In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3975

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NATHANIEL L. CAPLER,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 3:07-cr-30083—Jeanne E. Scott, Judge.

No. 09-2513

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONTE L. STEWART,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:06-cr-40006-001—J. Phil Gilbert, Judge.

ARGUED AUGUST 3, 2010—DECIDED APRIL 1, 2011
2 Nos. 08-3975 & 09-2513

Donte L. Stewart, the second appellant in this consolidated 1

appeal, has been released from prison and is no longer in the

custody of the Bureau of Prisons. His lawyers have moved

to dismiss his appeal as moot. That motion is granted.

Before BAUER, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Nathaniel Capler pleaded guilty

to two drug offenses and was sentenced to 141 months’

imprisonment based in part on an Illinois conviction for

unlawful restraint that the district court deemed to be

a “crime of violence” within the meaning of U.S.S.G.

§ 4B1.2. See 720 ILL. COMP. STAT. 5/10-3. On appeal

he challenges only the district court’s conclusion that

his prior conviction is a crime of violence.1

We affirm. The district court’s ruling finds direct

support in our decisions in United States v. Wallace, 326

F.3d 881, 887 (7th Cir. 2003), and United States v. Billups,

536 F.3d 574, 584 (7th Cir. 2008). Wallace analyzed the

Illinois statute in question and concluded that the

offense is a crime of violence. Billups reached the same

conclusion about the closely analogous crime of false

imprisonment in Wisconsin. Notwithstanding Capler’s

efforts to challenge the validity of Wallace and Billups,

these decisions remain sound and together control the

outcome of this appeal.

I. Background

Capler sold crack cocaine to a police informant. He

was arrested and pleaded guilty to two counts of distribution. See 21 U.S.C. § 841(a)(1). The district court sentenced
Nos. 08-3975 & 09-2513 3

him as a career offender to a total of 141 months’ imprisonment. See U.S.S.G. § 4B1.1. The career-offender designation is based on two Illinois convictions, one for delivery

of a controlled substance and the other for unlawful

restraint. Capler’s appointed lawyer initially cast the

appeal as frivolous and moved to withdraw under

Anders v. California, 386 U.S. 738 (1967), but we denied

that motion after concluding that an appeal asking us

to revisit Wallace would not be frivolous. Capler’s

attorney has now briefed that argument on the merits.

In deciding if a conviction is for a crime of violence,

we look to the statutory elements and the manner in

which the offense ordinarily is committed. United States

v. Sonnenberg, 628 F.3d 361, 364 (7th Cir. 2010); United

States v. Dismuke, 593 F.3d 582, 591 (7th Cir. 2010), petition

for cert. filed, 79 U.S.L.W. 3062 (U.S. July 19, 2010) (No. 10-

109). As relevant here, a “crime of violence” is any

offense punishable by imprisonment exceeding one year

that “has as an element the use, attempted use, or threatened use of physical force against the person of another,”

U.S.S.G. § 4B1.2(a)(1), or “is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential

risk of physical injury to another,” id. § 4B1.2(a)(2). In

Illinois a person “commits the offense of unlawful

restraint when he or she knowingly without legal

authority detains another.” 720 ILL. COMP. STAT. 5/10-3(a)

(2010). The use or threatened use of force is not an

element, see People v. Brials, 732 N.E.2d 1109, 1119

(Ill. App. Ct. 2000); People v. Bowen, 609 N.E.2d 346, 361 (Ill.

App. Ct. 1993), so the crime as defined in Illinois does
4 Nos. 08-3975 & 09-2513

not satisfy subsection (a)(1). Our analysis thus shifts to

subsection (a)(2).

Unlawful restraint is not one of the specific crimes

listed in the first part of § 4B1.2(a)(2), so to count as a

violent felony, the crime must fall within the residual

clause, which covers offenses that “otherwise involve[]

conduct that presents a serious potential risk of physical

injury to another.” This requires a determination that

the offense is “roughly similar” to those that are specifically enumerated. See Begay v. United States, 553 U.S.

