USA v. Stacy Harden, Jr.

Filing

Filed opinion of the court by Judge Rovner. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6859379-1] [6859379] [16-1227]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-1227
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STACY LEE HARDEN, JR.,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:11-cr-30238-DRH-1 — David R. Herndon, Judge.

ARGUED APRIL 10, 2017 — DECIDED AUGUST 7, 2017

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Stacy Lee Harden, Jr., pled guilty to
possessing with intent to distribute five kilograms of cocaine
in violation of 21 U.S.C. § 841(a)(1). The district court sentenced
him to the mandatory minimum imposed by the statute of 10
years’ imprisonment and 5 years’ supervised release. In
imposing that sentence, the court rejected Harden’s argument

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that the “safety valve” provision in 18 U.S.C. § 3553(f) applied
to him, which would allow the court to impose a sentence
beneath the mandatory minimums. Harden now appeals that
determination to this court.
In October 2010, the Drug Enforcement Administration
received information that Harden had transported a large
quantity of cocaine from Dallas to the St. Louis area for
distribution. After observing him leave a residence in Swansea,
Illinois, with a plastic shopping bag and then enter and leave
another residence carrying a black bag, they followed him and
executed a traffic stop of his vehicle. As they approached his
vehicle, Harden sped away at a high rate of speed, traveling
through a residential neighborhood in the course of that flight.
The flight took place at around 5:30 pm on a Friday. The
district court found that he attained speeds that were at least
21 miles per hour (mph) over the 25 mph speed limit which
was the requirement to constitute Aggravated Fleeing and
Eluding under Illinois state law. Based on the testimony of the
officers who pursued Harden, as confirmed by the video
evidence of the chase from the officers’ cars which revealed the
speed as they pursued Harden, the district court also found
that the officers pursuing him reached speeds of 65 mph and
did not appear to gain ground on Harden, thus indicating that
Harden’s actual speed neared 65 mph in that 25 mph residential zone. During that time, he threw nearly two kilograms of
cocaine out of the vehicle that subsequently were recovered by
law enforcement. During the effort to elude his pursuers,
Harden turned into a parking lot and made a U-turn, resulting
in a collision when the agent’s vehicle in pursuit struck
Harden’s vehicle. The district court credited the officers’

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testimony over that of Harden that Harden pulled into the lot
to avoid a traffic backup and made a sudden U-turn in an
apparent attempt to continue his flight. After the collision, the
officers pulled Harden from the vehicle, which continued to
move forward as his foot released the brake. Harden was
uncooperative with the police as he was arrested at that time.
Harden filed an earlier appeal in this case, and we granted
his request to vacate his guilty plea as improperly taken by a
magistrate judge. United States v. Harden, 758 F.3d 886 (7th Cir.
2014). On remand, he again entered a guilty plea, but without
a plea agreement. With a total offense level of 29 and criminal
history category I, and a reduction for acceptance of responsibility, the Guidelines range was 87–108 months but with a
statutory minimum of 10 years which the district court
imposed.
Harden raises only one challenge to his sentence—that the
court erred in determining that he was not eligible for the
“safety valve” in § 3553(f). Section 3553(f) provides that for
certain offenses including the one here under 21 U.S.C. § 841:
the court shall impose a sentence
pursuant to guidelines promulgated by the United States Sentencing Commission under section
994 of title 28 without regard to
any statutory minimum sentence,
if the court finds at sentencing,
after the Government has been
afforded the opportunity to make
a recommendation, that—

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(1) the defendant does not have
more than 1 criminal history point,
as determined under the sentencing guidelines;
(2) the defendant did not use violence
or credible threats of violence or possess a firearm or other dangerous
weapon (or induce another participant
to do so) in connection with the
offense;
(3) the offense did not result in
death or serious bodily injury to
any person;
(4) the defendant was not an
organizer, leader, manager, or
supervisor of others in the offense,
as determined under the
sentencing guidelines and was not
engaged in a continuing criminal
enterprise, as defined in section
408 of the Controlled Substances
Act; and
(5) not later than the time of the
sentencing hearing, the defendant
has truthfully provided to the
Government all information and
evidence the defendant has
concerning the offense or offenses
that were part of the same course

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of conduct or of a common scheme
or plan, but the fact that the defendant has no relevant or useful
other information to provide or
that the Government is already
aware of the information shall not
preclude a determination by the
court that the defendant has complied with this requirement.

