Stacy M. Haynes, Petitioner-Appellant,
United States of America, Respondent-Appellee.
July 6, 2018
from the United States District Court for the Central
District of Illinois. Nos. 16-4106, 4:96-CR-40034-JBM-1 - Joe
Billy McDade, Judge.
Sykes, Hamilton, and Brennan, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
Stacy Haynes challenges three of his convictions under 18
U.S.C. § 924(c), which imposes steep penalties on a
defendant who uses a firearm during a "crime of
violence." Those convictions are based on Haynes'
three convictions under 18 U.S.C. § 1952(a)(2), which
required proof, among other things, that he committed or
attempted to commit a "crime of violence." The
crimes of violence that form the basis of Haynes' §
1952(a)(2) convictions were three armed robberies in
violation of the Hobbs Act, 18 U.S.C. § 1951, which is a
crime of violence for purposes of § 924(c). United
States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017).
issue in this appeal is whether the different crimes in this
nested set of charges-§ 1951 nested inside §
1952(a)(2) nested inside § 924(c)-can support the §
924(c) convictions. The district court upheld Haynes'
§ 924(c) convictions because the indictment and jury
instructions, taken together, required jurors to find each
element of the Hobbs Act robberies-crimes of violence-at the
center of the nested charging scheme. Haynes v. United
States, 237 F.Supp.3d 816 (C.D. Ill. 2017). Haynes
appeals, arguing both that § 1952(a)(2) is not
"divisible" and that the jury did not necessarily
find him guilty of the underlying Hobbs Act robberies. We
agree with the district court and affirm its judgment.
Factual and Procedural Background
Samuel Johnson v. United States, 135 S.Ct. 2551
(2016), the Supreme Court held that the "residual
clause" in the definition of "violent felony"
under the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B), was unconstitutionally vague. Earlier, in
Taylor v. United States, 495 U.S. 575 (1990), the
Court adopted the so-called "categorical method" to
determine whether prior convictions could serve as predicate
offenses under the Armed Career Criminal Act. In the wake of
Johnson, federal courts have been applying the
Court's reasoning and methods to a kaleidoscopic variety
of individual cases-applying similar statutory and Sentencing
Guideline definitions of violent crimes to predicate
convictions under a host of federal and state offenses
arising in a wide variety of procedural postures.
appeal presents a particularly intricate variation on the
Johnson and Taylor themes. This case began
with a one-man crime wave in early 1996. In just a few weeks,
Haynes robbed six stores at gunpoint in the Quad Cities
region. Three robberies were in Illinois and three were in
Iowa, which affected the government's charging decisions
and set the stage for the legal issues we address here.
indictment charged Haynes with the three Illinois robberies
as Hobbs Act robberies under 18 U.S.C. § 1951. For each
of those robberies, Haynes also was charged with a
corresponding count under § 924(c) for using and
carrying a firearm during and in relation to a crime of
violence. Those Illinois Hobbs Act robberies and the three
accompanying § 924(c) convictions are not challenged in
complications come from the Iowa robberies, which were
charged in an Illinois venue as three counts under §
1952(a)(2), which in relevant part makes it a crime to travel
in interstate commerce with the intent to commit a crime of
violence and then to attempt or carry out a crime of
violence. The indictment alleged that Haynes accomplished
each violation of § 1952 "by committing the offense
of robbery" as defined in § 1951. Each of those
§ 1952 counts was also accompanied by a separate §
924(c) firearm charge.
convicted Haynes on all twelve counts. He was sentenced
originally to life in prison for each robbery based on 18
U.S.C. § 3559(c)(1) because he had two prior Illinois
state burglary convictions that were treated as prior
"serious violent felonies." In this collateral
challenge, the six mandatory life sentences were set aside in
the district court because, after Johnson,
Haynes' burglary convictions could not be used under
§ 3559(c)(1). The government does not dispute that
point. Victory on the challenge to the mandatory life
sentences has not produced meaningful relief, however, since
Haynes was resentenced to a total of 105 years in prison-the
statutory minimum for his six § 924(c) convictions. If
Haynes could prevail on his challenge to the three §
924(c) convictions premised on the § 1952 convictions,
he would still face a minimum of 45 years on resentencing-but
that could offer at least some possibility that he might
complete his sentence before he dies.
argues that his convictions under § 1952(a)(2) cannot
qualify as "crimes of violence" sufficient to
support the three associated § 924(c) convictions. The
legal landscape has changed significantly since Haynes
committed his six robberies in 1996 and even since this
appeal was argued. The "residual clauses" of the
statutory definitions of "crime of violence"
relevant to this case were held invalid in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018) (18 U.S.C. § 16), and
United States v. Davis, 139 S.Ct. 2319 (2019) (18
U.S.C. § 924(c)). The upshot of Davis and
Dimaya is that Haynes' three § 924(c)
convictions based on interstate travel for the Iowa robberies
can stand only if his three convictions under §
1952(a)(2)(B) have "as an element the use, attempted
use, or threatened use of physical force." 18 U.S.C.
