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United States v. Duncan

United States Court of Appeals, Seventh Circuit

August 12, 2016

United States of America, Plain tiff-Appellee,
v.
Darrell L. Duncan, Defendant-Appellant.

          Argued May 24, 2016

         Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:15-cr-46-RLM - Robert L. Miller, Jr., Judge.

          Before Rovner, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         The only issue in this appeal is whether a conviction under Indiana's robbery statute, Indiana Code § 35-42-5-1, includes as an element "the use, attempted use, or threatened use of physical force against the person of another" such that it qualifies as a violent felony under the elements clause of the definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). Our conclusion that Indiana robbery is a violent felony might seem about as interesting as a prediction that the sun will rise in the east tomorrow. Nevertheless, the intricate law that has developed around the classification of prior convictions for recidivist sentencing enhancements can produce some surprising results. See, e.g., Mathis v. United States, 579 U.S.__, 136 S.Ct. 2243 (2016) (burglary conviction not a violent felony under ACCA); Johnson v. United States, 559 U.S. 133 (2010) (battery conviction not a violent felony under ACCA); United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016) (North Carolina common law robbery conviction not a violent felony under ACCA).

         A person can commit robbery under Indiana Code § 35-42-5-1 by taking property by "putting any person in fear." The statute itself does not tell us what the person must fear. Indiana case law teaches that the answer is fear of bodily injury A conviction for such "robbery by fear" thus has as an element "the use, attempted use, or threatened use of physical force against the person of another." A conviction for robbery under the Indiana statute qualifies under the still-valid elements clause of the ACCA definition of violent felony.

         I. Factual Background

         In May 2015, Darrell Duncan was arrested on outstanding warrants. Police discovered a loaded pistol near the site of his arrest. Duncan eventually admitted that it belonged to him. He pled guilty to a single count of being a felon and unlawful user of controlled substances in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), (g)(3), and 924(e).

         Duncan had three prior Indiana state convictions for robbery, one in 2001, and two in 2008. The statute defines robbery as "knowingly or intentionally tak[ing] property from another person or from the presence of another person" either "by using or threatening the use of force on any person" or "by putting any person in fear." Ind. Code § 35-42-5-1. Over Duncan's objection, the district court found that those three convictions counted as "violent felonies" under the ACCA. Without the enhancement, Duncan faced a maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). With the enhancement, he faced a mandatory minimum sentence of fifteen years, § 924(e)(1), which is the sentence the court imposed.

         II. Analysis

         Whether a prior offense constitutes a violent felony under the Armed Career Criminal Act is a question of law that we review de novo. United States v. Gilbert, 464 F.3d 674, 677 (7th Cir. 2006). We first discuss the standards that govern whether a crime is a violent felony and then apply those standards to Indiana's robbery statute. Under the ACCA:

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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.

18 U.S.C. § 924(e)(2)(B). Clause (ii) does not apply to Duncan's convictions. Robbery does not fit the specific list of offenses in the first half of the provision, and the Supreme Court invalidated the final clause-"otherwise involves conduct that presents a serious potential risk of physical injury to another" - as unconstitutionally vague in Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015). We must focus on the ...


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