An Indiana man sentenced to 15 years under the Armed Criminal Career Act has lost his appeal of his sentence after the 7th Circuit Court of Appeals determined he met the requirements of three prior violent offenses to warrant the Act’s mandatory 15-year minimum.
In United States of America v. John Foster, 17-1703, John Foster pleaded guilty to illegal gun possession and was sentenced to 15 years in prison after the district court determined he had three prior convictions for a “serious drug offense” and two “violent felonies,” pursuant to the ACCA. But on appeal, Foster argued his conviction of Class B felony burglary of a dwelling did not qualify as a violent felony, so he did not meet the requirements for the mandatory imposition of a 15-year sentence.
However, the 7th Circuit Court of Appeals upheld Foster’s sentence in a Friday per curiam opinion, writing his argument was foreclosed by United States v. Perry, 862 F.3d 620, 624 (7th Cir. 2017). In Perry, the court determined Indiana Class C burglary qualified as a violent felony because it is “at least as narrow as generic burglary” as defined in Taylor v. United States, 495 U.S. 575, 598 (1990). Taylor defined burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”
At the time of Foster’s conviction, the offense of burglary in Indiana was elevated to a Class B felony if it was committed while armed with a deadly weapon, or if the building was a dwelling.
“Because Class B burglary is a narrower, more serious offense than Class C burglary, it must therefore also be a violent felony,” the court wrote.
Foster, however, argued the word “dwelling” in the Indiana offense is broader than Taylor’s “building or structure,” thus disqualifying his Class B conviction as a predicate offense under the ACCA.
“But Foster’s argument about the breadth of ‘dwelling’ reads out of the burglary statute the limitation that the crime is a Class B felony only ‘if the building or structure is a dwelling,’” the court wrote. “Class B burglary requires that the location burglarized by both a ‘building or structure’ and a ‘dwelling.’”
“Foster concedes that Perry correctly decided that all of the locations that Indiana considers to be a ‘building or structure’ are included in the scope of generic burglary,” the court continued. “So too must the subset of those locations that are also dwellings. Thus Perry fully resolves this case: Indiana Class B burglary is a violent felony and the district court therefore properly applied ACCA’s enhancement to Foster’s sentence.”