# Un ited State s Co urt o f Appea ls
For the Seventh Circui t Chic ago, I lli nois 60604
Arg ued August 2, 2011 Deci ded August 8, 2011

Before
DIANE P. WOOD, Circ uit Judge

DIANE S. S YKES , Circ uit Judge
DAVID F. HAMILTON, Circ uit Judge

No. 10-2975
BENJAMIN C. PRICE,

Petitioner-Appellant

,

v.

UNITED STATES OF AMERI CA,

Responden t-Appellee

. Appeal from the Uni ted St ates Di stric t Court for the Nort hern Di stric t of Indi ana, Hamm ond Di vis i on.

No. 2:09cv320

Phi li p P. Si mon, Chief Ju dge

.
O R D E R

After a jury convic ted Benjamin Pri ce of being a felon in possess i on of a fi rear m in violati on of 18 U.S.C. § 922(g)(1), the di stric t court sentenced hi m to 250 months in pris on. Thi s court affi rmed Pri ce’s convic tion and sentence on di rect appeal. United States v. Price, 520 F.3d 753 (7th Ci r. 2008). Pri ce then fi led a motion under 28 U.S.C. § 2255 to v acate hi s sentence. He arg ues that he was deni ed hi s consti tutional right to couns el at a cri tic al stage
o f t he tr i al when, im medi ately after Pri ce asked the court to di sch arg e hi s lawyer so that he co ul d p r o ce ed pro se, the court forced hi m to deci de whether to proceed pro se or t o
a cc e p t a mistri al, after whi ch the court was wi lling to appoint another lawyer. Pri ce also NON PREC EDENTIAL DISPOSITI ON To b e cited onlyin a ccor dance with F ed. R. App. P. 32 .1No. 10-2975 Page 2

arg ues that he should not have been sentenced as an ar med career criminal, bec ause one of hi s prior convic tions should not have counted for that purpose. The di stric t co urt rej ected both of Pri ce’s arg uments, and so do we. Under the ci rcums tances of thi s case, the court wa s not required to do more to prot ect Pri ce’s right to couns el. Hi s sentencing arg ument is fore closed by prior deci si ons o f t hi s court, and in any event i t pays too l it t le heed to t he nature of the predic ate o ffens e that cont rib uted to hi s cu rr ent sentence.

I As we noted the fi rst tim e we ha d Pr ice ’s case, at tr i al Pri ce zi g-zagg ed repeat edly between accepting repr esentation by couns el and proceeding pro se
. Price, 520 F.3d at 756. A publi c defender was appointed for Pri ce after he was indi cted in October 2004, but Pri ce qui ckly moved to repr esent hi mself , and, afte r carefully war ning Pri ce about the ris ks of thi s course of acti on, a magi strat e judge grante d hi s moti on. Id

. at 757. Less than a month later, Pri ce moved to wi thdraw hi s request to proceed pro se and asked for new couns el; in Ja nuary 2005 the magi strat e judge gr anted Pri ce’s request and appointed a t t o r ne y Arlington J. Foley to repr esent hi m. Id

. The di stric t judge held a hearin g in April 2005 after Pri ce wrot e several lette rs to the court expr essing hi s unhapp iness wi th F o l e y
. Id

. Pri ce agr eed at that time to continue wi th Fo ley as hi s coun sel. Id

.
On the mornin g of May 2, 2005—the fi rst day of the tr i al—Pri ce told the di stric t judge that he di d not want Foley to repr esent hi m and that he would prefer to proceed pro se. The judge refused to replace Foley , however , becau se he felt certain that Pri ce “would again be di ssati sfi ed.” The judge insi sted that th e tr i al would proceed wi th Foley as couns el and poin ted out that Pri ce had made clear at the April hearin g that he di d not want to proceed pro se. That a fterno on, however, after the jury had been selected, Pri ce again asked to repr esent hi mself

. At that point, the judge sai d he mi ght consi der appointing anot he r lawyer, and he lai d out thr ee opt i ons for Pric e: pro ceed to t rial that day wi th Foley as hi s atto rney, proceed to tr i al that day pro s e (w i th the option of havin g Foley as standby
couns el), or ask the court to declare a mi strial and set a new tr i al date, recog ni zing that the
new atto rney and P ric e would need tim e to prepare. Becau se Pri ce continued to object to Foley , the judge di sch arg ed Foley fr om repr esenting Pri ce but di rected hi m t o remain as standby couns el. The next mornin g, aft e r the judge again explain ed hi s options, Pri ce requested a mi strial; the judge gr anted hi s request.