137, 143 (2008); United States v. Woods, 576 F.3d 400, 404

(7th Cir. 2009). Before the Supreme Court decided Begay,

we had analyzed the residual clause by asking only

whether the crime in question typically encompasses

conduct creating a risk of injury similar to the enumerated

crimes. See, e.g., United States v. Mathews, 453 F.3d 830, 836-

37 (7th Cir. 2006); United States v. Franklin, 302 F.3d 722,

723 (7th Cir. 2002). Begay added a second level of

analysis, a similar-in-kind inquiry, which asks whether

the crime as ordinarily committed reflects the same

“purposeful, violent, and aggressive” conduct as the

listed crimes. 553 U.S. at 144-45. Only if a crime is

similar both in kind and degree of risk posed can it

qualify as a crime of violence under § 4B1.2(a)(2). Id.

After Begay we held in Woods that when the statute

in question is divisible—when it defines alternative

means of committing a crime, some violent and some

not—the district court may expand its categorical

inquiry by examining a limited set of additional

materials to determine whether the defendant was con-
Nos. 08-3975 & 09-2513 5

victed of the violent version of the crime. See Woods, 576

F.3d at 403. The Illinois statute does not define alternative means of committing the crime of unlawful

restraint and thus is not “divisible” as we explained the

concept in Woods, id. at 404-07. The offense is a crime

of violence, then, only if it is categorically similar to

burglary, arson, extortion, and crimes involving the use

of explosives. See Begay, 553 U.S. at 144-45; Dismuke, 593

F.3d at 594; United States v. Hart, 578 F.3d 674, 680-81

(7th Cir. 2009); United States v. Evans, 576 F.3d 766, 768-

69 (7th Cir. 2009). This similarity was found to be

present in Wallace, 326 F.3d at 887, a pre-Begay decision

concluding that a violation of the Illinois unlawfulrestraint statute generally will carry a risk of violence.

We have not reevaluated that position since Begay, but

we have concluded post-Begay that the analagous crime

of false imprisonment as defined by Wisconsin statute

is categorically violent. See WIS. STAT. § 940.30; Billups,

536 F.3d at 584.

II. Discussion

The sole issue in this appeal is whether unlawful restraint as defined by Illinois law falls within § 4B1.2(a)’s

residual clause for crimes roughly similar to the enumerated offenses. Capler argues that the statute encompasses too much nonviolent conduct for it to be categorically labeled as a violent felony. Although Capler

concedes that Wallace and Billups are on point, he

contends that both decisions are incorrect and urges us

to reconsider them in light of more recent opinions
6 Nos. 08-3975 & 09-2513

from this court. Because Capler preserved this argument

for appeal, our review is plenary. See United States v.

Clinton, 591 F.3d 968, 972 (7th Cir. 2010), cert. denied, 79

U.S.L.W. 3202 (U.S. Oct. 4, 2010) (No. 10-5137).

In Wallace we held that unlawful restraint as defined

in Illinois is a violent felony for purposes of the Armed

Career Criminal Act, see 18 U.S.C. § 924(e)(2)(B), which

tracks the language in § 4B1.2(a). Wallace, 326 F.3d at 887.

Applying the pre-Begay categorical approach, we reasoned

that unlawful restraint generally precipitates a risk of

violence, whether in the initial restraint or a resulting

confrontation between victim and assailant. Id. Although

we did not expressly conclude that unlawful restraint

is “similar in kind” to the crimes enumerated before

the residual clause (that requirement was added in

Begay), our analysis of the risk of injury strongly implies

that this sort of categorical similarity is present. Id.

Our decision in Wallace, then, is not a dead letter. If

anything it anticipated Begay even though we did not

articulate the analysis in precisely the same terms as the

standard later announced by the Supreme Court. Like

any precedential decision, Wallace stands until we are

given good reason to overrule it. See United States v.

