Klikno v. United States

928 F.3d 539

Steven KLIKNO, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

Joseph Van Sach, Petitioner-Appellant,

v.United States of America, Respondent-Appellee.

Ernest D. Shields, Petitioner-Appellant,

v.United States of America, Respondent-Appellee.

Tony Lipscomb, Petitioner-Appellant,

v.United States of America, Respondent-Appellee.

James Pinkney, Petitioner-Appellant,

v.United States of America, Respondent-Appellee.

Lashon Browning, Petitioner-Appellant,

v.United States of America, Respondent-Appellee.

No. 16-2312

No. 17-1824

No. 17-1929

No. 17-2233

No. 17-2339

No. 17-2514

United States Court of Appeals, Seventh Circuit.

Submitted March 29, 2019

And April 19, 2019

Decided June 21, 2019

Carol A. Brook, Attorney, John F. Murphy, Attorney, William H. Theis, Attorney, OFFICE OF THE FEDERAL DEFENDER PROGRAM, Chicago, IL, for Petitioner-Appellant in 16-2312 and 17-1824.

Monica Mallory, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rockford, IL, for Respondent-Appellee in 16-2312.

Debra Riggs Bonamici, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Respondent-Appellee in 17-1824 and 17-2339.

John T. Kennedy, Attorney, Evanston, IL, for Petitioner-Appellant in 17-1929.

Jason A. Yonan, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, Respondent-Appellee in 17-1929.

John F. Murphy, Attorney, William H. Theis, Attorney, OFFICE OF THE FEDERAL DEFENDER PROGRAM, Chicago, IL, for Petitioner-Appellant in 17-2233 and 17-2514.

Debra Riggs Bonamici, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Respondent-Appellee in 17-2233 and 17-2514.

Nicholas George Grapsas, Sr., Attorney, NICHOLAS G. GRAPSAS, LTD., Inverness, IL, for Petitioner-Appellant in 17-2339.

Before Wood, Chief Judge, and Flaum and Kanne, Circuit Judges.

Wood, Chief Judge.

The 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.

The 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 , ––– U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (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.

I

We 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 , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (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, 133 S.Ct. 2276, 186 L.Ed.2d 438 (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 , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (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.

In Curtis Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (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. § 784.03(1)(a), (2) (2003). 559 U.S. at 135, 130 S.Ct. 1265. 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, 130 S.Ct. 1265. 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, 130 S.Ct. 1265 (emphasis in original).

Stokeling 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 (Fla.1997)." Stokeling, 139 S. Ct. at 549.

The 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.

II

A

As we 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, ––– U.S. ––––, 139 S. Ct. 1249, 203 L.Ed.2d 269 (2019). In the other five cases, we reached the merits and concluded that the defendants were properly sentenced.¹ See Van Sach v. United States, No. 17-1824, 2017 WL 4842617 (7th Cir. Sept. 1, 2017), cert. granted, judgment vacated, ––– U.S. ––––, 139 S. Ct. 1255, 203 L.Ed.2d 269 (2019) ; Shields v. United States, 885 F.3d 1020 (7th Cir. 2018), cert. granted, judgment vacated, ––– U.S. ––––, 139 S. Ct. 1257, 203 L.Ed.2d 269 (2019) ; Lipscomb v. United States , 721 F. App'x 518 (7th Cir. 2018), cert. granted, judgment vacated, ––– U.S. ––––, 139 S. Ct. 1260, 203 L.Ed.2d 269 (2019) ; Pinkney v. United States , 734 F. App'x 986 (7th Cir. 2018), cert. granted, judgment vacated, ––– U.S. ––––, 139 S. Ct. 1322, 203 L.Ed.2d 561 (2019) ; and Browning v. United States , 723 F. App'x 343 (7th Cir. 2018), cert. granted, judgment vacated, ––– U.S. ––––, 139 S. Ct. 1260, 203 L.Ed.2d 270 (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.

B

Two 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.

720 ILCS 5/18-1(a). Armed robbery incorporates that language and adds additional criteria:

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 than a firearm; or

(2) he or she carries on or about his or her person or is otherwise armed with a

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