Olivia Covington for www.theindianalawyer.com

An Indiana man’s 15-year sentence for possession of a firearm in violation of the Armed Career Criminal Act has been reversed after the 7th Circuit Court of Appeals determined one of the man’s prior convictions did not constitute a violent felony and, thus, did not qualify him for a sentence above the 10-year statutory maximum.

In United States of America v. Marvin L. Bennett, 16-3769, Marvin Bennett pleaded guilty to possession of a firearm by a felon in violation of 18 U.S. Code Section 922(g)(1), an offense that normally carries a maximum of 10 years in prison. However, under the Armed Career Criminal Act, a person who violated U.S.C. 922(g)(1) after accumulating at least three previous “violent felonies” must be sentenced to a minimum of 15 years in prison.

Bennett’s plea agreement provided that he would be sentenced to 15 years, but prior to his sentencing hearing, he argued that his previous conviction for violating Indiana Code 35-44-3-3 – which punishes the offense of resisting law enforcement– was not a crime of violence, thus disqualifying the 15-year sentence sentence. Chief Judge Theresa L. Springmann of the U.S. District Court for the Northern District of Indiana disagreed and sentenced Bennett according to the terms of his plea agreement, prompting the instant appeal.

Writing for a panel of the 7th Circuit Court of Appeals in a Wednesday opinion, Judge Richard Posner noted that violation of I.C. 35-44-3-3 constitutes a misdemeanor offense, so had Bennett only violated that portion of state law, he would not be subject to the 15-year sentence. However, Bennett was prosecuted pursuant to subsection (b)(1) of the statute by “inflict(ing) bodily injury on or otherwise caus(ing) bodily injury to another person,” prompting Springmann to conclude that Bennett’s conduct qualified under the ACCA.

However, Posner went on to write that “inflict(ing) bodily injury” does not necessarily connote violence.

“Suppose a person is handcuffed by a police officer, tugs in the hope of squeezing his hands through the cuffs, and accidentally causes the officer to trip and fall as a result of the tugs,” Posner wrote. “The person’s effort thereby to avoid arrest would be resisting law enforcement, but would not be considered violence or even threatening under 18 U.S.C. section 924(e)(2)(B)(i). The government has failed in this case to prove a violent felony.”

Based on that conclusion, the 7th Circuit reversed the district court’s judgment, vacated the plea agreement and remanded the case to the district court for further consideration.