UNITED STATES of America, Plaintiff-Appellee, v. Randall JENNINGS, Defendant-Appellant.
No. 16-2861
United States Court of Appeals, Seventh Circuit.
Argued April 4, 2017, Decided June 16, 2017
860 F.3d 450
Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, Colleen McNichols Ramais, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL, for Defendant-Appellant.
ROVNER, Circuit Judge.
Defendant Randall Jennings pleaded guilty to being a felon in possession of a firearm. See
I.
On August 22, 2015, an individual attempted to purchase prescription Klonopin pills from Jennings in Hudson, Wisconsin. The transaction went awry for the purchaser when Jennings put a gun to his head and Jennings’ girlfriend proceeded to steal his money from his truck. After the victim reported the robbery, local police stopped Jennings’ car. Nearby, police found a loaded semi-automatic Ruger handgun that Jennings’ girlfriend had thrown from his vehicle shortly before he was pulled over. Jennings was arrested and indicted for possessing a firearm following a felony conviction, in violation of
As relevant here, Jennings’ criminal history included a prior conviction in Minnesota for simple robbery along with two additional convictions in that same state for felony domestic assault. The probation officer‘s pre-sentence report (both original and as amended) treated those convictions as crimes of violence for purposes of the armed career criminal provisions of the Criminal Code and the Sentencing Guidelines. See
II.
Whether any of Jennings’ prior convictions qualify as crimes of violence, and in sufficient number to trigger the statutory and Guidelines enhancements for career offenders, present legal questions as to which our review is de novo. E.g., United States v. Meherg, 714 F.3d 457, 458 (7th Cir. 2013).
Our focus shall be on Jennings’ prior convictions for simple robbery and felony domestic violence. The district court relied in part on Jennings’ prior convictions under the Minnesota terroristic threat statute,
The ACCA, in relevant part, specifies that a person convicted of being a felon in
The armed career criminal guideline specifies an elevated offense level of 34 and a criminal history category of VI for a defendant who is subject to an enhanced statutory minimum sentence pursuant to
Our assessment of the two state offenses at issue in this appeal entails a categorical inquiry. The facts underlying Jennings’ prior convictions are irrelevant to our evaluation; our one and only consideration is whether each of the statutes pursuant to which Jennings was convicted has as an element the use, attempted use, or threatened use of physical force against the person of another. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990); United States v. Maxwell, supra, 823 F.3d at 1060-61.
Curtis Johnson v. United States, supra, 559 U.S. at 140, 130 S.Ct. at 1271,3 defines “physical force” to mean “violent force,” in other words, “force capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130 S.Ct. at 1271 (emphasis in original). The mere touching of another person, which is all the force that the prior state conviction at issue in Curtis Johnson required, is not sufficient to satisfy the ACCA. Id. at 139, 130 S.Ct. at 1270. Curtis Johnson thus requires us to consider whether the Minnesota statutes under which Jennings was convicted categorically require the use or threatened use of violent physical force as that case defines it.
A.
We begin with the offense of simple robbery.
Jennings urges us to overrule Maxwell, arguing that we overlooked a parallel line of Minnesota cases that, in contrast to Stanifer, appears not to require the use or threatened use of substantial physical force. He notes that in State v. Burrell, 506 N.W.2d 34 (Minn. Ct. App. 1993), the Minnesota Court of Appeals said that “[m]ere force suffices for the simple robbery statute,” id. at 37, and Jennings equates “mere force” with de minimis force that would neither inflict pain or injury nor instill fear of pain or injury. By way of illustration, he highlights a series of cases in which Minnesota courts have expressly found relatively modest physical contact with or injury to a victim sufficient to satisfy the force element of robbery. See State v. Slaughter, 691 N.W.2d 70, 76 (Minn. 2005) (snatching chains from victim‘s neck, leaving scratches); State v. Nelson, 297 N.W.2d 285 (Minn. 1980) (per curiam) (jostling and grabbing victim and pulling on his jacket); Duluth St. Ry. Co. v. Fidelity & Deposit Co. of Md., 136 Minn. 299, 161 N.W. 595 (1917) (“gentle but firm” crowding of victim inside of elevator).
