DONNIE JOHNSON, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 17-1912
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 28, 2021 — DECIDED JANUARY 24, 2022
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 16-cv-00214 — Rudy Lozano, Judge.
FLAUM, Circuit Judge. In 2004, a jury convicted Donnie Johnson of being a felon in possession of a firearm. Based on his prior convictions, the district court found that he qualified for a sentencing enhancement under the Armed Career Criminal Act (ACCA) and sentenced him to 275 months in prison. In 2015, the Supreme Court decided Samuel Johnson v. United States, 576 U.S. 591 (2015), holding that the so-called “residual clause” of the
Despite the Supreme Court‘s holding in Samuel Johnson, Johnson‘s sentence is proper if he has at least three prior convictions that qualify for enhancement under the provisions of the ACCA which Samuel Johnson left undisturbed (the “violent felony” and “serious drug offense” provisions). Because Johnson does have at least three such convictions, we affirm the district court‘s decision to deny Johnson‘s motion to vacate his sentence.
I. Background
In August 2001, a Gary, Indiana police officer stopped a van Johnson was driving. The officer observed Johnson move from the front seat to the middle of the van. After arresting Johnson on an outstanding warrant, the officer searched the van and found a loaded .22 caliber handgun. A federal jury subsequently convicted Johnson of being a felon in possession of a firearm under
As his conviction for being a felon in possession of a firearm suggests, this was not Johnson‘s first run-in with the law. Relevant here are four of his prior convictions: (1) a 1982 conviction for distribution of a controlled substance, (2) a 1984 burglary cоnviction, (3) a 1989 criminal deviate conduct conviction, and (4) a 1990 conviction for inflicting bodily injury during an escape. Based on these convictions, the district court found that Johnson qualified for a sentence enhancement under the ACCA, which establishes a mandatory minimum sentence of 15 years (180 months) when a defendant is convicted of being a felon in possession of a firearm and has at least three convictions which qualify as “violent felon[ies]” or “serious drug offense[s].” See
Relevant to petitioner‘s appeal is the ACCA‘s definition of “violent felony,” which reads:
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year… that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
In 2015, the Supreme Court held the last clause of this definitiоn (“or otherwise involves conduct that presents a serious potential risk of physical injury to another“) to be void for vagueness, declaring that any sentence imposed under the so-called “residual clause” violates due process. Samuel Johnson, 576 U.S. at 606. The decision, however, left undisturbed the other provisions of the definition, id., and, thus, a sentence enhancement under the ACCA may stand if the underlying, prior convictions qualify under the remaining definitional provisions.
Based on the Court‘s decision in Samuel Johnson, petitioner filed a motion pro se in the district court in 2016 to vacate his sentence. He argued, among other things, that his criminal deviate conduct and escape convictions qualified as “violent felonies” only under the ACCA‘s now-invalidated residual clause and that, as a result, he was entitled to re-sentencing.2
The district court disagreed and denied his motion, reasoning that both convictions qualified as violent felonies under subpart (i) (the “force provision“) of the definition since they involve the use of force against another. Though the court declined to issue a certificate of appealability in tandem with its opinion and order, this Court subsequently granted Johnson‘s request for such a certificate. On appeal, Johnson
II. Discussion
“Whether a prior conviction constitutes a violent felony under the ACCA is a legal conclusion that we review de novo.” United States v. Fife, 624 F.3d 441, 445 (7th Cir. 2010).
Because he does not challenge the district court‘s finding that his drug and burglary convictions did not implicate the residual clause and thus were proper predicate convictions for a sentence enhancement under the ACCA, Johnson must succeed in showing that neither his criminal deviate conduct conviction nor his escape conviction qualifies as a proper third offense to trigger ACCA‘s sentence enhancement.
Courts reviewing whether a prior conviction qualifies as a violent felony or serious drug offense under the ACCA employ what is known as the categorial approach. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Under this approach, a reviewing court looks only to the elements of the offense of convictiоn to determine whether such an offense categorically falls within the definitions of either a violent felony or serious drug offense as defined by the ACCA. See id. It is not the actual facts of the defendant‘s actions in committing the offense but, rather, the elements of the offense itself that matter for this inquiry. See id.; Taylor v. United States, 495 U.S. 575, 600–02 (1990).
