In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2278 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

SERGIO GAMEZ, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:19-cr-00114-JD-JEM-1 — Jon E. DeGuilio, Judge. ____________________

ARGUED APRIL 11, 2023 — DECIDED JANUARY 2, 2024 ____________________

Before SCUDDER, ST. EVE, and LEE, Circuit Judges. SCUDDER, Circuit Judge. Sergio Gamez challenges the 15- year mandatory minimum federal sentence he received under the Armed Career Criminal Act, which applies to persons with three or more violent felonies who are convicted of pos- sessing a firearm as a felon. We previously certified this case to the Indiana Supreme Court for guidance on the elements of Indiana arson—one of Gamez’s prior felony convictions. The state’s supreme court declined to address the certified 2 No. 22-2278

question, requiring us to now resolve whether a conviction under Indiana’s 2002 arson statute constitutes a “violent fel- ony” within the meaning of 18 U.S.C. § 924(e). Concluding that the answer is no, we return the case to the district court for resentencing. I

With this being our second time addressing Gamez’s ap- peal, only an abbreviated summary of the facts is necessary. Anyone interested in the full background can find it in our prior opinion. See United States v. Gamez, 77 F.4th 594 (7th Cir. 2023). In June 2021, Sergio Gamez pleaded guilty to unlawfully possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). At the time, Gamez had three prior felony convic- tions under Indiana law: two for robbery and one for aiding and abetting arson. At sentencing, the question was whether Gamez’s three prior felony convictions triggered the sentencing enhance- ment under § 924(e) of the Armed Career Criminal Act, com- monly shorthanded as ACCA. By its terms, § 924(e) requires a 15-year mandatory minimum sentence for defendants con- victed of violating § 922(g)(1) after committing three or more “violent felon[ies] … on occasions different from one an- other.” Id. § 924(e)(1). The government viewed each of Gamez’s prior convictions as a qualifying violent felony. Gamez objected, focusing on his prior conviction for aid- ing and abetting arson and arguing that Indiana’s arson stat- ute criminalized too broad a range of conduct for his offense to qualify as a violent felony within the meaning of § 924(e)’s sentencing enhancement. The district court agreed with the No. 22-2278 3

government and sentenced Gamez to the 15-year mandatory minimum. On appeal, the parties renewed their respective positions on whether Gamez’s Indiana arson conviction qualified as a predicate violent felony under § 924(e). We found the ques- tion difficult and decided to seek guidance from the Indiana Supreme Court. See Gamez, 77 F.4th at 602–03. We therefore certified the following question: Indiana law states that arson occurs when a per- son “knowingly or intentionally damages” cer- tain property “by means of fire, explosive, or destructive device.” Ind. Code § 35-43-1-1(a). Indiana case law, however, has stated that the corpus delicti of arson “consists of the burning of the property in question and a criminal agency as a cause of that burning.” Williams v. State, 837 N.E.2d 615, 618 (Ind. Ct. App. 2005); see also Simmons v. State, 234 Ind. 489, 129 N.E.2d 121, 123 (1955). Under Indiana law, need the state prove that the defendant burned prop- erty in order to obtain a conviction for arson? Or is it sufficient to prove that the defendant more generally caused damage to property “by means of fire, explosive, or destructive device?” Id. In September 2023, the Indiana Supreme Court, as was its right, declined to address the certified question. So the ques- tion now returns to us for resolution. 4 No. 22-2278

