United States of America v. Sergio Gamez

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2278
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
SERGIO G AMEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:19-cr-00114-JD-JEM-1 — Jon E. DeGuilio, Judge.
____________________
A RGUED A PRIL 11, 2023 — D ECIDED J ANUARY 2, 2024
____________________
Before S CUDDER , ST . EVE , and LEE , Circuit Judges.
SCUDDER , Circuit Judge. Sergio Gamez challenges the 15-
year mandatory minimum federal sentence he received under
the Armed Career Criminal Act, which applies to persons
with three or more violent felonies who are convicted of pos-
sessing a firearm as a felon. We previously certified this case
to the Indiana Supreme Court for guidance on the elements of
Indiana arson—one of Gamez’s prior felony convictions. The
state’s supreme court declined to address the certified

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2 No. 22-2278
question, requiring us to now resolve whether a conviction
under Indiana’s 2002 arson statute constitutes a “violent fel-
ony” within the meaning of 18 U.S.C. § 924(e). Concluding
that the answer is no, we return the case to the district court
for resentencing.
I
With this being our second time addressing Gamez’s ap-
peal, only an abbreviated summary of the facts is necessary.
Anyone interested in the full background can find it in our
prior opinion. See United States v. Gamez, 77 F.4th 594 (7th Cir.
2023).
In June 2021, Sergio Gamez pleaded guilty to unlawfully
possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1). At the time, Gamez had three prior felony convic-
tions under Indiana law: two for robbery and one for aiding
and abetting arson.
At sentencing, the question was whether Gamez’s three
prior felony convictions triggered the sentencing enhance-
ment under § 924(e) of the Armed Career Criminal Act, com-
monly shorthanded as ACCA. By its terms, § 924(e) requires
a 15-year mandatory minimum sentence for defendants con-
victed of violating § 922(g)(1) after committing three or more
“violent felon[ies] … on occasions different from one an-
other.” Id. § 924(e)(1). The government viewed each of
Gamez’s prior convictions as a qualifying violent felony.
Gamez objected, focusing on his prior conviction for aid-
ing and abetting arson and arguing that Indiana’s arson stat-
ute criminalized too broad a range of conduct for his offense
to qualify as a violent felony within the meaning of § 924(e)’s
sentencing enhancement. The district court agreed with the

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No. 22-2278 3
government and sentenced Gamez to the 15-year mandatory
minimum.
On appeal, the parties renewed their respective positions
on whether Gamez’s Indiana arson conviction qualified as a
predicate violent felony under § 924(e). We found the ques-
tion difficult and decided to seek guidance from the Indiana
Supreme Court. See Gamez, 77 F.4th at 602–03. We therefore
certified the following question:
Indiana law states that arson occurs when a per-
son “knowingly or intentionally damages” cer-
tain property “by means of fire, explosive, or
destructive device.” Ind. Code § 35-43-1-1(a).
Indiana case law, however, has stated that the
corpus delicti of arson “consists of the burning
of the property in question and a criminal
agency as a cause of that burning.” Williams v.
State, 837 N.E.2d 615, 618 (Ind. Ct. App. 2005);
see also Simmons v. State, 234 Ind. 489, 129
N.E.2d 121, 123 (1955). Under Indiana law, need
the state prove that the defendant burned prop-
erty in order to obtain a conviction for arson? Or
is it sufficient to prove that the defendant more
generally caused damage to property “by
means of fire, explosive, or destructive device?”
Id.
In September 2023, the Indiana Supreme Court, as was its
right, declined to address the certified question. So the ques-
tion now returns to us for resolution.

