Johnson v. United States, No. 17-1912 (7th Cir. 2022)
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In 2004, Johnson was convicted of being a felon in possession of a firearm. Based on his prior convictions, the district court found that he qualified for a sentencing enhancement under the Armed Career Criminal Act (ACCA) and sentenced him to 275 months in prison. The 2015 Supreme Court “Johnson “ decision held that the so‐called “residual clause” of the ACCA was unconstitutionally vague. In 2016, Johnson moved under 28 U.S.C. 2255 to vacate his sentence on the grounds that it was based on the ACCA’s now‐defunct residual clause.
The district court denied his motion. The Sixth Circuit affirmed. Despite the Supreme Court’s holding, Johnson’s sentence is proper if he has at least three prior convictions that qualify for enhancement under the provisions of the ACCA which that decision left undisturbed: the “violent felony” and “serious drug offense” provisions. Johnson does have at least three such convictions. He did not challenge that his prior drug and burglary convictions qualified as ACCA predicates; 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. The court did not address an escape conviction.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17 1912 DONNIE JOHNSON, Petitioner Appellant, v. UNITED STATES OF AMERICA, Respondent Appellee. ____________________ Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 16 cv 00214 — Rudy Lozano, Judge. ____________________ ARGUED SEPTEMBER 28, 2021 — DECIDED JANUARY 24, 2022 ____________________ Before FLAUM, KANNE, and SCUDDER, Circuit Judges. FLAUM, Circuit Judge. In 2004, a jury convicted Donnie Johnson of being a felon in possession of a firearm. Based on his prior convictions, the district court found that he qualified for a sentencing enhancement under the Armed Career Crim inal Act (ACCA) and sentenced him to 275 months in prison. In 2015, the Supreme Court decided Samuel Johnson v. United States, holding that the so called “residual clause” of the 2 No. 17 1912 ACCA was unconstitutionally vague. See 576 U.S. 591 (2015).1 Johnson then filed a motion in 2016 under 28 U.S.C. § 2255 to vacate his sentence on the grounds that it was based on the ACCA’s now defunct residual clause. The district court de nied his motion, and this Court subsequently granted John son’s request for a certificate of appealability. Despite the Supreme Court’s holding in Samuel Johnson, Johnson’s sentence is proper if he has at least three prior con victions that qualify for enhancement under the provisions of the ACCA which Samuel Johnson left undisturbed (the “vio lent felony” and “serious drug offense” provisions). Because Johnson does have at least three such convictions, we affirm the district court’s decision to deny Johnson’s motion to va cate his sentence. I. Background In August 2001, a Gary, Indiana police officer stopped a van Johnson was driving. 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). 1 There are two Supreme Court cases named “Johnson v. United States” that are relevant to Donnie Johnson’s appeal: Samuel Johnson, 576 U.S. 591 (2015), which, as noted, declared the residual clause of the ACCA uncon stitutional, and Curtis Johnson v. United States, 559 U.S. 133 (2010), which addressed the amount of force necessary for a crime to be a “violent fel ony” under the ACCA. To avoid confusion, we will refer to these cases as Samuel Johnson and Curtis Johnson respectively. No. 17 1912 3 As his conviction for being a felon in possession of a fire arm suggests, this was not Johnson’s first run in with the law. Relevant here are four of his prior convictions: (1) a 1982 con viction for distribution of a controlled substance, (2) a 1984 burglary conviction, (3) a 1989 criminal deviate conduct con viction, and (4) a 1990 conviction for inflicting bodily injury during an escape. Based on these convictions, the district court found that Johnson qualified for a sentence enhance ment under the ACCA, which establishes a mandatory mini mum sentence of 15 years (180 months) when a defendant is convicted of being a felon in possession of a firearm and has at least three convictions which qualify as “violent felon[ies]” or “serious drug offense[s].” See 18 U.S.C. § 924(e)(1). Pursu ant to this finding, the district court sentenced Johnson to 275 months in prison. Relevant to petitioner’s appeal is the ACCA’s definition of “violent felony,” which reads: [T]he term “violent felony” means any crime punishable by imprisonment for a term exceed ing one year… that— (i) has as an element the use, attempted use, or threatened use of physical force against the per son of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.] 18 U.S.C. § 924(e)(2)(B). 