United States of America v. Terrance Brown

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1192
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
T ERRANCE BROWN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:20-cr-00148 — Philip P. Simon, Judge.
____________________
A RGUED A PRIL 25, 2023 — D ECIDED J ULY 21, 2023
____________________
Before R IPPLE , ST . EVE , and P RYOR , Circuit Judges.
R IPPLE , Circuit Judge. Terrance Brown was convicted of
bank robbery in violation of 18 U.S.C. § 2113(a). At sentenc-
ing, the district court determined, over Mr. Brown’s objection,
that he was a career offender under U.S.S.G. §§ 4B1.1 and
4B1.2 and that the Sentencing Guidelines yielded an advisory
range of 210 to 240 months’ imprisonment. The court imposed
a sentence of 180 months’ imprisonment. Mr. Brown appeals
his sentence, arguing that the district court erred in

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2 No. 22-1192
considering him to be a career offender. We affirm the judg-
ment of the district court.
I
This case centers on the Sentencing Guidelines’ definition
of a “crime of violence” for purposes of the career-offender
sentencing enhancement. Under § 4B1.1(a) of the Guidelines,
certain defendants are deemed career offenders if they have
at least two prior felony convictions of a crime of violence.
The so-called “elements clause” of § 4B1.2(a)(1) defines a
crime of violence as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year,
that … has as an element the use, attempted use, or threatened
use of physical force against the person of another.”1
The district court found that Mr. Brown had two prior
convictions of crimes of violence, rendering him a career of-
fender under the Guidelines. Relevant here is his 2010 Illinois
conviction for aggravated vehicular hijacking. At the time of
Mr. Brown’s conviction, a person could be convicted of vehic-
ular hijacking if he “t[ook] a motor vehicle from the person or
the immediate presence of another by the use of force or by
threatening the imminent use of force.” 720 ILCS 5/18-3
(2010).2 The carrying of a dangerous weapon in the
1 In addition to the elements clause, § 4B1.2(a)(2) also contains an “enu-
merated clause,” which provides that “murder, voluntary manslaughter,
kidnapping,” and other enumerated offenses are crimes of violence. Only
the elements clause is at issue in this appeal.
2 Section 18-3 was amended, effective 2013, to include an express mens rea
requirement: “A person commits vehicular hijacking when he or she know-
ingly takes a motor vehicle from the person or the immediate presence of
( … continued)

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No. 22-1192 3
commission of the offense constitutes aggravated vehicular
hijacking. Id. 5/18-4(a)(3)–(4).
Although we previously had held that Illinois vehicular
hijacking constituted a crime of violence for purposes of
§ 4B1.2(a)(1), see United States v. Norris, 835 F. App’x 892, 893–
94 (7th Cir. 2021), Mr. Brown argued to the district court that
that characterization could not survive the Supreme Court’s
decision in Borden v. United States, 141 S. Ct. 1817 (2021). In
Borden, the Court construed the term “violent felony” under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i),
which contains an elements clause identical to § 4B1.2(a)(1).
The Court held that, under the categorical approach, an of-
fense does not involve the “use of physical force against the
person of another” if the offense can be committed with a
mens rea of recklessness. Borden, 141 S. Ct. at 1825 (plurality
opinion); id. at 1834–35 (Thomas, J., concurring in the judg-
ment).
The district court rejected Mr. Brown’s argument. The
court “readily conclude[d]” that Illinois vehicular hijacking is
another by the use of force or by threatening the imminent use of force.”
Criminal Code of 2012, P.A. 97-1108 (H.B. 2582), 2012 Ill. Laws 5685, 5696
(emphasis added). This change was part of comprehensive amendments
aimed at reorganizing and clarifying the Criminal Code, and we are not
aware of any evidence that the legislature intended any substantive
change. See 97 Ill. Gen. Assem., Senate Proceedings, May 22, 2012, at 150–
51 (statement of Senator Dillard) (describing the bill as effecting “a num-
ber of technical changes, including cross-references, reorganizing, defini-
tions and definition Sections, and sentence restructuring”); see also People
v. Bradford, 50 N.E.3d 1112, 1115 (Ill. 2016) (approving consideration of
“the reason for the law, the problems to be remedied, the purposes to be
achieved,” and, in some circumstances, “legislative history, in order to
discern the intent of the legislature”).