One complication arises, however, when the statute defining the offense of the prior conviction is disjunctive (that is, it proscribes a swath of conduct via a list of alternatives). In such
To make this determination of “divisibility,” the Supreme Court has offered a number of sources that may illuminate whether the listed alternatives are elements or means: authoritative case law from the state courts, the text of the statute itself, and, if neither of these prove helpful, the record of the prior conviction for “the sole and limited purpose of determining whether [the listed items are] element[s] of the offense.” Id. at 2256–57 (alterations in original) (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)). If the charging instrument and the jury instructions, for instance, include all of the alternatives listed in the statute, “[t]hat is as clear an indication as any thаt each alternative is only a possible means of commission, not an element that the prosecutor
If a court determines the statute is divisible, it then may apply the “modified categorical approach.” The Supreme Court has clarified that, “[u]nder that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. at 2249. To reiterate, this examination of the record documents is only to determine the elements of the crime for which the defendant was convicted and may not be relied upon to find that a defendant qualifies for a sentence enhancement under the ACCA because he, for instance, committed a non-violent сrime in a violent way. See id. at 2253. The crime itself, divorced from the facts of the defendant‘s particular commission of it, still must categorically qualify as a violent felony or a serious drug offense as the ACCA defines those terms.
Johnson essentially raises the same three arguments with respect to both his criminal deviate conduct and escape convictions to show that they do not qualify as violent felonies: the statutes are indivisible, they do not require sufficient force to qualify as ACCA violent felonies, and they do not require sufficient intent to qualify as ACCA violent felonies. Starting with petitioner‘s criminal deviate conduct conviction, we find that the offense does qualify as a violent felony under the
A. Divisibility
We ask first whether Indiana‘s criminal deviate conduct statute is divisible. Johnson argues that Indiana‘s criminal deviate conduct statute is indivisible and, therefore, that a conviction under it cannot qualify as a violent felony. At the time of Johnson‘s conviction, the relevant portion of Indiana‘s statute read:
A persоn who knowingly or intentionally causes another person to perform or submit to deviate sexual conduct when:
(1) the other person is compelled by force or imminent threat of force;
(2) the other person is unaware that the conduct is occurring; or
(3) the other person is so mentally disabled or deficient that consent to the conduct cannot be given;
commits criminal deviate conduct, a Class B felony.
[A]n act involving:
(1) a sex organ of one person and the mouth or anus of another person; or
(2) the penetration of the sex organ or anus of a person by an objeсt.
On its face, the text of Indiana‘s criminal deviate conduct statute raises questions about divisibility. It proscribes a swath of conduct via a list of alternatives, some of which may qualify as violent felonies under the ACCA‘s force provision (e.g., subpart (1)) and some of which likely do not (subparts (2) and (3)). Thus, if the statute is indivisible, a conviction under it cannot qualify for an ACCA enhancement because the offense does not categorically qualify as a violent felony as contemplated by the ACCA. If, on the other hand, the statute is divisible, we must engage in the modified categorical approach to first determine which of the alternative crimes Johnson was convicted of and then determine whether that crime meets the requirements of the ACCA‘s violent felony definition.