4 No. 17 1912 In 2015, the Supreme Court held the last clause of this def inition (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) to be void for vagueness, declaring that any sentence imposed under the so called “residual clause” violates due process. Samuel Johnson, 576 U.S. at 606. The decision, however, left undisturbed the other provisions of the definition, id., and, thus, a sentence en hancement under the ACCA may stand if the underlying, prior convictions qualify under the remaining definitional provisions. Based on the Court’s decision in Samuel Johnson, petitioner filed a motion pro se in the district court in 2016 to vacate his sentence. He argued, among other things, that his criminal de viate conduct and escape convictions qualified as “violent fel onies” only under the ACCA’s now invalidated residual clause and that, as a result, he was entitled to re sentencing.2 The district court disagreed and denied his motion, rea soning that both convictions qualified as violent felonies un der subpart (i) (the “force provision”) of the definition since they involve the use of force against another. Though the court declined to issue a certificate of appealability in tandem with its opinion and order, this Court subsequently granted Johnson’s request for such a certificate. On appeal, Johnson 2 At the district court, petitioner also argued that his drug and bur glary offenses did not qualify as predicates under the ACCA. The district court rejected those arguments, and petitioner does not now challenge that portion of the court’s decision. For this reason, we proceed with the understanding that these offenses qualify under the ACCA, meaning that petitioner has, at a minimum, two of the three offenses required for a sen tencing court to impose an enhancement under the ACCA, not counting the criminal deviate conduct and escape convictions at issue here. No. 17 1912 5 challenges the district court’s findings that both the criminal deviate conduct and escape convictions qualified as violent felonies under the force provision. II. Discussion “Whether a prior conviction constitutes a violent felony under the ACCA is a legal conclusion that we review de novo.” United States v. Fife, 624 F.3d 441, 445 (7th Cir. 2010). Because he does not challenge the district court’s finding that his drug and burglary convictions did not implicate the residual clause and thus were proper predicate convictions for a sentence enhancement under the ACCA, Johnson must succeed in showing that neither his criminal deviate conduct conviction nor his escape conviction qualifies as a proper third offense to trigger ACCA’s sentence enhancement. Courts reviewing whether a prior conviction qualifies as a violent felony or serious drug offense under the ACCA em ploy what is known as the categorial approach. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Under this ap proach, a reviewing court looks only to the elements of the offense of conviction to determine whether such an offense categorically falls within the definitions of either a violent fel ony or serious drug offense as defined by the ACCA. See id. It is not the actual facts of the defendant’s actions in committing the offense but, rather, the elements of the offense itself that matter for this inquiry. See id; Taylor v. United States, 495 U.S. 575, 600–02 (1990). One complication arises, however, when the statute defin ing the offense of the prior conviction is disjunctive (that is, it proscribes a swath of conduct via a list of alternatives). In such 6 No. 17 1912 a scenario, one portion of the statute may outlaw conduct clearly falling outside of the ACCA’s reach while another por tion outlaws conduct clearly falling within its reach. To deter mine whether a violation of such a statute qualifies as an ACCA predicate offense, then, a court must determine whether the statute’s list contains a number of different ele ments pertaining to a variety of separable crimes or whether the statute’s list merely contains a variety of means by which one overarching crime may be committed. Mathis, 136 S. Ct. at 2249. If it is the former, the statute is said to be “divisible,” and the court must then determine the precise crime of which the defendant was convicted and compare the appropriate el ements to the ACCA’s definitions. Id. If, on the other hand, the court determines that the statute merely contains a list of various means by which one crime may be committed, the statute is referred to as being “indivisible” and its violation may not serve as a predicate offense under the ACCA if any one of the listed “means” of committing the offense does not qualify as a violent felony or drug offense. Id. at 2248–49, 2257. To make this determination of “divisibility,” the Supreme Court has offered a number of sources that may illuminate whether the listed alternatives are elements or means: author itative case law from the state courts, the text of the statute itself, and, if neither of these prove helpful, the record of the prior conviction for “the sole and limited purpose of deter mining whether [the listed items are] element[s] of the of fense.” Id. at 2256–57 (alterations in original) (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)). If the charging instrument and the jury instructions, for instance, include all of the alternatives listed in the statute, “[t]hat is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor No. 17 1912 7 must prove to a jury beyond a reasonable doubt.” Id. at 2257. By contrast, a charging