UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION

UNITED STATES OF AMERICA ) 

 ) 

 v. ) CAUSE NO.: 1:15-CR-28-TLS 

 ) 

TYRONE M. WRIGHT ) 

OPINION AND ORDER 

 The Defendant, Tyrone M. Wright, was charged with being a felon in possession of a 

firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(e). He moved to dismiss allegations 

contained in the Superseding Indictment [ECF No. 26]. Separately, the Defendant moved to 

suppress statements, and that Motion [ECF No. 22] was referred to Magistrate Judge Susan 

Collins. Judge Collins issued a Report and Recommendation [ECF No. 82] denying the 

Defendant’s Motion. For the reasons stated below, the Court denies the Defendant’s Motion to 

Dismiss and adopts the Report and Recommendation denying the Defendant’s Motion to 

Suppress. 

BACKGROUND 

 On May 27, 2015, the Government filed a one-count Indictment [ECF No. 1], superseded 

on October 28, 2015, charging the Defendant with being a convicted felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1). The one-count Superseding Indictment charged 

the Defendant with possessing a firearm on or about March 25, 2015. The Government also 

charged the Defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), 

which provides, in relevant part: “[i]n the case of a person who violates section 922(g) of this 

title and has three previous convictions . . . for a violent felony or a serious drug offense, or 

both, committed on occasions different from one another, such person shall be fined under this 
2 

title and imprisoned not less than fifteen years.” The Superseding Indictment included the 

following predicate offenses for an enhanced punishment under § 924(e): 

On or about September 24, 2007, the [D]efendant was convicted in the Superior Court of 

Allen County, Fort Wayne, Indiana, in Cause No. 02D04-0703-FC-48, of Battery, a Class 

C Felony, and Burglary, a Class B Felony; and 

On or about January 3, 2001, the [D]efendant was convicted in the Superior Court of 

Allen County, Fort Wayne, Indiana, in Cause No. 02D04-0006-CF-320, of Dealing in 

Cocaine or Narcotic Drug, a Class B Felony; and 

On or about February 10, 1994, the [D]efendant was convicted in the St. Joseph County 

Superior Court, South Bend, Indiana, in Cause No. 71D019306CF00562, of Conspiracy 

to Deal in Cocaine and Dealing in Cocaine, a Class B Felony. 

(Superseding Indictment 1, ECF No. 26.) 

On October 21, 2015, the Defendant filed a Motion to Suppress Statements, arguing that 

they were taken in violation of the Fifth, Sixth, and Fourteenth Amendments. The Government 

filed its Response in Opposition [ECF No. 35] on November 30, 2015. In addition, the 

Defendant requested an evidentiary hearing on his Motion, which Judge Collins conducted on 

June 8, 2016. After the hearing, the parties submitted additional briefing on the Motion. On 

October 21, 2016, Judge Collins issued her Report and Recommendation in which she 

recommended that the Defendant’s Motion be denied. Neither party filed an objection to the 

Report and Recommendation within the time specified for doing so. 

On August 25, 2016, the Defendant moved to dismiss the 18 U.S.C. § 924(e) allegations 

contained in the Superseding Indictment. Citing to recent United States Supreme Court decisions 

in Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. 

Ct. 2243 (2016), the Defendant argued that he lacked the requisite number of violent felonies as 

defined under the ACCA to receive an enhancement. The Government argued that Johnson did 

not invalidate the Defendant’s convictions for ACCA enhancement purposes. Neither party 
3 

asserted that an evidentiary hearing was required for the Court to rule on the Defendant’s 

Motion. 

MOTION TO DISMISS 

 The Defendant challenges the use of his 2007 conviction as a predicate offense under the 

ACCA. In the Superseding Indictment, the 2007 conviction stated: 

On or about September 24, 2007, the [D]efendant was convicted in the Superior Court of 

Allen County, Fort Wayne, Indiana, in Cause No. 02D04-0703-FC-48, of Battery, a Class 

C Felony, and Burglary, a Class B Felony 

(Superseding Indictment 1.) If either his conviction for Battery or Burglary qualifies as a 

predicate offense under the ACCA, then the Court will deny the Defendant’s Motion to Dismiss 

the allegations contained in the Indictment. 

