Tony Lipscomb v. United States ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2312
STEVEN KLIKNO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
No. 17-1824
JOSEPH VAN SACH,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
No. 17-1929
ERNEST D. SHIELDS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
2 Nos. 16-2312 et al.
No. 17-2233
TONY LIPSCOMB,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
No. 17-2339
JAMES PINKNEY,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
No. 17-2514
LASHON BROWNING,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
On remand from the Supreme Court of the United States
____________________
Nos. 16-2312 et al. 3
SUBMITTED MARCH 29, 2019, AND APRIL 19, 2019 — DECIDED
JUNE 21, 2019
____________________
Before WOOD, Chief Judge, and FLAUM and KANNE, Circuit
Judges.
WOOD, Chief Judge. The Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), provides for an enhanced
sentence for an ex-felon who possesses a firearm in violation
of 18 U.S.C. § 922(g), if that person has “three previous con-
victions … for a violent felony or a serious drug offense, or
both … .” ACCA defines a “violent felony” to include a fed-
eral or state crime punishable by more than a year’s impris-
onment that “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). While that definition may
seem straightforward to the uninitiated, it has spawned al-
most as many questions as there are federal or state crimes.
The Supreme Court has addressed this matter several
times, in an effort to clarify just how much violence is re-
quired for a crime to be qualifying, and how courts are to go
about assessing that issue. It most recently spoke to these is-
sues in Stokeling v. United States, 139 S. Ct. 544 (2019). In each
of the six cases now before us, we concluded that the ACCA
enhancement applied; the petitioner filed a petition for certi-
orari with the Court; the Court held that petition for the deci-
sion in Stokeling; and it now has remanded the case to us for
reconsideration in light of Stokeling. Because each of these
cases raises the same question—whether the Illinois statutes
prohibiting robbery and armed robbery, 720 ILCS 5/18-1(a),
4 Nos. 16-2312 et al.
5/18-2, qualify as crimes of violence for ACCA purposes—we
have consolidated them for disposition.
I
We begin by reviewing some basic principles. First, we are
addressing only the “elements” approach to proving a crime
of violence. The statute also enumerates certain crimes, see 18
U.S.C. § 924(e)(2)(B)(ii), but robbery is not on that list. (At one
time there was also a so-called residual clause, but it was in-
validated by the Supreme Court in Samuel Johnson v. United
States, 135 S. Ct. 2551 (2015), and is not relevant to any of these
appeals.) Second, in deciding whether a statute “has as an el-
ement the use, attempted use, or threatened use of physical
force against the person of another,” we must use a categori-
cal approach, under which we “compare the elements of the
statute forming the basis of the defendant’s conviction with
the elements of the ‘generic’ crime.” Descamps v. United States,
570 U.S. 254, 257 (2013). If the statute in question is “divisi-
ble,” meaning that it offers alternative elements rather than
merely alternative ways of proving a single element, see
Mathis v. United States, 136 S. Ct. 2243 (2016), then a somewhat
more elaborate inquiry is permissible. Id. But the Illinois stat-
ute before us is not divisible, and so we are left with the ordi-
nary categorical approach.
In Curtis Johnson v. United States, 559 U.S. 133 (2010), the
Supreme Court took a close look at the level of force that is
needed in order to trigger the ACCA sentencing enhance-
ment. Curtis Johnson pleaded guilty to possessing a firearm
after a felony conviction, 18 U.S.C. § 922(g), and the govern-
ment argued that he was subject to the ACCA penalty scheme.
One of his prior felonies was for the Florida offense of battery
by “[a]ctually and intentionally touch[ing] another person,”
Nos. 16-2312 et al. 5
in violation of Fla. Stat. § 784.03(1)(a), (2) (2003). 559 U.S. at
135. The question was whether the degree of force required
by the Florida law met the federal definition in ACCA. Under
the common law, the Supreme Court observed, the “element
of ‘force’ [was] satisfied by even the slightest offensive touch-
ing.” 559 U.S at 139. But, bearing in mind the need to take con-
text into account, the Court held that ACCA did not adopt the
common-law approach. Instead, it said, “in the context of a
statutory definition of ‘violent felony,’ the phrase ‘physical
force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” Id. at 140 (empha-
sis in original).
