United States v. Terrance Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-1192

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRANCE BROWN,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:20-cr-00148 — Philip P. Simon, Judge.

____________________

ARGUED APRIL 25, 2023 — DECIDED JULY 21, 2023

____________________

Before RIPPLE, ST. EVE, and PRYOR, Circuit Judges.

RIPPLE, Circuit Judge. Terrance Brown was convicted of

bank robbery in violation of 18 U.S.C. § 2113(a). At sentenc-

ing, the district court determined, over Mr. Brown’s objection,

that he was a career offender under U.S.S.G. §§ 4B1.1 and

4B1.2 and that the Sentencing Guidelines yielded an advisory

range of 210 to 240 months’ imprisonment. The court imposed

a sentence of 180 months’ imprisonment. Mr. Brown appeals

his sentence, arguing that the district court erred in

2 No. 22-1192

considering him to be a career offender. We affirm the judg-

ment of the district court.

I

This case centers on the Sentencing Guidelines’ definition

of a “crime of violence” for purposes of the career-offender

sentencing enhancement. Under § 4B1.1(a) of the Guidelines,

certain defendants are deemed career offenders if they have

at least two prior felony convictions of a crime of violence.

The so-called “elements clause” of § 4B1.2(a)(1) defines a

crime of violence as “any offense under federal or state law,

punishable by imprisonment for a term exceeding one year,

that … has as an element the use, attempted use, or threatened

1

use of physical force against the person of another.”

The district court found that Mr. Brown had two prior

convictions of crimes of violence, rendering him a career of-

fender under the Guidelines. Relevant here is his 2010 Illinois

conviction for aggravated vehicular hijacking. At the time of

Mr. Brown’s conviction, a person could be convicted of vehic-

ular hijacking if he “t[ook] a motor vehicle from the person or

the immediate presence of another by the use of force or by

threatening the imminent use of force.” 720 ILCS 5/18-3

2

(2010). The carrying of a dangerous weapon in the

1 In addition to the elements clause, § 4B1.2(a)(2) also contains an “enu-

merated clause,” which provides that “murder, voluntary manslaughter,

kidnapping,” and other enumerated offenses are crimes of violence. Only

the elements clause is at issue in this appeal.

2 Section 18-3 was amended, effective 2013, to include an express mens rea

requirement: “A person commits vehicular hijacking when he or she know-

ingly takes a motor vehicle from the person or the immediate presence of

( … continued)

No. 22-1192 3

commission of the offense constitutes aggravated vehicular

hijacking. Id. 5/18-4(a)(3)–(4).

Although we previously had held that Illinois vehicular

hijacking constituted a crime of violence for purposes of

§ 4B1.2(a)(1), see United States v. Norris, 835 F. App’x 892, 893–

94 (7th Cir. 2021), Mr. Brown argued to the district court that

that characterization could not survive the Supreme Court’s

decision in Borden v. United States, 141 S. Ct. 1817 (2021). In

Borden, the Court construed the term “violent felony” under

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i),

which contains an elements clause identical to § 4B1.2(a)(1).

The Court held that, under the categorical approach, an of-

fense does not involve the “use of physical force against the

person of another” if the offense can be committed with a

mens rea of recklessness. Borden, 141 S. Ct. at 1825 (plurality

opinion); id. at 1834–35 (Thomas, J., concurring in the judg-

ment).

The district court rejected Mr. Brown’s argument. The

court “readily conclude[d]” that Illinois vehicular hijacking is

another by the use of force or by threatening the imminent use of force.”

Criminal Code of 2012, P.A. 97-1108 (H.B. 2582), 2012 Ill. Laws 5685, 5696

(emphasis added). This change was part of comprehensive amendments

aimed at reorganizing and clarifying the Criminal Code, and we are not

aware of any evidence that the legislature intended any substantive

change. See 97 Ill. Gen. Assem., Senate Proceedings, May 22, 2012, at 150–

51 (statement of Senator Dillard) (describing the bill as effecting “a num-

ber of technical changes, including cross-references, reorganizing, defini-

tions and definition Sections, and sentence restructuring”); see also People

v. Bradford, 50 N.E.3d 1112, 1115 (Ill. 2016) (approving consideration of

“the reason for the law, the problems to be remedied, the purposes to be

achieved,” and, in some circumstances, “legislative history, in order to

discern the intent of the legislature”).

4 No. 22-1192

a crime of violence and explained that, “if Borden somehow

calls into question that finding,” it would be a matter for us to

3

address on appeal. The court stated, however, that if it were

mistaken in its calculation of the advisory sentencing range, it

would have imposed a different sentence.

