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United States v. Jennings

United States Court of Appeals, Seventh Circuit

June 16, 2017

United States of America, Plaintiff-Appellee,
Randall Jennings, Defendant-Appellant.

          Argued April 4, 2017

         Appeal from the United States District Court for the Western District of Wisconsin. No. 15-CR-138 - James D. Peterson, Chief Judge.

          Before WOOD, Chief Judge, and Kanne and ROVNER, Circuit Judges.

          ROVNER, Circuit Judge.

         Defendant Randall Jennings pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). At sentencing, the district court found that Jennings' prior convictions in Minnesota for simple robbery and felony domestic assault constituted convictions for crimes of violence for purposes of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and the parallel provi- sion of the Sentencing Guidelines. Consequently, Jennings was subject to a 15-year statutory minimum prison term along with an enhanced Guidelines offense level and criminal history categorization. Jennings appeals, contending that neither simple robbery nor domestic assault, as Minnesota defines those crimes, qualify as a crime of violence. We affirm.


         On August 22, 2015, an individual attempted to purchase prescription Klonopin pills from Jennings in Hudson, Wisconsin. The transaction went awry for the purchaser when Jennings put a gun to his head and Jennings' girlfriend proceeded to steal his money from his truck. After the victim reported the robbery, local police stopped Jennings' car. Nearby, police found a loaded semi-automatic Ruger handgun that Jennings' girlfriend had thrown from his vehicle shortly before he was pulled over. Jennings was arrested and indicted for possessing a firearm following a felony conviction, in violation of section 922(g)(1). He eventually pleaded guilty to that charge.

         As relevant here, Jennings' criminal history included a prior conviction in Minnesota for simple robbery along with two additional convictions in that same state for felony domestic assault. The probation officer's pre-sentence report (both original and as amended) treated those convictions as crimes of violence for purposes of the armed career criminal provisions of the Criminal Code and the Sentencing Guidelines. See § 924(e); U.S.S.G. § 4B1.4. Jennings objected to the characterization of these offenses, contending that, as defined by Minnesota law, they do not categorically involve the use or threatened use of violent physical force and for that reason do not qualify as violent felonies. See Curtis Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 1271 (2010). The district court, relying on our decisions in United States v. Maxwell, 823 F.3d 1057 (7th Cir.), cert, denied, 137 S.Ct. 401 (2016) (Minnesota simple robbery), and United States v. Yang, 799 F.3d 750 (7th Cir. 2015) (Minnesota felony domestic violence), overruled Jennings' objections. After soliciting supplemental briefing, the court found that Jennings' two Minnesota convictions for making terroristic threats also constituted convictions for a violent crime-meaning that Jennings had a total of five such prior convictions. R. 31. Designation as an armed career criminal had a triple impact on Jennings' sentencing range: (1) pursuant to section 924(e), Jennings was subject to a statutory minimum term of 15 years; (2) coupled with Jennings' use of a weapon in robbing his prescription pill customer, it boosted his Guidelines base offense level to 34, see U.S.S.G. § 4Bl.4(b)(3)(A); and (3) again in combination with his use of the gun to commit a robbery, it pushed him into the uppermost criminal history category of VI, see U.S.S.G. § 4Bl.4(c)(2). After a 3-level reduction in the offense level for Jennings' acceptance of responsibility, see U.S.S.G. § 3El.l(b), the Guidelines called for a sentence in the range of 188 to 235 months. The district court elected to impose a below-Guidelines sentence of 180 months, the lowest sentence that the ACCA permitted him to impose. Jennings appeals the treatment of his prior convictions as crimes of violence.


         Whether any of Jennings' prior convictions qualify as crimes of violence, and in sufficient number to trigger the statutory and Guidelines enhancements for career offenders, present legal questions as to which our review is de novo. E.g., United States v. Meherg, 7U F.3d 457, 458 (7th Cir. 2013).

         Our focus shall be on Jennings' prior convictions for simple robbery and felony domestic violence. The district court relied in part on Jennings' prior convictions under the Minnesota terroristic threat statute, Minn. Stat. § 609.713, subd. 1, in concluding that Jennings is a career offender. But the court's rationale in that regard was premised on the notion that the Minnesota statute is divisible as to the type of crime the defendant threatens to commit in order to terrorize his victims, rendering it permissible, using a modified categorical approach, to examine the so-called Shepard documents (e.g., the indictment, plea agreement, and plea colloquy) in order to determine whether the particular crime Jennings had threatened to commit involves the threatened, attempted, or actual use of physical force. R. 31 at 2-3; see Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263 (2005). However, the government believes that the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243, 2256 (2016) (if listed components of alternatively phrased criminal statute are means rather than elements, modified categorical approach not permitted), [1] forecloses the district court's premise as to the divisibility of the statute. As the government does not defend the career criminal determination on the basis of these convictions, we shall abstain from any analysis of them and turn to Jennings' convictions for robbery and domestic violence.

         The ACCA, in relevant part, specifies that a person convicted of being a felon in possession of a firearm pursuant to section 922(g) shall be sentenced to a prison term of not less than 15 years if he has three prior convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." § 924(e)(1). The "violent felony" provision is the one that is relevant here. The statute defines "violent felony" to include any felony that "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burgla- ry, arson, or extortion, [or] involves use of explosives[.]" § 924(e)(2)(B). None of Jennings' prior offenses are among those identified in the enumerated crimes-clause of the statute, § 924(e)(2)(B)(ii), so only if they satisfy the force clause, § 924(e)(2)(B)(i) can they qualify as violent felonies.[2]

         The armed career criminal guideline specifies an elevated offense level of 34 and a criminal history category of VI for a defendant who is subject to an enhanced statutory minimum sentence pursuant to section 924(e) and whose underlying offense involved the use or possession of a firearm in connection with (as relevant here) a crime of violence. U.S.S.G. § 4Bl.4(b)(3)(A) and (c)(2). The guideline's definition of "crime of violence" includes a force clause that is identical to the force clause of section 924(e), see U.S.S.G. § 4Bl.2(a)(1), cross-referenced by § 4Bl.4(b)(3)(A), and consequently the analysis as to whether a particular conviction constitutes a crime of violence because it has as an element the use of force is the same whether we are applying the guideline or the ACCA. See, e.g., United States v. Wyatt, 672 F.3d 519, 521 (7th Cir. 2012).

         Our assessment of the two state offenses at issue in this appeal entails a categorical inquiry. The facts underlying Jennings' prior convictions are irrelevant to our evaluation; our one and only consideration is whether each of the statutes pursuant to which Jennings was convicted has as an element the use, attempted use, or threatened use of physical force against the person of another. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60 (1990); United States v. Maxwell, supra, 823 F.3d at 1060-61.

         Curtis Johnson v. United States, supra, 559 U.S. at 140, 130 S.Ct. at 1271, [3] defines "physical force" to mean "violent force, " in other words, "force capable of causing physical pain or injury to another person." 559 U.S. at 140, 130 S.Ct. at 1271 (emphasis in original). The mere touching of another person, which is all the force that the prior state conviction at issue in Curtis Johnson required, is not sufficient to satisfy the ACCA. Id. at 139, 130 S.Ct. at 1270. Curtis Johnson thus requires us to consider whether the Minnesota statutes under ...

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