Michael Hill v. United States ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3239
MICHAEL HILL,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 16 C 50136 — Philip G. Reinhard, Judge.
____________________
ARGUED NOVEMBER 14, 2017 — DECIDED DECEMBER 13, 2017
____________________
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Following his convictions for
drug and firearms crimes, Michael Hill was sentenced to 276
months’ imprisonment as an armed career criminal. See 18
U.S.C. §924(e), the Armed Career Criminal Act or ACCA. He
contends in this successive collateral attack (which we au-
thorized under 28 U.S.C. §§ 2244(b), 2255(h)) that one of his
earlier convictions does not qualify as a “violent felony” and
that the recidivist enhancement therefore is improper. The
2 No. 16-3239
United States could have invoked a number of procedural
defenses, see Stanley v. United States, 827 F.3d 562 (7th Cir.
2016), but has not developed any of them. As the defenses
are not jurisdictional we proceed to the merits. Wood v. Mi-
lyard, 566 U.S. 463 (2012); Douglas v. United States, 858 F.3d
1069 (7th Cir. 2017).
The conviction in question is for attempted murder, in
violation of Illinois law. Hill observes that §924(e)(2)(B)(i),
the ACCA’s elements clause, labels as a “violent felony” a
crime that “has as an element the use, attempted use, or
threatened use of physical force against the person of anoth-
er”. Yet it is possible to attempt murder without using, at-
tempting, or threatening physical force. The crime of attempt
in Illinois consists in setting out to commit a crime and tak-
ing a substantial step toward accomplishing that end. 720
ILCS 5/8-4(a). So one could be convicted of attempted mur-
der for planning the assassination of a public official and
buying a rifle to be used in that endeavor. Buying a weapon
does not itself use, attempt, or threaten physical force; nei-
ther does drawing up assassination plans. See, e.g., People v.
Voit, 355 Ill. App. 3d 1015 (2004) (providing money and a car
key to a hit man constitutes attempted murder even though
violence did not follow). It follows, Hill maintains, that at-
tempts are not violent felonies under the elements clauses of
§924(e) and similar federal recidivist laws, such as 18 U.S.C.
§16 and 18 U.S.C. §924(c).
At least two courts of appeals have held otherwise. See
United States v. Fogg, 836 F.3d 951 (8th Cir. 2016) (attempted
drive-by shooting is a violent felony); United States v. Man-
sur, 375 Fed. App’x 458, 463–64 (6th Cir. 2010) (attempted
robbery is a violent felony). One additional circuit appears to
No. 16-3239 3
agree. United States v. Wade, 458 F.3d 1273, 1278 (11th Cir.
2006) (an attempt to commit any crime treated as a violent
felony in the listing of §924(e)(2)(B)(ii) is itself a violent felo-
ny). Hill does not point to any circuit that has accepted his
argument.
In this circuit, United States v. Armour, 840 F.3d 904, 907–
09 (7th Cir. 2016), holds that attempted bank robbery is a
crime of violence under §924(c), and Hill v. United States, 827
F.3d 560 (7th Cir. 2016), that attempted murder is a crime of
violence under U.S.S.G. §4B1.2(a)(1), the career-offender
Guideline that closely parallels §924(e). Both Armour and Hill
are distinguishable. Armour observed that the federal offense
of attempted bank robbery requires at least the use of “in-
timidation,” a form of threatened violence, and Hill relied on
Application Note 1 to the Guideline. Application Note 1
states that a crime of violence “include[s] the offenses of aid-
ing and abetting, conspiring, and attempting to commit
such” crimes. It is possible, therefore, that the Sentencing
Commission meant to differentiate §4B1.2(a)(1) from
§924(e)(2)(B)(i) despite the fact that the provisions’ texts are
all but identical. See United States v. Raupp, 677 F.3d 756 (7th
Cir. 2012) (inchoate offenses can be crimes of violence under
the Guidelines whether or not they are covered by statutory
elements clauses). But perhaps the Commission thinks that
the Guideline and statutes should be treated alike and tried
to ward off unnecessary disputes about the right answer.
(Our opinion in United States v. Rollins, 836 F.3d 737 (7th Cir.
