Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United States of America v. Marvin L. Bennett

Case No.: 16‐3769

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Focus: Sentencing Guidelines

Marvin Bennett, the defendant and appellant in this case, pleaded guilty to possession of a fire‐ arm by a felon, in violation of 18 U.S.C. § 922(g)(1). Ordinarily the maximum punishment for that crime is 120 months (10 years) in prison. See 18 U.S.C. § 924(a)(2). But the Armed Career Criminal Act (ACCA, as it’s usually called), 18 U.S.C. § 924(e), ordains a minimum sentence of 180 months (15 years) in prison for persons who violate section 922(g)(1) after having accumulated three or more convictions for committing a “violent felony.” Bennett, the defendant‐appellant in this case, pleaded guilty to having violated section 922(g)(1), and his plea agreement provided that he would be sentenced to 180 months. But before his sentencing hearing Bennett argued that one of his three previous convictions— the conviction for violating an Indiana law that punishes resisting law enforcement, Ind. Code § 35‐44‐3‐3—is not a crime of violence. (Section 35‐44‐3‐3 has since been recodified in largely the same form as section 35‐44.1‐3‐1, but all references here are to the version of the statute in effect at the time of Bennett’s offense.) The district judge disagreed and sentenced him to 180 months in prison, precipitating this appeal. Bennett’s plea agreement waived his rights to appeal, but the government has agreed not to enforce the waiver. See Nunez v. United States, 546 F.3d 450, 452 (7th Cir. 2008).

It remains to consider the bearing of the distinction emphasized in recent cases, notably Mathis v. United States, 136 S. Ct. 2243 (2016), between a statute that creates multiple offenses by listing alternative elements of a crime and one that creates a single offense that can however be committed by different means. The government argues that subsection (b)(1)(B) of Ind. Code § 35‐44‐3‐3 creates three separate offenses. But even if that is true, the offense of which Bennett was convicted is not a violent felony, so the statutory maximum sentence for the crime to which he plead guilty is 120 months. The sentence to which he plead—180 months— exceeds the statutory maximum, which is a ground to vacate the plea. See United States v. Gibson, 356 F.3d 761 (7th Cir. 2004). The judgment of the district court is therefore reversed, the plea vacated, and the case remanded to that court for further consideration.

Reversed, Vacated, and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.