United States v. Robinson

29 F.4th 370

UNITED STATES of America, Plaintiff-Appellee,

v.Arthur Lee ROBINSON, Defendant-Appellant.

No. 21-1622

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2021

Decided March 24, 2022

James M. Cutchin, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

David Brengle, Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Arthur L. Robinson, pro se.

Before Ripple, Wood, and Kirsch, Circuit Judges.

Wood, Circuit Judge.

Arthur Robinson pleaded guilty, without the benefit of a plea agreement, to one count of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Based largely on his willingness to admit his guilt, the court at first granted Robinson an acceptance-of-responsibility reduction to his offense level for sentencing purposes. See U.S.S.G. § 3E1.1(a). But after Robinson argued at his sentencing hearing that he should not be classified as an armed career criminal pursuant to 18 U.S.C. § 924(e), the district court revoked the acceptance reduction. It then found that Robinson was an armed career criminal and so was subject to a mandatory minimum sentence of 180 months. The court sentenced Robinson just above that line, to 188 months.

Robinson appealed the loss of the acceptance-of-responsibility reduction (but not the application of the mandatory minimum sentence). We agreed with him, vacated his sentence, and remanded for resentencing with the offense-level reduction restored. United States v. Robinson , 942 F.3d 767 (7th Cir. 2019) ( Robinson I ). On remand, the district court sentenced Robinson to the 180-month statutory minimum. Robinson again appealed. While that second appeal was pending, the Supreme Court decided Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). Robinson now argues that after Borden he no longer qualifies for the armed-career-criminal mandatory minimum, and so his sentence should again be vacated. This time, we find no merit in his position, and so we affirm.

I

Because the substance of Robinson's appeal largely turns on his lengthy criminal history, we begin there. We draw the relevant facts from the Presentence Investigation Report (PSR). Robinson's criminal career began in 1991, when, at the age of 20, he pleaded guilty to unlawful delivery of a controlled substance. A year later, in March 1992, he pleaded guilty to aggravated discharge of a firearm and to possession of a weapon by a felon. In January 1993, he was convicted of various cocaine-distribution offenses and of another charge for unlawful possession of a firearm. His March 1992 and January 1993 convictions landed him in prison from 1993 to June 2000. In 2002, Robinson pleaded guilty to two more cocaine-distribution charges; that conduct led to both additional convictions and the revocation of his supervised release from the January 1993 sentence. He remained in prison until December 2013, when he was again granted supervised release. That period of supervision ended in February 2016.

The conduct underlying Robinson's March 1992 guilty plea to aggravated discharge of a firearm is relevant to the current appeal. That conviction came about, as the PSR put it, after Robinson "shot a handgun at least twice, at a van operated by undercover police officers, who were attempting to purchase drugs from [him]." At the time, the relevant Illinois criminal statute provided that "[a] person commits aggravated discharge of a firearm when he knowingly ... [d]ischarges a firearm in the direction of another person or in the direction of a vehicle he knows to be occupied." Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2(a)(2).¹

Fast forward to September 2016. Early one morning, a police officer noticed an improperly parked vehicle on the street. The officer approached and observed Robinson asleep inside with a Glock 9mm handgun in his lap. The Glock had an extended 31-round magazine and (the officer later learned) had been reported stolen in 2002. Upon being awakened, Robinson volunteered that he was a convicted felon who had served 15 years in prison. Naturally he was arrested at that point. The next day, during an investigatory interview, Robinson explained that a man whom he claimed to know only as "Cory" had left the gun in the car after Robinson gave him a lift from a club. Robinson said that he had intended to discard the gun but had been intoxicated and had fallen asleep before he remembered to do so.

