In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-3068 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ELLECK CHRISTOPHER VESEY, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Central District of Illinois. 

No. 4:18-cr-40048-SLD-1 — Sara Darrow, Chief District Judge. 

____________________ 

ARGUED MAY 20, 2020 — DECIDED JULY 21, 2020 

____________________ 

Before SYKES, Chief Judge, and RIPPLE and KANNE, Circuit 

Judges. 

RIPPLE, Circuit Judge. Elleck Christopher Vesey pleaded 

guilty to being a felon in possession of a firearm in violation 

of 18 U.S.C. § 922(g). He was sentenced to 72 months’ imprisonment. He now challenges his sentence, contending 

that the district court based its sentencing calculations on an 

erroneous determination that his prior conviction for Illinois 

aggravated assault was a “crime of violence” within the 
2 No. 19-3068 

meaning of the United States Sentencing Guidelines. Because 

the district court correctly classified Mr. Vesey’s prior conviction as a crime of violence, we affirm the judgment of the 

district court. 

I 

BACKGROUND 

Mr. Vesey was a passenger in a vehicle that was stopped 

by police when its driver failed to signal. The driver, whose 

license was revoked, was arrested. Officers conducted an inventory search of the car and discovered a baggie of marijuana on the driver’s side and a white plastic bag on the passenger’s side. After Mr. Vesey identified the white plastic 

bag as his, an officer stated that he needed to search the bag. 

Mr. Vesey fled from the vehicle, tripped after running a 

short distance, and was arrested. The white plastic bag contained a loaded firearm. 

Mr. Vesey pleaded guilty to being a felon in possession 

of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). 

Prior to sentencing, the Probation Office prepared a presentence investigation report (“PSR”). The PSR calculated a base 

offense level of 20 because Mr. Vesey had a prior conviction 

for a crime of violence, namely, Illinois aggravated assault 

under 720 ILCS 5/12-2. According to the PSR, Mr. Vesey 

“swung a shower rod at Christopher Serra, a correctional officer performing his official duties ... .”1

 

After subtracting 3 levels for acceptance of responsibility, 

the PSR calculated a total offense level of 17. Based on this 

1 R.19 at 12. 
No. 19-3068 3

offense level and a criminal history category of VI, the 

guidelines range was 51 to 63 months’ imprisonment. 

Mr. Vesey objected, contending that his prior conviction was 

not a “crime of violence” and that, therefore, his base offense 

level should have been 14 rather than 20. The district court 

overruled the objection. It held that Mr. Vesey’s aggravated 

assault conviction was a crime of violence and that the applicable guidelines range was 51 to 63 months’ imprisonment. 

The court then turned to the 18 U.S.C. § 3553(a) factors. It 

noted Mr. Vesey’s extensive criminal history and described 

him as “an absolute risk to the public.”2

 It then explained: 

And even if my legal analysis on determining 

whether that prior aggravated assault is a 

crime of violence to raise your base offense 

level up to the 20 from the 14 and yield the—

and result in the 51 to 63 is wrong, I still think 

based on the 3553(a) factors that I’ve commented on thus far, specifically your personal history and characteristics and your risk to recidivate because you’ve been undeterred by any 

prior sentences, fully supports at least a range 

there independent of any of the guideline calculations. So, I think you get there, whether it’s 

under my legal ruling in resolving the objec2 R.32 at 33–34. 
4 No. 19-3068 

tion to the guidelines but also under the 

3553(a) factors.3

 

The court ultimately imposed an above-guidelines sentence 

of 72 months’ imprisonment. Mr. Vesey timely appealed. 

II 

DISCUSSION 

A. 

Under § 2K2.1(a)(4)(A) of the Guidelines, a defendant 

faces increased penalties if he has a prior conviction for a 

“crime of violence.”4

 Although that section does not define 

the term, the application notes provide that it “has the meaning given that term in § 4B1.2(a) and Application Note 1 of 

the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1 cmt. 1. To 

qualify as a crime of violence under § 4B1.2(a)—and, therefore, under § 2K2.1—an offense must be 

any offense under federal or state law, punishable by imprisonment for a term exceeding one 

year, that— 

3 Id. at 34. 

4 As relevant here, § 2K2.1 outlines base offense levels for firearms offenses involving the unlawful receipt, possession, or transportation of 

firearms or ammunition. A base level of 20 is assessed if “the defendant 

committed any part of the instant offense subsequent to sustaining one 

felony conviction of either a crime of violence or a controlled substance 

offense.” U.S.S.G. § 2K2.1(a)(4)(A). 
No. 19-3068 5

(1) has as an element the use, attempted use, or 

threatened use of physical force against the 

person of another, or 

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or 

unlawful possession of a firearm described in 

26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). 

U.S.S.G. § 4B1.2(a). The first of these clauses is referred to as 

the “elements clause”; the second is the “enumerated offenses clause.” It is undisputed that Mr. Vesey’s conviction for 

Illinois aggravated assault does not constitute aggravated 

assault under the enumerated offenses clause. The only 

question presented before us is whether his prior conviction 

is a crime of violence under the elements clause, that is, 

whether it is an offense that “has as an element the use, attempted use, or threatened use of physical force against the 

person of another.” We review de novo the question whether a prior conviction qualifies as a crime of violence under 

the Guidelines. United States v. Edwards, 836 F.3d 831, 834 

(7th Cir. 2016). 

