In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2424

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MATTHEW EVANS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-CR-159-BBC-04—Barbara B. Crabb, Chief Judge.

ARGUED JANUARY 5, 2009—DECIDED AUGUST 13, 2009

Before EASTERBROOK, Chief Judge, and POSNER and

WILLIAMS, Circuit Judges.

PER CURIAM. The defendant was convicted of armed

bank robbery and related crimes and sentenced to

382 months in prison. The sentence was within the guidelines range, but only because the district judge deemed

the defendant’s previous conviction of aggravated battery in violation of Illinois law a “crime of violence” within the meaning of section 4B1.2(a) of the
2 No. 08-2424

federal sentencing guidelines. The appeal challenges that

ruling.

Under Illinois law, “a person commits battery if he

intentionally or knowingly without legal justification and

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 ILCS 5/12-3(a). He

commits “aggravated battery” (so far as relates to this

case) if in addition he “knows the individual harmed is

pregnant.” 720 ILCS 5/12-4(b)(11). The defendant had

been indicted for having “knowingly and without legal

justification, made contact of an insulting or provoking

nature with April Lauderdale, in that the defendant

pushed April Lauderdale, knowing April Lauderdale to

be pregnant.” He pleaded guilty, admitting the following

facts: at 10 p.m. one night he entered the apartment of

Lauderdale, four months pregnant by him, and accused

her of sleeping with other men. He began carrying things

out of the apartment, including a television set. She

locked the door to keep him from returning and taking

more stuff out but he kicked in the door, “grabbed

Ms. Lauderdale by the face and pushed her down to

the floor. He then yelled for the two girls [who had accompanied him on the visit to the apartment, but were

outside] to come inside and, quote, kick this bitch’s ass.”

Lauderdale grabbed a knife and stabbed the defendant,

and he left, saying, “I pushed her down, and she stabbed

me.”

So was his conviction of “aggravated battery” a conviction of a “crime of violence”? It was if the crime
No. 08-2424 3

of which he was convicted has “as an element the use,

attempted use, or threatened use of physical force

against the person of another,” U.S.S.G. § 4B1.2(a)(1), or

is “burglary of a dwelling, arson, or extortion, involves

use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another.” § 4B1.2(a)(2). (These definitions are identical

to those found in the Armed Career Criminal Act,

18 U.S.C. § 924(e)(2)(B), another basis for increasing

a federal defendant’s sentence because of previous convictions, except that the statutory definition leaves out “of

a dwelling.”) The crime of which the defendant had

been convicted does not fit the first subsection quoted

above. The use, etc., of “physical force” is not an

element of that crime, since all that that crime requires is

proof of making an “insulting or provoking” physical

contact with a woman known to be pregnant. The

question is whether the defendant’s crime fitted the

second subsection (“conduct that presents a serious

potential risk of physical injury to another”).

The terms “insulting” and “provoking” are taken from

the common law tort of battery, which requires only an

offensive contact—the sort of thing that might provoke

a breach of the peace, as it did here: the provoker was

stabbed by his victim. Spitting on a person is the usual

example given of a provoking act that amounts to battery. E.g., Alcorn v. Mitchell, 63 Ill. 553 (1872); Cohen v.

Smith, 648 N.E.2d 329, 331-33 (Ill. App. 1995); Caudle v.

Betts, 512 So.2d 389, 391-92 (La. 1987); see also W. Page

Keeton et al., Prosser and Keeton on the Law of Torts § 9, p. 41-

42 (5th ed. 1984); Restatement (Second) of Torts § 19 and
4 No. 08-2424

comment a (1965). And so if you deliberately spit on a

pregnant woman you are guilty of the crime of aggravated

battery in Illinois, People v. Dorn, 883 N.E.2d 584, 588-89

(Ill. App. 2008); People v. Johnson, 807 N.E.2d 693, 695-97

(Ill. App. 2004); People v. Peck, 633 N.E.2d 222 (Ill. App.

1994), even though spitting does not involve “physical

force” or inflict bodily harm. Garcia-Meza v. Mukasey, 516

F.3d 535, 537 (7th Cir. 2008).

