United States v. Gilbert, James D. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3111
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES D. GILBERT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04 CR 203—Larry J. McKinney, Chief Judge.
____________
ARGUED JUNE 2, 2006—DECIDED SEPTEMBER 19, 2006
____________
Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. A jury convicted James D.
Gilbert of possessing a firearm in interstate commerce after
previously having been convicted of a felony offense. See 18
U.S.C. § 922(g)(1). At sentencing, the district
court determined that three of Gilbert’s prior convic-
tions constituted violent felonies under the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B), and that deter-
mination triggered a mandatory minimum prison term of
fifteen years, § 924(e)(1). The court sentenced him to a term
of just under twenty years. Gilbert appeals his sentence,
contending that the district court erred in treating his prior
conviction in Indiana for criminal confinement as a violent
2 No. 05-3111
felony conviction. Consistent with our holding in United
States v. Hagenow, 423 F.3d 638, 644 (7th Cir. 2005), we
agree. We therefore vacate Gilbert’s sentence and remand
for resentencing.
I.
On August 16, 2004, two Indianapolis police officers on
patrol began to follow a gold Chevrolet Cavalier when the
vehicle nearly ran through a stop sign. After a quick
computer check revealed that the plates on the Cavalier
were registered to a different vehicle, the officers stopped
the car. Gilbert was a passenger in the Cavalier.
Once the officers determined that the driver, Jarvis
Johnson, lacked proper proof of registration, they decided to
impound the car and asked Johnson to step out of the
vehicle. Officer Steven Walters sought and received John-
son’s consent to a search of his outer clothing for safety
purposes. When Walters patted down the back pockets
of Johnson’s pants, he detected what felt like a small baggie
containing a substance of some sort. Walters solicited
Johnson’s consent to remove the object from his pocket, and
Johnson agreed. But before Walters could put his hand on
the item, Johnson grabbed and swallowed it. Walters
immediately put Johnson on the ground and placed him
under arrest.
At that point, officer Brian Morris asked Gilbert to step
out of the car. Morris obtained Gilbert’s consent to a limited
search of his person. But as Morris began to pat down
Gilbert, Gilbert shoved the officer away and fled. Walters
noticed that Gilbert’s right hand was clutched around the
front of his waistband as he ran. Walters ordered Gilbert to
stop and, when Gilbert did not heed the command, shot him
with a Taser stun gun. The electrical discharge caused
Gilbert’s right hand to drop away from his waistband, and
a gun fell out of that hand. Gilbert managed to keep
No. 05-3111 3
running, however. Another officer on the scene shot him a
second time with a stun gun and that brought the chase to
an end. The gun Gilbert had dropped—a loaded .38-caliber
pistol—was recovered and a small quantity of cocaine in
rock form was found in Gilbert’s shoe. A latent print on the
gun matched one of Gilbert’s fingerprints. Gilbert was
charged with being a felon in possession of a firearm, and
at the conclusion of a one-day trial, a jury convicted him of
that charge.
Gilbert’s rather substantial criminal history includes
an Indiana state court conviction for criminal confinement,
and a key issue at sentencing was whether that offense
should be categorized as a violent felony. Although the
default maximum prison term for a felon in possession of a
firearm is ten years, see 18 U.S.C. § 924(a)(2), the Armed
Career Criminal Act raises the maximum to life and
commands a minimum prison term of fifteen years for
persons who have three previous convictions for a violent
felony or a serious drug offense, id. § 924(e)(1). It was
undisputed that two of Gilbert’s prior convictions were for
offenses (robbery and sexual battery) that qualify as violent
felonies under this statute, but Gilbert argued that his
conviction for criminal confinement did not so qualify. As
Indiana defines criminal confinement, the offense can
be committed by removing a person from one place to
another through fraud or enticement, without the threat-
ened or actual use of force. See Ind. Code § 35-42-3-3(a). The
charging document underlying Gilbert’s conviction did not
disclose by which of the specified means Gilbert had
accomplished the removal of his victim. Nonetheless, the
district court, relying on our opinion in United States v.
