United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT.
Defendant, Derek Bryner, has pled guilty to begin a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1), and is awaiting sentencing. An officer with the
United States Probation Office prepared a Presentence
Investigation Report (PSIR) in anticipation of the
Defendant's sentencing. There is one objection for the
Court to resolve. The Government objects to paragraph 32 of
the PSIR establishing the Defendant's base offense level
at 14. The Government contends that the base offense level
should be 20 because the Defendant has a 2013 conviction for
Intimidation under Indiana law that should be designated as a
felony crime of violence under the United States Sentencing
Guidelines, §§ 2K2.1(a)(4)(A) & 4B1.2(a)(1).
definition of a crime of violence for purposes of §
2K2.1 is found in § 4B1.2(a). Under that provision, a
crime of violence is an offense punishable by imprisonment
for at least one year that “has as an element the use,
attempted use, or threatening use of physical force against
the person of another.” U.S.S.G. § 4B1.2(a)(1).
The categorical approach is the primary method for
considering whether a previous conviction qualifies as a
predicate crime of violence. See Descamps v. United
States, 570 U.S. 254, 257 (2013); United States v.
Curtis, 645 F.3d 937, 939-40 (7th Cir. 2011).
Indiana's Intimidation statute is divisible, a modified
categorical is appropriate in determining whether the
conviction is a violent felony. See United States v.
Ellis, 622 F.3d 784, 798 (7th Cir. 2010). The Court may,
therefore, 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, 570 U.S. at 257;
Shepard v. United States, 544 U.S. 13, 17 (2005).
Once that is done, the categorical approach is again employed
to determine whether those elements satisfy the force clause.
United States v. Yang, 799 F.3d 750, 753 (7th Cir.
2015); see also Mathis v. United States, 136 S.Ct.
February 2013, the Indiana statute provided that a
“person who communicates a threat to another person,
with the intent . . . that the other person be placed in fear
of retaliation for a prior lawful act” commits a Class
A misdemeanor. Ind. Code § 35-45-2-1(a)(2) (modified
July 2013). The statute defines “threat” to
include “an expression, by words or action, of an
intention to . . . unlawfully injure the person threatened or
another person, or damage property.” Id.
§ 35-45-2-1(c)(1) (modified 2013). The offense becomes a
Class D felony if “the threat is to commit a forcible
felony.” Id. § 35-45-2-1(b)(1)(A)
(modified July 2013). A forcible felony is “a felony
that involves the use or threat of force against a human
being, or in which there is imminent danger of bodily injury
to a human being.” Id. § 35-31.5-2-138
Defendant's charging documents, chronological case
summary, and plea hearing show that he was convicted of
communicating a threat that he would commit a forcible
felony, with the intent that the other person be placed in
fear of retaliation for a prior lawful act, a Class D Felony.
As the parties note, this Court has previously held that
Class D Intimidation was not a crime of violence. The Court
reasoned that, because the Intimidation statute's
definition of “threat” includes expressions of
“an intention to . . . unlawfully injure the person
threatened or another person, or damage property,
” Ind. Code § 35-45-2-1(c)(1), the forcible felony
a defendant threatened to use could be one that damages
property. A threat to damage property, regardless of whether
by commission of a forcible felony or otherwise, does not
necessarily involve “physical force against the person
of another.” 18 U.S.C. §
924(e)(2)(B). The Defendant maintains that this
reasoning stands because the threat of force against a human
being can be met by threatening damage to that human's
property. The Government contends that the particular threat
at issue here-to commit a forcible felony-is more restrictive
than the statute's broader definition of a threat the
Court relied upon in Portee.
Court agrees with the Government. Under Indiana law, a threat
to commit a forcible felony must be a threat to use force
against a human being or to do an act that would place a
human being in imminent danger of bodily injury. The Court is
not bound by its prior decision, particularly if it was
erroneous. Rather, the Court has a duty to calculate the
Guidelines correctly. See United States v. Vrdolyak,
593 F.3d 676, 678 (7th Cir. 2010) (noting while a sentencing
judge is not “required to give a guidelines sentence,
he is required to make a correct determination of the
guidelines sentencing range as the first step in deciding
what sentence to impose”) (first citing Gall v.
United States, 552 U.S. 38, 50 (2007); then citing
United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.
2009)). The Court finds that when a person communicates the
kind of threat that is required to sustain a conviction under
Indiana Code § 35-45-2-1(b)(1)(A), he or she has
committed an offense that “has as an element the . . .
threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.1(a)(1).
reasons stated above, the Court SUSTAINS the Government's
objection to the PSIR, and the PSIR will be revised
accordingly. The Court will address any other factors related
to sentencing at the time of the sentencing hearing, and
after the Defendant and the Government have been afforded the
opportunity to address the Court. See Fed. R. Crim.
P. 32(i)(4)(A). Sentencing is confirmed for Monday, June 25,
2018, at 10:00 AM before Judge Theresa L. Springmann.
 The case, United States v. Daniel
Portee, 1:09-CR-89-TLS, was before the Court on a Motion
to Correct Sentence Under 28 U.S.C. § 2255. Portee had
been sentenced pursuant to the provisions of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). Portee argued
that three of his prior convictions, including one for
Intimidation, were no longer considered violent felonies
after the Supreme Court invalidated a portion of the
ACCA's definition of a predicate crime of violence.
Despite finding that his Intimidation conviction did not
qualify as a violent felony under the ...