United States v. Clinton Waters , 823 F.3d 1062 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2728
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLINTON W. WATERS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 14-CR-40083 — Staci M. Yandle, Judge.
____________________
ARGUED APRIL 27, 2016 — DECIDED MAY 24, 2016
____________________
Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Clinton Waters cooked methamphet-
amine at locations throughout southern Illinois and taught
others to do the same. He eventually was caught and pled
guilty to conspiring to manufacture a controlled substance in
violation of 21 U.S.C. §§ 846, 841(a)(1). Waters had several
prior convictions, including for enhanced domestic battery in
2 No. 15-2728
violation of Illinois law, which the probation office character-
ized as a crime of violence in the presentence investigation re-
port (“PSR”). The district court overruled Waters’s challenge
to that characterization and sentenced him as a career of-
fender. Waters renews his challenge on appeal, arguing that
the Illinois statute prohibiting domestic battery does not in-
clude the use of physical force as an element of the offense
and thus, is not a crime of violence. Because Circuit precedent
forecloses this argument and Waters does not provide a per-
suasive reason for overturning it, we affirm.
I. BACKGROUND
After Waters pled guilty to conspiring to manufacture a
controlled substance, the PSR recommended that he be sen-
tenced as a career offender. A defendant can be sentenced as
a career offender if he has two or more previous felony con-
victions for a crime of violence. U.S.S.G. § 4B1.1(a). A crime of
violence is defined as any state or federal offense punishable
by more than one year in prison that “has as an element the
use, attempted use, or threatened use of physical force against
the person of another … .” § 4B1.2(a)(1). The PSR’s recom-
mendation was based on two convictions: (1) the Illinois con-
viction for enhanced domestic battery, 720 Ill. Comp. Stat. §
5/12-3.2, and (2) a federal conviction for conspiracy to manu-
facture methamphetamine, 21 U.S.C. §§ 846, 841(a)(1). See
§ 4B1.1(a).
Enhanced domestic battery is simply a domestic battery
committed after a previous conviction for that same crime
and it is classified as a felony rather than a misdemeanor. See
No. 15-2728 3
§ 5/12-3.2(b); 1 People v. White, 46 N.E.3d 889, 899 (Ill. App. Ct.
2015). At sentencing, Waters objected to characterizing the en-
hanced domestic battery offense as a felony crime of violence
because the underlying conduct would have been only a mis-
demeanor if not for his previous conviction for domestic bat-
tery. See § 5/12-3.2(b). He emphasized that he had not been
charged with aggravated domestic battery, which always is a
felony under Illinois law. See § 5/12-3.3.
The district judge rejected Waters’s argument, agreeing
with the government that enhanced domestic battery is both
a crime of violence and a felony. The court reasoned that, no
matter how Illinois classifies a first conviction for domestic
battery, Waters was convicted of enhanced domestic battery,
which is a felony. The court sentenced Waters to 188 months
in prison (the high end of the guidelines range) and three
2
years of supervised release.
II. DISCUSSION
On appeal, Waters has abandoned his argument that en-
hanced domestic battery cannot be a felony crime of violence
because a first offense is a misdemeanor. He instead argues
that enhanced domestic battery is not a crime of violence un-
der § 4B1.2(a)(1) because the statute does not include the use,
attempted use, or threatened use of physical force as an ele-
ment of the crime. He further contends that the classification
1 720 Ill. Comp. Stat. 5/12-3.2 provides that “[a] person commits do-
mestic battery if he or she knowingly without legal justification by any
means: … causes bodily harm to any family or household member … .”
2 The designation as a career offender added twelve levels to Waters’s
offense level, which yielded an imprisonment range of 151 to 188 months
when combined with his Category VI criminal history.
4 No. 15-2728
cannot be salvaged under the guidelines’ residual clause
given the Supreme Court’s recent decision in Johnson v. United
States, 135 S. Ct. 2551 (2015).
As Waters acknowledges, this Court has already rejected
his argument about the elements of § 5/12-3.2(a)(1), conclud-
ing that a conviction for domestic battery under Illinois law
necessarily requires proving physical force. See De Leon Cas-
tellanos v. Holder, 652 F.3d 762, 764–65 (7th Cir. 2011) (reaffirm-
ing that domestic battery under § 5/12-3.2(a)(1) is a crime of
violence under 18 U.S.C. § 16(a)); LaGuerre v. Mukasey, 526
F.3d 1037, 1039 (7th Cir. 2008) (holding that a felony convic-
tion under § 5/12-3.2(a)(1) is a crime of violence under
§ 16(a)); United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008)
(holding that felony convictions for domestic battery under
§ 5/12-3.2(a)(1) “clearly qualify” as “violent felon[ies]” under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), be-
cause proving intentional causation of bodily harm “unam-
biguously requires proving physical force” (internal quota-
tion marks omitted)).
