April 25, 2017
from the United States District Court for the Northern
District of Indiana, Fort Wayne Division. No.
l:13-CR-00078-TLS-SLC-l - Theresa L. Springmann, Chief Judge.
Posner, Kanne, and Hamilton, Circuit Judges.
POSNER, Circuit Judge.
Bennett, the defendant and appellant in this case, pleaded
guilty to possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1). Ordinarily the maximum punishment
for that crime is 120 months (10 years) in prison. See 18
U.S.C. § 924(a)(2). But the Armed Career Criminal Act
(ACCA, as it's usually called), 18 U.S.C. § 924(e),
ordains a minimum sentence of 180 months (15 years) in prison
for persons who violate section 922(g)(1) after having
accumulated three or more convictions for committing a
"violent felony." Bennett, the defendant-appellant
in this case, pleaded guilty to having violated section
922(g)(1), and his plea agreement provided that he would be
sentenced to 180 months. But before his sentencing hearing
Bennett argued that one of his three previous convictions-
the conviction for violating an Indiana law that punishes
resisting law enforcement, Ind. Code § 35-44-3-3-is not
a crime of violence. (Section 35-44-3-3 has since been
recodified in largely the same form as section 35-44.1-3-1,
but all references here are to the version of the statute in
effect at the time of Bennett's offense.) The district
judge disagreed and sentenced him to 180 months in prison,
precipitating this appeal. Bennett's plea agreement
waived his rights to appeal, but the government has agreed
not to enforce the waiver. See Nunez v. United
States, 546 F.3d 450, 452 (7th Cir. 2008).
"violent felony, " so far as pertains to this case,
is a crime that "has as an element the use, attempted
use, or threatened use of physical force against the person
of another." 18 U.S.C. § 924(e)(2)(B)(i).
Subsection (a) of the Indiana statute cited in the preceding
paragraph provides that-
person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law
enforcement officer or a person assisting the officer while
the officer is lawfully engaged in the execution of the
(2) forcibly resists, obstructs, or interferes with the
authorized service or execution of a civil or criminal
process or order of a court; or
(3) flees from a law enforcement officer after the officer
has, by visible or audible means, including operation of the
law enforcement officer's siren or emergency lights,
identified himself or herself and ordered the person to stop;
commits resisting law enforcement, a Class A misdemeanor,
except as provided in subsection (b)."
these offenses need involve a use, attempted use, or
threatened use of physical force against anyone; none are
felonies; violation of the statute is merely a misdemeanor.
And so had Bennett violated only section 35-44-3-3(a), he
would not be subject to the mandatory 180-month sentence for
being a felon in possession of a firearm who had accumulated
three or more convictions of committing a violent felony.
district judge, however, emphasized subsection (b) of Ind.
Code § 35-44-3-3, where we read that:
"The offense under subsection (a) is ...