United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge
Anthony Robinson moves to vacate his sentence pursuant to 28
U.S.C. § 2255, arguing that it is unlawful in light of
the Supreme Court’s decision in Samuel Johnson v.
United States, 135 S.Ct. 2551 (2015). His motion turns
on whether robbery under Wis.Stat. § 943.32 still
qualifies as a “violent felony” under the federal
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). While robbery under the common law and the
statutes of most jurisdictions surely qualifies, petitioner
demonstrates that, given the capacious definition of the term
“force” adopted by the Wisconsin supreme court,
his conviction under § 943.32 does not. I accordingly
grant the motion and vacate his sentence.
April 14, 2000, petitioner pleaded guilty to cocaine
distribution (count one), 21 U.S.C. § 841(a), felon in
possession of a firearm (count two), 18 U.S.C. §
922(g)(1), and brandishing a firearm during a drug
trafficking offense (count three), 18 U.S.C. §
924(c)(1). At his October 6, 2000 sentencing hearing, I
determined that petitioner qualified for an enhanced sentence
on the felon in possession count under the ACCA, 18 U.S.C.
§ 924(e), based on his prior convictions of burglary,
robbery, and possession with intent to distribute cocaine.
Under the ACCA, a felon with three prior convictions for
either a “violent felony” or a “serious
drug offense” faces a sentence of 15 years to life in
prison, 18 U.S.C. § 924(e)(1); otherwise, the maximum
penalty for unlawful firearm possession is 10 years, 18
U.S.C. § 924(a)(2).
sentenced petitioner to 188 months on counts one and two
running concurrently and 84 months on count three running
consecutively for a total of 272 months. The court of appeals
dismissed his direct appeal as frivolous. United States
v. Robinson, 22 Fed.Appx. 615 (7th Cir.
February 12, 2016, petitioner filed the instant § 2255
motion, arguing that his prior robbery conviction no longer
qualifies as a violent felony. Under the ACCA, the term
“violent felony” means any crime punishable by
imprisonment for a term exceeding one year that: (1) has as
an element the use, attempted use, or threatened use of
physical force against the person of another (the
“force clause” or the “elements
clause”); (2) is burglary, arson, or extortion, or
involves use of explosives (the “enumerated offenses
clause”); or (3) otherwise involves conduct that
presents a serious potential risk of physical injury to
another (the “residual clause”). 18 U.S.C. §
924(e)(2)(B). In determining whether an offense qualifies as
an ACCA predicate, the court applies a categorical approach,
focusing on the elements of the statute of conviction rather
than the actual conduct of the particular offender.
E.g., United States v. Ker Vang, 799 F.3d
750, 752 (7th Cir. 2015).
is not one of the enumerated offenses. Accordingly, to
qualify as a violent felony it must fall under the force
clause or the residual clause. However, in Samuel
Johnson, 135 S.Ct. at 2557, the Supreme Court struck
down the residual clause as unconstitutionally vague; the
Court later declared that Samuel Johnson applies
retroactively to cases on collateral review, Welch v.
United States, No. 15-6418, 2016 U.S. LEXIS 2451 (U.S.
Apr. 18, 2016); see also Price v. United
States, 795 F.3d 731 (7th Cir. 2015). This
leaves the force clause.
was convicted of robbery under Wis.Stat. § 943.32(1),
Whoever, with intent to steal, takes property from the person
or presence of the owner by either of the following means is
guilty of a . . . felony:
(a) By using force against the person of the owner with
intent thereby to overcome his or her physical resistance or
physical power of resistance to the taking or carrying away
of the property; or
(b) By threatening the imminent use of force against the
person of the owner or of another who is present with intent
thereby to compel the owner to acquiesce in the taking or
carrying away of the property.
concedes that the statute appears to fit within the force
clause. Indeed, in United States v. Otero,
495 F.3d 393, 401 (7th Cir. 2007), the court,
quoting the statutory text, concluded that this offense
qualifies as a crime of violence under the identically worded
career offender guideline, U.S.S.G. § 4B1.2(a), as it
“has as a necessary element the use of force against a
petitioner notes, however, in Curtis Johnson v. United
States, 559 U.S. 133 (2010), the Supreme Court clarified
that, in the context of the ACCA’s “violent
felony” provision, “the phrase ‘physical
force’ means violent force - that is, force
capable of causing physical pain or injury to another
person.” Id. at 140. On this understanding,
the Court held that battery under Florida law, which is
satisfied by any intentional physical contact, no matter how
slight, id. at 138, does not qualify as a violent
contends that, given the Wisconsin supreme court’s
construction of the force requirement in the robbery statute,
the result should be the same here. See Walton v.
State, 64 Wis.2d 36, 43 (1974) (holding that
“force is not to be confounded with violence, ”
and that “the degree of force used is
immaterial”). Petitioner notes that Wisconsin’s
expansive definition of force varies from the rule in most
jurisdictions, under which purse snatching and other
grab-and-run thefts would be prosecuted under larceny laws,
not as robberies. See Wayne LaFave, Substantive
Criminal Law § 20.3(d)(1) (2015). This is
significant, petitioner contends, because courts have found
such street thefts to be crimes of violence under the
now-defunct residual clause, not the force clause.
E.g., United States v. Hollins, 514
Fed.Appx. 264, 267-68 (3d Cir. 2013); see also United
States v. Howze, 343 F.3d 919, 923-24 (7th
Cir. 2003) (collecting cases). He concludes that, with the
residual clause gone, robbery statutes like
Wisconsin’s, which are satisfied by any force, however
slight, no longer qualify as violent felonies. He accordingly
asks the court to vacate his sentence.
government does not assert procedural default or timeliness
as bars to the court’s consideration of
petitioner’s motion. Rather, the government defends the
sentence on the merits, arguing that Wisconsin robbery
remains a violent felony under the force clause.
government notes, the Seventh Circuit held that Wisconsin
robbery satisfied the force clause both before and after
Curtis Johnson. See Otero, 495 F.3d at 401;
United Statesv. Beason, 493 Fed.Appx. 747,
749 (7th Cir. 2012). These cases cannot end the
inquiry, however. As indicated above, Otero
addressed not the ACCA but the career offender guideline.
While the Seventh Circuit ordinarily considers its case-law
interpreting these two provisions to be interchangeable,
e.g., United States v. Hampton, 675 F.3d
720, 730 n.2 (7thCir. 2012), the Otero
court further relied on the fact that robbery is specifically
enumerated as a crime of violence in the career offender
guideline’s application notes, 495 F.3d at 401 (citing
U.S.S.G. § 4B1.2 cmt. n.1), which the Seventh Circuit
treats as authoritative. See United States v. Raupp,
677 F.3d 756, 758-59 (7th Cir. 2012). Robbery is
not an enumerated offense under the ACCA. Beason was
an ACCA case, but the decision is unpublished and responsive
to an Anders brief ...