May 16, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 15-CR-216 - Pamela Pepper, Judge.
Easterbrook, Sykes, and Hamilton, Circuit Judges.
Easterbrook, Circuit Judge.
Wheeler pleaded guilty to an attempt to obstruct interstate
commerce by robbery, in violation of the Hobbs Act, 18 U.S.C.
§1951(a), and to using a gun (by shooting someone)
during that crime, in violation of 18 U.S.C.
§924(c)(1)(A)(iii). The guilty plea did not reserve any
issue for appeal under Fed. R. Crim. P. 11(a)(2). To the
contrary, Wheeler acknowledged in the writ- ten plea
agreement that he "acknowledges and understands that he
surrenders any claims he may have raised in any pre-trial
motion." The district court sentenced him to 108 months
for the Hobbs Act offense and a consecutive 120 months for
the firearms offense.
924(c)(1)(A) requires a minimum 10-year penalty for anyone
who discharges a firearm "during and in relation to any
crime of violence". Paragraph (c)(3) defines as a
"crime of violence" any felony that "(A) has
as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense."
Subparagraph (A) is known as an elements clause and
subparagraph (B) as a residual clause. The indictment charged
Wheeler with violating §924(c)(1) because robbery, in
violation of the Hobbs Act, is a "crime of
violence" under the definition in §924(c)(3).
entering an unconditional guilty plea to the firearms charge,
Wheeler now insists that he cannot be guilty because
attempted robbery is not a "crime of violence". It
can't be a crime of violence under the residual clause,
he maintains, because that clause is unconstitutionally
vague. (So we held in United States v. Cardena, 842
F.3d 959, 995-96 (7th Cir. 2016). The Supreme Court may
decide in Sessions v. Dimaya, No. 15-1498 (argued
Jan. 17, 2017), whether that conclusion is correct.) And it
can't be a crime of violence under the elements clause,
Wheeler contends, because an attempt to rob a retail
establishment does not have the use of physical force
"as an element" because it is possible to come
close enough to success to be an "attempt" without
commit- ting one of the acts that would use or threaten
violence for purposes of the completed crime.
crime defined in the Hobbs Act requires either actual or
threatened force as an element, see United States v.
Anglin, 846 F.3d 954 (7th Cir. 2017), and the prosecutor
contends that attempts should be classified with completed
offenses. So we held in United States v. Armour, 840
F.3d 904, 907-09 (7th Cir. 2016), about attempted bank
robbery, and the prosecutor believes that by parallel to
Armour an attempted retail-store robbery is a crime
of violence. See also Morris v. United States, 827
F.3d 696, 698-99 (7th Cir. 2016) (concurring opinion)
(concluding that attempt to commit a crime of violence is
itself a crime of violence under §924(e)).
not decide who is right about this, because Wheeler waived
his position by pleading guilty-and to make the waiver doubly
clear he acknowledged in writing that the plea surrendered
any argument that could have been raised in a pretrial
motion. Wheeler now contends that the indictment did not
charge a §924(c)(1) offense because attempted Hobbs Act
robbery is not ever a "crime of violence". Such an
argument not only could have been presented by
pretrial motion but also had to be so presented
under Fed. R. Crim. P. 12(b)(3)(B)(v), which provides that
"failure to state an offense" is the sort of
contention that "must" be raised before trial.
Cardena post-dates the guilty plea does not matter.
Johnson v. United States, 135 S.Ct. 2551 (2015),
holds that the residual clause in 18 U.S.C.
§924(e)(2)(B)(ii), part of the Armed Career Criminal
Act, is unconstitutionally vague. Cardena concludes
that Johnson's rationale invalidates the two
remaining residual clauses in the Criminal Code-one in 18
U.S.C. §16(b) and the other in
§924(c)(3)(B)-despite the difference in the language
between these residual clauses and the one in the ACCA.
(Dimaya presents the question whether the difference
is constitutionally significant.) Neither Cardena
nor Johnson has anything to do with the elements
clauses in §924(c) and other statutes. For that reason
and others we held in Davila v. United States, 843
F.3d 729 (7th Cir. 2016), that a person who pleads guilty to
a §924(c) charge cannot use Johnson and
Cardena to reopen the subject and ask a court of
appeals to upset the conviction.
argument Wheeler's lawyer allowed that Davila is
on point but asked us to reconsider that decision in light of
the Supreme Court's grant of review in Class v.
United States, No. 16-424 (U.S. Feb. 21, 2017). The
question presented in Class is whether an
unconditional guilty plea waives a defendant's right to
contest the constitutionality of the statute of conviction.
We do not see any need to wait for the Court's decision
in Class or to revisit the holding of
Davila. Wheeler's statute of conviction is
§924(c)(1), which penalizes using a firearm during or in
relation to a crime of violence. Wheeler does not contend
that §924(c)(1) is invalid. Class maintains that he had
a constitutional right not to be indicted; Wheeler does not
make any argument of that kind. Wheeler attacks one component
of the definition of "crime of violence" in
§924(c)(3) but does not contend that it is
constitutionally impermissible for an indictment to charge
that attempted Hobbs Act robbery is a crime of violence under
the elements clause. In other words, Wheeler does not assert
a constitutional immunity from prosecution. Whether attempted
Hobbs Act robbery satisfies the elements clause in
§924(c) is a statutory issue. For the reasons given in
Davila, an uncon- ditional guilty plea waives any
contention that an indictment fails to state an offense.
presents a second contention: that he should be resentenced
in light of Dean v. United States, 137 S.Ct. 1170
(2017). The Supreme Court held that 18 U.S.C.
§924(c)(1)(D)(ii), which requires a sentence under
§924(c) to run consecutively to the sentence for the
offense in which the firearm was used, does not implicitly
forbid the district court to choose a term of imprisonment
for the predicate offense so that the aggregate imprisonment
comports with the sentencing criteria in 18 U.S.C.
§3553(a). Wheeler correctly observes that Dean
supersedes United States v. Roberson, 474 F.3d 432
(7th Cir. 2007), which had held that a district court must
not reduce the sentence for the predicate crime in order to
offset the consecutive §924(c) sentence.
there were some reason to think that the district court had
felt compelled by Roberson to set Wheeler's
total sentence at 228 months rather than a shorter term,
Wheeler would be entitled to a fresh sentencing. But the
record does not so much as hint that the district judge felt
constrained by Roberson. The judge did not mention
Roberson or say that she would have preferred to
give Wheeler a total sentence below 228 months. Instead the
judge sentenced Wheeler to 108 months for the Hobbs Act
crime, a sentence above the Guidelines range of 84 to 105
months for that offense. It is inconceivable that a judge ...