Stokeling addressed the next logical question in this se-
quence: how much physical pain or injury is necessary? Is a
scratch or a pinch enough? If not, then how much more does
the statute demand? Like Curtis Johnson, Stokeling arose in
Florida. After Stokeling pleaded guilty to a violation of sec-
tion 922(g), the government sought an enhanced sentence un-
der ACCA; it relied in part on his 1997 Florida conviction for
robbery. See Fla. Stat. § 812.13(1). That statute defines robbery
as “the taking of money or other property … from the person
or custody of another, … when in the course of the taking
there is the use of force, violence, assault, or putting in fear.”
Id. Critically, the Florida Supreme Court had held in an earlier
case “that the ‘use of force’ necessary to commit robbery re-
quires ‘resistance by the victim that is overcome by the phys-
ical force of the offender.’ Robinson v. State, 692 So. 2d 883, 886
(1997).” Stokeling, 139 S. Ct. at 549.
The Supreme Court held that this was enough to satisfy
ACCA. It relied substantially on the common-law definition
of the crime of robbery, which requires force or violence, and
6 Nos. 16-2312 et al.
which understands “violence” to mean the use of sufficient
force “to overcome the resistance encountered.” Id. at 550. The
history of ACCA and the widely accepted definition of rob-
bery in the states reinforced the Court’s conclusion. It was
enough, the Court said, if a statute requires “force capable of
causing physical pain or injury.” Id. at 553. Merely snatching
a wallet from a person’s hand would not qualify as the use of
force, but grabbing someone’s fingers and peeling them back
in order to steal whatever she was holding would. Id. at 555.
II
A
As we noted earlier, all six of the matters we have consol-
idated for decision took a similar procedural path. All in-
volved motions under 28 U.S.C. § 2255 for collateral relief
from a sentence that was enhanced under ACCA. In Klikno v.
United States, we denied a certificate of appealability, and
Klikno filed a petition for certiorari from that decision. See
Klikno v. United States, No. 16-2312, 7th Cir. Jan. 9, 2017, cert.
granted, judgment vacated, 139 S. Ct. 1249 (2019). In the other
five cases, we reached the merits and concluded that the de-
fendants were properly sentenced.1 See Van Sach v. United
States, No. 17-1824, 2017 WL 4842617 (7th Cir. Sept. 1, 2017),
cert. granted, judgment vacated, 139 S. Ct. 1255 (2019); Shields
v. United States, 885 F.3d 1020 (7th Cir. 2018), cert. granted,
1 The government has not argued that we should revoke the certifi-
cates of appealability in any of the five cases in which certificates were
granted. We thus take no position on the question whether, as the issues
have now developed, any of these cases presents “a substantial showing
of the denial of a constitutional right,” see 28 U.S.C. § 2253(c)(2), as op-
posed to a question of statutory interpretation.
Nos. 16-2312 et al. 7
judgment vacated, 139 S. Ct. 1257 (2019); Lipscomb v. United
States, 721 F. App’x 518 (7th Cir. 2018), cert. granted, judgment
vacated, 139 S. Ct. 1260 (2019); Pinkney v. United States, 734 F.
App’x 986 (7th Cir. 2018), cert. granted, judgment vacated, 139
S. Ct. 1322 (2019); and Browning v. United States, 723 F. App’x
343 (7th Cir. 2018), cert. granted, judgment vacated, 139 S. Ct.
1260 (2019). After we received the Supreme Court’s mandate,
we invited the parties to submit statements pursuant to Cir-
cuit Rule 54 on the proper next steps. We have received those
statements, and so the cases are ready for decision.
B
Two Illinois statutes figure in all six cases: the law prohib-
iting robbery, and the law prohibiting armed robbery. The or-
dinary robbery statute reads as follows:
A person commits robbery when he or she
knowingly takes property, except a motor vehi-
cle covered by Section 18-3 or 18-4, from the per-
son or presence of another by the use of force or
by threatening the imminent use of force.
