Appeal from the United States District Court for the Central District of Illinois. No. 11-cr-30009-1--Richard Mills, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before EASTERBROOK, Chief Judge, and WOOD and SYKES, Circuit Judges.
Andre Jones was convicted of unlawfully possessing a firearm as a felon and was sen- tenced as an armed career criminal based in part on a prior Illinois conviction for vehicular fleeing, which the district judge counted as a third violent felony under the residual clause of the Armed Career Criminal Act ("ACCA"). See 18 U.S.C. § 924(e)(2)(B)(ii). This classifica-tion triggered a mandatory minimum sentence of 15 years and raised the statutory maximum to life. The judge sentenced Jones to 184 months, just above the mandatory minimum.
Jones challenges only his sentence, raising a vagueness challenge to the residual clause. More specifically, he argues that the residual clause of the ACCA contains no discernible standard to guide its application and there- fore permits arbitrary enforcement in violation of the Due Process Clause of the Fifth Amendment. This posi- tion has at least one notable proponent. See Sykes v. United States, 131 S. Ct. 2267, 2284 (2011) (Scalia, J., dis- senting). But a majority of the Supreme Court has rejected the argument, albeit only in response to dissents by Justice Scalia, not in the more formal sense of deciding an explicit void-for-vagueness challenge. See id. at 2277. Perhaps Jones can persuade the Court to directly consider the issue, but our hands are tied. We affirm Jones's sentence.
On January 3, 2011, police officers in Springfield, Illinois, initiated a traffic stop of a vehicle in which Jones was riding as a passenger. As the officers began following the car, Jones threw a handgun out the window. When the driver pulled over, the officers obtained consent to search from both Jones and the driver. Jones had an empty handgun holster around his waist and 18 grams of marijuana in his shoe. The officers then retraced their route and retrieved the handgun from a driveway a few blocks away where Jones had tossed it. Jones ad- mitted the gun was his.
Jones was indicted on several drug and gun charges. He eventually entered a guilty plea to one count of unlaw- ful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (e), and the government dismissed the other charges. The felon-in-possession offense normally carries a ten-year maximum and no minimum penalty. See 18 U.S.C. § 924(a)(2). But if the defendant has three prior convictions for "violent felo- nies" as defined in the ACCA, he is subject to a mandatory minimum sentence of 15 years in prison and the maximum penalty is raised to life. See id. § 924(e)(1). Jones preserved his right to challenge the application of the ACCA at sentencing.
Jones's presentence report recommended that he be sentenced as an armed career criminal based on three qualifying violent felonies: Illinois convictions for robbery, aggravated robbery, and aggravated vehicular fleeing from a police officer. Jones conceded that the first two convictions qualified as violent felonies under § 924(e)(2)(B)(i). That subsection defines the term "violent felony" as any crime punishable by more than one year in prison that "has as an element the use, attempted use, or threatened use of physical force against the person of another." He also acknowledged that under our deci- sion in Welch v. United States, 604 F.3d 408, 425 (7th Cir. 2010), his vehicular-fleeing conviction qualified as a violent felony under the so-called "residual clause" of § 924(e)(2)(B)(ii). Under that provision a "violent felony" includes any crime punishable by more than one year in prison that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).
Jones argued that Welch notwithstanding, the residual clause is unconstitutionally vague and thus unenforceable under the Due Process Clause of the Fifth Amendment. The judge rejected this argument as implicitly foreclosed by the Supreme Court's decision in Sykes and sen- tenced Jones to 184 months in prison. This sentence fell just below the advisory guidelines range of 188 to 235 months and just above the ACCA's mandatory mini- mum of 180 months.
Under the ACCA a felon who unlawfully possesses a firearm in violation of § 922(g)(1) is subject to steeply enhanced penalties--a minimum sentence of 15 years and a maximum of life--if he has three prior convictions "for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). The statute defines a "violent felony" as any crime punishable by imprisonment for a term exceeding one year . . . that--
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential ...