United States v. Darrell Duncan

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3485
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRELL L. DUNCAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15-cr-46-RLM — Robert L. Miller, Jr., Judge.
____________________
ARGUED MAY 24, 2016 — DECIDED AUGUST 12, 2016
____________________
Before ROVNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. The only issue in this appeal is
whether a conviction under Indiana’s robbery statute, Indiana
Code § 35-42-5-1, includes as an element “the use, attempted
use, or threatened use of physical force against the person of
another” such that it qualifies as a violent felony under the
elements clause of the definition in the Armed Career Crimi-
nal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). Our conclusion
that Indiana robbery is a violent felony might seem about as
2 No. 15-3485
interesting as a prediction that the sun will rise in the east to-
morrow. Nevertheless, the intricate law that has developed
around the classification of prior convictions for recidivist
sentencing enhancements can produce some surprising re-
sults. See, e.g., Mathis v. United States, 579 U.S. —, 136 S. Ct.
2243 (2016) (burglary conviction not a violent felony under
ACCA); Johnson v. United States, 559 U.S. 133 (2010) (battery
conviction not a violent felony under ACCA); United States v.
Gardner, 823 F.3d 793, 804 (4th Cir. 2016) (North Carolina com-
mon law robbery conviction not a violent felony under
ACCA).
A person can commit robbery under Indiana Code § 35-
42-5-1 by taking property by “putting any person in fear.” The
statute itself does not tell us what the person must fear. Indi-
ana case law teaches that the answer is fear of bodily injury. A
conviction for such “robbery by fear” thus has as an element
“the use, attempted use, or threatened use of physical force
against the person of another.” A conviction for robbery un-
der the Indiana statute qualifies under the still-valid elements
clause of the ACCA definition of violent felony.
I. Factual Background
In May 2015, Darrell Duncan was arrested on outstanding
warrants. Police discovered a loaded pistol near the site of his
arrest. Duncan eventually admitted that it belonged to him.
He pled guilty to a single count of being a felon and unlawful
user of controlled substances in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1), (g)(3), and
924(e).
Duncan had three prior Indiana state convictions for rob-
bery, one in 2001, and two in 2008. The statute defines robbery
No. 15-3485 3
as “knowingly or intentionally tak[ing] property from an-
other person or from the presence of another person” either
“by using or threatening the use of force on any person” or
“by putting any person in fear.” Ind. Code § 35-42-5-1. Over
Duncan’s objection, the district court found that those three
convictions counted as “violent felonies” under the ACCA.
Without the enhancement, Duncan faced a maximum sen-
tence of ten years in prison. See 18 U.S.C. § 924(a)(2). With the
enhancement, he faced a mandatory minimum sentence of fif-
teen years, § 924(e)(1), which is the sentence the court im-
posed.
II. Analysis
Whether a prior offense constitutes a violent felony under
the Armed Career Criminal Act is a question of law that we
review de novo. United States v. Gilbert, 464 F.3d 674, 677 (7th
Cir. 2006). We first discuss the standards that govern whether
a crime is a violent felony and then apply those standards to
Indiana’s robbery statute. Under the ACCA:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceed-
ing one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife,
or destructive device that would be punishable
by imprisonment for such term if committed by
an adult, 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
4 No. 15-3485
that presents a serious potential risk of physical
injury to another.
18 U.S.C. § 924(e)(2)(B). Clause (ii) does not apply to Duncan’s
convictions. Robbery does not fit the specific list of offenses in
the first half of the provision, and the Supreme Court invali-
dated the final clause—“otherwise involves conduct that pre-
sents a serious potential risk of physical injury to another”—
as unconstitutionally vague in Johnson v. United States, 576
U.S. —,135 S. Ct. 2551 (2015). We must focus on the “elements
clause” of the definition of “violent felony” in
§ 924(e)(2)(B)(i).
“The meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a
question of federal law….” Johnson v. United States, 559 U.S.
