United States of America v. Justin Ramsey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 12, 2021
Decided March 15, 2021
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-1399
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUSTIN RAMSEY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:19CR00195-001
Tanya Walton Pratt,
Judge.
O R D E R
Justin Ramsey entered an open plea of guilty to possessing a firearm as a
convicted felon, see 18 U.S.C. § 922(g)(1). Based on his three prior Indiana convictions
for robbery, the district court found Ramsey subject to the enhanced penalties of the
Armed Career Criminal Act, 18 U.S.C. § 924(e), and sentenced him to the statutory
minimum of 15 years’ imprisonment. Ramsey filed a notice of appeal, but his appointed
counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). Ramsey did not respond to counsel’s motion. See C IR .
R. 51(b). Because counsel’s brief appears thorough and addresses the issues that we
expect an appeal of this kind to present, we limit our review to the points counsel raises.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-1399 Page 2
Counsel reports that Ramsey does not wish to appeal his conviction,
see United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012), and so appropriately
discusses only potential challenges to Ramsey’s sentence. See also United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002).
Counsel considers whether Ramsey could argue that his three Indiana
convictions for robbery do not qualify as violent felonies under the Armed Career
Criminal Act. Ramsey was convicted under the Indiana robbery statute, Ind. Code
§ 35-42-5-1, in 2002, when he was 16 years old (and sentenced to 4 years in prison); and
then twice more in 2015, for separate robberies committed two days apart (leading to
concurrent sentences of 5 years and 2 years). Counsel considers arguing that the
language of Ind. Code § 35-42-5-1 (defining robbery as “knowingly or intentionally
tak[ing] property from another person or from the presence of another person: (1) by
using or threatening the use of force on any person; or (2) by putting any person in
fear”) is inconsistent with ACCA’s definition of violent felony. 18 U.S.C. § 924(e)(2)(B)
(defining “violent felony” as any crime punishable by more than one year’s
imprisonment that “has as an element the use, attempted use, or threatened use of
physical force.”).
But counsel rightly dismisses that argument as frivolous. We have held that the
“putting in fear” portion of Indiana’s robbery statute constitutes a violent felony under
ACCA. United States v. Duncan, 833 F.3d 751, 756–57 (7th Cir. 2016). As for the “use of
force” portion of the robbery statute, the Supreme Court has held that ACCA includes
as violent felonies “robbery offenses that require the criminal to overcome the victim’s
resistance.” Stokeling v. United States, 139 S. Ct. 544, 550 (2019). Indiana robbery meets
that criterion. Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984). In short, Duncan and
Stokeling together preclude any argument that a conviction under Indiana’s robbery
statute does not qualify as a violent felony.
Counsel next considers—but also rightly rejects as frivolous—arguments that
Ramsey’s first robbery conviction does not count under ACCA because he incurred it at
16. What constitutes a conviction is determined by state law, 18 U.S.C. § 921(a)(20), and
Indiana law subjects a 16-year-old who commits armed robbery to the jurisdiction of the
adult criminal courts. Ind. Code § 31-30-1-4(6). Because Ramsey was convicted as an
adult in adult court (a fact that his counsel conceded at sentencing), he incurred a
“conviction,” not an adjudication of juvenile delinquency, for purposes of the ACCA.
See United States v. Goodpasture, 595 F.3d 670, 672 (7th Cir. 2010).

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No. 20-1399 Page 3
Counsel also appropriately declines to argue, as Ramsey had in the district court,
that his two 2015 convictions should have counted as a single conviction for
enhancement purposes because they were part of the same “crime spree” and he was
convicted of both on the same day. Under ACCA, two prior offenses count separately if
they occurred on two “different occasions,” 18 U.S.C. § 924(e), with “no dividing point
between the offenses that afford[ed] him the chance to desist from further criminal
activity.” United States v. Elliott, 703 F.3d 378, 383 (7th Cir. 2012). But as Ramsey
confirmed during his sentencing hearing, he committed two robberies two days apart,
in two distinct locations, and against two distinct victims.
Counsel also appropriately rejects as frivolous two constitutional arguments that
Ramsey made in the district court to challenge the armed-career-criminal enhancement.
First, Ramsey had argued that the Eighth Amendment forbids enhancing his sentence
for conduct that occurred when he was a minor. But we rejected that argument in
United States v. Salahuddin, 509 F.3d 858, 863 (7th Cir. 2007). Ramsey also had argued
that enhancing his sentence based on the prior convictions violated the Fifth and Sixth
Amendments because those convictions were neither alleged in the indictment nor
proven beyond a reasonable doubt. We agree with counsel that that argument would be
contrary to the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S.
224, 239 (1998).
Next, counsel rightly declines to challenge Ramsey’s sentence on other grounds.
As counsel points out, Ramsey received the statutory minimum sentence (15 years), so
it would be frivolous to argue that his prison term is too long. Nor could he challenge
his within-guidelines three-year term of supervised release, given that the factors under
18 U.S.C. § 3553(a) justifying a court’s choice of prison term also apply to a term of
supervised release. United States v. Bloch, 825 F.3d 862, 870–71 (7th Cir. 2016). The
district court properly considered those factors: in aggravation it considered Ramsey’s
history of escalating criminal behavior, the seriousness of his present crime, and the fact
that he committed it while on parole. And the court discussed the mitigating factors of
Ramsey’s childhood trauma and abuse, ongoing physical and mental health challenges,
and ready acceptance of responsibility. Ramsey could not argue that this justification
was inadequate. See id. at 870. Further, Ramsey waived his right on appeal to challenge
his supervised-release conditions when his attorney affirmatively told the court that he
had reviewed the conditions with Ramsey and had no objections. See United States v.
Flores, 929 F.3d 443, 449 (7th Cir. 2019).

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No. 20-1399 Page 4
Counsel notes that the judgment contains one supervised-release condition—the
prohibition on possessing a controlled substance—that was not orally imposed. (At the
hearing, the court discussed substance use, but not possession.) Ramsey, however,
could not mount an appeal based on that discrepancy: Because that condition is
required by statute, 18 U.S.C. § 3583(d), and Ramsey had notice of it in the presentence
report, the condition remains valid. United States v. Anstice, 930 F.3d 907, 909 (7th Cir.
2019).
Counsel next considers whether Ramsey could challenge the court’s order that he
forfeit the firearm and ammunition seized during his arrest and pay a special
assessment of $100. But as counsel rightly points out, any challenge would be frivolous
because Ramsey did not object to either in the district court, and both were expressly
authorized or required by statute, 18 U.S.C. § 924(d); 28 U.S.C. § 2461(c); 18 U.S.C.
§ 3013(a)(2)(A).
Finally, counsel appropriately concludes that Ramsey could not raise any
nonfrivolous challenge to his $500 fine—an amount far below the calculated guidelines
range of $30,000–$250,000. Because Ramsey did not object to the fine in the district
court, we would review for plain error, see United States v. Riley, 493 F.3d 803, 810
(7th Cir. 2007). And here the court appropriately considered the factors in U.S.S.G.
§ 5E1.2(d) and 18 U.S.C. § 3572(a), particularly the defendant’s ability to pay, as
determined in the presentence report. Even where, as here, the defendant is indigent at
the time of sentencing, the court does not commit plain error by expecting that future
wages will cover a fine. Riley, 493 F.3d at 811.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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