instrument or jury instruction that in cludes only one of the statute’s listed alternatives, to the ex clusion of all others, would suggest that the statute’s list is a list of elements, with each element pertaining to a separate crime. Id. If a court determines the statute is divisible, it then may apply the “modified categorical approach.” The Supreme Court has clarified that, “[u]nder that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and collo quy) to determine what crime, with what elements, a defend ant was convicted of.” Id. at 2249. To reiterate, this examina tion of the record documents is only to determine the ele ments of the crime for which the defendant was convicted and may not be relied upon to find that a defendant qualifies for a sentence enhancement under the ACCA because he, for in stance, committed a non violent crime in a violent way. See id. at 2253. The crime itself, divorced from the facts of the defend ant’s particular commission of it, still must categorically qual ify as a violent felony or a serious drug offense as the ACCA defines those terms. Johnson essentially raises the same three arguments with respect to both his criminal deviate conduct and escape con victions to show that they do not qualify as violent felonies: the statutes are indivisible, they do not require sufficient force to qualify as ACCA violent felonies, and they do not require sufficient intent to qualify as ACCA violent felonies. Starting with petitioner’s criminal deviate conduct conviction, we find that the offense does qualify as a violent felony under the 8 No. 17 1912 ACCA and therefore do not reach his arguments about his es cape conviction. A. Divisibility We ask first whether Indiana’s criminal deviate conduct statute is divisible. Johnson argues that Indiana’s criminal de viate conduct statute is indivisible and, therefore, that a con viction under it cannot qualify as a violent felony. At the time of Johnson’s conviction, the relevant portion of Indiana’s stat ute read: A person who knowingly or intentionally causes another person to perform or submit to deviate sexual conduct when: (1) the other person is compelled by force or im minent threat of force; (2) the other person is unaware that the conduct is occurring; or (3) the other person is so mentally disabled or deficient that consent to the conduct cannot be given; commits criminal deviate conduct, a Class B fel ony. Ind. Code § 35 42 4 2. “Deviate sexual conduct” was further defined as: [A]n act involving: No. 17 1912 9 (1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object. Ind. Code § 35 41 1 9. On its face, the text of Indiana’s criminal deviate conduct statute raises questions about divisibility. It proscribes a swath of conduct via a list of alternatives, some of which may qualify as violent felonies under the ACCA’s force provision (e.g., subpart (1)) and some of which likely do not (subparts (2) and (3)). Thus, if the statute is indivisible, a conviction un der it cannot qualify for an ACCA enhancement because the offense does not categorically qualify as a violent felony as con templated by the ACCA. If, on the other hand, the statute is divisible, we must engage in the modified categorical ap proach to first determine which of the alternative crimes John son was convicted of and then determine whether that crime meets the requirements of the ACCA’s violent felony defini tion. As a starting point for the divisibility analysis, we look to authoritative state law. See Mathis, 136 S. Ct. at 2256–57. Peti tioner argues that the three alternatives listed in the criminal deviate conduct statute are merely means of satisfying an im plied “absence of consent element.” But this interpretation is unsupported by Indiana’s case law. For instance, in Collins v. State, the Indiana Supreme Court held that the state’s criminal deviate conduct and deviate sexual conduct provisions “de fine multiple sets of essential elements, and each set describes a separate offense of criminal deviate conduct.” 717 N.E.2d 108, 110 (Ind. 1999). This understanding aligns with the 10 No. 17 1912 court’s analysis in Taylor v. State, 496 N.E.2d 561 (Ind. 1986), another case involving the criminal deviate conduct statute. In analyzing the question of whether it was proper to admit a witness’s testimony about the victim’s lack of consent and the fact that the defendant used a gun to facilitate the crimes, the state’s supreme court held that this “testimony was relevant and properly admitted as evidence on the element[] of force.” Taylor, 496 N.E.2d at 565 (emphasis added). If, instead, the statute’s force provision was merely a means of satisfying a lack of consent element (as petitioner proposes), it would be odd for the Taylor court to describe the evidence as support ing the victim’s testimony “that she did not consent” but then, in the very next sentence, state that this evidence about lack of consent was relevant to the “element[] of force.” In arguing that the alternatives listed in the criminal devi ate conduct statute are merely alternative means of satisfying one unifying element that he refers to as the “absence of con sent element,” petitioner places too much weight on wording cherry picked from Stewart v. State, 555 N.E.2d 121 (Ind. 1990). First, petitioner points to the fact that the court twice (both times in footnotes) describes the criminal deviate conduct statute as “set[ting] out the circumstances under which the commission of sexual deviate conduct is a crime.” See Stewart, 555 N.E.2d at 122, n.1 & 126, n.4 (emphasis added). Petitioner makes much of the court’s use of the word “circumstances” in these footnotes, pointing to the fact that the Supreme Court later used the same word to describe a crime’s means as op posed to its elements. See Mathis, 136 S. Ct. at 2248, 2253; Descamps v. United States, 570 U.S. 254, 268, 270, 277 (2013). This argument would carry some weight if Stewart had been decided after these Supreme Court cases which, petitioner ar gues, gave the word a special meaning—and if Stewart had No. 17 1912 11 cited to them. But both Mathis and Descamps were decided af ter Stewart. The sentences from Stewart to which petitioner points, then, are most plausibly read as clarifying that Indiana does not criminalize all sexual deviate conduct but, rather, criminalizes it only in certain circumstances. Indeed, attempt ing to replace “circumstances” with either “means” or “ele ments” in this excerpt from Stewart renders the text unnatural and disjointed, further suggesting that the court was not at tempting to convey any special “means versus elements” con notation. Next, petitioner argues that the following text from Stew art supports his theory that the criminal deviate conduct stat ute has an implied “absence of consent” element: “The crimi nal deviate conduct statute prohibits [certain] sex acts … in the absence of the consent of one of the participants.” Stewart, 555 N.E.2d at 126 (Ind. 1990). Petitioner asserts that this phrase “define[s]” the criminal deviate conduct statute. Not so. This phrase merely describes the statute and does so at a very general level. Given the other Indiana cases on this issue and the context of the sentence Johnson relies on, the phrase is most plausibly read as a general description of what the statute does, rather than a technical definition of the statute intended to add an implied element to the offense. Next, should authoritative state law fail to decisively re solve our divisibility questions, we look to record documents. See Mathis, 136 S. Ct. at 2256–57. To the extent the above re cited case law leaves any doubt as to the divisibility of Indi ana’s criminal deviate conduct offense, the record documents are revelatory. At trial, the applicable jury instruction read, in relevant part: 12 No. 17 1912 To convict the defendant of the crime of Crimi nal Deviate Conduct as a Class B Felony, the State must prove each of the following elements beyond a reasonable doubt. The Defendant: 1. knowingly or intentionally 2. caused another person to perform or sub mit to deviate sexual conduct 3. when the other person was compelled by force or imminent threat of force. The fact that the jury instruction singles out one of the stat ute’s listed alternatives (compulsion via force) to the exclu sion of all others and further states that the government must prove that “element[] beyond a reasonable doubt” to secure a conviction buttresses the view that Indiana’s criminal deviate conduct statute is divisible into distinct elements. For all of these reasons, we hold that the statute is divisible. Given these jury instructions, we can make short work of the next step in our analysis: determining which crime John son was convicted of under the criminal deviate conduct stat ute. See Mathis, 136 S. Ct. at 2249 (instructing that, under the modified categorical approach, courts reviewing ACCA sen tence enhancements may examine a limited set of judicial rec ords to determine which version of the statutory alternatives the defendant was charged and convicted under). The jury in structions make clear that Johnson was convicted of the ver sion of criminal deviate conduct requiring compulsion by force. No. 17 1912 13 B. Sufficiency of the Force Required Following this divisibility holding, we turn next to the question of what level of force qualifies a crime as an ACCA predicate offense. Petitioner contends that even if the Court finds that Indiana’s criminal deviate conduct statute is divisi ble and even if the Court finds that Johnson’s conviction was for criminal deviate conduct via forcible compulsion, Indiana law defines “force” to include conduct that does not meet the higher bar for “force” contemplated by the ACCA’s definition of “violent felony.” Beginning with the federal statute, the rel evant portion of the ACCA’s definition of violent felony is the first prong, which states that a felony qualifies as a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force against the person of an other.” 