In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1970

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN HIGH,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-CR-91-C-01—Barbara B. Crabb, Chief Judge.

ARGUED JANUARY 5, 2009—DECIDED AUGUST 5, 2009

Before EASTERBROOK, Chief Judge, and POSNER and

WILLIAMS, Circuit Judges.

PER CURIAM. John High was convicted of possessing

a firearm, despite prior convictions that made it

unlawful for him to do so. 18 U.S.C. §922(g)(1). He was

sentenced as an armed career criminal, see 18 U.S.C.

§924(e), after the district judge found that he had four

prior convictions for serious drug offenses or violent

felonies. His sentence of 212 months’ imprisonment is

below the Guideline range for a person with his criminal
2 No. 08-1970

history, but above the 10-year maximum sentence for

someone who violates §922(g) and does not qualify as

an armed career criminal. 18 U.S.C. §924(a)(2).

High contends that the evidence is insufficient; to

the contrary, it is strong. He also maintains that the

gun should have been suppressed as the product of an

unlawful search, but the district judge rightly rejected

this argument. High was living with his grandmother,

who consented to the officers’ entry. Relying on the

consent, officers came in but did not begin searching

until a warrant had been issued. That the officers

secured the premises, and prevented the destruction of

evidence, before obtaining a warrant, does not justify

exclusion. See, e.g., Segura v. United States, 468 U.S. 796

(1984).

Sentencing is the only substantial appellate question.

The district court relied on four of High’s convictions to

conclude that he is an armed career criminal: (1) possession of cocaine with intent to distribute; (2) recklessly

endangering safety; (3) failure to report to jail for imprisonment; and (4) battery as a repeat offender. High concedes that the first of these counts under 18 U.S.C.

§924(e)(2)(A)(ii) because it is a “serious drug offense”; he

contests the other three. The failure-to-report crime

cannot be counted, given Chambers v. United States, 129

S. Ct. 687 (2009). The status of the battery conviction may

be decided in Johnson v. United States, cert. granted, 129

S. Ct. 1315 (2009) (to be argued Oct. 6, 2009). High’s

argument is that, because state law treats battery as a

misdemeanor unless the defendant is a recidivist, it
No. 08-1970 3

cannot be a violent felony for federal purposes. That line

of argument is cut short by United States v. Rodriquez, 128

S. Ct. 1783 (2008), which holds that recidivist enhancements count when classifying a conviction as a misdemeanor or a felony. Whether felony battery meets the

standards of Begay v. United States, 128 S. Ct. 1581 (2008), is

the question posed in Johnson. We need not attempt to

anticipate the answer, because High’s conviction for

recklessly endangering safety does not count, and it

takes three countable convictions to support sentencing

as an armed career criminal.

United States v. Woods, No. 07-3851 (7th Cir. Aug. 5,

2009), reaches two conclusions bearing on the treatment

of the endangerment conviction. Woods holds, first, that

courts must not look beyond the statutory ingredients of

a crime, unless the offense is “divisible” into parts, some

of which meet the standard of §924(e) and some of which

don’t. Only when an offense is divisible may a court

examine the charging papers and plea colloquy to

classify the conviction. Woods holds, second, that as a

rule an offense in which the mental state is recklessness does not meet the standards established by the

Supreme Court in Begay. Those conclusions control here.

High was convicted of second-degree recklessly endangering safety, in violation of Wis. Stat. §941.30(2).

This statute provides: “Whoever recklessly endangers

another’s safety is guilty of a Class G felony.” This statute

is not divisible, as Woods uses that word. And, given how

Woods treats recklessness offenses, lack of divisibility

means that a conviction does not necessarily signify any
4 No. 08-1970

intentional, violent, and aggressive act of the sort that

Begay requires. A person who twirls a gun, intending to

show his skill but recklessly permitting it to fire, violates

§941.30(2) without intending to shoot, even if no one

is injured. (Recklessness in Wisconsin law means the

creation of an unreasonable and substantial risk of great

bodily harm, if the actor is aware of the risk. See Wis. Stat.

§939.24(1). It does not require intent to harm anyone.)

Likewise a person who deliberately shoots at a passing

car and misses violates this law. The fact that the same

statute covers both situations, and is not divisible, means

that a conviction does not establish a violent felony,

because (given Woods) the sentencing judge is forbidden

to look at the charging papers and plea colloquy to see

in which way a person violated the state statute.

High did not object at sentencing to the classification of

his reckless-endangerment conviction. But Begay, which

was decided after his sentencing, changed the rules, and

under the holding of Woods the district court’s classification of this offense was plain error. See United States v.

Olano, 507 U.S. 725 (1993) (spelling out the standards

for plain-error review). The judgment of conviction is

affirmed, and the case is remanded with instructions

to impose a sentence no greater than 120 months. We

know from the record of the state proceeding that

High fired a gun at an occupied car; he may have been

trying to hit the occupant (who escaped harm) or may

have been trying to hit the tires. The district judge is free

to consider those facts when deciding what sentence

to impose, see 18 U.S.C. §3661, because the events that

led to the reckless endangerment conviction reflect what
No. 08-1970 5

kind of person High is and how dangerous he may be in

the future, but the court cannot treat him as an armed

career criminal.

8-5-09