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A man’s conviction for aggravated vehicular hijacking met the criteria to be classified as a crime of violence for the purposes of a sentence enhancement, the 7th Circuit Court of Appeals has affirmed.
After being convicted of bank robbery, the Indiana Northern District Court determined at sentencing for Terrance Brown that he was a career offender. Brown was sentenced to 15 years, below the sentencing guidelines advisory range.
The district court found Brown had two prior convictions of crimes of violence as defined under §4B1.1(a) of the sentencing guidelines. A crime of violence is “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that … has as an element the use, attempted use, or threatened use of physical force against the person of another,” according to the guidelines.
Brown appealed, arguing the district court erred in considering him to be a career offender.
The 7th Circuit disagreed.
Relevant to the case was Brown’s 2010 conviction in Illinois for aggravated vehicular hijacking in Illinois.
At the time of his conviction, a person could be convicted of vehicular hijacking if the person “t[ook] a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force.”
Brown argued in the district court that the characterization of a crime of violence in his case couldn’t survive the U.S. Supreme Court’s decision in Borden v. United States, 141 S. Ct. 1817 (2021), in which the court construed the term “violent felony” under the Armed Career Criminal Act, which contains an elements clause identical to that found in the sentencing guidelines.
The high court ruled that under the categorical approach, an offense does not involve the “use of physical force against the person of another” if the offense can be committed with a mens rea of recklessness.
The district court rejected Brown’s argument.
In affirming the district court’s judgment, the 7th Circuit opinion says the appellate court didn’t need to look at the specific facts underlying Brown’s conviction, but rather examine only whether the Illinois criminal statute “has as an element the ‘use, attempted use, or threatened use of physical force against the person of another,’” as required by §4B1.2(a)(1).
If the crime may be committed in a less culpable manner, there is a categorical mismatch, and the crime can’t be a predicate offense of the federal sentencing guideline.
Brown argued that at the time of his conviction, the state statute didn’t have an express mens rea requirement, and that a separate “catchall” provision of the state’s criminal code says if a statute “does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability),” then a mental state of intent, knowledge or recklessness will apply.
Taken together, Brown argued vehicular hijacking can’t be committed with a reckless use of force, making it categorically overbroad.
“We cannot accept this argument,” the 7th Circuit ruled.
Even before it was amended to add an express mens rea of “knowingly,” the 7th Circuit said there was an “implied element the knowing or purposeful use or threat of force — namely, the use or threat of force aimed at taking control or possession of a motor vehicle.”
“At the outset, we must bear in mind the significance of the object of this offense: a motor vehicle,” the opinion says. “Unlike other forms of property which might, conceivably, be taken recklessly or even accidentally, it is difficult, if not impossible, to conceive of taking a motor vehicle from another person in any manner other than knowingly and purposefully. Operating or directing a motor vehicle involves conscious and deliberate action.”
The 7th Circuit also noted that the language of the statute “strongly suggests that force or intimidation must be aimed or directed at the taking of the motor vehicle.”
Senior Judge Kenneth Ripple wrote the opinion in United States of America v. Terrance Brown, 22-1192.
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