[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-15357

Non-Argument Calendar

________________________

D.C. Docket Nos. 4:15-cv-00515-RH-CAS,

4:10-cr-00010-RH-CAS-1

RICARDO DELEON COLON, 

 Petitioner-Appellant,

 versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(August 16, 2018)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit 

Judges.

PER CURIAM: 

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Ricardo Colon, a federal prisoner, appeals the district court’s denial of his 28

U.S.C. § 2255 motion to vacate his 188-month sentence. 

Colon pleaded guilty to a single count of being a felon in possession of a 

firearm in violation of 18 U.S.C. § 922(g)(1). The presentence investigation report 

stated that he was subject to an enhanced sentence under the Armed Career 

Criminal Act, 18 U.S.C. § 924(e)(1), based on three prior convictions: (1) a 1995 

Florida conviction for resisting an officer with violence, in violation of Florida 

Statute § 843.01; (2) a 2003 Indiana conviction for aggravated battery on a law 

enforcement officer engaged in the execution of his official duty, resulting in 

bodily injury, in violation of Indiana Code § 35-42-2-1(a)(2)(A); and (3) a 2003 

Indiana conviction for aggravated battery of a person less than fourteen years of 

age, resulting in bodily injury, in violation of Indiana Code § 35-42-2-1(a)(2)(B).

Colon objected to the use of the Indiana battery convictions as ACCA 

qualifying offenses, but the district court ruled that they qualified under the 

ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent 

felony” as “any crime punishable by imprisonment for a term exceeding one year” 

and that “involves conduct that presents a serious potential risk of physical injury 

to another”). The court sentenced Colon to 188 months in prison, and we affirmed. 

See United States v. Colon, 458 F. App’x 825 (11th Cir. 2012) (unpublished).

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Colon later filed a pro se § 2255 motion challenging his sentence on the 

ground that the Supreme Court’s invalidation of the ACCA’s residual clause in 

Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), meant that his 

Indiana battery convictions were no longer qualifying felonies under the ACCA. 

The district court acknowledged that Johnson invalidated the residual clause, but 

ruled that Colon’s Indiana convictions were still qualifying felonies under the 

ACCA’s elements clause.

1

 See 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent 

felony” as “any crime punishable by imprisonment for a term exceeding one year” 

and that “has as an element the use, attempted use, or threatened use of physical 

force against the person of another”). As a result, it denied Colon’s motion, but 

granted him a certificate of appealability on the following issue: Whether his

Indiana battery convictions are violent felonies under the ACCA’s elements clause. 

This is Colon’s appeal.

2

We review de novo the district court’s ruling that Colon’s Indiana battery 

convictions qualify as violent felonies under the ACCA’s elements clause. See

Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008). Indiana’s 2003 

battery statute provided that a “person who knowingly or intentionally touches 

 1 There is no question that Colon’s Florida conviction for resisting an officer with 

violence is a qualifying felony under the ACCA’s elements clause. See United States v. Hill, 

799 F.3d 1318, 1322–23 (11th Cir. 2015) (concluding that a Florida conviction for resisting an 

officer with violence “categorically qualifies as a violent felony under the elements clause of the 

ACCA”).

2 Colon proceeded pro se in the district court, but he is now represented by counsel. 

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another person in a rude, insolent, or angry manner commits battery,” and that the 

offense is a felony if it “results in bodily injury to” a law enforcement officer or “a 

person less than fourteen (14) years of age and is committed by a person at least 

eighteen (18) years of age.” Ind. Code § 35-42-2-1(a)(2)(A)–(B) (2003).

3

 Indiana 

defined “bodily injury” as “any impairment of physical condition, including 

physical pain.” Id. § 35-41-1-4 (2003). Colon contends that mere physical pain 

falls short of the “physical force” requirement in the ACCA’s elements clause, 18 

U.S.C. § 924(e)(2)(B)(i), which means that his Indiana convictions are not violent 

felonies and, as a result, his sentence cannot be enhanced under the ACCA. That 

contention fails.

The Supreme Court has held that “in the context of a statutory definition of 

‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force 

capable of causing physical pain or injury to another person.” Curtis Johnson v. 

