In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-3785

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EUGENE A. SWEENEY,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 14-CR-20 — Lynn Adelman, Judge.

____________________

ARGUED SEPTEMBER 11, 2015 — DECIDED MAY 9, 2016

____________________

Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Defendant Eugene Sweeney used 

a gun to rob a Milwaukee tavern where he had worked before. 

He was convicted of armed robbery under the Hobbs Act, 18 

U.S.C. § 1951(a), brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c), and possessing a firearm as a felon, 

18 U.S.C. § 922(g)(1). He was sentenced as an armed career 

offender under 18 U.S.C. § 924(e). Sweeney appeals both his 

convictions and his sentence. He asserts that the district court
2 No. 14-3785

erred in denying his motion to suppress the firearm central to 

all three convictions, which was seized in a warrantless search 

of the common space in the basement of his apartment building. He also asserts his sentence is erroneous, both because

the district court did not state or support with findings all 

conditions of supervised release and because he does not 

qualify as an armed career criminal.

We affirm the district court’s denial of the motion to suppress the firearm, so Sweeney’s convictions stand. Following 

recent case law concerning supervised release, however, we 

vacate Sweeney’s sentence and remand for re-sentencing. We 

do not resolve Sweeney’s challenge to the armed career criminal finding, which was first raised on appeal. That question 

should be addressed on remand, where both sides may develop a full record and the district court may consider 

whether the disputed legal issue matters to Sweeney’s ultimate sentence.

I. The Fourth Amendment Issue

Sweeney’s challenge to his convictions requires us to apply the Fourth Amendment to the police search of a common 

area of Sweeney’s apartment building. A police officer 

searched the area without a warrant and found a handgun 

that matched the victim’s description of the robber’s gun. We 

review the facts and then explain why the search did not violate Sweeney’s Fourth Amendment rights.

A. The Robbery, Investigation, and Search

On the morning of December 23, 2013, Melissa Baldus arrived at her job as general manager of Flannery’s Pub in Milwaukee. She had a bank bag containing cash for the register. 

She entered Flannery’s through an alleyway door and walked 
No. 14-3785 3

downstairs to her office. A man then entered through the 

same door, came upon Baldus, drew a gun, and demanded 

the money. Baldus turned over the bank bag. The robber fled, 

and Baldus called the police. She offered a confident identification of the robber as Eugene Sweeney: Sweeney had previously worked a few short stints at Flannery’s, and Baldus said 

she recognized him from his gestures, body movements, 

voice, and sunglasses. She also described the gun as black and 

silver with a red dot on the side. After obtaining Sweeney’s 

address from Flannery’s personnel records, three officers—

Detective Delgado, Officer Gasser, and Officer Wilcox—went 

to Sweeney’s apartment.

Details of the apartment building layout are relevant to the 

Fourth Amendment analysis. The building contains six apartments, two on each of three floors. Sweeney’s apartment was 

on the second floor. The building has exterior doors at the 

front and rear that are usually closed and locked. In the back 

of the building is a common rear staircase that can be entered 

from the back of each apartment. Those stairs lead down to 

the first floor and on down to the basement.

At the bottom of the basement stairs to the left is an opening to a common area. Water heaters are lined up against the 

wall that runs along the staircase. Past those is a small crawl 

space underneath the stairs. To the right of the stairs is a 

shared laundry facility for the building tenants. They make 

frequent use of the laundry and often allow friends and neighbors to use the laundry as well.

When the police arrived looking for Sweeney, Officer Wilcox covered the rear door of the building. Detective Delgado 

and Officer Gasser entered through the front door, which had 

been propped open, and found Sweeney’s apartment. After 
4 No. 14-3785

they knocked, the door was eventually opened by Sweeney’s 

girlfriend. While talking with her, the officers received a radio 

call from Officer Wilcox saying he had caught Sweeney trying 

to leave by the back door and taken him into custody. At that 

point, with consent from Sweeney’s girlfriend, Detective Delgado entered and searched the apartment. Officer Gasser 

went through the apartment, out its rear door, and down the 

common rear staircase. 

