Ernest D. Shields v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1929
ERNEST D. SHIELDS,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA ,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 10265 — Rubén Castillo, Chief Judge.
____________________
A RGUED FEBRUARY 27, 2018 — D ECIDED MARCH 21, 2018
____________________
Before WOOD, Chief Judge, and BAUER and BARRETT , Circuit
Judges.
P ER C URIAM. In this appeal of a denial of a petition for re-
view under 18 U.S.C. § 2255, Ernest Shields argues that he
should not have been sentenced as an armed career criminal
because two of his Illinois convictions—one for residential
burglary and another for armed robbery—cannot be charac-
terized as violent felonies under the Armed Career Criminal
Act, see 18 U.S.C. § 924(e). Our recent precedent forecloses the

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2 No. 17-1929
argument about his residential burglary conviction, and we
conclude that armed robbery in Illinois is a violent felony be-
cause it requires “force or threatened use of force.” We there-
fore affirm the district court’s judgment.
I.
Ernest Shields parked his car partially in a crosswalk, in
violation of a Chicago municipal ordinance. Two officers ap-
proached Shields, who was sitting in the driver’s seat, and
asked to see his driver’s license. When they told Shields to get
out of the car, he bolted. An officer chased him, tackled him
to the ground, and discovered that he was carrying a gun.
Shields was charged as a felon in possession of a firearm,
see 18 U.S.C. § 922(g)(1). The district court sentenced him to
15 years’ imprisonment as an armed career criminal based on
his prior convictions for aggravated battery, residential bur-
glary, and armed robbery. See 18 U.S.C. § 924(e)(1). (Under
the Armed Career Criminal Act, persons convicted of three or
more violent felonies or serious drug offenses must face
longer sentences. Id.) His conviction and sentence were af-
firmed on appeal. United States v. Shields, 789 F.3d 733 (7th Cir.
2015).
Shields then moved under 18 U.S.C. § 2255 to vacate his
sentence, arguing, based on the Supreme Court’s holding in
Johnson v. United States, 135 S. Ct. 2551 (2015), that two of his
criminal convictions were not violent felonies under the
ACCA. Johnson held that the definition of “violent felony” in
the Act’s “residual” clause was unconstitutionally vague. Af-
ter Johnson, a conviction must meet the following criteria to
qualify as a “violent felony” under the Act:

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No. 17-1929 3
(B) the term “violent felony” means any crime punishable
by imprisonment for a term exceeding one year … that—
(i) has as an element the use, attempted use, or threat-
ened use of physical force against the person of an-
other; or
(ii) is burglary, arson, or extortion, involves use of ex-
plosives[.]
18 U.S.C. § 924(e)(2)(B). Shields argued that the two convic-
tions in question do not fit into the “violent felony” definition
that Johnson left intact.
The district court denied the motion. The judge concluded
that residential burglary was an enumerated offense under
the Act because the crime of burglary in Illinois aligns with
the federal definition of burglary. The judge also determined,
based on our precedent in cases such as United States v. Dick-
erson, 901 F.2d 579, 584 (7th Cir. 1990), that the terms of the
Illinois armed robbery statute—referring to either “use of
force or … threatening the imminent use of force”—fell
within the force requirements of the ACCA.
This case arises from a collateral attack, but the
United States waived all procedural defenses in its brief on
appeal. See Smith v. United States, 877 F.3d 720, 722 (7th Cir.
2017) (noting that such waivers are conclusive because rele-
vant procedural defenses are not jurisdictional), petition for
cert. filed, (U.S. Jan. 23, 2018) (No. 17-7517).
II.
Shields first argues that his conviction for Illinois residen-
tial burglary cannot be a predicate violent felony because it is
not an enumerated offense. He stresses that the enumerated

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clause mentions “burglary,” not “residential burglary.” See
18 U.S.C. § 924(e)(2)(B)(ii). This argument is foreclosed by our
recent decision in Smith, where we held that a conviction un-
der the same Illinois statute is a violent felony under the enu-
merated clause. 877 F.3d at 722–24.
Shields next argues that even if residential burglary is an
enumerated offense, the elements of the Illinois burglary stat-
ute are broader than generic burglary under the “categorical
approach.” Mathis v. United States, 136 S. Ct. 2243, 2248, 2251
(2016); Taylor v. United States, 495 U.S. 575, 598, 602 (1990). Un-
der that approach, Shields says, Illinois residential burglary
does not qualify as a violent felony under the Armed Career
Criminal Act. See Descamps v. United States, 570 U.S. 254, 261
(2013).
In Illinois, “[a] person commits residential burglary who
knowingly and without authority enters the dwelling place of
another with the intent to commit therein a felony or theft.”
720 ILCS 5/19-3(a). (This version of the statute was in effect
from 1982 to 2001 and was applied when Shields was con-
victed in 1994.) Another statute defines “dwelling”:
(a) Except as otherwise provided in subsection (b) of this
Section, “dwelling” means a building or portion
thereof, a tent, a vehicle, or other enclosed space which
is used or intended for use as a human habitation,
home or residence.
(b) For the purposes of Section 19-3 of this Code, “dwell-
ing” means a house, apartment, mobile home, trailer,
or other living quarters in which at the time of the al-
leged offense the owners or occupants actually reside

