United States v. Arthur Robinson ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1622
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTHUR LEE ROBINSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:17-cr-30041-SMY-1 — Staci M. Yandle, Judge.
____________________
ARGUED DECEMBER 6, 2021 — DECIDED MARCH 24, 2022
____________________
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 re-
duction to his offense level for sentencing purposes. See
U.S.S.G. § 3E1.1(a). But after Robinson argued at his sentenc-
ing hearing that he should not be classified as an armed career
2 No. 21-1622
criminal pursuant to 18 U.S.C. § 924(e), the district court re-
voked the acceptance reduction. It then found that Robinson
was an armed career criminal and so was subject to a manda-
tory 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,
141 S. Ct. 1817 (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 con-
trolled 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 Jan-
uary 1993 convictions landed him in prison from 1993 to June
No. 21-1622 3
2000. In 2002, Robinson pleaded guilty to two more cocaine-
distribution charges; that conduct led to both additional con-
victions 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 pe-
riod 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 oper-
ated 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 aggra-
vated discharge of a firearm when he knowingly … [d]is-
charges 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 po-
lice 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 ex-
tended 31-round magazine and (the officer later learned) had
been reported stolen in 2002. Upon being awakened, Robin-
son 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
1 Illinois switched to a new statutory compilation scheme effective
January 1, 1993. Criminal statutes moved from chapter 38 to chapter 720,
and the section numbering system also changed significantly. This opin-
ion cites the older statutory compilation when discussing the state of the
law prior to 1993.
4 No. 21-1622
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 with-
out a plea agreement to one count of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). He raised
two arguments at sentencing. The first concerned his eligibil-
ity for an offense-level discount for acceptance of responsibil-
ity. That issue was ultimately resolved in his favor in Robinson
I. The second argument related to his status as an armed ca-
reer 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, commit-
ted 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 … im-
prisoned 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
No. 21-1622 5
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. Robin-
son filed a timely notice of appeal. In June 2021, before any
briefs were filed in the second appeal, the Supreme Court is-
sued its opinion in Borden v. United States, 141 S. Ct. 1817(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 argu-
ments, thus making his armed-career-criminal status the law
of the case; and that, regardless, Robinson misreads Borden.
6 No. 21-1622
Normally, we review de novo the question whether a dis-
trict 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 doc-
trine 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. Pol-
land, 56 F.3d 776, 777 (7th Cir. 1995). The law of the case doc-
trine performs a related function. It “is a corollary to the man-
date 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 ab-
solute. 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 be-
tween these alternatives. One way or the other the question is
whether the Supreme Court’s Borden decision compelled a
No. 21-1622 7
change in the law of this circuit. We therefore turn immedi-
ately 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 defini-
tion of “crime of violence” found in section 4B1.1(a) of the
Sentencing Guidelines. We asked whether the elements of a
later version of the Illinois aggravated-discharge statute than
the one at issue in Robinson’s case fit that definition. Id. The
amended statute read as follows (with changes from the 1991
version underlined):
A person commits aggravated discharge of a
firearm when he or she knowingly or intention-
ally:
(1) Discharges a firearm at or into a building he
or she knows or reasonably should know to
be occupied and the firearm is discharged
from a place or position outside that build-
ing; [or]
(2) Discharges a firearm in the direction of an-
other person or in the direction of a vehicle
he or she knows or reasonably should know
to be occupied by a person[.]
720 ILCS 5/24-1.2(a) (2011).
The defendant in Curtis had argued that “because the ele-
ments of aggravated discharge of a firearm do not require the
8 No. 21-1622
firearm’s discharge to result in injuring or striking a person”
the crime lacked the requisite element of physical force. 645
F.3d at 941 (emphasis added). We were unpersuaded that the
statute had a separate “injuring-or-striking” requirement; this
reading seemed inconsistent with the fact that the statute cov-
ered both “attempted and threatened uses.” Id. In that con-
nection, we held that “there are no methods of committing the
actions in subsection (a)(2) without using, attempting to use,
or threatening to use physical force against another person.”
