Portee v. USA
OPINION AND ORDER: DENIES 65 MOTION to Vacate under 28 U.S.C. 2255 by Daniel C Portee, filed in 1:09cr89. The Clerk is directed to term the related civil case, Cause No. 1:16-CV-168. The Court GRANTS the Defendant a Certificate of Appealability on the issue of whether his three prior felony convictions that qualify as crimes of violence under the ACCA. Signed by Chief Judge Theresa L Springmann on 10/20/2017. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
DANIEL CARTER PORTEE
OPINION AND ORDER
The Defendant, Daniel Portee, is serving a 180-month sentence as a result of his
conviction for being a felon in possession of a firearm, a violation of 18 U.S.C. § 992(g)(1). The
Defendant was sentenced pursuant to the provisions of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e). He now seeks to vacate his current sentence so that he can be re-sentenced
without the career offender enhancement. (Mot. to Correct Sentence Under 28 U.S.C. § 2255,
ECF No. 65.) Without the armed career criminal enhancement, the Defendant’s maximum
sentence under the statute was ten years. He would have faced an offense level under the
sentencing guidelines of 22, less three levels for acceptance of responsibility, for a Total Offense
Level of 19. (PSR ¶¶ 32–40.) Combined with a Criminal History Category VI, his guidelines
range would have been 63 to 78 months. However, because of the armed career criminal
designation, the statutory mandatory minimum was fifteen years.
The Defendant’s Motion is predicated on the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015), which invalidated a portion of the ACCA’s definition of a
predicate crime of violence.1 The Defendant argues that his 1990 conviction for a Class C felony
In a later decision, the Court concluded that the ruling in Johnson introduced a new substantive
rule of constitutional law that applies retroactively to cases on collateral review. See Welch v. United
States, 136 S. Ct. 1257, 1265 (2016). Under section 2255(f)(3), a defendant may file a motion to
challenge his conviction or sentence within one year of “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.” Stanley v. United States, 827 F.3d 562, 564
robbery, his conviction in 2000 for pointing a firearm, and his 2006 conviction for intimidation
are no longer violent felonies as defined in 18 U.S.C. § 924(e). The Government maintains that
the Defendant still has three convictions that qualify him as an armed career criminal and cites to
the three above, as well as to the Defendant’s conviction for attempted robbery under Illinois
In April 2010, pursuant to a conditional plea agreement,2 the Defendant pled guilty to the
charge that he possessed a firearm, in violation of 18 U.S.C. § 922(g)(1). In anticipation of
sentencing, the probation officer prepared a presentence investigation report (PSR). Although the
PSR did not specifically identify which convictions qualified, the probation officer concluded
that the Defendant had been convicted of at least three felony crimes of violence. (PSR ¶ 38.)
The following state convictions were noted in the Defendant’s criminal history: a 1983 Illinois
Attempted Armed Robbery conviction; a 1990 Indiana Class C Felony Robbery conviction; a
2000 Indiana Class D Felony conviction for pointing a firearm, and; a 2006 Indiana Class D
Felony Intimidation conviction.
On August 2, 2010, the Court adopted the findings in the PSR, including the armed
career criminal designation, and sentenced the Defendant to a term of 180 months of
(7th Cir. 2016) (internal quotation marks omitted). The Supreme Court decided Johnson on June 26,
2015. The Defendant’s May 19, 2016, Motion is timely filed. Additionally, the Government also indicates
that, for purposes of the pending motion, it is waiving any arguments it could make to enforce the
Defendant’s plea agreement waiver of his right to collateral attack his sentence. (Govt’s Resp. 3 n.2.)
The Defendant preserved his right to challenge the Court’s denial of his motion to suppress.
A person convicted under 18 U.S.C. § 922(g)(1) faces a mandatory minimum fifteen year
sentence if he has three or more prior convictions that are either a “serious drug offense,” or a
“violent felony.” 18 U.S.C. § 924(e). The latter term is defined to include any offense 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 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) (emphasis added). In June 2015, the Supreme Court held that the italicized portion
of the statute, commonly known as the “residual clause,” was unconstitutionally vague. See
Johnson, 135 S. Ct. at 2557–63.