Our focus is Officer Gasser’s search of the basement. He 

went down the stairs to the basement and turned left. He 

went past the water heaters to the crawl space under the 

stairs. There he found a black plastic bag containing a handgun, magazine, and ammunition. Ms. Baldus, the manager of 

Flannery’s, later testified at trial that the handgun looked like 

the one used in the robbery. In searches of the apartment, 

Sweeney’s car, and Sweeney himself, none of which are challenged here, the officers also found money and a pair of sunglasses matching the description of the robber’s.

B. The Motion to Suppress

Sweeney moved to suppress the gun discovered in the 

basement. After an evidentiary hearing, a magistrate judge 

recommended suppression of the firearm. In light of the Supreme Court’s recent decisions in United States v. Jones, 132 S. 

Ct. 945 (2012), and Florida v. Jardines, 133 S. Ct. 1409 (2013), the 

judge concluded that Officer Gasser trespassed upon 

Sweeney’s property in retrieving the gun and thus conducted 

an unlawful search.

The government sought review before District Judge 

Adelman, who heard testimony from defense investigator 

William Kohl, defendant Sweeney, Officer Gasser, and the 
No. 14-3785 5

owner of the apartment building. Sweeney testified that his 

lease entitled him to use the basement, though he said he had 

never before used the area to store personal property. When 

the owner was questioned about tenants using the basement 

for storage, however, he flatly replied that “there is no storage 

in the basement. If we find there’s stuff in the basement, ... 

then we ask them to remove it and not to use the basement for 

storage.” The owner also said the basement was common 

space, associated with no apartment in particular. Judge 

Adelman denied the motion to suppress. He found that the 

basement search did not violate Sweeney’s Fourth Amendment rights. At trial, the jury convicted Sweeney on all 

charges.

C. Analysis of the Fourth Amendment Search

The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated ... .” The text of the Fourth Amendment “indicates with 

some precision the places and things encompassed by its protections: persons, houses, papers, and effects.” Florida v. 

Jardines, 569 U.S. —, 133 S. Ct. 1409, 1414 (2013) (citation and 

quotation marks omitted); see also United States v. Jones, 565 

U.S. —, 132 S. Ct. 945, 950 (2012) (Fourth Amendment expresses “a particular concern for government trespass upon 

the areas (‘persons, houses, papers, and effects’) it enumerates”).

Applying the Fourth Amendment to various common 

spaces in apartment buildings has been a source of considerable controversy. In cases decided before Jardines, we held that 

warrantless police intrusions into shared spaces in apartment 

buildings much like the basement here did not violate the 
6 No. 14-3785

Fourth Amendment rights of tenants. United States v. Villegas, 

495 F.3d 761, 767–68 (7th Cir. 2007) (internal duplex hallway); 

United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) 

(shared entrance to apartment building); cf. United States v. 

Boden, 854 F.2d 983, 990 (7th Cir. 1988) (common area of rental 

storage unit facility). More recently, based on the intervening 

Supreme Court decision in Jardines, we have held that bringing a police dog to sniff for drugs outside an apartment door 

amounts to a search of the apartment interior that requires a 

warrant. United States v. Whitaker, — F.3d —, Nos. 14-3290, 14-

3506, 2016 WL 1426484, at *4 (7th Cir. April 12, 2016).

Sweeney does not challenge any factual findings by the 

district court, so we accept them, but we review the district 

court’s legal conclusions de novo. See United States v. Richards, 

741 F.3d 843, 847 (7th Cir. 2014), citing United States v. Huddleston, 593 F.3d 596, 600 (7th Cir. 2010). We focus our attention 

on Jardines, where the majority and concurring opinions reflect two principal approaches to the Fourth Amendment’s 

protection. Each casts light on the warrantless search of the 

apartment building basement here. We address first the approach focused on the common law of property and whether 

the police committed a trespass when conducting the search. 

