United States v. Deandre Armour
2016 U.S. App. LEXIS 19598
| 7th Cir. | 2016Background
- On June 26, 2013, Deandre Armour directed two co-defendants (Rogers and Hardy) in an attempted armed bank robbery; Rogers and Hardy entered the bank, tied a teller, brandished firearms, and fled in the teller’s car; all three were arrested and two guns recovered.
- Rogers and Hardy pleaded guilty and testified against Armour; a jury convicted Armour of conspiracy (18 U.S.C. § 371), aiding and abetting attempted armed bank robbery (18 U.S.C. § 2113(a),(d) & § 2), and aiding/abetting use/carrying/brandishing a firearm during a crime of violence (18 U.S.C. § 924(c)).
- Armour received a total 324-month sentence, including an 84-month consecutive mandatory minimum under § 924(c) for brandishing.
- On appeal Armour argued (1) his career-offender status was improper because two prior Indiana robberies no longer qualify as “crimes of violence” under Samuel Johnson; (2) attempted armed bank robbery is not a § 924(c) predicate after Samuel Johnson; and (3) the seven-year brandishing enhancement under § 924(c) is unconstitutional under Alleyne because the jury did not find brandishing.
- The Seventh Circuit affirmed the convictions and the career-offender designation, held attempted federal bank robbery qualifies as a “crime of violence” under § 924(c)(3)(A), but vacated the seven-year brandishing sentence because the jury did not find the brandishing fact required by Alleyne and remanded for re-sentencing on that count.
Issues
| Issue | Armour's Argument | Government's Argument | Held |
|---|---|---|---|
| Career-offender: whether two Indiana robbery convictions qualify as "crimes of violence" under U.S.S.G. § 4B1.2(a) after Samuel Johnson | Samuel Johnson invalidates the residual clause; Indiana robbery can be committed by "putting any person in fear" and thus may not meet the elements clause | Indiana robbery (including intimidation) involves fear of bodily injury and thus involves threatened physical force under the elements clause | Affirmed: Indiana robbery qualifies under the elements clause; career-offender designation stands |
| § 924(c) predicate: whether attempted armed bank robbery is a "crime of violence" under § 924(c)(3) after Samuel Johnson | Samuel Johnson voids similar residual clauses, so attempted bank robbery might not qualify | Attempted bank robbery satisfies the elements clause because intimidation and assault involve threatened physical force | Affirmed: attempted armed bank robbery qualifies under § 924(c)(3)(A) |
| Brandishing enhancement: whether imposition of the 7-year mandatory minimum for brandishing required a jury finding under Alleyne | The jury did not find brandishing; Alleyne requires any fact that increases the mandatory minimum be found by a jury | Evidence showed firearms were brandished and Armour led the scheme; but no jury finding on brandishing | Reversed as to the 7-year brandishing sentence: vacated and remanded for re-sentencing because Alleyne error occurred |
| Aiding-and-abetting knowledge: whether Armour must have had advance knowledge of co-defendants' intent to brandish to be subject to the enhancement | Deadlock: Armour argued lack of jury finding on his advance knowledge of brandishing | Government argued proof supports aiding/abetting brandishing because Armour directed and told Hardy to bring a gun | Court: Remanded—jury should have been instructed/found beyond a reasonable doubt that Armour had advance knowledge to support the brandishing enhancement |
Key Cases Cited
- Samuel Johnson v. United States, 576 U.S. 591 (2015) (Struck down ACCA residual clause; central to arguments about residual clauses)
- Alleyne v. United States, 570 U.S. 99 (2013) (Any fact that increases mandatory minimum is an element that must be submitted to a jury)
- Rosemond v. United States, 572 U.S. 65 (2014) (Aiding-and-abetting § 924(c) requires advance knowledge of co-actor’s use of a firearm)
- Olano v. United States, 507 U.S. 725 (1993) (Standard for plain-error review)
- United States v. Cureton, 739 F.3d 1032 (7th Cir. 2014) (Alleyne plain-error analysis and when evidence of brandishing is overwhelming)
- United States v. Duncan, 833 F.3d 751 (7th Cir. 2016) (Indiana robbery’s "putting in fear" involves threatened physical force under the elements clause)
- United States v. Jones, 932 F.2d 624 (7th Cir. 1991) (Bank robbery intimidation means threat of force; robbery is a crime of violence)