# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 14, 2011

Decided August 10, 2011

Before

RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 09

‐ 3678

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

JUAN CARLOS GARCIA

‐ VASQUEZ,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 09 CR 243

‐ 1

William J. Hibbler,

Judge

.

O R D E R

Juan Carlos Garcia

‐ Vasquez, who had been removed from the United States

previously, pleaded guilty to being in the country again without authorization. The district

court sentenced him to 36 months in prison. Garcia

‐ Vasquez argues on appeal that the court

mistakenly concluded that his prior Illinois conviction for unlawful restraint was an

aggravated felony under the Sentencing Guidelines, resulting in an incorrect guidelines

range. We affirm.

Garcia

‐ Vasquez, a Mexican citizen, was removed from the United States at least once

in the late 1990s, again in February 2007, and yet again in November 2007 before police in

Will County, Illinois, took him into custody in March 2009. Garcia

‐ Vasquez admitted to NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 3678 Page 2

Immigration and Customs Enforcement officials that he had returned to the United States

without applying for readmission. He pleaded guilty to one count of illegal re

‐ entry. See 8

U.S.C. § 1326(a).

This appeal centers on the classification of Garcia

‐ Vasquez’s Illinois felony

conviction in 1997 for unlawful restraint, 720 ILCS 5/10

‐ 3, after he forcibly prevented a

woman from leaving his car. The woman entered the car to talk to Garcia

‐ Vasquez, who

had been causing a disturbance in front of her home. Garcia

‐ Vasquez then began to drive

away, and as the woman tried to get out of the car, he grabbed her hand to keep her from

escaping. At sentencing, both parties disagreed with the probation officer’s characterization

of the offense as a “crime of violence” triggering a 16

‐ level increase in his offense level. See

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because the Illinois unlawful restraint statute does not have, as

an element, “the use, attempted use, or threatened use of physical force” against another

person, see id

. § 2L1.2 cmt. n.1(B)(iii); United States v. Wallace

, 326 F.3d 881, 886 (7th Cir.

2003), the government conceded that Garcia

‐ Vasquez’s offense was not a crime of violence

under the guideline and that the 16

‐ level increase did not apply. But the government argued

that unlawful restraint was an aggravated felony warranting an 8

‐ level increase, see U.S.S.G.

§ 2L1.2(b)(1)(C), while Garcia

‐ Vasquez argued that the offense fell into the category of “any

other felony,” meriting only a 4

‐ level increase, see id

. § 2L1.2(b)(1)(D). The district court

sided with the government’s characterization of the offense as an aggravated felony because

it involved “a substantial risk of the use of force.” Based on a total offense level of 13 and

Garcia

‐ Vasquez’s category

‐ VI criminal history, the court calculated a guidelines range of 33

to 41 months’ imprisonment and sentenced him to 36 months.

Garcia

‐ Vasquez maintains on appeal that unlawful restraint fits in the category of

“any other felony,” see U.S.S.G. § 2L1.2(b)(1)(D), and contends that his total offense level

should be 10 rather than 13—the result of a base offense level of 8, a 4

‐ level increase for his

unlawful

‐ restraint conviction, and a 2

‐ level reduction for acceptance of responsibility, see id

. §§ 2L1.2(a), 3E1.1(a). These figures, in his view, dictate a guidelines range of 24 to 30

months.

Under Illinois law, “A person commits the offense of unlawful restraint when he or

she knowingly without legal authority detains another.” 720 ILCS 5/10

‐ 3(a). Determining

whether a prior conviction for unlawful restraint is an “aggravated felony” requires a

journey through a few sentencing provisions. The sentencing guidelines for illegal re

‐ entry

define “aggravated felony” by reference to 8 U.S.C. § 1101(a)(43), which in turn lists several

types of offenses that fall within the meaning of “aggravated felony,” including—as is

relevant here—a “crime of violence” as defined by 18 U.S.C. § 16 “for which the term of

imprisonment [is] at least one year.” See 8 U.S.C. § 1101(a)(43)(F); U.S.S.G. § 2L1.2 cmt.

n.3(A). Section 16, in turn, defines a crime of violence as:No. 09

‐ 3678 Page 3

(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

substantial risk that physical force against the person or property of another

may be used in the course of committing the offense.

18 U.S.C. § 16. Section 16(a) does not apply here because physical force is not an element of

unlawful restraint. See 720 ILCS 5/10

‐ 3(a); People v. Lissade

, 935 N.E.2d 1041, 1044 (Ill. App.

Ct. 2010) ; People v. Bowen

, 609 N.E.2d 346, 361 (Ill. App. Ct. 1993). The issue, then, is whether

unlawful restraint is a crime of violence under § 16(b) and, therefore, an aggravated felony

under § 2L1.2(b)(1)©.

Section 16(b) covers violent, active crime that typically presents a substantial risk

that force will be used against another person during its commission. See Leocal v. Ashcroft

,

543 U.S. 1, 10

‐ 11 (2004). It is not coextensive with the “residual clause” of 18 U.S.C.

