United States v. Denny Anderson

In the

United States Court of Appeals

For the Seventh Circuit

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No. 21-1325

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DENNY R. ANDERSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:11-CR-00201-001 — Tanya Walton Pratt, Chief Judge.

____________________

ARGUED JANUARY 25, 2022 — DECIDED APRIL 30, 2024

____________________

Before RIPPLE, WOOD, and JACKSON-AKIWUMI, Circuit

Judges.

JACKSON-AKIWUMI, Circuit Judge. This case concerns

whether the district court improperly enhanced Denny An-

derson’s sentence under the Armed Career Criminal Act,

18 U.S.C. § 924(e). ACCA mandates a 15-year minimum sen-

tence for those convicted of possessing a gun after three or

more prior convictions for a “violent felony.” In this direct ap-

peal (Anderson once had a habeas appeal before this court

2 No. 21-1325

too), Anderson argues that one of the prior convictions the

district court relied on—his Florida conviction in 2001 for ag-

gravated assault—covers reckless conduct and is therefore no

longer a “violent felony” after Borden v. United States,

141 S. Ct. 1817 (2021), held that predicate acts must be inten-

tional crimes. We held this case in abeyance pending the Flor-

ida Supreme Court’s decision in Somers v. United States,

355 So. 3d 887 (Fla. 2022), which addressed whether the Flor-

ida crime of aggravated assault covers reckless conduct. With

that case decided, we are prepared to address Anderson’s ap-

peal. We conclude that Anderson’s Florida conviction in 2001

is not a predicate violent felony and that the government may

not substitute one of Anderson’s other prior convictions as an

alternative predicate offense. Because Anderson does not

have three predicate convictions, the ACCA enhancement

was improper. We therefore vacate and remand for resentenc-

ing.

I.

Denny Anderson was sentenced in 2012 for possessing a

firearm as a felon, in violation of 18 U.S.C. § 922(g)(1), after

shooting at a man and then yelling racial slurs about him. The

maximum penalty for the illegal-possession offense normally

is 10 years, id. § 924(a)(2) (2018), but ACCA mandates a

15-year minimum sentence for anyone who has three prior

convictions for a “violent felony,” id. § 924(e). The indictment

alleged eight prior felony convictions qualifying Anderson

for a sentencing enhancement under § 924(e). Anderson

pleaded guilty and was sentenced to an agreed-upon term of

180 months (15 years) in prison.

Anderson was resentenced in 2021, at the conclusion of a

successful habeas petition he filed under 28 U.S.C. § 2255 in

No. 21-1325 3

2013. In that petition, he moved to vacate his sentence based

on several defects. This court ruled that he was entitled to a

hearing, Anderson v. United States, 865 F.3d 914, 922 (7th Cir.

2017), and the district court vacated the sentence. The govern-

ment recharged him in a superseding indictment that listed

the same prior convictions as in the original indictment, and

the government again maintained that he was subject to a

15-year minimum sentence. In the factual basis supporting

Anderson’s renewed guilty plea, the government stated that

Anderson had been convicted of three prior felonies. The par-

ties agree that two—a 1981 burglary and a 1987 robbery—are

ACCA predicates. The third offense the government men-

tioned was a 1995 Class C felony conviction for battery in In-

diana. The original indictment, however, gave the wrong date

of conviction, and, at the plea hearing for the superseding in-

dictment, the government said the conviction was from “Mar-

ion County, Indiana,” but has since acknowledged that it is

from Hendricks County, Indiana.

As the case proceeded to sentencing, the probation office

supplied information about Anderson’s criminal history. The

Presentence Investigation Report listed as “Adult Criminal

Convictions” three violent felonies—the burglary from 1981,

the robbery from 1987, and an aggravated assault from 2001

in Florida. Anderson’s 1995 Indiana battery offense was in-

cluded under “Other Arrests,” a section listing offenses of

which Anderson was not convicted. The PSR also stated that

the battery “charge” was “[d]ismissed per plea agreement.”

The district court agreed that Anderson’s convictions for

burglary, robbery, and Florida aggravated assault qualified as

violent felonies, triggering a 15-year minimum sentence. The

court did not discuss the Indiana battery offense as a predicate

4 No. 21-1325

conviction. Neither party objected to the PSR, which the court

adopted, and Anderson did not object to his designation as an

armed career criminal. The court then resentenced him to

188 months in prison.