720 ILCS 5/18-1(a). Armed robbery incorporates that language
and adds additional criteria:
A person commits armed robbery when he or she
violates Section 18-1; and
(1) he or she carries on or about his or her person
or is otherwise armed with a dangerous weapon
other than a firearm; or
(2) he or she carries on or about his or her person
or is otherwise armed with a firearm; or
8 Nos. 16-2312 et al.
(3) he or she, during the commission of the of-
fense, personally discharges a firearm; or
(4) he or she, during the commission of the of-
fense, personally discharges a firearm that prox-
imately causes great bodily harm, permanent
disability, permanent disfigurement, or death to
another person.
720 ILCS 5/18-2(a) (emphasis added). Because no one can vi-
olate the armed robbery statute without meeting the criteria
of section 18-1, it is enough for our purposes to examine
whether Illinois’s ordinary robbery statute satisfies the test set
out in Stokeling.
The defendants argue that the Supreme Court already has
signaled that our earlier decisions (each of which upheld reli-
ance on the Illinois statute for ACCA) were wrong. They read
Lawrence v. Chater, 516 U.S. 163 (1996), to say that the GVR
(“grant, vacate, and remand”) practice means that the Court
believes that the lower court failed adequately to consider a
point, or that there is a “reasonable probability that the deci-
sion below rests upon a premise that the lower court would
reject if given the opportunity for further consideration, and
where it appears that such a redetermination may determine
the ultimate outcome of the litigation … .” Id. at 167. But it is
one thing to say that a point requires further thought, with the
benefit of the pertinent Supreme Court opinion, and another
to say that there is some kind of presumption that the result
should change. The GVR order, as the Court noted in Law-
rence, is an efficient way for the Supreme Court to obtain the
views of the lower courts on the effect of a new decision,
whatever those views might be. We thus reject any suggestion
Nos. 16-2312 et al. 9
that the only task left for us is to reverse and find that the Illi-
nois statute fails to satisfy ACCA’s requirement.
The parties dispute whether, as a categorical matter, the
degree of force required by the Illinois robbery statute is com-
patible with the definition of force in Stokeling. The govern-
ment argues that the Florida robbery statute at issue in Stoke-
ling is, for these purposes, indistinguishable from the Illinois
robbery statute. The defendants contend to the contrary that
the two statutes are not the same, because Illinois cases permit
a robbery conviction for conduct that falls outside the scope
of the common-law offense.
We focus on the language of the Illinois statute providing
that a person commits robbery when he or she takes property
“from the person or presence of another by the use of force or
by threatening the imminent use of force.” 720 ILCS 5/18-1(a).
The Illinois Supreme Court has defined the degree of force
necessary to constitute robbery as “such [force] that the power
of the owner to retain his property is overcome, either by ac-
tual violence physically applied, or by putting him in such
fear as to overpower his will.” People v. Bowel, 488 N.E.2d 995,
997 (Ill. 1986).
The government argues that Illinois caselaw establishes
that mere offensive or unwanted touching or the effort asso-
ciated with merely taking possession of property is insuffi-
cient to support a conviction under the robbery and armed
robbery statutes. It cites People v. Patton, 389 N.E.2d 1174, 1175
(Ill. 1979), which overturned a robbery conviction where the
defendant grabbed the victim’s purse from her hand, “throw-
ing her arm back ‘a little bit.’” In Patton, the state supreme
court concluded that
10 Nos. 16-2312 et al.
a simple snatching or sudden taking of property
from the person of another does not of itself in-
volve sufficient force to constitute robbery,
though the act may be robbery where a struggle
ensues, the victim is injured in the taking, or the
property is so attached to the victim’s person or
clothing as to create resistance to the taking.
Id. There is no meaningful difference between that statement
and the test laid out in Stokeling. Given that fact, the govern-
ment argues that this court correctly held that Illinois robbery
convictions qualify as violent felonies under § 924(e)(2)(B)(i).2
The defendants acknowledge that for robbery convictions
to qualify under ACCA after Stokeling, even slight force is “vi-
olent force” so long as it is employed to overcome the victim’s
resistance. They say, however, that we must examine both the
amount of force and the temporal connection between the
force and the theft component of robbery. Because they un-
derstand Illinois cases to permit a robbery conviction where
the perpetrator does not overcome resistance by the victim or
where the robber uses force after he has stolen the property,
defendants reason that Illinois robbery is not categorically a
violent felony.