133, 138 (2010). (For the sake of clarity, we refer to the Su-
preme Court’s 2010 Johnson ACCA decision as Curtis Johnson
and its 2015 ACCA decision as Samuel Johnson.) In Curtis John-
son, the issue was whether a Florida conviction for battery,
which as a matter of state law could be based on “any inten-
tional physical contact, ‘no matter how slight,’” qualified as a
violent felony. Curtis Johnson, 559 U.S. at 138, quoting State v.
Hearns, 961 So. 2d 211, 218 (Fla. 2007) (emphasis in original).
The Court concluded that for purposes of the elements clause
in § 924(e)(2)(B)(i), “the phrase ‘physical force’ means violent
force—that is, force capable of causing physical pain or injury
to another person.” Id. at 140 (emphasis in original). Because
even slight contact could support a conviction under the stat-
ute, Curtis Johnson’s battery conviction did not qualify as a
predicate violent felony under ACCA. Id. at 145.
In Curtis Johnson, the government argued unsuccessfully
that the term “force” in § 924(e)(2)(B)(i) could, in fact, be sat-
isfied by simple offensive touching. One of the government’s
No. 15-3485 5
arguments and the Court’s response are particularly relevant
here. The government argued that the absence of language in
§ 924(e)(2)(B)(i) specifying that “physical force” must rise to
the level of bodily injury “proves that the merest touch suf-
fices.” Id. at 143. The Court rejected that argument with lan-
guage that guides us here:
Specifying that “physical force” must rise to the
level of bodily injury [in a different statutory
section] does not suggest that without the qual-
ification “physical force” would consist of the
merest touch. It might consist, for example, of
only that degree of force necessary to inflict
pain—a slap in the face, for example.
Id. While mere touching is not enough to show physical force,
the threshold is not a high one; a slap in the face will suffice.
With this understanding of “physical force” in mind, we
turn to Indiana Code § 35-42-5-1. To determine when a prior
conviction counts as a predicate offense under the ACCA,
sentencing courts apply the “categorical” approach, looking
only to the statutory elements of the offense, not the actual
facts underlying the conviction. Descamps v. United States, 570
U.S. —, —, 133 S. Ct. 2276, 2283 (2013), quoting Taylor v. United
States, 495 U.S. 575, 600 (1990). The issue is whether the Indi-
ana robbery statute “has as an element the use, attempted use,
or threatened use of physical force against the person of an-
other.” The statute reads in relevant part:
A person who knowingly or intentionally takes
property from another person or from the pres-
ence of another person:
6 No. 15-3485
(1) by using or threatening the use
of force on any person; or
(2) by putting any person in fear;
commits robbery, a Level 5 felony.
Ind. Code § 35-42-5-1. Duncan focuses on the second subsec-
tion, arguing that because a person can be convicted for put-
ting another person in fear, the offense does not include the
use, attempted use, or threatened use of physical force against
another as an element. 1
The answer depends on what Indiana courts require to
convict a person of robbery by putting a person in fear. We
begin with our opinion in United States v. Lewis, 405 F.3d 511(7th Cir. 2005), on which the district court correctly relied.
Lewis held that a conviction for robbery under Indiana state
law constituted a crime of violence under both the residual
clause and the elements clause of the Sentencing Guideline
definition of crime of violence in U.S.S.G. § 4B1.2(a) for the
career offender guideline. The elements clauses of the ACCA
definition and the Guideline definition are identical, so they
have been interpreted to cover the same scope. United States
v. Woods, 576 F.3d 400, 403–04 (7th Cir. 2009); compare 18
U.S.C. § 924(e)(2)(B)(i) with U.S.S.G. § 4B1.2(a)(1). 2
1 The Indiana robbery statute was amended effective July 1, 2014 as
part of a comprehensive revision of Indiana criminal statutes to change
the classification of levels of felonies. Ind. Pub. L. 158–2013, § 450. The
amendment did not affect the elements of the offense.