Waters has not persuaded us that this precedent should be
overturned. See De Leon Castellanos, 652 F.3d at 765 (noting
that “it would take compelling circumstances, or an interven-
ing on-point Supreme Court decision” to disturb our case law
holding that domestic battery is a crime of violence). He ar-
gues that the Second, Fourth, Fifth, and Tenth circuits all have
taken the opposite approach, concluding that similar statutes
requiring intent or a threat to cause bodily harm do not in-
clude an element of force. See United States v. Torres-Miguel,
701 F.3d 165, 168–69 (4th Cir. 2012); United States v. Cruz-Ro-
driguez, 625 F.3d 274, 276–77 (5th Cir. 2010); United States v.
Perez-Vargas, 414 F.3d 1282, 1287 (10th Cir. 2005); Chrzanoski v.
No. 15-2728 5
Ashcroft, 327 F.3d 188, 195–97 (2d Cir. 2003). But two of the
four decisions cited by Waters are distinguishable. In Cruz-
Rodriguez, the Fifth Circuit held that a California statute crim-
inalizing “terroristic threats,” a far different crime than bat-
tery, did not define a crime of violence. 625 F.3d at 276. In fact,
the court determined that “willful infliction of corporal injury
is a crime of violence … .” Id. And in Perez-Vargas, the Tenth
Circuit dealt with an indivisible Colorado assault statute that,
unlike the Illinois domestic battery statute requiring inten-
tional infliction of bodily harm, penalized the causation of
bodily harm either knowingly, recklessly, or by the criminally
negligent handling of a deadly weapon. 414 F.3d at 1285–86.
The Colorado statute also included mental impairment in the
definition of bodily injury. Id. at 1285. Because under the stat-
ute, an assault need not involve the use or threatened use of
physical force, the Tenth Circuit concluded that it is not a
crime of violence. Id. at 1285–86.
Therefore, only two of the decisions cited by Waters are
conflicting. And only one of those was decided after 2011,
when this Court reaffirmed that domestic battery is a crime of
violence in De Leon Castellanos, 652 F.3d at 764–65. Since that
time, only the Fourth Circuit and the First Circuit (the latter
of which was overlooked by Waters) have endorsed Waters’s
position, while the Eighth Circuit has adopted this Circuit’s
view. Compare United States v. Rice, 813 F.3d 704, 705–06 (8th
Cir. 2016), with Whyte v. Lynch, 807 F.3d 463, 471 (1st Cir. 2015),
and Torres-Miguel, 701 F.3d at 168–69. Nonetheless, the exist-
ence of a circuit split is not a reason, on its own, to overturn
precedent. See United States v. Walton, 255 F.3d 437, 444 (7th
Cir. 2001).
6 No. 15-2728
Importantly, no intervening Supreme Court decision jus-
tifies a different result. We have already determined that the
Supreme Court’s opinion in Johnson v. United States, 559 U.S.
133 (2010), does not compel a different understanding of the
Illinois domestic battery statute. See De Leon Castellanos, 652
F.3d at 766. Johnson holds that a Florida statute defining bat-
tery as “actually and intentionally” touching a person against
their will does not have as an element the use of physical force
because the battery could be based on “any intentional physi-
cal contact, no matter how slight.” 559 U.S. at 138 (citation and
internal quotation marks omitted). In De Leon Castellanos, we
distinguished the Florida statute at issue in Johnson because
the force necessary to violate the Illinois statute exceeded that
of the Florida standard. 652 F.3d 765–66. As explained by the
Supreme Court of Illinois, the bodily harm element of the Illi-
nois statute necessitates “some sort of physical pain or dam-
age to the body, like lacerations, bruises or abrasions, whether
temporary or permanent … .” People v. Mays, 437 N.E.2d 633,
635–36 (Ill. 1982).
Waters insists that there are many ways in which a person
can cause injury to another person in violation of the domestic
battery statute without using or threatening physical force, in-
cluding by poisoning or withholding medicine. But in De Leon
Castellanos, we assumed that poisoning qualified as the use of
force under Illinois law, 652 F.3d at 766–67, and the U.S. Su-
preme Court recently confirmed that “the act of employing
poison knowingly as a device to cause physical harm” is a use
of force, United States v. Castleman, 134 S. Ct. 1405, 1415 (2014)
(interpreting 18 U.S.C. § 922(g)(9)). Likewise, withholding
medicine causes physical harm, albeit indirectly, and thus
qualifies as the use of force under Castleman. See id.
No. 15-2728 7
Waters also argues that the residual clause of § 4B1.2(a)(2),
which classifies as a crime of violence an offense lacking an
element of physical force if that offense “involves conduct
that presents a serious potential risk of physical injury to an-
other,” is unconstitutionally vague. Waters points out that the
Supreme Court recently invalidated the residual clause in the
Armed Career Criminal Act (which is identical to the residual
clause in the guidelines definition) because it is impermissibly
vague. Johnson v. United States, 135 S. Ct. 2551 (2015). But be-
cause we affirm the district court’s decision that Waters was
a career offender under § 4B1.2(a)(1), Waters’s argument
about the residual clause is not relevant.
III. CONCLUSION
Because Waters has offered no compelling reason to over-
turn this Court’s precedent, we AFFIRM.