In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1622 

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

ARTHUR LEE ROBINSON, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:17-cr-30041-SMY-1 — Staci M. Yandle, Judge. 

____________________ 

ARGUED DECEMBER 6, 2021 — DECIDED MARCH 24, 2022 

____________________ 

Before RIPPLE, WOOD, and KIRSCH, Circuit Judges. 

WOOD, Circuit Judge. Arthur Robinson pleaded guilty, 

without the benefit of a plea agreement, to one count of being 

a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1).

Based largely on his willingness to admit his guilt, the court 

at first granted Robinson an acceptance-of-responsibility reduction to his offense level for sentencing purposes. See 

U.S.S.G. § 3E1.1(a). But after Robinson argued at his sentencing hearing that he should not be classified as an armed career 
2 No. 21-1622 

criminal pursuant to 18 U.S.C. § 924(e), the district court revoked the acceptance reduction. It then found that Robinson 

was an armed career criminal and so was subject to a mandatory minimum sentence of 180 months. The court sentenced 

Robinson just above that line, to 188 months. 

Robinson appealed the loss of the acceptance-ofresponsibility reduction (but not the application of the 

mandatory minimum sentence). We agreed with him, vacated 

his sentence, and remanded for resentencing with the offenselevel reduction restored. United States v. Robinson, 942 F.3d 767 

(7th Cir. 2019) (Robinson I). On remand, the district court 

sentenced Robinson to the 180-month statutory minimum. 

Robinson again appealed. While that second appeal was 

pending, the Supreme Court decided Borden v. United States, 

141 S. Ct. 1817 (2021). Robinson now argues that after Borden

he no longer qualifies for the armed-career-criminal

mandatory minimum, and so his sentence should again be 

vacated. This time, we find no merit in his position, and so we 

affirm.

I

Because the substance of Robinson’s appeal largely turns

on his lengthy criminal history, we begin there. We draw the 

relevant facts from the Presentence Investigation Report 

(PSR). Robinson’s criminal career began in 1991, when, at the 

age of 20, he pleaded guilty to unlawful delivery of a controlled substance. A year later, in March 1992, he pleaded 

guilty to aggravated discharge of a firearm and to possession 

of a weapon by a felon. In January 1993, he was convicted of 

various cocaine-distribution offenses and of another charge 

for unlawful possession of a firearm. His March 1992 and January 1993 convictions landed him in prison from 1993 to June 
No. 21-1622 3

2000. In 2002, Robinson pleaded guilty to two more cocainedistribution charges; that conduct led to both additional convictions and the revocation of his supervised release from the

January 1993 sentence. He remained in prison until December 

2013, when he was again granted supervised release. That period of supervision ended in February 2016. 

The conduct underlying Robinson’s March 1992 guilty 

plea to aggravated discharge of a firearm is relevant to the 

current appeal. That conviction came about, as the PSR put it,

after Robinson “shot a handgun at least twice, at a van operated by undercover police officers, who were attempting to 

purchase drugs from [him].” At the time, the relevant Illinois 

criminal statute provided that “[a] person commits aggravated discharge of a firearm when he knowingly ... [d]ischarges a firearm in the direction of another person or in the 

direction of a vehicle he knows to be occupied.” Ill. Rev. Stat. 

1991, ch. 38, par. 24-1.2(a)(2).1

Fast forward to September 2016. Early one morning, a police officer noticed an improperly parked vehicle on the street. 

The officer approached and observed Robinson asleep inside 

with a Glock 9mm handgun in his lap. The Glock had an extended 31-round magazine and (the officer later learned) had 

been reported stolen in 2002. Upon being awakened, Robinson volunteered that he was a convicted felon who had served 

15 years in prison. Naturally he was arrested at that point. The 

next day, during an investigatory interview, Robinson 

1 Illinois switched to a new statutory compilation scheme effective 

January 1, 1993. Criminal statutes moved from chapter 38 to chapter 720, 

and the section numbering system also changed significantly. This opinion cites the older statutory compilation when discussing the state of the 

law prior to 1993.
4 No. 21-1622 

explained that a man whom he claimed to know only as 

“Cory” had left the gun in the car after Robinson gave him a 

lift from a club. Robinson said that he had intended to discard 

the gun but had been intoxicated and had fallen asleep before 

he remembered to do so. 