2 Whether the 2015 Samuel Johnson holding that the residual clause in
the statute is unconstitutionally vague extends to the residual clause of the
definition of “crime of violence” in the advisory Sentencing Guideline for
career criminals, see U.S.S.G. § 4B1.2(a)(2), is an open question that has
No. 15-3485 7
In Lewis, we reasoned that because robbery “entails taking
property from the person of another by force or threat,” it had
as an element “the use, attempted use, or threatened use of
physical force.” Lewis, 405 F.3d at 514. Recognizing the possi-
bility that the statute covers robbery by putting another per-
son in fear, without mentioning physical force, we explained:
“The ‘fear’ in this formulation is fear of physical injury rather
than of defamation; § 35-42-5-1 is not a blackmail statute.” Id.,
citing Cross v. State, 137 N.E.2d 32 (Ind. 1956), and Rigsby v.
State, 582 N.E.2d 910, 912 (Ind. App. 1991); see also Jones v.
State, 859 N.E.2d 1219, 1225 (Ind. App. 2007), quoting Rigsby.
In other words, we held that an Indiana robbery conviction
satisfied the elements clause of the definition of a crime of vi-
olence. We also said that even without actual force, a robbery
intrinsically involves “conduct that presents a serious poten-
tial risk of physical injury to another,” making it a crime of
violence under the Guidelines’ residual clause as well. Lewis,
405 F.3d at 514.
Duncan explains Lewis by trying to pair each of two types
of Indiana robbery with a different Lewis holding. He argues
that under Lewis, robbery involving the use or threatened use
of force qualifies as a violent felony under the elements
clauses in 18 U.S.C. § 924(e)(2)(B)(i) and its guideline equiva-
lent, U.S.S.G. § 4B1.2(a)(1). He contends robbery by fear is
divided the circuits. Compare United States v. Matchett, 802 F.3d 1185 (11th
Cir. 2015) (vagueness doctrine does not apply to advisory Guidelines),
with United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016) (vagueness doc-
trine does apply to Guidelines). The Supreme Court has granted certiorari
in a case presenting that issue. United States v. Beckles, 616 Fed. Appx. 415(11th Cir. 2016), cert. granted, No. 15-8544 (U.S. June 27, 2016) (presenting
this question). The ultimate answer to that question will not affect this ap-
peal.
8 No. 15-3485
covered only by the residual clause of § 924(e)(2)(B)(ii) and its
guideline equivalent, § 4B1.2(a)(2). Since the ACCA residual
clause is no longer valid after Samuel Johnson, 576 U.S. —, 135
S. Ct. 2551 (2015), he argues that Lewis can no longer justify
treating robbery by fear as a violent felony.
Lewis did not hold, however, that robbery by fear qualified
as a violent felony only under the residual clause. We made
clear that robbery by “putting any person in fear” is Indiana’s
equivalent of taking property from the person of another by
threat of physical injury, so it falls under the still-valid ele-
ments clause, as well as the residual clause. 405 F.3d at 514.
The relevant holding of Lewis—that any conviction under In-
diana Code § 35-42-5-1 qualifies as a crime of violence under
the elements clause and is thus a violent felony—remains
good law.
Duncan also argues that the fear of physical injury re-
quired by Indiana’s robbery statute does not rise to the level
of force demanded by Curtis Johnson—“that is, force capable
of causing physical pain or injury to another person.” 559 U.S.
at 140. He relies on Flores v. Ashcroft, 350 F.3d 666 (7th Cir.
2003). We held in Flores that an Indiana conviction for misde-
meanor battery with bodily injury, see Ind. Code § 35-42-2-1,
could not properly be considered a crime of domestic violence
under an immigration statute, 8 U.S.C. § 1227(a)(2)(E), that
uses the definition of “crime of violence” from 18 U.S.C. § 16.