This line of argument has divided judges in the District of Minnesota. Compare United States v. Pettis, 2016 WL 5107035, at *3 (D. Minn. Sept. 19, 2016) (holding simple robbery not a crime of violence), appeal filed, No. 16-3988 (8th Cir. Oct. 20, 2016), with United States v. Willis, 2017 WL 1288362, at *3 & n.3 (D. Minn. April 6, 2017) (holding simple robbery does constitute crime of violence); United States v. Taylor, 2017 WL 506253, at *5-*7 (D. Minn. Feb. 7, 2017) (same), appeal filed, No. 17-1760 (8th Cir. April 10, 2017); United States v. Pankey, 2017 WL 1034581, at *3 n.2 (D. Minn. Mar. 16, 2017) (same). See also Ward v. United States, 2017 WL 2216394, at *5-*7 (D. Id. May 18, 2017) (deeming Minnesota simple robbery to be crime of violence). But we are not persuaded by Jennings’ argument.
Second, neither of the two additional cases that Jennings and other defendants point to as confirmation that de minimis force is sufficient to sustain a conviction for simple robbery in Minnesota—Nelson or Duluth St. Ry.—really stands for that proposition at all.
In Nelson, the defendant and his accomplice, both adults, set out to rob a 13-year-old boy they saw alighting from a bus because he appeared to have “lots of money.” Having resolved to “get[]” the boy, they proceeded to follow, “jostle[]” and “grab[]” him. As the defendant pulled on the victim‘s jacket, the boy managed to slip out of it and run to his family‘s nearby restaurant for help. The boy‘s father later came upon the two perpetrators going through the pockets of the jacket. In appealing his conviction for simple robbery, the defendant argued that the jury should have been instructed on the lesser included offenses of misdemeanor and felony theft, because his use of force was so minimal as to negate the notion that his victim had acquiesced to that force. The Minnesota Supreme Court wasted few words on this argument, agreeing with the trial court that “there was no rational basis for a finding that defendant‘s use of force did not cause the victim to acquiesce in the taking of the property.” 297 N.W.2d at 286.
What is apparent from the facts of Nelson is that the defendant and his accomplice intended to employ substantial physical force in order to relieve a minor of his money; the defendant‘s act of pulling on the victim‘s jacket was but one manifestation of that intent. As it happened, that one tug on the jacket pre-terminated the encounter, because it gave the young victim the opportunity to escape his assailants and seek help. It is a fair, and perhaps inevitable, inference that the boy ran from his assailants in fear for his safety, sacrificing his jacket (which the defendant admitted was not what he and his accomplice were after) in order to avoid pain and/or injury. As the district court in Taylor put it, “The force in Nelson was more than de minimis; two adults pursing a 13-year-old with the intention of ‘getting him,’ following him and grabbing him, constitutes force—and surely the threat of force—capable of causing physical pain, if not also injury.” 2017 WL 506253, at *5.
Duluth St. Ry. is barely relevant, let alone instructive. The issue in that civil case was whether an insurance policy‘s coverage as to robbery included pickpocketing. Thieves had exerted “gentle but firm” pressure to “crowd” (i.e., closely surround) the insured on an elevator, and
It is true enough, however, that contemporary Minnesota cases do sustain robbery convictions based on the use (or threatened use) of relatively limited force or infliction of minor injuries. See Slaughter, 691 N.W.2d at 72, 76 (snatching gold chains from victim‘s neck, leaving scratches: “these scratches provide sufficient evidence of the ‘use of force’ necessary to sustain a conviction of simple robbery“); State v. Nash, 339 N.W.2d 554, 557 (Minn. 1983) (“if a defendant pushes a victim against a wall and takes his wallet, then the defendant has committed robbery, not theft from the person“) (citing
But in suggesting that the force employed must be of such a degree as to
For all of these reasons, we remain convinced that Maxwell was correctly decided, and that Minnesota simple robbery constitutes a crime of violence for purposes of
B.