Under the ACCA, a “‘violent felony’ means any crime punishable by imprisonment for a 

term exceeding one year . . . that—” 

(i) has as an element the use, attempted use, or threatened use of physical force against 

the person of another; or 

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves 

conduct that presents a serious potential risk of physical injury to another . . . . 

18 U.S.C. § 924(e)(2)(B)(emphasis added). The italicized portion of the statute, known as the 

residual clause, was held unconstitutional. Samuel Johnson, 135 S. Ct. at 2557–58, 2563. 

Therefore, if a defendant is sentenced under the ACCA, his previous convictions must qualify 

under the force clause, § 924(e)(2)(B)(i), or the four enumerated offenses, id. § (ii); Samuel

Johnson, 135 S. Ct. at 2563. 

The Supreme Court has outlined two permissible ways for a federal sentencing court to 

determine if a prior conviction counts as a violent felony under the ACCA: the “categorical 
4 

approach” and the “modified categorical approach.” See Mathis, 136 S. Ct. at 2251–54; 

Descamps v. United States, 133 S. Ct. 2276, 2283–85 (2013). 

 The categorical approach is the primary method for considering whether a previous 

conviction qualifies as an ACCA predicate offense. The sentencing court “looks at the elements 

of the statute of conviction to determine if it has as an element the use, attempted use, or 

threatened use of physical force against the person of another.” United States v. Yang, 799 F.3d 

750, 752 (7th Cir. 2015) (quotation marks omitted). The court may only use two tools for this 

task—the statute’s text and the judgment. Id. If the statute sets out elements, then the sentencing 

court must decide, based on those alone, if the statute describes a violent felony for purposes of 

the ACCA. Id. The sentencing court is not permitted to look to outside materials in making this 

determination. Id. 

 By contrast, a statute will sometimes be “divisible” and list alternative methods of 

committing one offense (elements in the alternative). Mathis, 136 S. Ct. at 2256; Yang, 799 F.3d 

at 753 (emphasis added). Some of the alternative methods may qualify as a violent felony under 

the ACCA, but some may not. If not all the statute’s alternatives would qualify and the judgment 

merely identifies the statute of conviction, then the court uses the modified categorical approach. 

Yang, 799 F.3d at 753. Under the modified categorical approach, the sentencing court is 

permitted to look to outside documents,1

 such as “charging documents, plea agreements, jury 

instructions, plea and sentencing transcripts, and findings of fact and conclusions of law from a 

bench trial” for the limited purpose of determining which alternative served as the basis of the 

                                                             1

 These are referred to as “Shepard documents” after Shepard v. United States, 544 U.S. 13 

(2005). 
5 

defendant’s conviction. Id.2 In considering this, the court is only deciding whether the actual 

statute of conviction qualified as a violent felony for ACCA purposes. Id. Once more, the 

sentencing court is prohibited from looking beyond the crime’s elements to determine the facts 

underlying the defendant’s conviction. Id. 

The parties dispute whether Indiana’s battery statute is divisible or indivisible. The 

Government argues that whether or not the statute is divisible or indivisible, it qualifies as a 

violent felony for purposes of the ACCA. The Defendant seems to argue that Indiana felony 

battery is divisible, as that statute “does not require actions on the part of the defendant that 

would amount to a ‘violent felony.’” (Mot. Dismiss 9.) 

In Indiana, “[a] person who knowingly or intentionally touches another person in a rude, 

insolent, or angry manner commits battery, a Class B misdemeanor.” Ind. Code § 35-42-2-

1(a)(1).3

 The offense is elevated to: 

(3) a Class C felony if it results in serious bodily injury to any other person or if it is 

committed by means of a deadly weapon; . . . 

