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In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1383

United States of America,

Plaintiff-Appellee,

v.

Alejandro Alvarez-Martinez,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 CR 51-1--George W. Lindberg, Judge.

Argued November 14, 2001--Decided April 12, 2002



  Before Coffey, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge.  In this
appeal, Alejandro Alvarez-Martinez
challenges the sentence he received for
the offense of being present in the
United States, without the express
consent of the Attorney General, after
having previously been deported as a
convicted felon. See 8 U.S.C. sec.
1326(a). The district court concluded
that Alvarez's prior Illinois conviction
for burglary of a vehicle constituted an
"aggravated felony" for purposes of the
Sentencing Guidelines, and thus increased
his base offense level of 8 by 16 more
levels under U.S.S.G. sec. 2L1.2(b).
Alvarez argues that this was error,
because in Illinois burglary of a vehicle
is not on its face a crime of violence.
We conclude that, in the circumstances of
this case, the earlier offense qualified
as an aggravated felony and we therefore
affirm.

I

  Although Alvarez is still a Mexican
citizen, he came to the United States
with his parents while he was a young
child, before he started grade school. On
August 11, 1990, he broke into a locked
car and stole the stereo system. He was
caught and charged in a criminal
information with burglary, in violation
of what is now 720 ILCS 5/19-1(a). He
pleaded guilty to that charge and was
sentenced to six years' imprisonment. Two
years into that sentence, the Immigration
and Naturalization Service (INS)
initiated deportation proceedings against
him. This laid the groundwork for his
deportation in 1993. Upon his release
from custody, he was arrested and
formally warned that re-entry into the
United States after deportation, in the
absence of express permission from the
Attorney General, would violate 8 U.S.C.
sec. 1326, a criminal statute. Alvarez
signed an acknowledgment (in Spanish)
that he had received this warning. He was
deported to Mexico in September 1993 as
an aggravated felon.

  These warnings evidently did not have
much of an in terrorem effect: four
months later, in January 1994, Alvarez
returned to the United States illegally.
He made his way back to Elgin, Illinois,
where he was arrested on January 22,
1994, on charges of battery and resisting
a peace officer. In short order, he was
charged on February 22, 1994, in a
criminal information with violating 8
U.S.C. sec.sec. 1326(a) and (b), by
respectively being present in the United
States without the Attorney General's
permission and also after arrest and
deportation for commission of an
aggravated felony.

  Alvarez agreed to a written plea
agreement, and, in keeping with its
terms, he pleaded guilty to the charge in
the information. In the agreement, he
reserved the right to argue that his 1991
Illinois burglary conviction was not, as
a matter of law, an "aggravated felony"
for purposes of U.S.S.G. sec. 2L1.2.
Although Alvarez was scheduled to be
sentenced in September 1994, in late
August he fled, and a warrant was issued
for his arrest. He remained a fugitive
until July 2000, when the Elgin police
again found him and arrested him on a
variety of other charges. Sentencing
proceeded, and as we note in more detail
below, the district court rejected his
argument about sec. 2L1.2, added 16
levels to the base level of eight, added
two more for obstruction of justice
because of his flight, and refused to
make any downward adjustments, giving him
a final offense level of 26. With 14
criminal history points, he fell in
Criminal History Category VI. The court
sentenced him at the bottom of that range
to 120 months' imprisonment.

II

  Before moving to the merits of Alvarez's
appeal, we must confirm that we have
proper appellate jurisdiction over it.
The problem relates to the timeliness of
his notice of appeal, and more
specifically to the propriety of the
district court's order granting him an
extension of time under Fed. R. App. P.
4(b)(4). The district court entered its
judgment on January 30, 2001, which meant
that his notice of appeal had to be filed
by February 9, 2001, in order to be
timely. See Fed. R. App. P. 4(b)(1),
26(a)(2). Alvarez did not file by that
date. Instead, on February 13, his lawyer
moved for an extension of time under Fed.
R. App. P. 4(b)(4), which provides that:

[u]pon a finding of excusable neglect or
good cause, the district court may--
before or after the time has expired,
with or without motion and notice--extend
the time to file a notice of appeal for
a period not to exceed 30 days from the
expiration of the time otherwise
prescribed by this Rule 4(b).

The government did not oppose the motion.
At a hearing on February 15, the court
granted it with no explanation. Alvarez
filed his notice of appeal that very day.

