In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-3048

ROBERT YATES,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 16-cv-207-bbc — Barbara B. Crabb, Judge.

____________________

ARGUED NOVEMBER 29, 2016 — DECIDED DECEMBER 2, 2016

____________________

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. Thirteen years ago, Robert 

Yates was sentenced as an armed career criminal under 18 

U.S.C. §924(e). The district court concluded that he had six 

qualifying prior convictions; the statute provides that three 

or more require an enhanced sentence. After the Supreme 

Court held in Samuel Johnson v. United States, 135 S. Ct. 2551 

(2015), that the “residual clause” in §924(e)(2)(B)(ii) is unconstitutionally vague, and made that decision retroactive, 
2 No. 16-3048

Welch v. United States, 136 S. Ct. 1257 (2016), Yates filed this 

collateral attack. He contends that after Samuel Johnson only 

two qualifying convictions remain, so that 28 U.S.C. 

§2255(f)(3) restarts the time for collateral review. The prosecutor concedes that the petition is timely and that Samuel 

Johnson knocks out three of the six convictions but maintains

that Yates’s conviction of battery by a prisoner, in violation 

of Wis. Stat. §940.20(1), qualifies as a violent felony under 

the “elements clause” of §924(e)(2)(B)(i) because it “has as an 

element the use, attempted use, or threatened use of physical 

force against the person of another”. Samuel Johnson does not 

affect the elements clause of §924(e). See, e.g., Stanley v. United States, 827 F.3d 562 (7th Cir. 2016). The district court 

agreed with the prosecutor and dismissed this proceeding.

2016 U.S. Dist. LEXIS 79058 (W.D. Wis. June 17, 2016).

Under Taylor v. United States, 495 U.S. 575 (1990), and its 

successors, such as Descamps v. United States, 133 S. Ct. 2276 

(2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), a 

court must determine whether a conviction satisfies §924(e) 

or a similar recidivist statute by looking at the elements of 

the crime, no matter what the accused did in fact. We do not 

know what he did that led to the battery conviction, but the 

Supreme Court has held that the facts do not matter—indeed

that we are usually forbidden to know. See Shepard v. United 

States, 544 U.S. 13 (2005). The elements of the offense, not the 

facts of the crime, control. And the elements that matter are 

those applicable when the person committed the earlier offense. The elements of Wis. Stat. §940.20(1) and associated 

provisions have changed since Yates’s conviction for battery 

by a prisoner, so like the district court we refer to the state 

law in force at the time of his conviction.
No. 16-3048 3

Yates maintains that Wisconsin law did not make “the 

use, attempted use, or threatened use of physical force 

against the person of another” an element of the crime, given 

how the Supreme Court understood “force” in Curtis Johnson 

v. United States, 559 U.S. 133 (2010). The Florida offense at 

issue in Curtis Johnson prohibited “actually and intentionally 

touching” another person without consent and causing 

alarm or offense—a form of simple battery. Under that statute throwing a Nerf ball at someone who was hit and became frightened could be penalized. The Court held that 

such acts do not entail the use of “force” within the meaning 

of §924(e)(2)(B)(i) even though the impact of a Nerf ball conveys some “force” according to the laws of physics. Curtis 

Johnson 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. Yates tells us that 

Wisconsin’s battery-by-prisoner statute does not (well, did 

not) require the prosecutor to demonstrate that sort of force.

The statute on the books at the time provided:

Any prisoner confined to a state prison or other state, county or 

municipal detention facility who intentionally causes bodily 

harm to an officer, employee, visitor or another inmate of such 

prison or institution, without his or her consent, is guilty of a 

Class D felony.

And Wis. Stat. §939.22(4) added that bodily harm means 

“physical pain or injury, illness, or any impairment of physical condition”. That definition tracks what Curtis Johnson

said would suffice: “force capable of causing physical pain 

or injury to another person.” This led the district court to 

hold that Yates’s battery conviction satisfies the elements 

clause of §924(e).
4 No. 16-3048

Yates asks us not to take the statutory language at face 

value—because, he says, the state judiciary does not. He relies principally on State v. Higgs, 230 Wis. 2d 1 (App. 1999), 

which affirmed a conviction under this statute of a prisoner 

who threw a cup of urine at a guard. Yet the ground on 

which the court sustained this conviction—that the urine 

had in fact caused pain to the guard when it got into his eyes 

and nose—comes within the language of Curtis Johnson, 

which said that it is enough if the force is “capable of” causing pain. Yates 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. This state 

law therefore categorically is a crime of violence under the 

elements clause, and Yates was properly sentenced as a career criminal.

AFFIRMED