18 U.S.C. § 924(e)(2)(B)(i). Notably, the statute explic itly states that the sort of force contemplated is physical, ra ther than emotional or psychological. The ACCA does not provide any definition for “physical force,” but two Supreme Court cases have shed light on the meaning of this term: Curtis Johnson v. United States, 559 U.S. 133 (2010) and Stokeling v. United States, 139 S. Ct. 544 (2019). In Curtis Johnson, the Supreme Court decided whether the petitioner’s previous conviction in Florida for simple battery qualified as a violent felony predicate offense under the ACCA. Under Florida law, a battery occurs “when a person either ‘1. [a]ctually and intentionally touches or strikes an other person against the will of the other,’ or ‘2. [i]ntentionally causes bodily harm to another person.’” Id. at 136 (alteration in original) (citing Fla. Stat. § 784.03(1)(b)). The Court deter mined that the statute was indivisible, meaning that in order to categorically qualify as a violent felony, the least violent 14 No. 17 1912 version of the offense—“[a]ctually and intentionally touch[ing] another person”—must constitute the use of “physical force” contemplated by the statute. In ruling that it did not, the Court held that “physical force”—at least in the context of defining a “violent felony” under the ACCA— meant “force capable of causing physical pain or injury to an other person.” Id. at 140. The Court returned to this definition of “physical force” nearly a decade later, in Stokeling. There, the Court held that common law robbery—which requires at least some re sistance, no matter how slight, by the victim—meets the ACCA’s requirements for physical force. Stokeling, 139 S. Ct. at 555. In so ruling, the Court explained: “[T]he common law [] linked the terms ‘violence’ and ‘force.’ Overcoming a vic tim’s resistance was per se violence against the victim, even if it ultimately caused minimal pain or injury.” Id. at 553. This understanding, the Court explained, comported with Curtis Johnson’s requirement that the force be “capable of causing physical pain or injury,” Curtis Johnson, 559 U.S. at 140, since any overcoming of resistance inherently involves a “physical contest” and “it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.’” Stokeling, 139 U.S. at 553 (quoting Curtis Johnson, 559 U.S. at 140). To summarize, after Curtis Johnson, any offense involving force “capable of causing physical pain or injury” is sufficient to qualify as a violent felony under the ACCA. And after Stokeling, an offense per se satisfies Curtis Johnson’s definition of force if it involves the offender’s overcoming the victim’s resistance. Per the wording of the ACCA statute itself, an of fense that satisfies either Curtis Johnson’s or Stokeling’s level of No. 17 1912 15 force satisfies the ACCA’s standard, whether it involves “the use, attempted use, or threatened use” of such force. We now turn to the state statute defining petitioner’s of fense of conviction. Indiana’s forcible criminal deviate con duct offense involves the defendant’s use of “force or immi nent threat of force” to compel the victim to submit to a sexual act against their will. Ind. Code § 35 42 4 2. Contrary to peti tioner’s view, Indiana’s criminal deviate conduct statute re quires a sufficient level of force to qualify as a violent felony under the ACCA. In Indiana, forcible criminal deviate con duct may be committed in one of two ways: (1) the offender may compel the victim to submit by overcoming their re sistance; or (2) the offender may compel the victim to submit by threatening or otherwise placing the victim in “fear of bod ily harm,” in which case no physical resistance by the victim is required. See Birch v. State, 401 N.E.2d 750, 751 (Ind. Ct. App. 1980) (stating that a defendant may be convicted of crim inal deviate conduct if he either overcomes a victim’s re sistance or makes threats that place the victim in fear of bodily injury); see also Woodson v. State, 483 N.E.2d 62, 64 (Ind. 1985) (same). Either variation requires a level of force sufficient under the ACCA.3 A forcible criminal deviate conduct offense under 3 Johnson’s citation to Jansen v. State, 122 N.E.3d 473 (Ind. Ct. App.) (unpublished), appeal denied, 127 N.E.3d 231 (Ind. 2019), is not to the con trary for several reasons. In that case, the court interpreted Indiana’s sex ual battery statute, which also required that the victim be “compelled to submit.” Id. at ¶13. However, the case was decided after Indiana made “comprehensive revision[s]” to its criminal statutes in 2014, see United States v. Duncan, 833 F.3d 751, 754 n.1 (7th Cir. 2016), which resulted in the elimination of the criminal deviate conduct statute. Additionally, Jansen is an unpublished case issued by the Indiana Court of Appeals and therefore 16 No. 17 1912 the first variation clearly falls within the Supreme Court’s in terpretation in Stokeling that force “sufficient to overcome a victim’s resistance” satisfies the ACCA’s requirements. See Stokeling, 139 S. Ct. at 554. Johnson’s argument to the contrary is fatally undermined by the text of Indiana’s statute, which requires that the victim be “compelled to submit” to the sex ual conduct. The requirements of compulsion and submission both indicate that, for instances in which the victim does re sist, the offender must overcome that resistance, thereby sat isfying Stokeling. See id. at 551 (adopting the common law’s definition of “force” or “violence,” which required only that “[s]ufficient force must be used to overcome resistance … however slight the resistance” (citation omitted)). Moreover, even if the Indiana criminal deviate conduct statute swept up instances where the defendant attempted but failed to over come the victim’s resistance, such conduct would still qualify as a violent felony under the ACCA, which includes the “at tempted use … of physical force.” 