Defendants assert that Illinois deems it robbery when the
wrongdoer takes something that is attached to the victim’s
2We acknowledge that in Klikno we decided only that a certificate of
appealability should not issue. That had the practical effect of leaving un-
disturbed the district court’s decision to apply the ACCA enhancement
based on the Illinois statute. But the Supreme Court has instructed us to
reconsider Klikno, along with the merits rulings in the other cases. With
our earlier decision vacated by the Court, we are free to revisit the Certif-
icate of Appealability decision.
Nos. 16-2312 et al. 11
clothing, thus overcoming resistance only from the clothing
without also encountering any struggle or resistance from the
victim. They point to two cases illustrating that a robbery con-
viction does not require force that overcomes resistance di-
rectly from the victim. In People v. Campbell, 84 N.E. 1035, 1036
(Ill. 1908), the Illinois Supreme Court held that the act of rip-
ping off a diamond stud attached to a shirt, followed by a brief
scuffle, was robbery. It said, “In the absence of active opposi-
tion, if the article was so attached to the person or the clothes
to create resistance, however slight, or if there be a struggle to
keep it, the taking is robbery.” Id. The petitioners argue that if
there is an “absence of active opposition” and the only force
used is to separate an item from clothing, there is no re-
sistance by the victim.
The Illinois Supreme Court expanded on the Campbell
analysis in People v. Taylor, 541 N.E.2d 677, 679 (Ill. 1989).
There it distinguished the physical effort of transferring
something from its owner to another, such as taking a wallet
from a person, from “[t]he force required to overcome the
physical resistance created by the attachment of an item to the
person or clothing of the owner.” In Taylor, because the vic-
tim’s “necklace was attached to her person in such a way that
it offered resistance to anyone who would take it without per-
mission,” the court found that the defendant was guilty of
robbery, not theft. We acknowledge that these are fine distinc-
tions, but they are in line with the common-law examples
cited by the Supreme Court in Stokeling to illustrate what con-
stitutes force that overcomes a victim’s resistance. “Under the
common law it was robbery ‘to seize another’s watch or purse
and use sufficient force to break a chain or guard by which it
is attached to his person’ … or pull a diamond pin out of a
woman’s hair when doing so tore away hair attached to the
12 Nos. 16-2312 et al.
pin.” Stokeling, 139 S. Ct. at 550. The Court did not distinguish
between overcoming active resistance by the victim and over-
coming resistance necessary to remove an item that is at-
tached to the clothing or person of the victim. Similarly, in
both Campbell and Taylor the state supreme court held that the
act was robbery because the defendant used force to over-
come the victim’s resistance. The latter two cases do not, in
our view, describe any behavior outside the scope of Stokeling.
Next the defendants assert that, consistent with common
law, force used during robbery to overcome a victim’s re-
sistance must occur before or contemporaneously with the ac-
quisition of control over the property. Because Illinois has al-
lowed robbery convictions where the wrongdoer uses force
only after the theft, they argue, Illinois robbery covers more
territory than generic robbery. They point to People v. Mer-
chant, 836 N.E.2d 820, 824 (Ill. App. Ct. 2005), in which the
court approved a robbery conviction where, after the offender
grabbed a $20 bill from the victim’s hand, a struggle broke out
and the robber pushed the victim against a wall. The court
relied on earlier decisions sustaining convictions for robbery
“where a struggle ensued following the taking, or the perpe-
trator used force when escaping the scene.” Id. at 823. It rea-
soned that although the defendant did not use force to snatch
the money, the evidence suggested that the victim and de-
fendant “struggled over possession of the money,” and this
physical conflict elevated the crime to a robbery when “com-
bined with the immediacy of the struggle following the tak-
ing.” Id. at 824.
The defendants argue that these Illinois cases conform not
to the common law, but to the Model Penal Code, which al-
lows force during flight to turn theft into robbery and thus are
Nos. 16-2312 et al. 13
outside the definition in Stokeling. See Model Penal Code
§ 222.1(1). But the Illinois cases distinguish between, on the
one hand, the use of force after and separate from the taking,
and, on the other hand, the use of force immediately follow-
ing the taking that accomplishes the taking or the defendant’s
departure. Compare People v. Romo, 407 N.E.2d 661, 666 (Ill.
