United States v. Townsend

224 F.Supp.3d 816

UNITED STATES of America, Plaintiff,

v.Edward Lee TOWNSEND, a/k/a Edward Earl Townsend, Defendant.

Case No. 15–cr–305 (SRN/HB)

United States District Court, D. Minnesota.

Signed December 19, 2016

Benjamin Bejar and Craig R. Baune, United States Attorney's Office, 300 South 4th St., Ste. 600, Minneapolis, MN 55415, for Plaintiff.

Lisa M. Lopez and Manvir K. Atwal, Office of the Federal Defender, 300 South 4th St., Ste. 107, Minneapolis, MN 55415, for Defendant Edward Townsend.

OPINION

SUSAN RICHARD NELSON, United States District Judge

On December 14, 2016, this Court sentenced the Defendant Edward Townsend ("Townsend") based on his recent federal conviction for being a felon in possession of a firearm. (See Court Minutes dated December 14, 2016 [Doc. No. 82].) At the hearing, the Court held—over Townsend's objections—that the Armed Career Criminal Act's ("ACCA") minimum mandatory sentence applied because Townsend had the requisite three prior violent felony convictions. The Court stated its reasons on the record, but issues this written opinion memorializing that holding.

I. TOWNSEND'S PRIOR FELONY CONVICTIONS AND THE RELEVANT ACCA PROVISION

Townsend has four prior felony convictions: (1) a Wisconsin conviction for substantial battery, (2) a Minnesota conviction for fifth-degree assault, (3) a Minnesota conviction for first-degree aggravated robbery, and (4) a Wisconsin conviction for armed robbery with threat of force. (Presentence Investigation Report ("PSR") at ¶¶ 34, 42, 44, 45 [Doc. No. 71].) The ACCA imposes a minimum mandatory sentence of fifteen years on defendants convicted of being a felon in possession of a firearm if, in relevant part, the defendant has at least three prior "violent felony" convictions (often referred to as "predicate offenses"). 18 U.S.C. § 924(e)(1). The parties agree that whether or not Mr. Townsend's prior felony convictions qualify as predicate offenses depends on the so-called "force" or "elements" clause of the ACCA. (See Gov't's Sentencing Mem. at 5 [Doc. No. 77]; Def's Sentencing Position at 3–4 [Doc. No. 80].) That clause defines a predicate "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). The Supreme Court has defined "physical force" as "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis original). However, threatening the use of physical force also constitutes a predicate offense so long as the force threatened is violent physical force. See United States v. Lindsey , 827 F.3d 733, 739 (8th Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 413, 196 L.Ed.2d 321 (2016).

The Government argues that all four of Townsend's prior felony convictions are violent felonies under the force clause and thus the ACCA's minimum mandatory sentence applies. (See Gov't's Sentencing Mem. at 5–22.) Townsend contends that, at a minimum, his Minnesota first-degree aggravated robbery and Wisconsin armed robbery convictions are not violent felonies and thus the ACCA does not apply. (See Def's Sentencing Position at 7–13.)

II. WISCONSIN SUBSTANTIAL BATTERY AND MINNESOTA FIFTH—DEGREE ASSAULT

Townsend makes a passing assertion that his Wisconsin substantial battery and Minnesota fifth-degree assault convictions are not predicate offenses under the ACCA because "the law in this area is in flux, and simultaneously dependent on state court decisions which might alter the result." (Def's Sentencing Position at 13.) He offers no support for this argument and no relevant case law. However, because these convictions are important to the Court's ultimate conclusion that the ACCA's minimum mandatory sentence applies, the Court briefly examines each conviction.

When Townsend committed the offense, Wisconsin defined substantial battery as "caus[ing] substantial bodily harm to another by an act done with intent to cause substantial bodily harm ...." Wis. Stat. § 940.19(3) (1999). The statute further defined "substantial bodily harm" as "bodily injury that causes a laceration that requires stiches; any fracture of a bone; a burn; a temporary loss of consciousness, sight, or hearing; a concussion; or a loss or fracture of a tooth." Wis. Stat. § 939.22(38) (1999). Using the categorical approach—wherein a Court looks only at the elements and statutory definitions of the crime of conviction and not the particular facts underlying the conviction, see Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) —Wisconsin's substantial battery statute plainly contains an element of violent physical force sufficient to cause substantial bodily harm. Thus, Townsend's Wisconsin substantial battery conviction is an ACCA predicate offense.