Wallace, 326 F.3d 881 (7th Cir. 2003), reasoned that
criminal confinement constitutes a violent felony be-
cause the offense by its nature necessarily presents a
risk that someone will be physically injured whether or
not force is involved. R. 52 at 19. With three of his prior
4 No. 05-3111
convictions thus being treated as violent felonies, Gilbert
faced a minimum prison term of fifteen years.
The characterization of Gilbert’s prior convictions also
had a parallel and pronounced effect on his sentencing
range under the United States Sentencing Guidelines. The
armed career criminal provision of the Guidelines speci-
fied an offense level of 33 for Gilbert. United States Sen-
tencing Commission, Guidelines Manual, § 4B1.4(b) (3)(B)
(Nov. 2004).1 Coupled with a criminal history category of VI,
that offense level called for a sentence in the range of 235
to 293 months. Without the increase mandated by this
provision of the Guidelines (and the increased statutory
minimum term), Gilbert’s offense level would have been 28
and his sentencing range would have been much lower: 140
to 175 months.
At sentencing, Gilbert’s counsel, invoking the court’s
discretion to impose a sentence outside of the Guidelines
range, see United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005), recommended the statutorily mandated mini-
mum sentence of fifteen years (or 180 months) in view of
Gilbert’s relative youth (he was 27 at the time of the
offense) and the abuse he had suffered as a child, among
other factors. But the district court, having in mind the
extent and gravity of Gilbert’s criminal record and the
sentencing factors identified in 18 U.S.C. § 3553(a), rea-
soned that a sentence within the Guidelines range was
appropriate. R. 52 at 30-31. The court concluded ultimately
that a prison term at the bottom of the range was sufficient
to achieve the statutory sentencing goals identified in
section 3553(a)(2). Id. Gilbert was thus ordered to serve a
prison term of 235 months.
1
The district court used the November 2004 version of the
Guidelines—the version which was in effect at the time of
Gilbert’s sentencing in July 2005—to calculate Gilbert’s ad-
visory Guidelines sentencing range.
No. 05-3111 5
II.
Gilbert appeals the district court’s determination that his
conviction for criminal confinement was a conviction for a
violent felony as that term is defined in the Armed Career
Criminal Act. If that categorization was erroneous, then the
fifteen-year minimum specified by the Act, along with the
corresponding provision of the Guidelines, did not apply.
Whether a prior offense constitutes a violent felony for this
purpose is a question of law that we review de novo. E.g.,
Wallace, 326 F.3d at 886.
Our review begins with the language of the Armed Career
Criminal Act. The Act defines “violent felony” as follows:
[T]he term “violent felony” means any crime punishable
by imprisonment for a term exceeding one year . . .
that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the per-
son of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another; . . . .
18 U.S.C. § 924(e)(2)(B). Needless to say, criminal confine-
ment is not burglary, arson, or extortion, nor does it involve
the use of explosives. So criminal confinement might qualify
as a violent felony only if the actual, attempted or threat-
ened use of force against the person of another is an
element of the offense or if the offense involves conduct that
presents a serious potential risk of physical injury to
someone other than the perpetrator.
The manner in which Indiana has defined the offense
does not invariably require proof that force was used,
attempted, or threatened. The Indiana Code defines the
felony offense of criminal confinement as follows:
6 No. 05-3111
A person who knowingly or intentionally:
(1) confines another person without the other
person’s consent; or
(2) removes another person, by fraud, enticement,
force, or threat of force, from one (1) place to
another;
commits criminal confinement . . . a Class D felony.