Mr. Brown appeals his sentence, arguing that the district

court erred in finding that vehicular hijacking was a crime of

violence and that he was, as a result, subject to the career-

offender sentencing enhancement.

II

We review de novo the district court’s determination that

Illinois vehicular hijacking is a crime of violence within the

meaning of § 4B1.2(a)(1). United States v. Maxwell, 823 F.3d

1057, 1060 (7th Cir. 2016). The categorical approach controls

our analysis. Under this approach, we do not look to the spe-

cific facts underlying Mr. Brown’s conviction; rather, we ex-

amine only whether the Illinois criminal statute “has as an el-

ement the ‘use, attempted use, or threatened use of physical

force against the person of another,’” as required by

§ 4B1.2(a)(1). Id. at 1060–61; see also Zaragoza v. Garland,

52 F.4th 1006, 1013 (7th Cir. 2022) (“We compare [the federal]

definition with the [state] offense as defined by statute and as

applied by the [state] courts.”). In other words, vehicular hi-

jacking can serve as a predicate offense of the career-offender

sentencing enhancement only if the statute of conviction “al-

ways requires the government to prove … the use, attempted

use, or threatened use of force.” United States v. Taylor, 142

S. Ct. 2015, 2020 (2022). If the crime may be committed in a

3 Sent. Tr. 17.

No. 22-1192 5

less culpable manner, there is a categorical mismatch, and the

crime cannot be a predicate offense of the federal sentencing

guideline.

Mr. Brown contends that the district court erred in deter-

mining that he was a career offender under the Sentencing

Guidelines because there is a categorical mismatch between

the elements clause of § 4B1.2(a) and the pre-2013 version of

the Illinois vehicular hijacking statute. As he notes, the Su-

preme Court held in Borden that an offense does not involve

the “use of physical force against the person of another” if the

offense may be committed with a reckless mental state. 141

S. Ct. at 1825 (plurality opinion); id. at 1835 (Thomas, J., con-

curring in the judgment). The Borden plurality explained that

the word “against,” as used in the elements clause, “expresses

a kind of directedness or targeting”; thus, a use of force against

the person of another results from “purposeful and knowing

acts” but not from “reckless conduct.” Id. at 1826; see also id. at

1835 (Thomas, J., concurring in the judgment) (“[A] crime that

can be committed through mere recklessness does not have as

an element the ‘use of physical force’ because that phrase ‘has

a well-understood meaning applying only to intentional acts

designed to cause harm.’”).

In Mr. Brown’s view, Borden’s construction of the elements

clause precludes treating vehicular hijacking as a crime of vi-

olence. At the time of his conviction, he observes, the state

statute did not include an express mens rea requirement. And,

according to a separate, “catchall” provision of the Illinois

Criminal Code, if a statute “does not prescribe a particular

mental state applicable to an element of an offense (other than

an offense which involves absolute liability),” a mental state

of intent, knowledge, or recklessness will apply. 720 ILCS 5/4-

6 No. 22-1192

3(b). Therefore, Mr. Brown submits, a straightforward read-

ing of §§ 18-3 and 18-4 in conjunction with § 4-3(b) resolves

this case: Vehicular hijacking can be committed with a reck-

less use of force, making it categorically overbroad with re-

spect to § 4B1.2(a)(1).

We cannot accept this argument. The Illinois vehicular hi-

jacking statute, even before it was amended to add an express

mens rea of “knowingly,” included as an implied element the

knowing or purposeful use or threat of force—namely, the

use or threat of force aimed at taking control or possession of

a motor vehicle.

Under the pre-2013 version of § 18-3, “[a] person commits

vehicular hijacking when he or she takes a motor vehicle from

the person or the immediate presence of another by the use of

force or by threatening the imminent use of force.” At the out-

set, we must bear in mind the significance of the object of this

offense: a motor vehicle. Unlike other forms of property

which might, conceivably, be taken recklessly or even acci-

dentally, it is difficult, if not impossible, to conceive of taking

a motor vehicle from another person in any manner other

than knowingly and purposefully. Operating or directing a

motor vehicle involves conscious and deliberate action.

