United States v. Sergio Gamez

We assume familiarity with our prior opinions in 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), and focus only on the facts and procedural history relevant to the issues in this appeal. In June 2021, Gamez pleaded guilty to unlawfully possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). At the time he had three prior Indiana convictions—two for robbery and one for aiding and abetting arson—that were deemed "violent felonies"

and thereby triggered the sentencing enhancements under 18 U.S.C. § 924(e) of the Armed Career Criminal Act ("ACCA"). The district court sentenced him as an armed career criminal to the 15-year statutory minimum. On appeal, we vacated his sentence and remanded for resentencing because Indiana arson did not qualify as a violent felony under § 924(e). See Gamez, 89 F.4th at 613.

Before the resentencing hearing, the United States Probation Office prepared a revised presentence report. The PSR calculated Gamez's base offense level at 24 because he had two prior convictions for Indiana robbery that qualified as crimes of violence. See U.S.S.G. § 2K2.1(a)(2). Indiana robbery is defined as "a person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear." I ND. CODE § 35-42-5-1. And a crime of violence is defined as any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1), or any offense that "is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful use of a firearm … or explosive material," id. § 4B1.2(a)(2).

The PSR then added four levels to Gamez's base offense level because he possessed a firearm in connection with two other felony offenses, criminal recklessness and criminal confinement. See U.S.S.G. § 2K2.1(b)(6)(B). The PSR also assessed a two level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), and a one level reduction for assisting the authorities in the investigation or prosecution of his own misconduct, see U.S.S.G. § 3E1.1(b). The PSR calculated Gamez's guidelines range at 100 to 125 months (based on a total offense level of 25 after the adjustments and a criminal history category of V), reduced to 100 to 120 months to match the 10-year maximum sentence. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).

Gamez objected to the PSR's application of § 2K2.1(a)(2), arguing that Indiana robbery did not qualify as a crime of violence because the Indiana robbery statute is

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broader than the definitions of a crime of violence in § 4B1.2(a).¹He pointed to the language of Indiana's robbery statute, which requires that the prosecution prove the alleged robber used or threatened to use force on "any person." IND. CODE § 35-42-5-1. He contended that "any person," could include himself, and contrasted that with the definition of a crime of violence in § 4B1.2(a)(1), which requires the force to be directed against another person. He argued that generic definition of robbery in § 4B1.2(a)(2) also required the force to be directed against another person.²In Gamez's view, a defendant could be convicted of Indiana robbery for threatening self-harm and still not be convicted of a crime of violence for the same conduct.³Gamez contended that if his Indiana robbery convictions did not qualify as crimes of violence, then his guidelines range would drop to 37 to 46 months.

At the resentencing hearing, the district court overruled Gamez's objection and determined that his two Indiana robbery convictions qualified as crimes of violence. The court applied the categorical approach to determine whether Gamez's prior state felony convictions qualified as crimes of violence. See United States v. Duncan, 833 F.3d 751, 754 (7th Cir. 2016). The court noted that it was bound by our precedent holding that Indiana robbery qualifies as a crime of violence under § 4B1.2(a)(1). See United States v. Armour, 840 F.3d 904, 907 (7th Cir. 2016). The court concluded alternatively that it was

"overwhelmingly convinced" that Indiana robbery qualified as a crime of violence under § 4B1.2(a)(2) because the state statute and guidelines provision are "dead ringers for one another"—both require the government to prove that the defendant took

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property from another person by means of force or by putting the other in fear. Lastly, the court determined that there was no realistic probability that someone could be convicted of Indiana robbery for threatening self-harm because "no one commits robbery by pulling out a gun and putting a gun to their [own] head and say[ing], 'Give me your wallet.' That doesn't make any sense." The court sentenced Gamez to 100 months.

On appeal, Gamez first argues that the district court misapplied the categorical approach because the definition of force under Indiana's robbery statute is broader than the definition of force in § 4B1.2(a)(1). Specifically, he maintains that the state statute lacks a physical force requirement because, in his reading, the Indiana Supreme Court has equated the element of force in the robbery statute with the lesser included offense of criminal confinement—substantial interference with a person's liberty without consent. See Wethington v. State, 560 N.E.2d 496, 508 (Ind. 1990). But the district court's ruling was correct because the definition of force under Indiana's robbery statute is not broader than the definition of force in § 4B1.2(a)(1). Under the categorical approach, "we consider whether the elements of the prior felony required the prosecution to prove defendant used, attempted to use, or threatened to use physical force against the person of another." Portee v. United States, 941 F.3d 263, 266 (7th Cir. 2019). While a person convicted of Indiana robbery could also be convicted of the lesser offense of criminal confinement, see Wethington, 560 N.E.2d at 508, a conviction for Indiana robbery still requires that the force "be a greater degree of force than would be necessary to take possession of the victim's property if no resistance was offered," Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984).