II

Answering the question presented requires application of the so-called categorical approach. The approach roots itself in the Supreme Court’s 1990 decision in Taylor v. United States, 495 U.S. 575, and has become very familiar to federal judges. Our prior opinion—and many others—describe the categori- cal approach in much detail. See Gamez, 77 F.4th at 598–99; United States v. Woods, 576 F.3d 400, 403–05 (7th Cir. 2009). The beginning point is the federal sentencing enhance- ment at issue, 18 U.S.C. § 924(e). That provision defines “vio- lent felony” to include felony “burglary, arson, or extortion.” Id. § 924(e)(2)(B)(ii). By listing these offenses without specifi- cally defining them, Congress referred only to their “generic versions—not to all variants of the offenses.” Mathis v. United States, 579 U.S. 500, 503 (2016). Our court and others have de- fined generic arson as “the intentional or malicious burning of any property.” United States v. Misleveck, 735 F.3d 983, 988 (7th Cir. 2013); see also United States v. Knight, 606 F.3d 171, 174 (4th Cir. 2010) (collecting cases). To qualify as a violent felony under § 924(e), Indiana’s ar- son statute must “substantially correspond[ ]” to that generic definition. See Quarles v. United States, 139 S. Ct. 1872, 1876 (2019) (internal quotations omitted) (explaining and applying the categorical approach in this way). This means the ele- ments of Indiana arson—“the things the prosecution must prove to sustain a conviction”—must be “the same as, or nar- rower than, those of the generic offense.” Mathis, 579 U.S. at 504 (internal quotations omitted). So to constitute a violent felony, an Indiana arson conviction must require, at a No. 22-2278 5

minimum, the intentional or malicious burning of any prop- erty. See Misleveck, 735 F.3d at 988. Indiana enacted its modern arson statute in 1976. Act of Feb. 25, 1976, Ind. Pub. L. No. 148-1976 § 3. Before then, Indi- ana law had defined arson as intentionally setting fire to property. See Act of Feb. 16, 1972, Ind. Pub. L. No. 221-1972 § 1 (“Any person who willfully and maliciously sets fire to or burns [specific categories of real property] … shall be guilty of arson.”). The 1976 Act expanded that definition, describing arson as the knowing or intentional damaging of property “by means of fire or explosive.” Ind. Pub. L. No. 148-1976 § 3 (em- phasis added). In the wake of the terrorist attacks of Septem- ber 11, 2001, Indiana further broadened its arson statute. See Act of Mar. 26, 2002, Ind. Pub. L. No. 123-2002 § 36. The 2002 amendment—which was on the books at the time of Gamez’s conviction—made it a crime to “knowingly or intentionally damage[ ]” property “by means of fire, explosive, or destruc- tive device.” Ind. Code § 35-43-1-1(a) (2002). The 2002 amendment defined “destructive device” as “(1) an explosive, incendiary, or overpressure device” config- ured as a bomb, grenade, rocket, missile, mine, Molotov cock- tail, or substantially similar device or “(2) a type of weapon that may be readily converted to expel a projectile by the ac- tion of an explosive or other propellant” that is not a “pistol, rifle, shotgun, or weapon suitable for sporting or personal safety purposes.” Ind. Code § 35-47.5-2-4(a)–(b). The question before us turns on the scope of this definition within Indiana’s amended arson statute. Gamez argues that his arson offense is not a crime of vio- lence because “arson” under the 2002 statute is categorically broader than “arson” as described in § 924(e). That view finds 6 No. 22-2278

support in the statutory text enacted into law by the Indiana General Assembly. Unlike generic arson, Indiana’s 2002 arson statute does not require burning. The statute extends to prop- erty damage caused by “fire, explosive, or destructive device.” Ind. Code § 35-43-1-1(a) (2002) (emphasis added). If “destruc- tive device” were limited to devices that cause fire, it would be duplicative of the terms “fire” and “explosive” that imme- diately precede it. See Est. of Moreland v. Dieter, 576 F.3d 691, 699 (7th Cir. 2009) (applying the well-established canon against surplusage when interpreting an Indiana statute). The statute’s plain language does not permit such a construction. It defines “destructive device” to include “overpressure de- vices” and converted projectile launchers that operate “by the action of an explosive or other propellant.” See Ind. Code § 35-47.5-2-4(a)(1)–(2). As Gamez points out, this would in- clude non-incendiary weapons that operate by compressed air or another non-explosive propellant. Using such a weapon could result in the commission of arson under Indiana law without any property being set aflame or otherwise burning. By not confining itself to fire-related damage, the text of the 2002 statute would seem to exceed the scope of the generic federal definition of arson, suggesting that arson under Indi- ana law may not qualify as a “crime of violence” within the meaning of 18 U.S.C. § 924(e). When discerning the elements of a state’s criminal statute, however, we do not stop at the statutory text. We must also consider how state courts have interpreted and applied the statute. See United States v. Taylor, 142 S. Ct. 2015, 2025 (2022) (emphasizing the importance of “respect due [to] state courts as the final arbiters of state law”); Mathis, 579 U.S. at 507 (ex- amining Iowa courts’ interpretation of the state’s burglary statute). Ultimately, the breadth of a state’s criminal statute No. 22-2278 7

