United States v. Perry, No. 16-1635 (7th Cir. 2017)
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Perry bought shotgun shells at a Wal‐Mart. Hours later, police were dispatched to a restaurant, where Perry was arguing with his ex‐girlfriend, Tice. The officers asked Perry to leave. Perry complied, but returned, confronted Tice in the parking lot, and shot her to death in front of their son and Tice’s mother. The police quickly arrested Perry and found the murder weapon and ammunition in his truck. Petty was convicted of murder in state court. In federal court, Perry pleaded guilty to two counts under 18 U.S.C. 922(g)(1), as a felon in possession of a firearm and of ammunition. The court found that Perry qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e), because he had three prior “violent felony” convictions: two for burglary in Indiana, and one for battery resulting in serious bodily injury. Perry argued at sentencing that the two felon-in-possession counts were identical and should merge so that the sentences would run concurrently. Without explicitly addressing that argument, the court imposed a 360‐month sentence on each count, to run concurrently to each other and to the state sentence. The Seventh Circuit affirmed. Perry’s two burglary convictions were valid ACCA predicate offenses. The two section 922(g)(1) counts were not multiplicitous; the evidence showed that the gun and ammunition were acquired separately.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1635 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JASON PERRY, Defendant Appellant. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 13 cr 57 — Richard L. Young, Judge. ____________________ ARGUED NOVEMBER 9, 2016 — DECIDED JULY 6, 2017 ____________________ Before BAUER and KANNE, Circuit Judges, and FEINERMAN, District Judge. * FEINERMAN, District Judge. Jason Perry pleaded guilty to two counts under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm and ammunition. The district court sentenced him to 360 months’ imprisonment upon finding that three of his prior felonies, including two burglary con * Of the Northern District of Illinois, sitting by designation. 2 No. 16 1635 victions under Indiana law, qualified as “violent felonies” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Perry argues on appeal that the enhancement was improper because Indiana burglary is not an ACCA predi cate offense. He also contends that the two felon in posses sion counts are duplicative and should have been merged at sentencing. We affirm. I. Background At approximately 8:10 a.m. on May 22, 2013, Perry bought a box of 12 gauge shotgun shells at a Wal Mart in Princeton, Indiana. About three hours later, police were dis patched to a Mexican restaurant, where Perry was arguing with his ex girlfriend Jessica Tice about visitation with their 13 year old son. The officers asked Perry to leave, and he drove away in his pickup truck. He returned less than an hour later, confronted Tice in the restaurant parking lot, and shot her to death with a 12 gauge shotgun in front of their son and Tice’s mother. The police arrested Perry shortly thereafter, and found the murder weapon and ammunition in his truck. Petty was convicted of murder in state court and re ceived an 85 year sentence, with fifteen years suspended to probation. In federal court, Perry was charged with two counts under § 922(g)(1)—one for being a felon in possession of a firearm, and the other for being a felon in possession of ammunition—and he pleaded guilty to both. At sentencing, the district court found that Perry qualified for an enhanced sentence under ACCA because he had three prior convic tions for a “violent felony” as defined in § 924(e)(2)(B). Two of those convictions were for burglary in Indiana, and the third was for battery resulting in serious bodily injury. No. 16 1635 3 Perry argued at sentencing that the two felon in posses sion counts were identical and should merge. The remedy he suggested was for the court to make the sentences on the two counts run concurrently. Without explicitly addressing Perry’s merger argument, the district court imposed a 360 month prison sentence on each count, running those sen tences concurrently to each another and to the state sentence. II. Discussion ACCA imposes a fifteen year minimum sentence on de fendants convicted under § 922(g)(1) who at the time of the offense had at least three prior convictions for a “violent fel ony.” 18 U.S.C. § 924(e)(1). ACCA defines “violent felony” in relevant part as any felony “that … is burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). The term “burglary” in § 924(e)(2)(B)(ii) does not encom pass all burglaries, but only “generic” burglary, which the Supreme Court has defined as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). Determining whether burglary under a given State’s law is encompassed by § 924(e)(2)(B)(ii) pre sents a categorical question that focuses exclusively on the state crime’s statutory definition. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). “[I]f the [state] statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form.” Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Indiana law defines burglary as “break[ing] and en ter[ing] the building or structure of another person, with in 4 No. 16 1635 tent to commit a felony or theft in it.” Ind. Code § 35 43 2 1. This definition is nearly identical to that of “generic” burgla ry—a congruence that led us in United States v. Vogt, 588 F. App’x 497 (7th Cir. 2015), to hold that Indiana burglary qual ifies as a predicate “burglary” under ACCA. In fact, we held that it would be “frivolous” to contend otherwise. Id. at 498. Yet Vogt is non precedential, and Perry urges us to chart a different course here, arguing that Indiana burglary is broader than generic burglary with respect to where it may be committed. Indiana burglary may be committed in out door, fenced in areas. See McCovens v. State, 539 N.E.2d 26, 29 (Ind. 1989) (“The fence surrounding the business was a ‘structure’ as contemplated by Ind. Code § 35 43 2 1.”); Gray v. State, 797 N.E.2d 333, 335–36 (Ind. App. 2003) (holding that a fenced area need not adjoin a building or completely surround a business premises to qualify as a “structure” un der the Indiana burglary statute); Joy v. State, 460 N.E.2d 551, 558 (Ind. App. 1984) (holding that “the fence surrounding the Leland Lumber Company was a ‘structure’ as contem plated by