Ambiguity in “Any Person” Robbery Statutes Requires a Realistic-Probability Showing; Indiana Robbery Remains a Guidelines “Crime of Violence”

1. Introduction

In United States v. Sergio Gamez (7th Cir. Aug. 26, 2026) (nonprecedential order), the Seventh Circuit affirmed a 100-month sentence imposed after remand. The defendant, Sergio Gamez, pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). His original sentence had been enhanced under the Armed Career Criminal Act (ACCA), but the Seventh Circuit previously vacated that ACCA sentence because Indiana arson did not qualify as a “violent felony.”

On resentencing, the key issue shifted from the ACCA to the Sentencing Guidelines: whether Gamez’s two prior Indiana robbery convictions, IND. CODE § 35-42-5-1, qualified as “crimes of violence” for purposes of U.S.S.G. § 2K2.1(a)(2), which would raise the base offense level. Gamez—proceeding pro se—argued the Indiana robbery statute is broader than the Guidelines definition because it allows force “on any person,” which, he contended, could include threatening self-harm.

2. Summary of the Opinion

The Seventh Circuit affirmed. It held that Indiana robbery is not overbroad as to “physical force” and that Gamez failed to satisfy the realistic probability test for his “self-harm robbery” theory. Textual or hypothetical overbreadth was insufficient; Gamez needed real-world examples showing Indiana actually applies the statute to conduct (threatening oneself) that would fall outside U.S.S.G. § 4B1.2(a). He conceded he found none, and the additional cases he later cited did not establish convictions based solely on threats of self-harm.

3. Analysis

A. Precedents Cited

1) The case’s prior appellate history

  • United States v. Gamez, 77 F.4th 594, 597 (7th Cir. 2023) and United States v. Gamez, 89 F.4th 608, 613 (7th Cir. 2024): The panel assumed familiarity with these decisions. Most importantly, Gamez (2024) explains why the original ACCA sentence could not stand (Indiana arson did not qualify under 18 U.S.C. § 924(e)), setting up the resentencing posture in which the Guidelines—rather than the ACCA—became outcome-determinative.

2) Categorical approach framework

  • United States v. Duncan, 833 F.3d 751, 754 (7th Cir. 2016): Cited for using the categorical approach—comparing statutory elements, not the defendant’s actual conduct—to decide whether a prior conviction matches a federal “crime of violence” definition.
  • Portee v. United States, 941 F.3d 263, 266 (7th Cir. 2019): Provides the controlling articulation for the elements-clause inquiry: whether the prior offense required proving the defendant used/attempted/threatened physical force against the person of another. Portee also supplies the realistic probability requirement the panel applied here.

3) Indiana robbery as a “crime of violence”

  • United States v. Armour, 840 F.3d 904, 907 (7th Cir. 2016): The district court treated Armour as binding authority that Indiana robbery qualifies under the Guidelines’ elements clause (U.S.S.G. § 4B1.2(a)(1)). This precedent constrained the district court’s discretion at resentencing and framed Gamez’s attempt to distinguish Indiana robbery through a novel overbreadth argument.
  • Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984): Used by the Seventh Circuit to rebut Gamez’s “force is too minimal” argument. Maul states robbery force must be “a greater degree of force than would be necessary to take possession of the victim’s property if no resistance was offered,” supporting that Indiana robbery involves the kind of force the elements clause demands.
  • Wethington v. State, 560 N.E.2d 496, 508 (Ind. 1990): Gamez relied on Wethington to argue Indiana “force” is so broad it collapses into criminal confinement (interference with liberty). The Seventh Circuit acknowledged that robbery may encompass conduct that could also satisfy criminal confinement, but treated that as not negating the higher force threshold robbery still requires under Indiana law (as reflected in Maul).

4) Enumerated “robbery” and the generic definition

  • Bridges v. United States, 991 F.3d 793, 801 (7th Cir. 2021): Cited for the proposition that when the Guidelines do not define “robbery,” courts apply the generic definition. This mattered because the panel considered (consistent with the district court’s alternative holding) whether Indiana robbery matches generic “robbery” under U.S.S.G. § 4B1.2(a)(2) (the enumerated-offense clause).

5) Overbreadth requires real, not imaginary, mismatch

  • United States v. Hatley, 61 F.4th 536, 540 (7th Cir. 2023) and United States v. Turner, 47 F.4th 509, 521 (7th Cir. 2022): These cases reinforce that a defendant cannot win a categorical mismatch by pointing only to semantic differences or far-fetched hypotheticals. The mismatch must be grounded in how the statute actually operates.
  • Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007): The Supreme Court source of the “realistic probability” principle: to show overbreadth, a defendant must show the state actually prosecutes the broader conduct (typically by identifying cases).
  • United States v. Anderson, 99 F.4th 1106, 1112 (7th Cir. 2024): Important to the panel’s response to Gamez’s pushback on “realistic probability.” The panel treated Anderson as authorizing the realistic probability test where the state statute’s language is “ambiguous or has indeterminate reach.” Here, whether “any person” includes the defendant was deemed ambiguous, so the realistic probability showing was required.

