U.S. v. Wicks, 96-2465

• Citation: 132 F.3d 383
• Decision Date: 22 December 1997
• Docket Number: No. 96-2465,96-2465
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benny R. WICKS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 383

132 F.3d 383

UNITED STATES of America, Plaintiff-Appellee, v. Benny R. WICKS, Defendant-Appellant.

No. 96-2465.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 28, 1997.

Decided Dec. 22, 1997.

Norman R. Smith (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Mary Wiggins and Mary Endres, Law Students (argued), Robert J. Palmer, May, Oberfell & Lorber, South Bend, IN, for Defendant-Appellant.

Before CUDAHY, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Benny Wicks, no stranger to the criminal justice system, raises in this appeal a potpourri of challenges to the federal "Three Strikes" statute, 18 U.S.C. § 3559(c), under which Congress has prescribed a mandatory sentence of life imprisonment for certain recidivist "violent felons." Wicks was declared "out" under the statute when he was convicted for violating the federal armed bank robbery statute, 18 U.S.C. § 2113(a), and the statute prohibiting the use of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c). We find that the district court correctly interpreted the statute and that Wicks' constitutional arguments against it are unavailing, and we therefore affirm the judgment of the court below.

I

On September 23, 1994, Wicks entered the First National Bank of Xenia (Illinois) at 2:07 p.m. Armed with a shotgun and wearing a nylon stocking over his head and face, he approached the tellers and, in the presence of several witnesses and the bank's video surveillance camera, he handed the tellers a canvas bag and demanded that they fill it with money from the cash drawer. The tellers complied, but they also had the presence of mind to sound the alarm and to provide Wicks with both "bait money" (money with recorded serial numbers) and a dye pack (a bundle of money containing a packet of dye that explodes and stains the stolen money with ink). Wicks fled after receiving the bag of money, but he was arrested on September 29, 1994, with money tainted with pink dye in his possession.

On February 6, 1996, a jury convicted him of one count of armed bank robbery and one count of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 2113(a) and 924(c), respectively. Before sentencing, as it was required to do in order to trigger the provisions of § 3559(c)(1), the government filed an "Information Charging Prior Offenses For Mandatory Life Imprisonment." See 18 U.S.C. § 3559(c)(4), incorporating by reference the procedures set forth in 21 U.S.C. § 851(a). In that document, it alleged that Wicks had previously been convicted of two serious violent felonies. The first of these was a July 14, 1983, robbery conviction in Marion County, Illinois, for which he received a sentence of 3 years and 110 days, and the second was a February 19, 1992, robbery conviction in Madison County, Illinois, for which he received a sentence of 7 years.

Section 3559(c)(1) is one of a number of federal statutes that imposes harsher sentences on recidivists. See, e.g., 18 U.S.C. § 924(e) (Armed Career Criminal Act); 18 U.S.C. § 3147 (crimes committed while released on bail); 21 U.S.C. § 841(b) (repeat drug offenses). It reads as follows:

(1) Mandatory life imprisonment.--Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if-

(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of-

(i) 2 or more serious violent felonies; or

(ii) one or more serious violent felonies and one or more serious drug offenses; and

(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding

serious violent felony or serious drug offense.

The term "serious violent felony," as used in § 3559(c)(1), is defined in § 3559(c)(2)(F) as:

(i) a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111); manslaughter other than involuntary manslaughter (as described in section 1112); ... robbery (as described in section 2111, 2113, or 2118); ... or attempt, conspiracy, or solicitation to commit any of the above offenses; and

(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.

At the June 7, 1996, sentencing hearing, the district court, over Wicks' objection, agreed with the government that both prior robbery convictions qualified as serious violent felonies under § 3559(c)(2)(F)(i) and thus could be counted as two of the necessary three strikes for mandatory life imprisonment (with the bank robbery serving as the third strike). It relied on the fact that 18 U.S.C. § 2113, one of the statutes mentioned in § 3559(c)(2)(F)(i), prohibits bank robberies and associated offenses, and that the state offenses for which Wicks was convicted were essentially the same thing (though not involving a bank). Wicks' prior convictions could not have qualified as serious violent felonies under (F)(ii), because under Illinois law, the maximum term of imprisonment for robbery was only 7 years. See 720 ILCS 5 /18-1(b) (identifying robbery as a Class 2 felony); 730 ILCS 5 5-8-1(a)(5) (Class 2 felonies shall receive sentences between 3 and 7 years). The court therefore imposed a mandatory sentence of life imprisonment for Wicks' § 2113(a) conviction, and a "consecutive" 60-month sentence on his § 924(c) conviction.