Ind. Code § 35-42-3-3(a). As the statutory language reveals,
there are multiple variants of criminal confinement, not all
of which involve force. One can commit the crime by
confining someone without her consent (section 1 of the
statute), or one can remove the victim from one place to
another (section 2). See Kelly v. State, 535 N.E.2d 140, 140
(Ind. 1989) (describing these two primary variants of the
offense as “confinement by non-consensual restraint in
place and confinement by removal”). The first form of
criminal confinement entails the restriction of the victim’s
freedom or movement against his will, see § 35-42-3-1
(defining the term “confine”); Pyle v. State, 476 N.E.2d 124,
127 (Ind. 1985); and although physical force or the threat of
force likely is used to effectuate the restraint in most
instances, it is not an essential element of the crime. See
Kelly, 535 N.E.2d at 141 (identifying the elements of
confinement by restraint as (1) the knowing or intentional
(2) confinement of another person (3) without his consent)
(quoting Addis v. State, 404 N.E.2d 59, 61 (Ind. App. Ct.
1980)); but see also Dubinion v. State, 493 N.E.2d 1245,
1246 (Ind. 1986) (assuming, as defendant argued, that force
is an element of the offense). The second form of criminal
confinement involves the removal of the victim from one
place to another. Although force and the threat of force are
two of the ways in which the removal can be accomplished,
they are not the exclusive means. As the statutory language
makes clear, the removal can also be accomplished through
fraud or enticement. See, e.g., Harbison v. State, 452 N.E.2d
No. 05-3111 7
943 (Ind. 1983) (victim of sexual assault was lured to
remote location by his assailants, who led him to believe he
was simply on a “joyride” with them); Wise v. State, 635
N.E.2d 221 (Ind. App Ct. 1994) (child who was sexually
assaulted by her stepfather was lured to motel room based
on expectation that they would wrap Christmas gifts for her
mother there, as they had done in the past); Williams v.
State, 634 N.E.2d 849 (Ind. App. Ct. 1994) (mother per-
suaded individual charged with monitoring visits with her
children to allow her to drive them all to another town,
falsely representing that they were to visit a relative; on
arrival in that town, mother ordered monitor out of car and
fled with her children).2
Because there is more than one way of committing
criminal confinement in Indiana, and not all variants
require proof of force, the mere fact of Gilbert’s conviction
does not tell us whether he committed a crime that neces-
sarily involved force. We must look beyond the face of his
conviction to see if we can ascertain the particular variant
of criminal confinement of which Gilbert was convicted.
See Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct.
2143, 2160 (1990); United States v. Mathews, 453 F.3d 830,
833-34 (7th Cir. 2006); United States v. Sperberg, 432 F.3d
2
The Indiana statute does not define the terms “fraud” or
“enticement.” BLACK’S defines “enticement” as “[t]he act or an
instance of wrongfully soliciting or luring a person to do some-
thing,” and “fraud” as (among other things) “[a] knowing misrepre-
sentation of the truth or concealment of a material fact to induce
another to act to his or her detriment.” BLACK’S LAW DICTIONARY,
553, 670 (7th ed. 1999). The Indiana Appellate Court concluded
recently that these terms provide so little notice of what conduct
is prohibited as to render the statute unconstitutionally vague as
applied to a man who concocted a story regarding a radio give-
away contest in order to induce his victims to leave their
workplaces, come to his home, and strip naked in front of him.
Brown v. State, 848 N.E.2d 699, 711-13 (Ind. App. Ct. 2006).
8 No. 05-3111
706, 708 (7th Cir. 2005); see also, e.g., Hagenow, 423 F.3d at
644 (because force not a prerequisite for all forms of
criminal confinement, court must look beyond fact of
conviction to determine whether force was an element of the
particular variant of which defendant was convicted).
The scope of our inquiry, however, is limited. Our purpose
is to determine what form of the offense Gilbert committed,
not how he happened to commit the crime. Sperberg, 432
F.3d at 708 (“recidivist enhancements depend on what the
person stands convicted of and not what he did in fact”);
United States v. Lewis, 405 F.3d 511, 515 (7th Cir. 2005).
That is, we want to know whether Gilbert’s conviction
necessarily reflects a finding that force (actual, threatened,
or attempted) was used in the commission of the offense. At
the same time, the list of materials that we may properly
consider in answering this question is short. See Shepard v.
United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005).
As relevant here, those materials include the charging
document pursuant to which Gilbert was convicted. Ibid.
