Is Indiana Arson a Violent Felony for the Armed Career Criminal Act?

United States v. Gamez, No. 22-2278, 2023 U.S. App. LEXIS 20713 (7th Cir. Aug. 9, 2023)

Is Indiana Arson a Violent Felony for ACCA?

Sergio Gamez received a 15-year sentence for being a felon in possession of a firearm. This sentence was a result of the district court’s application of the Armed Career Criminal Act’s (ACCA) sentencing enhancement, which was based on Gamez’s three prior Indiana felony convictions. The court found that these convictions qualified him for the enhancement under 18 U.S.C. § 924(e).

On appeal, Gamez contested the classification of one of his Indiana convictions—aiding and abetting arson—as a violent felony. However, the court faced uncertainty regarding the definition of Indiana arson and its elements. While Indiana’s criminal code did not explicitly require a fire or burning as an element of arson, there were indications that Indiana state courts had interpreted the statute to necessitate proof of burning for an arson conviction. This interpretation was crucial, as it determined whether Indiana arson qualified as a violent felony under ACCA.

Given the lack of clarity and potential consequences for Gamez and many other people hit with the ACCA penalty, the court decided to seek clarification from the Indiana Supreme Court. It certified a question to the Indiana Supreme Court regarding whether Indiana arson required a fire or burning as an element of the offense.

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