In the
United States Court of Appeals
For the Seventh Circuit
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No. 16‐3769
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MARVIN L. BENNETT,
Defendant‐Appellant.
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Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:13‐CR‐00078‐TLS‐SLC‐1 — Theresa L. Springmann, Chief Judge.
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ARGUED APRIL 25, 2017 — DECIDED JULY 12, 2017
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Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. 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). Ordinari‐
ly 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) af‐
2 No. 16‐3769
ter having accumulated three or more convictions for com‐
mitting 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 re‐
sisting law enforcement, Ind. Code § 35‐44‐3‐3—is not a
crime of violence. (Section 35‐44‐3‐3 has since been recodi‐
fied 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).
A “violent felony,” so far as pertains to this case, is a
crime that “has as an element the use, attempted use, or
threatened use of physical force against the person of anoth‐
er.” 18 U.S.C. § 924(e)(2)(B)(i). Subsection (a) of the Indiana
statute cited in the preceding paragraph provides that—
“A person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law
enforcement officer or a person assisting the officer
while the officer is lawfully engaged in the execution
of the officer’s duties;
(2) forcibly resists, obstructs, or interferes with the au‐
thorized service or execution of a civil or criminal
process or order of a court; or
No. 16‐3769 3
(3) flees from a law enforcement officer after the of‐
ficer has, by visible or audible means, including oper‐
ation of the law enforcement officer’s siren or emer‐
gency lights, identified himself or herself and ordered
the person to stop;
commits resisting law enforcement, a Class A misde‐
meanor, except as provided in subsection (b).”
None of these offenses need involve a use, attempted use,
or threatened use of physical force against anyone; none are
felonies; violation of the statute is merely a misdemeanor.
And so had Bennett violated only section 35‐44‐3‐3(a), he
would not be subject to the mandatory 180‐month sentence
for being a felon in possession of a firearm who had accumu‐
lated three or more convictions of committing a violent felo‐
ny.
The district judge, however, emphasized subsection (b)of
Ind. Code § 35‐44‐3‐3, where we read that:
“The offense under subsection (a) is a:
(1) Class D felony if:
(A) the offense is described in subsection (a)(3)
and the person uses a vehicle to commit the of‐
fense; or
(B) while committing any offense described in
subsection (a), the person draws or uses a deadly
weapon, inflicts bodily injury on or otherwise
causes bodily injury to another person, or operates
a vehicle in a manner that creates a substantial risk
of bodily injury to another person;
4 No. 16‐3769
(2) Class C felony if, while committing any offense
described in subsection (a), the person operates a ve‐
hicle in a manner that causes serious bodily injury to
another person;
(3) Class B felony if, while committing any offense de‐
scribed in subsection (a), the person operates a vehicle
in a manner that causes the death of another person;
and
(4) Class A felony if, while committing any offense
described in subsection (a), the person operates a ve‐
hicle in a manner that causes the death of a law en‐
forcement officer while the law enforcement officer is
engaged in the officerʹs official duties.”
Bennett had been prosecuted for “inflict[ing] bodily inju‐
ry on or otherwise caus[ing] bodily injury to another per‐
son”—an offense defined in subsection (b)(1) of Ind. Code
§ 35‐44‐3‐3—in the course of committing an offense (resist‐
ing arrest) described in subsection (a). That conduct, the
judge concluded, made Bennett guilty of having committed
a violent felony within the meaning of ACCA.
But “inflict[ing] bodily injury on or otherwise caus[ing]
bodily injury to another person,” as defined by the Indiana
courts, need not connote violence. In Whaley v. State, 843
N.E.2d 1, 5, 10–11 (Ind. App. 2006), the Court of Appeals of
Indiana held that a suspect who had “put his arms under‐
neath his body to prevent the deputies from handcuffing
him” had inflicted bodily injury on the deputies because the
deputies had injured their hands by hitting the suspect’s
forearms to bring his arms behind his back to handcuff him.
Suppose a person is handcuffed by a police officer, tugs in
No. 16‐3769 5
the hope of squeezing his hands through the cuffs, and acci‐
dentally causes the officer to trip and fall as a result of the
tugs. The person’s effort thereby to avoid arrest would be
resisting law enforcement, but would not be considered vio‐
lent or even threatening under 18 U.S.C. § 924(e)(2)(B)(i). The
government has failed in this case to prove a violent felony.
It remains to consider the bearing of the distinction em‐
phasized in recent cases, notably Mathis v. United States, 136
S. Ct. 2243 (2016), between a statute that creates multiple of‐
fenses 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 of‐
fenses. But even if that is true, the offense of which Bennett
was convicted is not a violent felony, so the statutory maxi‐
mum 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 re‐
versed, the plea vacated, and the case remanded to that
court for further consideration.
REVERSED, VACATED, AND REMANDED.