As we noted at the outset, Robinson pleaded guilty without a plea agreement to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He raised 

two arguments at sentencing. The first concerned his eligibility for an offense-level discount for acceptance of responsibility. That issue was ultimately resolved in his favor in Robinson 

I. The second argument related to his status as an armed career criminal for purposes of 18 U.S.C. § 924(e)(1). A person is 

subject to that statute if he “has three previous convictions ... 

for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Id. The Armed 

Career Criminal Act (the Act) defines a “violent felony” as one 

having “as an element the use, attempted use, or threatened 

use of physical force against the person of another.” Id.

§ 924(e)(2)(B). Section 924(e)(1) provides that armed career 

criminals convicted of violating section 922(g) “shall be ... imprisoned not less than fifteen years[.]”

In Robinson I, we commented that Robinson did not 

contest the court’s finding that he was an armed career 

criminal at that time. 942 F.3d at 772. But at the original 

sentencing proceeding, he did generally object to the PSR’s 

classification of his 1992 aggravated-discharge conviction as a 

predicate violent felony. (All agree that Robinson has two 

other qualifying predicate convictions; the classification of the 

aggravated-discharge conviction thus is determinative of his 

status.) The district court overruled the objection but there is 
No. 21-1622 5

some ambiguity as to why. On the relevant form, the district 

court initialed both the box for “Court adopts probation 

officer’s position” (i.e., that the conviction in question was a 

qualifying “crime of violence”) and the box for “Other: moot 

as withdrawn.” In either case, there is no question that 

Robinson did not litigate the issue further.

In March 2021, on remand from Robinson I, the district

court sentenced Robinson to the statutory minimum of 180 

months (15 years). (By this time, Judge Yandle had taken over 

the case from Judge Herndon, who had retired.) In so doing, 

the district court criticized the mandatory minimum sentence 

and suggested that it was likely “greater than necessary.” But

the court indicated that its hands were tied by the Act. Robinson filed a timely notice of appeal. In June 2021, before any 

briefs were filed in the second appeal, the Supreme Court issued its opinion in Borden v. United States, 141 S. Ct. 1817 

(2021). Borden addressed the meaning of “use ... of physical 

force against the person of another” in section 924(e)(2)(B) of 

the Act. 

II

In this appeal, Robinson contends that crimes akin to his

Illinois aggravated-discharge offense may no longer serve as 

predicates for section 924(e), because of the Supreme Court’s 

ruling in Borden. It was thus error, he reasons, to classify him 

as an armed career criminal at sentencing. The government 

counters that any such argument has long since been waived; 

that our remand in Robinson I was confined to the acceptance 

issue and did not permit Robinson to re-open other arguments, thus making his armed-career-criminal status the law 

of the case; and that, regardless, Robinson misreads Borden. 
6 No. 21-1622 

Normally, we review de novo the question whether a district court correctly enhanced a sentence under the Act, United 

States v. Foster, 652 F.3d 776, 792 (7th Cir. 2011), except insofar 

as the alleged error implicates a factual finding, in which case 

we review for clear error, id. But this appeal presents a prior 

question: whether the mandate rule and law-of-the-case doctrine preclude our consideration of Robinson’s arguments. 

We thus begin there.

A 

“The mandate rule requires a lower court to adhere to the 

commands of a higher court on remand.” United States v. Polland, 56 F.3d 776, 777 (7th Cir. 1995). The law of the case doctrine performs a related function. It “is a corollary to the mandate rule and prohibits a lower court from reconsidering on 

remand an issue expressly or impliedly decided by a higher 

court ... .” Id. at 778. But this bar to reconsideration is not absolute. The appellate court has “some flexibility ... to revisit 

an issue if an intervening change in the law, or some other 

special circumstance, warrants” doing so. United States v. 

Thomas, 11 F.3d 732, 736 (7th Cir. 1993). 

Our decision in Robinson’s first appeal did not address the 

question whether his 1992 aggravated-discharge conviction 

was a predicate under the Act’s elements clause. That means, 

Robinson contends, that this issue was neither expressly nor 

impliedly decided in Robinson I and it is properly before us 

now. Moreover, he continues, even if we did rule on it earlier, 

he sees Borden as just the sort of “intervening change in the 

law” that Thomas had in mind. We do not need to choose between these alternatives. One way or the other the question is 

whether the Supreme Court’s Borden decision compelled a 
No. 21-1622 7

change in the law of this circuit. We therefore turn immediately to that issue.

B 

The Act’s “elements clause” defines a violent felony as one 

that “has as an element the use, attempted use, or threatened 

use of physical force against the person of another.” 18 U.S.C. 