  Our review of the district court's
decision is only for abuse of discretion.
See United States v. Brown, 133 F.3d 993,
996 (7th Cir. 1998). Even with that
generous standard of review, the present
case strikes us as a borderline one. On
the one hand, the reasons counsel offered
for his failure to file by February 9 do
not thoroughly dispel the notion that he
just miscalculated the date. Counsel told
the district court that he did not think
Alvarez wanted to appeal, that he did not
meet with Alvarez after sentencing, that
he thought Alvarez had mental problems,
and that counsel himself was coping with
two deaths in his family. Counsel did not
speak to Alvarez until February 12, when
he confirmed that Alvarez wanted to
appeal. On the other hand, the district
court reasonably might have inferred from
this account that the real problem was
not carelessness in calculating the date,
but a more serious potential problem of
communication with the client. The court
was undoubtedly well aware that if the
lawyer had abandoned Alvarez at this
critical juncture, Alvarez would have
been entitled to file a motion under 28
U.S.C. sec. 2255 claiming ineffective
assistance of counsel through a failure
to file a notice of appeal. See Roe v.
Flores-Ortega, 528 U.S. 470 (2000). If
the court thought the likelihood of
success was sufficiently high on such a
motion, it reasonably might have
concluded that good cause had also been
shown to extend the time for filing a
notice of appeal in the ordinary course,
thus avoiding the need for a time-
consuming ancillary proceeding.

  It would have been helpful if the
district court had given its reasons for
ruling as it did, but we see no need to
remand for a statement of reasons if they
can be discerned from the record we have.
We are satisfied that this is not a
simple case of miscalculation, which
would have required us to dismiss the
appeal for lack of appellate
jurisdiction. See United States v.
Marbley, 81 F.3d 51, 52 (7th Cir. 1996);
United States v. Guy, 140 F.3d 735 (7th
Cir. 1998). And while it is not at all
excusable for a lawyer to fail to file a
timely notice of appeal in a criminal
matter, especially if the only reason is
preoccupation with other matters, see In
re Plunkett, 82 F.3d 738, 742 (7th Cir.
1996), we must also take into account the
Supreme Court's guidance in the analogous
area of bankruptcy appeals governed by
Bkr. Rule 9006. See Pioneer Investment
Services Co. v. Brunswick Associates
Limited Partnership, 507 U.S. 380 (1993);
see also Stutson v. United States, 516
U.S. 193 (1996) (recognizing possible
applicability of Pioneer Investment
toappeals governed by Fed. R. App. P.
4(b)). The overriding message of Pioneer
Investment is that the district court has
broad powers under rules like Bkr. Rule
9006 or Fed. R. App. P. 4 to grant
extensions of time. By granting an
extension here, the district court
allowed counsel to mend a potentially
disastrous lapse in representation. The
problem was raised promptly to the court;
the notice of appeal was filed
immediately after the extension of time
was granted; and the opposing party
suffered no prejudice. We conclude that
the district court did not abuse its
discretion and that the appeal is thus
properly before us.

III

  On the merits, Alvarez asks us to find
that the district court erred in
concluding that his 1991 burglary was an
"aggravated" felony for purposes of sec.
2L1.2 of the Sentencing Guidelines. There
is no doubt that this characterization
makes a considerable difference to him.
Under that guideline, a simple violation
of 8 U.S.C. sec. 1326 carries an offense
level of 8. If the defendant's earlier
deportation was because of a conviction
of a felony, four more levels are added;
if it was for conviction of an aggravated
felony, 16 more levels are added. The
extra 12 levels translate into something
like an 80-month difference in the
sentence, depending on where in the
authorized range the actual sentence
falls. (We note for the sake of
completeness that we are conducting this
analysis, as the district court did,
under the 1993 version of the guidelines.
Any objection to the use of that manual
instead of the 2000 manual (the version
in effect at the time of Alvarez's
sentencing, and the one we would have ex
pected to be used) has been forfeited.
Furthermore, although sec. 2L1.2 was
amended effective November 1, 2001, there
is no argument before us that the amended
version should apply, and thus we make no
comment on how it would affect Alvarez's
case.)

  One type of aggravated felony is a
"crime of violence." That term is defined
by 18 U.S.C. sec. 16 as follows:

(a) an offense that has as an element the
use, attempted use, or threatened use of
physical force against the person or
property of another, or

(b) any other offense that is a felony
and that, by its nature, involves a
substantial risk that physical force
against the person or property of another
may be used in the course of committing
the offense.

Alvarez's original conviction, which led
to his original deportation, was under
720 ILCS 5/19-1 ("Burglary"), which
reads:

A person commits burglary when without
authority he knowingly enters or without
authority remains within a building,
housetrailer, watercraft, aircraft, motor
vehicle[,] railroad car, or any part
thereof, with intent to commit therein a
felony or theft.

The government concedes that the statute
does not include as an element the "use,
attempted use, or threatened use of
physical force against the person or
property of another."

  Alvarez argues that because the formal
elements of the Illinois crime concededly
do not include violence, it cannot be a
crime of violence for purposes of the
federal statute and guidelines as a
matter of law. The government has two re
sponses: first, it argues that burglary
is always a crime of violence, because
there is always a "substantial risk that
physical force against the . . . property
of another may be used"; second, it
argues that in this case Alvarez actually
used violence and thus the 16-level
enhancement was proper for him. We
address these in turn.

