OPINION AND ORDER
THERESA L. SPRINGMANN, District Judge.
The Defendant, Marvin Bennett, pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The probation officer drafted a Presentence Investigation Report (PSR) in preparation for sentencing. This Opinion and Order resolves the Defendant's objection to the PSR.
BACKGROUND
On November 20, 2013, the Government filed a one-count Indictment [ECF No. 1], charging the Defendant with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The one-count Indictment alleges that the Defendant possessed a firearm on or about October 21, 2013. The Government also charged the Defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which provides, in relevant part: "[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years." The Indictment included the following predicate offenses for an enhanced punishment under § 924(e):
On or about October 7, 2011, the [D]efendant was convicted in the Superior Court of Allen County, Fort Wayne, Indiana, in Cause No. 02D05-1107-FD-931, of Resisting Law Enforcement, a Class D Felony; and
On or about August 11, 2008, the [D]efendant was convicted in the Superior Court of Allen County, Fort Wayne, Indiana, in Cause No. 02D04-0806-FD-483, of Strangulation, a Class D Felony; and
On or about June 5, 1995, the [D]efendant was convicted in the Superior Court of Allen County, Fort Wayne, Indiana, in Cause No. 02D04-9412-CF-959, of Attempt Robbery, a Class C Felony.
(Indictment 1, ECF No. 1.) On November 21, 2014, the Defendant entered a plea agreement as to the one-count Indictment. [ECF No. 34.]
The PSR set the Defendant's offense level at 33 because of an enhancement under the ACCA for having at least three prior convictions for a violent felony or serious drug offense, or both. The Defendant objected to the enhancement. Citing to the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), the Defendant argued that he lacked the requisite number of violent felonies as defined under the ACCA to receive an enhancement. The Government argued that Johnson did not invalidate the Defendant's convictions for ACCA enhancement purposes. Neither party asserted that an evidentiary hearing was required for the Court to rule on the Defendant's Objection.
ANALYSIS
Under the ACCA, a "violent felony" is defined as "any crime punishable by imprisonment for a term exceeding one year . . . that—"
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. . . .
18 U.S.C. § 924(e)(2)(B)(emphasis added). The italicized portion of the statute, known as the residual clause, was held unconstitutional. Johnson, 135 S. Ct. at 2557-58, 2563. Therefore, if a defendant is sentenced under the ACCA, his previous convictions must qualify under the "force clause," § 924(e)(2)(B)(i), or the four enumerated offenses, id. § 924(e)(2)(B)(ii); Johnson, 135 S. Ct. at 2563. As resisting lawful arrest is not enumerated in the ACCA, the Government's only argument is that resisting lawful arrest under section 35-44-3-3 satisfies the force clause. Accordingly, the Court's analysis is limited to § 924(e)(2)(B)(i).
The Supreme Court has outlined two permissible ways for a federal sentencing court to determine if a prior conviction counts as a violent felony under the ACCA: the "categorical approach" and the "modified categorical approach." See Mathis v. United States, 136 S.Ct. 2243, 2251-54 (2016); Descamps v. United States, 133 S.Ct. 2276, 2283-85 (2013).
The categorical approach is the primary method for considering whether a previous conviction qualifies as an ACCA predicate offense. The sentencing court "looks at the elements of the statute of conviction to determine if it has as an element the use, attempted use, or threatened use of physical force against the person of another." United States v. Ker Yang, 799 F.3d 750, 752 (7th Cir. 2015). This inquiry considers whether the statute is "indivisible" such that it sets out the required elements of the offense, not the means by which one may violate the statute. Id. The court may only use two tools for this task—the statute's text and the judgment. Id. If the statute sets out elements, then the sentencing court must decide, based on those alone, if the statute describes a violent felony for purposes of the ACCA. Id. The sentencing court is not permitted to look to outside materials in making this determination. Id.
By contrast, a statute will sometimes be "divisible" and list alternative methods of committing one offense (elements in the alternative). Mathis, 136 S. Ct. at 2256; Ker Yang, 799 F.3d at 753 (emphasis added). Some of the alternative methods may qualify as a violent felony under the ACCA, but some may not. If not all the statute's alternatives would qualify and the judgment merely identifies the statute of conviction, then the sentencing court uses the modified categorical approach. Ker Yang, 799 F.3d at 753. Under the modified categorical approach, the sentencing court is permitted to look to outside documents,1 such as "charging documents, plea agreements, jury instructions, plea and sentencing transcripts, and findings of fact and conclusions of law from a bench trial," id., for the limited purpose of determining which alternative served as the basis of the defendant's conviction.2 In considering this, the court is only deciding whether the actual statute of conviction qualified as a violent felony for ACCA purposes. Id. Once more, the sentencing court is prohibited from looking beyond the crime's elements to determine the facts underlying the defendant's conviction. Id.
