7th Circuit certifies question of what constitutes ‘arson’ to IN Supreme Court, stays appeal challenging enhanced sentence for felon-in-possession conviction

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The 7th Circuit Court of Appeals is asking the Indiana Supreme Court to provide guidance on what constitutes “arson” under state law.

The federal appellate court posed that question to the state Supreme Court on Wednesday in United States of America v. Sergio Gamez, 22-2278, certifying this question to the justices: “Under Indiana law, need the state prove that the defendant burned property in order to obtain a conviction for arson? Or is it sufficient to prove that the defendant more generally caused damage to property ‘by means of fire, explosive, or destructive device?’”

That question stems from a case that began in August 2019, when police responded to a reported kidnapping at a gas station near Hammond and found Sergio Gamez in possession of a Winchester rifle. At the time, Gamez was on probation for a prior robbery conviction.

Just over a week earlier, Gamez had removed his GPS-tracking ankle bracelet, so a LaPorte County Community Corrections officer filed charges for escape.

Gamez was also charged with being a felon in possession, to which he pleaded guilty.

Three years later at the sentencing hearing, the government pointed to Gamez’s criminal history to support a 15-year minimum sentence under the Armed Career Criminal Act. Gamez had three prior state convictions: two for robbery and one for aiding and abetting arson.

While Gamez didn’t dispute that his two robbery convictions qualified as violent felonies, he disagreed that the conviction for aiding and abetting arson qualified.

The Indiana Northern District Court rejected his position and found him to be an armed career criminal, sentencing him to 15 years.

Gamez challenged the district court’s application of the ACCA enhancement on appeal.

The 7th Circuit first determined that the lower court was right to conclude Gamez’s three prior Indiana felony convictions occurred on different occasions, and that the state’s choice to charge Gamez as an aider and abettor of arson and not a principal does not independently preclude the ACCA enhancement.

“No reasonable jury could have concluded that Gamez’s convictions — robbery in 2009, aiding and abetting arson in 2011, and robbery in 2016 — occurred on the same occasion,” Judge Michael Scudder wrote.

But the court did not reach a conclusion on the question of whether his arson conviction qualified as a violent felony.

Scudder wrote that if Indiana arson is a violent felony within ACCA’s definition, then Gamez’s conviction would qualify for the enhancement even though the state charged him as an aider and abettor and not a principal.

Conversely, “If we adopted Gamez’s view — that aiding and abetting arson under Indiana law does not qualify as a crime of violence for purposes of ACCA’s sentencing enhancement — we would necessarily also conclude that aiding and abetting any crime of violence in Indiana is not a crime of violence,” Scudder added.

That brought the appellate court to the question of whether arson under Indiana law is broader than the generic definition in federal law.

“The question of whether Indiana arson requires a fire or burning is a matter of Indiana law that is essential to resolving Gamez’s appeal,” Scudder wrote. “We therefore respectfully request that the Indiana Supreme Court exercise its discretion to answer” the 7th Circuit’s proposed certified question.

The case was docketed in the Indiana Supreme Court on Thursday as In the Matter of the Certified Question: United States of America v. Sergio Gamez, 23S-CQ-00220.

The 7th Circuit stayed all proceedings in the case while the state justices consider its question.

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