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United States v. Townsend

United States District Court, D. Minnesota

December 19, 2016

United States of America, Plaintiff,
Edward Lee Townsend, a/k/a Edward Earl Townsend, Defendant.

          Benjamin Bejar and Craig R. Baune, United States Attorney's Office, for Plaintiff.

          Lisa M. Lopez and Manvir K. Atwal, Office of the Federal Defender, for Defendant Edward Townsend.


          SUSAN RICHARD NELSON, United States District Judge.

         On December 14, 2016, this Court sentenced the Defendant Edward Townsend (“Townsend”) based on his recent federal conviction for being a felon in possession of a firearm. (See Court Minutes dated December 14, 2016 [Doc. No. 82].) At the hearing, the Court held-over Townsend's objections-that the Armed Career Criminal Act's (“ACCA”) minimum mandatory sentence applied because Townsend had the requisite three prior violent felony convictions. The Court stated its reasons on the record, but issues this written opinion memorializing that holding.


         Townsend has four prior felony convictions: (1) a Wisconsin conviction for substantial battery, (2) a Minnesota conviction for fifth-degree assault, (3) a Minnesota conviction for first-degree aggravated robbery, and (4) a Wisconsin conviction for armed robbery with threat of force. (Presentence Investigation Report (“PSR”) at ¶¶ 34, 42, 44, 45 [Doc. No. 71].) The ACCA imposes a minimum mandatory sentence of fifteen years on defendants convicted of being a felon in possession of a firearm if, in relevant part, the defendant has at least three prior “violent felony” convictions (often referred to as “predicate offenses”). 18 U.S.C. § 924(e)(1). The parties agree that whether or not Mr. Townsend's prior felony convictions qualify as predicate offenses depends on the so-called “force” or “elements” clause of the ACCA. (See Gov't's Sentencing Mem. at 5 [Doc. No. 77]; Def's Sentencing Position at 3-4 [Doc. No. 80].) That clause defines a predicate “violent felony” as one that “has as an element the use, attempted use or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court has defined “physical force” as “violent force-that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis original). However, threatening the use of physical force also constitutes a predicate offense so long as the force threatened is violent physical force. See United States v. Lindsey, 827 F.3d 733, 739 (8th Cir. 2016), cert. denied, No. 16-6266, 2016 WL 5874633 (U.S. Oct. 31, 2016).

         The Government argues that all four of Townsend's prior felony convictions are violent felonies under the force clause and thus the ACCA's minimum mandatory sentence applies. (See Gov't's Sentencing Mem. at 5-22.) Townsend contends that, at a minimum, his Minnesota first-degree aggravated robbery and Wisconsin armed robbery convictions are not violent felonies and thus the ACCA does not apply. (See Def's Sentencing Position at 7-13.)


         Townsend makes a passing assertion that his Wisconsin substantial battery and Minnesota fifth-degree assault convictions are not predicate offenses under the ACCA because “the law in this area is in flux, and simultaneously dependent on state court decisions which might alter the result.” (Def's Sentencing Position at 13.) He offers no support for this argument and no relevant case law. However, because these convictions are important to the Court's ultimate conclusion that the ACCA's minimum mandatory sentence applies, the Court briefly examines each conviction.

         When Townsend committed the offense, Wisconsin defined substantial battery as “caus[ing] substantial bodily harm to another by an act done with intent to cause substantial bodily harm . . . .” Wis.Stat. § 940.19(3) (1999). The statute further defined “substantial bodily harm” as “bodily injury that causes a laceration that requires stiches; any fracture of a bone; a burn; a temporary loss of consciousness, sight, or hearing; a concussion; or a loss or fracture of a tooth.” Wis.Stat. § 939.22(38) (1999). Using the categorical approach-wherein a Court looks only at the elements and statutory definitions of the crime of conviction and not the particular facts underlying the conviction, see Descamps v. United States, 133 S.Ct. 2276, 2283 (2013)-Wisconsin's substantial battery statute plainly contains an element of violent physical force sufficient to cause substantial bodily harm. Thus, Townsend's Wisconsin substantial battery conviction is an ACCA predicate offense.

         When Mr. Townsend committed the offense, Minnesota defined fifth-degree assault as “(1) commit[ting] an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflict[ing] or attempt[ting] to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1 (2004). “Bodily harm” was described as “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7 (2004). Recently, the Eighth Circuit held that Minnesota's domestic assault statute-which contains elements and definitions identical to those for fifth-degree assault-was an ACCA predicate offense under the force clause. United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016). Following Schaffer, the Court holds that Townsend's Minnesota fifth-degree assault conviction is an ACCA predicate offense.


         The Government, relying heavily on an opinion from the Seventh Circuit, argues that Townsend's Minnesota first-degree aggravated robbery conviction is a violent felony. (See Gov't's Sentencing Mem. at 10-17 (citing United States v. Maxwell, 823 F.3d 1057, 1060-61 (7th Cir. 2016)).) The Government contends that the amount of force required for a conviction under this statute satisfies Johnson's definition of violent force. (See id.) Townsend argues that the requisite degree of violent force is not met because a conviction under this statute is possible where a defendant merely possesses- but does not use, brandish, or even threaten the use of-a dangerous weapon. (See Def's Sentencing Position at 7-10.)

         When Townsend committed the offense, Minnesota defined so-called “simple robbery” as “tak[ing] personal property from the person or in the presence of another and us[ing] or threaten[ing] the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property . . . .” Minn. Stat. § 609.24 (2004). First-degree aggravated robbery, the crime Townsend was convicted of, was defined as committing simple ...

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