B. 

We employ the categorical approach to determine 

whether an offense is a crime of violence for Guidelines purposes. See, e.g., United States v. Montez, 858 F.3d 1085, 1092 

(7th Cir. 2017); see also United States v. Taylor, 630 F.3d 629, 

633 n.2 (7th Cir. 2010) (explaining that courts apply the categorical approach to the Armed Career Criminal Act and the 

Guidelines in the same manner). That is, we consider wheth-
6 No. 19-3068 

er the elements of the offense match the definition of a crime 

of violence without looking to the specific underlying facts 

of the conviction. See Taylor v. United States, 495 U.S. 575, 

600–02 (1990). 

1. 

We first determine whether the statute in question is “indivisible,” meaning it contains a single set of elements, or 

“divisible,” meaning it contains multiple alternative elements. Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016). 

If a statute is indivisible, our analysis is straightforward. We 

then “line[] up that crime’s elements alongside those of the 

generic offense and see[] if they match.” Id. at 2248; see Montez, 858 F.3d at 1092 (explaining that when used in the context of the elements clause, a court compares the offense’s 

elements to the definition of a “crime of violence”). 

If a statute is divisible, we must take an extra step and 

determine which of the alternative elements applies. To 

complete the task, “a sentencing court looks to a limited 

class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine 

what crime, with what elements, a defendant was convicted 

of.” Mathis, 136 S. Ct. at 2249 (citing Shepard v. United States, 

544 U.S. 13, 26 (2005)). After looking at the Shepard documents, a court can determine whether an offense is a “crime 

of violence.” Id.5

5 In Shepard v. United States, 544 U.S. 13, 26 (2005), the Supreme Court 

limited the class of documents “to the terms of the charging document, 

the terms of a plea agreement or transcript of colloquy between judge 

and defendant in which the factual basis for the plea was confirmed by 

(continued ... ) 
No. 19-3068 7

With this understanding of the categorical framework, 

we turn to an examination of the statute at issue here, the 

Illinois aggravated assault statute. The Illinois legislature has 

deemed assault to be “aggravated” when it is based on one 

of several aggravating conditions, including the status of a 

victim. Thus, as relevant here, assault is aggravated when 

the perpetrator “knows the individual assaulted to be ... [a] 

correctional officer or probation officer ... performing his or 

her official duties ... .” 720 ILCS 5/12-2(b)(5). The term “assault” is defined in a different section of the Illinois Criminal 

Code. An individual commits assault “when, without lawful 

authority, he or she knowingly engages in conduct which 

places another in reasonable apprehension of receiving a 

battery.” 720 ILCS 5/12-1. “A person commits battery if he or 

she knowingly without legal justification 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). 

Our precedent is clear—and the parties agree—that the 

Illinois battery statute is divisible. United States v. Lynn, 851 

F.3d 786, 797 (7th Cir. 2017) (applying the modified categorical approach). A conviction under the first clause of the statute has as an element the use, attempted use, or threatened 

use of force. Hill v. Werlinger, 695 F.3d 644, 649 (7th Cir. 

2012). A conviction under the second clause does not. Montez, 858 F.3d at 1092. 

( ... continued) 

the defendant, or to some comparable judicial record of this information.” 
8 No. 19-3068 

2. 

The district court examined the Shepard documents and 

determined that Mr. Vesey was convicted under the first 

part of the statute. It considered both the document filed by 

the Government informing the court of Mr. Vesey’s Illinois 

aggravated assault offense and the transcript of the plea colloquy in that state conviction. Although the documents 

made clear that he was convicted of placing a correctional 

officer in reasonable apprehension of receiving a battery, 

neither document specified explicitly whether that battery 

was bodily harm or physical contact of an insulting or provoking nature. The documents did, however, show that 

Mr. Vesey was convicted for an incident in which he, “in 

committing an assault ... , swung a shower rod at Christopher Serra, a correctional officer performing his official duties ... .”6

 It was noted during the plea colloquy that 

Mr. Vesey tore the shower rod from the wall before swinging it at Officer Serra.7

 Although Mr. Vesey objected to the 

classification of the offense as a crime of violence, he did not 

object to the facts as set forth in the Shepard documents. 

Mr. Vesey now contends that by looking at the facts of 

the incident, the district court did precisely what the categorical approach forbids: review the underlying facts of the 

conviction. We cannot accept this argument. It is true that 

“the underlying facts of the defendant’s conduct do not matter.” Van Cannon v. United States, 890 F.3d 656, 663 (7th Cir. 

