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After the Indiana Supreme Court declined to answer a certified question on what constitutes arson under state law, the 7th Circuit Court of Appeals answered that question for itself, vacating a man’s 15-year sentence after determining that the state’s 2002 definition of arson does not qualify as a crime of violence.
Judge Michael Scudder wrote the opinion for the federal appellate court Tuesday in United States of America v. Sergio Gamez, 22-2278.
In June 2021, Sergio Gamez pleaded guilty to unlawfully possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). At the time, Gamez had three prior felony convictions for robbery and aiding and abetting arson.
At Gamez’s sentencing, the question was whether his three prior felony convictions triggered the sentencing enhancement under § 924(e) of the Armed Career Criminal Act. His prior convictions were viewed as qualifying violent felonies, leading to a 15-year mandatory minimum sentence.
On appeal, the question of whether Gamez’s Indiana arson conviction qualified as a predicate violent felony was renewed.
In an August decision, the 7th Circuit asked the Indiana Supreme Court to weigh in, certifying the following question to the justices: “Under Indiana law, need the state prove that the defendant burned property in order to obtain a conviction for arson? Or is it sufficient to prove that the defendant more generally caused damage to property ‘by means of fire, explosive, or destructive device?’”
But the justices declined to accept the certified question in September, although the high court’s order shows that Chief Justice Loretta Rush and Justice Derek Molter voted to accept it.
Back at the 7th Circuit, the appellate court again considered Gamez’s argument that his arson offense was not a crime of violence because “arson” under the 2002 version of Indiana Code § 35-43-1-1(a) is categorically broader than “arson” as described in § 924(e).
“That view finds support in the statutory text enacted into law by the Indiana General Assembly,” Scudder wrote. “Unlike generic arson, Indiana’s 2002 arson statute does not require burning. The statute extends to property damage caused by ‘fire, explosive, or destructive device.’
“If ‘destructive device’ were limited to devices that cause fire, it would be duplicative of the terms ‘fire’ and ‘explosive’ that immediately precede it,” the judge continued. “… The statute’s plain language does not support such a construction.
“… By not confining itself to fire-related damage,” he wrote, “the text of the 2002 statute would seem to exceed to scope of the generic federal definition of arson, suggesting that arson under Indiana law may not qualify as a ‘crime of violence’ within the meaning of 18 U.S.C. § 924(e).”
The parties also disputed the corpus delicti of arson.
The government argued the doctrine requires evidence of burned property and that, under the corpus delicti rule, Indiana courts require prosecutors to provide evidence of fire-related property damage in all arson cases.
However, the 7th Circuit disagreed.
“Corpus delicti does not add to the elements a prosecutor must prove to secure a conviction under a criminal statute,” Scudder wrote. “It simply requires a minimum level of proof that an offense — however defined — actually occurred. Establishing the statutory elements of an offense necessarily satisfies the corpus delicti rule because the doctrine exists and operates in a more limited manner — to ensure that a charged crime happened.”
Caselaw supports that conclusion, Scudder continued, adding that the federal court found no decision in which an Indiana court struck down an arson conviction under the corpus delicti rule based on a lack of burning after the passage of the 1976 statute.
“To the contrary,” he wrote, “Indiana courts have upheld arson convictions under the modern statute even when no property was burned.”
Thus, the 7th Circuit vacated Gamez’s 15-year sentence and remanded for resentencing without the mandatory minimum required by § 924(e).
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