USA v. Alejandro Lopez
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6853802-1]  [16-4172]
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
Argued July 6, 2017
Decided July 12, 2017
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
UNITED STATES OF AMERICA,
ALEJANDRO M. LOPEZ,
Appeal from the United States District
Court for the Central District of Illinois.
James E. Shadid,
O R D E R
Alejandro Lopez pleaded guilty to possessing and distributing
methamphetamine. See 21 U.S.C. § 841(a)(1). He already had four Illinois convictions,
including three for aggravated battery. The district court concluded that Lopez is a
career offender, see U.S.S.G. § 4B1.1, and sentenced him to a total of 151 months’
imprisonment. On appeal he argues that aggravated battery, as defined by Illinois, is
never a crime of violence for purposes of § 4B1.1. We have rejected that contention
before, most recently in United States v. Lynn, 851 F.3d 786 (7th Cir. 2017). Because Lynn
alone forecloses Lopez’s appellate claim, we affirm his sentence.
Section 4B1.1 of the sentencing guidelines increases the base offense level and
criminal‐history category for a defendant who, if 18 or older, commits a “controlled
substance offense” or “crime of violence” (both defined to be felony) after incurring at
least two countable convictions for such crimes. See U.S.S.G. §§ 4B1.1, 4B1.2. Lopez
concedes that his Illinois conviction for manufacturing methamphetamine counts as a
controlled‐substance offense, and a probation officer concluded that his convictions for
aggravated battery (one in 2009 and the others in 2014) are crimes of violence. Some
offenses are enumerated explicitly as crimes of violence; those which are not (including
battery) still qualify if they have as an element “the use, attempted use, or threatened use
of physical force” against another person. U.S.S.G. § 4B1.2(a)(1).
In Illinois “[a] person commits battery if he or she knowingly without legal
justification by any means (1) causes bodily harm to an individual or (2) makes physical
contact of an insulting or provoking nature with an individual.” 720 ILL. COMP. STAT.
5/12‐3(a). Simple battery under § 5/12‐3(a) is a misdemeanor, but 720 ILL. COMP. STAT.
5/12‐3.05 (formerly § 5/12‐4) defines multiple factors that elevate simple battery to
aggravated battery, a felony. Committing a battery on a public street is among the
statutory aggravating factors. § 5/12‐3.05(c) (formerly § 5/12‐4(b)(8)). Likewise, using a
deadly weapon or causing great bodily harm will elevate a simple battery to aggravated
battery. § 5/12‐3.05(a)(1), (f)(1).
The charging instrument and judgment from Lopez’s 2009 case establish that he
was convicted of committing aggravated battery by causing bodily harm on a public
street. The same pair of documents from his 2014 cases confirm that Lopez was
convicted of committing aggravated battery by causing “great” bodily harm to one
victim and using a deadly weapon against the other. Even so, Lopez objected to the
presentence report because in his view § 5/12‐3(a) does not have as an element “the use,
attempted use, or threatened use of physical force.” The district court overruled Lopez’s
objection and adopted the probation officer’s calculations (a total offense level of 29 and
criminal‐history category of VI), which yielded an imprisonment range of 151 to
188 months. If not for the career‐offender guideline, the guidelines imprisonment range
would have been 130 to 162 months.
Lopez is a career offender if any one of his three convictions for aggravated
battery is a crime of violence. In Lynn, which was decided after Lopez filed his notice of
appeal, we reiterated that a violation of § 5/12‐3(a) is a crime of violence if the defendant
was convicted under (a)(1) of committing a battery that caused bodily harm. 851 F.3d at
787. Twice previously we had said the same thing in a published opinion. Hill v.
Werlinger, 695 F.3d 644, 649 (7th Cir. 2012); United States v. Rodriguez‐Gomez, 608 F.3d 969,
973–74 (7th Cir. 2010). In light of Lynn, Lopez’s 2009 conviction for aggravated battery
coupled with his Illinois conviction for manufacturing methamphetamine is enough to
make him a career criminal; the other two convictions for aggravated battery don’t even
matter to the outcome. As Lopez’s attorney conceded at oral argument, Lynn dooms his
appellate claim, which he’s now pursuing solely to preserve the claim for possible
review by the Supreme Court.
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