UNITED STATES of AMERICA v. Jeremy Handshoe

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 17, 2018*
Decided October 18, 2018
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 18‐1646
UNITED STATES of AMERICA,
Plaintiff‐Appellant,
v.
JEREMY HANDSHOE,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Indiana,
Fort Wayne Division.
No. 1:15‐CR‐35‐001
Theresa L. Springmann,
Chief Judge.
O R D E R
Jeremy Handshoe, a tattoo parlor owner, twice sold firearms in 2015 to
undercover police officers from the back room of his shop; he later pleaded guilty to
two counts of possessing a firearm after a felony conviction, see 18 U.S.C. § 922(g)(1).
The district judge sentenced Handshoe to the minimum 15‐year term on each count,
running concurrently, because she found that Handshoe’s previous burglary
* We have agreed to decide the case without oral argument because the issues
have been authoritatively decided. FED. R. APP. P. 34(a)(2)(B).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 18‐1646 Page 2
convictions under IND. C ODE § 35‐43‐2‐1 (1994, 2006) qualified as “violent felonies”
under the Armed Career Criminal Act, 18 U.S.C. § 924(e).1 Handshoe appeals, arguing
that his burglary convictions are not violent felonies under the Act, so he should not be
subject to the 15‐year sentence that the Act requires. We affirm.
To determine whether a prior conviction counts as a violent felony under the
Armed Career Criminal Act, sentencing courts apply a “categorical” approach that
focuses exclusively on the elements of the crime of conviction and not on the facts
underlying the conviction. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If the
elements of the crime of conviction are broader than the elements of the generic version
of the offense—that is, if it criminalizes more behavior—then the crime of conviction is
not a violent felony. Id. at 2251.
Indiana burglary practically mirrors the generic definition. Indiana’s statute
reads: “A person who breaks and enters the building or structure of another person,
with intent to commit a felony in it, commits burglary … .” IND. C ODE § 35‐43‐2‐1 (1994,
2006). “Generic burglary” has been defined by the Supreme Court as “unlawful or
unprivileged entry into … a building or other structure with intent to commit a crime.”
Taylor v. United States, 495 U.S. 575, 598 (1990).
Handshoe argues that Indiana has interpreted its statutory reference to “building
or structure” to include locations like boats, cars, and tents that are excluded from the
generic definition in Mathis, 136 S. Ct. at 2250. In support, he points to the Indiana
Supreme Court’s decision in State v. Hancock, 65 N.E. 3d 585, 593 (Ind. 2016) that
Indiana’s burglary statute is “substantially similar” to Ohio’s, which explicitly includes
vehicles and temporary shelters. OHIO R EV. C ODE A NN. §§ 2909.01(C), 2911.12(A)(2)
(2018).
We have already concluded, however, that Indiana burglary does not “sweep[]
more broadly” than generic burglary. United States v. Perry, 862 F.3d 620, 622–23
(7th Cir. 2017) (quoting Descamps v. United States, 570 U.S. 254, 261 (2013)); see also United
States v. Foster, 877 F.3d 343, 345 (7th Cir. 2017) (affirming Perry’s rationale). In Perry, we
pointed out that no Indiana burglary conviction has arisen from the breaking and
entering of locations not included in the generic definition. 862 F.3d at 624.
1 Handshoe was convicted for breaking and entering two retail stores (1997), a
muffler‐repair shop and a residence (1998), and two restaurants (2006), each time with
the intent to steal.

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No. 18‐1646 Page 3
Handshoe also cites five dated Indiana appellate cases that he believes show that
the state’s burglary statute is broader than generic burglary. But these cases construed
versions of Indiana’s burglary statute that were repealed when Indiana modernized its
criminal code in 1976, long before Handshoe’s first burglary conviction. See I ND . C ODE
A NN. § 35‐13‐4‐1. Notably, previous versions were broader than generic burglary
because they explicitly criminalized the breaking and entering of boats, vehicles, or
aircrafts in addition to “any building or structure.” E.g., Giles v. State, 320 N.E.2d 806,
807 (Ind. App. 1979) (quoting I ND. C ODE § 35‐13‐4‐4). But the legislature dropped
references to vehicles in the 1976 revision, in favor of the narrower “building or
structure” language. I ND. C ODE § 35‐43‐2‐1 (2018).
Finally, Handshoe contends that the Indiana Supreme Court’s decision to extend
Fourth Amendment protections to tents in Haley v. State, 696 N.E.2d 98, 102 (Ind. Ct.
App. 1998) supports the inference that Indiana burglary is broader than generic
burglary. This ruling, however, does not bear on the scope of Indiana’s burglary statute.
AFFIRMED

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