After Anderson filed this appeal to challenge his 15-year

minimum sentence under ACCA, the district court permitted

the government to supplement the record with three sets of

documents. The first is a copy of Anderson’s “judgment of

conviction” for felony battery in Indiana on October 20, 1995,

reflecting a sentence of probation. The second is a copy of the

docket for that case. The docket shows that the state peti-

tioned to revoke probation several months after the judgment.

That petition was followed by a final entry stating “[c]ase dis-

missed per order.” The third is a document showing that,

shortly before the date of that final entry, Anderson entered

into a plea deal in which the state agreed to “dismiss.” The

final entry on the docket reflects the order granting that mo-

tion to dismiss.

II.

This case turns on whether Anderson’s 2001 conviction for

assault in Florida, or the 1995 battery offense in Indiana, qual-

ify as the third predicate conviction and therefore properly

subjected him to a higher minimum sentence under ACCA.

See 18 U.S.C. § 924(e). Ordinarily we review that question

de novo. United States v. Love, 7 F.4th 674, 678 (7th Cir. 2021).

But because Anderson did not contest his ACCA designation

in the district court, we review that designation for plain er-

ror. United States v. Williams, 931 F.3d 570, 573 (7th Cir. 2019).

No. 21-1325 5

A.

Anderson first argues that his Florida conviction for ag-

gravated assault is plainly not a “violent felony” because as-

sault under Florida law, FLA. STAT. § 784.021, includes reckless

conduct, and therefore the scope of the crime is too broad to

constitute a violent felony. A state offense is a violent felony

for ACCA if it “necessarily involves the defendant’s ‘use, at-

tempted use, or threatened use of physical force against the

person of another.’” Borden, 141 S. Ct. at 1822 (quoting

18 U.S.C. § 924(e)). A state offense is overbroad (and therefore

not a violent felony) if it requires only the reckless use, at-

tempted use, or threatened use of force. Id. at 1821–22.

As mentioned earlier, we waited for the Florida Supreme

Court to rule on whether the crime of assault in that state in-

cludes reckless conduct. It has done so, holding that “an as-

sault cannot be committed by a reckless act.” Somers, 355 So.

3d at 892. But that decision, Anderson contends, does not re-

solve the matter before us. According to Anderson, the rele-

vant inquiry is whether the law at the time of his conviction was

broader than the corresponding federal law. And at the time

of Anderson’s conviction in 2001, Florida courts were split on

the breadth of the assault statute. Some appellate courts had

held that assault could be committed recklessly, see LaValley v.

Florida, 633 So. 2d 1126, 1127–28 (Fla. Dist. Ct. App. 1994);

Kelly v. Florida, 552 So. 2d 206, 208 (Fla. Dist. Ct. App. 1989),

while others had reached the opposite conclusion, see, e.g.,

Lavin v. Florida, 754 So. 2d 784, 787 (Fla. Dist. Ct. App. 2000)

(“Aggravated assault requires proof of a specific intent to do

violence to the person of another.”); Florida v. Shorette, 404 So.

2d 816, 817 (Fla. Dist. Ct. App. 1981) (same); J.C.M. v. Florida,

375 So. 2d 873, 873–74 (Fla. Dist. Ct. App. 1979) (same).

6 No. 21-1325

As an initial matter, Anderson is correct that we look to the

law at the time of the offense to determine whether a crime is

a violent felony under ACCA. See Love, 7 F.4th at 678 (“We

consider the version of the State’s criminal statute in effect at

the time of the offense.”); cf. McNeill v. United States, 563 U.S.

816, 820 (2011) (considering the “law under which the defend-

ant was convicted” in determining whether a defendant com-

mitted a “serious drug offense” under ACCA).

The breadth of the Florida aggravated assault statute at the

time of Anderson’s conviction is not easily discerned. Under

rules of federal statutory construction, we ordinarily presume

that a court’s construction of a federal statute merely clarifies

existing law and is “an authoritative statement of what the

statute meant before as well as after the decision of the case

giving rise to that construction.” Rivers v. Roadway Exp., Inc.,

511 U.S. 298, 312–13 (1994). Under this presumption, the ag-

gravated assault statute at the time of Anderson’s 2001 con-

viction would have the same meaning as the Florida Supreme

Court’s interpretation in Somers in 2022. But because we are

dealing with a Florida statute, we must apply Florida’s rules

of statutory construction. See, e.g., Lexington Ins. Co. v. Rugg &

Knopp, Inc., 165 F.3d 1087, 1093 (7th Cir. 1999) (“That other ju-

risdictions favor a policy cannot weigh heavily in a federal

court’s determination in an unsettled area of a state’s law if

there is any significant indication that that state’s own law ei-

ther disfavors the policy in question directly or that promoting

the policy would run afoul of established state standards of judicial

interpretation or statutory construction.” (emphasis added)).

