Gill, Edwin M. v. Gonzales, Albert R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 5, 2005
Decided April 21, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
EDWIN MOSES GILL, Petition for Review of
Petitioner, an Order of the Board of
Immigration Appeals
No. 04-3008 v.
No. A45 603 758
ALBERTO R. GONZALES,
Respondent.
ORDER
In August of 2003, Edwin Gill, a citizen of India, pleaded guilty to a charge of “residential
entry,” a felony under Indiana law. As a result of this conviction, the Department of Homeland
Security commenced removal proceedings against Gill for having committed an “aggravated felony”
under the Immigration and Nationality Act. After a hearing, an immigration judge concluded that the
government failed to establish removability because, in his view, residential entry is not a “crime of
violence” and therefore not an aggravated felony. The Board of Immigration Appeals, however,
reversed and ordered removal, determining that the offense is indeed a crime of violence. Gill filed
a timely petition for review.
Gill argues that the Board erred in finding removability. Aliens may be deported under 8
U.S.C. § 1227(a)(2)(A)(iii) if they are convicted of an “aggravated felony,” which includes any crime
of violence for which the term of imprisonment is one year, id. § 1101(a)(43)(F). A “crime of
violence” includes an offense that “by its nature, involves a substantial risk that physical force against
the person or property of another may be used . . . .” 18 U.S.C. § 16(b). Because Gill received more
No. 04-3008 2
than one year in jail, the only issue is whether the residential entry offense, Ind. Code § 35-43-2-1.5,
by its nature involves a substantial risk of physical force. Gill says no, but that runs smack dab into
United States v. Gardner, 397 F.3d 1021 (7th Cir. 2005). There, we concluded that the Indiana
residential entry offense, which criminalizes knowingly or intentionally breaking and entering a
dwelling, is a crime of violence because unauthorized entry into a residence presents a serious
potential risk of physical injury to an occupant. 397 F.3d at 1024. This is true regardless of the
defendant’s intent in being there, as he will often encounter resistance from occupants or structural
barriers in entering another’s dwelling unlawfully. Id. at 1023.
At oral argument, defense counsel argued that Gardner is distinguishable and wrongly
decided. In his view, Gardner is distinguishable because it did not involve § 16(b), but instead
whether residential entry is a crime of violence under § 4B1.2(a) of the federal sentencing guidelines.
See U.S.S.G. § 2K2.1, cmt. n.1 (2004) (cross-referencing the definition contained in U.S.S.G.
§ 4B1.2(a)). But the definitions of “crime of violence” in § 16(b) and § 4B1.2(a) are essentially the
same, the former involving “physical force” and the latter “physical injury.” Indeed, the Gardner
court relied on cases that interpreted “crime of violence” under § 16(b) in concluding that residential
entry qualified under § 4B1.2(a). See 397 F.3d at 1023-24 (citing United States v. Venegas-Ornelas,
348 F.3d 1273, 1278 (10th Cir. 2003), and United States v. Delgado-Enriquez, 188 F.3d 592, 595
(5th Cir. 1999)).
Gardner is not distinguishable, but is it wrong? We cannot say that it is, though we can
certainly imagine scenarios where a defendant can be guilty of residential entry without a hint of
violence. Think, for example, of a persistent salesman who gets one foot in the door before he is
nonviolently rebuffed. But that is far from what transpired here--Gill broke into a home and beat up
its occupant. Thus, we decline, given the facts of this case, to take a fresh look at Gardner, a decision
announced just 2 months ago.
Gill’s petition for review is DENIED.