May 24, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:13-cr-00159-SEB-DKL-01 - Sarah Evans Barker, Judge.
Rovner, Sykes, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
appeal stems from an attempted bank robbery. It presents
issues concerning the defendant's sentence and the
definition of a "crime of violence" in 18 U.S.C.
§ 924(c), which provides extra punishment for use of a
firearm in committing a crime of violence. We affirm the
district court's judgment for the most part, but we must
remand for resentencing on one count of conviction because
the court imposed a mandatory minimum sentence under §
924(c) without a jury finding on the key fact.
The Attempted Bank Robbery, Trial, and Sentence
morning of June 26, 2013, appellant Deandre Armour directed
two other men as they attempted to rob a bank branch in a
suburb of Indianapolis. Duryea Rogers and Xavier Hardy hid
outside the bank entrance and forced a teller into the bank
at gunpoint as she was opening the locked door. Armour sat in
the bank parking lot and directed Rogers and Hardy by radio.
Armour had recruited Rogers and Hardy before the robbery. He
supplied them with clothing, reserved their hotel rooms, and
orchestrated the plan.
the bank, Hardy stood lookout for more arriving employees
while Rogers ordered the teller to disable the bank's
alarm and open the safe. No other bank employees were trying
to go inside the bank because they had not been given the
all-clear signal. In the meantime, the teller inside the bank
was unable to open the safe. Once Rogers realized the bank
teller could not open the safe, he told Armour over the radio
that they needed to abort the robbery. Rogers and Hardy
forced the teller to the floor, tied her with plastic
"zip ties, " and stole her car to flee. All three
men were arrested quickly; two firearms were found with them.
and Hardy pled guilty. Both testified against Armour, who
went to trial. The jury found Armour guilty on three charges:
conspiracy to commit armed bank robbery under 18 U.S.C.
§ 371; aiding and abetting attempted armed bank robbery
under 18 U.S.C. § 2113(a) and (d) and § 2; and
aiding and abetting using or carrying and/or brandishing a
firearm during and in relation to a crime of violence under
18 U.S.C. § 924(c). Armour was sentenced to a total of
324 months (27 years) in prison. The sentence included an
84-month (seven-year) consecutive sentence on the §
924(c) charge, which is the mandatory minimum sentence for
brandishing a firearm.
appeal, Armour does not challenge his convictions for
conspiracy and aiding and abetting the attempted bank
robbery. He makes three arguments. First, he argues his
entire sentence was erroneously based on a finding that he
was a career offender under the Sentencing Guidelines. He
contends, based on Samuel Johnson v. United States,
576 U.S. ___, 135 S.Ct. 2551 (2015), that two prior Indiana
convictions for robbery should no longer qualify as
"crimes of violence" under the Guidelines. (Since
there are two relevant opinions called Johnson v. United
States, we include first names.) Second, also based on
Samuel Johnson, he contends that the § 924(c)
firearm conviction must be reversed because the underlying
predicate offense, attempted armed bank robbery, should not
qualify as a "crime of violence." Third, if his
§ 924(c) conviction stands, Armour contends that the
seven-year mandatory minimum § 924(c) sentence should be
vacated under Alleyne v. United States, 570 U.S.
___, 133 S.Ct. 2151 (2013), because the jury did not find
that he aided and abetted the "brandishing" of the
firearms during the attempted robbery. We affirm on the first
two issues but agree with Armour on the last.
Indiana Robbery as a "Crime of Violence"
was sentenced as a career offender under § 4B1.1 of the
United States Sentencing Guidelines. That designation
depended on treating as crimes of violence two prior
convictions for robbery under Indiana law. Based on
Samuel Johnson, Armour argues that those Indiana
robbery convictions under Ind. Code § 35-42-5-1 should
not be treated as "crimes of violence" under §
4B1.1. Armour's trial counsel objected to the career
offender designation and mentioned the Samuel
Johnson case, which was then awaiting a decision by the
Armour was sentenced, the Supreme Court held in Samuel
Johnson that the "residual clause" in the
definition of a "violent felony" in the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2), is
unconstitutionally vague. 576 U.S. at ___, 135 S.Ct. at 2557.
We recently held that Samuel Johnson applies to
invalidate the virtually identical residual clause of the
definition of "crime of violence" in §
4B1.2(a) of the advisory Sentencing Guidelines. United
States v. Hurlburt, ___ F.3d ___, 2016 WL 4506717 (7th
Cir. Aug. 29, 2016) (en banc). Those decisions leave intact
the "elements clause" of the "crime of
violence" definition under § 4B1.2(a)(1), which
applies to Armour's convictions for robbery.
argues that Indiana robbery does not qualify as a crime of
violence under the elements clause of § 4B1.2 because it
may be committed not only by using or threatening the use of
force but also by "putting any person in fear."
Ind. Code § 35-42-5-1. He argues that "putting any
person in fear" does not necessarily involve "the
use, attempted use, or threatened use of physical force
against the person of another."
United States v. Duncan, 833 F.3d 751 (7th Cir.
2016), we rejected the same argument based on "putting
any person in fear" as applied to the elements clause of
the definition of a "violent felony" under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i).
We explained in Duncan that the "fear" in
the Indiana robbery statute is fear of bodily injury, and
Indiana courts have interpreted the statute so that
"robbery by placing a person in fear of bodily injury
under Indiana law involves an explicit or implicit threat of
physical force and therefore qualifies as a violent
felony" under the statute. 833 F.3d at 758; see also
United States v. Lewis, 405 F.3d 511, 514 (7th Cir.
2005). The reasoning of Duncan extends to the career
offender Guideline here. The district court properly
sentenced Armour as a career offender under the Guidelines.
Federal Attempted Bank Robbery as a "Crime of