And Florida has a unique approach to statutory interpreta-

tion: In Florida v. Barnum, 921 So. 2d 513, 528 (Fla. 2005), the

Florida Supreme Court held that “all decisions of this Court

disagreeing with a statutory construct previously rendered by

No. 21-1325 7

a district court constitute ‘changes’ in the applicable law from

the law at the time of conviction.” Moreover, court-initiated

“changes” in the law do not apply retroactively unless the

court states that the change satisfies a three-part test enunci-

ated in Witt v. Florida, 387 So. 2d 922, 926 (Fla. 1980). Barnum,

921 So. 2d at 518.

Because the Florida Supreme Court decision in Somers dis-

agrees with the statutory construct put forth in LaValley and

Kelly, it ostensibly constitutes a “change” in the law. Barnum,

921 So. 2d at 528. (Put aside, for the time being, the conflicting

decisions in Lavin, Shorette, and J.C.M., which we will return

to in a moment.) But Somers did not cite or apply the Witt ret-

roactivity test; the opinion said nothing at all about retroac-

tivity. Therefore, Somers does not announce a retroactive

change in the law. With no ruling from the state’s highest

court on the law at the time of Anderson’s conviction, we turn

to the Florida appellate courts to determine the law of the

state. See Barnum, 921 So. 2d at 523 (holding that “decisions of

the district courts represent the law of the state, binding all

Florida trial courts” unless there is “interdistrict con-

flict”); United States v. Cornette, 932 F.3d 204, 214 (4th Cir.

2019) (“[W]hen confronting matters of state law that have not

yet been decided by the state’s high court, we typically turn

to the state’s intermediate appellate courts.”). But, as dis-

cussed, there was an interdistrict conflict at the time of Ander-

son’s conviction, meaning there was no “law of the state.” Bar-

num, 921 So. 2d at 523.

Given this state of affairs—that there was no unified law

of the state in 2001 on whether aggravated assault could be

committed recklessly—the “realistic probability” test is an apt

tool to use. We apply that doctrine when, in comparing a state

8 No. 21-1325

statute to its federal counterpart, “the language of the state

statute is ambiguous or has indeterminate reach.” United

States v. Turner, 47 F.4th 509, 527 (7th Cir. 2022) (Jackson-Aki-

wumi, J., concurring); see also Aguirre-Zuniga v. Garland,

37 F.4th 446, 451 (7th Cir. 2022) (applying the same test in the

immigration context). Under this approach, we ask whether

there is a “realistic probability, not a theoretical possibility,

that the [s]tate would apply its statute to conduct that falls

outside the generic definition of the crime.” Gonzales v. Du-

enas-Alvarez, 549 U.S. 183, 193 (2007). To show a realistic prob-

ability, a defendant must “at least point to his own case or

other cases in which the state courts in fact did apply the stat-

ute in the special (nongeneric) manner for which he argues.”

Id.

Anderson has done just that by identifying Florida appel-

late court decisions ruling that assault could be committed

recklessly. The Eleventh Circuit rejected this conclusion when

presented with a similar argument; it reasoned that the Flor-

ida Supreme Court’s decision in Somers “tells us what the stat-

ute always meant.” Somers v. United States, 66 F.4th 890, 896

(11th Cir. 2023) (citation omitted). But the Eleventh Circuit did

not address Florida’s approach to statutory interpretation,

which, as we explained above, we are bound to follow when

interpreting Florida law. Because the Florida Supreme Court

did not say that Somers applied retroactively, the decisions

from the Florida appellate courts tell us how the statute was

applied at the time. See Barnum, 921 So. 2d at 523; Cornette,

932 F.3d at 214. And, based on those conflicting decisions,

there was a realistic probability that courts would punish con-

duct that included recklessness.

