Petition for Writ of Certiorari — Darvill Jimmy Joseph Bragg, Petitioner v. United States

APPENDIX

APPENDIX A:

United States v. Bragg, 3:19-cr-00112-001 (S.D. Iowa) (criminal

proceedings) Judgment entered May 3, 2021 ............................... 1

APPENDIX B:

United States v. Bragg, 3:19-cr-00112-001, (S.D. Iowa) (criminal

proceedings) excerpt from transcript of sentencing hearing held

on May 3, 2021 ............................................................................... 8

APPENDIX C:

United States v. Bragg, 21-2096, (8th Cir.) (direct criminal

appeal), judgment and opinion entered August 15, 2022 .......... 10

APPENDIX D:

United States v. Bragg, 21-2096, (8th Cir.) (direct criminal

appeal), Order denying petition for rehearing en banc and

rehearing by the panel entered October 4, 2022 ........................ 29

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Appendix A

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APP. p. 007

1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

EASTERN DIVISION

- - - - - - - - - - - - - - X

UNITED STATES OF AMERICA,

:

:

Plaintiff,

:

:

vs.

:

:

DARVILL JIMMY JOSEPH BRAGG, :

:

Defendant.

:

- - - - - - - - - - - - - - X

Case No. 3:19-cr-112

SENTENCING HEARING TRANSCRIPT

Courtroom 242, Second Floor

U.S. Courthouse

131 East Fourth Street

Davenport, Iowa

Monday, May 3, 2021

4:05 p.m.

BEFORE:

THE HONORABLE JOHN A. JARVEY, Chief Judge

APPEARANCES:

For the Plaintiff:

WILLIAM R. RIPLEY, ESQ.

United States Attorney's Office

U.S. Attorney's Office

131 East Fourth Street, Suite 310

Davenport, Iowa 52801

For the Defendant:

DIANE HELPHREY, ESQ.

Federal Public Defender's Office

101 West Second Street, Suite 401

Davenport, Iowa 52801-1815

TONYA R. GERKE, CSR, RDR, CRR

United States Courthouse

123 East Walnut Street, Room 197

Des Moines, Iowa 50309

APPENDIX B

APP. p. 008

9

1

different from one another.

2

THE COURT:

Are you offering these?

3

MR. RIPLEY:

I am offering.

4

THE COURT:

Ms. Helphrey?

5

MS. HELPHREY:

6

THE COURT:

7

Thank you, Your Honor.

I have no objection, Your Honor.

4 and 5 are received.

* * * Government Exhibits 4 and 5 were received. * * *

MR. RIPLEY:

8

That in conjunction with the established

9

law as to the nature of the crime, Your Honor, I think we have

10

both robberies that are felonies for purposes of the Armed

11

Career Criminal Act, and then in conjunction with the willful

12

injury conviction from Iowa, we have three predicates here, Your

13

Honor.

14

THE COURT:

Yeah.

So I find that he is an armed

15

career criminal.

16

which has already ruled that the Illinois convictions qualify as

17

violent felonies.

18

issue of whether the willful injury one qualifies as well.

19

that extent, the objections about the narratives on the criminal

20

history are overruled.

21

6 through 14 of the presentence report based on the trial

22

testimony that was admitted, and for that reason he also gets

23

the four-level enhancement for possessing a firearm in

24

connection with another felony offense.

25

I'm bound by the law of this circuit that --

The Government's brief is persuasive on the

To

I overrule the objections to paragraphs

He has a total offense level of 34 and a criminal

APP. p. 009

United States Court of Appeals

SENT TO CLIENT

For the Eighth Circuit

___________________________

Aug 15 2022

by:

kelly_jensen

No. 21-2096

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Darvill Jimmy Joseph Bragg

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court

for the Southern District of Iowa - Eastern

____________

Submitted: February 17, 2022

Filed: August 15, 2022

____________

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

____________

LOKEN, Circuit Judge.

A jury convicted Darvill Bragg of being a felon in possession of a firearm. 18

U.S.C. § 922(g)(1). The district court1 sentenced him as an armed career criminal to

240 months’ imprisonment. 18 U.S.C. § 924(e). Bragg appeals his conviction,

1

The Honorable John A. Jarvey, then Chief Judge of the United States District

Court for the Southern District of Iowa, now retired.

APPENDIX C

APP. p. 010

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Date Filed: 08/15/2022 Entry ID: 5187225

arguing that evidence from his iPhone should have been suppressed because the

government delayed unreasonably before seeking a search warrant, and that prior

firearm convictions were improperly admitted under Federal Rule of Evidence

404(b). He also appeals his sentence, arguing that neither his Iowa willful injury

conviction nor his two Illinois armed robbery convictions qualify as “violent

felonies” under § 924(e). He further argues the Illinois robbery convictions were not

“committed on occasions different from one another,” § 924(e)(1), and thus constitute

only one prior violent felony conviction. We affirm.

I. The iPhone Evidence Issue

On the night of October 25, 2019, Davenport, Iowa police investigated a “shots

fired” incident. The victim, Jalen Ross, told police that when he arrived at the

apartment of his ex-girlfriend, Tontianna Hill, Merrill Howard and Darvill Bragg,

Hill’s new boyfriend, shot at him from a black Chevrolet Impala. Ross recognized

Bragg from Facebook pictures. He said Bragg was holding a black revolver. Based

on this information, police stopped a black Impala they observed returning to the

apartment complex. Hill was driving with Bragg in the passenger seat. When police

recovered an unloaded black revolver from the map pocket directly in front of Bragg,

they arrested Bragg and seized four iPhones. Hill identified one as belonging to

Bragg. At trial, the government introduced videos recovered in a warrant search of

the iPhone, including an October 20 video in which Bragg was carrying a revolver

matching the gun found in the Impala’s map pocket and wearing the sweatshirt he

was wearing when arrested.

At the time of his arrest, Bragg was also the primary suspect of a separate shots

fired incident on October 17. Detective Bryan Butt was investigating that shooting

and was assigned to investigate the October 25 shooting, as well as other shooting

incidents that plagued Davenport in late October and early November 2019. Based

on the October 25 shooting incident, Detective Butt applied for a warrant to search

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Bragg’s residence on October 31 and a warrant to search his iPhone on November 18.

Both warrants issued. Bragg does not argue the issuing magistrates lacked probable

cause to issue either warrant. Bragg was always in custody after his arrest.

Bragg’s iPhone was seized incident to his lawful arrest. Given the volume and

sensitive nature of information stored on modern cell phones,“a warrant is generally

required” before the search of a cell phone seized incident to arrest. Riley v.

California, 573 U.S. 373, 401 (2014). Because a seizure is generally less intrusive

than a search, the Supreme Court “has frequently approved warrantless seizures of

property, on the basis of probable cause, for the time necessary to secure a warrant,

where a warrantless search . . . would have been held impermissible.” Segura v.

United States, 468 U.S. 796, 806 (1984) (citations omitted). However, “a seizure

reasonable at its inception . . . may become unreasonable as a result of its duration.”

Id. at 812. These general principles apply in this case.

On appeal, Bragg argues, as he did to the district court, that Detective Butt’s

twenty-four-day delay in applying for a warrant to search the iPhone violated the

Fourth Amendment and therefore the district court erred in not suppressing evidence

recovered in the ensuing warrant search of the iPhone. We disagree.

Detective Butt was the only witness at the pre-trial suppression hearing. He

described his overlapping investigations of two shooting incidents in which Bragg

was the primary suspect, which involved multiple crime scenes, witnesses, and

warrants, and his participation in investigating other firearm and shooting incidents

in late October and early November 2019. He explained that evidence destruction

concerns made it more imperative to get a warrant to search Bragg’s residence than

his iPhone. In testimony the district court explicitly credited, Butt testified that, after

the iPhone warrant issued, he did an initial review of the extracted data, identified

videos showing Bragg in possession of a firearm, and provided that data to the United

States Attorney’s Office. Thus, any later delays are not at issue on appeal.

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Based on Butt’s testimony, the district court concluded that the twenty-four-day

delay in applying for a warrant to search what Hill identified as Bragg’s iPhone was

not unreasonable. Balancing the governmental and private interests at issue in light

of the relevant facts and circumstances, the court concluded that “typical staleness”

concerns were not involved because electronic devices such as cell phones retain data

for long periods of time. Addressing the length of the delay, the court ruled that

“although it is never a good thing to deprive people of their property without

determining its evidentiary value, the delay here of twenty-four days does not seem

excessive especially in light of the fact of [Bragg’s] arrest and detention.” Bragg

appeals this ruling. We review the district court’s findings of fact for clear error and

its conclusion that the Fourth Amendment was not violated de novo. See United

States v. Mays, 993 F.3d 607, 614 (8th Cir. 2021).