Based on the decision in Johnson, the Defendant asserts that several of his convictions
are no longer “violent felonies” as defined in 18 U.S.C. § 924(e) because they are not one of the
enumerated offenses, and they do not have as an element, “the use, attempted use, or threatened
use of physical force against the person of another.” To determine if a prior conviction qualifies
as a predicate offense under the ACCA, sentencing courts apply the “categorical” approach,
looking only to the statutory elements of the offense, not the actual facts underlying the
conviction. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (citing Taylor v. United
States, 495 U.S. 575, 60 (1990)); see also United States v. Yang, 799 F.3d 750, 752 (7th Cir.
2015) (quotation marks omitted) (stating that the sentencing court “looks at the elements of the
statute of conviction to determine if it has as an element the use, attempted use, or threatened use
of physical force against the person of another”). In a select few cases the application of the
modified categorical approach is appropriate because a statute is “divisible,” setting out one or
more elements of the offense in the alternative. In those cases, a sentencing court may look
beyond the statute and the conviction to the so-called Shepard documents—indictments, jury
instructions, and plea hearing transcripts—to determine which of the various elements of the
statute formed the basis for the conviction. Descamps, 133 S. Ct. at 2284; Shepard v. United
States, 544 U.S. 13, 17 (2005); Yang, 799 F.3d at 753. Once that is done, the categorical
approach is again employed to determine whether those elements satisfy the force clause. Yang,
799 F.3d at 753; see also Mathis v. United States, 136 S. Ct. 2243 (2016).
Attempted Robbery Under Illinois Law
In 1983, the Defendant was convicted in Illinois of attempted robbery. “A person
commits the offense of robbery when he takes property from the person or presence of another
by the use of force or by threatening the imminent use of force.” Ill. Rev. Stat. 1977, ch. 38, par.
18-1. Both parties recognize that Illinois robbery has been found to qualify as a crime of
violence under the force clause. See United States v. Chagoya-Morales, 859 F.3d 411, 422 (7th
Cir. 2017); United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990). However, they
disagree whether attempted robbery also qualifies.
In United States v. Armour, 840 F.3d 904, 907–09 (7th Cir. 2016), the Seventh Circuit
held that the federal crime of attempted bank robbery qualified as a crime of violence. Although
the defendant in Armour did not raise an attempt-focused argument, the Court indicated that it
would view such an argument “skeptically.” Id. at 909 n.3. Here, the attempt conviction occurred
in Illinois, so the Court “must examine how state courts have applied the general attempt statute
to the particular crime attempted” to determine whether it constitutes a violent felony. Morris v.
United States, 827 F.3d 696, 697 (7th Cir. 2016); see also United States v. Collins, 150 F.3d 668,
671 (7th Cir. 1998) (“Therefore, we must also look to Wisconsin caselaw to see how the
Wisconsin courts have interpreted the attempt statute in the context of burglary.”).
Under Illinois law, “A person commits the offense of attempt when, with intent to
commit a specific offense, he or she does any act that constitutes a substantial step toward the
commission of that offense.” Ill. Rev. Stat. 1979 ch. 38, par. 8-4(a). The Defendant argues that
he can conceive of ways to commit attempted robbery that does not involve the use, attempted
use, or threatened use of physical force. As an example, he presents the scenario where a police
officer intercepts a would-be robber as he approaches his intended victim. He asserts that such a
person would have “completed all of his preparation by selecting his victim, and loading his
weapon and putting himself in proximity of his victim, yet never accomplished or even
attempted to use force against the victim.” (Def.’s Reply 2–3, ECF No. 82.)
