United States v. Armour

• Decision Date: 01 November 2016
• Docket Number: No. 15-2170,15-2170
• Parties: United States of America, Plaintiff–Appellee, v. Deandre Armour, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

840 F.3d 904

United States of America, Plaintiff–Appellee,
v.
Deandre Armour, Defendant–Appellant.

No. 15-2170

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2016
Decided November 1, 2016

William L. McCoskey, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

Michelle L. Jacobs, Vanessa K. Eisenmann, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant–Appellant.

Before Rovner, Sykes, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

This appeal stems from an attempted bank robbery. It presents issues concerning the defendant's sentence and the definition of a “crime of violence” in 18 U.S.C. § 924(c), which provides extra punishment for use of a firearm in committing a crime of violence. We affirm the district court's judgment for the most part, but we must remand for re-sentencing on one count of conviction because the court imposed a mandatory minimum sentence under § 924(c) without a jury finding on the key fact.

I. The Attempted Bank Robbery, Trial, and Sentence

On the morning of June 26, 2013, appellant Deandre Armour directed two other men as they attempted to rob a bank branch in a suburb of Indianapolis. Duryea Rogers and Xavier Hardy hid outside the bank entrance and forced a teller into the bank at gunpoint as she was opening the locked door. Armour sat in the bank parking lot and directed Rogers and Hardy by radio. Armour had recruited Rogers and

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Hardy before the robbery. He supplied them with clothing, reserved their hotel rooms, and orchestrated the plan.

Inside the bank, Hardy stood lookout for more arriving employees while Rogers ordered the teller to disable the bank's alarm and open the safe. No other bank employees were trying to go inside the bank because they had not been given the all-clear signal. In the meantime, the teller inside the bank was unable to open the safe. Once Rogers realized the bank teller could not open the safe, he told Armour over the radio that they needed to abort the robbery. Rogers and Hardy forced the teller to the floor, tied her with plastic “zip ties,” and stole her car to flee. All three men were arrested quickly; two firearms were found with them.

Rogers and Hardy pled guilty. Both testified against Armour, who went to trial. The jury found Armour guilty on three charges: conspiracy to commit armed bank robbery under 18 U.S.C. § 371 ; aiding and abetting attempted armed bank robbery under 18 U.S.C. § 2113(a) and (d) and § 2 ; and aiding and abetting using or carrying and/or brandishing a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). Armour was sentenced to a total of 324 months (27 years) in prison. The sentence included an 84–month (seven-year) consecutive sentence on the § 924(c) charge, which is the mandatory minimum sentence for brandishing a firearm.

On appeal, Armour does not challenge his convictions for conspiracy and aiding and abetting the attempted bank robbery. He makes three arguments. First, he argues his entire sentence was erroneously based on a finding that he was a career offender under the Sentencing Guidelines. He contends, based on Samuel Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that two prior Indiana convictions for robbery should no longer qualify as “crimes of violence” under the Guidelines. (Since there are two relevant opinions called Johnson v. United States , we include first names.) Second, also based on Samuel Johnson, he contends that the § 924(c) firearm conviction must be reversed because the underlying predicate offense, attempted armed bank robbery, should not qualify as a “crime of violence.” Third, if his § 924(c) conviction stands, Armour contends that the seven-year mandatory minimum § 924(c) sentence should be vacated under Alleyne v. United States , 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the jury did not find that he aided and abetted the “brandishing” of the firearms during the attempted robbery. We affirm on the first two issues but agree with Armour on the last.

II. Indiana Robbery as a “Crime of Violence”

Armour was sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines. That designation depended on treating as crimes of violence two prior convictions for robbery under Indiana law. Based on Samuel Johnson, Armour argues that those Indiana robbery convictions under Ind. Code § 35–42–5–1 should not be treated as “crimes of violence” under § 4B1.1. Armour's trial counsel objected to the career offender designation and mentioned the Samuel Johnson case, which was then awaiting a decision by the Supreme Court.

After Armour was sentenced, the Supreme Court held in Samuel Johnson that the “residual clause” in the definition of a “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2), is unconstitutionally vague. 576 U.S. at ––––, 135 S.Ct. at 2557. We recently held that Samuel Johnson applies to invalidate the virtually identical residual clause of the definition of “crime of violence” in

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§ 4B1.2(a) of the advisory Sentencing Guidelines. United States v. Hurlburt , 835 F.3d 715 (7th Cir.2016) (en banc). Those decisions leave intact the “elements clause” of the “crime of violence” definition under § 4B1.2(a)(1), which applies to Armour's convictions for robbery.

Armour argues that Indiana robbery does not qualify as a crime of violence under the elements clause of § 4B1.2 because it may be committed not only by using or threatening the use of force but also by “putting any person in fear.” Ind. Code § 35–42–5–1.¹ He argues that “putting any person in fear” does not necessarily involve “the use, attempted use, or threatened use of physical force against the person of another.”

In United States v. Duncan , 833 F.3d 751 (7th Cir. 2016), we rejected the same argument based on “putting any person in fear” as applied to the elements clause of the definition of a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). We explained in Duncan that the “fear” in the Indiana robbery statute is fear of bodily injury, and Indiana courts have interpreted the statute so that “robbery by placing a person in fear of bodily injury under Indiana law involves an explicit or implicit threat of physical force and therefore qualifies as a violent felony” under the statute. 833 F.3d at 758 ; see also United States v. Lewis , 405 F.3d 511, 514 (7th Cir. 2005). The reasoning of Duncan extends to the career offender Guideline here. The district court properly sentenced Armour as a career offender under the Guidelines.

III. Federal Attempted Bank Robbery as a “Crime of Violence”

Armour was convicted of using, carrying, and/or brandishing a firearm “during and in relation to any crime of violence” in violation of 18 U.S.C. § 924(c). Armour argues that the Supreme Court's decision in Samuel Johnson requires us to reverse his conviction on that count because attempted armed bank robbery does not qualify as a “crime of violence” for purposes of § 924(c). We disagree because the federal crime of attempted armed bank robbery qualifies as a crime of violence under the “elements” clause of the definition, which is not unconstitutionally vague.

As noted, Samuel Johnson held that the residual clause of the definition of a “violent felony” in the Armed Career Criminal Act (ACCA) is unconstitutionally vague. 576 U.S. at ––––, 135 S.Ct. at 2557. Armour was not sentenced under the ACCA enhancement under § 924(e) but was convicted under 18 U.S.C. § 924(c)(1)(A), which provides:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possess a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... (i) be sentenced to a term of imprisonment of not less than 5 years.

The definition of “crime of violence” in § 924(c) tracks closely the ACCA definition that was struck down in part in Samuel Johnson, including the elements clause and the residual clause:

For purposes of this subsection the term “crime of violence” means an offense that is a felony and—

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

(B) 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.

18 U.S.C. § 924(c)(3). The Supreme Court has not said whether the residual clause of § 924(c)(3) is also unconstitutionally vague, though the parallels to Samuel Johnson and the ACCA definition are strong. We need not decide that question here, however. Armour's conviction for attempted bank robbery under 18 U.S.C. § 2113(a) satisfies the elements clause of the definition of the “crime of violence.”

Since Armour did not raise this issue of law in the district court, our review...