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4 No. 22-1192
a crime of violence and explained that, “if Borden somehow
calls into question that finding,” it would be a matter for us to
address on appeal.3 The court stated, however, that if it were
mistaken in its calculation of the advisory sentencing range, it
would have imposed a different sentence.
Mr. Brown appeals his sentence, arguing that the district
court erred in finding that vehicular hijacking was a crime of
violence and that he was, as a result, subject to the career-
offender sentencing enhancement.
II
We review de novo the district court’s determination that
Illinois vehicular hijacking is a crime of violence within the
meaning of § 4B1.2(a)(1). United States v. Maxwell, 823 F.3d
1057, 1060 (7th Cir. 2016). The categorical approach controls
our analysis. Under this approach, we do not look to the spe-
cific facts underlying Mr. Brown’s conviction; rather, we ex-
amine only whether the Illinois criminal statute “has as an el-
ement the ‘use, attempted use, or threatened use of physical
force against the person of another,’” as required by
§ 4B1.2(a)(1). Id. at 1060–61; see also Zaragoza v. Garland,
52 F.4th 1006, 1013 (7th Cir. 2022) (“We compare [the federal]
definition with the [state] offense as defined by statute and as
applied by the [state] courts.”). In other words, vehicular hi-
jacking can serve as a predicate offense of the career-offender
sentencing enhancement only if the statute of conviction “al-
ways requires the government to prove … the use, attempted
use, or threatened use of force.” United States v. Taylor, 142
S. Ct. 2015, 2020 (2022). If the crime may be committed in a
3 Sent. Tr. 17.

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No. 22-1192 5
less culpable manner, there is a categorical mismatch, and the
crime cannot be a predicate offense of the federal sentencing
guideline.
Mr. Brown contends that the district court erred in deter-
mining that he was a career offender under the Sentencing
Guidelines because there is a categorical mismatch between
the elements clause of § 4B1.2(a) and the pre-2013 version of
the Illinois vehicular hijacking statute. As he notes, the Su-
preme Court held in Borden that an offense does not involve
the “use of physical force against the person of another” if the
offense may be committed with a reckless mental state. 141
S. Ct. at 1825 (plurality opinion); id. at 1835 (Thomas, J., con-
curring in the judgment). The Borden plurality explained that
the word “against,” as used in the elements clause, “expresses
a kind of directedness or targeting”; thus, a use of force against
the person of another results from “purposeful and knowing
acts” but not from “reckless conduct.” Id. at 1826; see also id. at
1835 (Thomas, J., concurring in the judgment) (“[A] crime that
can be committed through mere recklessness does not have as
an element the ‘use of physical force’ because that phrase ‘has
a well-understood meaning applying only to intentional acts
designed to cause harm.’”).
In Mr. Brown’s view, Borden’s construction of the elements
clause precludes treating vehicular hijacking as a crime of vi-
olence. At the time of his conviction, he observes, the state
statute did not include an express mens rea requirement. And,
according to a separate, “catchall” provision of the Illinois
Criminal Code, if a statute “does not prescribe a particular
mental state applicable to an element of an offense (other than
an offense which involves absolute liability),” a mental state
of intent, knowledge, or recklessness will apply. 720 ILCS 5/4-

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6 No. 22-1192
3(b). Therefore, Mr. Brown submits, a straightforward read-
ing of §§ 18-3 and 18-4 in conjunction with § 4-3(b) resolves
this case: Vehicular hijacking can be committed with a reck-
less use of force, making it categorically overbroad with re-
spect to § 4B1.2(a)(1).
We cannot accept this argument. The Illinois vehicular hi-
jacking statute, even before it was amended to add an express
mens rea of “knowingly,” included as an implied element the
knowing or purposeful use or threat of force—namely, the
use or threat of force aimed at taking control or possession of
a motor vehicle.
Under the pre-2013 version of § 18-3, “[a] person commits
vehicular hijacking when he or she takes a motor vehicle from
the person or the immediate presence of another by the use of
force or by threatening the imminent use of force.” At the out-
set, we must bear in mind the significance of the object of this
offense: a motor vehicle. Unlike other forms of property
which might, conceivably, be taken recklessly or even acci-
dentally, it is difficult, if not impossible, to conceive of taking
a motor vehicle from another person in any manner other
than knowingly and purposefully. Operating or directing a
motor vehicle involves conscious and deliberate action.
With that in mind, we further note that the language of the
statute—which proscribes taking by the use or threat of
force—strongly suggests that force or intimidation must be
aimed or directed at the taking of the motor vehicle. Cf. People
v. Dennis, 692 N.E.2d 325, 334 (Ill. 1998) (construing the simi-
larly worded robbery statute and concluding that “the gist of
the offense” is “the force or fear of violence directed at the vic-
tim in order to deprive him of his property” (emphasis added));
People v. Lewis, 651 N.E.2d 72, 88 (Ill. 1995) (“[T]he necessary