The “elements clause” of § 16 uses the same language as the
ACCA definition: “has as an element the use, attempted use,
or threatened use of physical force against the person or prop-
erty of another.”
In Flores we reviewed Indiana law to conclude that: (1) In-
diana’s battery statute encompasses “any contact, however
No. 15-3485 9
slight,” both direct and indirect, Flores, 350 F.3d at 669 (cita-
tions omitted); and (2) the threshold for bodily injury in Indi-
ana is low: “a bruise suffices, as does any physical pain even
without trauma.” Id. at 670 (citations omitted). Thus, a convic-
tion for misdemeanor battery with bodily injury could en-
compass conduct such as lofting a paper airplane if that air-
plane “inflicts a paper cut,” or throwing a snowball if it
“causes a yelp of pain.” Id. The key to the Flores decision was
the fact that the Indiana battery-with-bodily-injury offense
does not require intent to injure: “Indiana’s battery law does
not make intent to injure an element of the offense; intent to
touch must be established, but not intent to injure.” Id. at 671(emphasis in original).
Duncan seizes on the low level of physical injury required
to satisfy Indiana’s definition of “bodily injury,” arguing that
the fear of such minor injury or simple physical pain is not
enough to render Indiana robbery by fear a crime of violence.
If he means to argue that putting someone in fear of some-
thing as minor as a bruise or simple physical pain cannot
qualify as a violent felony, the case law rejects that position.
Curtis Johnson did not hold that “physical force” under the
ACCA means a level of force likely to cause serious injury, or
traumatic injury. Relying on Flores, the Court held that “phys-
ical force” requires no more than “force capable of causing
physical pain or injury to another person.” 559 U.S. at 140, cit-
ing Flores, 350 F.3d at 672. The Court said that “physical force”
might consist of nothing more than “a slap in the face.” Id. at
143. Thus, neither Flores nor Curtis Johnson holds that a crime
involving actual or threatened infliction of only pain or minor
injury cannot qualify as a violent felony. A fear of a slap in the
face is sufficient under Curtis Johnson. The fact that § 35-42-5-
10 No. 15-3485
1(2) requires a fear of only “bodily injury” instead of “moder-
ate” or “severe” bodily injury therefore does not exclude it
from counting as a violent felony under the ACCA.
Duncan also argues that under Flores, a statute that does
not otherwise include force as an element cannot be “trans-
formed into a crime of violence with the addition of simple
‘bodily injury.’” To the extent that the injury might be acci-
dental, as permitted by the elements of the battery-with-bod-
ily-injury offense in Flores, that is correct, but our focus here
is on force that is intentionally applied or threatened. As
noted, a conviction for Indiana robbery by fear requires a fear
of bodily injury. Lewis, 405 F.3d at 514. Logically, this would
require proof that the robber put the victim in fear that the
robber was prepared to use “physical force” as defined by
Curtis Johnson: “force capable of causing physical pain or in-
jury to another person,” 559 U.S. at 140, which can include
force such as a slap in the face. Duncan has cited no cases
holding that the statute might cover a hypothetical robbery in
which a victim was induced to part with her property out of
fear of a mere “offensive touching” that accidentally causes
bodily injury.
Duncan also argues that his robbery convictions cannot
qualify as violent felonies because Indiana’s statute requires
only that the victim be in fear of bodily injury, not that the
criminal defendant actually have threatened to use physical
force to cause that fear. We do not read Indiana case law as
supporting this argument. In Rickert v. State, 876 N.E.2d 1139,
1141 (Ind. App. 2007), the Indiana Court of Appeals ex-
plained: “Fear of bodily injury or personal harm in the case of
noncompliance with the robber’s demands is required to sup-
port a conviction requiring a person be put in fear.” We do not
No. 15-3485 11
see how, in the ordinary case, the State will be able to prove
that a victim feared bodily injury if he did not comply with a
robber’s demands without showing that the robber employed
a threat of physical force, either explicit or implicit. See, e.g.,
Hannah v. State, 311 N.E.2d 838, 841 (Ind. App. 1974) (“violent
and oppressive circumstances” surrounding the taking of
property allowed for the inference that victim was put in fear).
