United States v. Bryant Love

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 6, 2021
• Docket: 20-2297
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ Nos. 20-2131 & 20-2297 UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant, v.

BRYANT LOVE, Defendant-Appellant/Cross-Appellee. ____________________

Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:17CR2-001 — Philip P. Simon, Judge. ____________________

ARGUED FEBRUARY 24, 2021 — DECIDED AUGUST 6, 2021 ____________________

Before FLAUM, MANION, and KANNE, Circuit Judges. MANION, Circuit Judge. Bryant Love pleaded guilty to mul- tiple drug counts and a felon-in-possession count. The gov- ernment proposed three prior offenses to trigger the Armed Career Criminal Act’s 15-year mandatory minimum sentence: 1) 1994 Illinois armed robbery; 2) 2009 federal distribution of crack cocaine; and 3) 2015 Indiana Class D battery resulting in bodily injury. 2 Nos. 20-2131 & 20-2297

Love argued the ACCA should not apply for two reasons. First, he claimed he received a “restoration of rights” letter without an express reference to guns after he was released on the 1994 Illinois armed robbery conviction. Second, he argued his 2015 Indiana Class D battery-resulting-in-bodily-injury conviction was not a crime of violence under the ACCA. The judge held the armed robbery conviction was an ACCA predicate but agreed with Love that the battery-result- ing-in-bodily-injury conviction was not, as a categorical mat- ter, a “violent felony,” so Love did not have three ACCA pred- icates so he was not an armed career criminal. The judge sen- tenced Love to 96 months on each count, to be served concur- rently. Love and the government both appeal. Love argues the judge was wrong about the armed rob- bery conviction but right about the battery-resulting-in-bod- ily-injury conviction, and he argues the judge was wrong about two other sentencing issues. The government argues the exact opposite. We agree with the government and reverse and remand. I. Background 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 sen- tencing 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 bod- ily injury. Both parties agree that the 2009 federal drug con- viction satisfies the ACCA. The judge held the armed robbery conviction satisfies the ACCA but the battery-resulting-in- bodily-injury conviction does not. So Love was not consid- ered an armed career criminal and the judge did not apply the mandatory minimum. The judge found Love possessed a loaded firearm “in con- nection 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 consid- ered Love’s eight pending charges—some “very distress- ing”—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 traf- ficking 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 convic- tion. 4 Nos. 20-2131 & 20-2297

II. Mousetrapping? Love argues that his 1994 Illinois armed robbery convic- tion does not count as an ACCA predicate. On appeal, his only argument regarding this prior conviction is that the dis- trict judge made an erroneous finding of fact. Section 921(a)(20) says that if a defendant received resto- ration of his civil rights following a prior conviction, and that restoration does not expressly say he may not possess fire- arms, 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 pur- poses 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” ap- plies 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 alt- hough 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 evi- dence. 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 res- toration 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 dis- charged 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 no- tice about the restoration of his civil rights that failed to men- tion 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 Indi- ana 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 resid- ual 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 “vio- lent 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 deter- mine 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 re- quired 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 stat- ute is divisible and we apply the modified categorical ap- proach. United States v. Ker Yang, 799 F.3d 750, 753 (7th Cir. 2015). We glance at limited documents in the prior case to de- termine 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 de- tails about what defendant actually did to deserve the prior conviction. After all, the ACCA’s elements clause defines “vi- olent 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 oc- curred 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 sum- moned and directed by a law enforcement of- ficer while the officer is engaged in the execu- tion 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 ele- ment 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 re- jected the contention that “physical force” in the ACCA in- corporated 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 phys- ical 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 de- pend 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 com- mon-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 over- come resistance. But grabbing a victim’s fingers and peel- ing 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’” re- lied 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 offen- sive touching, and all of them are capable of causing phys- ical 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 requir- ing “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 un- wanted 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, inso- lent, or angry manner.” Ind. Code 35-42-2-1(a). But that was not Love’s crime. Love’s crime was Class D felony bat- tery, 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-evi- dent 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 caus- ing that injury and thus satisfies the federal definition.”). We see no reason why Indiana’s definition of “bodily in- jury” 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 Indi- ana defines in dramatic terms. Ind. Code 35-42-2-1(a)(3). But this does nothing to undermine the conclusion that In- diana battery resulting in “bodily injury” is enough to sat- isfy 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 sim- ple 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 frac- tion 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 vio- lent ones.” Id. So, at law, the difference between ordinary crimes involving mere contact and “violent crimes” in- volving “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 be- tween 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 per- son.” 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 understand- ing of “physical force” as meaning force that is “reasona- bly expected to cause pain or injury.” Id. at 554. But the Stokeling Court followed the Curtis Johnson Court and re- jected 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) (“Cur-

tis Johnson stated that the sort of ‘force’ that comes within the elements clause is ‘force capable of causing physical pain or injury to another per- son.’”); 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 suf- ficient 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 In- diana Class D battery resulting in bodily injury counts as an ACCA predicate. IV. Conclusion Love committed three ACCA-predicate offenses. Both parties agree that the 2009 federal drug conviction predi- cates the ACCA. The district judge committed no reversi- ble error in determining the 1994 Illinois armed robbery conviction predicates the ACCA. But he erred in determin- ing that the 2015 Indiana Class D battery-resulting-in-bod- ily-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

only ‘bodily injury’ instead of ‘moderate’ or ‘severe’ bodily injury there- fore does not exclude it from counting as a violent felony under the ACCA.”); Colon v. United States, 899 F.3d 1236, 1239 (11th Cir. 2018) (“[A] felony battery conviction under the Indiana statute necessarily requires that the defendant use ‘force capable of causing physical pain or injury.’”); United States v. Vail-Bailon, 868 F.3d 1293, 1301–02 (11th Cir. 2017) (“Ac- cording to Vail-Bailon, because the Supreme Court included a pinpoint cite to page 672 of the Flores decision and because, among other things, the discussion on page 672 includes the articulation of a ‘likelihood’ test, then that means the Supreme Court was signaling to the reader that it had not actually adopted the ‘capability’ test it had just expressly announced, but instead it was incorporating a ‘likelihood’ test that it never bothers to men- tion. For several reasons, we are not persuaded.”). Nos. 20-2131 & 20-2297 13

based on other pending criminal charges and without giv- ing specific, written reasons for the departure. He also ar- gued 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 con- nection 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 un- der the ACCA. Even at oral arguments, the government reiterated its position that we need not reach these two is- sues 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.