§ 924(e)(2)(B)(i). In United States v. Curtis, 645 F.3d 937, 940 

(7th Cir. 2011), we had before us the nearly identical definition of “crime of violence” found in section 4B1.1(a) of the 

Sentencing Guidelines. We asked whether the elements of a 

later version of the Illinois aggravated-discharge statute than 

the one at issue in Robinson’s case fit that definition. Id. The 

amended statute read as follows (with changes from the 1991

version underlined):

A person commits aggravated discharge of a 

firearm when he or she knowingly or intentionally: 

(1) Discharges a firearm at or into a building he 

or she knows or reasonably should know to 

be occupied and the firearm is discharged 

from a place or position outside that building; [or]

(2) Discharges a firearm in the direction of another person or in the direction of a vehicle 

he or she knows or reasonably should know

to be occupied by a person[.]

720 ILCS 5/24-1.2(a) (2011). 

The defendant in Curtis had argued that “because the elements of aggravated discharge of a firearm do not require the 
8 No. 21-1622 

firearm’s discharge to result in injuring or striking a person” 

the crime lacked the requisite element of physical force. 645 

F.3d at 941 (emphasis added). We were unpersuaded that the 

statute had a separate “injuring-or-striking” requirement; this

reading seemed inconsistent with the fact that the statute covered both “attempted and threatened uses.” Id. In that connection, we held that “there are no methods of committing the 

actions in subsection (a)(2) without using, attempting to use, 

or threatening to use physical force against another person.” 

Id. at 940. 

To distinguish that holding in his first appeal, Robinson 

would have needed to convince us that the phrase “against 

the person of another” means two very different things in the 

guidelines and the Act. That would have been an uphill battle, 

given the many cases that have found the guidelines and the 

Act to be identical on this point. See, e.g., United States v. Jennings, 860 F.3d 450, 453 (7th Cir. 2017); United States v. Evans, 

924 F.3d 21, 29 n.4 (2d Cir. 2019). Accordingly, Robinson has 

satisfied the first half of his burden: the law in this circuit on 

the question whether this Illinois law required the use of force 

was settled before Borden came along. 

In Borden, the Supreme Court had to decide “whether a 

criminal offense can count as a ‘violent felony’ [under the elements clause of the Act] if it requires only a mens rea of recklessness.” 141 S. Ct. at 1821. A fractured majority held that 

reckless offenses do not so qualify. Id. Four of the justices 

reached that result without qualification. The plurality explained that reckless offenses “do not require, as the Act does, 

the active employment of force against another person.” Id. at 

1834. They distinguished “recklessness” from “purpose” and 

“knowledge,” employing the standard definitions: “A person 
No. 21-1622 9

acts purposefully when he consciously desires a particular result” and “acts knowingly when he is aware that a result is 

practically certain to follow from his conduct, whatever his 

affirmative desire.” Id. at 1823 (cleaned up). In contrast, a person acts recklessly “when he consciously disregards a substantial and unjustifiable risk attached to his conduct, in gross 

deviation from accepted standards.” Id. at 1824 (cleaned up). 

Justice Thomas cast the deciding vote. While he agreed 

with the plurality that reckless offenses do not fit the 

elements-clause definition found in section (e)(2)(B)(i), he 

would have found that they do fit within the so-called 

residual clause found in section (e)(2)(B)(ii) of the Act: “... or 

otherwise involves conduct that presents a serious potential 

risk of physical injury to another.” Id. at 1834 (Thomas, J., 

concurring in the judgment). But, acknowledging the stare 

decisis effect of Johnson v. United States, 576 U.S. 591, 597 (2015), 

which held the residual clause to be void for vagueness, 

Justice Thomas concurred in the judgment. Id. at 1836–37. 

Robinson contends that Borden changed the significance, 

under the Act, of his 1992 Illinois aggravated-discharge conviction, but we do not see how it could have done so. Borden,

as we just said, was about mens rea. Yet there is no mens rea 

issue here. The Illinois statute in question had a mens rea of 

knowing in 1991, and it still does today. Borden is thus irrelevant. A quick look at the statute under which Robinson was 

charged drives the point home: 

A person commits aggravated discharge of a 

firearm when he knowingly: 

(1) Discharges a firearm at or into a building 

he knows to be occupied and the firearm 
10 No. 21-1622 

is discharged from a place or position 

outside that building; or

(2) Discharges a firearm in the direction of 

another person or in the direction of a vehicle he knows to be occupied.

Ill. Rev. Stat. 1991, ch. 38, Ill. par. 24-1.2(a)(1)-(2) 

(emphasis added). 