As a starting point for the divisibility analysis, we look to authoritative state law. See Mathis, 136 S. Ct. at 2256–57. Petitioner argues that the three alternatives listed in the criminal deviate conduct statute are merely means of satisfying an implied “absence of consent element.” But this interpretation is unsupported by Indiana‘s case law. For instance, in Collins v. State, 717 N.E.2d 108 (Ind. 1999), the Indiana Supreme Court held that the state‘s criminal deviate conduct and deviate sexual conduct provisions “define multiple sets of essential elements, and each set describes a separate offense of criminal deviate conduct.” Id. at 110. This understanding aligns with the
In arguing that the alternatives listed in the criminal deviate conduct statute are merely alternative means of satisfying one unifying element that he refers to as the “absence of consent element,” petitioner places too much weight on wording cherry-picked from Stewart v. State, 555 N.E.2d 121 (Ind. 1990). First, petitioner points to the fact that the court twice (both times in footnotes) describes the criminal deviate conduct statute as “set[ting] out the circumstances under which the commission of sexual deviate conduct is a crime.” See Stewart, 555 N.E.2d at 122, n.1 & 126, n.4 (emphasis added). Petitioner makes much of the court‘s use of the word “circumstances” in these footnotes, pointing to the fact that the Supreme Court later used the same word to describe a crime‘s means as opposed to its elements. See Mathis, 136 S. Ct. at 2248, 2253; Descamps v. United States, 570 U.S. 254, 268, 270, 277 (2013). This argument would carry some weight if Stewart had been decided after these Supreme Court cases which, petitioner argues, gave the word a special meaning—and if Stewart had
Next, petitioner argues that the following text from Stewart supports his theory that the criminal deviate conduct statute has an implied “absence of consent” element: “The criminal deviate conduct statute prohibits [certain] sex acts … in the absence of the consent of one of the participants.” Stewart, 555 N.E.2d at 126 (Ind. 1990). Petitioner asserts that this phrase “define[s]” the criminal deviate conduct statute. Not so. This phrase merely describes the statute and does so at a very general level. Given the other Indiana cases on this issue and the context of the sentence Johnson relies on, the phrase is most plausibly read as a general description of what the statute does, rather than a technical definition of the statute intended to add an implied element to the offense.
Next, should authoritative state law fail to decisively resolve our divisibility questions, we look to record documents. See Mathis, 136 S. Ct. at 2256–57. To the extent the above-recited case law leaves any doubt as to the divisibility of Indiana‘s criminal deviate conduct offense, the record documents are revelatory. At trial, the applicable jury instruction read, in relevant part:
To convict the defendant of the crime of Criminal Deviate Conduct as a Class B Felony, the State must prove each of the following elements beyond a reasonable doubt.
The Defendant:
- knowingly or intentionally
- caused another person to perform or submit to deviate sexual conduct
- when the other person was compelled by force or imminent threat of force.
The fact that the jury instruction singles out one of the statute‘s listed alternatives (compulsion via force) to the exclusion of all others and further states that the government must prove that “element[] beyond a reasonable doubt” to secure a conviction buttresses the view that Indiana‘s criminal deviate conduct statute is divisible into distinct elements. For all of these reasons, we hold that the statute is divisible.
Given these jury instructions, we can make short work of the next step in our analysis: determining which crime Johnson was convicted of under the criminal deviate conduct statute. See Mathis, 136 S. Ct. at 2249 (instructing that, under the modified categorical approach, courts reviewing ACCA sentence enhancements may examine a limited set of judicial records to determine which version of the statutory alternatives the defendant was charged and convicted under). The jury instructions make clear that Johnson was convicted of the version of criminal deviate conduct requiring compulsion by fоrce.
B. Sufficiency of the Force Required
Following this divisibility holding, we turn next to the question of what level of force qualifies a crime as an ACCA predicate offense. Petitioner contends that even if the Court finds that Indiana‘s criminal deviate conduct statute is divisible and even if the Court finds that Johnson‘s conviction was for criminal deviate conduct via forcible compulsion, Indiana law defines “force” to include conduct that does not meet the higher bar for “force” contemplated by the ACCA‘s definition of “violent felony.” Beginning with the federal statute, the relevant portion of the ACCA‘s definition of violent felony is the first prong, which states that a felony qualifies as a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
The ACCA does not provide any definition for “physical force,” but two Supreme Court cases have shed light on the meaning of this term: Curtis Johnson v. United States, 559 U.S. 133 (2010) and Stokeling v. United States, 139 S. Ct. 544 (2019).
In Curtis Johnson, the Supreme Court decided whether the petitioner‘s previous conviction in Florida for simple battery qualified as a violent felony predicate offense under the ACCA. Under Florida law, a battery occurs “when a person either ‘1. [a]ctually and intentionally touches or strikes another person against the will of the other,’ or ‘2. [i]ntentionally causes bodily harm to another person.‘” Id. at 136 (alteration in original) (citing
The Court returned to this definition of “physical force” nearly a decade later, in Stokeling. There, the Court held that common law robbery—which requires at least some resistance, no matter how slight, by the victim—meets the ACCA‘s requirеments for physical force. Stokeling, 139 S. Ct. at 555. In so ruling, the Court explained: “[T]he common law [] linked the terms ‘violence’ and ‘force.’ Overcoming a victim‘s resistance was per se violence against the victim, even if it ultimately caused minimal pain or injury.” Id. at 553. This understanding, the Court explained, comported with Curtis Johnson‘s requirement that the force be “capable of causing physical pain or injury,” Curtis Johnson, 559 U.S. at 140, since any overcoming of resistance inherently involves a “physical contest” and “it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.‘” Stokeling, 139 S. Ct. at 553 (quoting Curtis Johnson, 559 U.S. at 140).
To summarize, after Curtis Johnson, any offense involving force “capable of causing physical pain or injury” is sufficient to qualify as a violent felony under the ACCA. And after Stokeling, an offense per se satisfies Curtis Johnson‘s definition of force if it involves the offender‘s overcoming the victim‘s resistance. Per the wording of the ACCA statute itself, an offense that satisfies either Curtis Johnson‘s or Stokeling‘s level of
We now turn to the state statute defining petitioner‘s offense of conviction. Indiana‘s forcible criminal deviate conduct offense involves the defendant‘s use of “force or imminent threat of force” to compel the victim to submit to a sexual act against their will.
Either variation requires a level of force sufficient under the ACCA.3 A forcible criminal deviate conduct offense under
the first variation clearly falls within the Supreme Court‘s interpretation in Stokeling that force “sufficient to overcome a victim‘s resistance” satisfies the ACCA‘s requirements. See Stokeling, 139 S. Ct. at 554. Johnson‘s argument to the contrary is fatally undermined by the tеxt of Indiana‘s statute, which requires that the victim be “compelled to submit” to the sexual conduct. The requirements of compulsion and submission both indicate that, for instances in which the victim does resist, the offender must overcome that resistance, thereby satisfying Stokeling. See id. at 551 (adopting the common law‘s definition of “force” or “violence,” which required only that “[s]ufficient force must be used to overcome resistance … however slight the resistance” (citation omitted)). Moreover, even if the Indiana criminal deviate conduct statute swept up instances where the defendant attempted but failed to overcome the victim‘s resistance, such conduct would still qualify as a violent felony under the ACCA, which includes the “attempted use … of physical force.”
For instances in which the victim does not resist, the conduct may yet qualify as criminal deviate conduct under the second variation of the offense if the victim declined to resist because the offender placed them in fear of bodily harm. Birch, 401 N.E.2d at 751 (holding that criminal deviate conduct ordinarily requires that the offender overсome the victim‘s resistance but clarifying that “[p]hysical resistance is not required if the victim is in fear of bodily harm.“). Because such instances necessarily involve the “threatened use,”
At bottom, Indiana‘s forcible criminal deviate conduct offense involves the defendant‘s use of “force or imminent threat of force” to compel the victim to submit to a sexual act against their will.
C. Sufficiency of the Intent Required
Finally, we turn to the question of intent. See Borden v. United States, 141 S. Ct. 1817, 1821–22 (2021) (holding that a crime is not a violent felony “if it requires only a mens rea of recklessness.“). Petitioner argues that Indiana‘s forcible criminal deviate conduct offense does not qualify as an ACCA predicate offense because it does not require that the prohibited conduct be committed intentionally. In support of this contention, petitioner points to Leocal v. Ashcroft, 543 U.S. 1 (2004), сlaiming that the Supreme Court‘s holding in that case should be read to mean that an offense must require
Petitioner‘s reliance on Leocal is misguided. In that case, the Supreme Court interpreted a separate but similarly worded statute defining the term “crime of violence,”
* * *
For these reasons, we hold that Indianа‘s criminal deviate conduct offense is divisible and that the forcible compulsion variety of that offense requires sufficient force and intent to qualify as a “violent felony” under the ACCA. Because petitioner has two prior convictions which he concedes qualify as predicate offenses under the ACCA and because we hold that
III. Conclusion
We AFFIRM the district court‘s denial of petitioner‘s motion to vacate his sentence.