Waagner v. United States, No. 19-3008 (7th Cir. 2020)
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Waagner was convicted as a felon in possession of a firearm and of possessing a stolen vehicle that had crossed a state line. The court adopted the PSR finding that Waagner was an armed career criminal under the ACCA based on his prior convictions for “violent felonies,” 18 U.S.C. 924(e)(2)(B): two 1978 convictions for Ohio aggravated burglary and one 1992 conviction for Ohio attempted robbery. Waagner had a sentencing guidelines range of 262-327 months’ imprisonment; the statutory minimum was 15 years. While awaiting sentencing, Waagner escaped from custody and, while a fugitive, committed offenses in multiple districts. After his apprehension, he pleaded guilty to escape. The court imposed a 364-month sentence.
Waagner filed a second collateral attack on his sentence, challenging his ACCA classification. The district court denied his motion, finding that, although his Ohio aggravated burglary convictions no longer constitute ACCA predicate offenses under the Supreme Court's 2015 "Johnson" decision, invalidating the residual clause, they still qualify as predicate offenses under ACCA's enumerated offenses clause. The Seventh Circuit affirmed. The advent of Johnson permitted Waagner to bring a second motion under 28 U.S.C. 2255; before Johnson, any such challenge would have been futile. Nonetheless, Ohio aggravated burglary and Ohio attempted robbery are violent felonies as that term is defined in the ACCA.
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