It is not a defense to an attempt charge that because of a misapprehension of the
circumstances it therefore would have been impossible for the accused to commit the offense
attempted. Ill. Rev. Stat. 1979, ch. 38, par. 8-4(b). Lying in wait, searching for, or following the
contemplated victim of the crime is sufficient evidence of a substantial step “so long as the act is
strongly corroborative of the actor’s criminal purpose.” Illinois v. Hawkins, 723 N.E.2d 1222,
1227 (Ill. App. Ct. 2000) (citing to the Model Penal Code and noting its emphasis on the nature
of the steps taken as opposed to what remains to be done to commit a crime). However,
according to Illinois case law, attempted robbery has two essential elements, one of which
specifically requires the use of force or threatened force. First, the defendant must have taken a
substantial step toward the commission of the robbery. Second, there must have been an attempt
to take property by the use of force or threat of use of force from the person of presence of
another. Illinois v. Martin, 210 N.E.2d 587, 589 (Ill. App. Ct. 1965). What distinguishes robbery
from theft (or attempted robbery from attempted theft) is “[t]he use of force or the threat of the
imminent use of force.” Illinois v. Ashford, 308 N.E.2d 271, 275 (Ill. App. Ct. 1974). In addition,
Illinois law requires that a defendant have come within “dangerous proximity to success” to be
convicted under an attempt statute. Illinois v. Terrell, 459 N.E.2d 1337, 1341 (Ill. 1984)
(quotation marks and citations omitted) (describing actions that constitute a substantial step); see
also Illinois v. Hawkins, 723 N.E.2d 1222, 1226 (Ill. App. Ct. 2000).
Accordingly, the question before the Court is whether taking action that puts one in
dangerous proximity to successfully taking property of another by using force or threatening
imminent force has as an element the use, attempted use, or threatened use of physical force
against the person of another. Framed in this way, the answer to the question is yes. This
conclusion, in addition to being supported by Illinois law, also finds support with the Seventh
Judge Hamilton, concurring in the Seventh Circuit’s decision to grant a second or
successive habeas motion, elaborated on the footnote that appeared in Armour:
As a matter of statutory interpretation, an attempt to commit a crime should be
treated as an attempt to carry out acts that satisfy each element of the completed
crime. That’s what is required, after all, to prove an attempt offense. If the completed
crime has as an element the actual use, attempted use, or threatened use of physical
force against the person or property of another, then attempt to commit the crime
necessarily includes an attempt to use or to threaten use of physical force against the
person or property of another.
Morris, 827 F.3d at 699. The salient point then, is that implicit in any attempt offense is for the
actor to have attempted to carry out all the elements of the underlying offense.
This Court finds that an attempt to commit a violent felony is a crime of violence.
Whether the defendant is charged with an attempted crime, or with a completed crime that has as
an element the attempted use of force, a jury will be required to determine whether the defendant
had the requisite intent and took a substantial step. If the jury makes those findings, it has
necessarily concluded that the defendant attempted to use force. It would thwart the statutory
purpose of § 924(e) to distinguish between the two types of crimes.
Class C Felony Robbery
In 1989, when the Defendant committed robbery in Indiana, the statute provided:
A person who knowingly or intentionally takes property from another person or
from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class B felony if it
is committed while armed with a deadly weapon or results in bodily injury to any
person other than a defendant, and a Class A felony if it results in serious bodily
injury to any person other than a defendant.
Ind. Code § 35-42-5-1 (modified 2013). On its face, the statute appears to require the threatened
use of physical force. Indeed, the Seventh Circuit has held that Indiana Robbery qualifies as a
crime of violence. See United States v. Duncan, 833 F.3d 751 (7th Cir. 2016) (confirming that a
defendant’s prior Indiana convictions for robbery qualified as “violent felonies” that subjected
the defendant to an enhanced sentence under the ACCA); see also Armour, 840 F.3d at 907
(extending the reasoning of Duncan to the career offender provision of the Sentencing
Guidelines); United States v. Lewis, 405 F.3d 511 (7th Cir. 2005) (holding that an Indiana
robbery conviction constituted a crime of violence under both the residual clause and the
elements clause of the Sentencing Guideline’s identically worded career offender guideline). The
Defendant acknowledges the Seventh Circuit authority, but contends that the Seventh Circuit’s
holding is in error, and advances argument to preserve the record for appeal.
