United States v. Anderson

99 F.4th 1106

UNITED STATES of America, Plaintiff-Appellee, v. Denny R. ANDERSON, Defendant-Appellant.

No. 21-1325

United States Court of Appeals, Seventh Circuit

Argued January 25, 2022

Decided April 30, 2024

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-CR-00201-001 — Tanya Walton Pratt, Chief Judge.

Lindsay Karwoski, Patrick Gibson, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Thomas Drysdale, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Ripple, Wood, and Jackson-Akiwumi, Circuit Judges.

Jackson-Akiwumi, Circuit Judge.

This case concerns whether the district court improperly enhanced Denny Anderson's sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). ACCA mandates a 15-year minimum sentence for those convicted of possessing a gun after three or more prior convictions for a "violent felony." In this direct appeal (Anderson once had a habeas appeal before this court too), Anderson argues that one of the prior convictions the district court relied on—his Florida conviction in 2001 for aggravated assault—covers reckless conduct and is therefore no longer a "violent felony" after Borden v. United States, 593 U.S. 420, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), held that predicate acts must be intentional crimes. We held this case in abeyance pending the Florida Supreme Court's decision in Somers v. United States, 355 So. 3d 887 (Fla. 2022), which addressed whether the Florida crime of aggravated assault covers reckless conduct. With that case decided, we are prepared to address Anderson's appeal. We conclude that Anderson's Florida conviction in 2001 is not a predicate violent felony and that the government may not substitute one of Anderson's other prior convictions as an alternative predicate offense. Because Anderson does not have three predicate convictions, the ACCA enhancement was improper. We therefore vacate and remand for resentencing.

I.

Denny Anderson was sentenced in 2012 for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1), after shooting at a man and then yelling racial slurs about him. The maximum penalty for the illegal-possession offense normally is 10 years, id. § 924(a)(2) (2018), but ACCA mandates a 15-year minimum sentence for anyone who has three prior convictions for a "violent felony," id. § 924(e). The indictment alleged eight prior felony convictions qualifying Anderson for a sentencing enhancement under § 924(e). Anderson pleaded guilty and was sentenced to an agreed-upon term of 180 months (15 years) in prison.

Anderson was resentenced in 2021, at the conclusion of a successful habeas petition he filed under 28 U.S.C. § 2255 in 2013. In that petition, he moved to vacate his sentence based on several defects. This court ruled that he was entitled to a hearing, Anderson v. United States, 865 F.3d 914, 922 (7th Cir. 2017), and the district court vacated the sentence. The government recharged him in a superseding indictment that listed the same prior convictions as in the original indictment, and the government again maintained that he was subject to a 15-year minimum sentence. In the factual basis supporting Anderson's renewed guilty plea, the government stated that Anderson had been convicted of three prior felonies. The parties agree that two—a 1981 burglary and a 1987 robbery—are ACCA predicates. The third offense the government mentioned was a 1995 Class C felony conviction for battery in Indiana. The original indictment, however, gave the wrong date of conviction, and, at the plea hearing for the superseding indictment, the government said the conviction was from "Marion County, Indiana," but has since acknowledged that it is from Hendricks County, Indiana.

As the case proceeded to sentencing, the probation office supplied information about Anderson's criminal history. The Presentence Investigation Report listed as "Adult Criminal Convictions" three violent felonies—the burglary from 1981, the robbery from 1987, and an aggravated assault from 2001 in Florida. Anderson's 1995 Indiana battery offense was included under "Other Arrests," a section listing offenses of which Anderson was not convicted. The PSR also stated that the battery "charge" was "[d]ismissed per plea agreement."

The district court agreed that Anderson's convictions for burglary, robbery, and Florida aggravated assault qualified as violent felonies, triggering a 15-year minimum sentence. The court did not discuss the Indiana battery offense as a predicate conviction. Neither party objected to the PSR, which the court adopted, and Anderson did not object to his designation as an armed career criminal. The court then resentenced him to 188 months in prison.

