United States v. Love

7 F.4th 674

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant,

v.Bryant LOVE, Defendant-Appellant/Cross-Appellee.

Nos. 20-2131 & 20-2297

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2021

Decided August 6, 2021

Rehearing and Rehearing En Banc Denied October 4, 2021

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee/Cross-Appellant.

Russell W. Brown, Jr., Attorney, King, Brown & Murdaugh, LLC, Merrillville, IN, for Defendant-Appellant/Cross-Appellee.

Before Flaum, Manion, and Kanne, Circuit Judges.

Manion, Circuit Judge.

Bryant Love pleaded guilty to multiple drug counts and a felon-in-possession count. The government proposed three prior offenses to trigger the Armed Career Criminal Act's 15-year mandatory minimum sentence: 1) 1994 Illinois armed robbery; 2) 2009 federal distribution of crack cocaine; and 3) 2015 Indiana Class D battery resulting in bodily injury.

Love argued the ACCA should not apply for two reasons. First, he claimed he received a "restoration of rights" letter without an express reference to guns after he was released on the 1994 Illinois armed robbery conviction. Second, he argued his 2015 Indiana Class D battery-resulting-in-bodily-injury conviction was not a crime of violence under the ACCA.

The judge held the armed robbery conviction was an ACCA predicate but agreed with Love that the battery-resulting-in-bodily-injury conviction was not, as a categorical matter, a "violent felony," so Love did not have three ACCA predicates so he was not an armed career criminal. The judge sentenced Love to 96 months on each count, to be served concurrently. Love and the government both appeal.

Love argues the judge was wrong about the armed robbery conviction but right about the battery-resulting-in-bodily-injury conviction, and he argues the judge was wrong about two other sentencing issues. The government argues the exact opposite. We agree with the government and reverse and remand.

I. Background

Love sold crack to a confidential informant a few times. Officers searched his apartment and found crack in the kitchen. They also found two guns and ammunition in a hutch in an adjoining room. About 15 feet separated the drugs from the guns. Love pleaded guilty to three drug counts and one felon-in-possession count ( 18 U.S.C. § 922(g)(1) ).

A violation of 18 U.S.C. § 922(g)(1) causes a default sentencing range of 0 to 10 years. 18 U.S.C. § 924(a)(2). But the ACCA increases the penalty to a 15-year mandatory minimum if the defendant had three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1).

The government proposed three ACCA predicates: 1) 1994 Illinois armed robbery; 2) 2009 federal distribution of crack cocaine; and 3) 2015 Indiana Class D battery resulting in bodily injury. Both parties agree that the 2009 federal drug conviction satisfies the ACCA. The judge held the armed robbery conviction satisfies the ACCA but the battery-resulting-in-bodily-injury conviction does not. So Love was not considered an armed career criminal and the judge did not apply the mandatory minimum.

The judge found Love possessed a loaded firearm "in connection with" drug trafficking. So the judge applied USSG § 2K2.1(b)(6)(B) ’s four-level enhancement. This produced a guidelines range of 57 to 71 months. The judge also considered Love's eight pending charges—some "very distressing"—as 18 U.S.C. § 3553(a) sentencing factors. The judge noted Love's "shocking drum beat of criminal behavior."

The judge sentenced Love to 96 months on each count, concurrent. Both parties appeal. Love argues the judge was wrong about the armed robbery conviction. He claims he was "mousetrapped" after that conviction, so it cannot count as an ACCA predicate. Love also argues the judge erred in holding that he possessed a firearm "in connection with" drug trafficking and erred in considering the facts underlying the eight pending charges. The government argues the judge was wrong about the battery-resulting-in-bodily-injury conviction.

II. Mousetrapping?

Love argues that his 1994 Illinois armed robbery conviction does not count as an ACCA predicate. On appeal, his only argument regarding this prior conviction is that the district judge made an erroneous finding of fact.