The question whether Detective Butt unreasonably delayed in applying for a

warrant to search the iPhone “is measured in objective terms by examining the totality

of the circumstances,” which requires us to balance “privacy-related and law

enforcement-related concerns.” Mays, 993 F.3d at 616-17 (quotations omitted).

On the private-interests side, relevant considerations include the

significance of the interference with the person’s possessory interest, the

duration of the delay, whether the person consented to the seizure, and

the nature of the seized property. On the government-interests side,

relevant considerations include the government’s legitimate interest in

holding the property as evidence, the nature and complexity of the

investigation, the quality of the warrant application and the amount of

time we expect the application would take to prepare, and any other

evidence proving or disproving law enforcement’s diligence in obtaining

the warrant.

Id. at 617 (citations omitted).

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Although significantly longer delays have been upheld as not unreasonable,

without question the twenty-four day delay at issue is of concern. Compare Mays,

993 F.3d at 617 (fifteen-day delay is a “considerable period”), with United States v.

Stabile, 633 F.3d 219, 235-36 (3d Cir.) (three-month delay troubling but reasonable

under the circumstances), cert. denied, 565 U.S. 942 (2011).

As the Supreme Court’s opinion in Riley made clear, the property seized -- an

iPhone identified as belonging to Bragg -- raises powerful Fourth Amendment

concerns, both in the quality and quantity of private personal data it likely contains,

and because lengthy seizure of an item of vital importance in daily life is likely to

significantly interfere with a person’s possessory interests. See Robbins v. City of

Des Moines, 984 F.3d 673, 680-81 (8th Cir. 2021) (warrantless seizure of cell phone

and camera, and detention for twelve days without arguable probable cause

unreasonable). However, as the district court recognized, these concerns are greatly

lessened in this case.

First, because smartphones “retain data for long periods of time,” delay

between the time a cell phone is seized and when it is searched is not likely to cause

stored personal data to be lost, or data of potential evidentiary relevance to become

stale. More important to the private interests at stake, Bragg was in police custody

for the entire twenty-four-day period, and there is no evidence that either Bragg or

anyone acting on his behalf made a request or demand for its return, or even inquired

about it. See United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir.) (temporary

seizure of a jailed defendant’s computers “did not meaningfully interfere with his

possessory interests”), cert. denied, 568 U.S. 882 (2012); Stabile, 633 F.3d at 235-36

(no return requested until eighteen months after seizure). As the Supreme Court

observed in United States v. Johns, defendants who “never sought return of the

property . . . have not even alleged, much less proved, that the delay in the search . . .

adversely affected legitimate interests protected by the Fourth Amendment.” 469

U.S. 478, 487 (1985).

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By contrast, the government had a strong legitimate interest in seizing the

iPhone incident to Bragg’s lawful arrest. They had probable cause to believe Bragg

was guilty of a federal law firearm offense and/or a state law felony shooting offense.

“[A]ll else being equal, the Fourth Amendment will tolerate greater delays after

probable-cause seizures.” United States v. Smith, 967 F.3d 198, 209 (2d Cir. 2020)

(quotation omitted); see Mays, 993 F.3d at 617. Here, the relevant circumstances,

including Hill’s statement that it was Bragg’s iPhone, gave officers reason to hold the

iPhone to apply for a warrant to search for evidence of any offense that may be

charged, and as potential evidence itself that Bragg was the person in possession of

the firearm found in the vehicle map pocket near where he was sitting. See United

States v. Burris, 22 F.4th 781, 785 (8th Cir. 2022) (“Delay in searching a phone is

immaterial to the reasonableness of a seizure . . . when the device has independent

evidentiary value.”) (citations omitted); cf. United States v. Chatmon, 742 F.3d 350,

353 (8th Cir. 2014).

Of lesser significance, but still relevant, was Butt’s testimony that during the

delay period, he was engaged in multiple firearm and shooting investigations,

including two in which Bragg was the primary suspect. Though Butt conceded the

iPhone search warrant application was “not particularly complex,” he logically

explained why he gave the apartment search warrant higher priority. Bragg

introduced no evidence that Detective Butt delayed merely “because law enforcement

officers simply believed that there was no rush.” United States v. Mitchell, 565 F.3d

1347, 1353 (11th Cir. 2009) (21-day delay unreasonable). We agree with the Seventh

Circuit that “police imperfection is not enough to warrant reversal . . . [where the]

delay was not the result of complete abdication of his work or failure to see any

urgency.” United States v. Burgard, 675 F.3d 1029, 1034 (7th Cir.) (quotations

omitted), cert. denied, 568 U.S. 852 (2012).

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For these reasons, we agree with the district court that the twenty-four-day

delay was not unreasonable in these circumstances. The court did not err in denying

Bragg’s motion to suppress.2

II. Admissibility of the Past Firearm Convictions

Bragg next argues the district court abused its discretion in admitting evidence

of his 2010 armed robbery conviction and 2014 willful injury conviction to prove his

knowledge and intent to possess the firearm at issue. See Fed. R. Evid. 404(b). Rule

404(b) precludes the use of other crimes or wrongs evidence “to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character.” We review Rule 404(b) admissions for abuse of discretion. “We

will only reverse those admissions when they clearly had no bearing on the case and

were introduced solely to prove the defendant’s propensity to commit criminal acts.”

United States v. Drew, 9 F.4th 718, 722 (8th Cir. 2021) (cleaned up), cert. denied, 142

S. Ct. 1159 (2022).

To be admitted under Rule 404(b), “[t]he evidence must be (1) relevant to a

material issue; (2) similar in kind and not overly remote in time to the crime charged;

(3) supported by sufficient evidence; and (4) higher in probative value than

prejudicial effect.” United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006)

(quotations omitted). We conclude the district court did not abuse its discretion in

admitting the two prior firearm convictions.

First, the convictions were relevant. Bragg denied an element of the

§ 922(g)(1) charged offense, claiming he did not knowingly possess a gun found in

2

Accordingly, we need not address the district court’s alternative ruling that the

cell phone evidence was admissible under the Leon good faith exception to the Fourth

Amendment exclusionary rule, even if the 24-day delay rendered the search warrant

invalid. See United States v. Leon, 468 U.S. 897, 922-23 (1984).

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the car’s map pocket inches in front of him. We have routinely affirmed the use of

past gun possession offenses to prove the element of knowing possession in violation

of 18 U.S.C. § 922(g)(1). See, e.g., United States v. Smith, 978 F.3d 613, 616 (8th

Cir. 2020), cert. denied, 142 S. Ct. 396 (2021).

Second, the convictions were similar in kind to the charged offense. See

Walker, 470 F.3d at 1275 (prior armed robbery similar to felon-in-possession offense

because “each involved his possession of a firearm in connection with a criminal

act”). Given this similarity, the five and nine-year-old convictions were not too

remote in time. See, e.g., Smith, 978 F.3d at 616-17 (admitting eleven-year-old gun

crime to prove knowledge for felon-in-possession offense); Walker, 470 F.3d at 1275

(eighteen-year-old conviction).

Third, the prior offenses were supported by sufficient evidence -- investigating

officers testified about each offense, and the government submitted certified records

of the prior convictions. See Walker, 470 F.3d at 1275.

Fourth, affording the district court “substantial deference” to make this

determination, we agree that the prior convictions were higher in probative value than

prejudicial effect. Id. The district court significantly reduced the danger of unfair

prejudice. While the jury heard testimony by the investigating officers, including that

Bragg admitted to possessing a firearm as part of the 2010 offense, criminal case

documents supporting the convictions were submitted to the court and not the jury,

and the court instructed the jury -- before and after the officers’ testimony -- that they

cannot use the evidence “to find that because the defendant may have committed

similar acts in the past that he must, therefore, be guilty of the crime charged here.”

This caution was repeated in the final jury instructions. Such instructions are

important in reducing the potential for unfair prejudice. See Walker, 470 F.3d at

1275; cf. Drew, 9 F.4th at 724 and 730 (Kelly, J., concurring).

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III. Sentencing Issues

At sentencing, overruling Bragg’s objections, the district court concluded that

he has three prior convictions for “violent felonies” that trigger a 15-year mandatory

minimum sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e): a 2014 Iowa willful injury conviction, and two 2010 Illinois armed robbery

convictions. The PSR calculated an advisory guidelines sentencing range of 262-327

months, above the ACCA mandatory minimum 180 months. After considering the

18 U.S.C. § 3553(a) sentencing factors, the district court varied downward and

imposed a 240-month prison sentence. Bragg appeals the sentence, arguing the three

prior state convictions do not qualify as ACCA violent felonies, and that the two 2010

Illinois offenses were not committed on different occasions and therefore were not

separate ACCA predicate convictions.

A. The Iowa Willful Injury Conviction

In 2014, Bragg was convicted in state court of violating Iowa Code § 708.4(1),

which provides that “[a]ny person who does an act which is not justified and which

is intended to cause serious injury to another commits willful injury, which is

punishable as . . . [a] class ‘C’ felony, if the person causes serious injury to another.”

On appeal, he argues the district court erred in determining this was a prior “violent

felony” conviction because the offense “has as an element the use, attempted use, or

threatened use of physical force against the person of another.” § 924(e)(2)(B)(i),

commonly referred to as the “force clause.” We review this issue de novo. See

United States v. Vanoy, 957 F.3d 865, 867 (8th Cir. 2020). Our path is a welltraveled road:

In determining whether a prior conviction qualifies as a “violent felony”

under the ACCA[,] courts use a categorical approach that looks to the

fact of conviction and the statutory elements of the prior offense. In

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cases where a divisible statute describes alternate ways of committing

a crime -- only some of which satisfy the definition of a violent felony

-- courts may use a modified categorical approach and examine a limited

set of documents to determine whether a defendant was necessarily

convicted of a violent felony. These materials include charging

documents, jury instructions, plea agreements, transcripts of plea

colloquies, or some comparable judicial record.

United States v. Clark, 1 F.4th 632, 634 (8th Cir.) (cleaned up), cert. denied, 142 S.

Ct. 511 (2021). Because “[t]he Sentencing Guidelines’s definition of ‘crime of

violence’ is so similar to the ACCA’s definition of ‘violent felony’ . . . we generally

consider cases interpreting them interchangeably.” United States v. Martin, 15 F.4th

878, 883 (8th Cir. 2021), cert. denied, 142 S. Ct. 1432 (2022).

A violation of Iowa Code § 708.4(1) is a class C felony “if the person causes

serious injury to another.” Section 702.18 defines “serious injury” to mean:

a. Disabling mental illness.

b. Bodily injury which does any of the following:

(1) Creates a substantial risk of death.

(2) Causes serious permanent disfigurement.

(3) Causes protracted loss or impairment of the function of any

bodily member or organ.

c. Any injury to a child that requires surgical repair and necessitates the

administration of general anesthesia.

In United States v. Quigley, 943 F.3d 390, 394 (8th Cir. 2019), we concluded that a

violation of Iowa Code § 708.2(1) -- assault with intent to commit serious injury -is a crime of violence under the force clause. This statute also incorporates the

definition of “serious injury” in § 702.18. We concluded § 702.18 is indivisible.

Therefore, we will likewise apply the categorical approach in this case.

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Bragg argues the inclusion of “disabling mental illness” in the indivisible

definition of “serious injury” in § 702.18 renders § 708.4(1) facially overbroad

because a defendant can cause disabling mental illness without “the use, attempted

use, or threatened use of physical force against the person of another” (emphasis

added). See Johnson v. United States, 559 U.S. 133, 140 (2010) (“the phrase

‘physical force’ means violent force -- that is, force capable of causing physical pain

or injury to another person.”) (emphasis in original). In Clark, we rejected this same

argument in concluding that a violation of Iowa Code § 708.4(2) -- a Class D felony

that is committed when a person “causes bodily injury to another” -- is a violent

felony under the force clause, relying on the Supreme Court of Iowa definition of

“bodily injury” as requiring “physical pain, illness or any impairment of physical

condition.” 1 F.4th at 636-37 (citing State v. McKee, 312 N.W.2d 907, 913 (Iowa

1981)); accord United States v. Spratt, 735 F. App’x 219, 220 (8th Cir. 2018).

However, an element of the § 708.4(1) offense Bragg committed requires causing

“serious injury,” not “bodily injury.” As those terms may not have identical

meanings, whether a § 708.4(1) conviction qualifies as an ACCA predicate under the

force clause is an issue of first impression.

We find the answer to this question in controlling Eighth Circuit precedents,

interpreted in light of the Supreme Court’s caution that a showing of overbreadth:

requires more than the application of legal imagination to a state

statute’s language. It requires a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls

outside the generic definition of a crime. To show that realistic

probability, an offender, of course, may show that the statute was so

applied in his own case. But he must at least point to his own case or

other cases in which the state courts in fact did apply the statute in the

special (nongeneric) manner for which he argues.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

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In Quigley, neither the defendant nor our independent survey of Iowa

precedents “identif[ied] any Iowa cases where an individual was convicted [of assault

with intent to inflict serious injury] without having at least threatened to use physical

force.” 943 F.3d at 394. The same is true here. While Bragg cites cases discussing

the term “serious injury” in non-analogous circumstances, “we can think of no

non-fanciful, non-theoretical manner in which to commit [willful injury] without at

least threatening use of physical force.” Quigley, 943 F.3d at 395 (quotation

omitted); accord United States v. Tinlin, 20 F.4th 426, 428 (8th Cir. 2021) (applying

