United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Government charged Defendant, Markquiel Derrick, with a
single count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) [ECF No. 1]. The
Defendant entered into a Plea Agreement [ECF No. 20] on
November 7, 2016, and is now awaiting sentencing. A Final
Presentence Investigation Report [PSR, ECF No. 32]
(“PSR”) along with an Addendum [ECF No. 33] was
entered on February 24, 2017. A Revised Final Presentence
Investigation Report [ECF No. 50] (“Revised PSR”)
along with a Second Addendum [ECF No. 51] was entered on July
3, 2017. The parties disagree as to whether the
Defendant's prior conviction for Strangulation under
Indiana law constitutes a “crime of violence”
under U.S.S.G. § 2K2.1(a)(4)(A), which would impact the
Defendant's total offense level. The PSR set the base
offense level at 20. The Defendant argues that his base
offense level should be 14.
24, 2017, the Government submitted its brief [ECF No. 46]
maintaining that the Defendant's 2011 Indiana
Strangulation conviction under Indiana Cod §
35-42-2-9(b) was a qualifying predicate crime of violence
under U.S.S.G. § 2K2.1(a)(4)(A). On June 9, 2017, the
Defendant filed his brief [ECF No. 47] in support of his
objection to the PSR.
27, 2017, the Court issued its Opinion and Order [ECF No.
48], overruling the Defendant's objection to the PSR,
concluding that the Indiana Strangulation is a crime of
violence under § 2K2.1(a)(4)(A) because it has as an
element the use, attempted use, or threated use of physical
7, 2017, the Court held a telephonic sentencing status
conference [ECF No. 53] and instructed the parties to review
the Seventh Circuit's opinion in United States v.
Bennett, 863 F.3d 679 (7th Cir. 2017), and to notify the
Court regarding any resultant sentencing issues. The
Defendant filed a Notice [ECF No. 54] on September 5, 2017,
maintaining his objection that Indiana Strangulation is not a
crime of violence under § 2K2.1(a)(4)(A). The Government
filed a Response [ECF No. 55] on September 22, 2017, the
Defendant filed a Reply [ECF No. 59] on November 14, 2017,
and the Government filed a Surreply [ECF No. 60] on December
1, 2017. This issue is now fully briefed and ripe for review.
Bennett, the Seventh Circuit reviewed the
defendant's conviction under Indiana Code 35-44-3-3
(since changed to 35-44.1-3-1) for resisting law enforcement
to determine if it was a violent felony for the purposes of
18 U.S.C. § 924(e). A “violent felony” for
the purposes of § 924(e) is a crime that “has as
an element the use, attempted use, or threatened use of
physical force against the person of another.”
Bennett, 863 F.3d at 680 (citing 18 U.S.C. §
924(e)(2)(B)(i)). “Physical force” is
“force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559
U.S. 133, 140 (2010). “But, ‘inflict[ing] bodily
injury on or otherwise caus[ing] bodily injury to another
person, ' as defined by Indiana courts, need not connote
violence.” Bennett, 863 F.3d at 681. (quoting
Whaley v. State, 843 N.E.2d 1, 5, 10-11 (Ind. App.
2006)). In Bennett, the Seventh Circuit cited an
example of conduct that would violate the statute at issue
but would not require the use of physical force.
Specifically, the crime of resisting law enforcement could be
accomplished where an arrestee, by fiddling with his
handcuffs, unintentionally caused a law enforcement officer
to trip, causing injury. Id. at 681-82.
under the categorical approach, resisting law enforcement
under Indiana law did not constitute a crime of violence for
the purposes of § 924(e).
Government and the Defendant agree that the categorical
approach to determining whether the Defendant's
conviction is a crime of violence for the purposes of §
924(e) is the appropriate approach.
Indiana strangulation statute provides in relevant part:
person who, in a rude, angry, or insolent manner, knowingly
(1) applies pressure to the throat or neck of another person;
(2) obstructs the nose or mouth of the another person; or
(3) applies pressure to the torso of another person; In a
manner that impedes the normal breathing or the blood
circulation of the other person commits ...