[emphasis added]
The Probation Office in the Presentence Investigation
Report (PSR) concluded that Harden was ineligible for the twolevel safety valve reduction because he could not demonstrate
that he did not use violence or the threat of violence as set forth
in § 3553(f)(2). The district court agreed with that assessment,
concluding that the high-speed flight through the residential
area resulting in the U-turn and the collision with the police
vehicle constituted an act of violence. We review the district
court’s fact findings regarding the safety valve provision of the
Guidelines for clear error, and the interpretation of the safety
valve provision de novo. United States v. Alvarado, 326 F.3d 857,
860 (7th Cir. 2003).
The Guidelines do not define the terms “use of violence or
the threat of violence,” and Harden urges that the term “use”
requires “active employment,” and that a defendant uses
violence only when he “actively” employs force against
another that is capable of causing physical pain or injury.
Harden’s definition does not veer far from the common
conception of violence used by the courts in other contexts,

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albeit with the inclusion of the modifier “actively” based on his
interpretation of the word “use” as a term of art. The problem,
however, inheres in Harden’s application of that definition,
under which the standard is met only if Harden purposefully
used his vehicle to physically strike the officers. Harden asserts
that he did not “actively” employ the vehicle as a weapon to
inflict force capable of causing pain because he did not
intentionally hit anyone and thus there is no evidence that he
used the car as a weapon. Under his restrictive interpretation
of the terms, only the active employment of violent physical
force against another person would suffice. Accordingly, he
stated in his brief and at oral argument that if a defendant
purposefully slammed on his brakes while being closely
pursued by the police, resulting in a collision, that would not
satisfy the requirement that he actively employed violent
physical force; he reasons that although the element of force
might be present in those circumstances, he could not be said
to have used violence because he would instead be the recipient of the violence. Finally, Harden argues that his conduct did
not constitute a threat of violence. He asserts that there is no
threat of violence because his purpose was simply to escape
and not to inflict violence on others, and that the reference to
“threat of violence” in the safety valve provision should be
limited to a communicated intent to inflict harm rather than
including actions that place persons in a position of danger.
We decline to interpret “use of violence or threat of violence” so narrowly, as it is contrary to a common understanding of what constitutes violent conduct, inconsistent with the
interpretation of those terms in other contexts, and inappropriate given the context of the safety valve provision. That safety

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valve provision allows the district court to impose a sentence
below the statutory minimum in cases in which the listed
characteristics are met and which take the case out of the
ordinary run of cases; a tortured parsing of the language to
include only a very narrow band of the spectrum of conduct
that is commonly considered “violent” is particularly inappropriate in the context of authorizing a deviation below the
statutory minimum. And Harden’s proposed definition, at
least as he would apply it, would except a range of the type of
conduct that would undeniably be considered violent conduct
by any straightforward reading of that term. For instance, the
distinction between Harden causing a collision by sudden
deceleration or by rapid acceleration, with only the latter
constituting violent conduct, is an interpretation that defies a
common-sense understanding of the term. The purposeful
abrupt braking with the police in close pursuit would cause a
collision just as surely as would the acceleration into the police
vehicle, and the term “use of violence” cannot be reasonably
interpreted to draw such a tortured distinction based on a
vague concept of active use of physical force. Similarly, at oral
argument, when presented with the scenario of a defendant
pointing a gun and firing in the direction of the police but
missing, Harden’s attorney declared that the conduct would be
a threat of violence rather than characterize it as a use of
violence. That defies common understanding. Although
displaying a gun might in common parlance be considered a
threat of violence, a person actually shooting a gun at others
would by common understanding be considered to be engaged
in violent conduct. See Bailey v. United States, 516 U.S. 137, 148
(1995)(“[t]he active-employment understanding of ‘use’