Section 921(a)(20) says that if a defendant received restoration of his civil rights following a prior conviction, and that restoration does not expressly say he may not possess firearms, then that prior conviction does not count as an ACCA predicate: "Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. § 921(a)(20). This "anti-mousetrapping provision" applies if "the state sent [defendant] a document stating that his principal civil rights have been restored, while neglecting to mention the continuing firearms disability ...." Buchmeier v. United States , 581 F.3d 561, 566–67 (7th Cir. 2009).

Love had the burden to prove by a preponderance of the evidence that his rights were restored. United States v. Foster , 652 F.3d 776, 793 (7th Cir. 2011). Love acknowledges that although we review application of the ACCA de novo , we review underlying factual findings for clear error. Kirkland v. United States , 687 F.3d 878, 882–83 (7th Cir. 2012).

The district judge presented a thorough review of the evidence. He considered the testimony of the Assistant Chief Record Officer for the Illinois Department of Corrections. The judge also considered a transcript offered by Love of the testimony of an Illinois DOC lawyer in a different case. The judge considered the lack of a stipulation about Love's receipt of any discharge letter. He considered the lack of testimony from Love himself about any notice he received regarding restoration of rights following the subject prior conviction. Love never presented any notice allegedly given to him. The judge also carefully considered and rejected Love's invocation of the "presumption of regularity" doctrine. The judge determined that the most persuasive proof came from the Record Officer, who said it was not the practice of the institution that discharged Love to provide restoration-of-rights letters, and who said no such letter was found in Love's DOC file. So the judge concluded Love had not demonstrated that he received a notice about the restoration of his civil rights that failed to mention a continuing firearms limitation.

On appeal, Love invites us to re-weigh the evidence. But our review of the facts is limited to clear error, and we do not see any here. So Love's 1994 Illinois armed robbery conviction counts as an ACCA predicate.

III. 2015 Indiana Class D battery resulting in bodily injury

Relying on our decision in Flores v. Ashcroft , 350 F.3d 666 (7th Cir. 2003), and the Supreme Court's decision in Curtis Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the district court determined that Love's conviction under the version of Indiana Code 35-42-2-1(a)(2)(A) applicable in 2013 did not satisfy the ACCA's elements clause. The government appeals. As the question of whether a prior offense was a violent felony under the ACCA is a question of law, we review de novo . United States v. Lockett , 782 F.3d 349, 352 (7th Cir. 2015).

After the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague in Samuel Johnson v. United States , 576 U.S. 591, 606, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the only way Love's 2015 conviction for Indiana Class D battery resulting in bodily injury qualifies as an ACCA predicate is if it satisfies the ACCA's elements clause, which in relevant part defines "violent felony" to be any crime punishable by imprisonment for more than one year 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).

We generally employ the categorical approach to determine whether a prior felony satisfies the ACCA's elements clause. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2247, 195 L.Ed.2d 604 (2016) ; Descamps v. United States , 570 U.S. 254, 260–61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). That is, "we consider 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 (7th Cir. 2019). When a statute sets out alternative elements rather than alternative means or facts to satisfy a single element, the statute is divisible and we apply the modified categorical approach. United States v. Ker Yang , 799 F.3d 750, 753 (7th Cir. 2015). We glance at limited documents in the prior case to determine which alternative element formed the basis of the conviction. Id. ; Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Under either approach, we do not consider the factual details about what defendant actually did to deserve the prior conviction. After all, the ACCA's elements clause defines "violent felony" in terms of elements , not in terms of actual factual details. So we do not consider what defendant actually did. Instead, we consider the minimum elements a prosecutor had to prove to support a conviction under the State's criminal statute. We consider the version of the State's criminal statute in effect at the time of the offense. See United States v. Bennett , 863 F.3d 679, 680 (7th Cir. 2017).

Here, the parties agree Love was convicted of a Class D felony under Indiana Code 35-42-2-1(a)(2)(A). The offense occurred in 2013, when that statute said:

(a) A person who knowingly or intentionally

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