United States v. Albert Dowthard ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2088
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERT E. DOWTHARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:16-cr-50061-1 — Philip G. Reinhard, Judge.
____________________
ARGUED DECEMBER 17, 2019 — DECIDED JANUARY 23, 2020
____________________
Before RIPPLE, SYKES, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Albert Dowthard pleaded guilty to
being a felon in possession of a firearm. 18 U.S.C. § 922(g). Be-
cause of his prior state convictions, he was sentenced under
the Armed Career Criminal Act (ACCA) to 186 months in
prison. See id. § 924(e). Although he raised no such argument
in the district court, he now contends that Rehaif v.
United States, 139 S. Ct. 2191 (2019), invalidates his plea be-
cause he was not informed that knowledge of his status as a
2 No. 18-2088
previously convicted felon was an element of his § 922(g)
charge. Alternatively, he disputes his classification as an
Armed Career Criminal, arguing that two of the four prior of-
fenses used to sentence him do not qualify as violent felonies.
Dowthard has the burden of showing that a misunder-
standing of the elements of his offense affected his substantial
rights, yet he does not even assert that he would not have
pleaded guilty if he had properly understood the elements.
Thus, he has failed to carry that burden. And his prior Illinois
conviction for attempted aggravated domestic battery has as
an element the attempted use of physical force and therefore
counts as a “violent felony” under the ACCA. With that con-
viction and the two he does not challenge, he has the three
necessary predicates for an enhanced sentenced under
§ 924(e). Accordingly, we affirm both his conviction and his
sentence.
I
One night in November 2018, Dowthard fired a revolver
from an open car window. No one was hit. But police re-
sponded to the shots, searched the car, and recovered the
gun—which Dowthard’s prior felony convictions barred him
from having. The United States charged him with possessing
a firearm after “previously having been convicted of a crime
punishable by imprisonment for a term exceeding one year”
in violation of 18 U.S.C. § 922(g)(1) and, in his case, § 924(e).
Although the indictment accused Dowthard of being a felon
who knowingly possessed a gun, it said nothing about his
knowledge that any of his prior crimes were felonies.
Dowthard eventually pleaded guilty under a written
agreement admitting that he “possessed the .38 revolver” and
No. 18-2088 3
“had previously been convicted of a crime punishable by im-
prisonment for a term exceeding one year.” He stipulated that
he had several prior state convictions that the government be-
lieved qualified him for a 15-year minimum sentence under
§ 924(e). He reserved the right to object on that score and ap-
peal “the validity of this plea and the sentence imposed.”
Before accepting Dowthard’s plea, the district court in-
formed him that a conviction would require proof (or an ad-
mission) that he had first been convicted of a crime punisha-
ble by more than one year of imprisonment and then had
knowingly possessed a firearm, and also that the firearm had
traveled in interstate commerce. After stating that he under-
stood the charge and plea agreement, Dowthard admitted the
allegations. The court accepted his plea.
Dowthard’s plea agreement and presentence investigation
report both took special note of four of his prior felony con-
victions. The first, and most important for our purposes, was
a 2004 conviction for possession with intent to deliver a con-
trolled substance, 720 ILCS 570/407(b)(2), for which
Dowthard received a 6-year prison term. He served just over
two years in prison on that sentence before being released on
parole. The other felony convictions central to this appeal
were for (1) aggravated battery involving bodily harm, 720
ILCS 5/15-4(b)(6); (2) attempted aggravated domestic battery
involving strangulation under 720 ILCS 5/12-3.3(a-5) and 720
ILCS 5/8-4(a); and (3) residential burglary, 720 ILCS 5/19-3.