our burglary statute”). Perry contends that a state burglary statute that treats a fenced area as a “structure” necessarily “sweeps more broadly” than generic burglary, Descamps, 133 S. Ct. at 2283, which according to the Supreme Court may be committed only in “a building or enclosed space,” Shepard v. United States, 544 U.S. 13, 15–16 (2005). The strongest support for Perry’s position comes from James v. United States, 550 U.S. 192 (2007), in which the Su preme Court observed that burglary under Florida law, be cause it may be committed in curtilage, is broader than ge neric burglary. Id. at 212 (“the inclusion of curtilage takes Florida’s underlying offense of burglary outside the defini No. 16 1635 5 tion of generic burglary”) (internal quotation marks omit ted). According to Perry, if Florida burglary’s coverage of curtilage makes it broader than generic burglary, then so, too, does Indiana burglary’s coverage of fenced in areas. Perry’s argument misses the mark. As a general rule, cur tilage need not be completely fenced in. See United States v. Dunn, 480 U.S. 294, 301 n.4 (1987) (“declin[ing] … to adopt a bright line rule that the curtilage should extend no farther than the nearest fence surrounding a fenced house”) (inter nal quotation marks omitted). Florida law is in accord. Alt hough curtilage under the Florida burglary statute requires “some form of enclosure,” it “does not require total enclo sure.” Chambers v. State, 700 So.2d 441, 442 (Fla. App. 1997) (emphases added). Florida burglary thus may be committed where a defendant enters a yard surrounded by a fence with a “ten to fifteen foot gap,” ibid., or enters an area fenced on three sides, with a “low walled ‘stoop’” in front and an opening for a driveway, Jacobs v. State, 41 So.3d 1004, 1006 (Fla. App. 2010). This explains why the Supreme Court in James deemed Florida burglary broader than generic burgla ry, which, as noted, must take place in “a building or other structure,” Taylor, 495 U.S. at 598, or “a building or enclosed space,” Shepard, 544 U.S. at 15–16. Unlike the Florida burglary statute, Indiana burglary re quires that the defendant enter a wholly enclosed area. In the Indiana cases cited by Perry, the defendant forced his way into an area completely surrounded by a fence. See McCov ens, 539 N.E.2d at 29 (where the defendant climbed over or squeezed through a fence “without any holes or openings”); Gray, 797 N.E.2d at 335 (where the defendant apparently climbed over a fence enclosing the lot of an auto repair 6 No. 16 1635 shop); Joy, 460 N.E.2d at 555 (where the defendant used wire cutters to cut a fence surrounding a lumber yard); see also Calhoon v. State, 842 N.E.2d 432, 435 (Ind. App. 2006) (observ ing that Gray involved entry into “a completely enclosed ar ea”). 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. To the contrary, the state appellate court in Calhoon distinguished McCovens, Joy, and Gray in reversing a burglary conviction on the ground that the “fence surrounded only three sides of” the outdoor space entered by the defendant, “leaving the fourth completely open.” Calhoon, 842 N.E.2d at 435–36. It follows that James, which considered a burglary statute criminalizing entry into partially enclosed curtilage to be broader than generic bur glary, does not take Indiana burglary outside the definition of generic burglary. The other decisions cited by Perry are even further afield. In United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), and United States v. Bennett, 100 F.3d 1105 (3d Cir. 1996), the courts held that the Washington and Pennsylvania burglary statutes, respectively, were non generic. But both statutes encompass circumstances where the defendant enters a movable conveyance—railway cars in Washington, Wenner, 351 F.3d at 972, and automobiles in Pennsylvania, Bennett, 100 F.3d at 1109—which takes them outside the definition of generic burglary. See Mathis, 136 S. Ct. at 2250 (distinguish ing Iowa burglary from generic burglary on the ground that “Iowa’s statute … reaches a broader range of places: ‘any building, structure, [or] land, water, or air vehicle’”) (emphasis and brackets in original); Shepard, 544 U.S. at 15–16 (“The [ACCA] makes burglary a violent felony only if committed No. 16 1635 7 in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle”); United States v. Haney, 840 F.3d 472, 475 (7th Cir. 2016) (concluding that certain Illinois burglary statutes from the 1970s were nongeneric because they ap plied to vehicles). Indiana burglary does not cover vehicles or other movable conveyances. 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. Yates v. United States, 842 F.3d 1051, 1053 (7th Cir. 2016). It follows that Perry’s two In diana burglary convictions were valid predicate offenses under § 924(e)(2)(B)(ii), and therefore that his § 924(e)(1) sen tencing enhancement was warranted. We also reject Perry’s contention that the district court mishandled his argument at sentencing that the two § 922(g)(1) counts to which he pleaded guilty were multiplic itous. Putting aside the question whether Perry waived this contention by entering an unconditional guilty plea, see United States v. Combs, 657 F.3d 565, 568–69 (7th Cir. 2011), it fails on the merits because his conduct clearly supports the two separate counts. Perry violated § 922(g)(1) when he pur chased ammunition from Wal Mart on May 22, 2013. The store’s surveillance footage shows that he possessed the ammunition but not a firearm, and his receipt confirms that he did not purchase a firearm along with the ammunition. Accordingly, the firearm and shotgun must have been “ac quired separately,” which supports the two separate charg es. United States v. Buchmeier, 255 F.3d 415, 423 (7th Cir. 2001). Any error in the district court’s failure to spell this out at the sentencing hearing is harmless given the clarity in the 8 No. 16 1635 record regarding Perry’s conduct. It also bears mention that the additional § 922(g)(1) conviction resulted in no addition al time to Perry’s overall sentence, as the sentences on both counts run concurrently—which is precisely what Perry re quested to remedy what he viewed as the two improperly duplicative counts. See United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005) (“[T]he judge’s failure to discuss an immaterial or insubstantial dispute relating to the proper sentence would be at worst a harmless error.”). AFFIRMED
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