April 4, 2017
from the United States District Court for the Western
District of Wisconsin. No. 15-CR-138 - James D. Peterson,
WOOD, Chief Judge, and Kanne and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
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.
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.
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.
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.
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),  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.
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
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).
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.
Johnson v. United States, supra, 559 U.S. at 140, 130
S.Ct. at 1271,  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 ...