With that in mind, we further note that the language of the

statute—which proscribes taking by the use or threat of

force—strongly suggests that force or intimidation must be

aimed or directed at the taking of the motor vehicle. Cf. People

v. Dennis, 692 N.E.2d 325, 334 (Ill. 1998) (construing the simi-

larly worded robbery statute and concluding that “the gist of

the offense” is “the force or fear of violence directed at the vic-

tim in order to deprive him of his property” (emphasis added));

People v. Lewis, 651 N.E.2d 72, 88 (Ill. 1995) (“[T]he necessary

No. 22-1192 7

force or threat of force must be used as a means of taking the

property from the victim.” (emphasis added)). Employing

force or intimidation in order to facilitate the taking of a vehi-

cle is not the sort of reckless use of force that Borden found to

be beyond the scope of the elements clause. See 141 S. Ct. at

1825 (plurality opinion) (“[T]he perpetrator [must] direct his

action at, or target, another individual. Reckless conduct is

not aimed in that prescribed manner.”). Rather, inasmuch as

taking and operating a motor vehicle is, by its nature, a con-

scious and deliberate action, using force or issuing threats as

a means of accomplishing that goal is purposeful and know-

4

ing.

The statutory history reinforces this conclusion. As the

parties recognize, the language of the vehicular hijacking stat-

ute tracks closely the language of the robbery statute. But

when the Illinois legislature created the offense in 1993, it was

careful to identify it as an offense separate and distinct from

robbery, simultaneously amending the robbery statute to ap-

ply to the taking of “property, except a motor vehicle covered

by Section 18-3 or 18-4.” 720 ILCS 5/18-1; see Vehicular Hijack-

ing Act, P.A. 88-351 (S.B. 902), 1993 Ill. Legis. Serv. (West). The

Supreme Court of Illinois has explained the purpose of this

change: In contrast to the robbery statute, which was consist-

ently interpreted in light of the “common-law understand-

ing” of that offense, “[t]he vehicular hijacking offense is not

derived from the common law but was newly enacted in

4 We have no occasion to consider or comment on the appropriate analysis

after Borden when the prior conviction is for robbery as defined by Illinois

law. See Klikno v. United States, 928 F.3d 539, 547, 549 (7th Cir. 2019); United

States v. Love, No. 22-2035, 2023 WL 2546507, at *2–3 (7th Cir. Mar. 17,

2023).

8 No. 22-1192

1993.” People v. Reese, 102 N.E.3d 126, 138 (Ill. 2017). With this

“entirely new offense,” the legislature “intended to address

criminal conduct distinct from robbery of a motor vehicle.” Id.

This conduct is in fact different in kind from robbery. Robbery

presents the inherent risk that violence and injury will result

from the forceful affront to personal and bodily integrity. But

vehicular hijacking addresses a new and serious danger:

Forceful conflict for control of a dangerous piece of equip-

ment. Thus, Reese made clear that the taking of a motor vehi-

cle did not simply entail dispossession of the vehicle but

could also, perhaps more importantly, “include circum-

stances when the defendant takes a vehicle by exercising con-

trol,” such as by “directing the driver through the use of force

or the threat of force.” Id.; see also id. at 139 (“The legislature

also intended to criminalize taking control of a vehicle by

force or threat of force, including when the victim remains in-

5

side the vehicle.”).

5 The floor debates of the General Assembly show that legislators were

specifically concerned with the confrontational and violent nature of ve-

hicular hijacking. One of the bill’s sponsors, Senator Hawkinson, ex-

plained that the statutory language “from the person or the immediate

presence of another” would limit the statute’s application to such situa-

tions as when the victim “was yanked out of the car or was right at the

car.” 88th Ill. Gen. Assem., Senate Proceedings, May 11, 1993, at 24–25

(statement of Senator Hawkinson). By contrast, if the victim had “left the

car at the pump” and was inside “the gas station or the 7-11,” a person

who took the vehicle would commit “[t]heft of a motor vehicle,” not hi-

jacking. Id. at 25.

The legislature’s decision to enact a vehicular hijacking statute in 1993

appears to reflect a national panic about carjackings in the wake of several

high-profile crimes in the early 1990s. See Mary Ellen Beekman, Auto Theft:

Countering Violent Trends, 62 FBI L. Enforcement Bull. 17, 17 (Oct. 1993)

( … continued)

No. 22-1192 9

The legislature’s decision to create a unique offense for ve-

hicular hijacking reveals a specific legislative purpose: to

criminalize the deliberate act of taking a motor vehicle from

another person, using force or intimidation to accomplish that

goal. As Reese recognizes, the legislature intended to treat that

conduct as a unique, and uniquely serious, criminal offense.

Implicit in the conduct proscribed by the statute is a mental

state of at least knowing or purposeful action.