Pointing a Firearm
The Defendant maintains that his 2000 felony conviction for pointing a firearm at another
person is not a violent felony as defined by 18 U.S.C. § 924(e).
The Indiana statute for the Defendant’s conviction for Pointing a Firearm describes the
following conduct: “A person who knowingly or intentionally points a firearm at another person
commits a Class D felony.” Ind. Code § 35-47-4-3(b) (modified 2013). “However, the offense is
a Class A misdemeanor if the firearm was not loaded.” Id. Additionally, it is not a violation of
§ 35-47-4-3(b) if the person pointing the firearm: is a law enforcement officer acting within the
scope of his duties, is protecting his person or property, or another person who is facing
imminent use of unlawful force, or is effecting an arrest or preventing escape if there is probable
cause to believe the other person committed a felony. Id. § 35-47-4-3(a) (modified 2013).
The Indiana Court of Appeals has stated that the Indiana statute’s prohibition against
pointing a firearm at a person “was intended to protect individuals from being placed in danger
of death or bodily injury from the discharge of a firearm.” Armstrong v. State, 742 N.E.2d 972,
976 (Ind. Ct. App. 2001) (noting that, because a firearm is a lethal weapon, “the potential for
harm exists any time a firearm is pointed at a person” (emphasis omitted) (quoting State v.
Meier, 422 N.W. 2d 381, 385 (N.D. 1998))). Therefore, to commit a felony under § 35-47-4-3(b)
(modified 2013) requires the elements of (1) knowingly and intentionally (2) pointing a firearm
(3) at another person.
The Defendant argues that the statute could be violated without use or attempted use or
threatened use of physical force. “For example, a person could point a firearm at another person
and tell that person ‘the first chamber is empty in my weapon, I have the safety on, and
furthermore, I do not have my finger inside the trigger guard.’” (Mot. 20, ECF No. 65.) Even in
this scenario, the fact would still remain that the person was, for reasons not related to defense of
self or property, intentionally aiming a deadly weapon at another person. It is difficult to imagine
that such action is not intended to communicate a threat of injury, which is implicit in the
elements of the offense.
The Court concludes that knowingly or intentionally aiming an inherently lethal weapon
at another person is, at the very least, “threatened use” of physical force, i.e., force capable of
causing physical pain or injury to that person. See Johnson v. United States, 559 U.S. 133, 140
(2010) (defining “physical force” to mean “violent force—that is, force capable of causing
physical pain or injury to another person.”)
Because Indiana’s intimidation statute is divisible, a modified categorical is appropriate
in determining whether the conviction is a violent felony. United States v. Ellis, 622 F.3d 784,
798 (7th Cir. 2010). The Defendant’s charging documents show that he communicated a threat to
commit a forcible felony, with the intent that the other person be placed in fear of retaliation for
a prior lawful act. His offense was described as a Class D Felony.
In 2006, the Indiana statute provided that a “person who communicates a threat to
another person, with the intent . . . that the other person be placed in fear of retaliation for a prior
lawful act” commits a Class A misdemeanor. Ind. Code § 35-45-2-1(a)(2) (modified 2013). The
statute defines “threat” to include “an expression, by words or action, of an intention to . . .
unlawfully injure the person threatened or another person, or damage property.” Id. § 35–45–2–
1(c)(1) (modified 2013). The offense becomes a Class D felony if “the threat is to commit a
forcible felony.” Id. § 35-45-2-1(b)(1)(A) (modified 2013).
