Love v. United States

1

BRYANT LOVE, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 2:17CR2-PPS

Associated Civil No. 2:23CV338-PPS

United States District Court, N.D. Indiana, Hammond Division

April 15, 2024

OPINION AND ORDER

PHILIP P. SIMON UNITED STATES DISTRICT JUDGE

After two sentencings and two trips to the Court of Appeals, Bryant Love is before me with a motion to vacate, set aside or correct sentence under 28 U.S.C. §2255. The Seventh Circuit has observed that the statute sets a high bar “Relief under §2255 is available ‘only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.'” United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7^th Cir. 2013)). Love fails to demonstrate any error in the proceedings that would necessitate vacating his conviction or sentence.

Procedural History

To recap the lengthy proceedings, I borrow from the Seventh Circuit's most recent opinion, United States v Love, No. 22-2035, 2023 WL 2546507, at **1-2 (7^th Cir. March 17, 2023) (“Love II”):

In 2019, Love pleaded guilty to three counts of possession and distribution of cocaine, 21 U.S.C. §841(a)(1), and one count of unlawful possession of a firearm while a felon, 18 U.S.C §922(g)(1). At Love's first sentencing hearing, the government argued that the district court should apply [the Armed Career Criminal Act's] 15-year mandatory minimum sentence, see id. §924(e), because Love had three prior convictions for a “violent felony.” They were: (1) a 1994 Illinois conviction for armed robbery; (2) a 2009 federal conviction for distribution of crack cocaine; and (3) a 2015 Indiana conviction for battery of a law enforcement officer resulting in bodily injury.

For his part, Love argued that his 1994 Illinois conviction did not qualify under ACCA because Illinois had sent him a restoration of rights letter, leading him to believe that the conviction had no legal effect. He also argued that his 2015 Indiana conviction was not a “violent felony” for various reasons. The district court rejected Love's first argument but agreed with the latter. Accordingly, it concluded that ACCA's 15-year mandatory minimum did not apply and imposed a custodial sentence of 96 months.

Both Love and the government appealed. The government reiterated that Love qualified as a career offender under ACCA. Love repeated the arguments he made to the district court. We agreed with the government, concluding that each of Love's three prior offenses qualified as an ACCA “violent felony” offense. United States v. Love, 7 F.4th 674 (7^thCir. 2021), cert. denied, 143 S.Ct. 159 (2022) (“Love I”). We therefore remanded the case for resentencing under ACCA. Id.

Love then petitioned this court for rehearing en banc, arguing, for the first time, that his 1994 Illinois armed robbery conviction did not qualify as a “violent felony” under Borden v. United States, 141 S.Ct. 1817 (2021). In Borden, which was issued after oral arguments in Love I but before the appeal was decided, the Supreme Court held that, to be a “violent felony” under ACCA, the use of physical force against the person of another requires “purposeful or knowing conduct.” 141 S.Ct. at 1828. Love contended that his 1994 Illinois armed robbery conviction did not meet this definition because the Illinois statute prohibited both the intentional and reckless use of force. We denied the rehearing petition. See Love I, 7 F.4th 674, reh'g en banc denied, Oct. 4, 2021.

On remand, Love presented this new argument to the district court, but the court ruled that it was bound to apply ACCA's 15-year mandatory minimum due to the constraints of the remand. The district court also concluded that, in any event, Love's 1994 Illinois armed robbery conviction was a “violent felony” under circuit law. Therefore, the district court imposed a custodial sentence of 15 years, and Love filed the instant appeal.

[DE 208-1 at 2-3.]

In Love II, the Seventh Circuit affirmed the new 15-year sentence, finding that Love had forfeited his argument that the 1994 Illinois armed robbery conviction does not qualify as a “violent felony” after the Supreme Court's decision in Borden, “because Love did not raise this argument in either the district court or his first appeal (until his petition for rehearing en banc).” [DE 208-1 at 2.] The Seventh Circuit also concluded that I had not committed plain error by treating the offense as a predicate for ACCA purposes. [Id.]

