USA v. James Wheeler
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6842309-1]  [16-3435]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
JAMES G. WHEELER,
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 15-‐‑CR-‐‑216 — Pamela Pepper, Judge.
ARGUED MAY 16, 2017 — DECIDED MAY 19, 2017
Before EASTERBROOK, SYKES, and HAMILTON, Circuit Judg-‐‑
EASTERBROOK, Circuit Judge. James Wheeler pleaded
guilty to an attempt to obstruct interstate commerce by rob-‐‑
bery, in violation of the Hobbs Act, 18 U.S.C. §1951(a), and
to using a gun (by shooting someone) during that crime, in
violation of 18 U.S.C. §924(c)(1)(A)(iii). The guilty plea did
not reserve any issue for appeal under Fed. R. Crim. P.
11(a)(2). To the contrary, Wheeler acknowledged in the writ-‐‑
ten plea agreement that he “acknowledges and understands
that he surrenders any claims he may have raised in any pre-‐‑
trial motion.” The district court sentenced him to 108 months
for the Hobbs Act offense and a consecutive 120 months for
the firearms offense.
Section 924(c)(1)(A) requires a minimum 10-‐‑year penalty
for anyone who discharges a firearm “during and in relation
to any crime of violence”. Paragraph (c)(3) defines as a
“crime of violence” any felony that “(A) has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another, or (B) that by its
nature, involves a substantial risk that physical force against
the person or property of another may be used in the course
of committing the offense.” Subparagraph (A) is known as
an elements clause and subparagraph (B) as a residual
clause. The indictment charged Wheeler with violating
§924(c)(1) because robbery, in violation of the Hobbs Act, is a
“crime of violence” under the definition in §924(c)(3).
Despite entering an unconditional guilty plea to the fire-‐‑
arms charge, Wheeler now insists that he cannot be guilty
because attempted robbery is not a “crime of violence”. It
can’t be a crime of violence under the residual clause, he
maintains, because that clause is unconstitutionally vague.
(So we held in United States v. Cardena, 842 F.3d 959, 995–96
(7th Cir. 2016). The Supreme Court may decide in Sessions v.
Dimaya, No. 15–1498 (argued Jan. 17, 2017), whether that
conclusion is correct.) And it can’t be a crime of violence un-‐‑
der the elements clause, Wheeler contends, because an at-‐‑
tempt to rob a retail establishment does not have the use of
physical force “as an element” because it is possible to come
close enough to success to be an “attempt” without commit-‐‑
ting one of the acts that would use or threaten violence for
purposes of the completed crime.
The crime defined in the Hobbs Act requires either actual
or threatened force as an element, see United States v. Anglin,
846 F.3d 954 (7th Cir. 2017), and the prosecutor contends that
attempts should be classified with completed offenses. So we
held in United States v. Armour, 840 F.3d 904, 907–09 (7th Cir.
2016), about attempted bank robbery, and the prosecutor be-‐‑
lieves that by parallel to Armour an attempted retail-‐‑store
robbery is a crime of violence. See also Morris v. United
States, 827 F.3d 696, 698–99 (7th Cir. 2016) (concurring opin-‐‑
ion) (concluding that attempt to commit a crime of violence
is itself a crime of violence under §924(e)).
We need not decide who is right about this, because
Wheeler waived his position by pleading guilty—and to
make the waiver doubly clear he acknowledged in writing
that the plea surrendered any argument that could have
been raised in a pretrial motion. Wheeler now contends that
the indictment did not charge a §924(c)(1) offense because
attempted Hobbs Act robbery is not ever a “crime of vio-‐‑
lence”. Such an argument not only could have been present-‐‑
ed by pretrial motion but also had to be so presented under
Fed. R. Crim. P. 12(b)(3)(B)(v), which provides that “failure
to state an offense” is the sort of contention that “must” be
raised before trial.
That Cardena post-‐‑dates the guilty plea does not matter.
Johnson v. United States, 135 S. Ct. 2551 (2015), holds that the
residual clause in 18 U.S.C. §924(e)(2)(B)(ii), part of the
Armed Career Criminal Act, is unconstitutionally vague.
Cardena concludes that Johnson’s rationale invalidates the
two remaining residual clauses in the Criminal Code—one
in 18 U.S.C. §16(b) and the other in §924(c)(3)(B)—despite
the difference in the language between these residual clauses
and the one in the ACCA. (Dimaya presents the question
whether the difference is constitutionally significant.) Nei-‐‑
ther Cardena nor Johnson has anything to do with the ele-‐‑
ments clauses in §924(c) and other statutes. For that reason
and others we held in Davila v. United States, 843 F.3d 729
(7th Cir. 2016), that a person who pleads guilty to a §924(c)
charge cannot use Johnson and Cardena to reopen the subject
and ask a court of appeals to upset the conviction.
At oral argument Wheeler’s lawyer allowed that Davila is
on point but asked us to reconsider that decision in light of
the Supreme Court’s grant of review in Class v. United States,
No. 16–424 (U.S. Feb. 21, 2017). The question presented in
Class is whether an unconditional guilty plea waives a de-‐‑
fendant’s right to contest the constitutionality of the statute
of conviction. We do not see any need to wait for the Court’s
decision in Class or to revisit the holding of Davila. Wheeler’s
statute of conviction is §924(c)(1), which penalizes using a
firearm during or in relation to a crime of violence. Wheeler
does not contend that §924(c)(1) is invalid. Class maintains
that he had a constitutional right not to be indicted; Wheeler
does not make any argument of that kind. Wheeler attacks
one component of the definition of “crime of violence” in
§924(c)(3) but does not contend that it is constitutionally im-‐‑
permissible for an indictment to charge that attempted
Hobbs Act robbery is a crime of violence under the elements
clause. In other words, Wheeler does not assert a constitu-‐‑
tional immunity from prosecution. Whether attempted
Hobbs Act robbery satisfies the elements clause in §924(c) is
a statutory issue. For the reasons given in Davila, an uncon-‐‑
ditional guilty plea waives any contention that an indictment
fails to state an offense.
Wheeler presents a second contention: that he should be
resentenced in light of Dean v. United States, 137 S. Ct. 1170
(2017). The Supreme Court held that 18 U.S.C.
§924(c)(1)(D)(ii), which requires a sentence under §924(c) to
run consecutively to the sentence for the offense in which the
firearm was used, does not implicitly forbid the district court
to choose a term of imprisonment for the predicate offense
so that the aggregate imprisonment comports with the sen-‐‑
tencing criteria in 18 U.S.C. §3553(a). Wheeler correctly ob-‐‑
serves that Dean supersedes United States v. Roberson, 474
F.3d 432 (7th Cir. 2007), which had held that a district court
must not reduce the sentence for the predicate crime in order
to offset the consecutive §924(c) sentence.
If there were some reason to think that the district court
had felt compelled by Roberson to set Wheeler’s total sen-‐‑
tence at 228 months rather than a shorter term, Wheeler
would be entitled to a fresh sentencing. But the record does
not so much as hint that the district judge felt constrained by
Roberson. The judge did not mention Roberson or say that she
would have preferred to give Wheeler a total sentence below
228 months. Instead the judge sentenced Wheeler to 108
months for the Hobbs Act crime, a sentence above the
Guidelines range of 84 to 105 months for that offense. It is
inconceivable that a judge who imposed a sentence above
the Guidelines range for the predicate crime did so because
of Roberson. Dean accordingly does not affect Wheeler’s sen-‐‑
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