Opinion
22-1990
07-29-2024
United States of America, Plaintiff-Appellee, v. Ronald Morgan, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Argued September 14, 2023.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:21-cr-00041-1 Matthew F. Kennelly, Judge.
Before ILANA DIAMOND ROVNER, Circuit Judge, DAVID F. HAMILTON, Circuit Judge, MICHAEL B. BRENNAN, Circuit Judge.
ORDER
Defendant-appellant Ronald Morgan appeals the sentence he received for unlawfully possessing a firearm following a felony conviction in violation of 18 U.S.C. § 922(g)(1). Three prior Illinois convictions triggered an increased sentencing range under the Sentencing Guidelines. The district court ordered Morgan to serve a within-Guidelines sentence of 96 months in prison. We affirm.
Based on Morgan's prior Illinois convictions for attempted armed robbery and armed robbery -which qualify as crimes of violence under the Sentencing Guidelines, see U.S.S.G. § 4B1.2(a)(2) (Nov. 2021)-he was subject to an increased base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). (He prevailed in the district court on an objection to treating him as a career offender under the Guidelines, § 4B1.1, based on the same prior convictions.) Morgan argued that it was error to characterize his Illinois robbery convictions as crimes of violence, given the possibility that he might have been convicted as an accomplice to armed robbery rather than as a principal, and given what Morgan argues is the unique breadth of an Illinois rule of aiding and abetting liability known as "common design." See 720 ILCS 5/5-2; People v. Fernandez, 2014 IL 115527, 6 N.E.3d 145 (2014); Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193-94 (2007). He also argued that his conviction for attempted armed robbery should not be treated as a conviction for a crime of violence, notwithstanding this court's contrary decision in United States v. Ingram, 947 F.3d 1021, 1025-26 (7th Cir. 2020) (attempted Hobbs Act robbery qualifies as a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A)). The district court rejected both arguments, R. 66 at 14, 33-34.
On appeal, Morgan renews his argument as to the breadth of Illinois accountability liability under the common-design rule, but our recent decision in United States v. Carr, No. 22-1245, -F.4th-, 2024 WL 3324727 (7th Cir. July 8, 2024), resolves this issue against him.
Morgan also argues on appeal that attempted armed robbery should not be treated as a crime of violence. Our Ingram decision was abrogated by Taylor v. United States, 596 U.S. 845 (2022), decided one month after Morgan's sentencing. But Taylor, like Ingram, was a statutory case and it does not answer the question whether an attempted robbery should be treated as a crime of violence for purposes of the Sentencing Guidelines. Section 4B1.2(a)(2) of the Guidelines defines "crime of violence" to include the offense of robbery, and there is no dispute that the elements of Illinois robbery conform to the elements of generic robbery, such that Illinois armed robbery constitutes a crime of violence under the Guidelines. See Carr, 2024 WL 3324727, at *4 (collecting cases). In turn, Application Note 1 to section 4B1.2 provides that the terms "'[c]rime of violence' and 'controlled substance offense' include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Our decision in United States v. Lomax, 51 F.4th 222, 229 (7th Cir. 2022), cert. denied, 143 S.Ct. 789 (2023), distinguishing Taylor, recognized that this Circuit has treated Application Note 1 as authoritative and thus held that a conviction for attempted murder qualifies as a crime of violence under section 4B1.2(a) of the Guidelines. Lomax leaves no doubt that Morgan's prior conviction for attempted robbery should likewise be treated as a crime of violence for Guidelines purposes.
Morgan argues nonetheless that it is error to treat the application note as authoritative; he contends that the Lomax decision is out of step with prior cases on this point. We disagree. Our decision in United States v. Raupp, 677 F.3d 756 (7th Cir. 2012), overruled on other grounds by United States v. Rollins, 836 F.3d 737 (7th Cir. 2016) (en banc), relied on the same application note to hold that a conspiracy to commit robbery qualifies as a crime of violence for purposes of establishing the offense level for a felon in possession of a firearm pursuant to section 2K2.1(a)(2) of the Guidelines. Our subsequent decision in United States v. Adams, 934 F.3d 720 (7th Cir. 2019), acknowledging that a circuit split had emerged on the question, declared that Raupp's textual analysis of sections 2K2.1 and 4B1.2 of the Guidelines (including Application Note 1 to section 4B1.2) "remains sound" as to the question of whether inchoate offenses constitute crimes of violence or controlled substance offenses for sentencing purposes under the (now-advisory) Guidelines. Id. at 729. United States v. Smith, 989 F.3d 575, 583-86 (7th Cir. 2021), citing Adams, reached the same conclusion as to section 4B1.2. Lomax, in turn, relied on both Adams and Smith in treating Application Note 1 to section 4B1.2 as authoritative regarding attempts to commit a crime of violence. 51 F.4th at 229. (Adams and Smith involved prior convictions for controlled substance offenses rather than crimes of violence, but our cases have not drawn a distinction between the two insofar as the validity of the application note is concerned.) We see nothing about Lomax that is contrary to prior circuit case law on the point. And, to wrap things up, in our recent decision in United States v. White, 97 F.4th 532, 538-39 (7th Cir. 2024), this court reaffirmed our treatment of the application note and declined to switch sides in the circuit split. Lomax thus remains the law of this circuit.
AFFIRMED.