§§ 16(a), 924(c)(3)(A).
address the challenged § 924(c) convictions in two
steps. First, we address whether § 1952 is
"divisible" such that a court may use the modified
categorical approach to look through a conviction under
§ 1952(a)(2)(B) and rely on the elements of the
underlying "crime of violence." We find that §
1952(a)(2)(B) incorporates the elements of the underlying
"crime of violence" and therefore is divisible.
Second, we consider the specific course of Haynes'
prosecution and whether his three convictions under §
1952(a)(2)(B) can support their associated § 924(c)
convictions. We conclude that they can, after considering the
indictment, jury instructions, and verdicts.
Divisibility of 18 U.S.C. § 1952(a)(2)(B)
review de novo the district court's decision
that Haynes' § 1952 convictions qualify as crimes of
violence under the "elements clause" in §
924(c)(3)(A). See United States v. Williams, 864
F.3d 826, 828 (7th Cir. 2017). That inquiry depends on the
statutory elements of each offense, not the actual facts
underlying the particular convictions. See Descamps v.
United States, 570 U.S. 254, 260-61 (2013), citing
Taylor, 495 U.S. 575; Williams, 864 F.3d at
828. When a predicate statute lays out one set of elements
defining a single offense, the court applies the categorial
method by looking at the elements of the predicate offense to
see if they include "the use, attempted use, or
threatened use of physical force against the person or
property of another." 18 U.S.C. § 924(c)(3)(A); see
Mathis v. United States, 136 S.Ct. 2243, 2248
(2016); United States v. Cardena, 842 F.3d 959,
995-99 (7th Cir. 2016).
criminal statutes include multiple, distinct crimes, each
with its own distinct set of elements. Many criminal statutes
also list different "means" of satisfying
particular elements. Statutes that list alternative
"elements" are "divisible" into multiple
crimes; provisions that list alternative "means"
are not. See Mathis, 136 S.Ct. at 2249. Some
statutes combine both multiple crimes and alternative means
of committing those particular crimes.
distinction between elements and means can be slippery. Yet
the legal consequences of the choice can be dramatic, whether
by calling for a more severe sentence, permitting one offense
to serve as the predicate offense for another, or requiring
jurors to be instructed about what they must find unanimously
and beyond a reasonable doubt.
applying the "elements" clauses of the various
definitions of crimes of violence and similar phrases, courts
focus on the elements of the crime of conviction. When
dealing with a divisible statute that provides for multiple
crimes, a court must "determine what crime, with what
elements" a defendant was really "convicted
of" before deciding whether it counts as a predicate for
§ 924(c) or similar purposes. Mathis, 136 S.Ct.
at 2249; see also United States v. Franklin, 895
F.3d 954, 958 (7th Cir. 2018); United States v.
Enoch, 865 F.3d 575, 579-80 (7th Cir. 2017). To do so, a
court may review a limited class of documents, including the
indictment, jury instructions, and sentencing transcripts.
See Shepard v. United States, 544 U.S. 13, 16
(2005); United States v. Ker Yang, 799 F.3d 750, 753
(7th Cir. 2015). This technique is known as the modified
categorical approach. Enoch, 865 F.3d at 580.
determine whether a provision describing multiple ways of
committing an offense is divisible into alternative elements,
or instead contains just one element that can be committed by
different means, we start with the foundation that a
crime's elements are the set of propositions that must be
established beyond a reasonable doubt. See Mathis,
136 S.Ct. at 2248; Alleyne v. United States, 570
U.S. 99, 107-16 (2013); Apprendi v. New Jersey, 530
U.S. 466, 476-77 (2000); Richardson v. United
States, 526 U.S. 813, 817 (1999). If a statute lists
different ways to commit a crime and the jurors need not
agree on which way the defendant did it, then the listed ways
cannot be treated as distinct elements.
that principle in mind, to determine whether a statute is
divisible-and thus subject to the modified categorical
approach-we look first to the statute defining the predicate
offense. See Mathis, 136 S.Ct. at 2248-49;
Curtis Johnson v. United States, 559 U.S. 133, 144
(2010). If the statute assigns different maximum or minimum
penalties to different variants of the offense, then we can
be sure that each of those variants is a distinct crime
defined by alternative elements. See Mathis, 136
S.Ct. at 2256 ("If statutory alternatives carry
different punishments, then under Apprendi they must
be elements."); Enoch, 865 F.3d at 579;
United States v. Edwards, 836 F.3d 831, 837 (7th
statute assigns the same penalty range to different listed
ways of committing the crime, the problem may be more
difficult. In Mathis, the Supreme Court offered an
"easy" answer for some cases. If controlling
judicial precedent holds that jurors need not agree on a
given proposition, then that proposition is not an element.
In Mathis, for example, the Iowa burglary statute,
according to the Iowa Supreme Court, stated "alternative
method[s] of committing one offense, so that a jury need
not agree whether the burgled location was a building,
other structure, or vehicle." The statute thus listed
different "means" of committing the same offense
and was not divisible. Mathis, 136 S.Ct. at 2256
(emphasis added) (internal quotation marks omitted).
case of 18 U.S.C. § 1952 as a predicate for §
924(c), we do not have the benefit of such direct judicial