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No. 17-1929 5
or in their absence intend within a reasonable period
of time to reside.
720 ILCS 5/2-6. (This statutory provision has defined the term
“dwelling” since 1987.)
Shields contends that the Illinois residential burglary stat-
ute sweeps more broadly than the federal definition of bur-
glary because Illinois defines “dwelling” expansively. The
statutory text, Shields argues, contemplates burglaries of
tents, airplanes, and cars, none of which would be included in
the federal definition. The Supreme Court has defined bur-
glary as “an unlawful or unprivileged entry into, or remain-
ing in, a building or structure, with intent to commit a crime.”
Taylor, 495 U.S. at 598 (emphasis added).
Smith forecloses Shields’s reading of the Illinois statute.
877 F.3d at 722–24. There, we rejected a similar challenge, con-
cluding that the crime of Illinois residential burglary covers
only the entry of places encompassed by Taylor. The Illinois
statute does not include boats or tents, and the state courts
have excluded vehicles other than occupied trailers. Id.
III.
Shields next turns to his 2003 conviction for armed rob-
bery under Illinois law and argues that it is not a violent fel-
ony. Shields maintains that the armed robbery statute requires
only minimal force.
To decide if the crime is a violent felony, we ask whether
the Illinois robbery statute “has as an element the use, at-
tempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Applying the
categorical approach, we look to the statutory elements of the

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6 No. 17-1929
offense. Descamps, 570 U.S. at 260. At the time of Shields’s con-
viction, the Illinois statute provided, in relevant part:
(a) A person commits robbery when he or she takes
property, except a motor vehicle covered by Section
18-3 or 18-4, from the person or presence of another
by the use of force or by threatening the imminent use of
force.
720 ILCS 5/18-1(a) (emphasis added). Armed robbery tacks on
the following requirements to the simple robbery statute:
(a) A person commits armed robbery when he or she vi-
olates Section 18-1; and
(1) he or she carries on or about his or her person
or is otherwise armed with a dangerous weapon
other than a firearm; or
(2) he or she carries on or about his or her person
or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense,
personally discharges a firearm; or
(4) he or she, during the commission of the offense,
personally discharges a firearm that proxi-
mately causes great bodily harm, permanent
disability, permanent disfigurement, or death to
another person.
720 ILCS 5/18-2 (emphasis added). Shields maintains that
none of these additional requirements alludes to force. But
this argument overlooks the force requirement in the simple
robbery statute that is incorporated into the armed robbery
statute by cross-reference.

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No. 17-1929 7
Having identified the force requirement in the statute, we
next assess how Illinois courts apply that statute to convict
someone of robbery. Descamps, 570 U.S. at 260–61 (quoting
Taylor v. United States, 495 U.S. 575, 600 (1990)). Twice we have
performed this analysis and concluded that Illinois courts re-
quire sufficient force for robbery convictions to be predicate
violent felonies for purposes of recidivist–enhancement stat-
utes. United States v. Dickerson, 901 F.2d 579 (7th Cir. 1990) (Il-
linois robbery requires sufficient force to be a violent felony);
United States v. Chagoya-Morales, 859 F.3d 411 (7th Cir. 2017)
(Illinois aggravated robbery is crime of violence under Sen-
tencing Guidelines); see also United States v. Miller, 721 F.3d
435, 441 (7th Cir. 2013) (explaining our usual practice is to
evaluate crimes of violence under Guidelines and violent fel-
onies under the ACCA interchangeably).
Shields argues that our cases suggesting that Illinois rob-
bery requires sufficient force to be a predicate violent felony
are inapposite. He contests the application of Chagoya-Morales
because that defendant was convicted of aggravated robbery,
whereas Shields was convicted of armed robbery. But
Shields’s attempt to distinguish Chagoya-Morales is unpersua-
sive. The defendants may have been charged with different
crimes, but Chagoya-Morales hinged on the “plain language”
in the statute that a defendant must “use” or “threaten to use”
force, 859 F.3d at 422. That force element is the same for both
aggravated and armed robbery. Shields has not given us any
reason to reconsider Chagoya-Morales’s rationale. We there-
fore conclude that that the Illinois armed robbery statute,
720 ILCS 5/18-2, qualifies as a violent felony under the Armed
Career Criminal Act.

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For the foregoing reasons, we AFFIRM the district court’s
denial of Shields’s § 2255 petition.

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