The charging information filed in Indiana court alleged
that Gilbert committed criminal confinement as follows:
On or about August 8, 2001, in Marion County, State of
Indiana, at 5400 Charleston Street . . ., the following
named defendant, James Gilbert, did knowingly remove
Nicole Davis, another person, by fraud, enticement,
force or threat of force from the front of 5400
Charleston, to the back of the building.
Gilbert Separate App. 47. This language tells that Gilbert
was charged and convicted under the second section of the
statute rather than the first. We know, consequently, that
neither physical restraint of the victim nor her lack of
consent were prerequisites to Gilbert’s conviction. See Pyle,
476 N.E.2d at 127 (essence of crime defined in first section
of criminal confinement statute is restriction of person’s
freedom of movement against his will); Addis, 404 N.E.2d
No. 05-3111 9
at 61 (lack of consent is an element of crime defined in first
but not second section of the statute). This will prove
relevant to our discussion of Wallace below. But beyond
knowing that Gilbert was convicted of removing his victim
from one place to another rather than physically confining
her, we do not know whether he accomplished the removal
by force or the threat of force or rather through nonviolent
means, for the language of the information encompasses all
four of the sub-variants. In short, the charge does not tell us
whether some type of force— actual, attempted, or threat-
ened—was a prerequisite to Gilbert’s conviction. See 18
U.S.C. § 924(e)(2)(B)(i).3
Because we cannot say that force was an element of the
crime of which Gilbert was convicted, his conviction for
criminal confinement can be considered a violent felony
conviction only if we may categorically say that removing a
person from one place to another, whether accomplished
through fraud, enticement, force or threat of force, always
presents a serious potential risk of injury to another.
3
Below, the government urged the district court to look at a
companion charge set forth in the same information (and on which
Gilbert was also convicted) for additional detail as to Gilbert’s
conduct. Gilbert was charged with domestic battery (a misde-
meanor) in addition to criminal confinement, and the domestic
battery charge alleged that Gilbert had struck the victim on her
face with his closed fist, causing her to suffer visible injury and
pain. Gilbert Separate App. 48. The government viewed that
second charge as sufficient proof that the conduct underlying
Gilbert’s conviction for criminal confinement was violent and
necessarily posed a risk of injury to the victim. R. 52 at 10-12.
However, the district court did not rely on the companion charge
in concluding that Gilbert had been convicted of a violent felony,
and the government has not pursued this argument on appeal.
Consequently, we express no opinion as to whether a court may
look to a companion charge in assessing the nature of a prior
conviction.
10 No. 05-3111
§ 924(e)(2)(B)(ii). As we have emphasized in prior cases, it is
the potential for an injury to occur that matters for pur-
poses of the violent felony enhancement; neither our ability
to imagine a nonviolent scenario, see Wallace, 326 F.3d at
887, nor the fact that an injury did not actually occur, see
United States v. Howze, 343 F.3d 919, 922 (7th Cir. 2003),
precludes a determination that the offense is violent, so
long as the offense by its nature presents a real risk of
injury.
In Wallace, we considered whether the Illinois offense of
unlawful restraint amounts to a crime of violence for
purposes of section 924(e)(2)(B). Illinois defines that offense
as the knowing detention of another person without legal
authority; no particular means of commit-
ting the detention—violent or otherwise—are specified. See
id. at 886, quoting 720 Ill. Comp. Stat. § 5/10-3 (2003). The
defendant argued that because the offense could be commit-
ted without force, it did not qualify as a violent felony. We
disagreed. Although we accepted his contention that an
unlawful restraint could be accomplished through fraud,
trickery, or deceit, we nonetheless thought that the offense
presented a real risk that an injury might occur. “[E]ven in
cases where the assailant attempts to restrain the victim
without the use or threat of force, the potential exists that
the victim may resist the assailant’s efforts and try to
escape. The assailant then may resort to force in an effort
to prevent the victim from leaving.” Id. at 887.
The district court followed Wallace’s reasoning and
concluded that the same potential for resistance is present
when an individual is criminally confined, even if the
confinement is accomplished by removing the victim from
place to place by fraud or enticement rather than by force
or threat of force.