6 R.21-1 at 1. 

7 R.21-2 at 10. 
No. 19-3068 9

2018).8

 A court may examine Shepard documents “only for the 

limited purpose of determining whether the elements of the 

crime of conviction match (or are narrower than) the elements of the generic offense.” Id. Here, the district court’s 

review of the Shepard documents was not improper. The 

court simply considered the undisputed facts to determine 

which prong of the battery statute formed the basis of the defendant’s conviction. As we have stated, “the additional materials permitted by Shepard may be used only to determine 

which crime within a statute the defendant committed, not 

how he committed that crime.” United States v. Woods, 576 

F.3d 400, 405 (7th Cir. 2009); see Montez, 858 F.3d at 1092–93 

(holding that a district court may rely on uncontested findings in the PSR to conclude that a defendant was convicted 

under the “bodily harm” clause of the Illinois aggravated 

battery statute). The district court here was entitled to use 

the Shepard documents to determine under which clause of 

the statute Mr. Vesey was convicted. 

Mr. Vesey nevertheless contends that the Government 

has not met its burden to show that his offense was a crime 

of violence. He submits that the documents do not conclusively establish that his conviction rested on the first prong 

of the battery statute, and not the second. He acknowledges 

that the Government has shown that he swung a shower rod 

at an officer. In his view, however, this concession does not 

settle the matter because of the lack of information regarding 

the distance between Mr. Vesey and the officer. As he sees it, 

8 See United States v. Franklin, 895 F.3d 954, 958 (7th Cir. 2018) (“Recall 

that under Taylor the actual facts of the underlying case are off-limits.”). 
10 No. 19-3068 

the lack of information on this point renders the nature of 

the interaction ambiguous; a close distance between the two 

would indicate that Mr. Vesey placed the officer in reasonable apprehension of bodily harm, but a farther distance 

would show that the officer’s apprehension of bodily harm 

was not objectively reasonable. 

This argument misses the mark. The distance between 

Mr. Vesey and the officer is irrelevant to the question 

whether Mr. Vesey was convicted under the first part of the 

statute or the second. Under either prong of the statute, 

Mr. Vesey had to be close enough for the officer to have a 

reasonable apprehension of some sort of physical touching 

by the defendant. 

C. 

Mr. Vesey brings one more challenge to the court’s decision to classify his prior conviction as a crime of violence. He 

submits that Illinois aggravated assault is categorically not a 

crime of violence because it does not require the State to 

prove the defendant’s specific intent. We rejected a similar 

argument in United States v. Campbell, 865 F.3d 853 (7th Cir. 

2017). There, the defendant argued that general intent crimes 

could not satisfy the Guidelines definition of a crime of violence. We noted that the Supreme Court had “never stated 

that general intent crimes could not constitute crimes of violence.” Id. at 857. We observed that Congress mandated enhancements for “‘purposeful, violent, and aggressive 

crimes’” to focus on offenders with “‘a high risk for recidivism and future violence.’” Id. (quoting Woods, 576 F.3d at 

411). The defendant’s conviction for bank robbery by intimidation was a “‘purposeful, violent, and aggressive crime’” 

despite the fact that it was a general intent crime. Id. The ab-
No. 19-3068 11

sence of a specific intent requirement did not disqualify the 

offense from being a “crime of violence.” Id.; see United States 

v. Williams, 864 F.3d 826, 829–30 (7th Cir. 2017). The same 

rationale applies here; that Illinois aggravated assault is a 

general intent crime does not prevent its classification as a 

crime of violence for Guidelines purposes. Mr. Vesey’s challenge therefore lacks merit.9

9 Finally, for the sake of completeness, we conclude that even if the district court’s classification of Mr. Vesey’s Illinois aggravated assault conviction was error, it was harmless error. “When we are convinced the 

sentence would have been the same absent the error, we deem the error 

harmless.” United States v. Glosser, 623 F.3d 413, 419 (7th Cir. 2010). At 

Mr. Vesey’s sentencing, the court made expressly clear that it would 

have imposed the same sentence regardless of whether it characterized 

the offense as a crime of violence. See supra p. 3. We have upheld a sentence improperly classifying an offense as a crime of violence when the 

district court “adequately explained that ... it would have imposed the 

same ... term of imprisonment ... regardless of whether [the offense] was 

classified a ‘crime of violence.’” United States v. Jackson, 549 F.3d 1115, 

1118 (7th Cir. 2008) (citations omitted). 

Mr. Vesey submits that, had the district court imposed the same sentence of 72 months even if the prior conviction was not a crime of violence, this would have been far higher than the guidelines range. (Without the increased base offense level for a crime of violence, the guidelines 

range would have been 30 to 37 months’ imprisonment.) He asserts that 

he likely would have challenged the reasonableness of the sentence. Yet 

the district court explained its reasons for the sentence it imposed, focusing on Mr. Vesey’s criminal history and the danger he posed to the public. Because the district court made clear that the sentence would have 

been the same even if Mr. Vesey’s prior conviction was not a “crime of 

violence,” any error would not have affected his sentence. See R.32 at 35 

(“I just cannot—I cannot, in good conscience, sentence you to something 

that would be less than necessary to protect the public from future 

crimes by you.”). 
12 No. 19-3068 

Conclusion 

We affirm the judgment of the district court. 

AFFIRMED