See Jardines, 133 S. Ct. at 1413–18 (trespass to property); Jones, 

132 S. Ct. at 949–54 (trespass to chattel). We then turn to the 

second approach, focused on whether the person challenging 

the search had a reasonable expectation of privacy in the location that was searched. See Jardines, 133 S. Ct. at 1418–20 

(Kagan, J., concurring); Jones, 132 S. Ct. at 957–64 (Alito, J., 

concurring in the judgment). 
No. 14-3785 7

1. The Fourth Amendment and Trespass 

In recent years, the Supreme Court has revived a “property-based approach” to identify unconstitutional searches. 

Jones, 132 S. Ct. at 950; see also id. at 949 (“The text of the 

Fourth Amendment reflects its close connection to property 

... .”). Under this approach, where the government has “physically occupied private property for the purpose of obtaining 

information,” its intrusion is a search subject to the Fourth 

Amendment. Id. at 949. In Jones, police officers trespassed 

upon an “effect”—a car—by attaching a GPS tracker to its 

chassis. In Jardines, officers trespassed upon a “house”—a 

home’s porch—by conducting a dog-sniff at the front door. 

To establish a Fourth Amendment violation under this approach, there must be some trespass upon one of the protected properties enumerated by the Constitution’s text. This 

in turn requires courts to consider the scope of trespass at 

common law. Jones, 132 S. Ct. at 949 (Fourth Amendment case 

law historically “tied to common-law trespass”). Neither Jones

nor the common law provides sharp boundaries for the meaning of trespass for our purposes. See Orin S. Kerr, The Curious 

History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 

90–91 (2012) (“The term ‘trespass’ could be understood as embracing a wide range of ideas.”); see also Kyllo v. United States, 

533 U.S. 27, 31–32 (collecting cases that analyze meaning of 

trespass in Fourth Amendment context). The Restatement approach to trespass is a good starting point. See Laurent Sacharoff, Constitutional Trespass, 81 Tenn. L. Rev. 877, 891 (2014) 

(endorsing Restatement (Second) of Torts as best authority for 

discerning meaning of trespass for Jones inquiry).
8 No. 14-3785

Under the relevant Restatement definition, trespass means 

that one “enters land in the possession of the other.” Restatement (Second) of Torts § 158 (Am. Law Inst. 1965); see also 

Jones, 132 S. Ct. at 949, quoting Entick v. Carrington, 95 Eng. 

Rep. 807, 817 (C.P. 1765), for the proposition that “no man can 

set his foot upon his neighbour’s close without his leave; if he 

does he is a trespasser, though he does no damage at all ... .” 

Possession means “occupancy of land with intent to control 

it.” Restatement (Second) of Torts § 157. And occupancy 

means to “manifest a claim of exclusive control of the land.” 

Restatement (Second) of Torts § 157 cmt. a. Put together, then, 

to prove a claim of trespass, one must have possession of the 

property in question and the ability to exclude others from 

entrance onto or interference with that property. 

Sweeney cannot show any trespass on his property. He did 

not have any form of exclusive control over the basement. The 

basement was a common space, used by a number of residents. His lease gave him no exclusive property interest in 

any part of the area. It did not even give him the right to store 

items there. 

Nor could Sweeney have excluded someone from the 

basement. Suppose Sweeney had discovered a non-resident 

taking shelter in the basement who refused to leave. He could 

call his landlord for aid, but Sweeney himself could not sue 

the intruder for civil trespass on his property. See State v. 

Dumstrey, 859 N.W.2d 138, 144 (Wis. App. 2014), aff’d, 873 

N.W.2d 502 (Wis. 2016), quoting State v. Nguyen, 841 N.W.2d 

676, 681 (N.D. 2013), for the proposition that tenant has no 

right to exclude “technical trespassers in the common hallways” of apartment building.
No. 14-3785 9

Rather, as Judge Adelman explained, any such trespass 

would be a trespass against the building owner, not against 

any individual tenants. See, e.g., Aberdeen Apartments v. Cary 

Campbell Realty Alliance, Inc., 820 N.E.2d 158, 166 (Ind. App. 

