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 methamphetamine 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 characterized as a crime of violence in the presentence investigation report (“PSR”). The district court overruled Waters’s challenge 

to that characterization and sentenced him as a career offender. Waters renews his challenge on appeal, arguing that 

the Illinois statute prohibiting domestic battery does not include 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 persuasive 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 sentenced as a career offender. A defendant can be sentenced as

a career offender if he has two or more previous felony convictions 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 recommendation was based on two convictions: (1) the Illinois conviction for enhanced domestic battery, 720 Ill. Comp. Stat. §

5/12-3.2, and (2) a federal conviction for conspiracy to manufacture 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 enhanced domestic battery offense as a felony crime of violence 

because the underlying conduct would have been only a misdemeanor if not for his previous conviction for domestic battery. 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

years of supervised release.2

II. DISCUSSION

On appeal, Waters has abandoned his argument that enhanced 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 under § 4B1.2(a)(1) because the statute does not include the use, 

attempted use, or threatened use of physical force as an element of the crime. He further contends that the classification 

 1 720 Ill. Comp. Stat. 5/12-3.2 provides that “[a] person commits domestic 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), concluding that a conviction for domestic battery under Illinois law 

necessarily requires proving physical force. See De Leon Castellanos v. Holder, 652 F.3d 762, 764–65 (7th Cir. 2011) (reaffirming 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 conviction 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), because proving intentional causation of bodily harm “unambiguously requires proving physical force” (internal quotation 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 intervening on-point Supreme Court decision” to disturb our case law 

holding that domestic battery is a crime of violence). He argues 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 include an element of force. See United States v. Torres-Miguel, 

701 F.3d 165, 168–69 (4th Cir. 2012); United States v. Cruz-Rodriguez, 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 CruzRodriguez, the Fifth Circuit held that a California statute criminalizing “terroristic threats,” a far different crime than battery, 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 intentional 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 statute, 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 existence 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 justifies 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 battery 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 physical 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 Illinois statute necessitates “some sort of physical pain or damage 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, including 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. Supreme 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 another,” 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 because 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 overturn this Court’s precedent, we AFFIRM.