# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 21, 2017 *

Decided February 23, 2017

Before

DIANE P. WOOD, Chief Judge

RICHARD A. POSNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 16

‐ 1280

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

J AMAR BAILEY,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 13 CR 645

‐ 1

Virginia M. Kendall,

J udge

.

O R D E R

Jamar Bailey pleaded guilty to distributing heroin, 21 U.S.C. § 841(a)(1), and was

sentenced to 120 months’ imprisonment as a career offender, see U.S.S.G. § 4B1.1. In this

direct appeal, he argues that he is not a career offender because, he says, his Illinois

convictions for aggravated battery are not crimes of violence for purposes of the career

offender guideline. We reject this contention and affirm Bailey’s sentence.

* We have agreed to decide this case without oral argument because the issues

have been authoritatively decided. F ED

. R. A PP

. P. 34(a)(2)(B). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 16

‐ 1280 Page 2

Bailey sold 9.9 grams of heroin to an informant. The probation officer identified

three prior convictions making Bailey a career offender (though only two qualifying

convictions are necessary, see U.S.S.G. § 4B1.1(a)). Two of those convictions are Illinois

felony convictions for aggravated battery, 720 ILCS 5/12

‐ 4(a) (1998) (currently codified

as amended at 720 ILCS 5/12

‐ 3.05). In his plea agreement Bailey stipulated that these

battery convictions are for crimes of violence, and at sentencing the district court

adopted the probation officer’s finding that Bailey is a career offender. The court

calculated an imprisonment range of 151 to 188 months based on Bailey’s status as a

career offender. The court sentenced Bailey below that range, however, reasoning that

the guidelines range was too high for someone Bailey’s age, then 36.

With new counsel on appeal, Bailey ignores the concession in his plea agreement

and argues for the first time that aggravated battery under § 5/12

‐ 4(a) is not a “crime of

violence” as defined by U.S.S.G. § 4B2.1(a)(1). The Supreme Court in Johnson v.

United States interpreted “physical force” as used in the Armed Career Criminal Act,

18 U.S.C. 924(e)(2)(B)(i), to mean violent force, “that is, force capable of causing physical

pain or injury.” 599 U.S. 133, 140–42 (2010). We subsequently applied Johnson to

conclude that the residual clause in § 4B1.2 is unconstitutionally vague, see United States

v. Hurlburt

, 835 F.3d 715, 725 (7th Cir. 2016), a question now pending before the

Supreme Court in Beckles v. United States

, No. 15

‐ 8544. The Illinois statute penalizes the

commission of a battery that “causes great bodily harm” or permanent injury, and

Bailey contends that a battery resulting in “great bodily harm” can be committed

without using force. The government responds to the merits of this argument, even

though it would seem to be waived by Bailey’s contrary stipulation in his plea

agreement. See United States v. Hible

, 700 F.3d 958, 962 (7th Cir. 2012) (observing that

defendant who agreed to total offense level calculated by probation officer waived

argument that his sentence should have been calculated consistent with Fair Sentencing

Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372); United States v. Harris

, 230 F.3d 1054,

1058–59 (7th Cir. 2000) (concluding that defendant’s stipulation waived argument that

he should receive guidelines downward adjustment).

We already have concluded that the phrase “causes bodily harm” in the Illinois

statutes defining battery and domestic battery means force that would satisfy Johnson ’s

requirement of violent physical force. De Leon Castellanos v. Holder

, 652 F.3d 762, 766–67

(7th Cir. 2011) (discussing domestic battery under 720 ILCS 5/12

‐ 3.2); United States v.

Rodriguez

‐ Gomez

, 608 F.3d 969, 973–74 (7th Cir. 2010) (discussing battery under 720 ILCS

5/12

‐ 3(a)(i)); see United States v. Waters

, 823 F.3d 1062, 1065 (7th Cir.), cert. denied

,

137 S.Ct. 569 (2016) (declining to overturn De Leon Castellanos ). Bailey does not identifyNo. 16

‐ 1280 Page 3

any legal development that would justify overturning these decisions, in particular

where, as here, our review is for plain error. See United States v. Ikegwuonu

, 826 F.3d 408,

410 (7th Cir. 2016) (observing that the court will not overturn precedent “absent

compelling reasons”). Indeed, all three opinions conclude that “bodily harm” alone

denotes violent physical force, while aggravated battery under § 5/12

‐ 4(a) requires

evidence of “ great bodily harm.” See Illinois v. Mandarino

, 994 N.E.2d 138, 172 (Ill. App.

Ct. 2013) (stating that aggravated battery requires injury “of a greater and more serious

nature” than “simple battery”). Bailey glosses over this heightened element of harm.

AFFIRMED.