So . . . the focus here is not on the facts. The focus here
is on the “otherwise involves conduct that presents a
No. 05-3111 11
serious potential risk of physical injury to another.”
And in looking at that, the issue is whether this charge
has within it a potential for physical injury, not
whether physical injury actually or necessarily resulted.
[Nor does it matter] whether the physical injury was
clearly charged or charged with a group of other possi-
bilities, as in the Indiana code. The broad language that
covers the Illinois code I think covers the Indiana code
also.
So the argument that the use or the threat of physical
force is not an element of the offense or wasn’t charged
as an element of the offense I think is the same. And
that argument was rejected by Wallace. And Wallace
leads this Court to conclude that the Armed Career
Criminal Act does in fact apply in this case because the
criminal confinement charge contains the potential of
physical violence. . . .
R. 52 at 19.
When it followed Wallace to this conclusion, the district
court did not have benefit of our later opinion in Hagenow,
which was released shortly after Gilbert’s sentencing.
Hagenow dealt with the very crime at issue here—the
Indiana offense of criminal confinement. But in view of
the way that Indiana defines that offense, we rejected the
notion that there is an inherent risk of violence in the
crime:
[C]riminal confinement under Indiana law does not
necessarily involve conduct that presents a “serious risk
of potential injury to another.” One could, for example,
confine another person without consent in a manner
that, although unpleasant, does not present “a serious
risk potential risk of injury” to the other.
423 F.3d at 644. Hagenow’s holding obviously is inconsis-
tent with the district court’s treatment of Gilbert’s prior
conviction for criminal confinement.
12 No. 05-3111
The government, conceding that Hagenow is controlling,
urges us to overrule rather than follow that precedent here.
The government believes that Hagenow is inconsistent with
Wallace, in that the essence of both criminal confinement
and unlawful restraint is holding someone against his or
her will, and both crimes thus present the possibility that
the victim will resist and cause the encounter to become
violent. Hagenow, in the government’s view, overlooked this
possibility.
The government’s argument might gain traction if Gilbert
had been convicted under the first section of the Indiana
statute, which involves the restraint of an individual
without her consent. See Pyle, 476 N.E.2d at 127; Addis,
404 N.E.2d at 61. Although Hagenow rightly observed
someone can commit criminal confinement by restraining a
person in a way that is unlikely to injure that person,
Wallace’s reasoning nonetheless could lead one to conclude
that because the restraint is involuntary, the victim might
resist, and that possibility in turn presents risk of injury.
See Wallace, 326 F.3d at 887. In that regard, one might say
that Wallace and Hagenow are in tension with one another.
But Gilbert, as we know, was not charged under the first
section of the statute but rather the second, which involves
removing a person from one place to another; and that
section of the statute expressly envisions that the removal
can be accomplished through fraud or enticement rather
than by the use of force or threat to overcome the victim’s
will. Thus, as Gilbert argues, the second section of the
statute does not necessarily involve action taken against
the victim’s consent, as unlawful restraint does. E.g., Addis,
404 N.E.2d at 61 (“lack of consent is not an element of
confinement under section two”). Cf. United States v. Riva,
440 F.3d 722, 724-25 (5th Cir. 2006) (2-1 decision) (conclud-
ing that Texas crime of unlawful restraint of minor presents
risk of injury even if victim was lured into the restraint
by deception, because offense as defined necessarily en-
No. 05-3111 13
tails involuntary restraint of victim); Dickson v. Ashcroft,
346 F.3d 44, 49-51 (2d Cir. 2003) (New York offense of
unlawful imprisonment of competent adult, even if accom-
plished by deception, necessarily involves use or potential
use of force to overcome victim’s will); United States v.
Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (en banc) (Ohio
offense of kidnapping necessarily presents risk of injury,
even if effectuated by deception, because “the essence of
kidnapping is requiring another to do something against his
or her will” and there is always a possibility that the victim
will discover what is happening and resist).