2005) (collecting cases holding that landlord can sue for trespass to common areas of multi-unit dwellings); Commonwealth 

v. Thomas, 267 N.E.2d 489, 491 (Mass. 1971) (collecting cases 

and affirming denial of motion to suppress under very similar 

circumstances); Motchan v. STL Cablevision, Inc., 796 S.W.2d 

896, 900 (Mo. App. 1990) (concluding that “a landlord, who 

retains control of common areas in a multi-tenant building, 

also retains possession of those areas so as to support an action for trespass to the common areas”). Only the building 

owner or landlord could bring suit, so only the owner or landlord could have objected to Officer Gasser’s warrantless 

search of the crawl space under the stairs. 

Accordingly, even if Officer Gasser committed a trespass, 

it was not Sweeney’s right under long-established tort law to 

exclude him. But whether or not there was a trespass, 

Sweeney also faces a separate obstacle: he cannot establish 

that police set foot onto an area for which the Fourth Amendment affords Sweeney protection.

Not all trespasses by law enforcement are violations of the 

Fourth Amendment. See Oliver v. United States, 466 U.S. 170, 

183–84 (1984). For instance, under the “open fields” doctrine 

an officer may search for evidence on private land not within 

close proximity to a home on the property. Jardines, 133 S. Ct. 

at 1414, citing Hester v. United States, 265 U.S. 57 (1924); Andree 

v. Ashland County, 818 F.2d 1306, 1315 (7th Cir. 1987). To violate the Fourth Amendment, the trespass must occur on a 
10 No. 14-3785

“constitutionally protected area”—that is, one explicitly enumerated in the text of the Fourth Amendment. Jardines, 133 S. 

Ct. at 1414, quoting United States v. Knotts, 460 U.S. 276, 286 

(1983) (Brennan, J., concurring). This includes the home, 

which extends to the “curtilage” of the home as well. Id.

The basement was not recognizable as curtilage of 

Sweeney’s apartment. See United States v. Redmon, 138 F.3d 

1109, 1128 (7th Cir. 1998) (en banc) (Evans, J., concurring) (“In 

a multi-unit apartment building there may in fact be no curtilage except perhaps in a separate area—like a basement storage locker—subject to one’s exclusive control.”). Other courts 

have held, often categorically so, that common basements of 

multi-unit buildings or closely related spaces are not part of 

the individual units’ curtilage. United States v. Brooks, 645 F.3d 

971, 975–76 (8th Cir. 2011) (staircase leading to shared basement space in apartment building); United States v. King, 227 

F.3d 732, 753 (6th Cir. 2000) (basement of a two-family dwelling); United States v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 

1976) (common basement garage of condominium building); 

Thomas, 267 N.E.2d at 491 (basement of three-story, six-unit 

apartment building, containing common space with laundry 

facilities); see also Carol A. Chase, Cops, Canines, and Curtilage: 

What Jardines Teaches and What It Leaves Unanswered, 52 Houston L. Rev. 1289, 1303 (2015) (“Generally speaking, appellate 

courts that have considered whether common areas in a 

multi-family dwelling are part of the curtilage of a dwelling 

have been reluctant to recognize curtilage protection for those 

areas.”).

It is not necessary to decide categorically here that the 

basement of a multi-unit residential building is or is not always the curtilage of individual units. It is enough to say that 
No. 14-3785 11

it was not in this case. Curtilage is a common-law concept often defined in abstract terms. See Jardines, 133 S. Ct. at 1414–

15 (curtilage includes all of the “branches and appurtenants” 

of the home), quoting 4 W. Blackstone, Commentaries on the 

Laws of England 223, 225 (1769); id. at 1415 (curtilage is that 

part of the property “intimately linked to the home, both 

physically and psychologically”), quoting California v. Ciraolo, 

476 U.S. 207, 213 (1986); United States v. French, 291 F.3d 945, 

951 (7th Cir. 2002) (curtilage is the “area outside the home itself but so close to and intimately connected with the home 

and the activities that normally go on there that it can reasonably be considered part of the home”), quoting Siebert v. Severino, 256 F.3d 648, 653–54 (7th Cir. 2001). At bottom, the underlying test is practical. If the Fourth Amendment shields the 

“right of a man to retreat into his own home” free from intrusion, then it must also protect against an officer “stand[ing] in 

a home’s porch or side garden” like a bold snooper looking 

for evidence or peering through the windows. Jardines, 133 S. 