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certainly includes brandishing, displaying, bartering, striking
with, and, most obviously, firing or attempting to fire a
firearm.”) But under Harden’s approach, a person who fired a
gun in the direction of other persons would not commit an act
of violence unless the bullet actually struck someone. The
fortuity of the outcome does not govern the proper characterization of the action. And a definition of violence that exempts
shooting at others unless the bullet finds its target (or relegates
that action to the status of a mere threat), is inconsistent with
a common sense understanding of the terms. Further confounding the matter, when asked whether driving a vehicle—a
deadly weapon—at those high speeds through a residential
neighborhood would constitute at least a threat of violence like
firing a weapon under his definition, Harden’s attorney
characterized that as merely a risk of harm and not a threat of
violence. That distinction is ungrounded. The pointing of a gun
may communicate a threat, but the vehicular flight at such
high speeds in a residential neighborhood similarly communicates a threat in that it conveys the defendant’s willingness to
put the officer, other drivers, and pedestrians at risk so long as
the police continue their pursuit; police officers in such
situations in fact have to assess whether to abandon such
pursuit in light of the threat posed by the flight to innocents
such as motorists and pedestrians, as well as to themselves.
There is no principled basis to characterize the shooting of the
gun as communicating a threat, but to not also recognize that
the high-speed flight communicates a threat as well that
continuation of the pursuit may result in physical injury.
Harden’s understanding of the terms therefore conflicts
with a consistent, plain reading of such terms. In addition, it

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conflicts with the interpretation of violence that has been
employed in other contexts. For instance, in the Armed Career
Criminal Act (ACCA), the term “violent felony” was defined
to include any felony that “(i) has as an element the use,
attempted use, or threatened use of physical force against the
person of another; or (ii) is burglary, arson, or extortion,
involves the use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). We recently considered that
definition of what constitutes violence in United States v. Enoch,
2017 WL 3205806 (7th Cir. 2017). In Enoch, we held that a
robbery statute which included as an element that the defendant, in the course of the robbery, “puts [the victim’s] life in
jeopardy by the use of a dangerous weapon,” categorically
established the “use, attempted use, or threatened use of
physical force” and therefore was a violent crime. Id. at *5. We
reaffirmed that “force capable of wounding another or putting
the life of another in jeopardy is a force that is capable of
causing injury to another person and therefore qualifies as a
crime of violence.” Id. Similarly, in United States v. Anglin, 846
F.3d 954, 965 (7th Cir. 2017), we held that a taking of personal
property by means of “fear of injury, immediate or future, to
his person or property,” was an act that necessarily required
using or threatening force and therefore was a crime of
violence. Accord United States v. Rivera, 847 F.3d 847, 849 (7th
Cir. 2017)(also addressing the Hobbes Act); United States v.
Armour, 840 F.3d 904, 909 (7th Cir. 2016)(intimidation—when
words or actions would cause an ordinary person to feel
threatened, by creating a reasonable fear that resistance or
defiance will be met with force—means the threat of force);

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United States v. Ortiz, 775 F.3d 964, 969 (7th Cir. 2015)(noting
that even a single intimidating confrontation is enough to
constitute a credible threat). Thus, under Enoch and Anglin, the
use or threatened use of violence is established by conduct that
puts the victim’s life in jeopardy, or by conduct that creates a
fear of injury. Moreover, we have consistently held that a
threat can be conveyed with words or actions, and can be
direct or implied. See Armour, 840 F.3d at 909 (a bank robber
need not make an explicit threat; “[c]redibly implying that a
refusal to comply with a demand for money will be met with
more forceful measures is enough.”); United States v. Cureton,
845 F.3d 323, 326 (7th Cir. 2017)(“a request for ransom necessarily includes at least an implied threat that the kidnapper
will use force … if the demand is not satisfied”). The high
speed flight with a vehicle—inarguably a deadly weapon
capable of causing severe injury—through a residential
neighborhood with the police in pursuit similarly puts the life
of residents, other motorists, and the pursuers in jeopardy.
In fact, the Court in Sykes v. United States, 564 U.S. 1 (2011),
overruled by Samuel Johnson v. United States, 135 S. Ct. 2551
(2015) (“Johnson”), applied that definition of violence to
conduct similar to that presented here—vehicular flight.
Because the vehicular flight statute did not contain as elements
the use or threat of violence, the Court analyzed it under the
residual clause definition of violence, which assessed the risk
of physical injury to another. Applying that definition, the
Sykes Court held that fleeing from law enforcement in a vehicle
constituted a violent felony. The Court recognized that flight
posed a danger of physical harm to the persons in the path of
the vehicle, as well as to the law enforcement persons pursuing

