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Man loses challenge to robbery being a violent felony under ACCA

August 15, 2016

A man serving 15 years for drug and gun charges thanks to three prior convictions of robbery in Indiana could not convince the 7th Circuit Court of Appeals that robbery under Indiana law involving only the fear element isn’t a violent felony under the Armed Career Criminal Act.

Darrell Duncan was arrested in May 2015 on outstanding warrants and pleaded guilty to a single count of being a felon and unlawful user of controlled substances in possession of a firearm and ammunition.  Duncan had three prior Indiana state convictions for robbery. In Indiana, robbery is taking property from another person either “by using or threating the use of force on any person” or “by putting any person in fear.” Because the district court found those prior convictions were “violent felonies” under the ACCA, he received an enhanced sentence.

Under the ACCA, a “violent felony” includes the element of use, attempted use, or threatened use of physical force against the person of another.” The issue for the 7th Circuit to decide is whether the Indiana robbery statute includes this element.

Duncan argued that because a person can be convicted under Indiana law for putting another person in fear, the offense does not include the use, attempted use, or threatened us of physical force against another as an element.

The 7th Circuit has previously held that even without actual force, a robbery intrinsically involves “conduct that presents a serious potential risk of injury to another,” making it a crime of violence under the elements clause and under the Sentencing Guidelines’ residual clause.

He also argued that his robbery convictions cannot qualify as violent felonies because Indiana’s statute requires only that the victim be in fear of bodily injury, not that the defendant actually threatened to use physical force causing that fear, but the 7th Circuit rejected his claim based on caselaw.

“In the ordinary case, robbery by placing a person in fear of bodily injury under Indiana law involves an explicit or implicit threat of physical force and therefore qualifies as a violent felony under § 924(e)(2)(B)(i),” Judge David Hamilton wrote in United States of America v. Darrell L. Duncan, 15-3485.
 

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