Id. at 940.
To distinguish that holding in his first appeal, Robinson
would have needed to convince us that the phrase “against
the person of another” means two very different things in the
guidelines and the Act. That would have been an uphill battle,
given the many cases that have found the guidelines and the
Act to be identical on this point. See, e.g., United States v. Jen-
nings, 860 F.3d 450, 453 (7th Cir. 2017); United States v. Evans,
924 F.3d 21, 29 n.4 (2d Cir. 2019). Accordingly, Robinson has
satisfied the first half of his burden: the law in this circuit on
the question whether this Illinois law required the use of force
was settled before Borden came along.
In Borden, the Supreme Court had to decide “whether a
criminal offense can count as a ‘violent felony’ [under the el-
ements clause of the Act] if it requires only a mens rea of reck-
lessness.” 141 S. Ct. at 1821. A fractured majority held that
reckless offenses do not so qualify. Id. Four of the justices
reached that result without qualification. The plurality ex-
plained that reckless offenses “do not require, as the Act does,
the active employment of force against another person.” Id. at
1834. They distinguished “recklessness” from “purpose” and
“knowledge,” employing the standard definitions: “A person
No. 21-1622 9
acts purposefully when he consciously desires a particular re-
sult” and “acts knowingly when he is aware that a result is
practically certain to follow from his conduct, whatever his
affirmative desire.” Id. at 1823 (cleaned up). In contrast, a per-
son acts recklessly “when he consciously disregards a sub-
stantial and unjustifiable risk attached to his conduct, in gross
deviation from accepted standards.” Id. at 1824 (cleaned up).
Justice Thomas cast the deciding vote. While he agreed
with the plurality that reckless offenses do not fit the
elements-clause definition found in section (e)(2)(B)(i), he
would have found that they do fit within the so-called
residual clause found in section (e)(2)(B)(ii) of the Act: “… or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id. at 1834 (Thomas, J.,
concurring in the judgment). But, acknowledging the stare
decisis effect of Johnson v. United States, 576 U.S. 591, 597 (2015),
which held the residual clause to be void for vagueness,
Justice Thomas concurred in the judgment. Id. at 1836–37.
Robinson contends that Borden changed the significance,
under the Act, of his 1992 Illinois aggravated-discharge con-
viction, but we do not see how it could have done so. Borden,
as we just said, was about mens rea. Yet there is no mens rea
issue here. The Illinois statute in question had a mens rea of
knowing in 1991, and it still does today. Borden is thus irrele-
vant. A quick look at the statute under which Robinson was
charged drives the point home:
A person commits aggravated discharge of a
firearm when he knowingly:
(1) Discharges a firearm at or into a building
he knows to be occupied and the firearm
10 No. 21-1622
is discharged from a place or position
outside that building; or
(2) Discharges a firearm in the direction of
another person or in the direction of a ve-
hicle he knows to be occupied.
Ill. Rev. Stat. 1991, ch. 38, Ill. par. 24-1.2(a)(1)-(2)
(emphasis added).
This provision is replete with words indicating that it co-
vers only knowing actions: the knowing discharge of a firearm
(1) into a building the person knows to be occupied, (2) in the
direction of another person, or (3) or in the direction of a ve-
hicle the person knows to be occupied. This calls for
knowledge of the target, not just knowledge that one is pull-
ing the trigger. Cf. Rehaif v. United States, 139 S. Ct. 2191, 2195
(2019) (“[W]e start from a longstanding presumption, tracea-
ble to the common law, that Congress intends to require a de-
fendant to possess a culpable mental state regarding each of
the statutory elements that criminalize otherwise innocent
conduct.”) (internal quotation marks omitted). And as for the
prohibition against shooting in the direction of another per-
son, a reading in which this provision did not require the
shooter to know there is a person in the direction of the dis-
charge would defy grammatical logic.
