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Portee v. United States

United States Court of Appeals, Seventh Circuit

October 18, 2019

Daniel C. Portee, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued May 30, 2019

          Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. l:16-CV-168 - Theresa L. Springmann, Chief Judge.

          Before Bauer, Flaum, and Manion, Circuit Judges.

          MANION, CIRCUIT JUDGE.

         Daniel Portee pleaded guilty to possession of a firearm by a convicted felon. He received a 15-year mandatory-minimum sentence under the Armed Career Criminal Act. In Johnson's wake, [1] Portee challenged his sentence. He argues he lacks enough qualifying felony convictions to trigger the ACCA. The government argues he has four ACCA-qualifying felony convictions. Three suffice. We conclude two felony convictions proposed by the government do not satisfy the ACCA, so we reverse and remand.

         I. Background

         Portee pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). With an offense level of 19 and a criminal history category of VI, Portee faced a sentencing guidelines range of 63-78 months, and a statutory maximum of 120 months. But the government sought sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e), arguing Portee's record included four prior ACCA-qualifying offenses:

(1) a 1983 conviction of attempted armed robbery in Illinois, in violation of 111. Rev. Stat. 38 § 18-1;
(2) a 1990 conviction of robbery in Indiana, in violation of Ind. Code § 35-42-5-1;
(3) a 2000 conviction of pointing a firearm in Indiana, in violation of Ind. Code § 35-47-4-3; and
(4) a 2006 conviction of intimidation in Indiana, in violation of Ind. Code § 35-45-2-1.

         Portee does not dispute he incurred these convictions. Under the ACCA, a defendant convicted of 18 U.S.C. § 922(g) who has three prior violent felony convictions must be sentenced to at least 15 years. In 2010, the district judge agreed Portee fell under the ACCA and sentenced him to 180 months.

         But in 2015, the Supreme Court held the ACCA's residual clause unconstitutionally vague. Johnson, 135 S.Ct. at 2563. The residual clause defined "violent felony" to include any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." So, after Johnson, a felony is a "violent felony" for ACCA purposes only if it satisfies the ACCA's elements clause ("has as an element the use, attempted use, or threatened use of physical force against the person of another") or if the ACCA specifically enumerates it as a violent felony.

         Portee moved to correct his sentence under 28 U.S.C. § 2255. He argued his Indiana robbery conviction, Indiana pointing-a-firearm conviction, and Indiana intimidation conviction were not violent felonies under the ACCA after Johnson. The judge held the Illinois attempted-robbery conviction, the Indiana robbery conviction, and the Indiana pointing-a-firearm conviction were violent felonies under the ACCA's elements clause. The judge held the Indiana intimidation conviction was not a violent felony for ACCA purposes because the Indiana intimidation statute does not require as an element the use, attempted use, or threatened use of physical force against the person of another. Yet because three ACCA-qualifying felonies suffice, the judge concluded application of the ACCA was constitutional, but certified appealability. Portee appeals, arguing none of the four priors support application of the ACCA. The government argues all four do.

         II. Discussion

         The four prior felonies are not serious drug offenses and are not enumerated violent felonies. So after Johnson struck down the residual clause, the only way any of these priors qualifies under the ACCA is if it satisfies the ACCA's elements clause, which defines "violent felony," in part, to be any crime punishable by imprisonment for more than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). The categorical approach determines whether a prior felony satisfies the ACCA's elements clause. Mathis v. United States, 136 S.Ct. 2243, 2247 (2016); Descamps v. United States, 570 U.S. 254, 260-61 (2013). That is, we consider whether the elements of the prior felony required the prosecution to prove defendant used, attempted to use, or threatened to use physical force against the person of another. We consider the version of the State's criminal statute in effect at the time of the offense. See United States v. Bennett, 863 F.3d 679, 680 (7th Cir. 2017). We do not consider the actual facts underlying the prior conviction. We do not consider what defendant actually did.

         Sometimes a statute sets out alternative elements rather than alternative means or facts to satisfy a single element. In such a situation, the statute is divisible, and we apply the modified categorical approach. United States v. Ker Yang, 799 F.3d 750, 753 (7th Cir. 2015). We may glance at limited documents in the prior case to determine which of the alternative elements formed the basis of conviction. Id.; Shepard v. United States, 544 U.S. 13 (2005). We allow these Shepard documents to steer us to "which crime within a statute the defendant committed, not how he committed that crime." United States v. Woods, 576 F.3d 400, 405 (7th Cir. 2009). Even under the modified categorical approach, we do not consider the facts of what defendant did. We merely consider whether the crime with the selected alternative element required proof he used, attempted to use, or threatened to use physical force against the person of another.

         Here, the parties and the district judge discuss only four potential ACCA-qualifying offenses. The government argues all four qualify. Portee argues none do. The judge held three qualify, but Indiana intimidation does not. The government must be right about three prior offenses for the ACCA sentence to stand. Portee must be right about only two for the ACCA sentence to fall. We conclude Portee's convictions for Indiana pointing-a-firearm and Indiana intimidation do not qualify under the ACCA because neither satisfies the ACCA's elements clause.[2] There is no need to discuss further whether his convictions for Illinois attempted armed robbery or Indiana robbery satisfy the ACCA.

         A. Indiana pointing-a-firearm

         In 2000, Portee was convicted of Indiana felony pointing-a-firearm for an event in October 1999. At the time of the event (and conviction) Indiana law prohibited pointing a firearm at another without particular justifications:

A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.

