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. Â§ 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. Â§ 943.32 still qualifies as a
"violent felony" under the federal Armed Career
Criminal Act ("ACCA"), 18 U.S.C. Â§ 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
Â§ 943.32 does not. I accordingly grant the motion and vacate
April 14, 2000, petitioner pleaded guilty to cocaine
distribution (count one), 21 U.S.C. Â§ 841(a), felon in
possession of a firearm (count two), 18 U.S.C. Â§ 922(g)(1),
and brandishing a firearm during a drug trafficking offense
(count three), 18 U.S.C. Â§ 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. Â§ 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. Â§ 924(e)(1); otherwise,
the maximum penalty for unlawful firearm possession is 10
years, 18 U.S.C. Â§ 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. 2001).
February 12, 2016, petitioner filed the instant Â§ 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. Â§ 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. Â§ 943.32(1), which
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. Â§ 4B1.2(a), as it "has as a
necessary element the use of force against a victim."
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.
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 Â§ 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
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
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. Â§ 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 ...