Charles Douglas v. USA
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6845592-1]  [17-1104]
United States Court of Appeals
For the Seventh Circuit
CHARLES B. DOUGLAS,
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:16-‐‑cv-‐‑270 — Jon E. DeGuilio, Judge.
ARGUED MAY 16, 2017 — DECIDED JUNE 5, 2017
Before EASTERBROOK, SYKES, and HAMILTON, Circuit Judg-‐‑
EASTERBROOK, Circuit Judge. Charles Douglas pleaded
guilty to possessing a firearm, which his earlier felony con-‐‑
victions made it illegal for him to have. 18 U.S.C. §922(g)(1).
He was sentenced to 110 months after the district judge
found that at least 3 of Douglas’s 16 other felony convictions
were “violent felonies” as defined by the Armed Career
Criminal Act, 18 U.S.C. §924(e). After the Supreme Court
held the residual clause of §924(e)(2)(B)(ii) unconstitutional-‐‑
ly vague, Samuel Johnson v. United States, 135 S. Ct. 2551
(2015), Douglas filed a motion under 28 U.S.C. §2255, asking
the district court to reduce his sentence. But the judge con-‐‑
cluded that Douglas is properly classified as an armed career
The invocation of §2255 is problematic. Douglas treats
Samuel Johnson as opening to collateral review all sentences
under the Armed Career Criminal Act. Yet the Court did not
hold the Act invalid; Samuel Johnson concerns only a part of
§924(e)(2)(B)(ii). The elements clause in §924(e)(2)(B)(i) re-‐‑
mains in effect, as does the burglary clause in
§924(e)(2)(B)(ii). See, e.g., Stanley v. United States, 827 F.3d
562 (7th Cir. 2016); Holt v. United States, 843 F.3d 720 (7th Cir.
2016). The district court concluded that Douglas’s prior con-‐‑
victions are violent felonies under the elements clause of
§924(e)(2)(B)(i), so Samuel Johnson does not affect his situa-‐‑
Douglas does not contend that classifying his convictions
as violent felonies violates the Constitution but instead that
the district court misapplied the elements clause, as inter-‐‑
preted in Curtis Johnson v. United States, 559 U.S. 133 (2010).
Curtis Johnson, a statutory decision, was issued about five
years before Douglas filed his §2255 motion, which was ac-‐‑
cordingly untimely even if Curtis Johnson applies retroactive-‐‑
ly on collateral review. See 28 U.S.C. §2255(f)(3). What’s
more, as part of his plea agreement Douglas agreed to waive
the right to seek collateral review.
Yet the United States has chosen not to contest the use of
§2255 to obtain collateral review of a contention that rests on
Curtis Johnson, not to invoke the one-‐‑year time limit in
§2255(f), and to waive its rights under the plea agreement.
The Supreme Court has held that federal courts may dismiss
procedurally defective collateral attacks when the govern-‐‑
ment fails to notice the problems, see Granberry v. Greer, 481
U.S. 129 (1987), but must respect formal waivers by prosecu-‐‑
tors and wardens. See Wood v. Milyard, 566 U.S. 463 (2012).
None of the procedural problems we have mentioned affects
subject-‐‑matter jurisdiction, so we give effect to the United
States’ waiver and turn to the merits.
The parties agree that the sole issue on the merits is
whether Class C felony battery in Indiana at the time of
Douglas’s two convictions for that offense was a violent fel-‐‑
ony under the elements clause of §924(e)(2)(B)(i). The state
statute has since been amended, but we must consider its
elements as they were when Douglas committed those of-‐‑
fenses. The state law provided:
A person who knowingly or intentionally touches another per-‐‑
son in a rude, insolent, or angry manner commits battery, a Class
B misdemeanor. However, the offense is:
(1) a Class A misdemeanor if:
(A) it results in bodily injury to any other person; …
(3) a Class C felony if it results in serious bodily injury to any
other person or if it is committed by means of a deadly
Ind. Code §35-‐‑42-‐‑2-‐‑1(a) (2005). The elements clause of
§924(e)(2)(B)(i) designates an offense as a violent felony if it
“has as an element the use, attempted use, or threatened use
of physical force against the person of another”. Accordingly
we look at the elements of the state offense, not at what
Douglas did in fact. See, e.g., Mathis v. United States, 136 S.
