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Date: 11-16-2021
Case Style:
United States of America v. Bryant Love
Case Number: 20-2131
20-2297
Judge: Daniel Anthony Manion
Court: United States Court of Appeals
For the Seventh Circuit
On appeal from The United States District Court for the
Northern District of Indiana, Hammond Division.
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Chicago, IL - Criminal defense lawyer represented defendant with three drug counts and one felon-in-possession count charges.
Love sold crack to a confidential informant a few times.
Officers searched his apartment and found crack in the
kitchen. They also found two guns and ammunition in a
hutch in an adjoining room. About 15 feet separated the drugs
from the guns. Love pleaded guilty to three drug counts and
one felon-in-possession count (18 U.S.C. § 922(g)(1)).
A violation of 18 U.S.C. § 922(g)(1) causes a default sentencing range of 0 to 10 years. 18 U.S.C. § 924(a)(2). But the
ACCA increases the penalty to a 15-year mandatory
Nos. 20-2131 & 20-2297 3
minimum if the defendant had three previous convictions for
violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1).
The government proposed three ACCA predicates: 1) 1994
Illinois armed robbery; 2) 2009 federal distribution of crack
cocaine; and 3) 2015 Indiana Class D battery resulting in bodily injury. Both parties agree that the 2009 federal drug conviction satisfies the ACCA. The judge held the armed robbery
conviction satisfies the ACCA but the battery-resulting-inbodily-injury conviction does not. So Love was not considered an armed career criminal and the judge did not apply the
mandatory minimum.
The judge found Love possessed a loaded firearm “in connection with” drug trafficking. So the judge applied USSG §
2K2.1(b)(6)(B)’s four-level enhancement. This produced a
guidelines range of 57 to 71 months. The judge also considered Love’s eight pending charges—some “very distressing”—as 18 U.S.C. § 3553(a) sentencing factors. The judge
noted Love’s “shocking drum beat of criminal behavior.”
The judge sentenced Love to 96 months on each count,
concurrent. Both parties appeal. Love argues the judge was
wrong about the armed robbery conviction. He claims he was
“mousetrapped” after that conviction, so it cannot count as an
ACCA predicate. Love also argues the judge erred in holding
that he possessed a firearm “in connection with” drug trafficking and erred in considering the facts underlying the eight
pending charges. The government argues the judge was
wrong about the battery-resulting-in-bodily-injury conviction.
4 Nos. 20-2131 & 20-2297
II. Mousetrapping?
Love argues that his 1994 Illinois armed robbery conviction does not count as an ACCA predicate. On appeal, his
only argument regarding this prior conviction is that the district judge made an erroneous finding of fact.
Section 921(a)(20) says that if a defendant received restoration of his civil rights following a prior conviction, and that
restoration does not expressly say he may not possess firearms, then that prior conviction does not count as an ACCA
predicate: “Any conviction which has been expunged, or set
aside or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or
restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms.” 18
U.S.C. § 921(a)(20). This “anti-mousetrapping provision” applies if “the state sent [defendant] a document stating that his
principal civil rights have been restored, while neglecting to
mention the continuing firearms disability … .” Buchmeier v.
United States, 581 F.3d 561, 566–67 (7th Cir. 2009).
Love had the burden to prove by a preponderance of the
evidence that his rights were restored. United States v. Foster,
652 F.3d 776, 793 (7th Cir. 2011). Love acknowledges that although we review application of the ACCA de novo, we review
underlying factual findings for clear error. Kirkland v. United
States, 687 F.3d 878, 882–83 (7th Cir. 2012).
The district judge presented a thorough review of the evidence. He considered the testimony of the Assistant Chief
Record Officer for the Illinois Department of Corrections. The
judge also considered a transcript offered by Love of the
Nos. 20-2131 & 20-2297 5
testimony of an Illinois DOC lawyer in a different case. The
judge considered the lack of a stipulation about Love’s receipt
of any discharge letter. He considered the lack of testimony
from Love himself about any notice he received regarding restoration of rights following the subject prior conviction. Love
never presented any notice allegedly given to him. The judge
also carefully considered and rejected Love’s invocation of the
“presumption of regularity” doctrine. The judge determined
that the most persuasive proof came from the Record Officer,
who said it was not the practice of the institution that discharged Love to provide restoration-of-rights letters, and who
said no such letter was found in Love’s DOC file. So the judge
concluded Love had not demonstrated that he received a notice about the restoration of his civil rights that failed to mention a continuing firearms limitation.
