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United States v. Bennett

United States District Court, N.D. Indiana, Fort Wayne Division

September 30, 2016

UNITED STATES OF AMERICA,
v.
MARVIN L. BENNETT,

          OPINION AND ORDER

          THERESA L. SPRINGMANN UNITED STATES JUDGE

         The Defendant, Marvin Bennett, pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The probation officer drafted a Presentence Investigation Report (PSR) in preparation for sentencing. This Opinion and Order resolves the Defendant's objection to the PSR.

         BACKGROUND

         On November 20, 2013, the Government filed a one-count Indictment [ECF No. 1], charging the Defendant with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The one-count Indictment alleges that the Defendant possessed a firearm on or about October 21, 2013. The Government also charged the Defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which provides, in relevant part: “[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.” The Indictment included the following predicate offenses for an enhanced punishment under § 924(e):

On or about October 7, 2011, the [D]efendant was convicted in the Superior Court of Allen County, Fort Wayne, Indiana, in Cause No. 02D05-1107-FD-931, of Resisting Law Enforcement, a Class D Felony; and On or about August 11, 2008, the [D]efendant was convicted in the Superior Court of Allen County, Fort Wayne, Indiana, in Cause No. 02D04-0806-FD-483, of Strangulation, a Class D Felony; and On or about June 5, 1995, the [D]efendant was convicted in the Superior Court of Allen County, Fort Wayne, Indiana, in Cause No. 02D04-9412-CF-959, of Attempt Robbery, a Class C Felony.

(Indictment 1, ECF No. 1.) On November 21, 2014, the Defendant entered a plea agreement as to the one-count Indictment. [ECF No. 34.]

         The PSR set the Defendant's offense level at 33 because of an enhancement under the ACCA for having at least three prior convictions for a violent felony or serious drug offense, or both. The Defendant objected to the enhancement. Citing to the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), the Defendant argued that he lacked the requisite number of violent felonies as defined under the ACCA to receive an enhancement. The Government argued that Johnson did not invalidate the Defendant's convictions for ACCA enhancement purposes. Neither party asserted that an evidentiary hearing was required for the Court to rule on the Defendant's Objection.

         ANALYSIS

         Under the ACCA, a “violent felony” is defined as “any crime punishable by imprisonment for a term exceeding one year . . . that-”

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B)(emphasis added). The italicized portion of the statute, known as the residual clause, was held unconstitutional. Johnson, 135 S.Ct. at 2557-58, 2563. Therefore, if a defendant is sentenced under the ACCA, his previous convictions must qualify under the “force clause, ” § 924(e)(2)(B)(i), or the four enumerated offenses, id. § 924(e)(2)(B)(ii); Johnson, 135 S.Ct. at 2563. As resisting lawful arrest is not enumerated in the ACCA, the Government's only argument is that resisting lawful arrest under section 35-44-3-3 satisfies the force clause. Accordingly, the Court's analysis is limited to § 924(e)(2)(B)(i).

         The Supreme Court has outlined two permissible ways for a federal sentencing court to determine if a prior conviction counts as a violent felony under the ACCA: the “categorical approach” and the “modified categorical approach.” See Mathis v. United States, 136 S.Ct. 2243, 2251-54 (2016); Descamps v. United States, 133 S.Ct. 2276, 2283-85 (2013).

         The categorical approach is the primary method for considering whether a previous conviction qualifies as an ACCA predicate offense. The sentencing court “looks at the elements of the statute of conviction to determine if it has as an element the use, attempted use, or threatened use of physical force against the person of another.” United States v. Ker Yang, 799 F.3d 750, 752 (7th Cir. 2015). This inquiry considers whether the statute is “indivisible” such that it sets out the required elements of the offense, not the means by which one may violate the statute. Id. The court may only use two tools for this task-the statute's text and the judgment. Id. If the statute sets out elements, then the sentencing court must ...


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