2016) (en banc), disapproved Raupp’s reliance on an Applica-
tion Note in the Sentencing Guidelines as a disambiguating
tool; the same criticism would apply to Hill. We said that this
was necessary to implement United States v. Hurlburt, 835
F.3d 715 (7th Cir. 2016) (en banc), which held part of the
4 No. 16-3239
Guidelines to be unconstitutionally vague. But Beckles v.
United States, 137 S. Ct. 886 (2017), has disapproved Hurlburt.
Elimination of vagueness challenges to the Guidelines un-
dermines Rollins as well as Hurlburt, so we treat Raupp and
Hill as having unimpaired precedential force.)
Concurring in Morris v. United States, 827 F.3d 696, 698–
99 (7th Cir. 2016), Judge Hamilton concluded that an attempt
to commit a crime should be treated as an attempt to commit
every element of that crime—and since under §924(e)(2)(B)(i)
the fact that a statute contains as an element attempt at phys-
ical force suffices to label the crime itself a violent felony, it
follows that an attempt to commit a violent felony is itself a
violent felony. Judge Hamilton recognized that the crime of
attempt requires only a substantial step toward completion,
but he thought it sufficient that one must intend to commit
every element of the completed crime in order to be guilty of
attempt. When the intent element of the attempt offense in-
cludes intent to commit violence against the person of an-
other, Judge Hamilton concluded, it makes sense to say that
the attempt crime itself includes violence as an element—
and we know from the text of §924(e)(2)(B)(i), which says
that the attempted use of physical force against the person of
another suffices, that force need not be used.
Given the statutory specification that an element of at-
tempted force operates the same as an element of completed
force, and the rule that conviction of attempt requires proof
of intent to commit all elements of the completed crime, we
now adopt Judge Hamilton’s analysis as the law of the cir-
cuit. When a substantive offense would be a violent felony
under §924(e) and similar statutes, an attempt to commit that
offense also is a violent felony.
No. 16-3239 5
Hill insists, however, that even the completed crime of
murder in Illinois, under 720 ILCS 5/9-1(a)(1), is not a violent
felony under the federal elements clause. It is possible to
commit murder in Illinois by administering poison, or ex-
posing a baby to freezing conditions, or placing a hapless
person in danger (for example, in the middle of a busy
highway) and then standing aside while the risk comes to
pass. See, e.g., People v. Banks, 161 Ill. 2d 119 (1994); People v.
Hanei, 81 Ill. App. 3d 690 (1980). Hill tells us that none of
these means of committing murder entails “the use, attempt-
ed use, or threatened use of physical force against the person
of another”.
This line of argument, however, disregards Johnson v.
United States, 559 U.S. 133, 140 (2010), where the Court held
that “physical force” means “force capable of causing physi-
cal pain or injury to another person”. All of our examples—
poison, leaving a baby outside in the winter, and placing a
trussed-up or unconscious person in the middle of a high-
way—involve “force” as a physicist uses that word: the
wrongdoer applies energy to bring about an effect on the
would-be victim. None of these examples involves hitting
the victim with brass knuckles, but all entail force that is
“capable of causing physical pain or injury to another per-
son”. Cf. United States v. Castleman, 134 S. Ct. 1405, 1415
(2014). No more is required for classification under the ele-
ments clauses of federal recidivist statutes.
The Supreme Court’s opinion in Johnson, 559 U.S. at 140–
41, refers to murder as the paradigm of an offense that
comes within the elements clause of §924(e). We stated in
United States v. Waters, 823 F.3d 1062, 1066 (7th Cir. 2016),
that administering poison or withholding medicine entails
6 No. 16-3239
the use of force; that’s equally true of the many other ways
one can commit murder. Accord, In re Irby, 858 F.3d 231, 236
(4th Cir. 2017).
As for the felony-murder doctrine, which Hill says takes
the crime of murder outside §924(e): The proper treatment of
felony murder is the same as that of attempted murder. As
long as the completed crime of murder has as an element the
actual or attempted use of violence against the person of an-
other, a state rule making a person accountable for the sub-
stantive crime must be treated as equivalent to the substan-
tive crime itself.
Both murder and attempted murder in Illinois are cate-
gorically violent felonies under §924(e).
AFFIRMED