Quigley analysis in concluding that domestic abuse assault with intent to commit

serious injury is a crime of violence under the Guidelines career offender provisions),

petition for cert. docketed, No. 21-8191 (June 21, 2022); United States v. Chapman,

720 F. App’x 794, 796 (8th Cir. 2018).

Bragg argues that this “realistic probability” analysis does not apply because

§ 708.4(1) is “unquestionably overbroad,” and “[o]verbroad statutory language alone

is sufficient to establish that the statute does not qualify” under the force clause,

citing Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021). Gonzalez, like

Duenas-Alvarez, was a case arising under the Immigration and Nationality Act. In

Peh v. Garland, 5 F.4th 867, 871-72 (8th Cir. 2021), we labeled Gonzalez a

“competing view” and remanded to the BIA with directions to explain its

understanding of the “realistic probability” requirement. We have not applied

Gonzalez in an ACCA or career offender force clause case and decline to do so here.

In an Eighth Circuit Rule 28(j) letter, Bragg asserts that the Supreme Court’s

recent decision in United States v. Taylor, 142 S. Ct. 2015 (2022), “definitively held

that overbroad statutory language alone is sufficient to establish that a statute is not

a categorical match.” We disagree. The Court in Taylor noted that the case involved

“only whether the elements of one federal law align with those prescribed in another,”

whereas in Duenas-Alverez, the Court had noted a federalism concern in ruling that

“it made sense to consult how a state court would interpret its own State’s law.” 142

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S. Ct. at 2025. Thus, Taylor did not overrule our controlling “realistic probability”

precedents such as Quigley and Tinlin.

Bragg further argues that Iowa Code § 708.4(1) is overbroad because it

requires an “act,” and the statutory definition of that term “includes a failure to do any

act which the law requires one to perform.” Iowa Code § 702.2. In Clark we rejected

this argument in concluding that a § 708.4(2) conviction was an ACCA violent

felony. That ruling governs here because the “act” element is applicable to all

§ 708.4 offenses. Clark, 1 F.4th at 637.

For these reasons, the district court properly determined that Bragg’s

§ 708.4(1) willful injury conviction is an ACCA predicate violent felony.

B. The 2010 Illinois Armed Robbery Convictions

Bragg also challenges the use of two 2010 Illinois armed robbery convictions

as ACCA predicate violent felonies. Not surprisingly, like the Seventh Circuit, we

have previously held that an Illinois armed robbery conviction is an ACCA violent

felony under the force clause because an element of the offense is the use of “the

amount of force necessary to overcome a victim’s resistance.” Dembry v. United

States, 914 F.3d 1185, 1189 (8th Cir. 2019), quoting Stokeling v. United States, 139

S. Ct. 544, 555 (2019); see Shields v. United States, 885 F.3d 1020, 1023-24 (7th Cir.

2018), vacated in light of Stokeling, 139 S. Ct. 1257 (2019). In Borden v. United

States, the Supreme Court subsequently held that offenses with a mens rea of

recklessness do not qualify as “violent felonies” under § 924(e)(1). 141 S. Ct. 1817,

1834 (2021) (plurality opinion). Bragg argues that, applying Borden, the Illinois

armed robbery statute at the time of his 2010 convictions was overbroad because

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“robbery and armed robbery could be committed with purpose, knowledge, or

recklessness.”3 We disagree.

At the time of Bragg’s convictions, the Illinois statute provided that “[a]

person commits robbery when he or she takes property . . . from the person or

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

720 Ill. Comp. Stat. 5/18-1 (2010). Bragg was convicted of armed robbery because

the robberies were committed while “he or she carries on or about his or her person

or is otherwise armed with a firearm.” 720 Ill. Comp. Stat. 5/18-2(a)(2)

The Tennessee statute at issue in Borden defined the crime as “[r]ecklessly

commit[ting] an assault.” Borden 141 S. Ct. at 1822, citing Tenn. Code Ann.

§ 39-13-102(a)(2) (2003). By contrast, the Illinois armed robbery statute at issue had

no explicit mens rea requirement. Thus, it was not facially overbroad. But Bragg

argues that Illinois appellate cases interpreting the statute establish that it “can be

accomplished with mere recklessness.” This contention requires a closer look.

