United States v. Jones

Citation689 F.3d 696
Decision Date27 July 2012
Docket NumberNo. 11–3719.,11–3719.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Andre L. JONES, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

689 F.3d 696

UNITED STATES of America, Plaintiff–Appellee,
v.
Andre L. JONES, Defendant–Appellant.

No. 11–3719.

United States Court of Appeals,
Seventh Circuit.

Argued June 6, 2012.
Decided July 27, 2012.


[689 F.3d 697]


Joseph H. Hartzler (argued), Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.

Daniel T. Hansmeier (argued), Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant–Appellant.

[689 F.3d 698]


Before EASTERBROOK, Chief Judge, and WOOD and SYKES, Circuit Judges.


SYKES, Circuit Judge.

Andre Jones was convicted of unlawfully possessing a firearm as a felon and was sentenced as an armed career criminal based in part on a prior Illinois conviction for vehicular fleeing, which the district judge counted as a third violent felony under the residual clause of the Armed Career Criminal Act (“ACCA”). See18 U.S.C. § 924(e)(2)(B)(ii). This classification triggered a mandatory minimum sentence of 15 years and raised the statutory maximum to life. The judge sentenced Jones to 184 months, just above the mandatory minimum.

Jones challenges only his sentence, raising a vagueness challenge to the residual clause. More specifically, he argues that the residual clause of the ACCA contains no discernible standard to guide its application and therefore permits arbitrary enforcement in violation of the Due Process Clause of the Fifth Amendment. This position has at least one notable proponent. See Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2284, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting). But a majority of the Supreme Court has rejected the argument, albeit only in response to dissents by Justice Scalia, not in the more formal sense of deciding an explicit void-for-vagueness challenge. See id. at 2277. Perhaps Jones can persuade the Court to directly consider the issue, but our hands are tied. We affirm Jones's sentence.

I. Background

On January 3, 2011, police officers in Springfield, Illinois, initiated a traffic stop of a vehicle in which Jones was riding as a passenger. As the officers began following the car, Jones threw a handgun out the window. When the driver pulled over, the officers obtained consent to search from both Jones and the driver. Jones had an empty handgun holster around his waist and 18 grams of marijuana in his shoe. The officers then retraced their route and retrieved the handgun from a driveway a few blocks away where Jones had tossed it. Jones admitted the gun was his.

Jones was indicted on several drug and gun charges. He eventually entered a guilty plea to one count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (e), and the government dismissed the other charges. The felon-in-possession offense normally carries a ten-year maximum and no minimum penalty. See18 U.S.C. § 924(a)(2). But if the defendant has three prior convictions for “violent felonies” as defined in the ACCA, he is subject to a mandatory minimum sentence of 15 years in prison and the maximum penalty is raised to life. See id. § 924(e)(1). Jones preserved his right to challenge the application of the ACCA at sentencing.

Jones's presentence report recommended that he be sentenced as an armed career criminal based on three qualifying violent felonies: Illinois convictions for robbery, aggravated robbery, and aggravated vehicular fleeing from a police officer. Jones conceded that the first two convictions qualified as violent felonies under § 924(e)(2)(B)(i). That subsection defines the term “violent felony” as any crime punishable by more than one year in prison that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” He also acknowledged that under our decision in Welch v. United States, 604 F.3d 408, 425 (7th Cir.2010), his vehicular-fleeing conviction qualified as a violent felony under the so-called “residual clause” of § 924(e)(2)(B)(ii). Under that provision a “violent felony” includes any crime punishable

[689 F.3d 699]

by more than one year in prison that “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)(ii) (emphasis added).

Jones argued that Welch notwithstanding, the residual clause is unconstitutionally vague and thus unenforceable under the Due Process Clause of the Fifth Amendment. The judge rejected this argument as implicitly foreclosed by the Supreme Court's decision in Sykes and sentenced Jones to 184 months in prison. This sentence fell just below the advisory guidelines range of 188 to 235 months and just above the ACCA's mandatory minimum of 180 months.