Pri ce went to tr i al 12 months later wi th hi s thi rd appointed lawyer—altho ugh he intermittently repr esented hi mself —and was convic ted. Price, 520 F.3d at 757. The di stric t court conclu ded that he had three quali fying prior convic t io ns fo r v i olent feloni es and i mposed an enhanc ed sentence of 250 months’ i mpriso nm e nt under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).No. 10-2975 Page 3

After thi s court affi rmed hi s convic tion and sentence, Pri ce moved under 28 U. S .C. § 2255 to vacate hi s sentence. The di stric t co ur t deni ed the motion but gr anted Pri ce a certifi cate of appealabi li ty on two clai ms: hi s right to couns el was violated when the di stric t court declared a mi strial, and he was actually innocent of being an armed c areer cri minal becau se hi s 1996 Indi ana cri minal recklessnes s convi cti on was not a violent felony.

II

A

Pri ce arg ues that the di stric t judge deni ed him his r ig ht to couns el under the Sixth Amendment during the hearin g on May 3, 2005, when the j udge forced hi m to deci de, at

a tim e when he was wi thout couns el, whether to accept a mi strial. (Pri ce di d not present thi s clai m on di rect appeal, but the gov ernment has forfeited any arg ument t ha t i t i s pr o cedurally defaulted. See Welch v. United States , 604 F.3d 408, 413 (7th Ci r. 2010). Accordingly, we address the merits of Pri ce’s claim.) And becau se that deci si on was, in Pri ce’s vi ew, a cri tic al stage of the proceedin gs, he argues that the depri vat i on of couns el requires an au tomat i c rever sal of hi s convi cti on.

Pri ce o v e r l ook s the fact that on May 2 he waived hi s right to couns el and chose to repr esent hi mself

. Although he contends t hat hi s wai ver was invali d and poin ts out that the di stric t judge di d not condu ct a formal w ai ver inqui ry on May 2, we are not required to put on blinders and look only at what happened on that d a y
. Th e r e co rd as a whole demonstrate s that Pri ce’s wai ver was vo luntary and k nowing and thus vali d. See Faretta
v. California , 422 U.S. 806, 835 (1975); United States v. Cooper , 591 F.3d 582, 587 (7th Ci r. 2010); United States v. Jo h n s on , 534 F.3d 690, 693-94 (7th Ci r. 2008). Pri ce had been repr esenting hi mself off and on thro ughout the case, after receiving appropr i ate warnings. See Price, 520 F. 3 d a t 757 (“Magis tr ate Judge Rodo vich carefully warned Pri ce of the pi tfalls of that cours e of acti on, but Pri ce p e r sis t ed and the judge gr anted the motion.”). At the April status hearin g, the di stric t judge noted that Foley had 30 year s of exper i ence and urged Pri ce to “consi der ver y closely what he tells you. He has your intere st at heart. Whether you beli eve i t or not, he does. And you should stro ngly consi der the advic e that he gives you.” When Pri ce asked on the mornin g of May 2 to repr esent hi mself , the judge told hi m, “I don’t think i t’s a goo d i dea.” Pri ce responded, “I know i t’s not a goo d i dea, but that’s the best thing I
can do. He [ sic ] not going to repr esent me effecti ve. I mi ght as well tr y i t myself. I’m get tin g railroaded anyway. So , I mig ht as well do i t myself.” Taken tog ether, these interactions wi th the court ov er the co ur se of the proceedings establi sh that Pri ce was adequately warned about the dangers of waiving hi s right to couns el. See United States v. England, 507 F.3d 581, 586-87 (7th Ci r. 2007).N o
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P ro vi d in g more evidenc e that hi s wai ver was vo luntary and knowing, Pri ce a l s o offe re d strat egic reasons for wanting to proceed pro se
. See Johnson , 534 F.3d at 694-95; United States
v. Todd, 424 F.3d 525, 533 (7th Ci r. 2005). For e x a mple, on the mornin g of May 2 he
e xpre ssed concern that Foley had not followed up on two sub poenas fi led by his fir st atto rney and that motions fi led by Foley were inadequate. Pri ce’s renewed request to proceed pro se that a ft e r noon was prompte d by hi s di sagreement wi th Foley ’s recommendati on that he stipul ate t o having a pri or felony convic tion.

