Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United States of America v. Sergio Gamez

Case No.: 22-2278

Officials: Scudder, St. Eve, and Lee, Circuit Judges.

Focus:  Sentencing Guidelines

A gas station 911 call prompted police response, leading to the discovery of Gamez, currently on probation for a robbery conviction, in possession of a Winchester rifle. Gamez had recently removed his GPS-tracking ankle bracelet, resulting in charges for escape filed by a LaPorte County Community Corrections officer eight days earlier. Gamez pleaded guilty as a felon in possession of a firearm under 18 U.S.C. 922(g)(1). The government sought the mandated 15-year minimum sentence according to the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), applicable to section 922(g)(1) offenders with three prior convictions for a violent felony.

Gamez, with three prior Indiana state convictions—two for robbery (2009, 2016) and one for aiding and abetting arson (2011)—did not dispute that his robbery convictions qualified as violent felonies. However, he contested that Indiana’s arson statute covered too broad a range of conduct to be considered a “violent felony.” Despite Gamez’s argument, the district court imposed the enhancement.

The Seventh Circuit posed a certified question to the Indiana Supreme Court: whether Indiana’s arson statute necessitates the presence of fire or burning. Although the state’s criminal code does not explicitly mandate fire or burning as an element of arson, there are indications that Indiana state courts have interpreted and applied the statute to require such proof for an arson conviction. Notably, the Indiana Supreme Court has not addressed this specific issue. The fact that the state charged Gamez as an aider-and-abettor of arson rather than a principal does not independently preclude the ACCA enhancement.

Vacated and remanded.

Decided 01/02/24

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