Ct. at 1414.

In most cases it is easy to say what the curtilage is. See 

Jardines, 133 S. Ct. at 1415. A porch, a small fenced-in yard, a 

gated walkway along the side of a house—all are obviously 

part of the curtilage. This common-sense understanding saves 

courts, police officers, and citizens from needing to apply nebulous, ad hoc, case-by-case standards with great uncertainty. 

Oliver, 466 U.S. at 181–82; United States v. Redmon, 138 F.3d 

1109, 1138 (7th Cir. 1998) (en banc) (Rovner, J., dissenting).

When we encounter novel questions about the scope of 

curtilage, we take into account the four Dunn factors: “(1) the 

proximity of the area in question to the home; (2) whether the 

area is included in an enclosure surrounding the home; (3) 
12 No. 14-3785

how the owner uses the area; and (4) the measures taken to 

protect the area from observation.” Bleavins v. Bartels, 422 F.3d 

445, 451 (7th Cir. 2005), citing United States v. Dunn, 480 U.S. 

294, 301 (1987). In this case these factors show that the search 

here did not occur in any curtilage of Sweeney’s apartment. 

First, proximity: the basement was remote from the second-floor apartment, and Sweeney did not have a private 

basement storage space that was searched. There was no concern that officers might be able to prevent Sweeney from his 

right to “retreat into his own home” or that they could otherwise “observe his repose from just outside the front window.” 

Jardines, 133 S. Ct. at 1414.

Second, an enclosure surrounding the home: Sweeney argues that the basement was within the “enclosure” of the 

apartment building’s walls, accessible only from within the individual apartments or by a locked rear door. Under Dunn, 

though, the question is not whether the area at issue was 

within the walls of the building, but whether it was enclosed 

and intimate to Sweeney’s apartment itself. It was not.

Third, the nature of the use: Sweeney had no particular 

use of the basement that tied it to his own apartment. It served 

primarily as a shared laundry facility and location for utilities 

for all tenants. Sweeney did not use it for activities “intimately 

linked” to his home. 

Fourth, measures taken to protect the basement from observation by the public: This factor is a little more favorable to 

Sweeney. On one hand, as a basement space within a locked 

apartment building, it was unlikely to be seen by a member of 

the general public. On the other hand, there was no door to 
No. 14-3785 13

the basement itself once one was inside the back of the building, and tenants often allowed outsiders into the basement to 

do laundry. There is no evidence that Sweeney himself took 

affirmative steps to protect the basement area from observation. See State v. Dumstrey, 873 N.W.2d 502, 514 (Wis. 2016) 

(noting, in context of apartment parking garage, the curtilage 

inquiry “is not whether the [area] is generally shielded from 

the public at large,” but rather whether the person “has taken 

steps to shield the [area] from the view of passersby within 

the [area]”). While this last factor gives Sweeney a little 

ground for argument, when all factors are taken together, the 

basement was not within the curtilage of Sweeney’s apartment. The trespass or property-right theory for Fourth 

Amendment protection did not give Sweeney any rights in 

the basement crawl space.

