In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1695

CARNELL BROWN,

Petitioner-Appellant,

v.

RICARDO RIOS, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 1:10-cv-01374-MMM—Michael M. Mihm, Judge.

ARGUED JULY 11, 2012—DECIDED AUGUST 20, 2012

Before POSNER, MANION, and TINDER, Circuit Judges.

POSNER, Circuit Judge. The principal although not only

issue presented by this appeal is the often vexing question of whether a conviction used to enhance a defendant’s sentence under the Armed Career Criminal

Act is a “violent felony” within the meaning of the Act.

18 U.S.C. § 924(e). The Act defines the term to mean

either a felony that “has as an element the use, attempted

use, or threatened use of physical force against the person
2 No. 11-1695

of another” or “is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another.”

§§ 924(e)(2)(B)(i), (ii). It is the catchall phrase, which

we have italicized, that presents problems of application.

Carnell Brown was convicted in 2000 of being a felon

in possession of a gun, § 922(g)(1), an offense for which

the maximum sentence is normally 10 years in prison.

§ 924(a)(2). The government urged that he be sentenced

to a minimum of 15 years on the ground that he had

three previous convictions for a violent felony or a

felony drug offense, and if this was right then the

Armed Career Criminal Act indeed required a sentence

at least that long. § 924(e)(1). We held that it was right,

United States v. Brown, 273 F.3d 747 (7th Cir. 2001), and

on remand Brown was sentenced to 264 months in

prison, and did not appeal.

In 2010, following an unsuccessful collateral attack on

his sentence under 28 U.S.C. § 2255 (the federal prisoner’s

substitute for habeas corpus), he mounted a new collateral attack under the federal habeas corpus statute, 28

U.S.C. § 2241, in reliance on the Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008). There

the Court had held that driving under the influence

is not within the catchall provision of the Armed

Career Criminal Act because a crime within the catchall

“typically involve[s] purposeful, ‘violent’, and ‘aggressive’

conduct.” Id. at 144-45. The district court in this case,

seconded by the government, held that section 2241 was a

proper vehicle for Brown’s attack on his sentence, but
No. 11-1695 3

went on to hold that he indeed had been convicted of

three violent felonies or serious drug offenses, and so

his sentence stood, and he has appealed.

The government has conceded that Brown can use the

habeas corpus statute to challenge the legality of his

sentence. Normally a federal prisoner is confined to

his remedy under 28 U.S.C. § 2255, but he may petition

under section 2241 instead if his section 2255 remedy

is “inadequate or ineffective to test the legality of his

detention.” § 2255(e). In re Davenport, 147 F.3d 605, 610-12

(7th Cir. 1998), set forth three conditions for this exception to apply. Two clearly are satisfied in this case.

First, Begay was not a constitutional case, but a statutoryinterpretation case, so Brown could not have invoked it

by means of a second or successive section 2255 motion.

28 U.S.C. § 2255(h)(2); United States v. Wyatt, 672 F.3d

519, 522 (7th Cir. 2012). Second, although he could not

have invoked it in his first section 2255 motion

either, because Begay hadn’t been decided, compare

In re Davenport, supra, 147 F.3d at 609, Begay is applicable

retroactively, id. at 610; Welch v. United States, 604 F.3d

408, 415 (7th Cir. 2010), and therefore he could invoke it

by a later motion, provided (because of the bar in

section 2255(h)(2) to second or successive section 2255

motions) that the later motion wasn’t a section 2255

motion. It wasn’t; it was a section 2241 motion.

The third condition is that Brown’s sentence enhancement under the Armed Career Criminal Act, because

based on a conviction for a crime of which he was

innocent, have been a grave enough error to be deemed
4 No. 11-1695

a miscarriage of justice corrigible therefore in a habeas

corpus proceeding. Narvaez v. United States, 674 F.3d 621,

623 (7th Cir. 2011), held that such an error “was

indeed a miscarriage of justice,” even though in that

case it was a violation merely of the career-offender

sentencing guidelines, rather than a statutory violation.