He received a 180-day sentence for each of these convictions,
though Illinois law classifies these offenses as “Class 1” or
“Class 2” felonies, punishable by terms of imprisonment ex-
ceeding one year. See 730 ILCS 5/5-4.5-30, 5/5-4.5-35. The pro-
bation office concluded that the 2004 controlled-substance
4 No. 18-2088
conviction qualified as a “serious drug offense” under 18
U.S.C. § 924(e)(2)(A), that the residential burglary and the ag-
gravated domestic abuse assault convictions were both vio-
lent felonies under § 924(e)(2)(B), and that—because he had at
least three qualifying predicate offenses—Dowthard was eli-
gible for an enhanced sentence under the ACCA. It did not
initially flag the aggravated battery conviction as a qualifying
predicate.
Dowthard disputed the classification of the two violent
felonies identified by probation. He argued that an Illinois at-
tempt to commit a force-based crime need not involve “the
use, attempted use, or threatened use of physical force,” 18
U.S.C. § 924(e)(2)(B)(i); his attempt conviction, he contended,
required only a “substantial step” toward completing the
crime, and that step could be divorced from the contemplated
application of physical force. Moreover, he argued that his in-
tended offense, aggravated domestic battery, did not have
force as an element. The government countered that
Dowthard’s conviction was for attempting aggravated do-
mestic battery under a subsection requiring strangulation of
the victim—in a word, force—and that his reading of the Illi-
nois attempt statute was foreclosed by Hill v. United States, 877
F.3d 717 (7th Cir. 2017).
As for Illinois’s residential burglary statute, Dowthard ar-
gued that it defined “burglary” more broadly than federal law
because it applied to a “dwelling place,” which might include
locations other than buildings or structures. The government
responded that precedent also foreclosed this theory, namely,
Smith v. United States, 877 F.3d 720 (7th Cir. 2017).
At the sentencing hearing, Dowthard acknowledged that
he had read and understood the PSR and stated that he had
No. 18-2088 5
no objections to any of the facts in it. The district court ruled
that all four of the putative predicates—Dowthard’s drug
crime, aggravated battery involving bodily harm, attempted
aggravated domestic battery by strangulation, and residential
burglary—counted under § 924(e). After granting Dowthard
a 3-level decrease in offense level for timely accepting respon-
sibility, see U.S.S.G. § 3E1.1, the court sentenced him to 186
months’ imprisonment—within his Guidelines range and
well above the 10-year ceiling that § 924(a)(2) would furnish
if the ACCA had not applied.
Dowthard filed a notice of appeal. Before briefing, the Su-
preme Court issued Rehaif v. United States, 139 S. Ct. 2191
(2019), which changed the appellate courts’ understanding of
the elements of an offense under §§ 922(g) and 924(a). Rehaif
holds that, to secure a conviction under these sections, the
government must prove that a defendant knew he belonged
to a category of persons barred from possessing a firearm (at
least for felons and those illegally in the United States). Id. at
2200. Dowthard now challenges both his conviction and his
sentence.
II
A. Conviction
Dowthard asks us to vacate his conviction because, under
Rehaif, he could not properly be convicted without the gov-
ernment establishing that he knew, at the time he possessed
the gun, that he had “been convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year.”
18 U.S.C. § 922(g)(1). He first contends that his indictment is
invalid for omitting this scienter requirement, but he has
waived any argument he could make on that front. The
6 No. 18-2088
omission of an element from an indictment is not a jurisdic-
tional defect, United States v. Cotton, 535 U.S. 625, 631 (2002),
and his guilty plea waived his right to assert that the indict-
ment failed to state an offense. United States v. Wheeler, 857
F.3d 742, 744 (7th Cir. 2017). Dowthard has not waived his op-
portunity to seek to withdraw his plea, though. Hurlow v.
United States, 726 F.3d 958, 966 (7th Cir. 2013) (citing Tollett v.
Henderson, 411 U.S. 258, 266–67 (1973)). Indeed, the plea agree-
ment expressly reserved the right to appeal the “validity” of
his plea. Still, because he did not move to withdraw his plea
in the district court, he has forfeited this argument, so he
rightly concedes that our review of his request is for plain er-
ror only. See United States v. Novak, 841 F.3d 721, 727 (7th Cir.
2016).