2. The Fourth Amendment and Expectations of Privacy

Neither party contends that Sweeney had a reasonable expectation of privacy in the basement of the apartment building, but we address the issue briefly in light of our recent decision in United States v. Whitaker, — F.3d —, Nos. 14-3290, 14-

3506, 2016 WL 1426484 (7th Cir. April 12, 2016). As the district 

court noted, there is generally no reasonable expectation of 

privacy in shared and common areas in multiple-dwelling 

residential buildings. Harney v. City of Chicago, 702 F.3d 916, 

925 (7th Cir. 2012) (walkway adjacent to condominium building but behind gate), citing, for instance, United States v. Villegas, 495 F.3d 761, 767–68 (7th Cir. 2007) (internal duplex hallway); see also United States v. Dillard, 438 F.3d 675, 683 (6th 

Cir. 2006) (collecting cases from circuit courts establishing 

lack of reasonable expectation of privacy in common areas of 

apartment buildings).
14 No. 14-3785

Here, where the basement space was “shared by all of the 

tenants” of the apartment building, see Harney, 702 F.3d at 

925, there was no individualized storage space and no door or 

locked entry to the basement itself, it was not objectively reasonable that the space would be assumed private. This is true 

even though the exterior door of the building was locked to 

exclude persons who are not tenants of the building; the critical factor is that multiple tenants could enter and use the 

space. Id.

This reasoning does not mean that law enforcement can 

freely use common spaces in apartment buildings to intrude 

into the privacy of apartment interiors. In Whitaker, police officers brought a drug-sniffing dog into an apartment hallway 

and had the dog sniff a particular apartment door. We held 

that the dog-sniff at the entrance was a search of the apartment itself and subject to the Fourth Amendment warrant requirement, just as the use of other sense-enhancing technology would be. Whitaker, — F.3d at —, 2016 WL 1426484, at *3 

(comparing dog-sniff to use of heat-sensing device, binoculars, or stethoscope to look into or listen to interior). Officer 

Gasser’s search of the basement crawl space in this case posed 

no similar danger of intrusion into the protected privacy of an 

apartment interior. Accordingly, the district court correctly 

denied the motion to suppress the firearm.

II. Sentencing Issues

Judge Adelman found that Sweeney was an armed career 

criminal, which required a mandatory minimum sentence of 

twenty-two years (fifteen years on the firearm possession 

charge, and a consecutive seven years for brandishing during 

a crime of violence). The judge sentenced Sweeney to the 

mandatory minimum twenty-two years in prison, followed 
No. 14-3785 15

by three years of supervised release with standard conditions 

and several special conditions. 

A. Supervised Release Issues

In imposing the terms of supervised release, the district 

court followed practices long used by district judges in this 

circuit and around the country. The judge said he was imposing the “standard conditions” of supervised release without 

reciting each of them, without obtaining a waiver of such recitation, and without specifically explaining his reasons for imposing each of them. The judge imposed several special conditions of supervised release, including substance abuse treatment, mental health treatment, and payment of restitution, 

and provided terse but obviously sound reasons for them. 

This was a violent crime committed by a man with a history 

of armed violence, substance abuse, and mental health problems, and who would not be able to pay restitution immediately. The judge did not explain his reasons for prohibiting 

Sweeney from possessing a firearm or dangerous weapon as 

a condition of supervised release, but there was no need to 

belabor the obvious.

In a recent series of decisions, however, this court has been 

subjecting the imposition of supervised release conditions to 

much closer scrutiny than had been common, and we have 

done so even when no objections have been raised in district 

courts. In particular, see United States v. Siegel, 753 F.3d 705 

(7th Cir. 2014); United States v. Thompson, 777 F.3d 368 (7th Cir. 

2015); United States v. Sewell, 780 F.3d 839 (7th Cir. 2015); 

United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); but cf. 

United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008) (finding no plain error where district court imposed special condi-
16 No. 14-3785

tions of supervised release that were overly broad). The district court neither stated all the conditions orally nor obtained 

a waiver for doing so, and did not provide any explanation 

for many of the conditions. In addition, some of the specific 

conditions imposed here have been found too vague or otherwise improper, though our circuit law is evolving with respect to some of those conditions, such as the requirement 

that the defendant answer truthfully all inquiries by the probation officer and permit the probation officer to visit his 

home at any time. See, e.g., United States v. Douglas, 806 F.3d 

979, 985–86 (7th Cir. 2015); United States v. Armour, 804 F.3d 

859 (7th Cir. 2015) (condition that probation officer could visit 

anytime between 6 a.m. and 11 p.m.). Based on the logic of 

our recent cases, we must remand the case. We remand for a 

complete re-sentencing in light of the substantial questions 

raised in this appeal about Sweeney’s status as an armed career criminal, as we explain next.