After Anderson filed this appeal to challenge his 15-year minimum sentence under ACCA, the district court permitted the government to supplement the record with three sets of documents. The first is a copy of Anderson's "judgment of conviction" for felony battery in Indiana on October 20, 1995, reflecting a sentence of probation. The second is a copy of the docket for that case. The docket shows that the state petitioned to revoke probation several months after the judgment. That petition was followed by a final entry stating "[c]ase dismissed per order." The third is a document showing that, shortly before the date of that final entry, Anderson entered into a plea deal in which the state agreed to "dismiss." The final entry on the docket reflects the order granting that motion to dismiss.

II.

This case turns on whether Anderson's 2001 conviction for assault in Florida, or the 1995 battery offense in Indiana, qualify as the third predicate conviction and therefore properly subjected him to a higher minimum sentence under ACCA. See 18 U.S.C. § 924(e). Ordinarily we review that question de novo. United States v. Love, 7 F.4th 674, 678 (7th Cir. 2021). But because Anderson did not contest his ACCA designation in the district court, we review that designation for plain error. United States v. Williams, 931 F.3d 570, 573 (7th Cir. 2019).

A.

Anderson first argues that his Florida conviction for aggravated assault is plainly not a "violent felony" because assault under Florida law, FLA. STAT. § 784.021, includes reckless conduct, and therefore the scope of the crime is too broad to constitute a violent felony. A state offense is a violent felony for ACCA if it "necessarily involves the defendant's 'use, attempted use, or threatened use of physical force against the person of another.' " Borden, 141 S. Ct. at 1822 (quoting 18 U.S.C. § 924(e)). A state offense is overbroad (and therefore not a violent felony) if it requires only the reckless use, attempted use, or threatened use of force. Id. at 1821-22.

As mentioned earlier, we waited for the Florida Supreme Court to rule on whether the crime of assault in that state includes reckless conduct. It has done so, holding that "an assault cannot be committed by a reckless act." Somers, 355 So. 3d at 892. But that decision, Anderson contends, does not resolve the matter before us. According to Anderson, the relevant inquiry is whether the law at the time of his conviction was broader than the corresponding federal law. And at the time of Anderson's conviction in 2001, Florida courts were split on the breadth of the assault statute. Some appellate courts had held that assault could be committed recklessly, see LaValley v. Florida, 633 So. 2d 1126, 1127-28 (Fla. Dist. Ct. App. 1994); Kelly v. Florida, 552 So. 2d 206, 208 (Fla. Dist. Ct. App. 1989), while others had reached the opposite conclusion, see, e.g., Lavin v. Florida, 754 So. 2d 784, 787 (Fla. Dist. Ct. App. 2000) ("Aggravated assault requires proof of a specific intent to do violence to the person of another."); Florida v. Shorette, 404 So. 2d 816, 817 (Fla. Dist. Ct. App. 1981) (same); J.C.M. v. Florida, 375 So. 2d 873, 873-74 (Fla. Dist. Ct. App. 1979) (same).

As an initial matter, Anderson is correct that we look to the law at the time of the offense to determine whether a crime is a violent felony under ACCA. See Love, 7 F.4th at 678 ("We consider the version of the State's criminal statute in effect at the time of the offense."); cf. McNeill v. United States, 563 U.S. 816, 820, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011) (considering the "law under which the defendant was convicted" in determining whether a defendant committed a "serious drug offense" under ACCA).

The breadth of the Florida aggravated assault statute at the time of Anderson's conviction is not easily discerned. Under rules of federal statutory construction, we ordinarily presume that a court's construction of a federal statute merely clarifies existing law and is "an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction." Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). Under this presumption, the aggravated assault statute at the time of Anderson's 2001 conviction would have the same meaning as the Florida Supreme Court's interpretation in Somers in 2022. But because we are dealing with a Florida statute, we must apply Florida's rules of statutory construction. See, e.g., Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1093 (7th Cir. 1999) ("That other jurisdictions favor a policy cannot weigh heavily in a federal court's determination in an unsettled area of a state's law if there is any significant indication that that state's own law either disfavors the policy in question directly or that promoting the policy would run afoul of established state standards of judicial interpretation or statutory construction." (emphasis added)). And Florida has a unique approach to statutory interpretation: In Florida v....