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United States v. Perry

United States Court of Appeals, Seventh Circuit

July 6, 2017

United States of America, Plaintiff-Appellee,
Jason Perry, Defendant-Appellant.

          Argued November 9, 2016

         Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 13-cr-57 - Richard L. Young, Judge.

          Before Bauer and Kanne, Circuit Judges, and Feinerman, District Judge. [*]

          Feinerman, District Judge.

         Jason Perry pleaded guilty to two counts under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm and ammunition. The district court sentenced him to 360 months' imprisonment upon finding that three of his prior felonies, including two burglary convictions under Indiana law, qualified as "violent felonies" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Perry argues on appeal that the enhancement was improper because Indiana burglary is not an ACCA predicate offense. He also contends that the two felon in possession counts are duplicative and should have been merged at sentencing. We affirm.

         I. Background

         At approximately 8:10 a.m. on May 22, 2013, Perry bought a box of 12-gauge shotgun shells at a Wal-Mart in Princeton, Indiana. About three hours later, police were dispatched to a Mexican restaurant, where Perry was arguing with his ex-girlfriend Jessica Tice about visitation with their 13-year-old son. The officers asked Perry to leave, and he drove away in his pickup truck. He returned less than an hour later, confronted Tice in the restaurant parking lot, and shot her to death with a 12-gauge shotgun in front of their son and Tice's mother. The police arrested Perry shortly thereafter, and found the murder weapon and ammunition in his truck.

         Petty was convicted of murder in state court and received an 85-year sentence, with fifteen years suspended to probation. In federal court, Perry was charged with two counts under § 922(g)(1) -one for being a felon in possession of a firearm, and the other for being a felon in possession of ammunition-and he pleaded guilty to both. At sentencing, the district court found that Perry qualified for an enhanced sentence under ACCA because he had three prior convictions for a "violent felony" as defined in § 924(e)(2)(B). Two of those convictions were for burglary in Indiana, and the third was for battery resulting in serious bodily injury.

          Perry argued at sentencing that the two felon in possession counts were identical and should merge. The remedy he suggested was for the court to make the sentences on the two counts run concurrently. Without explicitly addressing Perry's merger argument, the district court imposed a 360-month prison sentence on each count, running those sentences concurrently to each another and to the state sentence.

         II. Discussion

         ACCA imposes a fifteen-year minimum sentence on defendants convicted under § 922(g)(1) who at the time of the offense had at least three prior convictions for a "violent felony." 18 U.S.C. § 924(e)(1). ACCA defines "violent felony" in relevant part as any felony "that ... is burglary." 18 U.S.C. § 924(e)(2)(B)(ii).

         The term "burglary" in § 924(e)(2)(B)(ii) does not encompass all burglaries, but only "generic" burglary, which the Supreme Court has defined as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575, 598 (1990). Determining whether burglary under a given State's law is encompassed by § 924(e)(2)(B)(ii) presents a categorical question that focuses exclusively on the state crime's statutory definition. Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). "[I]f the [state] statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Descamps v. United States, 133 S.Ct. 2276, 2283 (2013).

         Indiana law defines burglary as "break[ing] and enter[ing] the building or structure of another person, with in- tent to commit a felony or theft in it." Ind. Code § 35-43-2-1. This definition is nearly identical to that of "generic" burglary-a congruence that led us in United States v. Vogt, 588 F.App'x 497 (7th Cir. 2015), to hold that Indiana burglary qualifies as a predicate "burglary" under ACCA. In fact, we held that it would be "frivolous" to contend otherwise. Id. at 498.

         Yet Vogt is non-precedential, and Perry urges us to chart a different course here, arguing that Indiana burglary is broader than generic burglary with respect to where it may be committed. Indiana burglary may be committed in outdoor, fenced-in areas. See McCovens v. State, 539 N.E.2d 26, 29 (Ind. 1989) ("The fence surrounding the business was a 'structure' as contemplated by Ind. Code § 35-43-2-1."); Gray v. State, 797 N.E.2d 333, 335-36 (Ind. App. 2003) (holding that a fenced area need not adjoin a building or completely surround a business premises to qualify as a "structure" under the Indiana burglary statute); Joy v. State,460 N.E.2d 551, 558 (Ind. App. 1984) (holding that "the fence surrounding the Leland Lumber Company was a 'structure' as contemplated by our burglary statute"). Perry contends that a state burglary statute that treats a fenced area as a "structure" necessarily "sweeps more broadly" ...

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