Narvaez was a case in which the guidelines had been

mandatory when the defendant was sentenced; we left

open in United States v. Wyatt, supra, 672 F.3d at 523-24,

whether the result might be different now that they

are merely advisory. We needn’t try to resolve the

issue in this case.

Davenport, unlike Narvaez, had been a case in which

a defendant (Nichols, Davenport’s codefendant) had

been innocent of the crime of which he had been convicted (use of a firearm in connection with a drug offense), whereas the present case, like Narvaez, involves

a sentencing error. A number of cases, before and after

and contrary to Narvaez, specify “actual innocence” of

the crime of which the defendant was convicted as one of

the conditions for allowing a challenge under the

habeas corpus statute. See, e.g., Unthank v. Jett, 549 F.3d

534, 536 (7th Cir. 2008); In re Bradford, 660 F.3d 226, 230

(5th Cir. 2011) (per curiam); Kinder v. Purdy, 222 F.3d 209,

213-14 (5th Cir. 2000) (per curiam). We didn’t use the

term in Davenport, although it was, as we said, an “actual

innocence” case.

But these cases involved, like Narvaez, violations of

the sentencing guidelines rather than of the Armed

Career Criminal Act. A sentence that violates a statute, as
No. 11-1695 5

distinct from a sentence permitted by a statute though

more severe than authorized by the guidelines, could

well be thought an error grave enough to warrant relief

in a habeas corpus proceeding—a “fundamental error

equivalent to actual innocence,” Taylor v. Gilkey, 314

F.3d 832, 836 (7th Cir. 2002)—whereas now that the

guidelines are merely advisory, a sentencing judge,

while still required to calculate the guidelines sentence,

is free to give a heavier (or for that matter a lighter)

sentence.

But we needn’t pursue the issue whether or what sentencing errors can be corrected in a habeas corpus proceeding further in this case, in view of the government’s

concession.

And so we come to the merits, where the principal

issue is whether the felony of which Brown was

convicted in an Illinois court in 1983—namely “compel[ling] a person to become a prostitute,” Ill. Rev. Stat.

1983, ch. 38, § 11-16(a)(1)—is a violent felony within

the meaning of the Armed Career Criminal Act. Our

2001 decision in the direct appeal from Brown’s sentence describes the offense as “a situation where one

person, for money, compels another to submit to

nonconsensual sex with a third person. That situation,

unlike many cases of statutory rape . . ., necessarily involves unconsented-to activity that is, by itself, a type

of physical injury.” 273 F.3d at 751. In other words,

paying a person to engage in sex is an injury to that

person. This formula cannot be squared with the definition of a violent felony in the Begay case, decided after

our first Brown decision.
6 No. 11-1695

Later (that is, after the Begay decision), it is true, the

Court, commenting on driving under the influence—the

crime held in Begay not to be a violent felony—said that

a crime “akin to strict liability, negligence, and recklessness crimes” is not a violent felony. Sykes v. United

States, 131 S. Ct. 2267, 2276 (2011). But this can’t be read

to mean that every intentional crime is a violent felony

(tax evasion? price fixing?); that would make no sense,

and the Court immediately added that a violent felony

in the catchall category is one that is “similar in risk to

the listed crimes,” id., which means crimes such as burglary and arson. Nor does Sykes back away from the

Court’s holding in Chambers v. United States, 555 U.S. 122

(2009), that failing to report to prison when ordered,

though it is an intentional felony, is not a violent one,

because the risk of violence in efforts to apprehend such

no-shows has not been shown to be significant.

Neither has it been shown that compelling a person,

within the meaning of the Illinois statute, to become a

prostitute necessarily creates a risk of violence to her.

There would be a risk—more than a risk, an actuality—of

violence if the compulsion required to convict of the

crime were physical coercion, as in our recent case of

United States v. Cephus, 684 F.3d 703 (7th Cir. 2012), where

defendants had beaten and whipped women to force

them to engage in interstate prostitution in violation

of federal law. But as far as we have been able to

learn, all that the Illinois felony of compelling prostitution requires be shown, and all that the typical case

involves, is inducing women (perhaps men also) to

engage in prostitution by promising them money or
No. 11-1695 7

other things of value, such as mind-altering drugs,

for doing so.