United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010). In United States 

v. Vail-Bailon, 868 F.3d 1293, 1302 (11th Cir. 2017) (en banc), we held that the 

test in Curtis Johnson for “determining whether an offense calls for the use of 

physical force . . . is whether the statute calls for violent force that is capable of 

 3 The district court cited the provision of the battery statute requiring “serious bodily 

injury,” not bodily injury. But, as the government points out, the record makes clear that Colon 

was convicted under Indiana Code § 35-42-2-1(a)(2)(A)–(B), which requires only “bodily 

injury.” See Colon, 458 F. App’x at 826. 

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causing physical pain or injury to another.”4 Applying that test, we concluded that 

a Florida battery statute requiring an intentional use of force that causes the victim 

to suffer “great bodily harm, permanent disability, or permanent disfigurement” 

qualified as a violent felony under the elements clause because force that in fact 

causes such harm “necessarily constitutes force that is capable of causing pain or 

injury.” Id. at 1303.

Our Vail-Bailon decision establishes that Colon’s Indiana felony battery 

convictions qualify as violent felonies under the Curtis Johnson test. A conviction 

for Indiana felony battery requires “bodily injury,” which means “any impairment 

of physical condition, including physical pain.” Ind. Code § 35-41-1-4 (2003). An 

“impairment” is synonymous with an injury,5 and the statute includes “physical 

pain” within its definition of “physical impairment.” Id. Because that means, at a 

minimum, that the victim must suffer physical pain or injury, a felony battery 

 4 Vail-Bailon involved a “crime of violence” enhancement under the sentencing 

guidelines, not under the ACCA, but the “elements clause of the ACCA is identical to the 

elements clause [in the guidelines].” 868 F.3d at 1298 n.8. Colon argues that the test we 

articulated in Vail-Bailon is inconsistent with Curtis Johnson and the Supreme Court’s decisions 

in Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377 (2004), United States v. Castleman, 572 U.S. 

157, 134 S. Ct. 1405 (2014), and Voisine v. United States, 579 U.S. __, 136 S. Ct. 2272 (2016), 

but that argument is a non-starter. We are bound by Vail-Bailon unless and until the Supreme 

Court or this Court sitting en banc overrules it. See Smith v. GTE Corp., 236 F.3d 1292, 1300 

n.8 (11th Cir. 2001) (“[Under the] prior panel precedent rule of this Circuit, the holding of the 

first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels 

unless and until the first panel’s holding is overruled by the Court sitting en banc or by the 

Supreme Court.”). In any event, Vail-Bailon explicitly applied the Curtis Johnson test. 868 F.3d 

at 1302. 

5 Random House Unabridged Dictionary 958 (2d ed. 1993).

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conviction under the Indiana statute necessarily requires that the defendant use 

“force capable of causing physical pain or injury.” Curtis Johnson, 559 U.S. at 

140, 130 S. Ct. at 1271; Castleman, 134 S. Ct. at 1416–17 (Scalia, J., concurring) 

(“[I]t is impossible to cause bodily injury without using force ‘capable of’ 

producing that result.”); cf. Vail-Bailon, 868 F.3d at 1303 (concluding that “force 

— even of the touching variety — that in fact causes great bodily harm, permanent 

disability, or permanent disfigurement . . . necessarily constitutes force that is 

capable of causing pain or injury”) (quotation marks omitted).

Colon points out that Indiana felony battery does not include the “great 

bodily harm, permanent disability, or permanent disfigurement” requirement that 

the Florida battery statute at issue in Vail-Bailon required. See Bailey v. State, 979 

N.E.2d 133, 133–34, 138 (Ind. 2012) (affirming that “any level of pain can 

constitute bodily injury,” and concluding that there was sufficient evidence of 

bodily injury where a wife testified that her husband caused her pain when he 

“poked her repeatedly in the forehead with his finger, hard enough to push her 

head back” and shoved her). Indiana’s Bailey decision does not support Colon’s 

argument because it confirms that “bodily injury” requires physical pain. 

