7th Circuit vacates plea, reverses 15-year sentence for illegal possession of a firearm

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An Indiana man’s 15-year sentence for possession of a firearm in violation of the Armed Career Criminal Act has been reversed after the 7th Circuit Court of Appeals determined one of the man’s prior convictions did not constitute a violent felony and, thus, did not qualify him for a sentence above the 10-year statutory maximum.

In United States of America v. Marvin L. Bennett, 16-3769, Marvin Bennett pleaded guilty to possession of a firearm by a felon in violation of 18 U.S. Code Section 922(g)(1), an offense that normally carries a maximum of 10 years in prison. However, under the Armed Career Criminal Act, a person who violated U.S.C. 922(g)(1) after accumulating at least three previous “violent felonies” must be sentenced to a minimum of 15 years in prison.

Bennett’s plea agreement provided that he would be sentenced to 15 years, but prior to his sentencing hearing, he argued that his previous conviction for violating Indiana Code 35-44-3-3 – which punishes the offense of resisting law enforcement– was not a crime of violence, thus disqualifying the 15-year sentence. Chief Judge Theresa L. Springmann of the U.S. District Court for the Northern District of Indiana disagreed and sentenced Bennett according to the terms of his plea agreement, prompting the instant appeal.

Writing for a panel of the 7th Circuit Court of Appeals in a Wednesday opinion, Judge Richard Posner noted that violation of I.C. 35-44-3-3 constitutes a misdemeanor offense, so had Bennett only violated that portion of state law, he would not be subject to the 15-year sentence. However, Bennett was prosecuted pursuant to subsection (b)(1) of the statute by “inflict(ing) bodily injury on or otherwise caus(ing) bodily injury to another person,” prompting Springmann to conclude that Bennett’s conduct qualified under the ACCA.

However, Posner went on to write that “inflict(ing) bodily injury” does not necessarily connote violence.

“Suppose a person is handcuffed by a police officer, tugs in the hope of squeezing his hands through the cuffs, and accidentally causes the officer to trip and fall as a result of the tugs,” Posner wrote. “The person’s effort thereby to avoid arrest would be resisting law enforcement, but would not be considered violence or even threatening under 18 U.S.C. section 924(e)(2)(B)(i). The government has failed in this case to prove a violent felony.”

Based on that conclusion, the 7th Circuit reversed the district court’s judgment, vacated the plea agreement and remanded the case to the district court for further consideration.


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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: Here are the two research papers: 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.