(6) a Class C felony if it results in serious bodily injury to an endangered adult . . . . 

Id. § 35-42-2-1(a)(3), (a)(6) (citations omitted).4 The Court finds that Class C felony battery 

under Indiana law is a divisible statute. Class C felony occurs if either the battery results in 

serious bodily injury to any other person or an endangered adult, or if the battery is committed 

by means of a deadly weapon. The use of the disjunctive “or” shows that these are alternative 

                                                             2

 If the underlying judgment is so ambiguous that the court cannot even identify what the statute 

of conviction was, then the sentencing court may employ the modified categorical approach and use 

Shepard documents to determine that statute. Yang, 799 F.3d at 755. 

3

 The relevant statutory provision was recodified as § 35-42-2-1(c), effective July 1, 2016. The 

Court cites to the statutory provisions in effect on the date of the alleged offense. 

4

 Effective July 1, 2014, Indiana’s battery statute was amended, in relevant part, to designate each 

of these offenses as a “Level 5 felony,” rather than as “Class C” felonies. Act of May 6, 2013, Pub. L. 

158-2013, § 420. Otherwise, the relevant portion of the Indiana battery statute is unchanged from when 

the Defendant was convicted. See Pub. L. 2-2005, § 125; Pub. L. No. 148, sec. 2. 
6 

means to be convicted of Class C felony battery, similar to the burglary statute in Mathis. See 

136 S. Ct. at 2249–50 (noting that the statute “itemize[d] the various places that [burglary] could 

occur,” which was “any building, structure, [or] land, water, or air vehicle”). Further, the 

Supreme Court has intimated that Indiana Class C felony battery is a divisible statute that sets 

out elements in the alternative. See United States v. Castleman, 134 S. Ct. 1405, 1419 (2014) 

(Scalia, J., concurring in part and concurring in the judgment) (noting that Indiana felony 

burglary was one of 19 state “statutes . . . that prohibited both of types of conduct, but did so in a 

divisible manner—thus making it possible to identify the basis for a conviction by inspecting 

charging documents and similar materials”). 

Because the Court finds that Indiana’s Class C felony battery statute is divisible, the 

Court employs the modified categorical approach to determine which alternative under section 

35-42-2-1 was the basis for the Defendant’s prior conviction in this case. The Court is permitted 

to consider Shepard documents for the limited purpose of determining whether that specific 

alternative “has as an element the use, attempted use, or threatened use of physical force against 

the person of another,” § 924(e)(2)(B)(i), and thus qualifies as a violent felony. Prohibited from 

this inquiry is any consideration of the facts leading to the Defendant’s actual conviction. Yang, 

799 F.3d at 753. The Supreme Court instructs 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 (2010). 

Here, the charging documents show that the Defendant was convicted of Class C felony 

battery because his conduct “result[ed] in serious bodily injury to” any other person. (Am. 

Information Battery, ECF No. 81-2.) In Indiana, serious bodily injury “means bodily injury that 
7 

creates a substantial risk of death or that causes (1) serious permanent disfigurement; (2) 

unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the 

function of a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-41-1-25.5

 This 

specific element under subsection (a)(3) clearly satisfies the force clause because it involves “the 

use, attempted use, or threatened use of physical force against the person of another.” 

§ 924(e)(2)(B)(i);United States v. Davis, 545 F. App’x 513, 515 (7th Cir. 2013); cf. Yates v. 

United States, —F.3d— , 2016 WL 7030342, at *2 (7th Cir. Dec. 2, 2016) (holding that a 

conviction under Wisconsin law criminalizing battery by a prisoner was a violent felony under 

the ACCA). 