On plain-error review, Dowthard must show (1) an error
(2) that is plain today, (3) that affected his substantial rights
and (4) seriously affected the fairness, integrity, or public rep-
utation of the proceedings. United States v. Olano, 507 U.S. 725,
732 (1993); United States v. Williams, No. 19-1358, __ F.3d __,
2020 WL 111264, at *2 (7th Cir. Jan. 10, 2020). The parties agree
that in light of Rehaif the first two prongs are met. As for the
third prong, we recently concluded that the burden of persua-
sion rests on the defendant seeking to withdraw his plea
based on Rehaif to show that there is “a reasonable probability
that he would not have pleaded guilty if he knew of Rehaif.”
Williams, 2020 WL 111264, at *3.1
1The Supreme Court based its holding in Rehaif in large part on 18
U.S.C. § 924(a)(2), which provides a maximum 10-year sentence for one
who “knowingly violates” § 922(g). 139 S. Ct. at 2194. Dowthard, though,
was not charged and convicted under § 924(a), but under § 924(e), which
has no express scienter requirement, “knowingly” or otherwise. We do not
No. 18-2088 7
Dowthard, however, has never asserted—in his briefs or
during oral argument—that he would have insisted on going
to trial (or held out for a better deal) if he had been aware that
knowledge of his status as a felon was an element of his
charge. He suggests only that Rehaif would have caused him
to consider more closely “what effect … prior precedent re-
garding stipulations to certain evidence bear upon this issue.”
This is not enough to carry his burden.
Although the record does not establish definitively
whether Dowthard knew of his felon status at the time he pos-
sessed the firearm, he has offered us no reason to believe he
might not have. He previously was sentenced to and served
more than a year in prison on his drug conviction. This time
in prison would severely hamper an assertion that he was ig-
norant of the fact that this crime was punishable by more than
a year of imprisonment. He, thus, faces an “uphill battle” to
show that a Rehaif error affected his substantial rights. Wil-
liams, 2020 WL 111264, at *4. Beyond that one conviction, the
sheer number of his other convictions, which included four
crimes serious enough to be potential predicates under the
ACCA and otherwise led to a criminal history category of V,
would further impair an ignorance argument. Cf. United States
v. Burghardt, 939 F.3d 397, 405 n.4 (1st Cir. 2019) (noting de-
fendant’s criminal history category of VI tended to negate in-
ference that defendant was ignorant of the potential sentence
he faced for his convictions). Plus, the district court reduced
his Guidelines range for his timely acceptance of responsibil-
ity by entering his plea. We see nothing in the record to imply
decide today whether Rehaif ‘s holding extends to § 924(e) and instead ac-
cept the government’s concession of error for the purposes of this appeal.
8 No. 18-2088
that Rehaif offered anything to Dowthard that would have
prompted him to risk a longer sentence by going to trial. See
Williams, 2020 WL 111264, at *4; United States v. Parker,
368 F.3d 963, 969 (7th Cir. 2004). Thus, he has not demon-
strated that the Rehaif error affected his substantial rights or
the integrity of the proceedings.
B. Armed Career Criminal Classification
Dowthard also challenges his classification (and enhanced
sentence) under the ACCA, arguing that attempted aggra-
vated domestic battery by strangulation and residential bur-
glary in Illinois do not qualify as violent felonies. A “violent
felony” under the ACCA is a crime that either (1) “has as an
element the use, attempted use, or threatened use of physical
force against the person of another,” (called the “elements”
clause), or (2) “is burglary, arson, or extortion” or “involves
use of explosives,” (the “enumerated” clause). 18 U.S.C.
§ 924(e)(2)(B). Whether a given conviction is a “violent fel-
ony” under § 924(e) is examined de novo under a “categorical
approach,” focusing on the elements of the crimes rather than
on the underlying conduct. United States v. Duncan, 833 F.3d
751, 754 (7th Cir. 2016); United States v. Ker Yang, 799 F.3d 750,
752 (7th Cir. 2015).