This provision is replete with words indicating that it covers only knowing actions: the knowing discharge of a firearm 

(1) into a building the person knows to be occupied, (2) in the 

direction of another person, or (3) or in the direction of a vehicle the person knows to be occupied. This calls for 

knowledge of the target, not just knowledge that one is pulling the trigger. Cf. Rehaif v. United States, 139 S. Ct. 2191, 2195 

(2019) (“[W]e start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding each of 

the statutory elements that criminalize otherwise innocent 

conduct.”) (internal quotation marks omitted). And as for the 

prohibition against shooting in the direction of another person, a reading in which this provision did not require the 

shooter to know there is a person in the direction of the discharge would defy grammatical logic.

The Illinois Supreme Court has confirmed that the mens 

rea for aggravated discharge is “knowing” for both the discharge element and the target element. In People v. Fornear, 176 

Ill. 2d 523, 525 (1997), the defendant had been convicted by a 

jury of both aggravated discharge of a firearm and of reckless 

conduct after he shot his fiancée. The intermediate appellate 

court, in affirming both convictions, had reasoned that
No. 21-1622 11

“aggravated discharge of a firearm required only that the jury 

find that defendant knowingly or intentionally performed the 

act of firing the pistol in the direction of the victim.” Id. at 531 

(quoting 283 Ill. App. 3d 171, 179 (1996)). It saw no tension 

between that conviction and the reckless-conduct conviction:

“Assuming the jurors also found that [the] defendant intentionally fired the weapon with a conscious disregard for 

whether his actions would endanger or injure the victim, they 

could have concluded properly that [the] defendant was 

guilty of both aggravated discharge of a firearm and reckless 

conduct.” Id. But the Illinois Supreme Court rejected that reasoning. It explained that “recklessness and knowledge are 

mutually inconsistent culpable mental states,” id. at 531, and 

that “aggravated discharge of a firearm depended on a finding that defendant knowingly discharged a firearm in the direction of another person,” id. at 532. In short, Fornear establishes that Illinois aggravated discharge requires a mens rea 

higher than the recklessness considered in Borden. 

Further confirmation is found in the longstanding distinction in Illinois law between reckless discharge and aggravated 

discharge. Illinois law defines “the offense of reckless discharge of a firearm as ‘discharging a firearm in a reckless 

manner which endangers the bodily safety of an individual.’”

People v. Giraud, 2012 IL 113116 ¶ 19 (quoting 720 ILCS 5/24-

1.5(a)). The Illinois Supreme Court has concluded that “reckless discharge of a firearm does not require ‘the intentional 

firing of a weapon knowingly and directly at someone[,]’” because “the act of intentionally firing at a particular individual 

would be the offense of aggravated discharge of a firearm.” 

Id. (quoting People v. Collins, 214 Ill. 2d 206, 215 (2005)). 
12 No. 21-1622 

Text, case law, and statutory context all point to the same 

conclusion: The mens rea for Illinois’s aggravated-discharge 

offense is knowledge, not recklessness. Borden, it follows, is 

irrelevant to Robinson’s status, because his predicate violent 

offense was not a reckless crime.

***

Because Robinson has not identified “an intervening 

change in the law” that bears on his sentence, Thomas, 11 F.3d

at 736, we have no reason to disregard the mandate rule. Accordingly, we hold that Robinson’s status under the act was 

settled at his initial sentencing proceeding and remains settled after Borden. 

C 

Before we conclude, a brief comment on waiver is in order.

The government contends that everything we have just said 

is unnecessary because Robinson “waived” the issue of his 

armed-career-criminal status when he elected not to raise it in 

his first appeal. We realize that we have written that “any issue that could have been but was not raised on appeal is 

waived and thus not remanded.” United States v. Husband, 312 

F.3d 247, 250 (7th Cir. 2002). But that statement, in context, did 

not purport to sweep away the well-recognized distinction 

between waiver and forfeiture. See United States v. Olano, 507 

U.S. 725, 733 (1993); United States v. Flores, 929 F.3d 443, 447 

(7th Cir. 2019); United States v. Hyatt, No. 21-1212, at 5 (7th Cir. 

Mar. 14, 2022). Waiver is the intentional relinquishment of a 

point, while forfeiture results from a lack of action. The latter 

is a better description of Robinson’s case. At best, he forfeited 

this issue, thereby entitling us to reach it under the plain-error 

standard of review. But he would stumble immediately on the 
No. 21-1622 13

first point—was there an error at all? See Olano, 507 U.S. at 

733–34. We have concluded that the answer to that question 

is no. That is the end of this line for Robinson. We thus have 

no need to consider how aggressively his lawyer should have 

challenged existing circuit law on the first appeal. 

III

We AFFIRM the judgment of the district court.