depends not on our own independent reading of its language but rather on “what Indiana courts require to convict a per- son” under it in practice. United States v. Duncan, 833 F.3d 751, 754 (7th Cir. 2016). Having conducted its own review of Indiana case law, the government points to the longstanding common law doctrine of corpus delicti that it claims narrows the scope of state’s arson law. That doctrine places a check on convictions based solely on a defendant’s out-of-court confession. See Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017). Its purpose is to “prevent the admission of a confession to a crime which never occurred” by requiring proof in every case “that the specific crime charged has actually been committed by someone.” Id. (inter- nal quotations omitted). To do so, prosecutors must supple- ment any confession with independent evidence of a crime’s “corpus delicti” (literally “the body of the crime”). Id.; see also 1 Wayne R. LaFave, Substantive Criminal Law § 1.4(b) (3d ed. 2022) (examining the corpus delicti doctrine). The required corpus delicti varies from crime to crime. In all cases, however, Indiana’s application of the doctrine re- quires proof of “(1) the occurrence of [a] specific kind of injury and (2) someone’s criminal act as the cause of the injury.” Sweeney v. State, 704 N.E.2d 86, 111 (Ind. 1998). The corpus de- licti of murder, for instance, can be shown by “[e]vidence of an identifiable body bearing the marks of a non-accidental death.” Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990). The parties dispute the corpus delicti of arson. The govern- ment claims that the doctrine requires evidence of burned property. It relies for support on Williams v. Indiana, 837 N.E.2d 615 (Ind. Ct. App. 2005), which held that evidence of a burned house coupled with expert testimony disclaiming a 8 No. 22-2278

natural or accidental cause satisfied arson’s corpus delicti re- quirement. See id. at 618–19. The Williams court explained that “the corpus delicti of arson consists of the burning of the prop- erty in question and a criminal agency as a cause of that burn- ing.” Id. at 618 (citing Fox v. State, 384 N.E.2d 1159, 1166 n.16 (Ind. Ct. App. 1979)). Seizing on this language, the govern- ment asserts that under the corpus delicti rule, Indiana courts require prosecutors to provide evidence of fire-related prop- erty damage in all arson cases, regardless of how broadly the statute may appear to extend on its face. We cannot agree. Corpus delicti does not add to the ele- ments a prosecutor must prove to secure a conviction under a criminal statute. It simply requires a minimum level of proof that an offense—however defined—actually occurred. Estab- lishing the statutory elements of an offense necessarily satis- fies the corpus delicti rule because the doctrine exists and op- erates in a more limited manner—to ensure that a charged crime happened. See Riley v. State, 349 N.E.2d 704, 706 (Ind. 1976) (“[E]very crime may be said to have a ‘corpus delicti’ which will necessarily be demonstrated in proving the elements of the crime.” (emphasis added)). Indiana case law supports this conclusion. To be sure, multiple cases describe the corpus delicti of arson as intention- ally burning property. See, e.g., Simmons v. State, 129 N.E.2d 121, 123 (Ind. 1955); Williams v. State, 169 N.E. 698, 701 (Ind. Ct. App. 1930); Ellis v. State, 250 N.E.2d 364, 366 (Ind. 1969); Pawloski v. State, 380 N.E.2d 1230, 1235 (Ind. 1978). But each of those cases addressed a pre-modern version of Indiana’s ar- son law that included intentional burning as an express ele- ment. None of the cases addresses, let alone resolves, whether the corpus delicti requirement changed alongside the arson No. 22-2278 9