I.C. 35-47-4-3(b).[3] Indiana law provided multiple particular exceptions to this prohibition based on various justifications. The pointing prohibition did not apply to a law enforcement officer acting in the scope of his duties or to a person justified in using reasonable force against another. I.C. 35-47-4-3-(a). The pointing prohibition did not apply to a person using reasonable force in self-defense, defense of others, or defense of property in certain situations. I.C. 35-41-3-2. Nor did the pointing provision apply to a person justified in using reasonable force to arrest someone or prevent his escape in certain circumstances. I.C. 35-41-3-3.

         We apply the categorical approach to determine whether this crime necessarily includes as an element the use, attempted use, or threatened use of physical force against the person of another. If the use, attempted use, or threatened use of physical force against the person of another was an element Indiana had to prove beyond a reasonable doubt to support a felony conviction for pointing a firearm, then such a conviction supports application of the ACCA. Otherwise, it does not.

         The district judge decided Indiana felony pointing-a-firearm supports application of the ACCA. The judge itemized the elements of the crime as: (1) knowingly and intentionally, (2) pointing a firearm, (3) at another person.[4] Portee argues it is possible to violate this statute without using, attempting to use, or threatening to use physical force against the person of another. He argues Indiana could prove all the elements of this felony without proving the defendant used, attempted to use, or threatened to use physical force against the person of another. He proposes a hypothetical: A person could say to another, "The first chamber in my weapon is empty, the safety is on, and my finger is not inside the trigger guard," and point a gun at him.

         The judge reasoned that even in this scenario, "[i]t is difficult to imagine that such action is not intended to communicate a threat of injury, which is implicit in the elements of the offense." The judge essentially concluded knowingly or intentionally aiming a firearm at another is always at least threatening the use of physical force against another.

         We disagree. It is not hard to imagine situations in which pointing a loaded gun at another person does not constitute a threat of injury or physical force. There are situations in which a person points a loaded gun at another but everyone understands the pointer is not using, attempting to use, or threatening to use physical force against the other person. Take Portee's example. Suppose an armed person is joking with his friend. The armed person says his gun is loaded but there is no bullet in the first chamber, and the safety is on, and his finger is not over the trigger. And then he points the gun at his friend and they both laugh. All elements of Indiana felony pointing-a-firearm are met. But there is no use, attempted use, or threatened use of physical force against the person of another. Yet even though they both laughed, it is not funny. It is gravely perilous. There is no reason to think Indiana would not want to prosecute and punish this sort of reckless shenanigan, even though the ACCA is not satisfied.

         Or perhaps the pointer and pointee are foolish actors. Or perhaps the pointer points at a person's back, or at a sleeping person, in idle and reckless whimsy. Or perhaps the pointing occurs in the context of a demonstration gone awry. In these circumstances, the pointer intentionally and knowingly points a loaded gun at another person, meeting all elements of the crime, but there is no use, attempted use, or threatened use of physical force against the person of another, so the ACCA is unsatisfied. Nevertheless, Indiana has a reasonable interest in preventing all these situations and in prosecuting and punishing all these pointers. Note that Indiana's pointing statute and the statutes it references included (and include) numerous specific exceptions (police, self-defense, defense of others, defense of property, arrest, escape prevention) but did not include (and do not include) exceptions for jokes, jests, horseplay, acting, or demonstrations. Unprotected by any exceptions, the pointers in those situations have committed felony pointing even though they have not used, attempted to use, or threatened to use physical force against the person of another.

         A prosecutor can prove the elements of Indiana felony pointing beyond a reasonable doubt without proving the defendant used, attempted to use, or threatened to use physical force against the person of another. The district judge erred in concluding that a threat is necessarily implicit in the elements of the crime. Perhaps a threat is usually implicit, but a threat is not always or necessarily implicit. The elements of the crime simply do not include a threat of physical force against the person of another, much less use or attempted use of such force. Indiana did not need to prove a threat to sustain a felony pointing conviction. Therefore, Portee's conviction of Indiana felony pointing-a-firearm fails the categorical approach and cannot support application of the ACCA.

         The government insists the ACCA applies and calls our attention to United States v. Hataway, 933 F.3d 940 (8th Cir. 2019). There, the Eighth Circuit recently concluded an Arkansas conviction for aggravated assault (divisible to the element of "Displays a firearm") and a South Carolina conviction for pointing a firearm at another person were violent felonies under the ACCA. But Hataway is distinguishable.

         Regarding Arkansas, the statute of conviction said "A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely ... Displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person ... ." Ark. Code § 5-13-204(a)(2) (2014).

         But the Indiana statute did not contain those specifications of indifference to the value of human life or dangerous manner. The elements of Indiana pointing generally are consistently simple: 1) knowingly or intentionally 2) pointing 3) a firearm 4) at another. See Duncan v. State, 23 N.E.3d 805, 816 (Ind.Ct.App. 2014) ("To prove that Duncan committed pointing a firearm, the State was require[d] to prove that he knowingly or intentionally pointed a firearm at another person."); C.T.S. v. State, 781 N.E.2d 1193, 1201 (Ind.Ct.App. 2003) ("To find that C.T.S. had committed the act of pointing a firearm, the State was required to prove that C.T.S. knowingly or intentionally pointed a firearm at D.A.O."); Ind. Pattern Crim. Jury Inst. 7.2700 (2019) ("Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: 1. The Defendant 2. [knowingly] [intentionally] 3. pointed a firearm 4. at [name]."). A conviction for Indiana pointing-a-firearm does not require ...


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