Sykes, 598 F.3d 334, 338 (7th Cir. 2010), cert. granted, 79

U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-11311); Tate

v. Showboat Marina Casino P’ship, 431 F.3d 580, 583 (7th

Cir. 2005). We invited Capler to identify a reason, but

his response is simply to write off Wallace on the

ground that the opinion was issued five years before

Begay. Instead, he mostly focuses on trying to overcome
Nos. 08-3975 & 09-2513 7

Billups, but that strategy is shortsighted. Capler has not

offered a principled basis to overturn Wallace, and as

we discuss below, his lengthy effort to indirectly undermine Wallace by challenging Billups is unpersuasive.

In Billups we made explicit what we left to inference

in Wallace: Restraining another against his will, apart

from carrying a serious risk of injury, is an aggressive

act categorically similar to the crimes enumerated in

§ 4B1.2(a)(2). The Wisconsin statute analyzed in Billups

provides that “[w]hoever intentionally confines or

restrains another without the person’s consent and with

knowledge that he or she has no lawful authority to do

so is guilty of a Class H felony.” WIS. STAT. § 940.30. A

separate chapter of the code, § 939.22(48), defines “without

consent” to mean “no consent in fact” or consent given

because the assailant threatened violence, or because

the victim did not give knowing consent, either by

reason “of ignorance or mistake of fact or of law other

than criminal law or by reason of youth or defective

mental condition, whether permanent or temporary.” We

examined the elements of § 940.30 and the definition

of “without consent” in concluding that the conduct

encompassed by the statute is categorically violent.

Billups, 536 F.3d at 578-79.

Billups read the Wisconsin statute to reach five types

of victims. The first four variations of the offense—a

nonconsenting victim, a victim who consented to the

confinement out of fear, a victim who consented

because she believed the assailant had authority to

confine her, and a victim who was tricked into con-
8 Nos. 08-3975 & 09-2513

senting—carry a substantial risk of physical injury

because each scenario sets the stage for a violent confrontation between victim and assailant. Id. at 580-81. In

the fifth variation where the victim is legally incapable

of giving consent, we recognized that the risk of confrontation, while lower, is not insubstantial because

the potential remains that the victim could be injured

trying to escape. We never decided whether the fifth

variation involves a serious risk of injury because we

were satisfied that a crime with four out of five dangerous modes of commission is categorically violent.

Id. at 582.

Moreover, we distinguished a subsection of Indiana’s

criminal-confinement statute that had been held to be

a nonviolent felony. See United States v. Gilbert, 464 F.3d

674, 676-82 (7th Cir. 2006). The Indiana offense criminalizes removal from one place to another by trick, see

IND. CODE § 35-42-3-3(a)(2), and in Billups we were unwilling to assume—at least without empirical evidence—that deceiving someone into changing locations

poses the same risk as involuntary confinement. Billups,

536 F.3d at 582. We went on to observe that the Wisconsin statute criminalizes conduct that is “inherently

more coercive” than the conduct within the sweep of the

Indiana statute, since in Wisconsin the victim must be

confined, not merely tricked into moving. On this point

our opinion in Billups cites approvingly to Wallace and

notes that the crime of unlawful restraint in Illinois is

“akin” to false imprisonment as defined by Wisconsin. Id.

Because Billups analyzes a statute that is closely analogous to the Illinois crime of unlawful restraint, the rea-
Nos. 08-3975 & 09-2513 9

soning in that decision provides post-Begay support for

our holding in Wallace. The Wisconsin statute analyzed

in Billups is substantively indistinguishable from its

Illinois counterpart. Compare 720 ILL. COMP. STAT. 5/10-3(a)

(2010) (“A person commits the offense of unlawful

restraint when he or she knowingly without legal

authority detains another.”), with WIS. STAT. § 940.30

(“Whoever intentionally confines or restrains another

without the person’s consent and with knowledge that

he or she has no lawful authority to do so is guilty of a

Class H felony.”). One minor difference is that Wisconsin

makes nonconsent an express requirement and defines the

phrase by statute, while the Illinois offense is silent

about consent. Illinois caselaw, however, shows that

nonconsent is an implicit requirement, its contours

shaped by state common law that appears to adopt a

common-sense understanding of the term. See People v.