In Yates v. United States, 842 F.3d 1051, 1052–53 (7th Cir. 2016), the 

Seventh Circuit addressed a similar argument involving Wisconsin’s battery-byprisoner statute, which required “bodily harm” and defined that term as “physical 

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pain or injury, illness, or any impairment of physical condition.” The defendant 

argued that the “bodily harm” requirement did not pass the Curtis Johnson test 

because a Wisconsin court had affirmed a battery-by-prisoner conviction where a 

prisoner threw a cup of urine at a guard. Id. at 1053. Writing for the court, Judge 

Easterbrook rejected that argument because “the ground on which the court 

sustained [that] conviction — that the urine had in fact caused pain to the guard 

when it got into his eyes and nose — [came] within the language of Curtis 

Johnson, which said that it is enough if the force is ‘capable of’ causing pain.”6 Id.

For the same reason, Colon’s reliance on Bailey is misplaced. In that case 

the husband caused his wife pain when he poked and shoved her, 979 N.E.2d at 

133–34, 138, which satisfies Curtis Johnson, see 559 U.S. at 143, 130 S. Ct. at 

1272 (stating that “physical force” might consist of “only that degree of force 

 6 In Flores v. Ashcroft, 350 F.3d 666, 669 (7th Cir. 2003), the issue was whether an 

Indiana conviction for misdemeanor battery, which included a “bodily injury” requirement, 

qualified as a crime of violence under 18 U.S.C. § 16(a), which requires that an offense have “as 

an element the use, attempted use, or threatened use of physical force against the person or 

property of another.” Writing for the court, Judge Easterbrook concluded that it did not qualify 

as a crime of violence because § 16(a) required that the “force be violent in nature — the sort 

that is intended to cause bodily injury, or at a minimum likely to do so.” Id. at 672 (emphasis 

added). But Flores was decided before Curtis-Johnson, which made clear that the “phrase 

‘physical force’ means violent force — that is, force capable of causing physical pain or injury to 

another person.” Curtis Johnson, 559 U.S. at 140, 130 S. Ct. at 1271 (original emphasis omitted

and emphasis added); see also Vail-Bailon, 868 F.3d at 1301 (“[T]he court in Flores defined 

physical force to mean force that is ‘intended to cause bodily injury, or at a minimum likely to do 

so.’ Vail-Bailon concedes that neither part of his proposed definition is consistent with CurtisJohnson. That is, the Supreme Court did not identify intent to cause injury as a relevant 

consideration, and it spoke of force that is capable of causing pain or injury rather than just 

injury.”) (quoting Flores, 350 F.3d at 672) (emphasis added) (citation and quotation marks 

omitted). Judge Easterbrook did not cite Flores in the Yates decision, and Colon also does not 

mention Flores in his brief. In any event, it is no longer good law. 

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necessary to inflict pain — a slap in the face, for example”). And Colon points to 

no case where an Indiana court concluded that “bodily injury” occurred where the 

victim did not feel pain.7

 See Yates, 842 F.3d at 1053 (“[The defendant] has not 

identified any case in which Wisconsin’s judiciary affirmed a battery-by-prisoner 

conviction that penalized acts that caused neither pain nor injury.”). As a result, 

Indiana’s felony battery statute requires “physical force,” which means that 

Colon’s convictions qualify as violent felonies under the ACCA’s elements clause.

AFFIRMED.

 7 Colon relies on Toney v. State, 961 N.E.2d 57, 60 (Ind. Ct. App. 2012), but the court in 

that case held that bodily injury occurred where the victim “experienced physical pain as a result 

of [the defendant’s] action of grabbing her hand and twisting her phone out of her hand.” In 

Tucker v. State, 725 N.E.2d 894, 897–98 (Ind. Ct. App. 2000), the court concluded that the 

“State [did] not have to prove that the victim suffered physical pain in order to prove that there 

was bodily injury,” but in that case the evidence showed that the victim suffered a bruise, which 

qualified as a bodily injury. Tucker affirms that Indiana’s definition of bodily injury requires 

proof of either injury or pain, which is enough to satisfy Curtis Johnson. 559 U.S. at 140, 130 S. 

Ct. at 1271. And Colon’s argument that Indiana’s felony battery statute does not require the use 

of force because it does not have an intent requirement fails because the statute does require

“knowing or intentional[ ]” touching. Ind. Code § 35-42-2-1(a)(2) (2003).

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