App. Ct. 1980) (vacating robbery conviction where pushing,
kicking, and threatening “occurred just before defendant left
the scene of the crime” and “did not immediately follow the
taking or constitute part of the res gestae of the robbery”), with
People v. Houston, 502 N.E.2d 1174, 1176 (Ill. App. Ct. 1986)
(“defendant’s act of pushing against Ms. Smith when she re-
sisted his attempt to escape with her wallet was force suffi-
cient to support the robbery conviction”); People v. Brooks, 559
N.E.2d 859, 863 (Ill. App. Ct. 1990) (holding that defendant’s
push of victim while leaving scene was sufficient to sustain
robbery conviction because force was used as part of “single
incident and in response to the victim’s challenge immedi-
ately upon the taking and before defendant’s departure”). In
other words, Illinois cases require that force be used as part of
the action of taking or immediately leaving the scene. This can
reasonably be characterized as force necessary to overcome
the victim’s resistance, and thus it is compatible with Stokel-
ing’s definition of force.
Given Stokeling’s emphasis on state practice, it is also
worth noting that the features of Illinois law highlighted by
the defendants are not idiosyncratic to Illinois. As the dissent-
ing justices in Stokeling pointed out, the Florida robbery stat-
ute also sweeps broadly. Although they would have said that
the Florida law flunked the Curtis Johnson test for physical
force, the majority saw things otherwise. The dissenters also
worried that any degree of force could convert larceny into
14 Nos. 16-2312 et al.
robbery, and so (for example) the force element as the major-
ity viewed it could be satisfied by a pickpocket who attempts
to pull free after the victim catches his arm, or a thief who
grabs a bag from a victim’s shoulder (so long as the victim
holds the strap for a moment), or a person who causes a bill
to rip while pulling cash from the victim’s hand. Stokeling, 139
S. Ct. at 558 (Sotomayor, J., dissenting). But the majority
would have found adequate resistance in all of those situa-
tions, and it is their opinion we must follow. The Tenth Circuit
understands Stokeling the same way. In United States v. Ash,
917 F.3d 1238, 1245 (10th Cir. 2019), it examined Stokeling and
held that a Missouri conviction for second-degree robbery is
categorically a crime of violence under the career-offender
provision of the Sentencing Guidelines, § 4B1.2(a)(1), which is
closely related to ACCA. It concluded that although Missouri
courts have upheld robbery convictions where an item was
“so attached to the person or clothes of the owner as to afford
resistance” and where a defendant struggled with store em-
ployees while trying to escape, this degree of force was con-
sistent with Stokeling. Id. at 1244.
III
We can summarize Curtis Johnson and Stokeling as follows:
they require more than the simple offensive touching that the
common law would have called for, but the requirement to
show “force sufficient to overcome a victim’s resistance,” 139
S. Ct. at 548, is not a demanding one. All that remains is to
apply this understanding to the six cases before us.
A. Klikno
In 2007, Steven Klikno pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). He
Nos. 16-2312 et al. 15
was sentenced to 188 months’ imprisonment after receiving
an enhancement under 18 U.S.C. § 924(e) for being an armed
career criminal. Before his federal conviction, Klikno had
amassed four convictions in Illinois: (1) residential burglary;
(2) unlawful restraint; (3) aggravated battery; and (4) a 1995
conviction for armed robbery. In his motion under 28 U.S.C.
§ 2255 for post-conviction relief, Klikno argued that his Illi-
nois unlawful restraint and armed robbery convictions did
not qualify as predicate felonies under the Armed Career
Criminal Act after Samuel Johnson. The government conceded
that Illinois unlawful restraint was no longer a qualifying con-
viction after Samuel Johnson wiped out ACCA’s residual
clause, but it argued that Illinois armed robbery was a quali-
fying crime because it had as an element the requisite amount
of force. The district court agreed, denied relief, and denied
Klikno’s request for a certificate of appealability. Klikno ap-
pealed, and we also declined to issue a certificate of appeala-
bility.
In light of our conclusion that the Illinois simple robbery
crime has as an element the use of physical force as under-
stood by the Stokeling Court, and the fact that armed robbery
encompasses simple robbery, and for the additional reason
that Klikno’s argument under ACCA does not present a sub-
stantial showing of the denial of a constitutional right, we ad-
here to our denial of a certificate of appealability in his case.