In this case, the parties dispute whether Indiana's resisting law enforcement statute is divisible or indivisible and what approach this Court should apply. The Defendant argues that the statute is indivisible and thus the categorical approach applies. The Government argues that the statute is divisible and thus the modified categorical approach applies. The Court agrees with the Government.
Under Indiana law, a person commits resisting law enforcement when she knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties;
(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or
(3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself or herself and ordered the person to stop;
Ind. Code § 35-44-3-3(a).3 Under subsection (b), the crime of resisting law enforcement is elevated to a Class D felony4 if:
(A) the offense is described in subsection (a)(3) and the person uses a vehicle to commit the offense;5 or
(B) while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on or otherwise causes bodily injury to another person, or operates a vehicle in a manner that creates a substantial risk of bodily harm to another person.
Id. § 35-44-3-3(b)(1). Section 35-44-3-3 is a divisible statute. Subsections (a)(1), (a)(2), and (a)(3) set out elements in the alternative that constitute misdemeanor resisting law enforcement. One either "resists, obstructs, or interferes" with law enforcement or a process server, or she "flees" from law enforcement after an officer puts on his sirens or emergency lights. Then, subsection (b) elevates the crime to a "Class D felony" if a further element is present—use of a deadly weapon, bodily injury, or operation of a vehicle that puts others at substantial risk of bodily harm. This is not a list like in Mathis, where the Supreme Court considered a burglary statute that "spell[ed] out various factual ways of committing some component of the offense." 136 S. Ct. at 2249-50 (noting that statute "itemize[d] the various places that [burglary] could occur," which was "any building, structure, [or] land, water, or air vehicle").
By contrast, subsection (b)(1)(B) is not an illustrative list of some ways to commit the offense but, rather, three highly dissimilar elements, one of which must be proven for a felony conviction. State decisions show that the prosecution must select from among these elements and specifically charge that element in the indictment. See, e.g., Duncan v. State, 23 N.E.3d 805, 818 (Ind. Ct. App. 2014) ("[Charging information for resisting law enforcement alleged that [defendant] fled . . . and while doing so, `drew or used a deadly weapon.'"); Deshazier v. State, 877 N.E.2d 200, 210 (Ind. Ct. App. 2007) ("[C]harging information for felony resisting states that [defendant] resisted Officer . . ., and inflicted bodily injury in the course of said resistance."); Davis v. State, 835 N.E.2d 1102, 1109-10 (Ind. Ct. App. 2005). Additionally, state law shows that the jury must be instructed as to the specific element of subsection (b)(1)(B) and must agree that the defendant committed that particular type of felony resisting law enforcement. See, e.g., Duncan, 23 N.E.3d at 818; Deshazier, 877 N.E.2d at 210; Brown v. State, 830 N.E.2d 956, 966 (Ind. Ct. App. 2005) (vacating two of three convictions because the evidence only supported a conviction for one specific type of felony resisting law enforcement).
Because the Court finds that Indiana's resisting law enforcement statute is divisible, the Court employs the modified categorical approach to determine which alternative under section 35-44-3-3(b) was the basis for the Defendant's conviction in this case. The Court is permitted to consider Shepard documents for the limited purpose of determining whether that specific alternative "has as an element the use, attempted use, or threatened use of physical force against the person of another," § 924(e)(2)(B)(i), and thus qualifies as a violent felony. Prohibited from this inquiry is any consideration of the facts leading to the Defendant's actual conviction. Ker Yang, 799 F.3d at 753.6 The Supreme Court instructs that "in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010).
Here, the Information for the offense in question shows that the Defendant was charged with felony resisting law enforcement for "inflict[ing] bodily injury on or otherwise caus[ing] bodily injury to another person." (PSR ¶ 55.)7 This specific element under subsection (b)(1)(B) clearly satisfies the force clause because it involves "the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i); Walker v. State, 998 N.E.2d 724, 726-27 (Ind. 2013) (noting that the statute requires "strong, powerful, violent means to impede an officer" even for just the misdemeanor offense); cf. United States v. Stork, No. 3:15-CV-389, 2015 WL 8056023, at *5 (N.D. Ind. Dec. 4, 2015) (noting that the very act of resisting law enforcement "ordinarily involves conduct that presents a serious potential risk of physical injury to another" sufficient to satisfy the force clause). Accordingly, the Defendant's prior conviction qualifies as a violent felony and an ACCA predicate offense. It was proper for the probation officer to consider it in the PSR.8
CONCLUSION
For the reasons stated above, the Defendant's objection to the PSR is OVERRULED. Sentencing is CONFIRMED for October 18, 2016 at 1:30 PM.
SO ORDERED.