18 U.S.C. § 924(e)(2)(B)(i). has no precedential value, see Ind. R. App. P. 65. As such, even if it inter preted the right statute, the case is not an example of the “authoritative sources of state law” to which the U.S. Supreme Court instructed review ing courts to look. See Mathis, 136 S. Ct. at 2256–57. Moreover, however, the defendant’s conduct in Jansen, which involved rubbing his hands over the victim’s breasts and shorts and trying to take her shorts off—after the victim repeatedly pushed his hands away—is not inconsistent with Stokel ing’s definition of sufficient force. See Stokeling, 139 S. Ct. at 553 (conclud ing that “the force necessary to overcome a victim s physical resistance is inherently ‘violent’ in the sense contemplated by [Curtis] Johnson” because “[t]he altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself ‘ca pable of causing physical pain or injury’” (quoting Curtis Johnson, 559 U.S. at 139, 140)). No. 17 1912 17 For instances in which the victim does not resist, the con duct may yet qualify as criminal deviate conduct under the second variation of the offense if the victim declined to resist because the offender placed them in fear of bodily harm. Birch, 401 N.E.2d at 751 (holding that criminal deviate con duct ordinarily requires that the offender overcome the vic tim’s resistance but clarifying that “[p]hysical resistance is not required if the victim is in fear of bodily harm.”). Because such instances necessarily involve the “threatened use,” 18 U.S.C. § 924(e)(2)(B)(i), of “force capable of causing physical pain or injury to another person,” Curtis Johnson, 559 U.S. at 140, they also satisfy the ACCA’s “violent felony” requirements. At bottom, Indiana’s forcible criminal deviate conduct of fense involves the defendant’s use of “force or imminent threat of force” to compel the victim to submit to a sexual act against their will. Ind. Code § 35 42 4 2. Under the Supreme Court’s holdings in Curtis Johnson and Stokeling, there can be no question that such an offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). C. Sufficiency of the Intent Required Finally, we turn to the question of intent. See Borden v. United States, 141 S. Ct. 1817, 1821–22 (2021) (holding that a crime is not a violent felony “if it requires only a mens rea of recklessness.”). Petitioner argues that Indiana’s forcible crim inal deviate conduct offense does not qualify as an ACCA predicate offense because it does not require that the prohib ited conduct be committed intentionally. In support of this contention, petitioner points to Leocal v. Ashcroft, 543 U.S. 1 (2004), claiming that the Supreme Court’s holding in that case should be read to mean that an offense must require 18 No. 17 1912 intentional conduct in order to qualify as a violent felony un der the ACCA. Petitioner’s reliance on Leocal is misguided. In that case, the Supreme Court interpreted a separate but similarly worded statute defining the term “crime of violence,” 18 U.S.C. § 16, as requiring a higher mens rea than just “the merely accidental or negligent conduct involved in a DUI of fense.” Leocal, 543 U.S. at 11. The Court reasoned that the stat ute’s text—in particular the phrase, “use … of physical force” (which is also present in the ACCA’s definition of violent fel ony)—implied that the employment of force must be more ac tive than passive or accidental. Id. at 9. This Court has previ ously held that “Leocal neither holds nor suggests that there must be a separate intent element attached to the degree of in jury,” and that “an offense defined as a knowing or inten tional act that causes bodily harm comes within the elements clause of … § 924(e)(2)(B)(i) [the violent felony definition] ….” Douglas v. United States, 858 F.3d 1069, 1072 (7th Cir. 2017). Indiana’s criminal deviate conduct offense requires that an of fender act “knowingly or intentionally,” Ind. Code § 35 42 4 2, and thus clearly does not sweep up “merely accidental or negligent conduct” like that of the DUI offense at issue in Leocal. 543 U.S. at 11. * * * For these reasons, we hold 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 peti tioner has two prior convictions which he concedes qualify as predicate offenses under the ACCA and because we hold that No. 17 1912 19 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. Petitioner met the criteria for the ACCA’s sentencing enhancement, so the impo sition of his sentence under the statute was appropriate. III. Conclusion We AFFIRM the district court’s denial of petitioner’s motion to vacate his sentence.
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