USA v. Jamar Bailey
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and David F. Hamilton, Circuit Judge. [6820993-1]  [16-1280]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 21, 2017*
Decided February 23, 2017
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District
Court for the Northern District of Illinois,
No. 13 CR 645‐1
Virginia M. Kendall,
O R D E R
Jamar Bailey pleaded guilty to distributing heroin, 21 U.S.C. § 841(a)(1), and was
sentenced to 120 months’ imprisonment as a career offender, see U.S.S.G. § 4B1.1. In this
direct appeal, he argues that he is not a career offender because, he says, his Illinois
convictions for aggravated battery are not crimes of violence for purposes of the career
offender guideline. We reject this contention and affirm Bailey’s sentence.
* We have agreed to decide this case without oral argument because the issues
have been authoritatively decided. FED. R. APP. P. 34(a)(2)(B).
Bailey sold 9.9 grams of heroin to an informant. The probation officer identified
three prior convictions making Bailey a career offender (though only two qualifying
convictions are necessary, see U.S.S.G. § 4B1.1(a)). Two of those convictions are Illinois
felony convictions for aggravated battery, 720 ILCS 5/12‐4(a) (1998) (currently codified
as amended at 720 ILCS 5/12‐3.05). In his plea agreement Bailey stipulated that these
battery convictions are for crimes of violence, and at sentencing the district court
adopted the probation officer’s finding that Bailey is a career offender. The court
calculated an imprisonment range of 151 to 188 months based on Bailey’s status as a
career offender. The court sentenced Bailey below that range, however, reasoning that
the guidelines range was too high for someone Bailey’s age, then 36.
With new counsel on appeal, Bailey ignores the concession in his plea agreement
and argues for the first time that aggravated battery under § 5/12‐4(a) is not a “crime of
violence” as defined by U.S.S.G. § 4B2.1(a)(1). The Supreme Court in Johnson v.
United States interpreted “physical force” as used in the Armed Career Criminal Act,
18 U.S.C. 924(e)(2)(B)(i), to mean violent force, “that is, force capable of causing physical
pain or injury.” 599 U.S. 133, 140–42 (2010). We subsequently applied Johnson to
conclude that the residual clause in § 4B1.2 is unconstitutionally vague, see United States
v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016), a question now pending before the
Supreme Court in Beckles v. United States, No. 15‐8544. The Illinois statute penalizes the
commission of a battery that “causes great bodily harm” or permanent injury, and
Bailey contends that a battery resulting in “great bodily harm” can be committed
without using force. The government responds to the merits of this argument, even
though it would seem to be waived by Bailey’s contrary stipulation in his plea
agreement. See United States v. Hible, 700 F.3d 958, 962 (7th Cir. 2012) (observing that
defendant who agreed to total offense level calculated by probation officer waived
argument that his sentence should have been calculated consistent with Fair Sentencing
Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372); United States v. Harris, 230 F.3d 1054,
1058–59 (7th Cir. 2000) (concluding that defendant’s stipulation waived argument that
he should receive guidelines downward adjustment).
We already have concluded that the phrase “causes bodily harm” in the Illinois
statutes defining battery and domestic battery means force that would satisfy Johnson’s
requirement of violent physical force. De Leon Castellanos v. Holder, 652 F.3d 762, 766–67
(7th Cir. 2011) (discussing domestic battery under 720 ILCS 5/12‐3.2); United States v.
Rodriguez‐Gomez, 608 F.3d 969, 973–74 (7th Cir. 2010) (discussing battery under 720 ILCS
5/12‐3(a)(i)); see United States v. Waters, 823 F.3d 1062, 1065 (7th Cir.), cert. denied,
137 S.Ct. 569 (2016) (declining to overturn De Leon Castellanos). Bailey does not identify
any legal development that would justify overturning these decisions, in particular
where, as here, our review is for plain error. See United States v. Ikegwuonu, 826 F.3d 408,
410 (7th Cir. 2016) (observing that the court will not overturn precedent “absent
compelling reasons”). Indeed, all three opinions conclude that “bodily harm” alone
denotes violent physical force, while aggravated battery under § 5/12‐4(a) requires
evidence of “great bodily harm.” See Illinois v. Mandarino, 994 N.E.2d 138, 172 (Ill. App.
Ct. 2013) (stating that aggravated battery requires injury “of a greater and more serious
nature” than “simple battery”). Bailey glosses over this heightened element of harm.
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