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7th Circuit: Indiana burglary is predicate offense under Armed Career Criminal Act

July 6, 2017

An Indiana district court judge properly enhanced a man’s sentence following his convictions of being a felon in possession of a firearm and ammunition because the man’s two prior felony convictions of robbery in Indiana qualify as predicate offenses under the Armed Career Criminal Act, the 7th Circuit Court of Appeals ruled Thursday.

In May 2013, Jason Perry bought a box of 12-gauge shotgun shells, which he used later that day to shoot and kill his ex-girlfriend, Jessica Tice. Police arrested Perry shortly after the shooting and found the murder weapon and ammunition in his truck.

Perry was convicted of murder in state court and sentenced to 85 years, with 15 years suspended to probation. Meanwhile, in the U.S. District Court for the Southern District of Indiana, Perry pleaded guilty to two counts under U.S.C. Section 922(g)(1), one for being a felon in possession of a firearm, and one for being a felon in possession of ammunition.

At Perry’s federal sentencing, Judge Richard L. Young found he qualified for an enhanced sentence under the Armed Career Criminal Act because three of his prior convictions were for “violent felonies.” Specifically, Perry had been previously convicted twice for burglary in Indiana, while the third conviction was for battery resulting in serious bodily injury.

The district court imposed a 360-month sentence on each count, with the sentences running concurrently to each other and to Perry’s state sentence. On appeal in United States of America v. Jason Perry, 16-1535, Perry argued the enhancement was improper because Indiana burglary is not an ACCA predicate offense. Further, he argued the two felon in possession counts were duplicative and, thus, should have been merged at sentencing.

Specifically, Perry said Indiana burglary may be committed in outdoor, fenced-in areas, making it broader than the definition of generic burglary under the ACCA, which the Supreme Court has described as being committed only in “‘a building or enclosed space.’” Perry pointed to the case of James v. United States, 550 U.S. 192 (2007), which found that because burglary under Florida law allows the act to be committed in curtilage, it was broader than generic burglary.

But Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, sitting by designation, wrote in a Thursday opinion that Perry’s argument missed the mark because unlike its Florida counterpart, Indiana’s burglary statute requires a defendant to enter a wholly enclosed area.

“Perry brings no Indiana case to our attention, and we are aware of none, where, as in Florida, a defendant was convicted of burglary for entering a fenced area that was not completely enclosed,” Feinerman said. “… In sum, Perry ‘has not identified,’ and we have not found, ‘any case in which (Indiana’s) judiciary affirmed a (burglary) conviction that penalized acts’ inconsistent with the generic offense of burglary.”

Finally, Feinerman found Perry’s conduct “clearly supports the two separate counts” of being a felon in possession of a firearm and ammunition, respectively.
 

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