Next, Gamez argues that the district court ignored the plain language of Indiana's robbery statute, which he says allows the government to convict a person of robbery for threatening self-harm. Gamez contends that the state statute's requirement that the force be directed at "any person" includes the defendant, and therefore the statute is a categorical mismatch for the definition of a crime of violence in § 4B1.2(a)(1) and the generic definition of robbery in § 4B1.2(a)(2)—both of which require that the threat of force be directed against another person. See § 4B1.2(a)(1); Bridges v. United States, 991 F.3d 793, 801 (7th Cir. 2021).

But Gamez cannot show a categorical mismatch by simply pointing to textual differences or invoking purely abstract scenarios. See United States v. Hatley, 61 F.4th 536, 540 (7th Cir. 2023). After all, "[e]very Supreme Court decision applying the

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categorical approach has contemplated real rather than imaginary discrepancies between the elements of state and federal statutes." United States v. Turner, 47 F.4th 509, 521 (7th Cir. 2022); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Instead, under the realistic probability test, Gamez must demonstrate that someone could be convicted of Indiana robbery for threatening self-harm. Portee, 941 F.3d at 272. To do so, he must find "real-life examples" that show conduct potentially satisfying Indiana robbery but not the definitions of a crime of violence in § 4B1.2(a). Id. at 272-73. Gamez concedes that he has not found a single example where a defendant was convicted of robbery for threatening self-harm.

Gamez argues that the district court erred when it determined that there was no realistic probability that a defendant could be convicted of Indiana robbery for threatening self-harm. He contends that the realistic probability test applies only when the state statute and generic definition clearly overlap, which is not the case here. But we apply the realistic probability test where, as here, "the language of the state statute is ambiguous or has indeterminate reach," United States v. Anderson,

99 F.4th 1106, 1112 (7th Cir. 2024) (internal quotation omitted). In this case, it is ambiguous whether "any person" in Indiana's robbery statute includes the defendant. In Portee, we noted that the plain language of Indiana's intimidation statute—which has a similar element to Indiana's robbery statute requiring that the force be directed against "a human being"—was ambiguous as to whether "human being" included the defendant. See Portee, 941 F.3d at 271. But in determining that the state statute was a categorical mismatch for the ACCA, we cited "real-life examples of scenarios potentially satisfying the relevant division of Indiana intimidation but not the ACCA's elements clause." Id. at 272. Here, like the appellee and district court, we could not find any real-life scenarios in which a defendant could be convicted of robbery for threatening self-harm.

Gamez argues in the alternative that he has now found two Indiana cases that clearly establish that a defendant could be convicted of Indiana robbery for solely threatening self-harm. He first points to the Indiana Supreme Court's decision in Maul

v. State, in which the Indiana Supreme Court held that "any threat of force, conveyed by word or gesture will suffice" for a robbery conviction under Indiana law. 467 N.E.2d at 1199-1200. He contends that this formulation plainly includes threats of self-harm. But the Indiana Supreme Court determined not that the defendant's threats of self-harm constituted a threat of force, but that the defendant's act of wrenching a purse from a victim's arm was enough force to constitute violence. Id.

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And in his reply brief, Gamez cites Jones v. State, No. 73A01-1408-CR-334, 2015 WL 1228259, at *3 (Ind. App. 2015), for the proposition that the robbery statute does not require the force to be directed at the victim. But although Jones v. State reiterated that Indiana's robbery statute requires that the use of force be directed at "any person," it was addressing the defendant's use of a car to block a police officer pursuing him, not threats of self-harm. See id. These cases fall short of establishing that threats of self-harm constitute force sufficient to constitute robbery under Indiana law. Also in his reply brief, Gamez attempts to introduce robbery cases where he says the threatened use of force was against the defendant. But these cases fail to show a realistic probability that a defendant could be convicted of robbery for threats of self-harm. The cases Gamez cites are "inside man" scenarios where the robbers conspired with an employee or someone pretending to be a patron during the robbery, and the "inside man" was threatened with force alongside the real victims. See 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). He contends that these cases demonstrate that robbery can be committed in a way where the person facing the threat of harm is the defendant. But the defendant or defendants were convicted based on the threats made to the other victims and not solely the threats to the "inside man."

We have considered Gamez's other arguments, and none merits discussion.

AFFIRMED

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