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Tuesday, September 19, 2006

Ind. Decisions - 7th Circuit issues one Indiana decision today

In U.S. v. Gilbert (SD Ind., Larry J. McKinney, Chief Judge), a 15-page opinion, Judge Rovner writes:

A jury convicted James D. Gilbert of possessing a firearm in interstate commerce after previously having been convicted of a felony offense. See 18 U.S.C. § 922(g)(1). At sentencing, the district court determined that three of Gilbert’s prior convictions constituted violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and that determination triggered a mandatory minimum prison term of fifteen years, § 924(e)(1). The court sentenced him to a term of just under twenty years. Gilbert appeals his sentence, contending that the district court erred in treating his prior conviction in Indiana for criminal confinement as a violent felony conviction. Consistent with our holding in United States v. Hagenow, 423 F.3d 638, 644 (7th Cir. 2005), we agree. We therefore vacate Gilbert’s sentence and remand for resentencing. * * *

The record does not disclose that Gilbert was convicted of a form of criminal confinement that required a finding of force or threat of force. The Indiana criminal confinement statute expressly recognizes that the offense can be committed through non-violent means such as fraud or enticement, and as we concluded in Hagenow, there is nothing about the offense as defined that poses an inherent risk of serious physical injury to another even when the crime is committed without resort to force. The district court therefore erred in treating Gilbert’s prior conviction for criminal confinement as a conviction for a crime of violence. Gilbert’s sentence is VACATED, and the case is REMANDED for resentencing consistent with this opinion.

Posted by Marcia Oddi on September 19, 2006 11:57 AM
Posted to Ind. (7th Cir.) Decisions