6) Application to “self-harm” theories and the insufficiency of Gamez’s cited cases

  • Jones v. State, No. 73A01-1408-CR-334, 2015 WL 1228259, at *3 (Ind. App. 2015): Gamez cited Jones as suggesting force need not be directed at the victim. The Seventh Circuit found Jones addressed the use of a car to block a pursuing officer, not threats of self-harm, and thus did not prove Indiana robbery is applied to self-directed threats.
  • “Inside man” authorities cited by Gamez—United States v. Hano, 922 F.3d 1272, 1294 (11th Cir. 2019); State v. Megard, No. 27738- 1-111, 2010 WL 2104653, at *1 (Wash. App. May 27, 2010); United States v. Hoskins, 282 F.3d 772, 775 (9th Cir. 2002); People v. Curtis, 497 N.E.2d 1004, 1006 (Ill. 1986); State v. Allie, 710 P.2d 430, 432 (Ariz. 1985); People v. Lane, 194 N.E.2d 272, 273 (Ill. 1963): The panel rejected these as irrelevant to the claimed overbreadth because they involved threats made to real victims (even if an “inside” participant was also threatened), not convictions premised solely on threats to oneself.

B. Legal Reasoning

  1. Guidelines hook: If a defendant has two prior “crimes of violence,” U.S.S.G. § 2K2.1(a)(2) sets a higher base offense level for firearm offenses. The operative definition comes from U.S.S.G. § 4B1.2(a), which includes: (i) an elements clause (use/attempted use/threatened use of physical force against another person) and (ii) an enumerated-offense clause listing “robbery,” among other crimes.
  2. “Force” is not too minimal under Indiana robbery: The panel rejected Gamez’s argument that Indiana robbery lacks a qualifying “physical force” element, relying on Indiana authority (especially Maul v. State) indicating robbery requires more than the minimal force involved in a simple taking. The fact that some robbery conduct might also satisfy criminal confinement (Wethington v. State) did not eliminate robbery’s additional force requirement.
  3. “Any person” and the self-harm theory: Gamez’s core claim was that Indiana robbery permits conviction where the robber threatens force against “any person,” including himself, which would not satisfy the Guidelines’ requirement that force be “against the person of another” (§ 4B1.2(a)(1)) and would not match generic “robbery” under the enumerated clause (§ 4B1.2(a)(2)).
  4. Realistic probability is required given ambiguity: The panel treated the “any person” question as ambiguous, triggering the need for a real-world demonstration that Indiana applies the statute to self-harm threats. It emphasized that categorical analysis does not turn on “purely abstract scenarios” (United States v. Hatley; United States v. Turner), and invoked Gonzales v. Duenas-Alvarez and Portee v. United States to require “real-life examples.”
  5. Failure of proof: Gamez conceded he had not found a single Indiana robbery conviction based on threatening self-harm, and the additional cases he cited did not supply that missing link. Accordingly, he did not establish a categorical mismatch.

C. Impact

Although designated a nonprecedential disposition, the order reflects and reinforces two practical points in Seventh Circuit Guidelines litigation:

  • Indiana robbery remains difficult to attack as a “crime of violence” for Guidelines purposes, given United States v. Armour and the panel’s reaffirmation that Indiana robbery entails qualifying force and matches robbery concepts used in § 4B1.2.
  • Text-based overbreadth arguments face a “realistic probability” barrier when the asserted overbreadth depends on ambiguous statutory reach. Defendants must be prepared to produce actual state cases showing application to the broader conduct—especially for inventive theories (like “self-harm robbery”).

4. Complex Concepts Simplified

  • Categorical approach: A method that looks only to the statutory elements of the prior offense, not what the defendant actually did, to see if it necessarily matches the federal definition.
  • Elements clause vs. enumerated-offense clause (Guidelines): Under § 4B1.2(a)(1), the crime must require “physical force” against another person (elements clause). Under § 4B1.2(a)(2), certain crimes (including “robbery”) count if the state offense matches the generic understanding of that crime.
  • Generic robbery: The common, widely accepted definition of robbery used when the Guidelines do not supply their own definition. (Bridges v. United States).
  • Realistic probability test: A defendant cannot invalidate a match just by imagining a strange application; he must show the state actually applies the statute that way—usually by citing real cases. (Gonzales v. Duenas-Alvarez; Portee v. United States).

5. Conclusion

The Seventh Circuit affirmed Gamez’s 100-month sentence because his Indiana robbery convictions remained “crimes of violence” for Guidelines purposes. The court rejected (1) the claim that Indiana robbery’s “force” element is too weak and (2) the theory that “any person” makes the statute overbroad by permitting “self-harm” robberies. The order underscores that where statutory language is ambiguous, categorical overbreadth must be proven with real-world state applications—not textual conjecture or hypothetical scenarios.