Duncan contends that Jones v. State, 859 N.E.2d 1219 (Ind.
App. 2007), allows a conviction for robbery by fear even if the
robber does not use or threaten to use force. In Jones, the de-
fendant approached the teller’s window in disguise, placed a
note demanding money in it, and “loudly stated, ‘I just need
to get this done as quickly as possible.’” Id. at 1221. The teller
later testified that she was scared because she believed the de-
fendant “might do something to her.” Id. at 1225. Duncan ar-
gues that there was no evidence of a threat to use force in that
case. If a person can be convicted of robbery by fear without
an explicit or implicit threat of violence, then robbery by fear
cannot be a violent felony under the ACCA.
But we do not read Jones as holding that there need not be
any threat at all to support a conviction for robbery by fear. In
an earlier case discussing robbery by fear, the Supreme Court
of Indiana quoted Cooley’s Blackstone to define the expres-
sion “putting in fear”: “it is enough that so much force, or
threatening by word or gesture be used, as might create an
apprehension of danger, or induce a man to part with his
property without or against his consent.” Cross, 137 N.E.2d at
33, quoting 2 Cooley’s Blackstone (4th ed.) p. 1404, and State
v. Luhano, 102 P.2d 260, 262 (Nev. 1909). Jones shows only that
robbery by fear can be shown by circumstances that commu-
nicated an implicit threat to use physical force, even if there
12 No. 15-3485
was no explicit threat. See also, e.g., Simmons v. State, 455
N.E.2d 1143, 1148 (Ind. App. 1983) (discussing Cross “‘Using
or threatening the use of force’ can be, by our supreme court’s
definition, the objective causation of the subjective reaction of
fear.”).
Finally, Duncan argues that the Indiana statute contains no
requirement that the victim’s fear of injury be reasonable. He
theorizes that a person could be convicted of robbery under
Indiana law if he “took property from an alektorophobe by
showing him chickens, or a pteromerhanophobe by taking
him on an airplane.” Such a scheme could, he argues, fulfill
the requirement that the victim be placed in fear of physical
harm or injury while failing to comply with § 924(e)(2)(B)(i)’s
requirement that the crime involve a threat of physical force.
But in “applying the categorical approach, we are concerned
with the ordinary case, not fringe possibilities.” United States
v. Taylor, 630 F.3d 629, 634 (7th Cir. 2010), citing James v. United
States, 550 U.S. 192, 208 (2007) (categorical approach does not
require that every conceivable factual offense qualify), over-
ruled on other grounds by Samuel Johnson, 576 U.S. —, 135 S.
Ct. 2551, and citing United States v. Woods, 576 F.3d 400, 404
(7th Cir. 2009). Perhaps some extraordinary set of circum-
stances could arise in which a defendant could be guilty of
robbery by placing someone in fear of bodily injury without
threatening physical force. As shown by Duncan’s imagina-
tive suggestions, such circumstances would be outliers, to put
it mildly. See Taylor, 630 F.3d at 634 (“Taylor argues that there
are ways to touch someone in a rude, insolent, or angry man-
ner using a deadly weapon that do not necessarily involve the
use, attempted use, or threatened use of force. While there
may be hypothetical situations where this might be true (one
involving utensils at a particularly contentious Thanksgiving
No. 15-3485 13
dinner came up during oral argument), such possibilities are
outliers.”) (emphasis in original). In the ordinary case, rob-
bery by placing a person in fear of bodily injury under Indi-
ana law involves an explicit or implicit threat of physical force
and therefore qualifies as a violent felony under
§ 924(e)(2)(B)(i).
The judgment of the district court is AFFIRMED.