United States of America v. Derrick W. Vogt

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 6, 2015
Decided January 7, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐1890
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DERRICK W. VOGT,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Indiana.
No. 3:12CR00012‐001
Richard L. Young,
Chief Judge.
O R D E R
While Derrick Vogt was on parole in Indiana for sexual battery, he was arrested
for violating a condition of his parole that required him to participate in sex‐offender
treatment. During a search of his home, authorities discovered a pistol and ammunition
in his bedroom. Vogt pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g).
As provided in his plea agreement, Vogt waived his appeal rights with the single
exception that he may challenge the district court’s application of the Armed Career
Criminal Act, see id. § 924(e), which led to Vogt’s incarceration for the statutory
minimum of 15 years. Vogt had committed three burglaries on January 24, 1997, when
he broke into and stole money from an office building, a tavern, and a school within a
few blocks of each other in Cannelton, Indiana. Vogt did not contest the fact of those
convictions; instead, he argued that the burglaries should count as one—not
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 14‐1890 Page 2
three—predicate offense under the ACCA because, he insisted, the offenses were
committed close in time and were handled together in state court. The district court
rejected this argument on the ground that there is no “crime spree exception” to the Act.
Vogt filed a notice of appeal, but his appointed lawyer asserts that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Vogt has
not accepted our invitation to respond to counsel’s motion. See C IR . R. 51(b). Counsel has
submitted a brief that explains the nature of the case and addresses points that an appeal
of this kind might be expected to involve. Because the analysis in the brief appears to be
thorough, we focus on the ACCA issue that the lawyer discusses. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
As a preliminary matter, though, we note that counsel does not say whether he
discussed with Vogt the possibility of challenging his guilty plea (and with it the appeal
waiver that constrains our review). See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). But this omission does
not require us to deny the Anders motion because the district court substantially
complied with Rule 11 of the Federal Rules of Criminal Procedure, making an appeal on
that ground frivolous. See United States v. Davenport, 719 F.3d 616, 617–18 (7th Cir. 2013);
Konczak, 683 F.3d at 349. Indeed, the district court explained the elements of the charge,
the statutory minimum and maximum penalties, the role of the sentencing guidelines
and the judge’s discretion in applying them, the trial rights Vogt was waiving by
entering his guilty plea, and the nature of the appeal waiver to which he agreed. See FED .
R. C RIM. P. 11(b)(1). The court also ensured that Vogt’s guilty plea was made voluntarily
and supported by an adequate factual basis. See FED. R. C RIM. P. 11(b)(2), (3).
With Vogt’s guilty plea and appellate waiver thus intact, see United States v.
Gonzalez, 765 F.3d 732, 741 (7th Cir. 2014); United States v. Zitt, 714 F.3d 511, 515 (7th Cir.
2013), he may challenge only the district court’s application of the ACCA. But we agree
with counsel that it would be frivolous to contest that ruling. Burglary qualifies as a
predicate offense under § 924(e) when the state statute punishes “generic burglary,”
defined by the Supreme Court as “unlawful or unprivileged entry into, or remaining in,
a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S.
575, 599 (1990). Indiana’s statute—defining burglary as a “person who breaks and enters
the building or structure of another person, with intent to commit a felony or theft in it,”
IND. C ODE § 35‐43‐2‐1—fits that definition. And despite the close temporal proximity in
which the burglaries took place, each crime counts as a distinct predicate offense
because, after Vogt left each building, he “had the opportunity to stop and proceed no

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No. 14‐1890 Page 3
further.” See United States v. Elliott, 703 F.3d 378, 383 (7th Cir. 2012); see also United States
v. Hudspeth, 42 F.3d 1015, 1020–22 (7th Cir. 1994) (en banc), abrogated in part on another
ground by Shepard v. United States, 544 U.S. 13 (2005); United States v. Jenkins, 770 F.3d 507,
509–10 (6th Cir. 2014); United States v. Carr, 592 F.3d 636, 643–45 (4th Cir. 2010).
Accordingly, we GRANT counsel’s motion to withdraw, and DISMISS the appeal.

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