United States v. Enoch

• Decision Date: 28 July 2017
• Docket Number: No. 16-1546,16-1546
• Citation: 865 F.3d 575
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Deandre ENOCH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

865 F.3d 575

UNITED STATES of America, Plaintiff–Appellee,

v.Deandre ENOCH, Defendant–Appellant.

No. 16-1546

United States Court of Appeals, Seventh Circuit.

Argued November 10, 2016

Decided July 28, 2017

Debra Riggs Bonamici, Attorney, Ankur Srivastava, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Carol A. Brook, Attorney, Geoffrey M. Meyer, Attorney, William H. Theis, Attorney, William Todd Watson, Attorney, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant.

Before Ripple, Manion, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

The government charged Deandre Enoch with robbing a person having custody of property belonging to the United States, under 18 U.S.C. § 2114(a) and brandishing a firearm in relation to a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(ii)¹ . He pleaded guilty to both counts but reserved his right to file an appeal disputing the district court's ruling that the former offense qualified as a crime of violence, thus rendering his brandishing a gun in connection with that offense a separate crime punishable under 18 U.S.C. § 924(c). Moreover, § 924(c)(1)(D)(ii) of that same statute requires that a court impose a consecutive sentence upon a defendant who carries a firearm in relation to a crime of violence. Consequently, Enoch's sentence increased significantly because the court considered the conviction under § 2114(a) to be a crime of violence which mandated the imposition of the consecutive sentence. Enoch now disputes that this underlying crime was a crime of violence. The district court concluded that it was, and sentenced Enoch to 24 months on Count 1 and a consecutive 84 months on Count 2. Enoch appeals, and we affirm.

I.

The indictment charged Enoch with (1) robbery of a person having lawful custody of money of the United States, and, in effecting the robbery, putting the life of that person in jeopardy by the use of a dangerous weapon, in violation of 18 U.S.C. § 2114(a) ; (2) brandishing a firearm during and in relation to a crime of violence, namely the robbery charged in Count I, in violation of 18 U.S.C. § 924(c)(1)(A).²

Under 924(c)(1)(D), a court must impose a consecutive sentence on those who are convicted under § 924(c)(1)(A), that is:

any person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm....

18 U.S.C. § 924(c)(1)(A).

In other words, the robbery of government property, ( 18 U.S.C. § 2114(a) ) was the underlying or anchor crime which, when accompanied by the brandishing of the firearm, constituted a separate offense under § 924(c) and required the court to sentence Enoch to consecutive sentences.

The only question in this case, therefore, is whether the underlying crime in 18 U.S.C. § 2114(a) —robbing another of government property—is a crime of violence such that it triggered the imposition of § 924(c). Section 924(c)(3) of the statute defines a crime of violence as follows:

(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and—

(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).

We can quickly dismiss the possibility that robbing another of government property ( 18 U.S.C. § 2114(a) ) constitutes a crime of violence under part B above, often referred to as the "residual clause." This court recently held, following Johnson v. U.S. , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and its analysis of a similar residual clause under the Armed Career Criminal Act, that this portion of the statute is unconstitutionally vague. United States v. Cardena , 842 F.3d 959, 996 (7th Cir. 2016).

That leaves us to focus solely on whether the underlying crime of robbing another of government property "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). For this we turn a magnifying glass back on that statute describing that predicate crime of robbery of government property:

(a) Assault. —A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.

18 U.S.C. § 2114(a).

If this robbery of government property offense constitutes a violent felony under 18 U.S.C. § 924(c)(3)(A), then the court properly denied Enoch's motion to dismiss Count 2, and correctly sentenced Enoch consecutively. If not, the district court erred. We review the district court's interpretation of § 924(c)de novo . Cardena , 842 F.3d at 1000.

In order to avoid a host of practical, fairness, and constitutional issues, the Supreme Court has determined that a sentencing court must not commit mini-trials to determine whether the conduct committed in an underlying or anchor crime was actually violent or not. Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 1690, 185 L.Ed.2d 727 (2013) ("The categorical approach serves ‘practical’ purposes: It promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact."); Chambers v. United States , 555 U.S. 122, 125, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) ("by so construing the statute, one avoids the practical difficulty of trying to ascertain at sentencing, perhaps from a paper record mentioning only a guilty plea, whether the present defendant's prior crime, as committed on a particular occasion, did or did not involve violent behavior.").

Instead, a court must use a categorical approach and look only to the statutory elements of the prior offense, and not to the particular facts underlying those convictions. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In doing so, the court assesses the elements of the underlying crime to see if they meet the definition of a "violent felony." Mathis , 136 S.Ct. at 2248. If the statute outlining the underlying offense sweeps more broadly than the generic crime described in the sentencing enhancement, a conviction of the underlying statute cannot count as a predicate offense. Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013).

When the predicate statute "sets out a single (or "indivisible") set of elements to define a single crime," the categorical approach is straight forward. Mathis , 136 S.Ct. at 2248. In some statutes however, like § 2114(a) here, the statute is divisible, that is, it contains within it crimes with different elements. For example, in this case the statute contains alternative elements of the crime—a defendant can commit the crime of robbery of government property, with or without wounding the victim and putting her life in jeopardy. If the defendant wounds or puts the victims life in jeopardy, the sentence increases from "not more than ten years" to "not more than twenty-five years." 18 U.S.C. § 2114(a). If statutory alternatives in a criminal statute carry different punishments, then they must be elements of different crimes. Mathis , 136 S.Ct. at 2256 (citing Apprendi v. New Jer sey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). And so, "[t]he first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means." Id. And if the statute with alternatively phrased options contains elements of different crimes, then the court may and should "review the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction." Id. In this case, the statute contains different elements and different punishments and therefore is divisible. The portion of the statute before the semi-colon on pages 578–79, supra, constitutes a different crime than the part of the statute after the semi-colon. The modified categorical approach, therefore, dictates that the court should look to record materials to determine which of the two alternatives played a part in Enoch's conviction under § 2114(a).

A court's review of the record materials is not unlimited, but to the contrary, quite conscribed. This limited review, called "the modified categorical approach," allows a court to look beyond the statutory definition to a limited number of documents to determine to which crime, with which elements, the defendant was convicted. Johnson v. United States , 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ; Mathis , 136 S.Ct. at 2249. The Supreme Court has instructed that a sentencing court may examine: "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). On the other hand, a "court may not consider police reports, complaint applications, or other sources that do not reflect either the defendant's own admissions or the findings of a judge...