United States v. Perry
2017 U.S. App. LEXIS 12045
| 7th Cir. | 2017Background
- In May 2013, Jason Perry purchased 12‑gauge shotgun shells, later used to shoot and kill his ex‑girlfriend; police found the shotgun and ammunition in his truck.
- Perry was convicted of state murder and received an 85‑year state sentence (fifteen years suspended).
- Federally, Perry pleaded guilty to two counts under 18 U.S.C. § 922(g)(1): felon in possession of a firearm and felon in possession of ammunition.
- At sentencing the district court applied the ACCA enhancement (18 U.S.C. § 924(e)) after finding Perry had three prior violent‑felony convictions, including two Indiana burglary convictions and one serious‑bodily‑injury battery.
- Perry challenged (1) whether Indiana burglary qualifies as the ACCA’s “burglary” (generic burglary) and (2) whether the two § 922(g)(1) counts were duplicative and should merge.
- The district court imposed concurrent 360‑month federal sentences on each count; Perry appealed.
Issues
| Issue | Perry's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Indiana burglary is a predicate "burglary" under ACCA | Indiana burglary sweeps broader than generic burglary because it can include fenced outdoor areas (analogous to curtilage) | Indiana burglary aligns with generic burglary and requires entry into a wholly enclosed structure, not open curtilage or vehicles | Indiana burglary qualifies as generic burglary for ACCA purposes; ACCA enhancement affirmed |
| Whether burglary statute covers vehicles or other movable conveyances | Perry argued statute broader (cited non‑generic statutes elsewhere) | Indiana statute does not reach vehicles or movable conveyances | Indiana burglary does not include vehicles; distinguishes non‑generic statutes |
| Whether inclusion of fenced areas makes Indiana burglary non‑generic (comparison to Florida’s curtilage) | Perry: James controlling — Florida’s curtilage holding shows statutes that reach curtilage are non‑generic | Court: Indiana cases involve wholly enclosed fenced areas; Indiana law requires enclosure, unlike Florida’s partially enclosed curtilage | James inapplicable; Indiana burglary remains within generic definition |
| Whether the two § 922(g)(1) counts were multiplicitous and required merger | Perry: counts duplicate same conduct; remedy was concurrent sentences (which he requested) | Government: ammunition purchase/possession and firearm possession were separate acts; record shows acquisition separately | Counts supported by distinct conduct (separate acquisition/possession); concurrent sentences rendered any sentencing‑procedure omission harmless |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (defines "generic" burglary for ACCA)
- Shepard v. United States, 544 U.S. 13 (clarifies "building or enclosed space" requirement for generic burglary)
- James v. United States, 550 U.S. 192 (holds Florida burglary broader than generic burglary because it includes curtilage)
- Descamps v. United States, 133 S. Ct. 2276 (categorical approach: state statute broader than generic offense cannot qualify)
- Mathis v. United States, 136 S. Ct. 2243 (clarifies categorical approach and comparison to state statutory elements)
- Dunn v. United States, 480 U.S. 294 (discusses curtilage and lack of bright‑line fencing rule)
- United States v. Buchmeier, 255 F.3d 415 (7th Cir.) (separate acquisition supports separate § 922(g) counts)
- Yates v. United States, 842 F.3d 1051 (7th Cir.) (noting absence of state decisions holding Indiana burglary broader than generic)