Hunt, 502 N.E.2d 464, 466-67 (Ill. App. Ct. 1986) (reversing

conviction for unlawful restraint where State failed to

prove defendant’s knowledge that victim was too intoxicated to effectively consent); People v. Kittle, 489

N.E.2d 481, 484-85 (Ill. App. Ct. 1986) (concluding that

unlawful restraint is a lesser-included crime of kidnapping by fraud or deceit); People v. Warner, 424 N.E.2d

747, 749-50 (Ill. App. Ct. 1981) (upholding conviction

for unlawful restraint where restraint of children was

achieved by threat of physical punishment); cf. 720 ILL.

COMP. STAT. 5/12-17(a) (defining consent in context of

sexual assault as “freely given agreement”). But if less

concrete, the definition of consent in Illinois does not

appear to be any broader than that in Wisconsin; nor
10 Nos. 08-3975 & 09-2513

does the crime of unlawful restraint appear to cover

any forms of nonviolent conduct that would not also

be covered by the Wisconsin statute.

Furthermore, Billups stands alone as the only postBegay decision from this court involving criminal confinement, and its holding is consistent with previous

decisions interpreting similar crimes. See United States

v. Franco-Fernandez, 511 F.3d 768, 771-72 (7th Cir. 2008)

(distinguishing nonviolent state offense of child abduction by putative father from violent offense of unlawful

restraint); Gilbert, 464 F.3d at 676-82 (declining to apply

Wallace to subsection of Indiana’s criminal-confinement

statute involving action not necessarily taken without

victim’s consent); United States v. Hagenow, 423 F.3d 638,

644 (7th Cir. 2005). The holding in Billups also falls

in line with the weight of authority from other circuits.

Before Begay several circuits had examined similar

statutes and uniformly characterized them as violent

crimes. United States v. Riva, 440 F.3d 722, 723-25 (5th

Cir. 2006) (holding that Texas crime of unlawfully restraining person under age 17 is crime of violence under

residual clause of § 4B1.2(a)(2) because offense involves

serious potential risk of physical injury); Dickson v.

Ashcroft, 346 F.3d 44, 49-50 (2d Cir. 2003) (holding that

New York offense of unlawful imprisonment of competent adult is crime of violence within meaning of Immigration and Nationality Act); United States v. Zamora,

222 F.3d 756, 764-65 (10th Cir. 2000) (holding that New

Mexico crime of false imprisonment is violent felony

under § 4B1.2(a)(2) because of substantial risk of violence); United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir.
Nos. 08-3975 & 09-2513 11

1994). After Begay no out-of-circuit published opinion

has evaluated a statute comparable to the Illinois crime

of unlawful restraint, but the Third Circuit in two unpublished opinions has kept with the trend of characterizing

criminal confinement as a categorically violent crime.

See United States v. McMiller, 376 F. App’x 199, 202-03

(3d Cir. 2010); United States v. Smith, 284 F. App’x 943, 944-

45 (3d Cir. 2008).

Capler, not surprisingly, seeks to overturn Wallace by

arguing that Billups too was wrongly decided, albeit after

Begay. Specifically, he contends that Billups should

be disregarded because we decided it on the incorrect

assumption that the Wisconsin statute at issue was indivisible; that our opinion in Billups improperly applied

the Begay analysis and offered only conclusory support

for its holding; that subsequent decisions in this circuit

applying the crime-of-violence inquiry call Billups into

question; and that Billups should be reassessed in light

of the Supreme Court’s decision in Chambers v. United

States, 129 S. Ct. 687, 692-93 (2009).