The Illinois Criminal Code provides that, “when a statute neither prescribes a

particular mental state nor creates an absolute liability offense, then either intent,

3

In 2015, Illinois amended the robbery statute to provide that a person commits

robbery “when he or she knowingly takes property . . . by the use of force or by

threatening the imminent use of force.” 720 Ill. Comp. Stat. § 5/18-1 (2015)

(emphasis added). Bragg asserts that the statute in effect when Bragg was convicted

of the robberies controls. The government does not disagree, so we assume without

deciding that Bragg is correct. We note, however, that in revisiting the force clause

issue after the Supreme Court remanded in Martin for reconsideration in light of

Borden, we applied the 2015 version of the Illinois statute enacted after the

defendant’s prior offense. 15 F.4th at 884. In Martin we affirmed the career offender

enhancement under the Guidelines “enumerated offenses” clause, which includes

“robbery.” USSG § 4B1.2(a)(2). As robbery is not an enumerated offense under the

ACCA, § 924(e)(2)(B)(ii), Martin does not control the post-Borden issue in this case.

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knowledge or recklessness applies.” People v. Gean, 573 N.E.2d 818, 822 (Ill. 1991).

As no mental state is included in the statutory definition, robbery is a “general intent

crime,” and a mens rea element need not be set forth in the indictment or information,

see People v. Thompson, 466 N.E.2d 380, 384-87 (Ill. App. Ct. 1984), or in the

instructions to the jury, see People v. Avant, 532 N.E.2d 1141, 1144-47 (Ill. App. Ct.

1989). However, the Criminal Code provides that a person is not guilty of armed

robbery unless he or she acted while having the mental state of intent, knowledge, or

recklessness. Avant, 532 N.E.2d at 1145. These cases establish at least a theoretical

possibility that an Illinois armed robbery conviction could be based on reckless

conduct, though counsel for Bragg admitted at oral argument that such a situation is

hard to imagine. In these circumstances, it is again appropriate to apply the “realistic

probability” principle, as we previously did in concluding that this offense requires

the amount of force the force clause requires. Dembry, 914 F.3d at 1188.

Beginning with the premise that it is hard to imagine a reckless armed robbery,

we find the logical answer to this question confirmed by the Supreme Court of Illinois

decision in People v. Jones, 595 N.E.2d 1071 (Ill. 1992). In Jones, the defendant was

charged with armed robbery. The jury acquitted him of that charge but convicted him

of the lesser-included offense of theft. The Illinois Court of Appeals reversed the

conviction, concluding theft is not a lesser included offense because it contains “the

additional element of intent.” Id. at 1073. The Supreme Court reversed. “When a

robbery is committed or attempted, common sense dictates that the perpetrator either

intends to deprive the owner permanently of the use or benefit of the property, or

knowingly uses . . . the property in such manner.” Id. at 1075 (cleaned up). With this

guidance from the Supreme Court as to the mens rea element inherent in armed

robbery, we see no realistic probability that a person would be charged with and

convicted of Illinois armed robbery based on merely reckless conduct. Bragg does

not even attempt to fill that void. Accordingly, the district court did not err in

concluding his 2010 Illinois armed robberies were ACCA violent felonies.

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Bragg further argues that even if the armed robbery convictions were violent

felonies, they were not “committed on occasions different from one another,” as

§ 924(e)(1) requires. We review this issue de novo. United States v. Willoughby,

653 F.3d 738, 741 (8th Cir. 2011). In United States v. Wooden, 142 S. Ct. 1063

(2022), the Supreme Court recently adopted a multi-factor analysis for resolving this

issue which focuses on the timing, “[p]roximity of location,” and “character and

relationship” of the multiple offenses at issue. Id. at 1071. The Court expressed

confidence that its test would be easy to apply. “[I]n law as in life, it is usually not

so difficult to identify an ‘occasion’ . . . [and] most cases should involve no

extra-ordinary work.” Id. at 1071. The Court noted that circuits already applying its

multi-factor approach “have nearly always treated offenses as occurring on separate

occasions if a person committed them a day or more apart, or at a ‘significant

distance.’” Id.4

Here, the government met its burden to prove the two robbery convictions were

committed on different occasions. At sentencing, the government submitted certified

court records establishing that on August 14, 2010, Bragg robbed victim “B.K.,” a

crime investigated by Rock Island Police. On August 16, Bragg robbed “E.D.,” a

crime investigated by Moline Police. Bragg robbed two victims, two days apart.

