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Friday, March 09, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Raupp (SD Ind., Pratt), a 22-page, 2-1 opinion (including a dissent beginning on p. 10 of 22), Chief Judge Easterbrook writes:

Anthony Raupp pleaded guilty to possessing a firearm despite his status as a felon. 18 U.S.C. §922(g)(1). The district court concluded that Raupp is a “career offender” under the Sentencing Guidelines because he has at least two other convictions for crimes of violence. U.S.S.G. §4B1.1. This appeal, from the sentence of 100 months’ imprisonment, presents a single question: Whether a conspiracy to commit robbery is a “crime of violence” under the Guidelines.

Robbery in Indiana is a “crime of violence” under the Guidelines and a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §924(e). See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). Raupp was convicted under Ind. Code §35-41-5-2 of conspiring to violate Ind. Code §35-42-5-1, Indiana’s robbery statute. An application note to U.S.S.G. §4B1.2, which defines the phrase “crime of violence”, tells us that an inchoate offense such as conspiracy is a “crime of violence” when the underlying crime is one. This note reads: “ ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” That disposes of this appeal, as far as the Sentencing Commission is concerned.

Raupp asks us to ignore the application note. He contends that it has been superseded by Begay v. United States, 553 U.S. 137 (2008), and later decisions. * * *

Raupp was free to contend that a conviction for conspiracy to commit robbery does not imply the same level of dangerousness as a conviction for robbery, and to seek a lower sentence on that account. But he does not assert that the district judge misunderstood the extent of her discretion or exercised it unreasonably. His sole contention is that district judges must ignore the first application note to §4B1.2, and that contention does not carry the day. Affirmed.

Judge Woods, dissenting: [concludes] When an agency like the Sentencing Commission uses a regulation as a springboard for an “interpretation” that goes beyond the boundaries of the original regulation, Auer and Stinson tell us that it has gone too far. That is exactly what the Sentencing Commission did here, when it decided that the phrase “presents a serious potential risk of physical injury to another” could be stretched to include Indiana’s inchoate offense of conspiracy to commit robbery. In my opinion, it cannot, and so I would find that Raupp is entitled to be resentenced without being classified as a career offender. I therefore respectfully dissent.

Posted by Marcia Oddi on March 9, 2012 12:49 PM
Posted to Ind. (7th Cir.) Decisions