United States v. Partee
Opinion of the Court
ORDER
This is the second effort by Michael Partee to obtain relief from his sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Previously, in a nonprecedential order, we affirmed Partee’s conviction but vacated his sentence and remanded the case for resen-tencing. See United States v. Partee, 273 Fed.Appx. 529 (7th Cir. 2008). We also specifically held that Partee’s new sentence needed to reflect, among other things, our determination that his prior conviction in Georgia was a “controlled substance offense” for guidelines calculations. (This, along with other qualifications, made Partee a career offender under U.S.S.G. § 4B1.1.) Since that time, the Supreme Court has decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, — U.S.-, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Partee now argues that those decisions require us to reconsider our earlier determination regarding the Georgia conviction, which the district court dutifully applied on remand.
In the first appeal, we rejected Partee’s argument that, “although he was charged in Georgia with selling cocaine, the sentence he received was necessarily only for possession, which is not a controlled substance offense for guideline calculations.” Partee, 273 Fed.Appx. at 532 (emphasis added). We agreed, however, that it was “somewhat mysterious” that Partee received a sentence of only two years, which was below Georgia’s mandatory minimum of five years for selling cocaine. Because there was no explanation in the record, we found that the district court could “examine the charging papers and the plea colloquy to determine what the offense was.” Id. at 533 (citing United States v. Sperberg, 432 F.3d 706 (7th Cir. 2005)).
On remand, the district judge applied our ruling concerning the Georgia conviction (over defense counsel’s objection) and consequently sentenced Partee as a career offender. The judge ultimately imposed a term of 120 months on the gun count and 262 months on the distribution count, the terms to run concurrently. Partee now appeals, urging us to revisit our determination regarding the Georgia conviction in light of intervening Supreme Court precedent. This is a question of law, which we review de novo. See Moore v. Anderson, 222 F.3d 280, 283 (7th Cir. 2000).
The “law of the case” doctrine would ordinarily prevent us from reconsidering our earlier determination regarding the Georgia conviction. See Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Starcon Int'l Inc. v. Int’l Bhd. of Boilermakers, 450 F.3d 276, 278 (7th Cir. 2006). It is not improper to depart from a prior holding, however, if we are “convinced that it is clearly erroneous and would work a manifest injustice.” Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); see also Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that the court of appeals erred in adhering to the doctrine despite an intervening change in law). Partee argues that his case fits the bill because our previous analysis ran afoul of Begay and Chambers, as well as our interpretation of those opinions in United States v. Woods, 576 F.3d 400 (7th Cir. 2009). Accordingly, we begin by briefly reviewing the relevant decisions.
In Begay, the Court held that New Mexico’s crime of driving under the influence of alcohol is not a “violent felony” within the meaning of the ACCA. In so holding, the Court reiterated that, when determining whether a crime is a violent felony, a categorical approach should be used. This means that judges should “consider the offense generically, that is to say, [they] examine it in terms of how the law defines
In Chambers, the Court held that Illinois’s crime of failure to report for penal confinement is not a “violent felony” within the meaning of the ACCA. Like Begay, Chambers reaffirmed the categorical approach described in Taylor and James. Importantly, the Court also looked to the state court record — that is, to the “charging document, plea agreement, jury instructions, or transcript of plea colloquy” — to determine the precise crime at issue. Chambers, 129 S.Ct. at 691 (citing Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
In Woods, we held that Illinois’s crime of involuntary manslaughter was not a “crime of violence” for purposes of career offender guidelines. Because the categorical approach also applies to the guidelines’ career offender provisions, see United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008), we based our decision there on the Taylor/James line of cases.
Partee concedes that, because the Georgia statute under which he was charged was divisible,
Partee’s real argument (although he tries to get around it to avoid the law of the case doctrine) is that our analysis was correct but our conclusion was wrong. But even if it were proper to reexamine that holding now, our decision would not change. As in the first appeal, the only evidence that Partee points to in support of his position is the length of his Georgia sentence. At oral argument, however, his counsel could not explain why one piece of the state court record should trump all the rest. We fully comprehend that Partee’s sentence was inconsistent with the applicable statute and possibly improper under Georgia law. But this is neither the time nor the place for Partee to collaterally attack his prior conviction.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Although Partee introduced two other issues on appeal, at oral argument, his counsel agreed that disposition of the Georgia conviction issue requires us to either affirm the judgment in full or vacate the sentence and
. The specific holding of Sperberg — that the felony crime of driving while intoxicated (Sperberg had eight DUI convictions) was a “violent felony” within the meaning of the Armed Career Criminal Act (ACCA) — was overruled by Begay. See United States v. Jackson, 549 F.3d 1115, 1117-18 (7th Cir. 2008). We did not, however, cite Sperberg for that point of law.
. Although the issue here specifically concerns whether a prior conviction qualifies as a “controlled substance offense" as opposed a “crime of violence,” neither party has argued that the categorical approach does not apply. Indeed, our sister circuits have expressly held the opposite. See, e.g., United States v. Bryant, 571 F.3d 147, 157 n. 7 (1st Cir. 2009); United States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008).
. Subsection (a) of the Georgia statute prohibited “any person to ... possess ... any controlled substance” whereas subsection (b) prohibited "any person to ... sell ... any controlled substance.” Ga.Code Ann. §16-13-30. For violations of subsection (a), the term of imprisonment could be "not less than two years nor more than 15 years,” whereas for violations of subsection (b), the term could be “not less than five years nor more than 30 years.” Id.
. Of course, Partee, who as we noted the first time around probably "caught a break,” had no incentive to appeal. The same probably cannot be said for the state of Georgia.
Reference
- Full Case Name
- United States v. Michael PARTEE
- Status
- Published