Judges: Per Curiam
Filed: Oct. 31, 2016
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued October 6, 2016 Decided October 31, 2016 Before DIANE P. WOOD, Chief Judge FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge No. 16-1541 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 15-CR-47 COREY MITCHELL, Lynn Adelman
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued October 6, 2016 Decided October 31, 2016 Before DIANE P. WOOD, Chief Judge FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge No. 16-1541 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 15-CR-47 COREY MITCHELL, Lynn Adelman,..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 6, 2016
Decided October 31, 2016
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 16‐1541
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 15‐CR‐47
COREY MITCHELL, Lynn Adelman,
Defendant‐Appellant. Judge.
O R D E R
Corey Mitchell appeals his convictions for armed bank robbery and using a
firearm during a “crime of violence,” in violation of 18 U.S.C. § 2113(a), (d) and 18
U.S.C. § 924(c)(1)(A)(i). He would like this court to consider his argument that armed
bank robbery is no longer a crime of violence for purposes of § 924(c), in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). We decline
to do so, however, because Mitchell waived his right to contest the § 924(c) conviction.
Given that waiver, our discussion of the facts can be brief. Mitchell entered a
bank in Milwaukee, gave a teller a written demand for cash, and showed her a revolver.
He made off with about $1,400 and was apprehended minutes later. In response to
No. 16‐1541 Page 2
questions from the police, Mitchell admitted he had robbed the bank and possessed the
gun, but he alleged that he left the gun in his car while he was inside the bank.
Mitchell was charged with armed bank robbery, see § 2113(a), (d), and with
brandishing a firearm during a crime of violence, see § 924(c)(1)(A)(ii). Three months
later the Supreme Court held that the Armed Career Criminal Act’s “residual clause,”
found in § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson, 135 S. Ct. at 2563.
Mitchell then moved to dismiss the § 924(c) charge, arguing that (1) the similarly
worded residual clause in § 924(c)(3)(B) also is unconstitutionally vague, and (2) his
predicate offense does not satisfy the “elements clause” of § 924(c)(3)(A) because a
person can commit bank robbery without using or threatening to use violent, physical
force. In denying Mitchell’s motion, the district court acknowledged that a defendant
can violate § 2113(a) by obtaining money from a federally insured bank “by force and
violence, or by intimidation,” but the court rejected Mitchell’s argument that
“intimidation” for purpose of the statute could be proven with non‐physical threats
alone. And since the court concluded that Mitchell’s conviction for bank robbery
satisfied § 924(c)(3)(A), the court declined to address whether § 924(c)(3)(B) is
unconstitutionally vague.
Mitchell then pleaded guilty to armed bank robbery, § 2113(a), (d), and to having
“used”—as opposed to “brandished”—a firearm during a crime of violence.
See § 924(c)(1)(A)(i–ii). His plea agreement states that he “acknowledges and
understands that he surrenders any claims he may have raised in any pretrial motion.”
The district court accepted Mitchell’s guilty plea and sentenced him to a total of 72
months’ imprisonment.
On appeal Mitchell presses his argument that armed bank robbery is not a crime of
violence for purposes of 18 U.S.C. § 924(c). The government counters that Mitchell
waived his objection to the § 924(c) charge by pleading guilty and signing the plea
agreement. Mitchell’s only response to that is an assertion that his argument “is, at its
core, a jurisdictional challenge” and thus cannot be waived. As Mitchell sees it, if armed
bank robbery is not a crime of violence then “the district court wasn’t simply wrong to
adjudicate him guilty of that count—it in fact lacked jurisdiction to hear such a charge.”
Mitchell’s effort to characterize his objection to the § 924(c) conviction as a
jurisdictional challenge goes nowhere. “Jurisdiction” refers to the “the courts’ statutory
or constitutional power to adjudicate the case,” United States v. Cotton, 535 U.S. 625, 629–
31 (2002), as opposed to its authority to issue a particular type of relief, see United States
v. Taylor, 778 F.3d 667, 670 (7th Cir. 2015). The district court’s jurisdiction in this case
rested on 18 U.S.C. § 3231, which authorizes district courts to adjudicate cases involving
No. 16‐1541 Page 3
“all offenses against the laws of the United States.” That describes this case to a “T.”
Mitchell’s argument that the district court erred in applying § 924(c) raises only a
question of statutory interpretation. See Taylor v. Gilkey, 314 F.3d 832, 834 (7th Cir. 2002)
(recognizing that mere legal errors “do not imply lack of jurisdiction”).
We add for the sake of completeness that even without the formal waiver,
Mitchell’s appeal is doomed. “An unconditional plea of guilty operates as a waiver of
all formal defects in the proceedings … that occurred before the plea was entered.”
Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006); see generally United States v. Broce, 488
U.S. 563, 571 (1989) (guilty plea relinquishes right to challenge theory of indictment).
That means that even if Mitchell’s plea agreement did not contain a valid, enforceable
waiver provision, we would still find that he waived his right to challenge the § 924(c)
conviction.
AFFIRMED.