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Haynes v. United States

United States Court of Appeals, Seventh Circuit

August 29, 2019

Stacy M. Haynes, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued July 6, 2018

          Appeal 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.

          Before Sykes, Hamilton, and Brennan, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE.

         Petitioner-appellant 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).

         The 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.

         I. Factual and Procedural Background

         In 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.

         This 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.

         The 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 this appeal.

         The 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.

         A jury 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.[1]

         II. Analysis

         Haynes 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).

         We 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.

         A. Divisibility of 18 U.S.C. § 1952(a)(2)(B)

         We 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).

         Many 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.

         The 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.

         In 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.

         To 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.

         With 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 Cir. 2016).

         If the 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).

         In the case of 18 U.S.C. § 1952 as a predicate for § 924(c), we do not have the benefit of such direct judicial ...


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