statute when the General Assembly expanded it in 1976 and 2002. Indeed, our review shows that each case aligns fully with the principle that an offense’s corpus delicti mirrors rather than limits its statutory elements. We have found no decision in which an Indiana court has struck down an arson conviction under the corpus delicti rule based on a lack of burning after the passage of the 1976 stat- ute. To the contrary, Indiana courts have upheld arson con- victions under the modern statute even when no property was burned. See, e.g., Pedigo v. State, 443 N.E.2d 347, 350 (Ind. Ct. App. 1982) (upholding an arson conviction after defend- ants exploded a van and damaged a nearby house with shrap- nel and flying debris, even though no burning occurred); Cronk v. State, 443 N.E.2d 882, 888 (Ind. Ct. App. 1983) (up- holding a conviction for attempted arson after a defendant brought a pipe bomb to a protest, reasoning that “to know- ingly or intentionally damage property”—including through the “fragmentation of [a] bomb”—was sufficient evidence of attempted arson). This suggests that after 1976, arson’s corpus delicti rule no longer required evidence of a fire. We acknowledge that some Indiana courts after 1976 con- tinued to refer to intentional burning when describing arson’s corpus delicti. See Williams, 837 N.E.2d at 618; Fox, 384 N.E.2d at 1166 n.16; Fleener v. State, 412 N.E.2d 778, 781 (Ind. 1980) (offering, as an example of corpus delicti, “the charred remains of a burnt house”). In doing so, however, those courts ap- peared to reference standards tied to pre-1976 versions of the statute. See Fox, 384 N.E.2d at 1166 n.16 (addressing the pre- modern arson statute that required burning); Williams, 837 N.E.2d at 618 (quoting from Fox); Fleener, 412 N.E.2d at 781 (describing the “traditional definition of corpus delicti” while 10 No. 22-2278

quoting case law that addressed Indiana’s pre-modern statute). Even more, none of these cases held that evidence of burned property is necessary to satisfy arson’s corpus delicti re- quirement. At best, they establish that such evidence is suffi- cient to do so. Both Fox and Williams involved defendants who set fire to property, and they held that the evidence of inten- tional burning sufficed to establish the elements of arson and its corpus delicti, respectively. See Fox, 384 N.E.2d at 1166–67; Williams, 837 N.E.2d at 618–19. Likewise, Fleener stated merely that evidence of intentional burning was “sufficient to show corpus delicti” under the traditional definition. 412 N.E.2d at 781. In the final analysis, we read these cases as standing for the proposition that evidence of purposefully caused fire is enough to surpass the corpus delicti bar—but not as establish- ing a rule that, in the absence of such evidence, the bar pre- cludes conviction in an arson case involving explosives or a destructive device. III

All of this leads us to hold that, in our best assessment, Indiana law does not require the burning of property as an element of the offense of arson. Nor does Indiana’s corpus de- licti rule insert such a requirement between the statutory lines. These findings—coupled with the fact that Indiana courts have repeatedly upheld arson convictions not involving fire—establish “a realistic probability, not a theoretical possi- bility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales, 549 U.S. at 193. So we conclude that Indiana arson is categorically No. 22-2278 11

broader than the generic offense of arson recognized as a vio- lent felony in 18 U.S.C. § 924(e)(2)(B)(ii). Because Sergio Gamez’s arson conviction does not qualify as a crime of violence rendering him an armed career criminal under ACCA, we VACATE his sentence and REMAND for resentencing without the 15-year mandatory minimum re- quired by § 924(e).