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them. Sykes, 564 U.S. at 10–11. Sykes was later abrogated by the
Court in Johnson, because the Court held that the residual
clause (subclause ii) was unconstitutionally vague in light of
the standard set forth in the clause, the confusing list of
offenses it references as examples, and the categorical nature
of the inquiry. The Court reasoned that the residual clause
required application of the “serious potential risk” standard to
an idealized ordinary case of the crime and such an abstract
inquiry offers significantly less predictability than would
inhere in applying such a standard to an actual situation.
Johnson, 135 S. Ct. at 2561. The Court made clear, however, that
it “[does] not doubt the constitutionality of laws that call for
the application of a qualitative standard such as ‘substantial
risk’ to real-world conduct; ‘the law is full of instances where
a man’s fate depends on his estimating rightly … some matter
of degree.’” Id., quoting Nash v. United States, 229 U.S. 373, 377
(1913). Therefore, the Johnson Court’s concerns extended only
to categorical determinations under that standard rather than
determinations based on the actual individual circumstances.
The Johnson Court did not negate the reasoning in Sykes that
vehicular flight can pose a threat to the safety of others and
constitute a violent offense. In fact, the Johnson Court appears
to acknowledge that under some circumstances such vehicular
flight may constitute a violent offense but decried the attempt
to make that determination categorically. Specifically, the
Court questioned how a court using a “common-sense”
approach could discern “where the ‘ordinary case’ of vehicular
flight in Indiana lies” along the spectrum which includes
“everything from provoking a high-speed car chase to merely
failing to stop immediately after seeing a police officer’s

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signal.” Id. at 2559. The safety valve provision, in contrast, is an
individual determination based on the actual facts, rather than
a categorical determination, and therefore does not present the
concerns recognized in Johnson. The district court therefore can
determine where on that spectrum the flight lies. The ACCA
definition of violent offense comports with a common-sense
understanding of violent conduct as the use or threat of
physical force against another and is relevant as a guidepost as
to a common definition of “violence.” It suggests that the court
could properly determine that a high speed crime chase
constituted the use of violence, under the reasoning of Sykes as
applied to a specific circumstance rather than a nebulous
hypothetical category.
A similar conclusion follows if we consider the meaning of
“violence” in other contexts. For instance, in the Fourth
Amendment context, in considering whether the deadly force
used by the officers was reasonable, courts have similarly
considered whether the officers, in the context of vehicular
flight, were responding to acts that posed a threat of serious
physical harm. The Supreme Court in Brosseau v. Haugen, 543
U.S. 194, 199–201 (2004), recognized that depending upon the
facts, a person fleeing in a vehicle at high speeds may pose an
imminent threat of serious physical harm to other persons
including other motorists and the officers themselves. See also
Scott v. Harris, 550 U.S. 372, 383–84 (2007)(respondent posed an
actual and imminent threat to the lives of any pedestrians who
might have been present and other motorists and officers in
driving at extremely high speeds, swerving around cars,
crossing the double yellow lines at times, and running multiple
red lights); Mullenix v. Luna, 136 S. Ct. 305, 308–13 (2015);

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Plumhoff v. Rickard, 134 S. Ct. 2012, 2021–22 (2014) (a chase
exceeding 100 miles per hour and lasting over five minutes
threatened the lives of innocent bystanders). Thus, at a
minimum, our cases have consistently recognized that conduct
constitutes the use or threat of violence if it involves the use or
threat of force capable of injuring another, and includes
conduct jeopardizing the life of another by the use of a dangerous weapon. Moreover, courts have repeatedly recognized that
vehicular flight may pose such a use or threat of violence.
Here, the district court did not err in holding that Harden’s
action constituted acts of violence or the threat of violence.
Harden traveled at a high rate of speed of between 45 and 65
miles per hour in a 25-mile-per-hour residential zone. We have
recognized that a vehicle can constitute a weapon, and a
vehicle traveling at those high speeds in a residential area at
around 5:30 on a Friday evening poses a very real threat of
physical injury to persons in that residential area as well as the
agents in pursuit. But here we have even more than high-speed
flight through the residential neighborhood. We have a
collision—the actual application of physical force. As the
district court found, Harden pulled into the lot with the police
in close pursuit, and then, rather than pull over and surrender
to the pursuing agents, he completed an abrupt U-turn placing
him in the path of the pursuing agents and resulting in a
collision. That use of the vehicle—a deadly weapon—jeopardized the lives of the officers and therefore involved the use or
threat of force capable of injuring another. Accordingly, the
district court did not err in holding that the safety valve was
inapplicable. The decision of the district court is AFFIRMED.