United States v. Brown, No. 22-1192 (7th Cir. 2023)
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Brown was convicted of bank robbery. The court determined that he was a career offender under U.S.S.G. 4B1.1, 4B1.2, with an advisory range of 210-240 months’ imprisonment.
The Seventh Circuit affirmed Brown's 180-month sentence. Defendants are deemed career offenders if they have at least two prior felony convictions of a crime of violence. The 4B1.2(a)(1) “elements clause” defines a crime of violence as any offense punishable by imprisonment for a term exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another. Brown had a 2010 Illinois conviction for aggravated vehicular hijacking; He “t[ook] a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force,” carrying a dangerous weapon in the commission of the offense.
The Seventh Circuit previously held that Illinois vehicular hijacking constituted a 4B1.2(a)(1) crime of violence. That precedent was not overruled by the Supreme Court’s 2021 “Borden” decision, construing the term “violent felony” under the Armed Career Criminal Act's elements clause, which is identical to 4B1.2(a)(1). The Court held that, under the categorical approach, an offense does not involve the use of physical force against the person of another if the offense can be committed with a mens rea of recklessness. The Illinois statute implied an element of knowing or purposeful use or threat of force.
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