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No. 22-1192 7
force or threat of force must be used as a means of taking the
property from the victim.” (emphasis added)). Employing
force or intimidation in order to facilitate the taking of a vehi-
cle is not the sort of reckless use of force that Borden found to
be beyond the scope of the elements clause. See 141 S. Ct. at
1825 (plurality opinion) (“[T]he perpetrator [must] direct his
action at, or target, another individual. Reckless conduct is
not aimed in that prescribed manner.”). Rather, inasmuch as
taking and operating a motor vehicle is, by its nature, a con-
scious and deliberate action, using force or issuing threats as
a means of accomplishing that goal is purposeful and know-
ing.4
The statutory history reinforces this conclusion. As the
parties recognize, the language of the vehicular hijacking stat-
ute tracks closely the language of the robbery statute. But
when the Illinois legislature created the offense in 1993, it was
careful to identify it as an offense separate and distinct from
robbery, simultaneously amending the robbery statute to ap-
ply to the taking of “property, except a motor vehicle covered
by Section 18-3 or 18-4.” 720 ILCS 5/18-1; see Vehicular Hijack-
ing Act, P.A. 88-351 (S.B. 902), 1993 Ill. Legis. Serv. (West). The
Supreme Court of Illinois has explained the purpose of this
change: In contrast to the robbery statute, which was consist-
ently interpreted in light of the “common-law understand-
ing” of that offense, “[t]he vehicular hijacking offense is not
derived from the common law but was newly enacted in
4 We have no occasion to consider or comment on the appropriate analysis
after Borden when the prior conviction is for robbery as defined by Illinois
law. See Klikno v. United States, 928 F.3d 539, 547, 549 (7th Cir. 2019); United
States v. Love, No. 22-2035, 2023 WL 2546507, at *2–3 (7th Cir. Mar. 17,
2023).

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8 No. 22-1192
1993.” People v. Reese, 102 N.E.3d 126, 138 (Ill. 2017). With this
“entirely new offense,” the legislature “intended to address
criminal conduct distinct from robbery of a motor vehicle.” Id.
This conduct is in fact different in kind from robbery. Robbery
presents the inherent risk that violence and injury will result
from the forceful affront to personal and bodily integrity. But
vehicular hijacking addresses a new and serious danger:
Forceful conflict for control of a dangerous piece of equip-
ment. Thus, Reese made clear that the taking of a motor vehi-
cle did not simply entail dispossession of the vehicle but
could also, perhaps more importantly, “include circum-
stances when the defendant takes a vehicle by exercising con-
trol,” such as by “directing the driver through the use of force
or the threat of force.” Id.; see also id. at 139 (“The legislature
also intended to criminalize taking control of a vehicle by
force or threat of force, including when the victim remains in-
side the vehicle.”).5
5 The floor debates of the General Assembly show that legislators were
specifically concerned with the confrontational and violent nature of ve-
hicular hijacking. One of the bill’s sponsors, Senator Hawkinson, ex-
plained that the statutory language “from the person or the immediate
presence of another” would limit the statute’s application to such situa-
tions as when the victim “was yanked out of the car or was right at the
car.” 88th Ill. Gen. Assem., Senate Proceedings, May 11, 1993, at 24–25
(statement of Senator Hawkinson). By contrast, if the victim had “left the
car at the pump” and was inside “the gas station or the 7-11,” a person
who took the vehicle would commit “[t]heft of a motor vehicle,” not hi-
jacking. Id. at 25.
The legislature’s decision to enact a vehicular hijacking statute in 1993
appears to reflect a national panic about carjackings in the wake of several
high-profile crimes in the early 1990s. See Mary Ellen Beekman, Auto Theft:
Countering Violent Trends, 62 FBI L. Enforcement Bull. 17, 17 (Oct. 1993)
( … continued)