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4 No. 22-2278
II
Answering the question presented requires application of
the so-called categorical approach. The approach roots itself
in the Supreme Court’s 1990 decision in Taylor v. United States,
495 U.S. 575, and has become very familiar to federal judges.
Our prior opinion—and many others—describe the categori-
cal approach in much detail. See Gamez, 77 F.4th at 598–99;
United States v. Woods, 576 F.3d 400, 403–05 (7th Cir. 2009).
The beginning point is the federal sentencing enhance-
ment at issue, 18 U.S.C. § 924(e). That provision defines “vio-
lent felony” to include felony “burglary, arson, or extortion.”
Id. § 924(e)(2)(B)(ii). By listing these offenses without specifi-
cally defining them, Congress referred only to their “generic
versions—not to all variants of the offenses.” Mathis v. United
States, 579 U.S. 500, 503 (2016). Our court and others have de-
fined generic arson as “the intentional or malicious burning
of any property.” United States v. Misleveck, 735 F.3d 983, 988
(7th Cir. 2013); see also United States v. Knight, 606 F.3d 171,
174 (4th Cir. 2010) (collecting cases).
To qualify as a violent felony under § 924(e), Indiana’s ar-
son statute must “substantially correspond[ ]” to that generic
definition. See Quarles v. United States, 139 S. Ct. 1872, 1876
(2019) (internal quotations omitted) (explaining and applying
the categorical approach in this way). This means the ele-
ments of Indiana arson—“the things the prosecution must
prove to sustain a conviction”—must be “the same as, or nar-
rower than, those of the generic offense.” Mathis, 579 U.S. at
504 (internal quotations omitted). So to constitute a violent
felony, an Indiana arson conviction must require, at a

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No. 22-2278 5
minimum, the intentional or malicious burning of any prop-
erty. See Misleveck, 735 F.3d at 988.
Indiana enacted its modern arson statute in 1976. Act of
Feb. 25, 1976, Ind. Pub. L. No. 148-1976 § 3. Before then, Indi-
ana law had defined arson as intentionally setting fire to
property. See Act of Feb. 16, 1972, Ind. Pub. L. No. 221-1972
§ 1 (“Any person who willfully and maliciously sets fire to or
burns [specific categories of real property] … shall be guilty
of arson.”). The 1976 Act expanded that definition, describing
arson as the knowing or intentional damaging of property “by
means of fire or explosive.” Ind. Pub. L. No. 148-1976 § 3 (em-
phasis added). In the wake of the terrorist attacks of Septem-
ber 11, 2001, Indiana further broadened its arson statute. See
Act of Mar. 26, 2002, Ind. Pub. L. No. 123-2002 § 36. The 2002
amendment—which was on the books at the time of Gamez’s
conviction—made it a crime to “knowingly or intentionally
damage[ ]” property “by means of fire, explosive, or destruc-
tive device.” Ind. Code § 35-43-1-1(a) (2002).
The 2002 amendment defined “destructive device” as
“(1) an explosive, incendiary, or overpressure device” config-
ured as a bomb, grenade, rocket, missile, mine, Molotov cock-
tail, or substantially similar device or “(2) a type of weapon
that may be readily converted to expel a projectile by the ac-
tion of an explosive or other propellant” that is not a “pistol,
rifle, shotgun, or weapon suitable for sporting or personal
safety purposes.” Ind. Code § 35-47.5-2-4(a)–(b). The question
before us turns on the scope of this definition within Indiana’s
amended arson statute.
Gamez argues that his arson offense is not a crime of vio-
lence because “arson” under the 2002 statute is categorically
broader than “arson” as described in § 924(e). That view finds

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6 No. 22-2278
support in the statutory text enacted into law by the Indiana
General Assembly. Unlike generic arson, Indiana’s 2002 arson
statute does not require burning. The statute extends to prop-
erty damage caused by “fire, explosive, or destructive device.”
Ind. Code § 35-43-1-1(a) (2002) (emphasis added). If “destruc-
tive device” were limited to devices that cause fire, it would
be duplicative of the terms “fire” and “explosive” that imme-
diately precede it. See Est. of Moreland v. Dieter, 576 F.3d 691,
699 (7th Cir. 2009) (applying the well-established canon
against surplusage when interpreting an Indiana statute). The
statute’s plain language does not permit such a construction.
It defines “destructive device” to include “overpressure de-
vices” and converted projectile launchers that operate “by the
action of an explosive or other propellant.” See Ind. Code
§ 35-47.5-2-4(a)(1)–(2). As Gamez points out, this would in-
clude non-incendiary weapons that operate by compressed
air or another non-explosive propellant. Using such a weapon
could result in the commission of arson under Indiana law
without any property being set aflame or otherwise burning.
By not confining itself to fire-related damage, the text of the
2002 statute would seem to exceed the scope of the generic
federal definition of arson, suggesting that arson under Indi-
ana law may not qualify as a “crime of violence” within the
meaning of 18 U.S.C. § 924(e).
When discerning the elements of a state’s criminal statute,
however, we do not stop at the statutory text. We must also
consider how state courts have interpreted and applied the
statute. See United States v. Taylor, 142 S. Ct. 2015, 2025 (2022)
(emphasizing the importance of “respect due [to] state courts
as the final arbiters of state law”); Mathis, 579 U.S. at 507 (ex-
amining Iowa courts’ interpretation of the state’s burglary
statute). Ultimately, the breadth of a state’s criminal statute