II. Discussion

Under the ACCA a felon who unlawfully possesses a firearm in violation of § 922(g)(1) is subject to steeply enhanced penalties—a minimum sentence of 15 years and a maximum of life—if he has three prior convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The statute defines a “violent felony” as

any crime punishable by imprisonment for a term exceeding one year ... 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.

Id. § 924(e)(2)(B). The final clause of this definition has come to be known as the “residual clause.” Subsection (ii) of the statute lists four specific but disparate crimes followed by the catchall “residual clause” that sweeps in any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”


The residual clause has eluded stable construction. The Supreme Court has heard four ACCA residual-clause cases in fairly rapid succession in an effort to clarify the open-ended language of the clause and to establish a framework for how to distinguish crimes that qualify from crimes that do not. See Sykes, 131 S.Ct. at 2270 (“The instant case is another in a series in which the Court is called upon to interpret § 924(e)....”); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes, the latest in the series, the Court held that to qualify as a violent felony under the residual clause, a crime must “involve[ ] a potential risk of physical injury similar to that presented by burglary, extortion, arson, and crimes involving the use of explosives.” 131 S.Ct. at 2277. In other words, the defendant must have been convicted of an offense that carries a risk of injury similar in kind and degree as the crimes specifically mentioned in the statute. Id. at 2275 (“In general, levels of risk divide crimes that qualify from those that do not.”).

Applying this “similarity of risk” principle, the Court held that the Indiana crime of vehicular fleeing qualifies as a violent felony under the residual clause. Id. at 2277. To reach this conclusion, the Court undertook what it called a “commonsense” comparison of the risk of injury posed by vehicular fleeing and by the other crimes specified in the residual clause. Id. at 2273–74. The Court also looked to statistical data about the rate of injury from police chases, which, though “not dispositive,”

[689 F.3d 700]

served to “confirm the commonsense conclusion” that the crime of vehicular fleeing poses a similar risk of injury as the offenses listed in the statute. Id. at 2274–75.

Justice Scalia dissented, at length explaining his conclusion that the residual clause “fails to speak with the clarity that criminal proscriptions require.” Id. at 2288 (Scalia, J., dissenting). The statute's risk-of-injury requirement uses “the word ‘otherwise,’ ” but this connector is “ ‘preceded by four confusing examples that have little in common with respect to the supposedly defining characteristic.’ ” Id. (quoting James, 550 U.S. at 230 n. 7, 127 S.Ct. 1586 (Scalia, J., dissenting)). He gave the following example to illustrate the statute's lack of clarity: “ ‘The phrase “shades of red,” standing alone, does not generate confusion or unpredictability; but the phrase “fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red” assuredly does so.’ ” Id. (quoting James, 550 U.S. at 230 n. 7, 127 S.Ct. 1586 (Scalia, J., dissenting)).

Justice Scalia then traced the Court's earlier efforts to discern a clear standard for deciding residual-clause cases and noted that the formula kept shifting.1Id. at 2284–86 (Scalia, J., dissenting) (discussing James,Begay, and Chambers). In his view the Court's latest effort in Sykes had produced only “a fourth ad hoc judgment that will sow further confusion.” Id. at 2284 (Scalia, J., dissenting). The Court's “repeated inability to craft a principled test out of the statutory text” was proof positive of the statute's “incurable vagueness.” Id. at 2287 (Scalia, J., dissenting). The time had come, he said, to “admit that [the] ACCA's residual provision is a drafting failure and declare it void for vagueness.” Id. at 2284 (Scalia, J., dissenting); see also Derby v. United States, –––U.S. ––––, 131 S.Ct. 2858, 2860, 180 L.Ed.2d 904 (2011) (Scalia, J., dissenting from denial of certiorari) (“I would grant certiorari, declare ACCA's residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.”).

Jones asks us to adopt Justice Scalia's position and declare the residual clause unconstitutionally vague under the Due Process Clause of the Fifth Amendment. “It is a fundamental tenet of due process that ‘[n]o one may be required at peril of life, liberty or property to...

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