Before addressing Capler’s challenges to Billups, we

must resolve a threshold dispute over how to approach

the question of what conduct typifies the “ordinary case”

of unlawful restraint. Capler insists that the “ordinary

case” of unlawful restraint should encompass only separately punishable instances of the offense—that is, it

should exclude cases in which a judgment of conviction

for unlawful restraint cannot be entered because the

conduct at issue supports a separate conviction for a

more serious crime, thus making unlawful restraint a
12 Nos. 08-3975 & 09-2513

lesser-included offense. See, e.g., Brials, 732 N.E.2d at

1119; Kittle, 489 N.E.2d at 485. This argument misunderstands the categorical approach, which asks whether

the elements of the offense ordinarily involve conduct

that falls within the scope of the residual clause. See

James v. United States, 550 U.S. 192, 202 (2007); Sonnenberg,

628 F.3d at 365. Whether in the ordinary case the

offense conduct can support a separate punishment is of

no consequence; courts look instead at the conduct encompassed within the statutory definition of the crime

to determine what an ordinary case is like. See United

States v. Goodpasture, 595 F.3d 670, 672 (7th Cir. 2010)

(“[T]he Supreme Court’s question is what the offense as

generally committed entails, not which offenses lead to

criminal prosecutions.”).

Capler holds little back in his attack on Billups. As

a preliminary matter, he contends that the Billups

analysis is flawed from the outset because in

applying the categorical approach, we did not treat the

false-imprisonment statute as divisible. His point has

some appeal: Wisconsin law, which requires that false

imprisonment occur without the consent of the victim,

provides four definitions for “without consent” and

so would appear to create several divisible means of

committing false imprisonment. WIS. STAT. § 939.22(48).

But even if Billups was mistaken in analyzing the Wisconsin statute as a whole instead of focusing on the

particular subsections of the definition of “without consent,” our holding in Billups—that false imprisonment

as generally committed carries a risk of violence—can

still inform our analysis. The Illinois crime of unlawful
Nos. 08-3975 & 09-2513 13

restraint is indivisible; that is, it resembles the Wisconsin

false-imprisonment statute as we conceptualized it in

Billups.

Capler contends that Billups bungled the Begay inquiry—both in terms of its assessment of the crime’s

similarity to the listed offenses in the residual clause

and its assessment of the risks posed by unlawful restraint. With respect to the similar-in-kind inquiry,

Capler contends that Billups offers only conclusory

support for the holding that unlawful restraint typically

involves violent and aggressive behavior. Not so. In

Billups we concluded that restraining a person against

his will generally creates a significant risk of violence,

even where restraint is not accomplished by force.

536 F.3d at 580-81. That determination informed the

similar-in-kind analysis just as it did the risk-ofinjury analysis. See Dismuke, 593 F.3d at 594 (explaining

that categorically violent felonies are those that carry a

genuine risk of violence); United States v. Patterson, 576

F.3d 431, 442 (7th Cir. 2009), cert. denied, 78 U.S.L.W.

3438 (U.S. Jan. 25, 2010) (No. 09-7158) (explaining that

risk of violence need only “attend” a violation of

predicate crime for purposes of crime-of-violence inquiry).

Describing the Wisconsin offense as “inherently . . .

coercive,” our decision in Billups goes on to draw

parallels between false imprisonment and the listed

crimes of extortion and burglary—crimes that can be

committed in a nonviolent manner and yet still carry

a substantial risk of harm. 536 F.3d at 583.

Capler insists that recent precedent in this circuit

calls into question the similar-in-kind analysis. In sup-
14 Nos. 08-3975 & 09-2513

port he relies on several recent cases in which we

vacated crime-of-violence determinations because the

predicate statutes covered nonviolent conduct. See Goodpasture, 595 F.3d at 672; Hart, 578 F.3d at 679; Evans, 576

