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-114 — Jon E. DeGuilio, Judge. ____________________

ARGUED APRIL 11, 2023 — DECIDED AUGUST 9, 2023 ____________________

Before SCUDDER, ST. EVE, and LEE, Circuit Judges. SCUDDER, Circuit Judge. Sergio Gamez received a 15-year sentence for being a felon in possession of a firearm after the district court found that his three prior Indiana felony convic- tions qualified him for the Armed Career Criminal Act’s sen- tencing enhancement in 18 U.S.C. § 924(e). Challenging that sentence, Gamez contends that one of his Indiana convic- tions—aiding and abetting arson—is not a violent felony and therefore should not count as a third strike under the statute. 2 No. 22-2278

We are unpersuaded by two of Gamez’s three distinct challenges to the district court’s application of the ACCA en- hancement. The district court was right to conclude that Gamez’s three prior Indiana felony convictions occurred “on occasions different from one another” as required by 18 U.S.C. § 924(e)(1). And so too do we agree that the state’s choice to charge Gamez as an aider-and-abettor of arson and not a prin- cipal does not independently preclude the ACCA enhance- ment. What we cannot decide today is a question on the meaning and requirements of Indiana law: whether Indiana arson re- quires a fire or burning. By its terms, the state’s criminal code does not require a fire or burning as an element of arson. But there are indications that Indiana state courts have inter- preted and applied the arson statute to require proof of burn- ing to sustain an arson conviction. The answer matters to Gamez, for it marks the difference between Indiana arson as an ACCA violent felony or not. Because the issue has not been addressed by the Indiana Supreme Court, and because the an- swer brings material sentencing consequences for Gamez, the most prudent course is to invite the state’s highest court to resolve the question. So we certify the question set forth in this opinion to the Indiana Supreme Court. I In August 2019 police responded to a 911 call of a reported kidnapping at a gas station near Hammond, Indiana and dis- covered Sergio Gamez, the purported kidnapper, in posses- sion of a Winchester rifle. Gamez was on probation at the time for a prior robbery conviction. Indeed, eight days earlier Gamez had removed his GPS-tracking ankle bracelet, prompting a LaPorte County Community Corrections officer No. 22-2278 3 to file charges for escape. All of these events led federal pros- ecutors to get involved and charge Gamez with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In time Gamez pleaded guilty to this offense. At the sentencing hearing three years later, in July 2022, the government pointed to Gamez’s criminal history to sup- port a 15-year minimum sentence mandated by Congress in the Armed Career Criminal Act. The sentencing enhancement applies to § 922(g)(1) offenders with “three previous convic- tions … for a violent felony … committed on occasions differ- ent from one another.” 18 U.S.C. § 924(e)(1). The government saw Gamez’s three prior state convictions under Indiana law—two for robbery and one for aiding and abetting arson— as violent felonies under the definition in § 924(e)(2)(B). Gamez never disputed that h