B. Van Sach
Following his conviction for being a felon in possession of
a firearm in 2005, Joseph Van Sach was sentenced under
ACCA to 210 months’ imprisonment. The district court im-
posed that sentence because it found that three of Van Sach’s
Illinois convictions—two for aggravated battery to a peace
16 Nos. 16-2312 et al.
officer and one for armed robbery—qualified as “violent felo-
nies” for purposes of ACCA. In 2016, several years after his
first motion under 28 U.S.C. § 2255 was dismissed for failure
to pay the docketing fee, Van Sach sought leave from this
court to pursue a second section 2255 motion based on Samuel
Johnson. We granted that application and authorized the dis-
trict court to consider Van Sach’s arguments that his Illinois
convictions no longer counted as violent felonies under the
ACCA. The district court denied relief; it ruled that all three
convictions still counted, but it granted Van Sach a certificate
of appealability.
We affirmed the denial of relief. With respect to the rob-
bery conviction, we opted to stick with our reasoning in
United States v. Chagoya-Morales, 859 F.3d 411, 422 (7th Cir.
2017), in which “[a] recent examination of a sampling of Illi-
nois cases convinced us that a conviction under Illinois’ rob-
bery statute requires force sufficient to qualify under Curtis
Johnson.” Van Sach, 2017 WL 4842617 at *1. We also found, us-
ing the modified categorical approach, that Van Sach’s aggra-
vated battery convictions were based on the “bodily harm”
provision of the relevant Illinois statute, a provision that sat-
isfied Curtis Johnson’s requirement for violent physical force
according to binding circuit precedent, United States v. Lynn,
851 F.3d 786, 799 (7th Cir. 2017).
We see nothing in Stokeling that undermines those rulings,
and so we once again deny Van Sach’s motion for relief under
28 U.S.C. § 2255.
C. Shields
Ernest Shields was convicted of being a felon in possession
of a firearm in 2013 and was sentenced to the mandatory
Nos. 16-2312 et al. 17
minimum of 180 months’ imprisonment. 18 U.S.C. § 922(g)(1).
That sentence rested on his three previous Illinois convictions
for aggravated battery, residential burglary, and armed rob-
bery. In his motion under 28 U.S.C. § 2255, Shields challenged
the applicability of the “elements clause” to his residential
burglary and armed robbery offenses. We rejected both
claims, finding that his burglary argument was foreclosed by
our decision in Smith v. United States, 877 F.3d 720, 724 (7th
Cir. 2017), cert. denied, 139 S. Ct. 783 (2019), and holding that
his armed robbery convictions qualified as “violent felonies”
for the purpose of sentencing under ACCA. Shields, 885 F.3d
at 1023–24. Upon reconsideration in light of Stokeling, we once
again conclude that Shields’s motion under section 2255 must
be denied.
D. Lipscomb
Tony Lipscomb was convicted of being a felon in posses-
sion of a firearm, 18 U.S.C. § 922(g), possession of a firearm
during a drug trafficking offense, 18 U.S.C. § 924(c)(1), and
possession with intent to distribute cocaine, 21 U.S.C.
§ 841(a)(1). In 1992, he was sentenced to 295 months of impris-
onment on the section 922(g) count after a finding that he was
an armed career criminal, 18 U.S.C. § 924(e); he also received
a concurrent sentence of 240 months on the drug charge and
a consecutive 60-month sentence on the section 924(c)(1)
charge.
Lipscomb was designated as an armed career criminal
based on two Illinois convictions for attempted murder in
1976 and 1979, and a 1975 Illinois conviction for robbery. He
also has prior convictions for armed violence, attempted
armed robbery, and attempted robbery. In his motion for
post-conviction relief under 28 U.S.C. § 2255, Lipscomb
18 Nos. 16-2312 et al.
argued that only the armed violence conviction qualified as a
predicate offense under either the Armed Career Criminal Act
or the guidelines career criminal enhancement after Samuel
Johnson, 135 S. Ct. 2551 (2015). The district court rejected that
argument, and we affirmed. We held that Lipscomb’s two at-
tempted murder convictions and his armed robbery convic-
tion were violent felonies under ACCA’s elements clause. Lip-
scomb, 721 F. App’x 518 (citing Hill v. United States, 877 F.3d
717, 719–20 (7th Cir. 2017) and Shields v. United States, 885 F.3d
1020, 1024 (7th Cir. 2018)). Upon reconsideration in light of
Stokeling, we again conclude that Lipscomb is not entitled to
relief.
