7th Circuit vacates brandishing sentence for lack of jury finding

A man convicted of attempted robbery in Indiana federal court will be resentenced after the 7th Circuit Court of Appeals found Tuesday that the jury failed to find that the defendant had actually aided and abetted the brandishing of firearms during the robbery.

On June 26, 2013, Deandre Amour and two other men attempted to rob a bank in an Indianapolis suburb at gunpoint, with Armour directing the scheme. When the teller of the bank was unable to open the safe, Armour directed his team to abort the robbery, and the three men fled the bank after stealing the teller’s car.

Armour’s accomplices pleaded guilty and one testified against him at his trial. The jury found Armour guilty on the charges of conspiracy to commit armed bank robbery, aiding and abetting bank robbery, and aiding and abetting using or carrying and/or brandishing a firearm during and in relation to a crime of violence. He was sentenced to 27 years in prison, including a seven-year consecutive sentence on the crime of aiding and abetting with a firearm, the mandatory minimum sentence for that crime.

When Armour appealed, he did not challenge the first two charges against him, but instead argued that his sentence was based on the incorrect finding that he was a career offender because two prior convictions for robbery should no longer qualify as “crimes of violence.” Further, Armour argued that the firearm conviction should be reversed because attempted armed bank robbery should not qualify as a “crime of violence.” But if his conviction stands, then Armour argued that the seven-year mandatory sentence should be vacated because the jury did not find that he aided and abetted the brandishing of the firearms.

The 7th Circuit Court of Appeals disagreed with Armour’s first two arguments Tuesday, writing that Indiana robbery does qualify as a crime of violence because it may be committed by “putting any person in fear.” In Indiana, the definition of putting a person in fear means “fear of bodily injury,” the 7th Circuit wrote, and Indiana courts have interpreted the related statute to mean that fear of bodily injury “involves an explicit or implicit threat of physical forces and therefore qualifies as a violent felony.”

Similarly, the appellate court wrote that attempted armed robbery in Indiana does qualify as a “crime of violence” because the crime of attempted robbery at a federal level qualifies as a crime of violence, which the U.S. Supreme Court has held is not unconstitutionally vague. Further, the 7th Circuit also rejected Armour’s argument that robbery by intimidation is different than robbery by force or violence, writing that the threshold for the violent force that must be feared for robbery by intimidation to be considered a crime of violence is low enough that even the fear of being slapped in the face is enough.

However, the 7th Circuit agreed with Armour’s argument that the jury did not find that he aided and abetted the brandishing of the firearms used in the robbery. The court wrote that the jury did not find that Armour was responsible for brandishing the firearms and that the jury instructions and verdict form did not require jurors to distinguish among using, carrying and brandishing a firearm. Thus, applying the minimum seven-year sentence for that charge was plain error, Judge David Hamilton wrote.

The appellate court vacated Armour’s seven-year mandatory minimum consecutive sentence and remanded the case to resentence him on the prison portion of the firearm charge, but also noted that the verdict still supports the five-year mandatory minimum sentence for using or carrying a firearm.

The case is United States of America v. Deandre Armour, 15-2170.

This article has been updated to reflect a correction of a clerical mistake in the 7^th Circuit Court of Appeals’ opinion.