Tricking someone into moving voluntarily from one place
to another does not present the same danger of violent
confrontation that involuntarily restraining him or her
might. For example, as we posited at oral argument, a store
owner might be lured off the premises on a pretense so that
the store could be robbed in his absence; his removal
(presumably) would amount to criminal confinement as
defined in section 2 of the Indiana statute, but the crime
would not present the same inherent risk of injury that
physically restraining him would. Cf. Williams, 634 N.E.2d
849 (false story used to persuade child visitation monitor to
authorize, and join, mother on drive with children). It is
possible, of course, that the store owner might become
angry on discovering the deceit and confront the perpetrator
(if he could be found). But that risk is present in all manner
of frauds and swindles; the possibility that the victim will
blow his stack and punch the felon in the face does not
transform the crime into one of violence. See United States
v. Rutherford, 54 F.3d 370, 375 (7th Cir. 1995) (applying
Guidelines § 4B1.2) (“there must be evidence that the crime,
by its nature, presents a substantial risk” of harm).
The non-violent scenario we have imagined does not
rule out the possibility that the usual way in which a person
is removed from one place to another without resort to force
or threat of force nonetheless does present a substantial
14 No. 05-3111
risk of injury. See Wallace, 326 F.3d at 887. Counsel for
neither party has presented us with any information on
what the norm is for removing a person through fraud or
enticement. (Gilbert’s counsel commendably went in search
of reported data, but came up empty-handed.) There is no
published legislative history in Indiana, see LTV Steel Co.
v. Northwest Eng’g & Constr., Inc., 41 F.3d 332, 335 (7th
Cir. 1994) (citing McMunn v. Hertz Equip. Rental Corp., 791
F.2d 88, 92 (7th Cir. 1986)), so we do not know whether
there was a particular scenario(s) at which this portion of
the statute was aimed. The modest number of published
appellate opinions on removals accomplished by fraud or
enticement deal with two types of scenarios: child stealing
by a parent in violation of another parent’s custodial rights,
see Williams, 634 N.E.2d 849; McNeely v. State, 391 N.E.2d
838 (Ind. App. Ct. 1979) (predecessor to 35-42-3-3(a)(2)),
and luring the victim to a different location in order to
commit a sexual offense or indulge the perpetrator’s
prurient interests, see Brown v. State, 848 N.E.2d 699 (Ind.
App. Ct. 2006) (victims lured to perpetrator’s home and
convinced to disrobe); Wise, 635 N.E.2d 221 (victim lured
into motel room, where she was sexually assaulted by her
stepfather); Harbison, 452 N.E.2d 943 (victim lured to
remote location, where he was sexually assaulted). With
respect to the second set of cases, one might argue that
removal of the victim to a remote or secluded location,
although accomplished peacefully, renders the victim
more vulnerable to a violent felony such as sexual assault.
That argument has not been made here, however; moreover,
we have no way of knowing how representative
that scenario is of the universe of removals by fraud or
enticement that occur in Indiana. The statute itself does not
require that the removal be animated by an intent to
commit another crime, for example. Cf. Ohio Rev. Code
Ann. § 2905.01(2) (proscribing the removal of person from
place where found for purpose of “facilitating the com-
mission of any felony or flight thereafter”). In sum, absent
No. 05-3111 15
data revealing that there is a serious risk of injury associ-
ated with criminal confinement even when accomplished
through trickery, we are in no position to overrule Hagenow
and say that the crime categorically presents such a risk.
III.
The record does not disclose that Gilbert was convicted of
a form of criminal confinement that required a finding of
force or threat of force. The Indiana criminal confinement
statute expressly recognizes that the offense can be commit-
ted through non-violent means such as fraud or enticement,
and as we concluded in Hagenow, there is nothing about the
offense as defined that poses an inherent risk of serious
physical injury to another even when the crime is commit-
ted without resort to force. The district court therefore erred
in treating Gilbert’s prior conviction for criminal confine-
ment as a conviction for a crime of violence. Gilbert’s
sentence is VACATED, and the case is REMANDED for re-
sentencing consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-19-06