E. Pinkney
In 2011, James Pinkney pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Based on his prior Illinois convictions for criminal sexual as-
sault, burglary, and two convictions for robbery, he received
the mandatory minimum 180-month sentence prescribed by
ACCA. He filed a motion under 28 U.S.C. § 2255 after the Su-
preme Court’s decision in Samuel Johnson, arguing that his
sentence was an improper application of the “elements
clause” of the ACCA because his robbery convictions were
not “violent felonies.” Relying on our decision in Shields, we
denied his motion. We did so because armed robbery and rob-
bery shared the same controlling definition of force. Pinkney
v. United States, 734 F. App’x at 988. We also noted that the
timeliness of his appeal was a “close” question that we chose
not to resolve given that Shields disposed of the merits. Id. For
the same reasons we have reaffirmed our judgment in Shields,
we again hold that Pinkney is not entitled to relief.
Nos. 16-2312 et al. 19
F. Browning
In 2005, Lashon Browning was sentenced to 240 months’
imprisonment after a conviction for being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g). The district
judge imposed that sentence based on its finding that three of
Browning’s prior convictions—two Illinois armed-robbery
convictions and an Illinois aggravated battery conviction—
counted as “violent felonies” for purposes of ACCA and so
qualified him as a career offender. Without the ACCA en-
hancement, Browning’s maximum sentence for the conviction
would have been 120 months’ imprisonment.
In a motion under 28 U.S.C. § 2255 filed in 2016, Browning
argued that in the wake of Samuel Johnson, all three of his con-
victions no longer counted as violent felonies for purposes of
ACCA. The district court denied the motion in a 2017 order,
in which it ruled that the aggravated battery conviction was
properly characterized as a violent felony (a ruling not chal-
lenged on appeal), and that the armed-robbery convictions
also continued to qualify under United States v. Dickerson, 901
F.2d 579 (7th Cir. 1990) (holding that Illinois armed robbery is
a violent felony under ACCA)—a decision we had recently re-
affirmed. The district court granted a certificate of appealabil-
ity limited to the armed-robbery convictions.
By the time we resolved Browning’s appeal, we had de-
cided Shields, which confirmed that Dickerson remained good
law and that “Illinois courts require sufficient force for rob-
bery convictions to be predicate violent felonies.” 885 F.3d at
1024. We found that “Browning [did] not give us a reason to
question that analysis [in Shields].” Browning, 723 F. App’x at
344. Although Browning’s appeal brought to our attention the
fact that certiorari had been granted in Stokeling, we predicted
20 Nos. 16-2312 et al.
that Stokeling was “unlikely to change our interpretation of
the Illinois force requirement,” given that Stokeling concerned
a Florida statute that required “only slight force,” unlike the
relevant Illinois provisions. Id. Now that we know the out-
come of Stokeling, we reaffirm our view that Illinois robbery
and armed robbery require “force sufficient to overcome the
victim’s resistance,” and thus a conviction under either of
those laws may be used as a predicate under ACCA.
* * *
In summary, we conclude that nothing in the Supreme
Court’s decision in Stokeling requires a different result in any
of the six cases discussed here. Our conclusions follow:
 In No. 16-2312, we again DENY a certificate of ap-
pealability for Steven Klikno.
 In No. 17-1824, we AFFIRM the denial of Joseph
Van Sach’s motion under 28 U.S.C. § 2255.
 In No. 17-1929, we AFFIRM the denial of Ernest
Shields’s motion under 28 U.S.C. § 2255.
 In No. 17-2233, we AFFIRM the denial of Tony Lip-
scomb’s motion under 28 U.S.C. § 2255.
 In No. 17-2339, we AFFIRM the denial of James
Pinkney’s motion under 28 U.S.C. § 2255.
 In No. 17-2514, we AFFIRM the denial of Lashon
Browning’s motion under 28 U.S.C. § 2255.
SO ORDERED.