7th Circuit affirms enhanced sentencing despite SCOTUS changes to Armed Career Criminal Act

A “violent felon” will not have his enhanced sentence vacated after the 7th Circuit Court of Appeals determined he still met the provisions of the Armed Career Criminal Act despite a 2015 Supreme Court order that found part of the statute unconstitutionally vague.

In August 2001, a Gary police officer stopped a van Donnie Johnson was driving. During the stop, the officer observed Johnson move from the front seat to the middle of the van.

After arresting Johnson on an outstanding warrant, the officer searched the van and found a loaded .22 caliber handgun. A federal jury subsequently convicted Johnson of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).

Because Johnson had four prior convictions, the U.S. District Court for the Northern District of Indiana found that he qualified for a sentence enhancement under the ACCA, which establishes a mandatory minimum sentence of 15 years when a defendant is convicted of being a felon in possession of a firearm and has at least three convictions that qualify as “violent felon[ies]” or “serious drug offense[s].”

Johnson’s prior convictions included a 1982 conviction for distribution of a controlled substance, a 1984 burglary conviction, a 1989 criminal deviate conduct conviction and a 1990 conviction for inflicting bodily injury during an escape.

The district court subsequently sentenced Johnson to just shy of 23 years in prison.

But in 2015, the Supreme Court of the United States decided in Samuel Johnson v. United States, 576 U.S. 591 (2015), that the so‐called “residual clause” of the ACCA was unconstitutionally vague. Based on the SCOTUS decision, Johnson filed a pro se motion in the district court in 2016 to vacate his sentence, arguing his criminal deviate conduct and escape convictions qualified as “violent felonies” only under the ACCA’s now‐invalidated residual clause and that, as a result, he was entitled to resentencing. 

The district court disagreed and denied his motion, reasoning that both convictions qualified as violent felonies under subpart (i), the “force provision” of the definition because they involved the use of force against another. Though the court declined to issue a certificate of appealability in tandem with its opinion and order, the 7th Circuit subsequently granted Johnson’s request for such a certificate.

On appeal, the 7th Circuit held that Indiana’s criminal deviate conduct offense is divisible, and that the forcible compulsion variety of that offense requires sufficient force and intent to qualify as a “violent felony” under the ACCA.

“Because petitioner has two prior convictions which he concedes qualify as predicate offenses under the ACCA and because we hold that his criminal deviate conduct conviction is also a violent felony under the ACCA, we need not examine whether his escape conviction constitutes a predicate offense,” 7th Circuit Senior Judge Joel Flaum opined for the court. “Petitioner met the criteria for the ACCA’s sentencing enhancement, so the imposition of his sentence under the statute was appropriate.”

The case is Donnie Johnson v. United States of America, 17-1912.

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