As of 1961, Illinois defined as “pandering” the conduct of

anyone who “for money” either “compels a female to

become a prostitute” or “arranges or offers to arrange

a situation in which a female may practice prostitution.”

The first offense, “pandering by compulsion,” carried a

sentence of 1 to 10 years; the second, “pandering other

than by compulsion” (that is, “pandering by arranging”),

a sentence only of 0 to 5 years. 720 ILCS 11-16(1)(b). In

1977 the statute was amended, and it was that amended

version under which Brown was convicted. (The statute

now appears, with an irrelevant further amendment, at

720 ILCS 5/11-14.3.) The only material change between

the 1961 and 1977 versions was the punishment. No

longer was compulsion punished more heavily than

arranging. Both were now to be punished as Class 4

felonies, which prescribe a sentencing range of 1 to

3 years. Ill. Rev. Stat. 1973, ch. 38, § 1005-8-1(b)(5).

Thus the punishment for compulsion was reduced to the

punishment for arranging.

The fact that it probably is easier to prove arrangement than compulsion may explain why we can’t find

any cases other than Brown’s in which anyone has been

convicted of compulsion since the 1977 amendment.

Even more surprising, we can’t find any earlier such

convictions either. All we have is a tiny shard of legislative history—a 1961 comment by a Joint Committee

that had been formed by the Governor and Supreme

Court of Illinois in conjunction with the Illinois and
8 No. 11-1695

Chicago Bar Associations to draft a new criminal code

for Illinois. The comment states that the crime of compelling prostitution “deals with the use of some kind of

coercion to place the woman in the trade or to keep

her there,” but that “this description accords more with

the historical view of pandering,” and that “while at

the turn of the century the coercion when employed

probably arose from financial destitution, today coercion

probably arises more frequently from drug addiction.”

720 ILCS 5/11-16, Committee Comments—1961, at 466

(Smith-Hurd 2002). The implication is that the “compulsion” is of the “here’s an offer you can’t resist” character.

Indeed that may be the only compulsion that the

statute reaches, because of the statute’s limited sentencing range. If a panderer uses physical coercion, as in

the Cephus case, he is committing a more serious crime

than one punishable by a maximum sentence of three

years in prison, and will doubtless be charged accordingly. This may be another reason why we can’t find

prosecutions for compelling prostitution other than the

prosecution of Brown.

Maybe, as the government hints, the violence to

which such pandering gives rise is not by the panderer

but by the prostitute’s customer, as we noted in United

States v. Patterson, 576 F.3d 431, 441-42 (7th Cir. 2009),

a case that involved transporting a minor in interstate commerce with the intent that she engage in prostitution. Such transportation endangers the minor, but

would endanger an adult prostitute as well, given the welldocumented frequency of assaults against prostitutes
No. 11-1695 9

by their customers. E.g., Kaethe Morris Hoffer, “A Response to Sex Trafficking Chicago Style: Follow the Sisters,

Speak Out,” 158 U. Pa. L. Rev. 1831, 1838-39 (2010); Jody

Raphael and Jessica Ashley, “Domestic Sex Trafficking

of Chicago Women and Girls” (Ill. Crim. Justice Information Authority, May 2008), www.enddemandillinois.org/

sites/default/files/ICJIA_Research_Jody.pdf; Steven D.

Levitt et al., “An Empirical Analysis of Street-Level

Prostitution” 3, 14 (Sept. 2007), http://economics.uchicago.

edu/pdf/Prostitution%205.pdf?q=venkatesh; Donna M.

Hughes, “Best Practices to Address the Demand Side

of Trafficking” 10-12 (Women’s Studies Program, University of Rhode Island, August 2004), www.uri.edu/artsci/

wms/hughes/demand_sex_trafficking.pdf; David G. Sommer, “Recent Decisions,” 60 Md. L. Rev. 994, 1011 (2001);

Evelina Giobbe et al., “Impressions of a Public Policy

Initiative,” 16 Hamline J. Pub. Law & Policy 1, 13 n. 69 (1994);

but see Ronald Weitzer, “Sex Trafficking and the Sex

Industry: The Need for Evidence Based Theory and

Legislation,” 101 J. Crim. L. & Criminology 1337, 1362-63

(2011). (The Web sites were visited on August 5, 2012.) But

if the possibility of such an assault makes compelling

prostitution a violent felony, it likewise makes arranging

prostitution a violent felony, which no one is arguing.

