USA v. Deandre Bishop, No. 08-1950 (7th Cir. 2009)
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N ON PRECED EN TIAL D ISPOSITION To be cited on ly in accord an ce w ith Fed . R. Ap p . P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued January 6, 2009 Decided August 17, 2009 Before MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge DIANE S. SYKES, Circuit Judge No. 08-1950 UNITED STATES OF AMERICA, Plaintiff-Appellee, Appeal from the United States District Court for the Western District of Wisconsin v. No. 07-CR-157-bbc DEANDRE BISHOP, Defendant-Appellant. Barbara B. Crabb, Chief Judge. ORDER This appeal is one of several recent cases challenging a district court s classification of a prior offense as a crime of violence under U.S.S.G. § 4B1.2. Deandre Bishop pleaded guilty to possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court found that Bishop was a career offender under U.S.S.G. § 4B1.1 because Bishop had two prior felony convictions for a crime of violence. The court accordingly sentenced No. 08-1950 Page 2 Bishop to 188 months imprisonment. One of the two crimes that predicated the enhancement was a conviction under Wisconsin law for second-degree reckless endangerment. See Wis. Stat. § 941.30(2). Bishop argues that, under Begay v. United States, 128 S. Ct. 1581 (2008), and United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008), a crime requiring a mental state of recklessness is not a crime of violence under § 4B1.1. Bishop is correct. As we recently held in United States v. Woods, No. 07-3851, 2009 WL 2382700 (7th Cir. Aug. 5, 2009), the mental state of recklessness does not satisfy the standards established by the Supreme Court in Begay. Second-degree reckless endangerment, in violation of Wis. Stat. § 941.30(2), is therefore not a crime of violence for the specific purpose of the career-offender enhancement, and the district court therefore erred by sentencing Bishop under § 4B1.1. See United States v. High, No. 08-1970, 2009 WL 2382747 (7th Cir. Aug. 5, 2009) (holding that a felony conviction for violating Wis. Stat. § 941.30(2) is not a violent felony as that term is used in the Armed Career Criminal Act). In light of these recent decisions, Bishop s other arguments that his sentence is substantively unreasonable and that the district court mistakenly believed that the state would make his state sentence concurrent to the federal sentence are moot. We therefore V ACATE the sentence and R EMAND for further proceedings in light of Begay.
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