To warrant an enhanced sentence under § 924(e),
Dowthard must have three convictions that are each either a
violent felony or a serious drug offense. Dowthard concedes
that the district court correctly found two qualifying convic-
tions: his controlled substance conviction is a “serious drug
offense,” and his aggravated battery conviction has the use of
physical force as an element, so it is a violent felony. In order
for us to reverse his sentence, then, he must show that the dis-
trict court erred in classifying both of the remaining two
No. 18-2088 9
predicate convictions. He cannot. His aggravated domestic
battery conviction qualifies under the elements clause. We
therefore need not address his new argument on appeal that
Illinois residential burglary does not qualify under the enu-
merated clause because Illinois may not require proof of un-
lawful entry as an element of the offense. See United States v.
Glispie, 943 F.3d 358 (7th Cir. 2019) (certifying question to Illi-
nois Supreme Court).
To start, Dowthard no longer disputes that aggravated do-
mestic battery by strangulation is itself a “violent felony.”
This concession is well-taken. See, e.g., United States v. Waters,
823 F.3d 1062, 1064 (7th Cir. 2016) (collecting cases for propo-
sition that all bodily-harm variants of Illinois domestic battery
have force as an element). The Supreme Court defines “phys-
ical force” as “force capable of causing physical pain or injury
to another person.” Johnson v. United States, 559 U.S. 133, 140
(2010); see also Stokeling v. United States, 139 S. Ct. 544, 554
(2019). The statute underlying Dowthard’s attempt conviction
explains that aggravated domestic battery occurs when a per-
son, “in committing a domestic battery, strangles another in-
dividual” and further defines strangling as “intentionally im-
peding the normal breathing or circulation of the blood of an
individual by applying pressure on the throat or neck of that
individual or by blocking the nose or mouth of that individ-
ual.” 720 ILCS 5/12-3.3(a-5). This application of pressure or
blocking of airways necessarily requires force capable of caus-
ing physical pain or injury. See United States v. Mancillas, 880
F.3d 297, 304 (7th Cir. 2018) (holding similarly worded Indi-
ana offense is a crime of violence under elements clause of
U.S.S.G. § 4B1.2).
10 No. 18-2088
Dowthard nonetheless asserts that his conviction for at-
tempting aggravated domestic battery does not count as a vio-
lent felony because Illinois’s attempt statute does not mention
“force.” And, in his view, a person who unsuccessfully “at-
tempts” to carry out a crime that would ultimately involve the
use of force may do so without taking any step that could in-
dependently be characterized as an “attempted use, or threat-
ened use of physical force” under § 924(e). Illinois defines an
attempt as occurring “when, with intent to commit a specific of-
fense, [a defendant] does any act that constitutes a substantial
step toward the commission of that offense.” 720 ILCS 5/8-4(a)
(emphasis added).
As Dowthard acknowledges, we have already addressed
this argument in Hill v. United States, 877 F.3d 717, 719 (7th
Cir. 2017). We held that an Illinois attempt to commit a crime
that would involve force necessarily involves an attempt to use
force under § 924(e). Still, Dowthard suggests that our ruling
in United States v. D.D.B., 903 F.3d 684 (7th Cir. 2018), warrants
revisiting Hill. In D.D.B., we determined that an Indiana at-
tempt (as distinct from an Illinois attempt) to commit a forci-
ble felony did not qualify as violent crime in the context of a
juvenile proceeding, because Indiana does not require a de-
fendant to have specific intent to complete each element of the
attempted crime. Id. at 691. The lack of a specific-intent ele-
ment meant that Indiana’s attempt statute, unlike Illinois’s,
diverges from the federal-law understanding of an “attempt”
to use force. In D.D.B., we expressly distinguished Hill on that
ground, see id. at 690–91, so nothing about the decision calls
Hill into question. Dowthard articulates no other ground for
overruling Hill. The district court, thus, properly determined
that Dowthard’s attempted aggravated battery conviction
No. 18-2088 11
was his third predicate offense, and so he was subject to an
enhanced sentence under 18 U.S.C. § 924(e).
The judgment of the district court is AFFIRMED.