On appeal, Love invites us to re-weigh the evidence. But
our review of the facts is limited to clear error, and we do not
see any here. So Love’s 1994 Illinois armed robbery conviction
counts as an ACCA predicate.
III. 2015 Indiana Class D battery resulting in bodily injury
Relying on our decision in Flores v. Ashcroft, 350 F.3d 666
(7th Cir. 2003), and the Supreme Court’s decision in Curtis
Johnson v. United States, 559 U.S. 133 (2010), the district court
determined that Love’s conviction under the version of Indiana Code 35-42-2-1(a)(2)(A) applicable in 2013 did not satisfy
the ACCA’s elements clause. The government appeals. As the
question of whether a prior offense was a violent felony under
the ACCA is a question of law, we review de novo. United
States v. Lockett, 782 F.3d 349, 352 (7th Cir. 2015).
6 Nos. 20-2131 & 20-2297
After the Supreme Court struck down the ACCA’s residual clause as unconstitutionally vague in Samuel Johnson v.
United States, 576 U.S. 591, 606 (2015), the only way Love’s
2015 conviction for Indiana Class D battery resulting in bodily
injury qualifies as an ACCA predicate is if it satisfies the
ACCA’s elements clause, which in relevant part defines “violent felony” to be any crime punishable by imprisonment for
more than one year 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).
We generally employ the categorical approach to determine whether a prior felony satisfies the ACCA’s elements
clause. Mathis v. United States, 136 S. Ct. 2243, 2247 (2016);
Descamps v. United States, 570 U.S. 254, 260–61 (2013). That is,
“we consider whether the elements of the prior felony required the prosecution to prove defendant used, attempted to
use, or threatened to use physical force against the person of
another.” Portee v. United States, 941 F.3d 263, 266 (7th Cir.
2019). When a statute sets out alternative elements rather than
alternative means or facts to satisfy a single element, the statute is divisible and we apply the modified categorical approach. United States v. Ker Yang, 799 F.3d 750, 753 (7th Cir.
2015). We glance at limited documents in the prior case to determine which alternative element formed the basis of the
conviction. Id.; Shepard v. United States, 544 U.S. 13, 16 (2005).
Under either approach, we do not consider the factual details about what defendant actually did to deserve the prior
conviction. After all, the ACCA’s elements clause defines “violent felony” in terms of elements, not in terms of actual factual
details. So we do not consider what defendant actually did.
Instead, we consider the minimum elements a prosecutor had
Nos. 20-2131 & 20-2297 7
to prove to support a conviction under the State’s criminal
statute. We consider the version of the State’s criminal statute
in effect at the time of the offense. See United States v. Bennett,
863 F.3d 679, 680 (7th Cir. 2017).
Here, the parties agree Love was convicted of a Class D
felony under Indiana Code 35-42-2-1(a)(2)(A). The offense occurred in 2013, when that statute said:
(a) A person who knowingly or intentionally touches
another person in a rude, insolent, or angry manner
commits battery, a Class B misdemeanor. However, the
offense is:
….
(2) a Class D felony if it results in bodily injury to:
(A) a law enforcement officer or a person summoned and directed by a law enforcement officer while the officer is engaged in the execution of the officer’s official duty … .
Ind. Code 35-42-2-1(a)(2)(A).
Indiana (then and now) defined “bodily injury” as
“any impairment of physical condition, including physical
pain.” Ind. Code 35-31.5-2-29.
The meaning of “physical force” in § 924(e)(2)(B)(i) is a
question of federal law. Curtis Johnson, 559 U.S. at 138. But
we are bound by Indiana’s determination of the elements
of its criminal statute. Id.
