May 24, 2016
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.
Rovner, Sykes, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
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).
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.
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).
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.
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
(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 ...