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No. 22-2278 7
depends not on our own independent reading of its language
but rather on “what Indiana courts require to convict a per-
son” under it in practice. United States v. Duncan, 833 F.3d 751,
754 (7th Cir. 2016).
Having conducted its own review of Indiana case law, the
government points to the longstanding common law doctrine
of corpus delicti that it claims narrows the scope of state’s arson
law. That doctrine places a check on convictions based solely
on a defendant’s out-of-court confession. See Shinnock v. State,
76 N.E.3d 841, 843 (Ind. 2017). Its purpose is to “prevent the
admission of a confession to a crime which never occurred”
by requiring proof in every case “that the specific crime
charged has actually been committed by someone.” Id. (inter-
nal quotations omitted). To do so, prosecutors must supple-
ment any confession with independent evidence of a crime’s
“corpus delicti” (literally “the body of the crime”). Id.; see also
1 Wayne R. LaFave, Substantive Criminal Law § 1.4(b) (3d ed.
2022) (examining the corpus delicti doctrine).
The required corpus delicti varies from crime to crime. In
all cases, however, Indiana’s application of the doctrine re-
quires proof of “(1) the occurrence of [a] specific kind of injury
and (2) someone’s criminal act as the cause of the injury.”
Sweeney v. State, 704 N.E.2d 86, 111 (Ind. 1998). The corpus de-
licti of murder, for instance, can be shown by “[e]vidence of
an identifiable body bearing the marks of a non-accidental
death.” Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990).
The parties dispute the corpus delicti of arson. The govern-
ment claims that the doctrine requires evidence of burned
property. It relies for support on Williams v. Indiana, 837
N.E.2d 615 (Ind. Ct. App. 2005), which held that evidence of a
burned house coupled with expert testimony disclaiming a

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8 No. 22-2278
natural or accidental cause satisfied arson’s corpus delicti re-
quirement. See id. at 618–19. The Williams court explained that
“the corpus delicti of arson consists of the burning of the prop-
erty in question and a criminal agency as a cause of that burn-
ing.” Id. at 618 (citing Fox v. State, 384 N.E.2d 1159, 1166 n.16
(Ind. Ct. App. 1979)). Seizing on this language, the govern-
ment asserts that under the corpus delicti rule, Indiana courts
require prosecutors to provide evidence of fire-related prop-
erty damage in all arson cases, regardless of how broadly the
statute may appear to extend on its face.
We cannot agree. Corpus delicti does not add to the ele-
ments a prosecutor must prove to secure a conviction under a
criminal statute. It simply requires a minimum level of proof
that an offense—however defined—actually occurred. Estab-
lishing the statutory elements of an offense necessarily satis-
fies the corpus delicti rule because the doctrine exists and op-
erates in a more limited manner—to ensure that a charged
crime happened. See Riley v. State, 349 N.E.2d 704, 706 (Ind.
1976) (“[E]very crime may be said to have a ‘corpus delicti’
which will necessarily be demonstrated in proving the elements
of the crime.” (emphasis added)).
Indiana case law supports this conclusion. To be sure,
multiple cases describe the corpus delicti of arson as intention-
ally burning property. See, e.g., Simmons v. State, 129 N.E.2d
121, 123 (Ind. 1955); Williams v. State, 169 N.E. 698, 701 (Ind.
Ct. App. 1930); Ellis v. State, 250 N.E.2d 364, 366 (Ind. 1969);
Pawloski v. State, 380 N.E.2d 1230, 1235 (Ind. 1978). But each of
those cases addressed a pre-modern version of Indiana’s ar-
son law that included intentional burning as an express ele-
ment. None of the cases addresses, let alone resolves, whether
the corpus delicti requirement changed alongside the arson