The Illinois Supreme Court has confirmed that the mens
rea for aggravated discharge is “knowing” for both the dis-
charge element and the target element. In People v. Fornear, 176
Ill. 2d 523, 525 (1997), the defendant had been convicted by a
jury of both aggravated discharge of a firearm and of reckless
conduct after he shot his fiancée. The intermediate appellate
court, in affirming both convictions, had reasoned that
No. 21-1622 11
“aggravated discharge of a firearm required only that the jury
find that defendant knowingly or intentionally performed the
act of firing the pistol in the direction of the victim.” Id. at 531(quoting 283 Ill. App. 3d 171, 179 (1996)). It saw no tension
between that conviction and the reckless-conduct conviction:
“Assuming the jurors also found that [the] defendant inten-
tionally fired the weapon with a conscious disregard for
whether his actions would endanger or injure the victim, they
could have concluded properly that [the] defendant was
guilty of both aggravated discharge of a firearm and reckless
conduct.” Id. But the Illinois Supreme Court rejected that rea-
soning. It explained that “recklessness and knowledge are
mutually inconsistent culpable mental states,” id. at 531, and
that “aggravated discharge of a firearm depended on a find-
ing that defendant knowingly discharged a firearm in the di-
rection of another person,” id. at 532. In short, Fornear estab-
lishes that Illinois aggravated discharge requires a mens rea
higher than the recklessness considered in Borden.
Further confirmation is found in the longstanding distinc-
tion in Illinois law between reckless discharge and aggravated
discharge. Illinois law defines “the offense of reckless dis-
charge of a firearm as ‘discharging a firearm in a reckless
manner which endangers the bodily safety of an individual.’”
People v. Giraud, 2012 IL 113116 ¶ 19 (quoting 720 ILCS 5/24-
1.5(a)). The Illinois Supreme Court has concluded that “reck-
less discharge of a firearm does not require ‘the intentional
firing of a weapon knowingly and directly at someone[,]’” be-
cause “the act of intentionally firing at a particular individual
would be the offense of aggravated discharge of a firearm.”
Id. (quoting People v. Collins, 214 Ill. 2d 206, 215 (2005)).
12 No. 21-1622
Text, case law, and statutory context all point to the same
conclusion: The mens rea for Illinois’s aggravated-discharge
offense is knowledge, not recklessness. Borden, it follows, is
irrelevant to Robinson’s status, because his predicate violent
offense was not a reckless crime.
***
Because Robinson has not identified “an intervening
change in the law” that bears on his sentence, Thomas, 11 F.3d
at 736, we have no reason to disregard the mandate rule. Ac-
cordingly, we hold that Robinson’s status under the act was
settled at his initial sentencing proceeding and remains set-
tled after Borden.
C
Before we conclude, a brief comment on waiver is in order.
The government contends that everything we have just said
is unnecessary because Robinson “waived” the issue of his
armed-career-criminal status when he elected not to raise it in
his first appeal. We realize that we have written that “any is-
sue that could have been but was not raised on appeal is
waived and thus not remanded.” United States v. Husband, 312
F.3d 247, 250 (7th Cir. 2002). But that statement, in context, did
not purport to sweep away the well-recognized distinction
between waiver and forfeiture. See United States v. Olano, 507
U.S. 725, 733 (1993); United States v. Flores, 929 F.3d 443, 447
(7th Cir. 2019); United States v. Hyatt, No. 21-1212, at 5 (7th Cir.
Mar. 14, 2022). Waiver is the intentional relinquishment of a
point, while forfeiture results from a lack of action. The latter
is a better description of Robinson’s case. At best, he forfeited
this issue, thereby entitling us to reach it under the plain-error
standard of review. But he would stumble immediately on the
No. 21-1622 13
first point—was there an error at all? See Olano, 507 U.S. at733–34. We have concluded that the answer to that question
is no. That is the end of this line for Robinson. We thus have
no need to consider how aggressively his lawyer should have
challenged existing circuit law on the first appeal.
III
We AFFIRM the judgment of the district court.