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United States v. Bennett

United States Court of Appeals, Seventh Circuit

July 12, 2017

United States of America, Plaintiff-Appellee,
v.
Marvin L. Bennett, Defendant-Appellant.

          Argued April 25, 2017

         Appeal 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.

          Before Posner, Kanne, and Hamilton, Circuit Judges.

          POSNER, Circuit Judge.

         Marvin 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).

         A "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-

         "A 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 officer's duties;
(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)."

         None of 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.

         The district judge, however, emphasized subsection (b) of Ind. Code § 35-44-3-3, where we read that:

"The offense under subsection (a) is ...

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