Discussion

Love's “Motion to Amend and Supplement” [DE 227] together with his later-filed “Memorandum in Support of 28 U.S.C. §2255 Motion” [DE 230] are construed as presenting his grounds for relief. In Ground One of his motion, Love contends that, under Borden, his 1994 Illinois armed robbery conviction is not categorically a crime of violence and the ACCA was wrongly applied to Love's sentencing. I sentenced Love the first time on June 15, 2020. [DE 151.] Borden was decided on June 10, 2021, before the Seventh Circuit's mandate on October 19, 2021 remanded the case for resentencing. [DE 175.] Love observes that neither this court nor the Court of Appeals has addressed the merits of his Borden argument. [DE 227 at 5; DE 230 at 1-2.]

Under what is called the “elements clause” of §924(e)(2)(B)(i), a “violent felony” for ACCA purposes includes “any crime punishable by imprisonment for a term exceeding one year....that...has as an element the use, attempted use, or threatened use of physical force against the person of another.” In Borden, the Supreme Court “held that, under the categorical approach, an offense does not involve the ‘use of physical force against the person of another' if the offense can be committed with a mens rea of recklessness.” United States v Brown, 74 F.4th 527, 529 (7^th Cir. 2023), quoting Borden, 141 S.Ct. at 1825 (plurality opinion).

Love argues that the 1994 Illinois statute defining armed robbery (720 ILCS 4/182 (1993)) included the lesser offense of robbery (720 ILCS 5/18-1 (1993)) and “criminalized reckless conduct, specifically, the reckless ‘use of force.'” [DE 230 at 5.] Love reasons that because the robbery statute contained no explicit mens rea for the element of force, then, pursuant to a gap-filling Illinois provision, “any mental state defined in Section 4-4, 4-5, or 4-6 is applicable.” 720 ILCS 5/4-3 (1993). Since the subsections referred to define (in order) the mental states of intent, knowledge and recklessness, then recklessness, Love argues, is one alternative for commission of robbery and armed robbery, which makes his prior conviction ineligible as a precursor ACCA offense. [DE 230 at 5.]

The government argues that Love's invocation of Borden is barred by the law of the case, suggesting that the Court of Appeals' most recent decision finding no clear error in the second sentencing constituted a determination of the issue on the merits.

[DE 232 at 6.] The government has also offered a merits analysis of the Borden argument, and rather than another round of procedural rejection, I think it best to finally tackle Love's argument on the merits. I will resolve Ground One on that basis, as I am persuaded that it provides no relief for Love.

Determining whether a prior offense constitutes a predicate violent felony under the ACCA involves a categorical analysis, considering “whether the elements of the prior felony required the prosecution to prove defendant used, attempted to use, or threatened to use physical force against the person of another.” Portee v. United States, 941 F.3d 263, 266 (7^th Cir. 2019), quoted in Love I, 7 F.4th at 678. The Illinois statute under which Love was convicted of armed robbery in 1993 applied to a robbery committed while the defendant “carries on or about his or her person, or is otherwise armed with a dangerous weapon.” 720 ILCS 5/18-2 (1993). Robbery was defined in 720 ILCS 5/18-1 (1993): “A person commits robbery when he or she takes property...from the person or presence of another by the use of force or by threatening the imminent use of force.”

Illinois pattern jury instructions can be considered to identify what the prosecution was required to prove to establish an armed robbery. United States v. D.D.B., 903 F.3d 684, 692 (7^th Cir. 2018). Under Illinois Pattern Jury Instruction 14.06:

To sustain the charge of armed robbery, the State must prove the following propositions:

First Proposition: That the defendant knowingly took property from the person or presence of (the victim); and

Second Proposition: That the defendant did so by the use of force or by threatening the imminent use of force; and Third Proposition: That the defendant carried on or about his person, or was otherwise armed with[(a dangerous weapon other than a firearm)(a firearm)] at the time of the taking.

See https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/-e4e7217e-9ba1-4e3e-acd3-325a6d871703/CRIM%2014.00.pdf. The “use” of force to cause the relinquishment of property is required to commit armed robbery, and such an employment of force requires intent or knowledge at a level greater than mere recklessness.

Consideration of the statute by the courts of Illinois bolsters this conclusion. In People v. Blake, 579 N.E.2d 861, 864 (Ill. 1991), the Illinois Supreme Court rejected a challenge to an armed robbery conviction on the ground that the prosecution had “failed to establish that the property was taken by the use of force or the threat of force.” The Supreme Court noted that the evidence supported a relationship between the “use and threat of force and the defendant's removal of the property,” referring to this as “the...