Tony Lipscomb v. United States ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 3, 2018*
Decided May 3, 2018
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-2233
TONY LIPSCOMB, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 16 C 6563
UNITED STATES OF AMERICA
Respondent-Appellee. Charles P. Kocoras,
Judge.
ORDER
Following his conviction under 18 U.S.C. § 922(g) for possessing a gun as a felon,
Tony Lipscomb was sentenced in 1992 as an armed career criminal because he had three
prior violent-felony convictions. He received a sentence of 355 months in prison under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). In this collateral attack under 28
U.S.C. § 2255, Lipscomb argues that, because Johnson v. United States, 135 S. Ct. 2551
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17-2233 Page 2
(2015), invalidated the residual clause defining “violent felonies” under the Act, his
prior convictions for attempted murder, attempted robbery, attempted armed robbery,
and armed robbery are not violent felonies. But we have ruled that at least three of these
crimes are violent felonies under another clause of the Act, so we affirm.
Before addressing the merits, the government asserts two procedural defenses
that we may bypass. First it argues that Lipscomb’s § 2255 motion is untimely, but the
government forfeited this argument by not raising in the district court. See United States
v. Tyson, 863 F.3d 597, 599 (7th Cir. 2017). Next the government contends that
Lipscomb’s attack is procedurally defaulted because he did not raise it on direct review
in 1994. But we will assume that at the time of his appeal, the argument that the
Supreme Court might invalidate the Act’s residual clause was not “reasonably
available” to Lipscomb and therefore not forfeited. See Reed v. Ross, 468 U.S. 1, 16 (1984).
After all, that decision did not occur until over 20 years later in Johnson.
But on the merits Lipscomb loses. Our decisions establish that Lipscomb’s two
convictions for attempted murder in Illinois in 1976 and 1979 are violent felonies as
defined under the Act’s elements clause, 18 U.S.C. § 924(e)(2)(B)(i). See Hill v. United
States, 877 F.3d 717, 719–20 (7th Cir. 2017). Lipscomb argues that Hill was wrongly
decided, but he gives us no reason to revisit the decision. Lipscomb was also convicted
of armed robbery in Illinois in 1975. That conviction, too, is a violent felony under the
elements clause of the Act. Shields v. United States, 885 F.3d 1020, 1024 (7th Cir. 2018). He
was convicted under an earlier version of the statute, but it contains the same force
requirement as the 2003 version that we recently analyzed in Shields.
With three violent felonies, Lipscomb was properly sentenced as an armed career
criminal. See 18 U.S.C. § 924(e)(1). We thus need not decide whether Lipscomb’s other
prior convictions—for attempted armed robbery and attempted robbery—were also
violent felonies. And we need not address the fact that Lipscomb was sentenced as a
career offender under the Sentencing Guidelines for having committed at least two
crimes of violence, see USSG § 4B1.2. The parties recognize that the Guidelines issue is
irrelevant if, as we have decided, three of Lipscomb’s prior offenses count as violent
felonies under the Act.
AFFIRMED