That the cases were investigated by different local police departments is evidence of

different locations. Thus, the district court did not err in concluding that Bragg’s two

robbery convictions were committed on different occasions and could serve as

separate ACCA predicate offenses.

4

Our prior decisions have carefully reviewed the circumstances in each case.

Compare Willoughby, 653 F.3d at 742-43, with United States v. Abbott, 794 F.3d

896, 898 (8th Cir. 2015). Viewing our precedents as a whole, we see no

inconsistency with the Supreme Court’s focus in Wooden. As we recently said in

United States v. Stowell, “Wooden didn’t supplant our three-factor test” in

Willoughby. No. 21-2096 slip op. at p.3 n.2 (8th Cir. July 25, 2022).

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IV. Conclusion

The judgment of the district court is affirmed.

______________________________

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

___________________

No: 21-2096

___________________

United States of America

Plaintiff - Appellee

v.

Darvill Jimmy Joseph Bragg

Defendant - Appellant

______________________________________________________________________________

Appeal from U.S. District Court for the Southern District of Iowa - Eastern

(3:19-cr-00112-JAJ-1)

______________________________________________________________________________

JUDGMENT

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

This appeal from the United States District Court was submitted on the record of the

district court, briefs of the parties and was argued by counsel.

After consideration, it is hereby ordered and adjudged that the judgment of the district

court in this cause is affirmed in accordance with the opinion of this Court.

August 15, 2022

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

APP. p. 027

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Date Filed: 08/15/2022 Entry ID: 5187231

SENT TO CLIENT

Aug 15 2022

Adopted April 15, 2015

Effective August 1, 2015

by:

kelly_jensen

Revision of Part V of the Eighth Circuit Plan to Implement the Criminal Justice Act of

1964.

V. Duty of Counsel as to Panel Rehearing, Rehearing En Banc, and Certiorari

Where the decision of the court of appeals is adverse to the defendant in whole or in part, the

duty of counsel on appeal extends to (1) advising the defendant of the right to file a petition for

panel rehearing and a petition for rehearing en banc in the court of appeals and a petition for writ

of certiorari in the Supreme Court of the United States, and (2) informing the defendant of

counsel's opinion as to the merit and likelihood of the success of those petitions. If the defendant

requests that counsel file any of those petitions, counsel must file the petition if counsel

determines that there are reasonable grounds to believe that the petition would satisfy the

standards of Federal Rule of Appellate Procedure 40, Federal Rule of Appellate Procedure 35(a)

or Supreme Court Rule 10, as applicable. See Austin v. United States, 513 U.S. 5 (1994) (per

curiam); 8th Cir. R. 35A.

If counsel declines to file a petition for panel rehearing or rehearing en banc requested by the

defendant based upon counsel's determination that there are not reasonable grounds to do so,

counsel must so inform the court and must file a written motion to withdraw. The motion to

withdraw must be filed on or before the due date for a petition for rehearing, must certify that

counsel has advised the defendant of the procedures for filing pro se a timely petition for

rehearing, and must request an extension of time of 28 days within which to file pro se a petition

for rehearing. The motion also must certify that counsel has advised the defendant of the

procedures for filing pro se a timely petition for writ of certiorari.

If counsel declines to file a petition for writ of certiorari requested by the defendant based on

counsel's determination that there are not reasonable grounds to do so, counsel must so inform

the court and must file a written motion to withdraw. The motion must certify that counsel has

advised the defendant of the procedures for filing pro se a timely petition for writ of certiorari.

A motion to withdraw must be accompanied by counsel's certification that a copy of the motion

was furnished to the defendant and to the United States.

Where counsel is granted leave to withdraw pursuant to the procedures of Anders v. California,

386 U.S. 738 (1967), and Penson v. Ohio, 488 U.S. 75 (1988), counsel's duty of representation is

completed, and the clerk's letter transmitting the decision of the court will notify the defendant of

the procedures for filing pro se a timely petition for panel rehearing, a timely petition for

rehearing en banc, and a timely petion for writ of certiorari.

APP. p. 028

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 21-2096

United States of America

Appellee

SENT TO CLIENT

Oct 04 2022

by: kelly_jensen

v.

Darvill Jimmy Joseph Bragg

Appellant

______________________________________________________________________________

Appeal from U.S. District Court for the Southern District of Iowa - Eastern

(3:19-cr-00112-JAJ-1)

______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

October 04, 2022

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

APPENDIX D

APP. p. 029

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Date Filed: 10/04/2022 Entry ID: 5204435