When Mr. Townsend committed the offense, Minnesota defined fifth-degree assault as "(1) commit[ting] an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflict[ing] or attempt [ting] to inflict bodily harm upon another." Minn. Stat. § 609.224, subd. 1 (2004). "Bodily harm" was described as "physical pain or injury, illness, or any impairment of physical condition." Minn. Stat. § 609.02, subd. 7 (2004). Recently, the Eighth Circuit held that Minnesota's domestic assault statute—which contains elements and definitions identical to those for fifth-degree assault—was an ACCA predicate offense under the force clause. United States v. Schaffer , 818 F.3d 796, 798 (8th Cir. 2016). Following Schaffer , the Court holds that Townsend's Minnesota fifth-degree assault conviction is an ACCA predicate offense.

III. MINNESOTA FIRST–DEGREE AGGRAVATED ROBBERY

The Government, relying heavily on an opinion from the Seventh Circuit, argues that Townsend's Minnesota first-degree aggravated robbery conviction is a violent felony. (See Gov't's Sentencing Mem. at 10–17 (citing United States v. Maxwell , 823 F.3d 1057, 1060–61 (7th Cir. 2016) ).) The Government contends that the amount of force required for a conviction under this statute satisfies Johnson 's definition of violent force. (See id. ) Townsend argues that the requisite degree of violent force is not met because a conviction under this statute is possible where a defendant merely possesses—but does not use, brandish, or even threaten the use of—a dangerous weapon. (See Def's Sentencing Position at 7–10.)

When Townsend committed the offense, Minnesota defined so-called "simple robbery" as "tak[ing] personal property from the person or in the presence of another and us[ing] or threaten[ing] the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property ...." Minn. Stat. § 609.24 (2004). First-degree aggravated robbery, the crime Townsend was convicted of, was defined as committing simple robbery while "armed with a dangerous weapon ... or inflict[ing] bodily harm upon another ...." Minn. Stat. § 609.245, subd. 1 (2004).

In this District, Judge Schiltz recently addressed whether Minnesota first-degree aggravated robbery is an ACCA predicate offense. See United States v. Pettis , No. 15–cr–0233 (PJS/FLN), 2016 WL 5107035 (D. Minn. Sept. 19, 2016). The Court finds Judge Schiltz's well-reasoned opinion persuasive and follows it here.

In Pettis , Judge Schiltz first considered whether Minnesota simple robbery qualified as an ACCA predicate offense. 2016 WL 5107035 at *2–3. He concluded it was not a predicate offense because, according to Minnesota state court cases, it was possible to be convicted of the crime without using the strong, substantial, or violent degree of physical force required under Johnson. ¹ Id. (citing State v. Nelson , 297 N.W.2d 285, 286 (Minn. 1980) and Duluth St. Ry. Co. v. Fidelity & Deposit Co. of Md. , 136 Minn. 299, 161 N.W. 595, 595–96 (1917) ). For example, pulling on someone's coat or physically crowding someone in an elevator satisfies the force element of Minnesota simple robbery. See Nelson , 297 N.W.2d at 286 ; Duluth St. Ry. Co. , 161 N.W. at 595–96 ; see also State v. Gaiovnik , No. A09-190, 2010 WL 1439156, at *4 (Minn. Ct. App. Apr. 13, 2010), aff'd , 794 N.W.2d 643 (Minn. 2011) (holding that merely "grabbing" or "yanking" the victim's arm satisfied the simple robbery's force element). "Because the slightest contact with the victim is enough to support a conviction for simple robbery in Minnesota, that offense does not have as an element the use of a strong, substantial, or violent degree of force." Pettis , 2016 WL 5107035 at *3. However, Judge Schiltz did acknowledge that simple robbery was a "crime of violence" as enumerated in the Sentencing Guidelines. Id. at *3–4. Thus, although Minnesota simple robbery is not a predicate offense for determining if the ACCA's minimum mandatory applied, it is a crime of violence for the purposes of calculating the proper Guidelines range. Id.

Judge Schiltz then considered whether Minnesota first-degree aggravated robbery added the element of violent physical force necessary for an ACCA predicate offense. Id. at *4–5. Judge Schiltz first found, as another court in this District had previously found, that the first-degree aggravated robbery statute was divisible, containing two alternative elements. Id. at *4 (citing United States v. Jones , No. 04–cr–0362 (JRT/RLE), 2016 WL 4186929, at *4 (D. Minn. Aug. 8, 2016) ). Specifically, he found there were two ways to commit the crime: (1) committing a simple robbery while being armed with a dangerous weapon, or (2) inflicting bodily harm upon another while committing simple robbery. Id. (citing Minn. Stat. § 609.245, subd.1). This divisibility determination is important because where a statute contains alternative elements, one of which constitutes an ACCA predicate offense and the other...