U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

Indiana Burglary Includes Fenced Area, 7th Cir. Rules

Can justice be blind when there is an elephant in the room?

It hardly seems possible in a case from Indiana, where an appeals court affirmed a burglary conviction as a "violent felony." An Indiana burglary includes "outdoor, fenced in areas," the court said in United States of America v. Perry, resulting in a sentence enhancement.

Jason Perry complained because, coupled with firearms violations, he got 360 months for his crimes. The elephant in the room, however, was the man had just murdered his ex-girlfriend.

State Court

Perry, a thrice-convicted felon, bought a shotgun and shells in violation of 18 U.S.C. § 922 for being a felon in possession. After arguing with Jessica Tice about custody of their son, Perry shot her to death in a parking lot in front of the 13 year old.

He was convicted of murder in state court and sentenced to 85 years in prison, with fifteen years suspended to probation. In federal court, he pleaded guilty to illegal possession of the firearm and ammunition.

At sentencing, a trial judge imposed the enhanced sentence based on the priors. Perry appealed, arguing that Indiana's definition of a general burglary was too broad.

Federal Court

In a Florida case, Perry said, the Supreme Court ruled that burglary could only occur inside "a building or enclosed space." But Judge Gary Feinerman, writing for the U.S. Seventh Circuit Court of Appeals, said Indiana's burglary statute included a wholly enclosed area.

"Perry brings no Indiana case to our attention, and we are aware of none, where, as in Florida, a defendant was convicted of burglary for entering a fenced area that was not completely enclosed," Feinerman said.

The court affirmed, concluding that Indiana's law was consistent with the definition of burglary under the Armed Career Criminal Act , 18 U.S.C. § 924(e).

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