Ct. 2243 (2016) (discussing the “modified categorical ap-‐‑
proach” that the Court uses for federal recidivist statutes).
Battery was a Class C felony in Indiana if a person
“knowingly or intentionally touches another person in a
rude, insolent, or angry manner” and that touch “results in
serious bodily injury to any other person”. Any touch entails
the use of force as an engineer or physicist uses that word,
but Curtis Johnson holds that this is not the legal sense of
“force” in §924(e)(2)(B)(i). The Court stated that the sort of
force that comes within the elements clause is “force capable
of causing physical pain or injury to another person.” 559
U.S. at 140. Douglas tells us that Indiana’s statute did not re-‐‑
quire the prosecutor to demonstrate that sort of force.
And that’s true enough for the simple battery defined by
the introductory clause of Indiana’s law. But Douglas was
not convicted of the Class B misdemeanor version of the
crime; he was convicted of the Class C felony version, which
has “serious bodily injury” as an element. Curtis Johnson tells
us that the sort of force to which §924(e)(2)(B)(i) refers is
force “capable of causing” injury, 559 U.S. at 140; force that
actually causes injury necessarily was capable of causing that
injury and thus satisfies the federal definition. So we held in
Yates v. United States, 842 F.3d 1051 (7th Cir. 2016), with re-‐‑
spect to a Wisconsin statute that penalized battery that
“causes bodily harm”. If force that causes bodily harm quali-‐‑
fies, as Yates held, then force that causes “serious bodily
harm” necessarily qualifies.
Douglas observes that tickling another person entails
force. If the tickled person twitches, falls, strikes his head on
a coffee table, and suffers a serious injury, Douglas tells us,
the tickler could be convicted of Class C felony battery. If
Indiana treated that situation, and similar ones, as Class C
felonies, then Douglas would have a good point under Curtis
Johnson. But just as Yates could not identify any case in
which Wisconsin’s judiciary had deemed a light touch
enough to convict someone of causing bodily harm, so
Douglas has not located any decision in which Indiana’s
courts have convicted someone of committing Class C felony
battery after a light touch initiates a long causal chain that
ends in serious injury. All the cases that the parties discuss
involve violent force. See, e.g., Mann v. State, 895 N.E.2d 119
(Ind. App. 2008). Indeed, Indiana’s courts say that the force
must be enough to exclude any possibility that the injuries
occurred by accident or an unforeseeable intervening cir-‐‑
cumstance. See, e.g., Moore v. State, 49 N.E.3d 1095 (Ind.
App. 2016). Indiana’s statute therefore must be treated the
same way Yates treated Wisconsin’s.
According to Douglas, however, no state crime can be a
violent felony unless the person intends not only the use of
force but also the injury caused by that force. Indiana’s bat-‐‑
tery law has an intent element, but that element applies to
the force rather than the outcome. Douglas relies on Leocal v.
Ashcroft, 543 U.S. 1 (2004), and some similar decisions, but
they do not establish the proposition that the injury must
have its own mens rea.
Leocal dealt with the elements clause in 18 U.S.C. §16(a),
which is similar to the elements clause in the Armed Career
Criminal Act. The Court held that drunk driving is not a vio-‐‑
lent felony under §16(a) because, to “use” force—the verb in
both §16(a) and §924(e)(2)(B)(i)—a person must intend more
than negligent or accidental contact. Because a person can
drive under the influence without intending to touch any-‐‑
one, the Court concluded that the crime does not entail the
use of force. That conclusion does not help Douglas, because
the Indiana statute applies only to a “person who knowingly
or intentionally touches another person” in a forbidden
manner. Intentional touching is an element of Class C felony
battery in Indiana. Leocal neither holds nor suggests that
there must be a separate intent element attached to the degree
of injury. It is enough to “use” force.
We have held that an offense defined as a knowing or in-‐‑
tentional act that causes bodily harm comes within the ele-‐‑
ments clause of §16(a), §924(e)(2)(B)(i), or 18 U.S.C.
§924(c)(3)(A) (the third of the trio of elements clauses in Title
18). See, e.g., Yates; De Leon Castellanos v. Holder, 652 F.3d 762,
764–66 (7th Cir. 2011); LaGuerre v. Mukasey, 526 F.3d 1037,
1039 (7th Cir. 2008). Indiana’s statute makes intent to use
force an element of the offense; that satisfies the elements
clause as Leocal understands it.
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