§ 924(e)(2)(B)(ii), which also defines violent felonies and covers “conduct that presents a

serious potential risk of physical injury to another.” The residual clause addresses the risk of

injury, while § 16(b) focuses on the use of force and does not encompass all offenses that

create a substantial risk of injury. See Leocal 543 U.S. at 10

‐ 11; Jimenez

‐ Gonzalez v. Mukasey

,

548 F.3d 557, 562 (7th Cir. 2008). But the statutes’ resemblance allows analysis of an offense

under one of them to serve as persuasive authority for analysis of the offense under the

other. See Jimenez

‐ Gonzalez

, 548 F.3d at 562 (observing that § 16(b) and residual clause

contained similar language, and that Supreme Court applied similar logic in Leocal (a §16(b)

case) and Begay v. United States

, 553 U.S. 137 (2008) (a residual clause case)); United States v.

Brown

, 629 F.3d 290, 296 n.4 (2d Cir. 2011) (whether offense was crime of violence under

§ 16(b) was instructive in deciding whether offense was violent felony under residual

clause); United States v. Daye

, 571 F.3d 225, 232

‐ 34 (2d Cir. 2009) (same); Ramirez v. Mukasey

,

520 F.3d 47, 50 (1st Cir. 2008) (same).

We have not squarely addressed whether an Illinois unlawful

‐ restraint conviction is

a crime of violence under 18 U.S.C. § 16(b), but our decisions in United States v. Wallace

, 326

F.3d 881 (7th Cir. 2003), United States v. Franco

‐ Fernandez

, 511 F.3d 768 (7th Cir. 2008), and

United States v. Capler

, 636 F.3d 321 (7th Cir. 2011), suggest convincingly that it is. All three

decisions focus on the risk of force. Wallace held that an Illinois unlawful

‐ restraint offense is

a violent felony under the residual clause because of the serious risk of injury from the use

of force during the initial restraint or an attempted escape. 326 F.3d at 886

‐ 87. Franco

‐

Fernandez drew from Wallace and reasoned in dicta—by way of distinguishing unlawful

restraint from child abduction—that unlawful restraint requires detaining a person againstNo. 09

‐ 3678 Page 4

his will and thus involves a substantial risk of force, either during restraint or escape. 511

F.3d at 772. And we recently reaffirmed Wallace in Capler

, 636 F.3d at 322.

Garcia

‐ Vasquez offers no reason to distinguish between § 16(b) and the residual

clause when analyzing his unlawful restraint conviction. In fact, he frames his argument in

terms of the residual clause, contending that Wallace and United States v. Billups

, 536 F.3d

574 (7th Cir. 2008)—which cited Wallace in holding that Wisconsin’s crime of false

imprisonment was a crime of violence—are no longer good law in light of the Supreme

Court’s decisions in Begay and Chambers v. United States

, 129 S. Ct. 687 (2009). Garcia

‐ Vasquez contends that unlawful restraint cannot be classified as a crime of violence merely

because it presents a serious risk of physical injury. He argues that under Begay

, 553 U.S. at

142

‐ 45, and Chambers

, 129 S. Ct. at 691

‐ 92, a court must also conclude that unlawful restraint

is similar in kind (i.e., purposeful, violent, and aggressive) to burglary, arson, extortion, and

crimes involving the use of explosives—the offenses enumerated before the residual clause.

Garcia

‐ Vasquez apparently believes that Wallace and Billups are flawed because we did not

perform a similar

‐ in

‐ kind analysis in those cases.

But Capler forecloses Garcia

‐ Vasquez’s argument by explicitly reaffirming Wallace

and rejecting the argument that Wallace is a dead letter in light of Begay

. See Capler

, 636 F.3d

at 322. Capler explains that Wallace anticipated Begay and “strongly implie[d]” that unlawful

restraint was categorically similar to the enumerated crimes that precede the residual

clause. Capler

, 636 F.3d at 324. Moreover, in Sykes v. United States

, 131 S. Ct. 2267 (2011), the

Supreme Court recently rejected the idea that courts must conclude that an offense is

purposeful, violent, and aggressive for it to fall within the scope of the residual clause. Such

a requirement, the Court said, “overreads the opinions of this Court.” Sykes

, 131 S. Ct. at

2275. The “purposeful, violent, and aggressive” language was used only to explain the

result in Begay

, which involved a crime—driving under the influence—that the Court

analogized to strict

‐ liability, negligence and recklessness offenses. Id. at 2275

‐ 76. Unlawful

restraint, which requires “knowingly” detaining a person, 720 ILCS 5/10

‐ 3(a), is not such a

crime, so the only relevant question is how much risk it presents. See id. at 2273, 2275

‐ 76. In

light of Wallace and Capler

, it is a crime of violence under the residual clause, and, as noted,

Garcia

‐ Vasquez offers no reason to conclude that it is not also a crime of violence under 18

U.S.C. § 16(b).

Garcia

‐ Vasquez raises one other sentencing issue regarding what he views as the

district court’s erroneous reliance on unsubstantiated hearsay in the presentence report.

When he was arrested and charged with unlawful restraint, he was also charged with

criminal sexual assault and possession of cocaine, but both of those counts were dropped.

The district court struck language in the presentence report describing the alleged sexual

assault, but Garcia

‐ Vasquez objects to language not struck which states that he forcibly heldNo. 09

‐ 3678 Page 5

his victim’s hand to keep her inside the vehicle, in spite of her pleas to be allowed to leave.

However, nothing in the record suggests that the district court rested its conclusion upon

the language that Garcia

‐ Vasquez cites, or upon any of the stricken language. The court did

not refer at all to the description of the offense in the presentence report.

We AFFIRM the judgment of the district court.