United States of America v. Bryant Love

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 14, 2022
Decided March 17, 2023
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2035
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRYANT LOVE,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:17-cr-00002
Philip P. Simon,
Judge.
O R D E R
Bryant Love pleaded guilty to possession and distribution of cocaine and
unlawful possession of a firearm as a felon. At the sentencing hearing, the government
argued that the district court should apply the 15-year mandatory minimum custodial
sentence under the Armed Career Criminal Act (“ACCA”), because Love had
committed three prior “violent felony” offenses. 18 U.S.C. § 924(e). The district court
disagreed, finding that Love had committed only two such offenses, and imposed a
custodial sentence of 96 months.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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On appeal, we agreed with the government and ordered the district judge to
resentence Love accordingly. United States v. Love, 7 F.4th 674 (7th Cir. 2021), cert. denied,
143 S. Ct. 159 (2022) (“Love I”). On remand, the district court applied ACCA and
resentenced Love to 15 years in prison, precipitating this appeal by Love.
Love now argues that one of his predicate offenses, a 1994 Illinois conviction for
armed robbery, does not qualify as a “violent felony” under ACCA after Borden v.
United States, 141 S. Ct. 1817 (2021). But because Love did not raise this argument in
either the district court or his first appeal (until his petition for rehearing en banc), the
argument is forfeited. And, applying plain-error review, we conclude the district court
did not commit an obvious error by treating Love’s 1994 Illinois offense as an ACCA
predicate offense. We therefore affirm.
I.
In 2019, Love pleaded guilty to three counts of possession and distribution of
cocaine, 21 U.S.C. § 841(a)(1), and one count of unlawful possession of a firearm while a
felon, 18 U.S.C. § 922(g)(1). At Love’s first sentencing hearing, the government argued
that the district court should apply ACCA’s 15-year mandatory minimum sentence,
see id. § 924(e), because Love had three prior convictions for a “violent felony.” They
were: (1) a 1994 Illinois conviction for armed robbery; (2) a 2009 federal conviction for
distribution of crack cocaine; and (3) a 2015 Indiana conviction for battery of a law
enforcement officer resulting in bodily injury.
For his part, Love argued that his 1994 Illinois conviction did not qualify under
ACCA because Illinois had sent him a restoration of rights letter, leading him to believe
that the conviction had no legal effect. He also argued that his 2015 Indiana conviction
was not a “violent felony” for various reasons. The district court rejected Love’s first
argument but agreed with the latter. Accordingly, it concluded that ACCA’s 15-year
mandatory minimum did not apply and imposed a custodial sentence of 96 months.
Both Love and the government appealed. The government reiterated that Love
qualified as a career offender under ACCA. Love repeated the arguments he had made
to the district court. We agreed with the government, concluding that each of Love’s
three prior offenses qualified as an ACCA “violent felony” offense. United States v. Love,
7 F.4th 674 (7th Cir. 2021), cert. denied, 143 S. Ct. 159 (2022) (“Love I”). We therefore
remanded the case for resentencing under ACCA. Id.

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Love then petitioned this court for rehearing en banc, arguing, for the first time,
that his 1994 Illinois armed robbery conviction did not qualify as a “violent felony”
under Borden, 141 S. Ct. 1817. In Borden, which was issued after oral arguments in Love I
but before the appeal was decided, the Supreme Court held that, to be a “violent
felony” under ACCA, the use of physical force against the person of another requires
“purposeful or knowing conduct.” 141 S. Ct. at 1828. Love contended that his 1994
Illinois armed robbery conviction did not meet this definition because the Illinois
statute prohibited both the intentional and reckless use of force. We denied the rehearing
petition. See Love I, 7 F.4th 674, reh’g en banc denied, Oct. 4, 2021.
On remand, Love presented this new argument to the district court, but the court
ruled that it was bound to apply ACCA’s 15-year mandatory minimum due to the
constraints of the remand. The district court also concluded that, in any event, Love’s
1994 Illinois armed robbery conviction was a “violent felony” under circuit law.
Therefore, the district court imposed a custodial sentence of 15 years, and Love filed the
instant appeal.
II.
This court ordinarily reviews a district court’s application of ACCA de novo,
except when the purported error involves a factual finding, which we review for clear
error. United States v. Robinson, 29 F.4th 370, 374 (7th Cir. 2022). Here, however, we must
consider a threshold question: whether Love waived or forfeited his new argument
about his 1994 Illinois conviction by failing to raise in a timely manner. See United States
v. Nebinger, 987 F.3d 734, 742 (7th Cir. 2021).
Waiver requires an intent to abandon an argument, and it precludes appellate
review of the issue waived. By contrast, forfeiture occurs when a party inadvertently
omits an available argument, and we review the merits of the forfeited argument for
plain error. Robinson, 29 F.4th at 377. An error is plain when it is obvious and affects the
forfeiting party’s substantial rights, as well as the fairness and integrity of the judicial
proceedings. Nebinger, 987 F.3d at 738. As in Robinson, we find forfeiture to better suit
Love’s case. 29 F.4th at 377. The problem Love faces is not that he intentionally
abandoned the argument, but that he did not raise it until his petition for rehearing in
Love I.
Love argues that Borden is an intervening change in the law, compelling us to
change our precedent. We disagree. First, prior to the instant appeal, we have had no
occasion to address whether the mens rea of recklessness is sufficient to sustain a