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No. 22-1192 9
The legislature’s decision to create a unique offense for ve-
hicular hijacking reveals a specific legislative purpose: to
criminalize the deliberate act of taking a motor vehicle from
another person, using force or intimidation to accomplish that
goal. As Reese recognizes, the legislature intended to treat that
conduct as a unique, and uniquely serious, criminal offense.
Implicit in the conduct proscribed by the statute is a mental
state of at least knowing or purposeful action.
Nonetheless, Mr. Brown invokes the catchall provision of
the Illinois Criminal Code, § 4-3(b), as something of a trump
card. Despite the implications of the statutory language, the
nature of the act criminalized, and the logic of the legislature’s
intentions, he insists that § 4-3(b) mechanically modifies each
provision of the Criminal Code to insert “recklessly, know-
ingly, or intentionally” wherever a mental state has not been
(“Armed vehicle theft, led by its most infamous and widespread variety—
carjacking—represents a violent escalation in an already-booming area of
criminal activity. … [T]he random nature, acute sense of violation, and
threat of violence inherent in carjacking provoke intense community fear
of this crime.”). Senator Hawkinson stated when introducing the bill:
“We’re all too familiar with the tragedies around the country of … car hi-
jacking where someone armed or unarmed attacks a car, and … snatches
the driver out.” 88th Ill. Gen. Assem., Senate Proceedings, Apr. 15, 1993,
at 281 (statement of Senator Hawkinson). He recalled a recent story where
the victim was “dragged, because they’re caught in the rush, and …
caught by a seat belt or something and dragged and seriously injured or
killed; sometimes these carjackings occur where a young child is a passen-
ger in the car and is taken for a ride after a mother or father is … yanked
from the car.” Id. Senator Hawkinson was apparently referencing a partic-
ularly brutal Maryland case in which the victim, a thirty-four-year-old
mother, was killed after getting tangled in the car seatbelt and dragged
outside the car for over a mile. See Don Terry, Carjacking: New Name for Old
Crime, N.Y. Times, Dec. 9, 1992, at A18.

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10 No. 22-1192
expressly prescribed (and where it is concluded that the leg-
islature did not intend to impose absolute liability).
As far as we can tell, the Illinois courts do not understand
§ 4-3(b) to operate in the manner Mr. Brown supposes. There
is some support in the Illinois case law for his view that all
three mental states covered by § 4-3(b) are implied in the ab-
sence of an express requirement. See, e.g., People v. Anderson,
591 N.E.2d 461, 465 (Ill. 1992) (holding that an offense could
be committed with a mental state of recklessness, knowledge,
or intent because the statute was silent as to mens rea but was
not meant to create an absolute liability offense); People v. Bur-
meister, 497 N.E.2d 1212, 1215–16 (Ill. App. Ct. 1986) (same);
People v. Childs, 948 N.E.2d 105, 112 (Ill. App. Ct. 2011) (simi-
lar). In other cases, however, the Supreme Court of Illinois has
suggested that, “[w]here a statute neither prescribes a partic-
ular mental state nor creates an absolute liability offense,” it
is left to the court to “determin[e] which mental state element
is implied” by the statutory language and the legislative in-
tent. People v. Sevilla, 547 N.E.2d 117, 121–22 (Ill. 1989) (em-
phasis added) (inferring a mental state of knowledge in a stat-
ute with no express mens rea); see also People v. Witherspoon,
129 N.E.3d 1208, 1214–15 (Ill. 2019) (same); People v. Gean,
573 N.E.2d 818, 821–22 (Ill. 1991) (same); People v. Whitlow,
433 N.E.2d 629, 633–35 (Ill. 1982) (“[I]t is necessary to deter-
mine which of [§ 4-3(b)’s] mental states should apply to [the
offense].” (emphasis added)). Thus, we are unable to read § 4-
3(b) to mean that the mere absence of an express mens rea ele-
ment inevitably leads to the conclusion that an offense may
be committed recklessly. It is more likely that § 4-3(b) simply
serves as a constitutional savings clause, narrowing the menu
of potential implied mental states to ensure that a provision
that is silent as to mens rea will not be read to criminalize

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No. 22-1192 11
behavior involving the less culpable mental states of negli-
gence, § 4-7, or ignorance or mistake, § 4-8. Cf. In re K.C., 714
N.E.2d 491, 496 (Ill. 1999) (a statute is unconstitutional “if it
potentially subjects wholly innocent conduct to criminal pen-
alty without requiring a culpable mental state”); Elonis v.
United States, 575 U.S. 723, 734 (2015) (“[T]he general rule is
that a guilty mind is a necessary element in the indictment
and proof of every crime.” (internal quotation marks omit-
ted)).
In sum, the premise of Mr. Brown’s § 4-3(b) argument is
faulty; the catchall provision does not require that the mental
state of recklessness be implied into the vehicular hijacking
statute as a means of committing the offense. His appeal to
§ 4-3(b) therefore does not overcome our conclusion that Illi-
nois vehicular hijacking is a knowing or purposeful offense.
Conclusion
We conclude that a pre-2013 conviction of Illinois vehicu-
lar hijacking is a crime of violence under the elements clause
of U.S.S.G. § 4B1.2(a). Accordingly, we affirm the judgment of
the district court.
AFFIRMED

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