Terry Jones v. United States ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 30, 2020*
Decided February 11, 2020
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐1173
TERRY JONES, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 16 C 6396
UNITED STATES OF AMERICA,
Respondent‐Appellee. Milton I. Shadur,
Judge.
ORDER
Terry Jones moved under 28 U.S.C. § 2255 to vacate his sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), arguing that his previous Illinois
*
We have agreed to decide this case without oral argument because the briefs and record
adequately present the facts and legal arguments, and oral argument would not significantly aid the
court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐1173 Page 2
robbery convictions do not qualify as violent felonies under the Act. The district court
denied the motion. Because Illinois robbery qualifies as a violent felony under ACCA,
see Klikno v. United States, 928 F.3d 539, 545–46 (7th Cir. 2019), we affirm.
I
Jones pleaded guilty in 2007 to one count of possession of a firearm by a felon.
18 U.S.C. § 922(g). The Probation Office determined that he qualified for an enhanced
sentence under ACCA based on three previous Illinois convictions: armed violence,
robbery, and manufacture/delivery of a controlled substance. The Probation Office also
noted that Jones had two additional convictions for Illinois robbery. Adopting the PSR,
the district court sentenced him in 2008 to § 924(e)’s statutory minimum of 180 months.
Eight years later, in 2016, Jones moved to vacate his sentence under 28 U.S.C.
§ 2255. He argued that the Supreme Court’s recent invalidation of ACCA’s residual
clause in Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), precluded his prior
conviction for Illinois robbery from qualifying as a predicate offense under ACCA. The
government countered that Jones’s three convictions for Illinois robbery, now codified
at 720 ILCS 5/18‐1(a), still qualified as predicate offenses under ACCA’s “elements
clause.”
The district court denied Jones’s § 2255 motion and his request for a certificate of
appealability. The court accepted the government’s position that an Illinois robbery
qualifies as a violent felony—and predicate offense—under ACCA’s “elements clause.”
Jones moved pro se to reconsider, and the district court denied this motion. Jones then
moved for a certificate of appealability, which we granted.
II
On appeal Jones argues that Illinois robbery is not a qualifying conviction under
ACCA because the crime can be committed using less than “physical force.”
See 18 U.S.C. § 924e(2)(B)(i) (covering offenses that have as an element “the use,
attempted use, or threatened use of physical force”). For support, he points to
United States v. Stokeling, 139 S. Ct. 544, 550–52, 555 (2019), in which the Supreme Court
drew upon the common‐law definition of robbery—requiring “sufficient force … to
overcome resistance,” id. at 551—and held that Florida robbery qualifies as a violent
felony under ACCA because it requires a degree of force necessary to overcome a
victim’s resistance. Jones reads Stokeling to suggest that Illinois robbery cannot
categorically be a violent felony because Illinois robbery covers situations when the
No. 17‐1173 Page 3
defendant uses no force to overcome resistance by the victim, or when the defendant
uses force only after theft.
But Jones’s arguments are foreclosed by Klikno v. United States, 928 F.3d 539
(7th Cir. 2019). In Klikno, we concluded that Illinois robbery is categorically a violent
felony under ACCA because no difference exists between Stokeling’s definition of force
and the force required by the Illinois robbery statute—characterized as “force necessary
to overcome the victim’s resistance.” 928 F.3d at 546. We rejected the idea that one can
commit Illinois robbery without using force to overcome the victim’s resistance, or by
applying force only after a taking. Id. at 545–47.
Jones relatedly argues that Illinois permits a robbery conviction even when the
defendant uses no force. He principally relies on People v. Campbell, 84 N.E. 1035, 1036
(Ill. 1908), which held that a taking is a robbery generally if there is a struggle to keep
the item, or, even “in the absence of active opposition, if the article is so attached to the
person or clothes as to create resistance, however slight.” But the defendant in Campbell
did use force to overcome the victim’s resistance when he pulled off a diamond stud
attached to the victim’s shirt, engaging in a scuffle for the diamond either mid‐pull or
immediately after. Id. Campbell thus cannot be read to permit a broader range of force
than that permitted by ACCA. Klikno, 928 F.3d at 545. In Klikno, we explained that the
common‐law examples of robbery in Stokeling, 139 S. Ct. at 550—pulling a diamond pin
out of the victim’s hair with enough force to tear out hair, and seizing another’s watch
with enough force to break the chain attached to the victim’s person—do not
distinguish between overcoming a victim’s active resistance and overcoming the
passive resistance produced by the attachment of an item to the victim’s person or
clothing. Klikno, 928 F.3d at 545. See also People v. Taylor, 541 N.E.2d 677, 679–680 (Ill.
1989).
Jones next argues that Illinois permits a robbery conviction even when the
defendant uses force only after a taking, and so a robber in Illinois need not use force to
overcome a victim’s resistance. But as we explained in Klikno, Illinois robbery does not
include scenarios where the perpetrator applied force clearly after and separate from
the taking. 928 F.3d at 546. Klikno relies on an Illinois Appellate Court decision, People v.
Romo, in which the defendant’s robbery conviction was reduced to theft because his use
of force was separate from the taking—the defendant had pushed, kicked, and
threatened the victim only after he had taken money from the victim’s wallet, returned
the victim’s wallet to him, and returned ten dollars to the victim. 407 N.E.2d 661, 666
(Ill. App. Ct. 1980). Illinois robbery requires that the use of force follow the taking
No. 17‐1173 Page 4
immediately and be for the purpose of either overcoming the victim’s effort to recapture
the item or helping the defendant to escape. See People v. Houston, 502 N.E. 1174, 1176
(Ill. App. Ct. 1986) (defendant pushed against victim when she took hold of his arm as
he tried to escape her office with her wallet); People v. Brooks, 539 N.E.2d 859, 861, 863
(Ill. App. Ct. 1990) (defendant pushed victim’s shoulder when she verbally resisted his
taking her wallet).
Jones seems to argue that Illinois does allow for robbery convictions based on
force applied only after the taking because the Illinois Appellate Court disavowed Romo
in a later opinion. The appellate court in People v. Merchant, 836 N.E.2d 820, 823 (Ill.
App. Ct. 2005), wrote that Romo “does not control our decision in this case. We are not
inclined to rely on the outdated, vague, and imprecise concept of res gestae.” But Jones
misreads Merchant. The Merchant court characterized its facts as belonging to a “single
incident”: The victim and defendant fought immediately after the defendant snatched
the money from the victim’s hand. Id. at 823–24. The facts in Romo, by contrast, formed
“separate incidents”: The defendant used force against the victim clearly after and
separate from the defendant’s taking of the victim’s wallet. Merchant, 836 N.E.2d at 823
(citing Romo, 407 N.E.2d at 666). Further, because “a decision of an [Illinois] appellate
court may only be reversed or overruled by [the Illinois Supreme Court],” the Merchant
decision did not overrule Romo (both decisions were decided by Illinois appellate
courts). Gillen v. State Farm Mut. Auto. Ins. Co., 830 N.E.2d 575, 581 n.2 (Ill. 2005). Romo
remains good law.
AFFIRMED