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No. 22-2278 9
statute when the General Assembly expanded it in 1976 and
2002. Indeed, our review shows that each case aligns fully
with the principle that an offense’s corpus delicti mirrors rather
than limits its statutory elements.
We have found no decision in which an Indiana court has
struck down an arson conviction under the corpus delicti rule
based on a lack of burning after the passage of the 1976 stat-
ute. To the contrary, Indiana courts have upheld arson con-
victions under the modern statute even when no property
was burned. See, e.g., Pedigo v. State, 443 N.E.2d 347, 350 (Ind.
Ct. App. 1982) (upholding an arson conviction after defend-
ants exploded a van and damaged a nearby house with shrap-
nel and flying debris, even though no burning occurred);
Cronk v. State, 443 N.E.2d 882, 888 (Ind. Ct. App. 1983) (up-
holding a conviction for attempted arson after a defendant
brought a pipe bomb to a protest, reasoning that “to know-
ingly or intentionally damage property”—including through
the “fragmentation of [a] bomb”—was sufficient evidence of
attempted arson). This suggests that after 1976, arson’s corpus
delicti rule no longer required evidence of a fire.
We acknowledge that some Indiana courts after 1976 con-
tinued to refer to intentional burning when describing arson’s
corpus delicti. See Williams, 837 N.E.2d at 618; Fox, 384 N.E.2d
at 1166 n.16; Fleener v. State, 412 N.E.2d 778, 781 (Ind. 1980)
(offering, as an example of corpus delicti, “the charred remains
of a burnt house”). In doing so, however, those courts ap-
peared to reference standards tied to pre-1976 versions of the
statute. See Fox, 384 N.E.2d at 1166 n.16 (addressing the pre-
modern arson statute that required burning); Williams, 837
N.E.2d at 618 (quoting from Fox); Fleener, 412 N.E.2d at 781
(describing the “traditional definition of corpus delicti” while

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10 No. 22-2278
quoting case law that addressed Indiana’s pre-modern
statute).
Even more, none of these cases held that evidence of
burned property is necessary to satisfy arson’s corpus delicti re-
quirement. At best, they establish that such evidence is suffi-
cient to do so. Both Fox and Williams involved defendants who
set fire to property, and they held that the evidence of inten-
tional burning sufficed to establish the elements of arson and
its corpus delicti, respectively. See Fox, 384 N.E.2d at 1166–67;
Williams, 837 N.E.2d at 618–19. Likewise, Fleener stated merely
that evidence of intentional burning was “sufficient to show
corpus delicti” under the traditional definition. 412 N.E.2d at
781. In the final analysis, we read these cases as standing for
the proposition that evidence of purposefully caused fire is
enough to surpass the corpus delicti bar—but not as establish-
ing a rule that, in the absence of such evidence, the bar pre-
cludes conviction in an arson case involving explosives or a
destructive device.
III
All of this leads us to hold that, in our best assessment,
Indiana law does not require the burning of property as an
element of the offense of arson. Nor does Indiana’s corpus de-
licti rule insert such a requirement between the statutory lines.
These findings—coupled with the fact that Indiana courts
have repeatedly upheld arson convictions not involving
fire—establish “a realistic probability, not a theoretical possi-
bility, that the State would apply its statute to conduct that
falls outside the generic definition of a crime.” Gonzales, 549
U.S. at 193. So we conclude that Indiana arson is categorically

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No. 22-2278 11
broader than the generic offense of arson recognized as a vio-
lent felony in 18 U.S.C. § 924(e)(2)(B)(ii).
Because Sergio Gamez’s arson conviction does not qualify
as a crime of violence rendering him an armed career criminal
under ACCA, we VACATE his sentence and REMAND for
resentencing without the 15-year mandatory minimum re-
quired by § 924(e).

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