* This successive appeal has been submitted to the original panel pursuant to Internal

Operating Procedure 6(b). After examining the briefs and the record, we have concluded

that oral argument is unnecessary. See F ED

. R. A PP

. P. 34(a); C IR

. R. 34(f). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 11, 2009 *

Decided June 15, 2010

Before

RICHARD A. POSNER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 08

‐ 2196

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

DANTE COLEMAN,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 04

‐ CR

‐ 278

Charles N. Clevert, Jr.,

Chief Judge

.

O R D E R

Dante Coleman pleaded guilty to possessing a firearm after a felony conviction, 18

U.S.C. § 922(g)(1), possessing crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1),

and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). After a NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 2196 Page 2

successful appeal, Coleman was resentenced as a career offender to 198 months’

imprisonment, running concurrently with his state sentence, and eight years of supervised

release. Coleman appeals, but his appointed counsel has moved to withdraw because they

cannot identify any nonfrivolous argument to pursue on appeal. See Anders v. California, 386

U.S. 738, 744 (1967). Coleman declined our invitation to comment on his counsel’s

submission. See C IR

. R. 51(b). We confine our review to the two potential issues identified in

counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002).

This is not our first encounter with this case. Coleman appealed his original sentence;

we vacated his sentence on all counts and remanded for resentencing. See United States v.

Coleman, 232 F. App’x 594 (7th Cir. 2007) (unpublished). This appeal raises two issues: (1)

whether Coleman’s previous conviction for vehicular fleeing under W IS

. S TAT

. § 346.04(3)

constitutes a “crime of violence” under § 4B1.1 such that it would support the district

court’s determination that he is a career offender; and (2) whether his sentence is

reasonable.

Counsel is correct that Coleman may challenge his sentence based on the Supreme

Court’s decision in Begay v. United States

, 553 U.S. 137 (2008). Coleman was sentenced as a

career offender on April 9, 2008; the Supreme Court decided Begay on April 16, 2008. Since

that time, we have devoted considerable attention to how Begay is to be applied. See, e.g.,

United States v. Woods, 576 F.3d 400 (7th Cir. 2009); United States v. Hart, 578 F.3d 674 (7th

Cir. 2009); United States v. Hampton, 585 F.3d 1033 (7th Cir. 2009); United States v. Clinton, 591

F.3d 968 (7th Cir. 2010); United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010). We have held

this case in order to have the benefit of those decisions.

While it may not have been clear at the outset, it is now settled in this circuit that a

properly divisible part of the Wisconsin crime of vehicular fleeing qualifies as a “crime of

violence” under U.S.S.G. § 4B1.1. Coleman’s offense was a violation of W IS

. S TAT

. § 346.04(3), which provides: “No operator of a vehicle, after having received a visual or

audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or

attempt to elude any traffic officer by willful or wanton disregard of such signal so as to

interfere with or endanger the operation of the police vehicle, or the traffic officer or other

vehicles or pedestrians, nor shall the operator increase the speed of the operators vehicle or

extinguish the lights of the vehicle in an attempt to elude or flee.” We addressed this statute

in Dismuke

, supra, 593 F.3d at 590

‐ 96. In that case, we noted that this provision of Wisconsin

law was divisible: one category is fleeing or attempting to elude an officer “by willful or

wanton disregard of [the officer’s] signal so as to interfere with or endanger the operation of

the police vehicle, or the traffic officer or other vehicles or pedestrians” and the other

involved “increas[ing] the speed of the operator’s vehicle or extinguish[ing] the lights of the

vehicle in an attempt to elude or flee.” Id. at 590. Relying on United States v. Spells, 537 F.3dNo. 08

‐ 2196 Page 3

743 (7th Cir. 2008), we held that the second offense was a “crime of violence” for the specific

purpose of the career

‐ offender enhancement. Id. at 594. See also United States v. Howze, 343

F.3d 919, 921

‐ 22 (7th Cir. 2003) (finding, prior to Woods, that W IS

. S TAT

. § 346.04(3) described

a “crime of violence”); Welch v. United States, 604 F.3d 408 (7th Cir. 2010) (taking same

approach to comparable provision of Illinois law).

Coleman was convicted of the same offense as Dismuke

– a violation of W IS

. S TAT

. § 346.04(3). Under the modified categorical approach, see United States v. Woods, 576 F.3d

400 (7th Cir. 2009), we may look at a limited range of additional material to determine

which portion of a divisible statute the defendant violated. Here, Coleman is under an extra

disadvantage because he did not argue in the district court that his fleeing from an officer in

his vehicle was not a crime of violence. Our review would therefore be only for plain error.

See United States v. Olano, 507 U.S. 725, 734

‐ 36 (1993). If he were not confined by the plain

error standard, our evaluation of the potential issue on appeal might be different. As it is,

however, we see nothing in the record that indicates that Coleman’s earlier conviction was

merely for disregarding a signal from a traffic officer; instead, it appears to describe actual

“fleeing” from the officer as that term applies to the second category of the Wisconsin

statute. This is the divisible part of the statute that we characterized as a “crime of violence”

in Dismuke

. On this understanding, we agree with counsel that the district court properly

determined that Coleman is a career offender under the Guidelines.

We also agree with counsel that any appeal in which Coleman tried to argue that the

district court’s sentence of 198 months’ imprisonment was reasonable would be doomed.

See Gall v. United States, 552 U.S. 38 (2007); Rita v. United States, 551 U.S. 338 (2007). The

sentence was 22 months below the recommended range, and there is nothing in the record

to suggest that the sentence was unreasonably high.

Accordingly, we G RANT the motion and D ISMISS Coleman’s appeal.