Love’s basic argument is that Indiana’s touching element here can be accomplished by a mere unwanted
touch. It is true that a statute that allows conviction for a
mere unwanted touch does not satisfy the ACCA’s
8 Nos. 20-2131 & 20-2297
elements clause. In Curtis Johnson, the Supreme Court rejected the contention that “physical force” in the ACCA incorporated the common-law view that “force” is satisfied
by even the slightest offensive touching. Curtis Johnson,
559 U.S. at 139–40. Instead, the Court held that “physical
force” in the ACCA’s elements clause means “violent
force”: “We think it clear that in the context of a statutory
definition of ‘violent felony,’ the phrase ‘physical force’
means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140.
But the type of force a statute of prior conviction must
categorically require to satisfy the ACCA’s elements
clause is not much more severe than mere unwanted or
offensive touching. In Stokeling v. United States, 139 S. Ct.
544, 555 (2019), the Supreme Court concluded that the
ACCA’s elements clause covers robbery offenses that depend on the criminal overcoming the victim’s resistance.
This holds true even if the resistance is merely slight,
weak, and feeble. Id. at 553. The force required for common-law robbery (and for Florida robbery) is sufficient
under the elements clause. Id. at 551. Mere snatching of
property from another without overcoming any resistance
does not satisfy robbery statutes requiring force to overcome resistance. But grabbing a victim’s fingers and peeling them back to steal money constitutes robbery under
such a statute. And that minor level of force also satisfies
the ACCA’s elements clause.
The Stokeling Court embraced Justice Scalia’s Castleman
concurrence, which observed that the “‘hitting, slapping,
shoving, grabbing, pinching, biting, and hair pulling’” relied on by the Castleman majority as satisfying Curtis
Nos. 20-2131 & 20-2297 9
Johnson’s definition of “physical force” in the elements
clause do not bear “‘any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.’” Stokeling, 139 S. Ct. at 554 (quoting
United States v. Castleman, 572 U.S. 157, 182 (2014) (Scalia,
J., concurring)).
We summarized Curtis Johnson and Stokeling as requiring “more than the simple offensive touching that the
common law would have called for, but the requirement
to show ‘force sufficient to overcome a victim’s resistance’
is not a demanding one.” Klinko v. United States, 928 F.3d
539, 547 (7th Cir. 2019) (internal citation omitted).
The problem with Love’s argument that Indiana’s
touching element here can be accomplished by a mere unwanted touch is that it fails to account for the element of
“bodily injury” required for his crime of prior conviction.
Class B misdemeanor battery only required “knowingly or
intentionally” touching “another person in a rude, insolent, or angry manner.” Ind. Code 35-42-2-1(a). But that
was not Love’s crime. Love’s crime was Class D felony battery, which by the terms of its elements had to result in
“bodily injury.” Ind. Code 35-42-2-1(a)(2)(A). It is self-evident in the strict sense that physical force which resulted in
bodily injury was capable of causing bodily injury. Douglas
v. United States, 858 F.3d 1069, 1071 (7th Cir. 2017) (“[F]orce
that actually causes injury necessarily was capable of causing that injury and thus satisfies the federal definition.”).
We see no reason why Indiana’s definition of “bodily injury” for these purposes is lower than the low threshold
for the ACCA’s “physical force” as interpreted by Curtis
Johnson and Stokeling. True, Indiana had a heightened level
10 Nos. 20-2131 & 20-2297
of battery—Class C felony—for rude, insolent, or angry
touching resulting in “serious bodily injury,” which Indiana defines in dramatic terms. Ind. Code 35-42-2-1(a)(3).
But this does nothing to undermine the conclusion that Indiana battery resulting in “bodily injury” is enough to satisfy the ACCA.
Both the district judge and Love rely on Flores.
Flores demonstrates that “physical force” in 18 U.S.C. §
16 (comparable to 18 U.S.C. § 924(e)(2)(B)(i)) is not a simple matter of Newtonian physics.
Newton’s second law measures force as equal to mass
times acceleration (F = m a). A “dyne” is the amount of
force needed to accelerate one free gram by one centimeter
per second per second. A “newton” is 100,000 dynes, “and
a good punch packs a passel of newtons.” Flores, 350 F.3d
at 672.
