by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held on October 18, 2019, that a prior conviction for intimidation in Indiana could not qualify for the harsh mandatory penalty under the Armed Career Criminal Act (“ACCA”), remanding for resentencing without the penalty.

When Daniel Portee was charged with being a felon in possession of a firearm by the federal government, he pleaded guilty. His sentencing range under the U.S. Sentencing Guidelines was 63 to 78 months, even with a criminal history of VI, the highest he could go. Even so, the statutory maximum under 18 U.S.C. § 922(g) carried a maximum of 10 years in prison.

However, the Government pushed for the harsh penalty under the ACCA, which requires a sentencing judge to impose a minimum of 15 years in prison if someone is found to have at least three qualifying convictions for drugs or violent felonies. In Portee’s case, he had four qualifying convictions, all violent felonies, and the court had to impose the 15-year sentence in 2010.

Enter Johnson v. United States, 135 S. Ct. 2551 (2015), declaring the residual clause of the ACCA dead, and the criteria for a qualifying violent felony narrowed greatly. Under the ACCA, there are actually three clauses: the elements clause, the enumerated offenses clause, and the catch-all “residual clause.” The elements clause requires that the prior conviction have as an element “the use, attempted use, or threatened use of physical force against the person of another.” And under the residual clause, a conviction used to qualify if it “otherwise involves conduct that presents a serious potential risk of injury to another.”

With the residual clause gone, the question was whether Portee still had three convictions that did not fall under the residual clause. In his motion to vacate his sentence under 28 U.S.C. § 2255, he argued that none of his convictions qualified. The district court agreed that one of his convictions didn’t—the Indiana intimidation conviction— but that he still had three qualifying convictions and denied his motion. Portee appealed and was granted a certificate of appealability on whether his other convictions still qualified after Johnson.

The first question was whether Indiana’s statute on pointing a firearm at someone, I.C. 35-47-4-3(b), fell under the elements clause. The statute says: “A person who knowingly or intentionally points a firearm at another person commits a Class D felony.” This is the statute under which Portee was convicted. The district judge concluded that knowingly and intentionally aiming a firearm at someone always involves threatening someone with physical force to satisfy the elements clause.

On appeal, Portee argued that someone could point a firearm at a person and not mean any intention of harm yet still be convicted of the crime in Indiana. The Seventh Circuit agreed, explaining that:

“It is not hard to imagine situations in which pointing a loaded gun at another person does not constitute a threat of injury or physical force. There are situations in which a person points a loaded gun at another but everyone understands the pointer is not using, attempting to use, or threatening to use physical force against the other person…. Suppose an armed person is joking with his friend. The armed person says his gun is loaded but there is no bullet in the first chamber, and the safety is on, and his finger is not over the trigger. And then he points the gun at his friend and they both laugh. All elements of Indiana felony pointing-a-firearm are met. But there is no use, attempted use, or threatened use of physical force…. There is no reason to think Indiana would not want to prosecute and punish this sort of reckless shenanigan, even though the ACCA is not satisfied.”

The elements of Indiana’s pointing a firearm at someone are simply: “1) knowingly or intentionally 2) pointing 3) a firearm 4) at another,” the Court said. This is not enough to support the ACCA penalty, according to the Court. Having won his intimidation claim in the district court, this would have settled the matter and removed the ACCA penalty from Portee.

But the Government wasn’t finished. It cross-appealed, arguing that the district court was wrong for removing Portee’s prior intimidation conviction. The Government said that given what Portee was convicted for it was a threat of force against another to qualify under the ACCA. Again, the Court disagreed.

Indiana’s intimidation statute is long and includes many different situations. Some of these qualify under the ACCA, and some don’t. Because the state statute is divisible, the Court employed the “modified categorical approach” to take a “peek” at the state court documents to see which part of the statute formed the basis of Portee’s prior conviction. He was convicted of a “threat ... to commit a forcible felony,” which is defined under Indiana law as “the use or threat of force against a human being, or in which there is imminent danger of bodily injury to a human being.”

Recall that the elements clause requires a threat of force “against the person of another.” This was a critical requirement for Portee: “So Portee’s conviction of Indiana felony intimidation, involving a threat to commit a forcible felony, did not require as an element the use, attempted use, or threatened use of physical force against the person of another because the human being facing force or danger could be the defendant himself.” the Court said. A human being is “broader” than the definition in the ACCA.

Accordingly, because Portee’s pointing a firearm at a person and intimidation convictions no longer qualify under the ACCA after Johnson, the Court reversed the district court’s denial of his § 2255 motion and remanded for further proceedings. See: Portee v. United States, 941 F.3d 263 (7th Cir. 2019).

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