F.3d at 769; United States v. Templeton, 543 F.3d 378, 384

(7th Cir. 2008). None of these cases, however, addresses

unlawful restraint; nor does any case purport to modify

the legal inquiry followed in Billups. These cases do not,

as Capler suggests, support the proposition that an indivisible statute can never be categorized as a violent

crime if it encompasses some nonviolent conduct. Rather,

the predicate offenses in these cases simply involved

relatively passive conduct, conduct too dissimilar to

warrant comparison with unlawful restraint. For example, Templeton and Hart involved escape offenses that

cover such passive, nonaggressive conduct as walking

away from nonsecure custody, see Templeton, 543 F.3d

at 381; Hart, 578 F.3d at 677, and Goodpasture examined

a statute prohibiting lewd and lascivious conduct involving a person under fourteen, see Goodpasture, 595

F.3d at 672. And though the aggravated-battery crime

deemed nonviolent in Evans would appear closer to the

mark, the outcome of that case is misleading because the

government gave it away by failing to argue that the

predicate crime of conviction (insulting or provoking

physical contact with a pregnant woman) is characteristically violent and agressive. See Evans, 576 F.3d at 769.

As for the second part of the Begay inquiry that

focuses on the potential for physical injury, Capler

argues that Billups and Wallace should be reconsidered

in light of the Supreme Court’s decision in Chambers, 129
Nos. 08-3975 & 09-2513 15

S. Ct. at 692-93. Noting that Chambers places an emphasis

on empirical data in the analysis of potential risk, Capler

appears to contend that Chambers calls into question

the validity of any evaluation conducted without benefit of statistics. But Capler can point to no language in

Chambers requiring the use of empirical data; nor does

he cite a federal decision interpreting Chambers as

doing so. The Supreme Court in Chambers may have encouraged the use of statistical data in determining

whether an offense carries a risk of injury, but the Court

does not require it. See United States v. Alexander, 609

F.3d 1250, 1256-57 (11th Cir. 2010); see also Sonnenberg,

628 F.3d at 366 (“[I]n the absence of detailed statistical

information that is unlikely to be available, the best we

can do is use common sense and experience to determine the variety of crimes a statute would cover . . . .”);

Welch v. United States, 604 F.3d 408, 424 (7th Cir. 2010),

petition for cert. filed, 79 U.S.L.W. 3129 (Sept. 1, 2010)

(No. 10-314) (post-Chambers case conducting risk-ofinjury analysis without data); Patterson, 576 F.3d at 442

(same).

Capler maintains that Chambers dislodged certain

precedents underlying this court’s holding in Wallace,

casting further doubt on the decision. In Wallace we

cited two escape cases, United States v. Franklin, 302

F.3d 722, 725 (7th Cir. 2002), and United States v.

Bryant, 310 F.3d 550, 554 (7th Cir. 2002), as examples of

categorically violent offenses that encompass potentially

harmful conduct. See Wallace, 326 F.3d at 887. Our

focus was on the crime of escape and the dangers
16 Nos. 08-3975 & 09-2513

attendant to fleeing confinement. Id. The holding in

Chambers, however, concerned only the crime of failure

to report—an offense the Supreme Court distinguished

from traditional escape as being far less likely to result

in harm. Chambers, 129 S. Ct. at 691.

As yet another basis for attacking Wallace, Capler contends that the decision is inconsistent with Hagenow,

423 F.3d at 644, which holds that one part of Indiana’s

criminal-confinement statute is not a violent felony.

This argument has no merit. We addressed the apparent

tension between Wallace and Hagenow in Gilbert, 464 F.3d

at 682, and then again in Billups, 536 F.3d at 582. These

decisions foreclose the need for further discussion.

In the end we are left with no reason to question the

continuing validity of Wallace and Billups. As a faithful

application of Begay to a closely analogous crime, Billups

lends support to our holding here. But our lengthy

defense of Billups should not distract focus from

Wallace, the only decision in this circuit that has

analyzed the Illinois crime of unlawful restraint, and

accordingly, the decision that controls the outcome of

this appeal. For the reasons we have explained, we are

satisfied that Wallace survived Begay, that the decision’s

analysis is in harmony with the present-day approach of

the Supreme Court, and that its holding remains sound.

The judgment of the district court is AFFIRMED.

4-1-11