To fall under the second subsection of section 4B1.2(a)

of the guidelines, the crime must be similar to the

offenses listed in that subsection—similar, that is, to

burglary of a dwelling, arson, extortion, any crime that

involves the use of explosives, or any other crime that

presents a serious risk of physical injury. Begay v. United

States, 128 S. Ct. 1581, 1585 (2008); James v. United States, 550

U.S. 192, 203-09 (2007). Merely careless (even though

criminal and dangerous) conduct will not suffice, however. Begay v. United States, supra, 128 S. Ct. at 1586-

88; United States v. Woods, No. 07-3851, 2009 WL 2382700, at

*7-8 (7th Cir. Aug. 5, 2009). That is not a problem

in this case; the Illinois statute requires that the

defendant’s “insulting or provoking” physical contact

with the victim be intentional or, what amounts to the

same thing, knowing. See, e.g., United States v. Holland, 831

F.2d 717, 722-23 (7th Cir. 1987). But an “insulting or

provoking” physical contact, though intentional, could

be no more violent than spitting, and a battery that

consists merely of deliberately spitting on someone is not

comparable to burglary, arson, extortion, or a crime

involving the use of explosives. Nor could it be said to

present a serious risk of physical injury, United States v.
No. 08-2424 5

Jones, 235 F.3d 342, 346-48 (7th Cir. 2000), though some

courts would disagree, most clearly the Tenth Circuit. See

United States v. Paxton, 422 F.3d 1203, 1205-07 (10th Cir.

2005).

Although the words “insulting or provoking” make

it sound as if all that the Illinois legislature had in mind

is the kind of light offensive touching familiar from

civil battery cases, the Illinois courts have held that it

embraces more forceful blows as well, the kind that as

in this case can knock a person to the ground. Allstate

Ins. Co. v. Kovar, 842 N.E.2d 1268, 1270-71 (Ill. App. 2006);

People v. Young, 840 N.E.2d 825, 832-33 (Ill. App. 2005); cf.

People v. Reynolds, 832 N.E.2d 512, 517 (Ill. App. 2005).

Were it not for this judicial gloss, the aggravatedbattery statute would fail to reach a class of batteries that

is at least as serious as the ones it does reach. Kissing a

pregnant woman knowing she didn’t want to be kissed

is an aggravated battery. But if the statute is confined

to physical contacts that, like kissing, do not inflict any

bodily harm, then if the defendant’s victim did not

belong to any of the vulnerable groups enumerated in

720 ILCS 5/12-4(b) he would not be guilty of aggravated

battery even if instead of kissing her he beat her up,

provided only that he did not cause “great bodily harm, or

permanent disability or disfigurement.” § 12-4(a).

Thus, the same statute, the same form of words, embraces two crimes: offensive battery, and forcible battery.

If the two crimes were in separate sections of the

battery statute (or within the same section but listed

separately, Nijhawan v. Attorney General, 129 S. Ct. 2294,
6 No. 08-2424

2299 (2009), as would be the case if the same section

punished “insulting a pregnant woman” and “beating a

pregnant woman”), and the defendant were convicted

of violating the section punishing forcible battery, the

fact that another section punished a battery that was not

forcible and therefore not a crime of violence under

federal law would be irrelevant. But in United States v.

Woods, supra, another panel of this court has held that

when a statute fails to place the crime that is a crime of

violence, and the crime that is not a crime of violence,

in separate sections (or in a list of separate crimes in the

same section), the defendant cannot be given the crime-ofviolence enhancement. There is an exception if the “generic” crime (that is, the crime of conviction, here an

insulting and provoking physical contact with a pregnant

woman) as generally committed is violent. See id. at *7. But

the government doesn’t argue that most insulting or

provoking conduct with a pregnant woman is violent, as

the conduct in the present case was, and so the sentence cannot be upheld on that basis.

Woods was circulated to the full court in advance of

issuance, and a majority voted not to hear the case en banc.