In Ellis, the Seventh Circuit considered whether a conviction under the subsections of the
Intimidation statute that made it a felony to threaten to unlawfully injure a law enforcement
officer was a crime of violence. 622 F.3d at 798 (analyzing subsections (a)(2) and (c)(1)). The
court held that the Intimidation offense did not have as an element the threatened use of physical
force because the threat could be directed at either physical or nonphysical injuries, including
emotional or reputational harms. Id. at 798–99 (noting that “neither the language of the statute
itself nor any Indiana case limits the reach of subsection (c)(1) to threats of physical injury”).
Here, of course, the distinction is that to convict the Defendant of the Class D felony, the
threat had to be to “commit a forcible felony.” See Graham v. State, 713 N.E.2d 309, 311 (Ind.
Ct. App. 1999) (“A defendant commits Intimidation, a class D felony, when he threatens to
commit a forcible felony against another person with the intent that the person be placed in fear
of retaliation for a prior lawful act.”). Ellis rests on an understanding of the term “injure” in
subsection (c)(1) as one that covers both physical and nonphysical injuries. The Court is not
aware of any forcible felony that causes nonphysical injuries when directed at another person.
However, because the Intimidation statute’s definition of “threat” includes expressions of “an
intention to . . . unlawfully injure the person threatened or another person, or damage property,”
Ind. Code § 35–45–2–1(c)(1) (emphasis added), the forcible felony a defendant threatened to use
could be one that damages property. A threat to damage property, regardless of whether by
commission of a forcible felony or otherwise, does not necessarily involve “physical force
against the person of another.” 18 U.S.C. § 924(e)(2)(B). Accordingly, the Court finds that the
Defendant’s Intimidation conviction does not have as an element the use, attempted use, or
threatened use of physical force against the person of another.3
Even so, the Defendant still has three prior felony convictions that qualify as a crime of
violence. His sentence, therefore, was not “imposed in violation of the Constitution or laws of
the United States” and was not “in excess of the maximum authorized by law.” 28 U.S.C. §
CERTIFICATE OF APPEALABILITY
There is no absolute entitlement to appeal a district court’s denial of a motion under
§ 2255. See 28 U.S.C. § 2353(c)(1). Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, the Court must “issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” A certificate of appealability may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
The Court is aware that it has previously ruled that a conviction under Indiana’s Intimidation
statute was a crime of violence for purposes of the identically worded Guideline section,
§ 2K2.1(a)(4)(A). See United States v. Miller, Cause No. 1:15-CR-46-TLS (Opinion and Order issued
March 7, 2017). In that case, however, Miller had been convicted under a different portion of the
Intimidation statute, which made it a Level 5 felony to “communicate a threat to another person, with
the intent . . . that the other person engage in conduct against the other person’s will,” Ind. Code § 35-452-1(a)(1), while “draw[ing] or us[ing] a deadly weapon,” id. § 35-45-2-1(b)(2)(A). The added element of
drawing a dangerous weapon during the threatening communication is a distinguishing factor.
Rule 11 of Rules Governing Section 2255 Proceedings.
The substantial showing standard is met when “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted). Where the district court has
rejected the constitutional claim on the merits, “the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. A
defendant is not required to show that he will ultimately succeed on appeal. Miller-El v.
Cockrell, 537 U.S. 322, 337, 342 (2003) (stating that the question is the “debatability of the
underlying constitutional claim, not the resolution of that debate”).
Given the unresolved status of certain crimes as qualifying under the ACCA as violent
felonies, the Court finds that the Defendant has raised arguments regarding some of his previous
convictions that could be viewed as debatable and warranting further review. Accordingly, the
Court will issue a certificate of appealability.
For the reasons stated above, the Court DENIES the Defendant’s Motion to Correct
Sentence Under 28 U.S.C. § 2255 [ECF No. 65]. The Clerk is directed to term the related civil
case, Cause No. 1:16-CV-168. The Court GRANTS the Defendant a Certificate of Appealability
on the issue of whether his three prior felony convictions that qualify as crimes of violence under
SO ORDERED on October 20, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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