Furthermore, if compelling prostitution typically involved the use or threat of violence, it would be

punishable by a heavier sentence, and it is not. All that

compulsion under the Illinois statute may mean is

paying a person to become a prostitute, whereas

arranging could mean managing a brothel in which

the prostitutes are paid by the johns rather than by the
10 No. 11-1695

manager, who merely takes a cut of their earnings, so that

there is no element of financial inducement. This interpretation is further supported by comparison of the

maximum sentence for compulsion—three years—with the

maximum sentences that Illinois law decrees for what

are clearly “violent felonies” within the meaning of the

Armed Career Criminal Act. For residential burglary the

maximum is 15 years, for residential arson also 15 years,

for intimidation (Illinois’s counterpart to extortion in

federal law, United States v. Unthank, 109 F.3d 1205, 1210

(7th Cir. 1997), a listed offense in the Armed Career

Criminal Act) 10 years, and for possession of explosives 30

years. 720 ILCS 5/19-3, 5/20-1.2, 5/12-6, 5/20-2; 730 ILCS 5/5-

45-30, 40. We conclude that compelling a person to

become a prostitute has not been shown to be a violent

felony within the meaning of the Armed Career Criminal Act.

There is, however, a second merits issue: whether a 1993

conviction of Brown for “armed violence” under Illinois

law, defined as “committing any felony defined by

Illinois law while armed,” Ill. Rev. Stat. 1978, ch. 38, § 33A2—the felony was possession of illegal drugs—was a

violent felony within the meaning of the federal Act

because of the frequent linkage remarked in many cases

between guns and drugs. See, e.g., United States v. Fife, 624

F.3d 441, 447-48 (7th Cir. 2010); United States v.

Cunningham, 517 F.3d 175, 179 (3d Cir. 2008); United States

v. Crawford, 130 F.3d 1321, 1323 (8th Cir. 1997). If so, Brown

has three qualifying convictions even if the pandering

conviction, as we hold, doesn’t count.
No. 11-1695 11

We would agree with the government and the district

court that the felony that Brown had been convicted of

committing while armed was a violent felony if it had

involved the sale of drugs. United States v. Fife, supra, 624

F.3d at 447-48. But it had involved merely possession.

Originally, it is true, he had also been charged with

manufacturing and delivering the drugs, but that charge

had been dropped and the government does not rely on

it; so, as far as we know—and as we must therefore

assume for purposes of deciding this appeal—Brown was

a consumer of drugs who happened to own a gun. The

more than 22 million Americans estimated to consume

illegal drugs, see Substance Abuse and Mental Health

Services Administration, “Results from the 2010 National

Survey on Drug Use and Health: Summary of National

Findings” (NSDUH Series H-41, HHS Publication No.

(SMA) 11-4658, 2011), www.oas.samhsa.gov/NSDUH/

2k10NSDUH/2k10Results.htm (visited Aug. 5, 2012), and

the 57 million Americans estimated to own guns, see L.

Hepburn et al., “The U.S. Gun Stock: Results from the 2004

National Firearms Survey,” 13 Injury Prevention 15 (2007),

are overlapping sets. And while there is evidence of a

connection between “Congress’s attempt to keep firearms

away from habitual drug users and its goal of reducing

violent crime,” United States v. Yancey, 621 F.3d 681, 686

(7th Cir. 2010), it has not been shown that the mere possession of a gun by a drug user (who might not be a habitual

user, that is, an addict) can be described as purposeful, violent, or aggressive conduct within the

meaning of Begay.

For these reasons, we reverse the district judge’s decision and remand with instructions to reduce Brown’s
12 No. 11-1695

sentence to 10 years’ imprisonment. This will require

his release, though the district judge may want to consider releasing him on bail in order to protect the government’s right to seek review of our decision by

the Supreme Court.

REVERSED AND REMANDED.

8-20-12