# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 16, 2009

Decided November 18, 2009

Before

RICHARD D. CUDAHY, Circuit Judge

DIANE P. WOOD, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 08

‐ 2799

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

RICHARD A. LEE,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of

Illinois, Western Division.

No. 07 CR 50044

‐ 1

Frederick J. Kapala,

Judge

.

O R D E R

On June 15, 2007, officers from the Rockford, Illinois Police Department executed a

search warrant at a house where Richard A. Lee had hidden a digital scale and a bag

containing powder and crack cocaine. The police returned to the house five days later and

arrested Lee for a parole violation. The officers searched Lee incident to the arrest and

found a handgun in his possession. Lee confessed to owning the narcotics the officers

seized during the June 15 search.

Lee pleaded guilty to possession with intent to distribute crack cocaine in violation

of 18 U.S.C. § 841(a)(1) and being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). As part of his plea bargain, Lee agreed that he qualified as a career offender NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

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

‐ 2799 Page 2

1 Lee made the career

‐ offender argument in a supplemental pro se brief. In that brief he also

raised a claim of ineffective assistance of counsel. Although we address the career

‐ offender

argument here, we express no judgment on the ineffective

‐ assistance claim. Such claims are best

brought on collateral review in a petition for habeas corpus under 28 U.S.C. § 2255. See United States

v. Allison

, 59 F.3d 625, 629 (7th Cir. 1995). under U.S.S.G. § 4B1.1 based on a 1998 felony conviction for possession with intent to

distribute cocaine and a 2002 Illinois conviction for second

‐ degree murder. At sentencing

the district court adopted the presentence

‐ investigation

‐ report (“PSR”) finding that Lee was

a career offender under § 4B1.1; Lee did not object. He did argue, however, that § 4B1.1

failed to account for the Sentencing Commission’s intent to reduce the penalties for crack

‐

cocaine offenses. The district court rejected this argument but did note that the career

‐

offender guidelines are “strict,” “harsh,” and “tough.” The district court correctly

calculated the relevant guidelines range and imposed a within

‐ guidelines sentence of

198 months’ imprisonment.

Lee challenges his sentence on two grounds. First, he argues that we must remand

his case for resentencing in light of Kimbrough v. United States

, 128 S. Ct. 558 (2007), because

the district court failed to give reasons for rejecting his argument based on the crack/powder

cocaine disparity. Second, Lee contends that the district court erred when it sentenced him

as a career offender because his Illinois conviction for second

‐ degree murder is not a crime

of violence. 1

Our precedent forecloses Lee’s first argument. In Kimbrough the Supreme Court held

that district courts have discretion to disregard the 100

‐ to

‐ 1 crack/powder ratio when

fashioning sentences under U.S.S.G. § 2D1.1. 128 S. Ct. at 575. But Lee was sentenced as a

career offender under § 4B1.1, and we have held that § 4B1.1 does not implicate Kimbrough

because the crack/powder disparity in the career

‐ offender guideline “arises from a statute,

not the advisory guidelines.” United States v. Harris

, 536 F.3d 798, 813 (7th Cir. 2008). We

recently reaffirmed Harris in United States v. Welton

, 583 F.3d 494, 499 (7th Cir. 2009)

(defendants sentenced as career offenders under § 4B1.1 “have no sentencing challenge

based on the severity of the crack/powder disparity”). Therefore, to the extent Lee argues

that Kimbrough necessitates a remand for resentencing, his argument fails.

In his pro se brief, Lee argues that the career

‐ offender guideline does not apply to

him on the ground that his Illinois conviction for second

‐ degree murder does not qualify as

a crime of violence because it is not “purposeful” as required by Begay v. United States

,

128 S. Ct. 1581 (2008). Lee failed to raise this argument below, so our review is for plain

error. See United States v. Olano

, 507 U.S. 725, 732

‐ 35 (1993); United States v. Myers

, 569 F.3d

794, 800 (7th Cir. 2009). As a threshold matter, we interpret the career

‐ offender guideline in

the same way we interpret the Armed Career Criminal Act (“ACCA”), United States v.No. 08

‐ 2799 Page 3

Woods

, 576 F.3d 400, 403

‐ 04 (7th Cir. 2009), and it is not error for a sentencing court to rely

on an unchallenged PSR when determining whether qualifying convictions exist for

purposes of the ACCA, United States v. Thornton

, 463 F.3d 693, 700

‐ 01 (7th Cir. 2006). Lee

did not object to his PSR, which classified him as a career offender, and the district judge

relied on the PSR when he sentenced Lee as a career offender.

Furthermore, Lee was convicted of second

‐ degree murder, not “second

‐ degree

manslaughter” as he argues. Indeed, there is no crime in Illinois called “second

‐ degree

manslaughter.” See 720 I LL

. C OMP

. S TAT

. 5/9

‐ 1 to 9

‐ 3 (listing Illinois’ homicide crimes).

Second

‐ degree murder obviously qualifies as a crime of violence under either definition of

the term; it has as an element the “use of physical force against the person of another,”

§ 4B1.2(a)(1), and is purposeful conduct that “presents a serious potential risk of physical

injury to another,“ § 4B1.2(a)(2). See 720 I LL

. C OMP

. S TAT

. 5/9

‐ 2. Accordingly, the district

court did not err in sentencing Lee as a career offender.

AFFIRMED