B. Armed Career Criminal Status

The Armed Career Criminal Act provides that a person

convicted of being a felon in possession of a firearm under 18 

U.S.C. § 922(g) must receive a mandatory minimum sentence 

of fifteen years in prison if he is an armed career criminal. 18 

U.S.C. § 924(e)(1). To qualify as an armed career criminal, the 

defendant must have had at least three prior convictions for 

either certain violent felonies or serious drug offenses. Id.

The district court found that Sweeney qualified for armed 

career criminal status on the basis of four violent felony convictions in his record: (1) a 1994 juvenile armed robbery, (2) a 

1996 robbery, (3) a 1996 witness intimidation conviction, and 

(4) a 2005 burglary. The judge sentenced Sweeney to the fifteen-year mandatory minimum as an armed career criminal, 
No. 14-3785 17

plus the mandatory consecutive seven years for brandishing 

a firearm during a crime of violence. There is no doubt that 

Sweeney’s 1996 robbery conviction and 2005 burglary conviction were violent felonies. The legal question is whether either 

the 1994 juvenile armed robbery or 1996 witness intimidation 

qualifies as a third violent felony. 

Sweeney did not raise objections to his armed career criminal eligibility during sentencing, so we would review the sentence only for plain error. United States v. Thornton, 463 F.3d 

693, 700 (7th Cir. 2006). Sweeney has raised substantial questions about whether courts should use the categorical method 

or some other method to determine whether juvenile offenses 

qualify as violent felonies under 18 U.S.C. § 924(e)(2)(B) (defining “violent felony” as including an “act of juvenile delinquency involving the use or carrying of a firearm, knife, or 

destructive device”). Some circuits have applied the categorical approach to juvenile acts. See, e.g., United States v. Wells, 

473 F.3d 640, 646–50 (6th Cir. 2007); United States v. Richardson, 

313 F.3d 121, 126–28 (3d Cir. 2002).

Both the Wells and Richardson courts explained that there 

are strong arguments both for and against applying the categorical approach to the firearm, knife, and destructive device 

element for juvenile cases. We have not yet decided this legal 

question, and a more complete airing of the facts and law concerning Sweeney’s juvenile robbery conviction may shed 

more light on his case. Cf. United States v. White, 683 F. Supp. 

2d 617, 620–25 (M.D. Tenn. 2010) (where use of firearm in 

predicate juvenile delinquency adjudication was disputed in 

district court, government offered Shepard materials showing 

defendant had been adjudicated guilty of using firearm in violent felony). Similarly, further development of the record on 
18 No. 14-3785

Sweeney’s conviction for intimidation of a witness may clarify 

whether it qualifies as a violent felony. Since the case must go 

back to the district court in any event and the stakes for the 

defendant are so great, we believe the better course is to remand for re-sentencing now rather than leaving the issues for 

a likely future petition under 28 U.S.C. § 2255 challenging the 

performance of defense counsel.

The district court may also wish to consider whether these 

issues ultimately make a difference to the appropriate sentence here. Even if the categorical approach to the armed career criminal issue might bar application of the statutory enhancements, the court could consider both of the disputed 

convictions and the underlying facts in exercising its judgment under 18 U.S.C. § 3553(a) within the unenhanced statutory ranges. E.g., United States v. Sonnenberg, 628 F.3d 361, 367–

68 (7th Cir. 2010) (categorical approach required vacating of 

sentence under Armed Career Criminal Act, but on remand 

district court could consider actual facts under § 3553(a)).

The defendant’s convictions are AFFIRMED, but his sentence is VACATED and the case is REMANDED for re-sentencing consistent with this opinion.