Submitted March 29, 2019, and April 19, 2019
remand from the Supreme Court of the United States
WOOD, Chief Judge, and Flaum and Kanne, Circuit Judges.
Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e)(1), provides for an enhanced sentence for an
ex-felon who possesses a firearm in violation of 18 U.S.C.
§ 922(g), if that person has "three previous
convictions ... for a violent felony or a serious drug
offense, or both ... ." ACCA defines a "violent
felony" to include a federal or state crime punishable
by more than a year's imprisonment 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). While that definition may seem
straightforward to the uninitiated, it has spawned almost as
many questions as there are federal or state crimes.
Supreme Court has addressed this matter several times, in an
effort to clarify just how much violence is required for a
crime to be qualifying, and how courts are to go about
assessing that issue. It most recently spoke to these issues
in Stokeling v. United States, 139 S.Ct. 544 (2019).
In each of the six cases now before us, we concluded that the
ACCA enhancement applied; the petitioner filed a petition for
certiorari with the Court; the Court held that petition for
the decision in Stokeling; and it now has remanded
the case to us for reconsideration in light of
Stokeling. Because each of these cases raises the
same question-whether the Illinois statutes prohibiting
robbery and armed robbery, 720 ILCS 5/18-1 (a), 5/18-2,
qualify as crimes of violence for ACCA purposes-we have
consolidated them for disposition.
begin by reviewing some basic principles. First, we are
addressing only the "elements" approach to proving
a crime of violence. The statute also enumerates certain
crimes, see 18 U.S.C. § 924(e)(2)(B)(ii), but robbery is
not on that list. (At one time there was also a so-called
residual clause, but it was invalidated by the Supreme Court
in Samuel Johnson v. United States, 135 S.Ct. 2551
(2015), and is not relevant to any of these appeals.) Second,
in deciding whether a statute "has as an element the
use, attempted use, or threatened use of physical force
against the person of another," we must use a
categorical approach, under which we "compare the
elements of the statute forming the basis of the
defendant's conviction with the elements of the
'generic' crime." Descamps v. United
States, 570 U.S. 254, 257 (2013). If the statute in
question is "divisible," meaning that it offers
alternative elements rather than merely alternative ways of
proving a single element, see Mathis v. United
States, 136 S.Ct. 2243 (2016), then a somewhat more
elaborate inquiry is permissible. Id. But the
Illinois statute before us is not divisible, and so we are
left with the ordinary categorical approach.
Curtis Johnson v. United States, 559 U.S. 133
(2010), the Supreme Court took a close look at the level of
force that is needed in order to trigger the ACCA sentencing
enhancement. Curtis Johnson pleaded guilty to possessing a
firearm after a felony conviction, 18 U.S.C. § 922(g),
and the government argued that he was subject to the ACCA
penalty scheme. One of his prior felonies was for the Florida
offense of battery by "[a]ctually and intentionally
touch[ing] another person," in violation of Fla. Stat.
§ 784.O3(1)(a), (2) (2003). 559 U.S. at 135. The
question was whether the degree of force required by the
Florida law met the federal definition in ACCA.
Under the common law, the Supreme Court observed, the
"element of 'force' [was] satisfied by even the
slightest offensive touching." 559 U.S at 139. But,
bearing in mind the need to take context into account, the
Court held that ACCA did not adopt the common-law approach.
Instead, it said, "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 person." Id. at 140 (emphasis in
addressed the next logical question in this sequence: how
much physical pain or injury is necessary? Is a scratch or a
pinch enough? If not, then how much more does the statute
demand? Like Curtis Johnson, Stokeling arose in
Florida. After Stokeling pleaded guilty to a violation of
section 922(g), the government sought an enhanced sentence
under ACCA; it relied in part on his 1997 Florida conviction
for robbery. See Fla. Stat. § 812.13(1). That statute
defines robbery as "the taking of money or other
property ... from the person or custody of another, ... when
in the course of the taking there is the use of force,
violence, assault, or putting in fear." Id.
Critically, the Florida Supreme Court had held in an earlier
case "that the 'use of force' necessary to
commit robbery requires 'resistance by the victim that is
overcome by the physical force of the offender.'
Robinson v. State, 692 So.2d 883, 886 (1997)."
Stokeling, 139 S.Ct. at 549.
Supreme Court held that this was enough to satisfy ACCA. It
relied substantially on the common-law definition of the
crime of robbery, which requires force or violence, and which
understands "violence" to mean the use of
sufficient force "to overcome the resistance
encountered." Id. at 550. The history of ACCA
and the widely accepted definition of robbery in the states
reinforced the Court's conclusion. It was enough, the
Court said, if a statute requires "force capable of
causing physical pain or injury." Id. at 553.
Merely snatching a wallet from a person's hand would not
qualify as the use of force, but grabbing someone's
fingers and peeling them back in order to steal whatever she
was holding would. Id. at 555.
noted earlier, all six of the matters we have consolidated
for decision took a similar procedural path. All involved
motions under 28 U.S.C. § 2255 for collateral relief
from a sentence that was enhanced under ACCA. In Klikno
v. United States, we denied a certificate of
appealability, and Klikno filed a petition for certiorari
from that decision. See Klikno v. United States, No.
16-2312, 7th Cir. Jan. 9, 2017, cert, granted, judgment
vacated, 139 S.Ct. 1249 (2019). In the other five cases, we
reached the merits and concluded that the defendants were
properly sentenced. See Van Sack v. United States,
No. 17-1824, 2017 WL 4842617 (7th Cir. Sept. 1, 2017), cert,
granted, judgment vacated, 139 S.Ct. 1255 (2019); Shields
v. United States, 885 F.3d 1020 (7th Cir. 2018), cert,
granted, judgment vacated, 139 S.Ct. 1257 (2019);
Lipscomb v. United States, 721 Fed.Appx. 518 (7th
Cir. 2018), cert, granted, judgment vacated, 139 S.Ct. 1260
(2019); Pinkney v. United States, 734 Fed.Appx. 986
(7th Cir. 2018), cert, granted, judgment vacated, 139 S.Ct.
1322 (2019); and Browning v. United States, 723
Fed.Appx. 343 (7th Cir. 2018), cert, granted, judgment
vacated, 139 S.Ct. 1260 (2019). After we received the Supreme
Court's mandate, we invited the parties to submit
statements pursuant to Circuit Rule 54 on the proper next
steps. We have received those statements, and so the cases
are ready for decision.
Illinois statutes figure in all six cases: the law
prohibiting robbery, and the law prohibiting armed robbery.
The ordinary robbery statute reads as follows:
A person commits robbery when he or she knowingly takes
property, except a motor vehicle covered by Section 18-3 or
18-4, from the person or presence of another by the use of
force or by threatening the imminent use of force.
5/18-l(a). Armed robbery incorporates that language and adds
A person commits armed robbery when he or she violates
Section 18-1; and
(1) he or she carries on or about his or her person or is
otherwise armed with a dangerous weapon other ...