As we noted at the outset, Robinson pleaded guilty without a plea agreement to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He raised two arguments at sentencing. The first concerned his eligibility for an offense-level discount for acceptance of responsibility. That issue was ultimately resolved in his favor in Robinson I. The second argument related to his status as an armed career criminal for purposes of 18 U.S.C. § 924(e)(1). A person is subject to that statute if he "has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. The Armed Career Criminal Act (the Act) defines a "violent felony" as one having "as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B). Section 924(e)(1) provides that armed career criminals convicted of violating section 922(g) "shall be ... imprisoned not less than fifteen years[.]"

In Robinson I , we commented that Robinson did not contest the court's finding that he was an armed career criminal at that time. 942 F.3d at 772. But at the original sentencing proceeding, he did generally object to the PSR's classification of his 1992 aggravated-discharge conviction as a predicate violent felony. (All agree that Robinson has two other qualifying predicate convictions; the classification of the aggravated-discharge conviction thus is determinative of his status.) The district court overruled the objection but there is some ambiguity as to why. On the relevant form, the district court initialed both the box for "Court adopts probation officer's position" (i.e. , that the conviction in question was a qualifying "crime of violence") and the box for "Other: moot as withdrawn." In either case, there is no question that Robinson did not litigate the issue further.

In March 2021, on remand from Robinson I , the district court sentenced Robinson to the statutory minimum of 180 months (15 years). (By this time, Judge Yandle had taken over the case from Judge Herndon, who had retired.) In so doing, the district court criticized the mandatory minimum sentence and suggested that it was likely "greater than necessary." But the court indicated that its hands were tied by the Act. Robinson filed a timely notice of appeal. In June 2021, before any briefs were filed in the second appeal, the Supreme Court issued its opinion in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). Borden addressed the meaning of "use ... of physical force against the person of another" in section 924(e)(2)(B) of the Act.

II

In this appeal, Robinson contends that crimes akin to his Illinois aggravated-discharge offense may no longer serve as predicates for section 924(e), because of the Supreme Court's ruling in Borden. It was thus error, he reasons, to classify him as an armed career criminal at sentencing. The government counters that any such argument has long since been waived; that our remand in Robinson I was confined to the acceptance issue and did not permit Robinson to re-open other arguments, thus making his armed-career-criminal status the law of the case; and that, regardless, Robinson misreads Borden.

Normally, we review de novo the question whether a district court correctly enhanced a sentence under the Act, United States v. Foster , 652 F.3d 776, 792 (7th Cir. 2011), except insofar as the alleged error implicates a factual finding, in which case we review for clear error, id. But this appeal presents a prior question: whether the mandate rule and law-of-the-case doctrine preclude our consideration of Robinson's arguments. We thus begin there.

A

"The mandate rule requires a lower court to adhere to the commands of a higher court on remand." United States v. Polland , 56 F.3d 776, 777 (7th Cir. 1995). The law of the case doctrine performs a related function. It "is a corollary to the mandate rule and prohibits a lower court from reconsidering on remand an issue expressly or impliedly decided by a higher court ...." Id. at 778. But this bar to reconsideration is not absolute. The appellate court has "some flexibility ... to revisit an issue if an intervening change in the law, or some other special circumstance, warrants" doing so. United States v. Thomas , 11 F.3d 732, 736 (7th Cir. 1993).

Our decision in Robinson's first appeal did not address the question whether his 1992 aggravated-discharge conviction was a predicate under the Act's elements clause. That means, Robinson contends, that this issue was neither expressly nor impliedly decided in Robinson I and it is properly before us now. Moreover, he continues, even if we did rule on it earlier, he sees Borden as just the sort of "intervening change in the law" that Thomas had in mind. We do not need to choose between these alternatives. One way or the other the question is whether the Supreme Court's Borden decision compelled a change in the law of this circuit. We therefore turn immediately to that issue.

B

The Act's "elements clause" defines a violent felony as one 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). In United States v. Curtis , 645 F.3d 937, 940 (7th Cir. 2011), we had before us the nearly identical definition of "crime of violence" found in section 4B1.1(a) of the Sentencing Guidelines. We asked whether the elements of...