In sum, Pri ce v ali dly waived hi s r i ght to couns el on May 2; he therefor e cannot clai m that r i ght was violated on May 3 when h e had to make a tactic al deci si on by hi mself . See Faretta, 422 U.S. at 834, n.46 (“a defendant who elects to repr esent hi mself cannot there after complain that the quali ty of hi s own defense amounted to a deni al of ‘effecti ve assi stance of counsel.’”) ; Peoples v. United S tates , 403 F.3d 844, 849 (7th Cir. 2005).

Pri ce never theless suggests that hi s right to couns el was violated on May 3 becau se he di d not understand why i t was necess ary for hi m to request a mis t r ia l o r what rights he would give up by doin g s o. The recor d, however , does not su pport hi s arg ument, even i f thi s court could ov erlo ok hi s wai ver
. Although i t shows that Pri ce was confus ed about the meaning and effec t of a mi strial on May 2 and at the beg inning of the M ay 3 hearing, the di stric t judge carefully explain ed to Pri ce on May 3 that i f he wanted a ne w l a wy e r and t ime to prepar e, he would have to consent to a mi strial; other wi se, the tr i al woul d g o forward that day, and Pri ce could repr esent hi mself or have Foley serve as hi s couns el. The judge also explain ed that by agr eeing to a mis tr i al, Pri ce would give up hi s r i ght to have t he ca se deci ded by the jury selected the prev i ous day. Only after saying t ha t he understood hischoi ce “a li ttle bit better now” di d Pri ce cons ent to a mi strial.

B

Pri ce also arg ues that hi s 1996 Indi ana convic tion for cri minal recklessness, I N D

. C O D E § 35-42-2- 2, was not a violent felony under the resi dual claus e of the Armed Career C rim inal Act (“ACCA”), 18 U.S.C. § 924(e)(1)

. Therefore , he contends, he di d not have thre e quali fying predic ate o ffens es and s hould not have been subject to an enhanc ed sentence. The gov ernment’s fi rst response at the di stric t court was that Pri ce procedurally defaulted thi s point, but the court addressed i t and the gov ernment has dropped thi s arg ument. We there fore addr ess the meri ts.

As relev ant here, the defini tion in A C C A o f “violent felony” inclu des any cri me puni shab le by more than a year in pris on that “inv o lves conduc t that presents a seri ousN o
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potent i al ris k of phy sical injury to another .” 18 U.S.C. § 924(e)(2) (B)( i i ). Thi s “resi dual claus e” cover s cri mes t ha t p r e sent a level of ris k comparable to that posed by burglary, arson, ext or tion, or cri mes involv ing explosives. See Sykes v. United States , 131 S. Ct. 2267, 2273 (2011). When a statu t e co v e rs multi ple offenses, only some of whi ch are violent feloni es, a sentencing court may look at the chargin g document and any judi ci al recor d in whi ch the defendant confi rmed the factual ba sis fo r a gui lty plea to deter mine whi ch offense—a violent felony or not—th e d e fe n d ant c omm i tte d

. See Shepard v. United States , 544 U.S. 13, 25-26 (2005); United S tates v. Dism uke, 593 F.3d 582, 589 (7th Cir. 2010).

Under I nd ia na law, a person i s gui lty of cri minal recklessness i f he “recklessly, knowingly, or intentionally” perfo r ms a n act that creates a “sub stanti al ris k of bodi ly injury ” to another

. I N D

. C O D E § 35-42-2- 2(b) (1). The offense i s a Class D felony i f commi tte d whi le armed w i th a deadly weapon. Id

. § 35-42-2- 2(c) (2)( A). The only i ssu e here relat es to Pri ce’s state of mind; hi s gui lty plea necess arily invo l v e d an admi ssi on that the act he perfor med created a sub stanti al ris k of bodi ly injury to another

