United States v. Duncan

• Decision Date: 12 August 2016
• Docket Number: No. 15–3485,15–3485
• Citation: 833 F.3d 751
• Parties: United States of America, Plaintiff–Appellee, v. Darrell L. Duncan, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

833 F.3d 751

United States of America, Plaintiff–Appellee,

v.Darrell L. Duncan, Defendant–Appellant.

No. 15–3485

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2016

Decided August 12, 2016

Rehearing En Banc Denied October 3, 2016

Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Jennifer Soble, Attorney, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant–Appellant.

Before Rovner, Sykes, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

The only issue in this appeal is whether a conviction under Indiana's robbery statute, Indiana Code § 35–42–5–1, includes as an element “the use, attempted use, or threatened use of physical force against the person of another” such that it qualifies as a violent felony under the elements clause of the definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). Our conclusion that Indiana robbery is a violent felony might seem about as interesting as a prediction that the sun will rise in the east tomorrow. Nevertheless, the intricate law that has developed around the classification of prior convictions for recidivist sentencing enhancements can produce some surprising results. See, e.g., Mathis v. United States , 579 U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) (burglary conviction not a violent felony under ACCA); Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (battery conviction not a violent felony under ACCA); United States v. Gardner , 823 F.3d 793, 804 (4th Cir. 2016) (North Carolina common law robbery conviction not a violent felony under ACCA).

A person can commit robbery under Indiana Code § 35–42–5–1 by taking property by “putting any person in fear.” The statute itself does not tell us what the person must fear. Indiana case law teaches that the answer is fear of bodily injury. A conviction for such “robbery by fear” thus has as an element “the use, attempted use, or threatened use of physical force against the person of another.” A conviction for robbery under the Indiana statute qualifies under the still-valid elements clause of the ACCA definition of violent felony.

I. Factual Background

In May 2015, Darrell Duncan was arrested on outstanding warrants. Police discovered a loaded pistol near the site of his arrest. Duncan eventually admitted that it belonged to him. He pled guilty to a single count of being a felon and unlawful user of controlled substances in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), (g)(3), and 924(e).

Duncan had three prior Indiana state convictions for robbery, one in 2001, and two in 2008. The statute defines robbery as “knowingly or intentionally tak [ing] property from another person or from the presence of another person” either “by using or threatening the use of force on any person” or “by putting any person in fear.” Ind. Code § 35–42–5–1. Over Duncan's objection, the district court found that those three convictions counted as “violent felonies” under the ACCA. Without the enhancement, Duncan faced a maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). With the enhancement, he faced a mandatory minimum sentence of fifteen years, § 924(e)(1), which is the sentence the court imposed.

II. Analysis

Whether a prior offense constitutes a violent felony under the Armed Career Criminal Act is a question of law that we review de novo . United States v. Gilbert , 464 F.3d 674, 677 (7th Cir. 2006). We first discuss the standards that govern whether a crime is a violent felony and then apply those standards to Indiana's robbery statute. Under the ACCA:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

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

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). Clause (ii) does not apply to Duncan's convictions. Robbery does not fit the specific list of offenses in the first half of the provision, and the Supreme Court invalidated the final clause—“otherwise involves conduct that presents a serious potential risk of physical injury to another”—as unconstitutionally vague in Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). We must focus on the “elements clause” of the definition of “violent felony” in § 924(e)(2)(B)(i).

“The meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a question of federal law....” Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). (For the sake of clarity, we refer to the Supreme Court's 2010 Johnson ACCA decision as Curtis Johnson and its 2015 ACCA decision as Samuel Johnson.) In Curtis Johnson, the issue was whether a Florida conviction for battery, which as a matter of state law could be based on “any intentional physical contact, ‘no matter how slight,’ ” qualified as a violent felony. Curtis Johnson , 559 U.S. at 138, 130 S.Ct. 1265, quoting State v. Hearns , 961 So.2d 211, 218 (Fla. 2007) (emphasis in original). The Court concluded that for purposes of the elements clause in § 924(e)(2)(B)(i), “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265 (emphasis in original). Because even slight contact could support a conviction under the statute, Curtis Johnson's battery conviction did not qualify as a predicate violent felony under ACCA. Id. at 145, 130 S.Ct. 1265.

In Curtis Johnson, the government argued unsuccessfully that the term “force” in § 924(e)(2)(B)(i) could, in fact, be satisfied by simple offensive touching. One of the government's arguments and the Court's response are particularly relevant here. The government argued that the absence of language in § 924(e)(2)(B)(i) specifying that “physical force” must rise to the level of bodily injury “proves that the merest touch suffices.” Id. at 143, 130 S.Ct. 1265. The Court rejected that argument with language that guides us here:

Specifying that “physical force” must rise to the level of bodily injury [in a different statutory section] does not suggest that without the qualification “physical force” would consist of the merest touch. It might consist, for example, of only that degree of force necessary to inflict pain—a slap in the face, for example.

Id. While mere touching is not enough to show physical force, the threshold is not a high one; a slap in the face will suffice.

With this understanding of “physical force” in mind, we turn to Indiana Code § 35–42–5–1. To determine when a prior conviction counts as a predicate offense under the ACCA, sentencing courts apply the “categorical” approach, looking only to the statutory elements of the offense, not the actual facts underlying the conviction. Descamps v. United States , 570 U.S. ––––, ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013), quoting Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The issue is whether the Indiana robbery statute “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The statute reads in relevant part:

A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear; commits robbery, a Level 5 felony.

Ind. Code § 35–42–5–1. Duncan focuses on the second subsection, arguing that because a person can be convicted for putting another person in fear, the offense does not include the use, attempted use, or threatened use of physical force against another as an element.¹

The answer depends on what Indiana courts require to convict a person of robbery by putting a person in fear. We begin with our opinion in United States v. Lewis , 405 F.3d 511 (7th Cir. 2005), on which the district court correctly relied. Lewis held that a conviction for robbery under Indiana state law constituted a crime of violence under both the residual clause and the elements clause of the Sentencing Guideline definition of crime of violence in U.S.S.G. § 4B1.2(a) for the career offender guideline. The elements clauses of the ACCA definition and the Guideline definition are identical, so they have been interpreted to cover the same scope. United States v. Woods , 576 F.3d 400, 403–04 (7th Cir. 2009) ; compare 18 U.S.C. § 924(e)(2)(B)(i) with U.S.S.G. § 4B1.2(a)(1).²

In Lewis, we reasoned that because robbery “entails taking property from the person of another by force or threat,” it had as an element “the use, attempted use, or threatened use of physical force.” Lewis , 405 F.3d at 514. Recognizing the possibility that the statute covers robbery by putting another person in fear, without mentioning physical force, we explained: “The ‘fear’ in this formulation is fear of physical injury rather than of defamation; § 35–42–5–1 is not a blackmail statute.” Id., citing Cross v. State , 235 Ind. 611, 137 N.E.2d 32 (1956), and Rigsby v. State , 582 N.E.2d 910, 912 (Ind. App. 1991) ; see also Jones v. State , 859 N.E.2d 1219, 1225 (Ind. App. 2007), quoting Rigsby. In other words, we held that an Indiana robbery conviction satisfied the elements clause of the definition of a crime of violence. We also said that even without actual force, a robbery intrinsically involves “conduct that presents a serious potential risk of physical injury to another,” making it a crime of violence under the Guidelines' residual clause as well. Lewis , 405 F.3d at 514.

Duncan...