This brings us to Jennings’ two convictions for felony domestic assault. Minnesota law provides that an individual is guilty of misdemeanor domestic assault if he takes one of the following actions against a family member: “(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another.”
Having in mind that what Curtis Johnson defines as violent force is the use or threatened use of force “capable of causing physical pain or injury to another person,” 559 U.S. at 140, 130 S.Ct. at 1271, one may readily conclude, as we did in
Jennings’ first contention is that the domestic assault statute, although it requires the infliction of bodily harm on the victim (or instilling the fear of such harm), does not require an act of physical force to be the agent of such harm. As our colleagues in the First Circuit put it when confronted with comparable statutory language, “the text [of the statute] ... speaks to the ‘who’ and the ‘what’ of the offense, but not the ‘how,’ other than requiring ‘intent.‘” Whyte v. Lynch, 807 F.3d 463, 468 (1st Cir. 2015). Because the statute does not speak to the means of inflicting harm, Jennings believes it possible that one could commit domestic assault in Minnesota without actually employing physical force. By way of illustration, he suggests that a parent might be guilty of domestic assault if he inflicts harm on his child by withholding food. Jennings Br. 23.
The notion that an offense cannot qualify as a violent crime unless the underlying statute expressly requires both the infliction of bodily harm and the employment of physical force to inflict that harm is one that has found favor in a number of circuits. See, e.g., Whyte, 807 F.3d at 468-69, 471 (concluding that Connecticut third-degree assault does not constitute a crime of violence under
But this is a line of reasoning that we have considered and rejected on multiple occasions. See LaGuerre v. Mukasey, 526 F.3d 1037, 1039 (7th Cir. 2008) (per curiam); United States v. Rodriguez-Gomez, 608 F.3d 969, 973-74 (7th Cir. 2010); De Leon Castellanos v. Holder, 652 F.3d 762, 766-67 (7th Cir. 2011); United States v. Waters, 823 F.3d 1062, 1065-66 (7th Cir.), cert. denied, U.S. , 137 S.Ct. 569, 196 L.Ed.2d 448 (2016); United States v. Bailey, 676 Fed.Appx. 606, 607, 2017 WL 716848, at *1 (7th Cir. Feb. 23, 2017) (non-precedential decision). These cases reason that a criminal act (like battery) that causes bodily harm to a person necessarily entails the use of physical force to produce the harm. See De Leon Castellanos, 652 F.3d at 766; Waters, 823 F.3d at 1065-66. Obviously this is true when the defendant inflicts the harm directly by making forceful physical contact with the victim: punching or kicking him, for example. See Castleman, supra, 134 S.Ct. at 1415 (majority opinion). It is also true, though less obviously so, when the defendant deliberately exposes the victim to a harmful agent (e.g., a toxin, lethal biological agent, or hidden explosive) without actually making contact with the victim‘s person, let alone in a way typically thought of as violent. Delivering the agent (slipping poison into the victim‘s drink or secreting the explosive in the victim‘s bag) may itself involve only a minimal degree of physical force, but the proper focus here is on the physical force inherent in the harmful agent itself—force that works a direct and potentially devastating physical harm on the body of the victim. Id. (“The ‘use of force’ in Castleman‘s example is not the act of ‘sprink[ling]’ the poison [into the victim‘s drink]; it is the act of employing poison knowingly as a device to cause harm.“); see also, e.g., United States v. De La Fuente, 353 F.3d 766, 771 (9th Cir. 2003) (concluding that mailed threat to injure by means of anthrax poisoning qualifies as a threat to employ violent force, in that “the [anthrax] bacteria‘s physical effect on the body is no less violently forceful than the effect of a kick or a blow“). The same is true when the defendant uses guile or deception to trick his victim into consuming the harmful agent: although he is using intellectual force to deploy the harmful agent, the agent itself will, through a physical process, work a concrete harm on the victim. See id.; Waters, 823 F.3d at 1066; De Leon Castellanos, 652 F.3d at 766-67; see also United States v. Calderon-Pena, 383 F.3d 254, 270 (5th Cir. 2004) (en banc) (Smith, J., dissenting) (“If someone lures a poor swimmer into waters with a strong undertow in order that he drown, or tricks a victim into walking toward a high precipice so that he might fall,” for example, the offender “has at least attempted to make use of physical force against the person of the target, either through the action of water to cause asphyxiation or by impact of earth on flesh and bone. However remote these forces may be in time or distance from the defendant, they were still directed to work according to his will, as surely as was a swung fist or a fired bullet.“).