. According to the chargin g information for Pri ce’s o ffens e, he commi tte d cri minal r eck l e ssness when he “recklessly, knowingly or intentionally” pointed a loaded shotgun at a woman named Jazette Neal. Pri ce pleaded gu i lty, but at hi s plea hearin g he deni ed poin tin g the shotgun at Neal; instead, he sai d that he poin ted at and shot into an empty car afte r N e a l sa id sh e di dn’t have the rent money s he owed hi m. Toward the end of the colloquy, the court wondered i f Price’s change in t arg e t r e quired an amendment to the information, but Pri ce’s lawyer
assu red the court that Pri ce had “establi shed a foundati on for a plea of crimin a l recklessness in reg ards to what he’s admi tte d that he has done.” In denying Pri ce’s § 2255 motion, the di stric t co ur t co nc l uded that hi s cri minal recklessness convic tion was a quali fying predic at e o ff e nse becau se he intentionally fi red the shotgun and there fore violated the in tentional branchof the statut e. Relying on Begay v. United States , 553 U.S. 137 (2008) and United States v. Smith , 544 F.3d 781 (7th Ci r. 2008), Pri ce arg ues that hi s prior convic tion cannot be a violent felony becau se he pleaded gui lty only to reckless conduc t. Begay noted that the cri mes spec ifi cally enumerated in § 924(e)(2) (B)( i i ) typic ally involv ed “purposeful, v i olent, and a g g r e ssi ve” conduc t. 553 U.S. at 144-45. Thi s court interpr eted Begay to hold that an offense falls wi thin the resi dual claus e only i f i t i s si mi larly purposeful, violent, and aggr essive. See, e.g., United States v. Capler, 636 F.3d 321, 323 (7th Ci r. 2011); United States v. Fife, 624 F.3d 441, 444 (7th Ci r. 2010).

The Supreme Court recently sai d in Sykes , however , that requiring an ACCA predic ate offense to be purposeful, violent, and aggr essive “ov err eads” the Court ’s opini ons. 131 S. Ct. at 2275. The Court emphas i zed that resi dual-c lause analysi s should focus on the ris k ofN o
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physi cal injury

. See id. at 2273, 2275 (notin g that Begay was the “sole deci si on of thi s Court concerning t he r e a ch of ACCA’s resi dual claus e in whi ch ris k was not the di sposi tive factor”). The “purposeful, violent, and aggr essive” phrase was used, the Court sai d, only to explain

the re sult in Begay, where the prior conv i cti on at is sue—D UI—did n ot have to be commi tte d purposefully. Id . at 2275-76.

Pri ce’s clai m comes up short no matter how thi s court analyzes i t. Criminal recklessness in Indi ana can be commi tte d recklessly, of course, and so a Begay -sty l e a nalysi s of hi s convic tion mi ght be appro priate. But as the di stric t courtconclu ded, Pri ce’s plea hearing makes plain that he commi tte d the offense purposefully. (He does not suggest that hi s state convic tion should be set asi de altog ether on the gr ound that he di d nothin g that quali fi ed

as cri minal recklessness, nor could he at thi s poin t. See Custis v. United States, 511 U.S. 485 (1994) (holding that defendant in federal sentencing proceeding has no right to ma k e a collateral attack on a prior state conv i cti on used to enhance a s entence under the ACCA, wi th the sole exception of a convic tion obtained in violati on of the right to couns el). ) Pri ce admi tte d that he ret rieved a shotgun from a car, poin ted the shotgun at a car, and fi red at the car. That he deni ed threat ening and poin tin g the gun at Neal i s besi de the poin t. Pri ce pleaded gui lty to cri minal recklessness, and hi s admi ssi on shows that he intende d to shoot and hit t he car; thi s in turn means that he violated the in tentional branchof the crim inalrecklessness statute. See United States v. Clin ton , 591 F.3d 968, 973-74 (7 t h Ci r. 2010) (defendan t’s prior Indi ana convic tion for cri minal recklessness was violati on of intentional part of statute and predic ate cri me of violence becau se admi ssi on during plea colloquy that he stabbed vic tim more tim es than ne cessary rev ealed that he intended act and consequen ces) ; cf. Smith , 544 F.3d at 787 (pri or Indi ana convic ti on s for c ri minal recklessness could not serve a s p re di cate violent feloni es becau se defendant di d not admi t to acting wi th intent and jury that convic ted hi m was not asked to deter mine whether he acted knowingly
or intentionally).

Pri ce fares no better i f thi s court analyzes the cri me based on i ts ris k of physi cal injury

. Hi s offense—intentionally perfor ming an act that creates a sub stanti al ris k of bodi ly injury to another, whi le armed wi th a deadly weapon—“by it s na t ur e” presents a seri ous potent i al ris k of injury to another

. See James v. United States , 550 U.S. 192, 209 (2007); Fife, 624 F.3d at 449.

For these reasons, we A F F I R M the j udgment of the dis tr i ct court.