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conviction under the Illinois armed robbery statute and, if so, whether this is sufficient
to render such a conviction a “violent felony” under ACCA. In this regard, Love notes
that we have ruled that the offense of armed robbery in Illinois requires enough force to
qualify as a “violent felony” under ACCA. See Klikno v. United States, 928 F.3d 539, 545
(7th Cir. 2019). This may be true, but Klikno was not a mens rea case; it remains
undisturbed by Borden.
Second, Borden did not make available to Love any new argument that he could
not have raised during his initial sentencing hearing or in his first appeal. The
arguments advanced in Borden had already been raised in at least one other circuit court
prior to his sentencing, see United States v. Borden, 769 F. App’x 266 (6th Cir. 2019), and
nothing in Supreme Court or Seventh Circuit precedent foreclosed Love from doing the
same. Nebinger, 987 F.3d at 742. In any event, Borden involved a straightforward
application of the “by-now-familiar method” of the categorical approach. 141 S. Ct. at
1822. Indeed, Borden acknowledged that, at least since 2013, it has been recognized that
“[a]n offense does not qualify as a ‘violent felony’ unless the least serious conduct it
covers falls within the elements of the clause.” See id. at 1832 (citing Moncrieffe v. Holder,
569 U.S. 184, 190–91 (2013)). Thus, even without the benefit of Borden, Love could have
made this argument to the district court or even to this court on his first appeal.
What is more, Love had the benefit of Borden before the panel’s decision in Love I,
but neglected to raise the matter until after the decision was issued. By waiting, Love
forfeited the argument.
Having forfeited his argument that his 1994 Illinois conviction was not a
predicate offense under ACCA because it criminalizes the reckless use of force, Love
must show that the district court committed plain error during his sentencing to
prevail. We conclude that Love cannot make this showing.
III.
Under ACCA, an offense is a “violent felony” if it “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i). At the time of Love’s Illinois conviction in 1994, the armed
robbery statute criminalized a person who “takes property … 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 (1994), while armed with a dangerous weapon, id. 5/18-2. To decide
whether the Illinois offense satisfies ACCA’s elements clause, we use the familiar
categorical approach and ask whether the crime necessarily involved the defendant’s

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purposeful or knowing use, attempted use, or threatened use of physical force against
the person of another. See Borden, 141 S.Ct. at 1822. If the Illinois armed robbery statute
permitted a defendant to be convicted for recklessly using force against another in the
act of taking property from that person, it would not categorically match ACCA’s
elements clause and could not serve as an ACCA predicate offense.
It is not obvious that, in 1994, the crime of armed robbery in Illinois encompassed
the reckless use of force. On the one hand, when Love was convicted of this crime, the
Illinois statute was silent as to the state of mind needed to convict a person of using
force to commit an armed robbery. In the face of statutory silence, the default rule in
Illinois was that the crime can be completed with purpose, knowledge, or recklessness.
See 720 ILCS 5/4-3 (1993); see also People v. Jones, 595 N.E.2d 1071, 1075 (Ill. 1992)
(“[E]ither intent, knowledge or recklessness is an element of robbery even though the
statutory definition of robbery does not expressly set forth a mental state.”). It seems
arguable, then, that a defendant could have violated the statute by recklessly using
force to complete an armed robbery in Illinois in 1994. If so, the crime would be too
broad to qualify as a “violent felony” under ACCA. See Borden, 141 S. Ct. at 1822.
On the other hand, the Illinois pattern jury instructions at the time of Love’s
conviction suggest that the default rule may have applied only to the “taking” element
of the statute (requiring that a person “takes property”) and not to the “force” element
(“by the use of force or by threatening the imminent use of force”). The instructions
state that the prosecution must prove, first, that the defendant “intentionally,
knowingly, or recklessly” took the property from another, and second, that the
defendant took property “by the use of force or by threatening the imminent use of
force.” Illinois Pattern Jury Instructions—Criminal § 14.02. According to the
government, the inclusion of recklessness in the taking element—but not the force
element—shows that the use of force must be intentional or knowing.
In light of these two competing views, it is not obvious that the crime of armed
robbery in Illinois back in 1994 encompassed the reckless use of force. Therefore, Love
cannot establish that the district court plainly erred in treating Love’s conviction as a
“violent felony” under ACCA even under the test espoused in Borden.
AFFIRMED

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