U.S. v. Boyd

• Decision Date: 30 January 2007
• Docket Number: No. 06-2431.,06-2431.
• Citation: 475 F.3d 875
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Artemas BOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

475 F.3d 875

UNITED STATES of America, Plaintiff-Appellee, v. Artemas BOYD, Defendant-Appellant.

No. 06-2431.

United States Court of Appeals, Seventh Circuit.

Argued November 14, 2006.

Decided January 30, 2007.

Winfield D. Ong (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Juval O. Scott (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

The defendant pleaded guilty to being a felon in possession of a gun and was sentenced to 46 months in prison. The sentence was influenced by the district judge's determination that the defendant had used the gun to commit another felony. A person who, "while armed with a deadly weapon," "recklessly . . . performs . . . an act that creates a substantial risk of bodily injury to another person" ("recklessly" being defined as committing the act "in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct") is guilty of a felony under Indiana law. Ind.Code §§ 35-41-2-2(c), 35-42-2-2(b), (c).

Except for being limited to cases in which the defendant is armed and the risk created by his conduct is that of physical injury, the Indiana statute tracks the normal understanding of criminal recklessness: "consciously disregard[ing] a substantial and unjustifiable risk that a material element exists or will result from his conduct." American Law Institute, Model Penal Code § 2.02(2)(c) (1962). There is no doubt that the defendant was armed with a deadly weapon and had the mental element required by the statute — conscious disregard of the risk. See Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir.1998); United States v. Gonsalves, 435 F.3d 64, 70 (1st Cir.2006). The only question is whether his conduct created a substantial risk of bodily injury. The judge's finding that it did is entitled to deference, United States v. Markovitch, 442 F.3d 1029, 1031 (7th Cir.2006); United States v. Wyatt, 102 F.3d 241, 246 (7th Cir.1996), as in other cases in which a trial judge is asked to apply a legal standard (here that of substantial risk) to basic facts, by which we mean facts uninfluenced by legal concepts, such as the fact that the defendant fired the gun. Whether the judge got the standard right—that is, correctly understood the meaning of "substantial risk of bodily injury" in Indiana law—is a separate question from whether she applied the correct standard correctly. Review of the answer to the first question is plenary and to the second deferential.

At 3:00 a.m. one morning, the defendant and his girlfriend left the Guvernment Bar and Lounge, a nightclub in downtown Indianapolis. The club was on the verge of closing for the night and other patrons were leaving, though we do not know how many. The front entrance to the club is on Market Street, and the couple left by that entrance and walked to an "alley" behind the club, though the satellite photograph appended to this opinion suggests that it is actually a parking lot. While there, the defendant fired six shots from a gun described in the record only as an FN Herstal pistol that holds 20 rounds of ammunition that can "penetrate up to 14 levels of body armor." The shell casings were found in the parking lot. No one was injured. The club is only a couple of blocks from Monument Circle, the Times Square of Indianapolis (but a very tame and quiet Times Square), and is situated among buildings. There is no indication of the bullets' trajectory or where they landed, though it seems undisputed that the defendant fired the shots into the air. The club has a rear entrance, but there is conflicting evidence on whether anyone was using it when or just before the defendant was shooting, and the judge made no finding.

The defendant argues that given the hour and the fact that there were no people in the direct line of fire (though his girlfriend, at least, was nearby, and there may have been other people in the parking lot as well), his shooting the pistol did not create a "substantial" risk of causing bodily injury. The FN Herstal (presumably the reference is to the FN Herstal FiveseveN Pistol, the only pistol Herstal makes that holds 20 rounds) "fires the SS190 5.7×28mm ball round. This projectile will perforate any individual protection on today's battlefield including the PASGT kevlar helmet, 48 layers of kevlar body armor and the CRISAT target (titanium and kevlar)." "The Arms Site," www. remtek.com/arms/fn/57/index.htm, visited Jan.18, 2007. Firing multiple shots from a powerful gun (as the FN Herstal is conceded to be, though the details in the record are sparser than those available on the Web) in the downtown of a large city at a time when pedestrians (the other patrons who were leaving the nightclub) are known to be in the vicinity creates a risk of harm that, while not large in probabilistic terms, is "substantial" relative to the gratuitousness of the defendant's actions. See, e.g., Woods v. State, 768 N.E.2d 1024, 1028 (Ind.App.2002) (defendant fired shots in residential area and there were persons near the line of fire); Smith v. State, 688 N.E.2d 1289, 1291 (Ind.App.1997) (defendant shot at old car parked in his backyard near a crowd that was attending a festival and there were homes in the vicinity); United States v. Cole, 298 F.3d 659, 662 (7th Cir.2002) ("discharging a firearm is an inherently risky act"); United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.1995) (drunk driving deemed reckless act because of the risk of physical injury that it creates); Orban v. Vaughn, 123 F.3d 727, 733 (3d Cir.1997) ("courts frequently have found that motor vehicle drivers exhibited the required level of recklessness while driving to justify a conviction for recklessly endangering another person"); McNabb v. State, 887 So.2d 929, 975 (Ala.Crim.App. 2001) ("the offense of reckless endangerment embraces such conduct as . . . `reckless driving[,] . . . dangerous conduct with firearms[,] . . . throwing objects at common carriers, dropping objects from toll bridges, placing equipment within six feet of a high voltage wire, shooting at an...