No. 21-1325 9

We recognize that, in applying the realistic-probability test

to rule that Anderson’s 2001 conviction is not a predicate

ACCA conviction, we are relying on appellate decisions like

LaValley and Kelly that we now know, based on Florida’s de-

cision in Somers, erroneously held that assault could be con-

victed recklessly. But at the time of Anderson’s conviction,

these decisions were not erroneous. See Pardo v. Florida,

596 So. 2d 665, 666 (Fla. 1992) (“[T]he decisions of the district

courts of appeal represent the law of Florida unless and until

they are overruled by [the Florida Supreme Court].” (empha-

sis added)). And this problem could arise any time a court fol-

lows a state law as interpreted at the time of sentencing, and

a state supreme court later takes a different position. Further-

more, in a case as close as this one, we must consider that de-

fendants are often unable to take advantage of favorable

changes in the law. See, e.g., United States v. Brock, 39 F.4th 462,

466 (7th Cir. 2022) (new judicial decisions that interpret a

criminal statute more narrowly are not extraordinary and

compelling reasons for compassionate release); Jones v. Hen-

drix, 143 S. Ct. 1857, 1869 (2023) (new judicial decisions that

interpret a criminal statute more narrowly do not warrant re-

lief under a second or subsequent collateral attack under

28 U.S.C. § 2244(b)(2)). Our ruling today places the govern-

ment on no worse footing.

Because Florida appellate cases using the recklessness

standard were good law at the time of Anderson’s conviction

in 2001, a defendant faced a realistic probability that a trial

court would have relied on them to convict him of aggravated

assault when that defendant had only a reckless state of mind.

Given that realistic probability, the government may not rely

on the 2001 Florida conviction as an ACCA predicate.

10 No. 21-1325

B.

The government hedges its bets by proposing a “backup”

offense if Anderson’s 2001 Florida conviction cannot be an

ACCA predicate. The government reasons that Anderson’s

1995 battery offense from Indiana can replace the Florida con-

viction and therefore sustain his enhanced sentence under

ACCA. This would mean, the government argues, the district

court did not plainly err in applying ACCA.

Anderson opposes this backup plan. In Anderson’s view,

he currently has no Indiana conviction for battery. He does

not dispute that the charge he faced in 1995 for battery is a

“violent felony” under ACCA; he instead contends that his

“conviction” was vacated and thus is not a predicate crime.

See 18 U.S.C. § 921(a)(20). In support he points to two sources.

The first is the PSR—which, because the district court adopted

it, he argues we must accept unless clearly erroneous. He

highlights its statement that his battery “charge” was “dis-

missed.” The second is the material that the government sub-

mitted after Anderson appealed. This includes a copy of the

judgment in 1995 reflecting his battery conviction and proba-

tion. He highlights the docket sheet showing a later-filed pe-

tition to revoke probation and the final entry stating “[c]ase

dismissed per order.”

The government counters that the battery conviction is in-

tact and that “dismissed” refers to the charge of Anderson’s

probation violation. Relying on its supplemental submission,

the government observes that, after Anderson’s battery con-

viction, the state charged him with a probation violation, An-

derson reached a plea deal about that charge, and that charge

is what the state agreed to “dismiss.” From this sequence, the

No. 21-1325 11

government concludes that only the probation charge was

dismissed; the underlying conviction for battery remains.

The government is correct that the Indiana battery convic-

tion is intact. The “dismissal” of the “charge” referenced in

the PSR must be the charge of the probation violation, as it was

the only charge pending on the referenced date. By that time,

the battery charge had previously been reduced to a judgment

of conviction. And judgments of conviction can only be va-

cated or set aside, not “dismissed.”

Even so, in light of the way the government presented in-

formation about the battery conviction, the government can-

not rely on the conviction to support the ACCA enhancement.

The government can substitute one predicate offense (the In-

diana battery) for one that the district court can no longer rely

on (the Florida assault) only when the substitution would not

offend principles of fair notice. See White v. United States,

8 F.4th 547, 553–54 (7th Cir. 2021); Dotson v. United States,

949 F.3d 317, 320 (7th Cir. 2020). Fair notice requires that de-

fendants receive a reasonable opportunity to challenge at

their sentencings the predicates used to enhance their sen-

tence. Dotson, 949 F.3d at 320–21. This rule enables defendants

to retrieve during the sentencing phase, rather than years later

which might be difficult, information about their convictions

that the government asserts are ACCA predicates and that de-

fendants seek to contest. We conclude that Anderson did not

receive fair notice that the government was relying on his 1995

battery conviction in Indiana.