Nonetheless, Mr. Brown invokes the catchall provision of

the Illinois Criminal Code, § 4-3(b), as something of a trump

card. Despite the implications of the statutory language, the

nature of the act criminalized, and the logic of the legislature’s

intentions, he insists that § 4-3(b) mechanically modifies each

provision of the Criminal Code to insert “recklessly, know-

ingly, or intentionally” wherever a mental state has not been

(“Armed vehicle theft, led by its most infamous and widespread variety—

carjacking—represents a violent escalation in an already-booming area of

criminal activity. … [T]he random nature, acute sense of violation, and

threat of violence inherent in carjacking provoke intense community fear

of this crime.”). Senator Hawkinson stated when introducing the bill:

“We’re all too familiar with the tragedies around the country of … car hi-

jacking where someone armed or unarmed attacks a car, and … snatches

the driver out.” 88th Ill. Gen. Assem., Senate Proceedings, Apr. 15, 1993,

at 281 (statement of Senator Hawkinson). He recalled a recent story where

the victim was “dragged, because they’re caught in the rush, and …

caught by a seat belt or something and dragged and seriously injured or

killed; sometimes these carjackings occur where a young child is a passen-

ger in the car and is taken for a ride after a mother or father is … yanked

from the car.” Id. Senator Hawkinson was apparently referencing a partic-

ularly brutal Maryland case in which the victim, a thirty-four-year-old

mother, was killed after getting tangled in the car seatbelt and dragged

outside the car for over a mile. See Don Terry, Carjacking: New Name for Old

Crime, N.Y. Times, Dec. 9, 1992, at A18.

10 No. 22-1192

expressly prescribed (and where it is concluded that the leg-

islature did not intend to impose absolute liability).

As far as we can tell, the Illinois courts do not understand

§ 4-3(b) to operate in the manner Mr. Brown supposes. There

is some support in the Illinois case law for his view that all

three mental states covered by § 4-3(b) are implied in the ab-

sence of an express requirement. See, e.g., People v. Anderson,

591 N.E.2d 461, 465 (Ill. 1992) (holding that an offense could

be committed with a mental state of recklessness, knowledge,

or intent because the statute was silent as to mens rea but was

not meant to create an absolute liability offense); People v. Bur-

meister, 497 N.E.2d 1212, 1215–16 (Ill. App. Ct. 1986) (same);

People v. Childs, 948 N.E.2d 105, 112 (Ill. App. Ct. 2011) (simi-

lar). In other cases, however, the Supreme Court of Illinois has

suggested that, “[w]here a statute neither prescribes a partic-

ular mental state nor creates an absolute liability offense,” it

is left to the court to “determin[e] which mental state element

is implied” by the statutory language and the legislative in-

tent. People v. Sevilla, 547 N.E.2d 117, 121–22 (Ill. 1989) (em-

phasis added) (inferring a mental state of knowledge in a stat-

ute with no express mens rea); see also People v. Witherspoon,

129 N.E.3d 1208, 1214–15 (Ill. 2019) (same); People v. Gean,

573 N.E.2d 818, 821–22 (Ill. 1991) (same); People v. Whitlow,

433 N.E.2d 629, 633–35 (Ill. 1982) (“[I]t is necessary to deter-

mine which of [§ 4-3(b)’s] mental states should apply to [the

offense].” (emphasis added)). Thus, we are unable to read § 4-

3(b) to mean that the mere absence of an express mens rea ele-

ment inevitably leads to the conclusion that an offense may

be committed recklessly. It is more likely that § 4-3(b) simply

serves as a constitutional savings clause, narrowing the menu

of potential implied mental states to ensure that a provision

that is silent as to mens rea will not be read to criminalize

No. 22-1192 11

behavior involving the less culpable mental states of negli-

gence, § 4-7, or ignorance or mistake, § 4-8. Cf. In re K.C., 714

N.E.2d 491, 496 (Ill. 1999) (a statute is unconstitutional “if it

potentially subjects wholly innocent conduct to criminal pen-

alty without requiring a culpable mental state”); Elonis v.

United States, 575 U.S. 723, 734 (2015) (“[T]he general rule is

that a guilty mind is a necessary element in the indictment

and proof of every crime.” (internal quotation marks omit-

ted)).

In sum, the premise of Mr. Brown’s § 4-3(b) argument is

faulty; the catchall provision does not require that the mental

state of recklessness be implied into the vehicular hijacking

statute as a means of committing the offense. His appeal to

§ 4-3(b) therefore does not overcome our conclusion that Illi-

nois vehicular hijacking is a knowing or purposeful offense.

Conclusion

We conclude that a pre-2013 conviction of Illinois vehicu-

lar hijacking is a crime of violence under the elements clause

of U.S.S.G. § 4B1.2(a). Accordingly, we affirm the judgment of

the district court.

AFFIRMED