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United States v. Portee

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

October 20, 2017




         The Defendant, Daniel Portee, is serving a 180-month sentence as a result of his conviction for being a felon in possession of a firearm, a violation of 18 U.S.C. § 992(g)(1). The Defendant was sentenced pursuant to the provisions of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He now seeks to vacate his current sentence so that he can be re-sentenced without the career offender enhancement. (Mot. to Correct Sentence Under 28 U.S.C. § 2255, ECF No. 65.) Without the armed career criminal enhancement, the Defendant's maximum sentence under the statute was ten years. He would have faced an offense level under the sentencing guidelines of 22, less three levels for acceptance of responsibility, for a Total Offense Level of 19. (PSR ¶¶ 32-40.) Combined with a Criminal History Category VI, his guidelines range would have been 63 to 78 months. However, because of the armed career criminal designation, the statutory mandatory minimum was fifteen years.

         The Defendant's Motion is predicated on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated a portion of the ACCA's definition of a predicate crime of violence.[1] The Defendant argues that his 1990 conviction for a Class C felony robbery, his conviction in 2000 for pointing a firearm, and his 2006 conviction for intimidation are no longer violent felonies as defined in 18 U.S.C. § 924(e). The Government maintains that the Defendant still has three convictions that qualify him as an armed career criminal and cites to the three above, as well as to the Defendant's conviction for attempted robbery under Illinois law.


         In April 2010, pursuant to a conditional plea agreement, [2] the Defendant pled guilty to the charge that he possessed a firearm, in violation of 18 U.S.C. § 922(g)(1). In anticipation of sentencing, the probation officer prepared a presentence investigation report (PSR). Although the PSR did not specifically identify which convictions qualified, the probation officer concluded that the Defendant had been convicted of at least three felony crimes of violence. (PSR ¶ 38.) The following state convictions were noted in the Defendant's criminal history: a 1983 Illinois Attempted Armed Robbery conviction; a 1990 Indiana Class C Felony Robbery conviction; a 2000 Indiana Class D Felony conviction for pointing a firearm, and; a 2006 Indiana Class D Felony Intimidation conviction.

         On August 2, 2010, the Court adopted the findings in the PSR, including the armed career criminal designation, and sentenced the Defendant to a term of 180 months of imprisonment.


         A person convicted under 18 U.S.C. § 922(g)(1) faces a mandatory minimum fifteen year sentence if he has three or more prior convictions that are either a “serious drug offense, ” or a “violent felony.” 18 U.S.C. § 924(e). The latter term is defined to include any offense 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). In June 2015, the Supreme Court held that the italicized portion of the statute, commonly known as the “residual clause, ” was unconstitutionally vague. See Johnson, 135 S.Ct. at 2557-63.

         Based on the decision in Johnson, the Defendant asserts that several of his convictions are no longer “violent felonies” as defined in 18 U.S.C. § 924(e) because they are not one of the enumerated offenses, and they do not have as an element, “the use, attempted use, or threatened use of physical force against the person of another.” To determine if a prior conviction qualifies as a predicate offense under the ACCA, sentencing courts apply the “categorical” approach, looking only to the statutory elements of the offense, not the actual facts underlying the conviction. Descamps v. United States, 133 S.Ct. 2276, 2283 (2013) (citing Taylor v. United States, 495 U.S. 575, 60 (1990)); see also United States v. Yang, 799 F.3d 750, 752 (7th Cir. 2015) (quotation marks omitted) (stating that 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”). In a select few cases the application of the modified categorical approach is appropriate because a statute is “divisible, ” setting out one or more elements of the offense in the alternative. In those cases, a sentencing court may look beyond the statute and the conviction to the so-called Shepard documents-indictments, jury instructions, and plea hearing transcripts-to determine which of the various elements of the statute formed the basis for the conviction. Descamps, 133 S.Ct. at 2284; Shepard v. United States, 544 U.S. 13, 17 (2005); Yang, 799 F.3d at 753. Once that is done, the categorical approach is again employed to determine whether those elements satisfy the force clause. Yang, 799 F.3d at 753; see also Mathis v. United States, 136 S.Ct. 2243 (2016).

         A. Attempted Robbery Under Illinois Law

         In 1983, the Defendant was convicted in Illinois of attempted robbery. “A person commits the offense of robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” Ill. Rev. Stat. 1977, ch. 38, par. 18-1. Both parties recognize that Illinois robbery has been found to qualify as a crime of violence under the force clause. See United States v. Chagoya-Morales, 859 F.3d 411, 422 (7th Cir. 2017); United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990). However, they disagree whether attempted robbery also qualifies.

         In United States v. Armour, 840 F.3d 904, 907-09 (7th Cir. 2016), the Seventh Circuit held that the federal crime of attempted bank robbery qualified as a crime of violence. Although the defendant in Armour did not raise an attempt-focused argument, the Court indicated that it would view such an argument “skeptically.” Id. at 909 n.3. Here, the attempt conviction occurred in Illinois, so the Court “must examine how state courts have applied the general attempt statute to the particular crime attempted” to determine whether it constitutes a violent felony. Morris v. United States, 827 F.3d 696, 697 (7th Cir. 2016); see also United States v. Collins, 150 F.3d 668, 671 (7th Cir. 1998) (“Therefore, we must also look to Wisconsin caselaw to see how the Wisconsin courts have interpreted the attempt statute in the context of burglary.”).

         Under Illinois law, “A person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense.” Ill. Rev. Stat. 1979 ch. 38, par. 8-4(a). The Defendant argues that he can conceive of ways to commit attempted robbery that does not involve the use, attempted use, or threatened use of physical force. As an example, he presents the scenario where a police officer intercepts a would-be robber as he approaches his intended victim. He asserts that such a person would have “completed all of his preparation by selecting his victim, and loading his weapon and putting himself in proximity of his victim, yet never accomplished or even attempted to use force against the victim.” (Def.'s Reply 2-3, ECF No. 82.)

         It is not a defense to an attempt charge that because of a misapprehension of the circumstances it therefore would have been impossible for the accused to commit the offense attempted. Ill. Rev. Stat. 1979, ch. 38, par. 8-4(b). Lying in wait, searching for, or following the contemplated victim of the crime is sufficient evidence of a substantial step “so long as the act is strongly corroborative of the actor's criminal purpose.” Illinois v. Hawkins, 723 N.E.2d 1222, 1227 (Ill.App.Ct. 2000) (citing to the Model Penal Code and noting its emphasis on the nature of the steps taken as opposed to what remains to be done to commit a crime). However, according to Illinois case law, attempted robbery has two essential elements, one of which specifically requires the use of force or threatened force. First, the defendant must have taken a substantial step toward the commission of the robbery. Second, there must have been an attempt to take property by the use of force or threat of use of force from the person of presence of another. Illinois v. Martin, 210 N.E.2d 587, 589 (Ill.App.Ct. 1965). What distinguishes robbery from theft (or attempted robbery from attempted theft) is “[t]he use of force or the threat of the imminent use of force.” Illinois v. Ashford, 308 N.E.2d 271, 275 (Ill.App.Ct. 1974). In addition, Illinois law ...

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