II

Wicks argues both that the district court erred in its interpretation of the statutory definition of "serious violent felony," and in the alternative that the Three Strikes law is unconstitutional. We review these arguments de novo, see United States v. Turner, 93 F.3d 276, 286 (7th Cir.1996) (constitutional arguments); United States v. Fife, 81 F.3d 62, 63 (7th Cir.1996) (statutory interpretation), except insofar as he failed properly to preserve them for appeal. With respect to the latter, our review is only for plain error. See United States v. Rector, 111 F.3d 503, 507 (7th Cir.1997).

In arguing that the district court misinterpreted the statute, Wicks takes a highly literal approach, under which, in essence, no state offense would ever qualify unless it replicated every word of 18 U.S.C. § 2113. A robbery conviction would qualify, he believes, only if it has exactly the same elements as one of the robberies identified by Congress in § 3559(c)(2)(F)(i). Under this view, in addition to the basic elements of the taking of property from another by the use or threatened use of force, see generally Model Penal Code § 222.1, the offense must have occurred either within the special maritime and territorial jurisdiction of the United States (18 U.S.C. § 2111) or in a bank (18 U.S.C. § 2113), or in connection with drugs in the control of "a person registered with the Drug Enforcement Administration under section 302 of the Controlled Substances Act" (18 U.S.C. § 2118). Since the elements of robbery under Illinois law do not include any of these additional elements, Wicks argues that the district court erred in counting his prior convictions as strikes. See 720 ILCS 5 /18-1(a) (defining robbery).

Wicks' approach ignores the wording of the statute and narrows it unduly. Congress did not simply provide a list of federal crimes and indicate that when the states had a precise counterpart the law would be triggered. Instead, it said that serious violent felonies included "Federal or State offense[s], by whatever designation and wherever committed." § 3559(c)(2)(F)(i). It is hard to see why Congress would have used this language, if it had meant that every detail of the federal offense, including its jurisdictional elements, had to be replicated in the state offense. Section 2111, for example, makes it a crime "within the special maritime and territorial jurisdiction of the United States" to "take or attempt[ ] to take from the person or presence of another" anything of value. No offense currently on the books in any state includes the requirement of occurring "within the special maritime and territorial jurisdiction of the United States"--in all likelihood because federal jurisdiction generally is exclusive in those areas. 18 U.S.C. §§ 7, 3231; cf. 40 U.S.C. § 255 (establishing requirements for federal assumption of jurisdiction); Adams v. United States, 319 U.S. 312, 314-15, 63 S.Ct. 1122, 1123-24, 87 L.Ed. 1421 (1943) (no federal jurisdiction absent compliance with § 255); United States v. Pate, 393 F.2d 44, 46-47 (7th Cir.1968) (same); Manley v. Burkhart, 40 Ohio St.3d 35, 531 N.E.2d 1306, 1308-09 (1988) (same). Robberies of federally insured banks and savings and loan associations, covered by § 2113, might be the subject of concurrent jurisdiction between the federal and state authorities, but it again makes little sense to exclude from the statute's coverage bank robberies from institutions that do not happen to satisfy the jurisdictional criteria of § 2113(f), (g), or (h).

In our view, the opening phrase of § 3559(c)(2)(F)(i) indicates that murders, manslaughters (other than those fitting within the definition of involuntary manslaughter provided in 18 U.S.C. § 1112(a)), and robberies, as exemplified by the three statutes listed, no matter what the name and no matter where they occur, count as prior "strikes." The fact that three statutes are used to illustrate the term "robbery" itself supports the interpretation we adopt here: we must look for the common theme among §§...