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Robinson v. United States

United States District Court, E.D. Wisconsin

May 24, 2016

UNITED STATES OF AMERICA Respondent. No. 16-C-156


          LYNN ADELMAN, District Judge.

         Petitioner 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).[1] 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.

         I. BACKGROUND

         On 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).

         I 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. 2001).

         II. 2255 MOTION

         On 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).

         Robbery 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.

         Petitioner was convicted of robbery under Wis.Stat. § 943.32(1), which provides:

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.

         Petitioner 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 victim."

         As 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 felony.

         Petitioner 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.[2]


         The 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.

         As the 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 States v. 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 (7th Cir. 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 ...

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