Jennings’ hypothetical as to the denial of food to a child is, as a matter of logic, a more challenging one to place within the category of violent offenses in two respects: (1) the mechanism of harm is the withholding of something that is necessary to sustain life rather than the deployment of something (be it a swing of the arm or the poisoning of a drink) that actively causes pain or injury; and (2) it is more difficult to identify the particular “force” involved. To take the latter point first, if a defendant has the ability to withhold life-sustaining food or medication, then the victim is likely disabled from sustaining himself by a circumstance like age, infirmity, or captivity—a vulnerability that renders him subject to the defendant‘s control. The relevant “force” may simply be the exertion of that control with the aim of physically harming the victim. And, to take the second point, why should it matter that the mechanism of harm is negative (pinching off the victim‘s oxygen supply or withholding an EpiPen® in the midst of a severe allergic reaction) or positive (swinging a fist or administering a poison)? If the natural and intended result of that force is
The dispositive point against Jennings’ argument, however, is that he is unable to cite any cases supporting his theory that withholding food from one‘s child might be prosecuted as domestic assault in Minnesota. A likely explanation is that other Minnesota statutes cover such scenarios. See
As the government reminds us, the Supreme Court has cautioned us not to allow our “legal imagination[s]” to roam too freely in postulating what types of conduct theoretically might be prosecuted under a state statute for purposes of determining whether the offense as defined qualifies as a predicate offense for adverse federal action. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). The issue before the Court in Duenas-Alvarez was whether a conviction under a California statute prohibiting the taking of a vehicle without the owner‘s consent constituted a generic “theft offense” under
[T]o find that a state statute creates a crime outside the generic version of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
549 U.S. at 193, 127 S.Ct. at 822; see also Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013). We have heeded this advice, as have other courts, in the related context assessing whether a predicate state crime has, as an element, the use of force as defined by Curtis Johnson. See Maxwell, 823 F.3d at 1062 (“Maxwell cannot rely on fanciful hypotheticals not applicable in real world contexts (apart from law school exams) to show that the Minnesota statute is broader than the Sentencing Guidelines[‘]” definition of a crime of violence); see also, e.g., Hill, 832 F.3d at 141 n.8; United States v. Ceron, 775 F.3d 222, 229 (5th Cir. 2014) (per curiam); United States v. Ayala-Nicanor, 659 F.3d 744, 748, 752 (9th Cir. 2011).
As we have nothing more than speculation to support the notion that an act like withholding food or medicine realistically might be prosecuted as domestic assault in Minnesota, we may discount this possibility. Maxwell, 823 F.3d at 1062. Because domestic assault, as defined, requires the infliction of bodily harm (or the threat of such harm) and typically such harm will be
In his reply brief, Jennings defaults to the same point he makes with respect to simple robbery in Minnesota—that even minor injuries will suffice as bodily harm, and that minimal injuries are insufficient to show that strong, i.e., “violent,” physical force was employed as Curtis Johnson demands. And that point we have already dealt with above.
III.
As Jennings had one prior conviction for simple robbery and two prior convictions for felony domestic assault, and these constitute crimes of violence for all of the reasons we have discussed, the district court appropriately treated him as an armed career criminal. Jennings was, consequently, subject to the 15-year minimum prison term mandated by the ACCA and to the various enhancements specified by the armed career criminal guideline.
AFFIRMED.
ILANA DIAMOND ROVNER
UNITED STATES CIRCUIT JUDGE