The Defendant disputes that the statute qualifies as a “violent felony” because one can be 

convicted of Class C felony battery if his conduct “results” in serious bodily injury without his 

conduct actually “causing” serious bodily injury. In support, he cites to United States v. Evans, 

576 F.3d 766 (7th Cir. 2009), which held that Illinois aggravated battery did not qualify as a 

violent felony for ACCA purposes. Id. at 769. But the Seventh Circuit has since limited Evans

given its procedural posture—the government “fail[ed] to argue that the predicate crime of 

conviction . . . [wa]s characteristically violent and aggressive.” See United States v. Capler, 636 

F.3d 321, 328 (7th Cir. 2011) (quoting Evans, 576 F.3d at 769) (“[T]he government doesn’t 

argue that most insulting or provoking conduct with a pregnant woman is violent, as the conduct 

in the present case was . . . .”) What is more, the Defendant’s argument conflates misdemeanor 

and felony battery. Misdemeanor battery only requires the “touch[ing of] another person in a 

rude, insolent, or angry manner,” Ind. Code § 35-42-2-1(a)(1), which can be conduct that does 

not rise to the level of “violent felony,” see Curtis Johnson, 559 U.S. at 138–45 (finding that a 

                                                             5

 Effective June 30, 2012, Indiana re-codified this definition in section 35-31.5-2-292 of the 

Indiana Code. 
8 

prior conviction for Florida misdemeanor battery was not a violent felony). But for felony 

battery, the Seventh Circuit has stated that “it is enough if the force is ‘capable of’ causing pain.” 

Yates, 2016 WL 7030342, at *1. Obviously, it is theoretically possible that the statute could 

reach conduct that “results” in serious bodily injury but is not “capable of” causing the same, but 

the Court is only required to consider “realistic probabilit[ies]” for the interpretation of criminal 

statutes. See Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). This distinction is not 

realistic. 

Because the Court finds that Class C felony battery is a “violent felony” under the 

ACCA, the Defendant’s prior conviction for Class C felony battery may serve as predicate 

offense in the charging instrument. Accordingly, the Motion to Dismiss the allegations contained 

in the Superseding Indictment is denied.6

MOTION TO SUPPRESS 

Under 28 U.S.C. § 636(b)(1)(A)–(B), a magistrate judge does not have authority to issue 

a final order on a motion to suppress evidence in a criminal case. Instead, the magistrate judge 

submits proposed findings of fact and recommendations to the district court. A party must submit 

written objections to the proposed findings and recommendations within fourteen days after 

being served with a copy. If a party files a timely objection to the magistrate judge’s report and 

recommendation, § 636(b)(1) provides that the district judge is to make a de novo determination 

of those portions of the report or specified proposed findings or recommendations to which 

                                                             6

 Both parties extensively briefed the question of whether the Defendant’s prior conviction for 

Class B burglary is a violent felony, and the Government also requested that this Court revisit its prior 

decision in United States v. Handshoe, No.: 1:15-CR-35, 2016 WL 4453242 (N.D. Ind. Aug. 24, 2016). 

This Court’s determination that the Defendant’s felony battery conviction qualifies as an ACCA predicate 

offense would render any ruling on his felony burglary conviction dicta. Thus, the Court declines the 

parties’ invitation to address the felony burglary conviction or reconsider Handshoe. 
9 

objection is made. The court may accept, reject, modify, in whole or in part, the findings or 

recommendations made by the magistrate judge. The judge also may receive further evidence or 

recommit the matter to the magistrate judge with instructions. 

As of the date of this Order, no objection to the Report and Recommendation has been

filed, and the time for making objections has now passed. The Court has reviewed the Report and

Recommendation submitted by Judge Collins and finds that her proposed disposition carefully 

considered the evidence presented at the hearing and does not contain legal error. Accordingly, 

the Court adopts the Report and Recommendation, and denies the Defendant’s Motion to 

Suppress Evidence. 

CONCLUSION 

 For the reasons stated above, the Defendant’s Motion to Dismiss [ECF No. 76] is 

DENIED. The Court ADOPTS the Magistrate Judge’s Report and Recommendation [ECF 

No. 82] and DENIES the Defendant’s Motion to Suppress Statements [ECF No. 22]. 

 SO ORDERED on December 19, 2016. 

 s/ Theresa L. Springmann 

 THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT