UNITED STATES of America, Plaintiff-Appellee v. Calvin BANKHEAD, Defendant-Appellant.
No. 12-1009.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 25, 2013. Filed: Feb. 12, 2014.
743 F.3d 323
III. Conclusion
In Carter I, we concluded that the Plan did not terminate. Appellants possessed—and exercised—a full and fair opportunity in Carter I to litigate the issue it seeks to have adjudicated in the Tax Court: specifically, whether the Plan terminated. However, appellants’ unsuccessful action in Carter I collaterally estops the Tax Court from making that determination. Appellants are precluded from re-litigating the issue of whether the Plan terminated. For these reasons, we AFFIRM the decision of the United States Tax Court.
Katherine M. Menendez, AFPD, Minneapolis, MN, for Appellant.
Before LOKEN, GRUENDER, and SHEPHERD, Circuit Judges.
GRUENDER, Circuit Judge.
Following his guilty plea to the charge of being a felon in possession of a firearm, a violation of
The written plea agreement, executed by Bankhead and the Government, specified a statutory maximum term of 120 months’ imprisonment. However, the probation office prepared a presentence investigation report (“PSR“) uncovering for the first time Bankhead‘s 1990 juvenile adjudication for armed robbery under Illinois law. The Illinois armed robbery statute provided in relevant part:
“A person commits armed robbery when he or she violates Section 18-1 [establishing elements of unarmed robbery] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.”
At sentencing, the district court offered to allow Bankhead to withdraw his guilty plea because, at the time of his plea, he had not been informed of the correct maximum sentence—now life—nor had he been informed of the fifteen-year mandatory minimum sentence. See
Bankhead‘s original brief challenged this sentence on two grounds. First, Bankhead argued the district court erroneously relied on sparse and unclear documentary records in determining that the juvenile adjudication triggered the fifteen-year mandatory minimum sentence. Second, Bankhead contended
A defendant who violates
In Descamps, however, the Supreme Court clarified that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.” 133 S.Ct. at 2282; see also Tucker, 740 F.3d at 1181-82, 2014 WL 304740, at *3 (overruling circuit precedent “to the extent that it authorizes applying the modified categorical approach to anything other than explicitly divisible portions of statutes“). In other words, the modified categorical approach may be used only “when a prior conviction is for violating a so-called ‘divisible statute‘” which “sets out one or more elements of the offense in the alternative.” 133 S.Ct. at 2281. According to the Supreme Court, consultation of Shepard documents is warranted only when the statute of conviction embraces several alternative bases for conviction, not all of which qualify as an ACCA predicate, and the sentencing court must determine “which statutory phrase was the basis for conviction.” Id. at 2285-86 (quoting Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)).
Here, the Illinois statute of conviction is indivisible regarding the type of dangerous weapon carried. The hallmark of divisibility is the enumeration of alternative bases for conviction separated by the disjunctive “or.” Here, unlike the ACCA, the statute does not enumerate a list of different weapons sufficient to sustain a conviction. Rather, the statute only requires that the robbery was committed with a “dangerous weapon“—an indivisible term. As the Supreme Court did in Descamps, we conclude that “[t]he modified approach thus has no role to play in this case” given that “[t]he dispute here does not concern any list of alternative elements” as to the type of dangerous weapon carried. Descamps, 133 S.Ct. at 2285.
Because the dangerous-weapon element of the Illinois statute is textually indivisible, we next conduct a categorical elements-based inquiry. See Descamps, 133 S.Ct. at 2283. We must determine whether Bankhead‘s adjudication under the indivisible dangerous-weapon element necessarily means that he was adjudicated for use or carrying of a firearm, knife, or destructive device such that the adjudication constitutes an ACCA predicate offense. We hold it does not.
The dangerous-weapon element in the Illinois statute is broader than the ACCA‘s firearm, knife, or destructive device requirement. While the dangerous-weapon element of the Illinois statute can be satisfied by the carrying of a firearm, knife, or destructive device, the dangerous-weapon element can also be satisfied by other objects that would not satisfy the ACCA requirement. See Illinois v. Hill, 47 Ill. App.3d 976, 6 Ill.Dec. 41, 362 N.E.2d 470, 471 (1977) (holding that an “instrumentality used to threaten a victim of a robbery [that] is capable of being used in a manner to cause harm or injury thereby compels a finding that the instrumentality is a dangerous weapon“); Illinois v. Ratliff, 22 Ill.App.3d 106, 317 N.E.2d 63, 64 (1974) (observing that “a brick, a ball bat, or anything else which could be utilized in a manner dangerous to the physical well-being of the individual threatened” could be a dangerous weapon). As in Descamps, this case concerns “a simple discrepancy” between the ACCA (i.e., the narrower “firearm, knife, or destructive device” requirement) and the state statute of conviction (i.e., the broader dangerous-weapon element). 133 S.Ct. at 2285. Our inquiry, then, ends with the categorical observation that Bankhead‘s crime of conviction does
For these reasons, we reverse and remand for resentencing.1
LOKEN, Circuit Judge, concurring.
As I am bound by the en banc court‘s interpretation of Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), in United States v. Tucker, 740 F.3d 1177, 2014 WL 304740 (8th Cir. Jan. 29, 2014), I concur in the judgment.
GRUENDER
Circuit Judge