But Flores and Curtis Johnson teach that “physical force”
in these recidivist laws is not the same as physical force in
Newton’s laws. Otherwise, every crime involving a fraction of a dyne as an element would involve “physical
force” and would be a “violent crime.” This would “make
hash of the effort to distinguish ordinary crimes from violent ones.” Id. So, at law, the difference between ordinary
crimes involving mere contact and “violent crimes” involving “physical force” is not a matter of quantity but of
quality. Id.
Flores marked this line with reference to intent and
likelihood: The way to avoid collapsing the distinction between violent and non-violent offenses “is to insist that the
Nos. 20-2131 & 20-2297 11
force be violent in nature—the sort that is intended to
cause bodily injury, or at a minimum likely to do so.” Id.
Curtis Johnson cited Flores favorably and adhered to the
logic of its distinctions. But Curtis Johnson, in a manner of
speaking, lowered the bar: “We think it clear that in the
context of a statutory definition of ‘violent felony,’ the
phrase ‘physical force’ means violent force—that is, force
capable of causing physical pain or injury to another person.” Curtis Johnson, 559 U.S. at 140.
As we have said: “While mere touching is not enough
to show physical force, the threshold is not a high one; a
slap in the face will suffice.” United States v. Duncan, 833
F.3d 751, 754 (7th Cir. 2016).
Stokeling reaffirmed that “physical force means force
capable of causing physical pain or injury.” Stokeling, 139
S. Ct. at 553 (internal quotation marks omitted). Stokeling
asked the Court to adopt a new, heightened understanding of “physical force” as meaning force that is “reasonably expected to cause pain or injury.” Id. at 554. But the
Stokeling Court followed the Curtis Johnson Court and rejected that interpretation: “Johnson … does not require any
particular degree of likelihood or probability that the force
used will cause physical pain or injury; only potentiality.”
Id.1
1 See also Yates v. United States, 842 F.3d 1051, 1052 (7th Cir. 2016) (“Curtis Johnson stated that the sort of ‘force’ that comes within the elements
clause is ‘force capable of causing physical pain or injury to another person.’”); Duncan, 833 F.3d at 756 (“[N]either Flores nor Curtis Johnson holds
that a crime involving actual or threatened infliction of only pain or minor
injury cannot qualify as a violent felony. A fear of a slap in the face is sufficient under Curtis Johnson. The fact that § 35-42-5-1(2) requires a fear of
12 Nos. 20-2131 & 20-2297
Here, Indiana law required the prosecutor to prove
Love touched a police officer in a rude, insolent, or angry
manner and to prove that this resulted in bodily injury. If
the touching resulted in bodily injury, then by definition
the touching was capable of causing bodily injury. And that
is enough for the ACCA. So Love’s 2015 conviction for Indiana Class D battery resulting in bodily injury counts as
an ACCA predicate.
Outcome: Love committed three ACCA-predicate offenses. Both
parties agree that the 2009 federal drug conviction predicates the ACCA. The district judge committed no reversible error in determining the 1994 Illinois armed robbery conviction predicates the ACCA. But he erred in determining that the 2015 Indiana Class D battery-resulting-in-bodily-injury conviction does not predicate the ACCA. So Love must be re-sentenced under the ACCA.
Love raised two other sentencing issues. He argued the
judge erred by departing upward from the guidelines
Nos. 20-2131 & 20-2297 13based on other pending criminal charges and without giving specific, written reasons for the departure. He also argued the judge erred by imposing the four-level USSG § 2K2.1(b)(6)(B) enhancement even though the government failed to show Love used or possessed a firearm “in connection with” another felony.
In response, the government argues that if we agree
with it about the ACCA, then we need not reach these
other two issues. The government also argues Love would
lose on these two issues anyway.
Love made no reply to the argument that we need not
address the other two issues if he must be resentenced under the ACCA. Even at oral arguments, the government
reiterated its position that we need not reach these two issues if we agree with it on the ACCA, and still Love made
no reply. So we decline to reach these two issues.
We reverse and remand for resentencing under the
ACCA.
Plaintiff's Experts:
Defendant's Experts:
Comments: