Mr. Corner under these circum-
stances, the Government is, of course, free to seek
further redress from what it believes to be an injustice
by recommending an appropriate commutation of the
sentence by the Executive Branch.


                       Conclusion
 For the foregoing reasons, we must affirm the judg-
ment of the district court.
                                                 A FFIRMED




                          12-17-09
