United States District Court, D. Minnesota
Benjamin Bejar and Craig R. Baune, United States
Attorney's Office, for Plaintiff.
M. Lopez and Manvir K. Atwal, Office of the Federal Defender,
for Defendant Edward Townsend.
RICHARD NELSON, United States District Judge.
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'S PRIOR FELONY CONVICTIONS AND THE RELEVANT ACCA
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).
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
WISCONSIN SUBSTANTIAL BATTERY AND MINNESOTA FIFTH-DEGREE
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.
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.
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.
MINNESOTA FIRST-DEGREE AGGRAVATED ROBBERY
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
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