According to the government, Anderson cannot feign sur-

prise at the use of his battery conviction because he had rea-

son to believe that it could serve as a predicate. The govern-

ment observes that both the original and superseding

12 No. 21-1325

indictment listed his battery conviction as a felony in violation

of § 922(g) and § 924(e), and the government’s factual basis

for the plea also referred to his battery conviction.

Yet the details supplied to Anderson undercut the quality

of this notice. First, the government included the wrong date

of conviction in its original indictment. Second, it gave the

wrong county in its factual basis. Third, the last document

about Anderson’s convictions to come to him—the PSR fur-

nished before resentencing in 2021—did not even include the

battery offense under past “convictions,” did not refer to it as

one of his three ACCA predicates, and instead reported the

battery “charge” as “dismissed.”

Given the conflicting and misleading details supplied to

Anderson, he did not have fair notice that this battery convic-

tion might serve as an ACCA predicate. To conclude other-

wise would require future defendants to challenge not only

all prior convictions (with little help from the government, if

the dates and counties of conviction can be wrong), but also

all prior arrests and charges in the PSR that may later turn out

to be convictions. This would prolong sentencing hearings

into “extraordinarily difficult exercises over questions where

the answers may never matter.” Dotson, 949 F.3d at 322.

Anderson’s case is different from that of White, 8 F.4th at

553, and Dotson, 949 F.3d at 318. The defendants there re-

ceived fair notice because the convictions the government

sought to substitute were correctly described in documents

such as the PSR (even if the convictions were not listed as

ACCA predicates). Here, the PSR, which Anderson received

just before resentencing, did not list the battery offense as a

conviction at all, undermining whatever notice he previously

received from the indictment and leaving him with no reason

No. 21-1325 13

to contest the battery as a possible ACCA predicate. Further,

the defendant in Dotson conceded that the challenged convic-

tion could be an ACCA predicate; Anderson did not.

For these reasons, the government cannot substitute the

Indiana battery conviction for the Florida assault conviction.

With both of those convictions unavailable, only two violent

felonies remain, yet ACCA requires three. Therefore, the dis-

trict court’s decision to apply ACCA’s 15-year minimum floor

to his sentence was plain error—clear, prejudicial error affect-

ing the sentencing proceeding’s fairness. See Molina-Martinez

v. United States, 578 U.S. 189, 194 (2016). Anderson must be

resentenced without the mandatory 15-year enhancement.

Accordingly, we VACATE the judgment and REMAND

for resentencing.

14 No. 21-1325

RIPPLE, Circuit Judge, dissenting. In my view, the majority

gives short shrift to the decision of the Florida Supreme Court

in Somers v. United States, 355 So. 3d 887 (Fla. 2022). This opin-

ion of the Florida Supreme Court makes clear that it was

aware that the Eleventh Circuit sought its guidance on the el-

ements of Florida’s aggravated assault statute because the

Government sought to enhance Mr. Somers’s sentence on the

basis of such a conviction. The Florida Supreme Court there-

fore understood that the Eleventh Circuit needed to know the

scope of the Florida aggravated assault statute at the time

Mr. Somers was convicted of the predicate offense. See id. at

890–91. See also McNeill v. United States, 563 U.S. 816, 820

(2011). The Florida Supreme Court’s employment of the pre-

sent tense in the presentation of its analysis is a common con-

vention and should not be read to imply that the court was

not addressing its analysis to the time of the conviction of the

predicate offense. Cf. id. (noting that questions regarding the

scope of past crimes in the context of the ACCA “can only be

answered by reference to the law under which the defendant

was convicted”).

We owe the Supreme Court of Florida a presumption of

regularity with respect to the answer that it gave our col-

leagues in the Eleventh Circuit. The Florida Justices were en-

tirely cognizant of the nature of the Eleventh Circuit’s inquiry,

and they answered that inquiry. The fact that the Justices did

not address explicitly the rule of retroactivity previously ar-

ticulated in State v. Barnum, 921 So. 2d 513, 528–29 (Fla. 2005),

and Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992), does not jus-

tify our rejection of their analysis. Given the lack of unanimity

among the Florida appellate districts prior to Somers, the Flor-

ida Supreme Court’s decision did not displace an established

state-wide rule.

No. 21-1325 15

I would affirm the judgment of the district court.