  We have no quarrel with the proposition
that the label a state attaches to a
criminal statute may not end our inquiry.
The Supreme Court held in Taylor v.
United States, 495 U.S. 575 (1990), that
(at least for purposes of 18 U.S.C. sec.
924(e)) the meaning of the term
"burglary" in the federal statute did not
depend on the definition adopted by the
state of conviction. Id. at 590. Instead,
Congress wanted a uniform definition,
which the Court concluded came from the
"generic sense" in which the term
"burglary" is now used in the criminal
codes of most states. Id. at 598. Indeed,
we have already held that "burglary" for
purposes of deportation under 8 U.S.C.
sec. 1101(a)(43)(G) must be understood in
its generic sense. See Solorzano-Patlan
v. INS, 207 F.3d 869 (7th Cir. 2000). In
Solorzano-Patlan, Solorzano burglarized a
motor vehicle and not a building; we
concluded that the burglary of the
vehicle was not a "burglary offense" for
purposes of the deportation statute. Id.
at 874-75. We also rejected the INS's
argument that burglary of a vehicle is
always and necessarily a crime of
violence. Id. at 875-76. We realize that
other decisions have found that
particular statutes do define a burglary
crime that is necessarily a crime of
violence, but each statute is somewhat
different, and it is our task to work
with the Illinois law. Compare Lopez-
Elias v. Reno, 209 F.3d 788, 792 (5th
Cir. 2000); United States v. Guzman-
Landeros, 207 F.3d 1034, 1035 (8th Cir.
2000).

  To say that the Illinois crime of
burglary of a vehicle is not always a
crime of violence is not the same as
saying that it never is, which is what
Alvarez argues. In fact, as Solorzano-
Patlan recognizes, the Illinois statute
encompasses some conduct that is properly
seen as a crime of violence and some that
is not. 207 F.3d at 875. This takes us to
the second argument in the case: is there
particular information on which we may
properly rely that tells us which kind of
burglary Alvarez committed?

  Logically, we see three options: first,
we might look only to the face of the
charging document; second, we might look
to uncontested or stipulated information
in addition to that document; and
finally, we might look to all available
evidence, resolving disputes through an
evidentiary hearing if necessary. This is
a familiar issue in this court,
whichconsidered an analogous problem in
United States v. Shannon, 110 F.3d 382
(7th Cir. 1997) (en banc). In Shannon,
the court opted to continue adhering to
the principle that "the characterization
of a previous conviction offered to
enhance the defendant's federal sentence
is to be based on the facts charged in
the indictment (or, as here, the
information), without a deeper inquiry
into the circumstances of the offense."
Id. at 384. Shannon also recognized that
deviation from that principle was
justified when two conditions existed:
first, that it was impossible otherwise
to determine the proper classification of
the offense, and second, that the
deviation did not require a hearing to
resolve contested factual issues. Id. We
think this outlines the proper approach
for the case before us as well, even
though the specific statutes and charges
are different. See Xiong v. INS, 173 F.3d
601, 604-07 (7th Cir. 1999).

  Looking only to the charging document
here leaves us unable to determine
whether Alvarez's prior conviction was a
"crime of violence," for the reasons we
have already explained. The first of the
two conditions we described is therefore
satisfied: without further examination,
we will not be able to determine the
proper classification of the offense.
What about the second? We know that the
original Presentence Report set forth the
details of Alvarez's 1991 crime, thinking
that this was the proper approach after
consultation with the Sentencing
Commission Hotline. The PSR indicated
that the Elgin, Illinois, Police
Department arrest record showed that:

[O]n August 11, 1990, the defendant was
charged with breaking into a vehicle and
stealing a stereo system. The report
indicates that the vehicle's doors were
locked and the passenger side window had
been pried open to gain entrance.

Alvarez did not file any objection to
that version of the PSR, because he
decided to abscond instead. After he had
been caught and returned for resumed
sentencing proceedings, his lawyer
objected to the PSR's recommendation for
the enhanced sentence on the legal ground
that the Illinois statute did not
describe a crime of violence. Counsel did
not object specifically to the facts in
the report, however; to the contrary, at
the sentencing hearing on January 19,
2001, counsel conceded on Alvarez's
behalf that Alvarez had broken into the
vehicle and taken the stereo. Moreover,
in his opening brief to this court
Alvarez did not consider the question
whether this is one of those cases in
which factual information beyond that
which appears in the charging documents
may be considered. He addresses this
point in his reply brief, but arguments
raised for the first time in a reply
brief are too late.

  We conclude that Alvarez's acquiescence
in the factual account presented in the
PSR gives us the equivalent of a
stipulation of facts. Alvarez has argued
only that those stipulated facts cannot
lead to the legal conclusion urged by the
government, namely, that the 16-point
enhancement was proper. We disagree. The
existence of the de facto stipulation
means that no evidentiary hearing will be
necessary on this point, and the
additional facts allow us to decide how
to characterize Alvarez's offense. The
act of prying open the window of a locked
vehicle qualifies as a use of physical
force against the property of another, as
18 U.S.C. sec. 16(a) uses the term--this
was not a case in which the car owner
carelessly left her doors unlocked and
returned to find her collection of
compact discs stolen, all with no damage
to the car.

  We therefore Affirm the judgment of the
district court.
.


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