Woods governs, and requires that the defendant be

resentenced. His sentence is therefore

VACATED.
No. 08-2424 7

P OSNER , Cir c u i t J udg e , wi t h w hom

Chief Judge EASTERBROOK joins, concurring. The Woods

decision compels reversal, but I do not agree that the

rule it lays down is sound. The rule is that if a statute

punishes two crimes, one a crime of violence, one not,

under the same name (in this case, “aggravated battery”

defined as intentionally or knowingly making physical

contact of an insulting or provoking nature with a

pregnant woman), the defendant cannot be given the

sentencing guidelines’ crime-of-violence enhancement

unless the statute is generally violated by the crime of

violence. It is not enough that, as in this case, as the per

curiam opinion makes clear, the defendant committed

the “crime of violence” version of the statutory offense,

the statutory defense being battery of a pregnant woman.

A sentencing judge is not permitted to base a recidivist

enhancement on conduct that violates a statute other

than the one the defendant had been charged with violating. The judge is not to base the sentence on his “own

conception of the offense actually constituted by the

defendant’s conduct.” Stephen J. Schulhofer, “Due Process

of Sentencing,” 128 U. Pa. L. Rev. 733, 757 (1980). He is not

to “consider the nature and characteristics of the criminal conduct involved without regard to the offense

charged.” Michael H. Tonry, “Real Offense Sentencing: The

Model Sentencing and Corrections Act,” 72 J. Crim. L. &

Criminology 1550, 1555-56 (1981) (emphasis in original).

Suppose, therefore, that Evans had been indicted and

convicted of simple larceny based on his theft of Lauderdale’s television set, and at the guilty-plea hearing the
8 No. 08-2424

prosecutor described the circumstances surrounding the

theft, including the pushing of Lauderdale, and the

defendant admitted under oath that the circumstances

had been exactly as the prosecutor described. Nevertheless the district judge, in applying the guidelines in

the present case, would not have been authorized to

treat the defendant’s conviction of simple larceny (akin

to stealing a bicycle from a bicycle stand, the owner

being nowhere in sight) as a conviction of a crime of

violence within the meaning of the sentencing guidelines. He would have to treat it as a conviction for a

nonviolent crime because that was the only crime the

defendant had been convicted of. See United States v.

Lewis, 405 F.3d 511, 513-15 (7th Cir. 2005); United States v.

Bartee, 529 F.3d 357, 360-61 (6th Cir. 2008). Having determined that the defendant had been convicted of a nonviolent crime, the judge could not go on to consider how the

defendant had committed that crime, and, if he had used

violence in the commission of it, enhance the sentence

accordingly.

But since the statutory term “insulting or provoking”

covers a range of kinds or concepts of battery, some of

which create a serious risk of injury and some of which

do not, and the indictment or other charging document

does not indicate where in the range the defendant’s

conduct fell, we can look at the record of the guilty-plea

hearing to disambiguate the application of statute to the

case. In Shepard v. United States, 544 U.S. 13 (2005), the

Supreme Court ruled that if burglary under state law

includes entry into a boat, but “crime of violence” for

purposes of the Armed Career Criminal Act requires
No. 08-2424 9

entry into a building, the sentencing judge can, and in

fact has to, look to the guilty-plea hearing to determine

whether the defendant admitted to entering a building. See

also Taylor v. United States, 495 U.S. 575, 602 (1990); Chambers v. United States, 129 S. Ct. 687 (2009); United States v.

Smith, 544 F.3d 781, 786-87 (7th Cir. 2008); United States v.

Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008); United States v.

Rosa, 507 F.3d 142, 151-54 (2d Cir. 2007).

Shepard was a case in which the same state criminal

statute punished both conduct that was not a crime of

violence under federal law and conduct that was: punished, in effect, two crimes, and the question was which

the defendant had committed. To answer that question

required knowing what the defendant had done. Admissions in a guilty-plea hearing, being judicial admissions,

bind the defendant in subsequent proceedings and so

avoid any occasion for the federal sentencing judge to

determine contested facts regarding an earlier crime for

purposes of deciding which niche it fits in—the offense

that is not a crime of violence or the offense that is, both

being covered by the same statutory language. Brown v.

Green, 738 F.2d 202, 206 (7th Cir. 1984); Huerta-Guevara v.

Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003). The making of

such a factual determination would be objectionable as

requiring trials within sentencing hearings and (if the

result was to increase the maximum punishment of the

defendant) infringing the right to trial by jury conferred

by the Sixth Amendment. Taylor v. United States, supra, 495

U.S. at 600-02; United States v. Shannon, 110 F.3d 382, 384-

85 (7th Cir. 1997) (en banc); United States v. Browning, 436

F.3d 780, 780-82 (7th Cir. 2006); United States v. Rosa, supra,
10 No. 08-2424

507 F.3d at 152-53. The question in this case as in Taylor

is not what the defendant did—that is not in dispute—but

what crime he was convicted of. “Congress intended

the sentencing court to look only to the fact that the

defendant had been convicted of crimes falling within

certain categories, and not to the facts underlying the

prior convictions.” 495 U.S. at 600.

It is the same here. A single statutory provision creates

crimes both within the federal domain and outside it. In

Chambers v. United States, supra, the two crimes were

breaking out of a jail and failing to report for weekend

confinement, and the Court held that the latter was not

a crime of violence. In this case, the two crimes are a

battery that causes or threatens physical injury and a

battery that involves just an offensive touching and is

punished not because it causes or even creates a risk of

physical injury but because it might provoke a breach of

the peace by the victim. The former but not the latter

offense fits the definition of violent felony.

I cannot see what difference it makes that these crimes

are not in separate sections of the battery statute. The

division of a statute into sections has never been

regarded as having substantive significance; it is merely

a device for ease of reference. No Supreme Court decision attaches significance to the presence or absence of

sections. If the same section covers two crimes, the court

can look at the conceded facts of the defendant’s conduct to determine which crime the defendant committed. The “categorical” approach requires the court to

identify the crime committed by the defendant and to
No. 08-2424 11

stop there and not consider how he committed it—whether

for example he committed a crime in a violent manner

though violence was not an element of the crime. That

limitation upon the court’s inquiry does not make “category” a synonym for “section.”

Since the indictment doesn’t indicate which kind of

battery the defendant committed, we may look behind

the indictment to the factual allegations that the

defendant admitted in pleading guilty, and when we

do this we learn that he not only shoved a pregnant

woman to the ground but by shouting for “the girls” to

beat her up made her fear a more serious physical

injury—and the combination of physical force and fear

of serious injury could induce a miscarriage. Cf.

Brownback v. Frailey, 78 Ill. App. 262 (Ill. App. 1898); Engle

v. Simmons, 41 So. 1023, 1023-24 (Ala. 1906); Whitsel v.

Watts, 159 P. 401, 401-02 (Kan. 1916); Kirby v. Jules Chain

Stores Corp., 188 S.E. 625 (N.C. 1936). In the language of

the guideline, the defendant created “a serious potential

risk of physical injury to another.”

In Taylor the Supreme Court said that “in a State

whose burglary statutes include entry of an automobile

as well as a building, if the indictment or information

and jury instructions show that the defendant was

charged only with a burglary of a building, and that the

jury necessarily had to find an entry of a building to

convict, then the Government should be allowed to use

the conviction for enhancement.” 495 U.S. at 602. If for

“burglary” we substitute “battery,” for “automobile” a

merely “offensive” touching, and for “building” creating
12 No. 08-2424

a risk of physical harm by shoving a pregnant woman to

the ground, we have this case.

Both in Shepard and in Chambers the two crimes that the

Supreme Court considered were found in the same statutory section. 720 ILCS 5/12-4(b)(11) likewise punishes

two separate crimes (so far as bears on this case)—offensive physical contact with a pregnant woman that does,

and that does not, inflict bodily harm, We need to look

to the charging document and the guilty-plea hearing

to determine, on the basis of the defendant’s admission,

which crime he was convicted of. As shown in the

charging papers and plea colloquy, he was convicted of

the type of aggravated battery under Illinois law that

fits within the generic federal definition of crime of violence. His sentence was therefore proper.

But since a majority of the court has voted not to rehear

Woods, I bow to its precedential force and thus agree

that the defendant’s sentence must be vacated.

8-13-09