In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1479

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEANDRE R. HAMPTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 08-CR-20063—Michael P. McCuskey, Judge.

ARGUED MARCH 28, 2011—DECIDED MARCH 27, 2012

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Deandre Hampton was arrested

for unlawfully possessing a firearm as a felon after he

discarded a loaded handgun during a foot chase with

police in Kankakee, Illinois. At the jail Hampton signed

a Miranda waiver and began to give a statement, but

soon invoked his right to counsel. The Kankakee officers

halted the interview and summoned a guard to take

Hampton back to his cell. Hampton then changed his
2 No. 10-1479

mind and asked to speak with the officers without counsel present. The rest of the interview was

audiorecorded.

After new Miranda warnings, the officers again

asked Hampton if he wanted a lawyer. He replied, “Yeah,

I do, but you . . . .” On hearing this the officers reminded

him that they couldn’t talk if he was asking for counsel.

After a long pause, Hampton continued the conversation, hemming for a few minutes more before saying

unambiguously that he wanted to continue without a

lawyer. He then gave a statement denying the gun was

his, saying it belonged to an acquaintance who was at

the scene of the encounter with the police. Hampton

admitted that he held the gun for a moment before

the police arrived, but said he gave it back to the acquaintance and did not toss it during the foot chase.

Hampton was charged with one count of possession

of a firearm by a felon and as an armed career criminal

under the Armed Career Criminal Act (“ACCA”). See 18

U.S.C. §§ 922(g)(1), 924(e). He moved to suppress his

custodial statement, claiming that the officers violated

Miranda and Edwards by questioning him after he

invoked his right to counsel. See Edwards v. Arizona,

451 U.S. 477, 484-85 (1981); Miranda v. Arizona, 384 U.S.

436, 471-72 (1966). The district court denied the motion,

holding that (1) the officers appropriately stopped the

interview when Hampton asked for an attorney; and

(2) Hampton himself reinitiated the interview and did

not thereafter unequivocally invoke his right to counsel.

Hampton’s statement was admitted at trial, and a jury

found him guilty.
No. 10-1479 3

At sentencing the district court designated Hampton

as an armed career criminal based on three prior

felony convictions, including an Illinois aggravated

battery conviction for making “insulting or provoking”

physical contact with a peace officer. This triggered a

statutory minimum of 15 years, see id. § 924(e), a guidelines offense level of 33, see U.S.S.G. § 4B1.4(b)(3)(B), and

an advisory guidelines range of 235 to 293 months.

The district court settled on 252 months. Hampton appealed, challenging the denial of his suppression

motion and his designation as an armed career criminal.

We affirm the conviction but vacate the sentence and

remand for resentencing. The Kankakee officers did not

violate the Miranda/Edwards rule. They honored Hampton’s

initial request for counsel and immediately stopped

questioning him. Hampton himself reinitiated the interview, and the record supports the district court’s conclusion that he did not thereafter make an unambiguous

request for counsel as required by Davis v. United

States, 512 U.S. 452, 459 (1994). But Hampton does not

qualify as an armed career criminal. The Illinois crime

of making insulting or provoking physical contact with

a peace officer is not a violent felony under the ACCA.

I. Background

Shortly after midnight on September 25, 2008, Deandre

Hampton was standing with others outside a friend’s

apartment building on Wildwood Avenue in Kankakee

when two police patrol cars drove by. As the squads

approached, Hampton began to run into the apartment
4 No. 10-1479

building. Two officers gave chase and followed him

into the building; the apartment manager had previously

given them a key and permission to enter the building

to patrol the common areas. Once inside, the officers

saw Hampton running up a flight of stairs. One of the

officers ran after him; as the officer reached the top of the

first flight, he heard a thud on the second-floor landing

above him as if something heavy was dropped on the

floor. Hampton fled down a second staircase and ran

into the other officer, who intercepted and tried to stop

him. Hampton resisted, a scuffle ensued, and the two

tumbled down the stairs. In the meantime the first

officer retrieved a loaded semiautomatic handgun from

the second-floor landing in the path of Hampton’s

flight. After Hampton was subdued and handcuffed, the

officers took him to the hospital for treatment of minor

injuries sustained in the tussle and then to the county jail.

At the jail Sergeant Peter Nicholos and Lieutenant

Robin Passwater sought to question Hampton about the

gun, first giving him Miranda warnings. Hampton acknowledged that he understood his rights, signed a

waiver, and agreed to talk to the officers, but quickly

changed his mind and requested a lawyer. The officers

immediately halted the interview, and Nicholos left

the room to summon a correctional officer to escort

Hampton back to his jail cell. When the guard arrived,

Hampton changed his mind again and asked to talk

with the officers without an attorney present. At this

point Nicholos and Passwater decided to audiorecord

the remainder of the interview.
No. 10-1479 5

The account that follows is based on the transcript of the 1

interview and our review of the audiorecording, both of

which are part of the record on appeal. Unless indicated

otherwise, the quotes are presented as they appear in the

transcript, with original punctuation, including ellipses.

The interview resumed on tape. After new Miranda 1

warnings, the following exchange took place:

Passwater: Alright. Earlier, you told us you—

you—you were gonna talk about getting

a lawyer or whatever . . . do you want

a lawyer at this time?

Hampton: Yeah, I do, but you . . .

Passwater: Then I can’t talk to you, alright? We

can’t— I can’t take a statement from you

if you want a lawyer.

Five seconds of silence followed. Then Hampton spoke:

Hampton: But see, I’m askin’ you is this gonna

effect what’s goin’ on[?]

Passwater: To be honest, I don’t know—I mean . . .

Hampton: What does—what does me—my attorney

bein’ present has to do with it—you

know what I’m sayin’? That’s what I . . .

I don’t . . . that’s what ya’ll don’t understand . . . you makin’ me [. . .]

Passwater: If you want a lawyer then we need to

stop the deal, okay?

Hampton: See, I’m—
6 No. 10-1479

Passwater: It’s one way or another. OK?

Hampton: Yeah, come on man.

Passwater: All right.

Nicholos: Wanna go on?

Hampton: Go ahead.

The officers thereafter tried to clarify whether Hampton

wanted an attorney. Hampton asked again how an attorney’s presence would affect his situation. The officers

repeatedly explained that they could not continue the

interview if Hampton wanted a lawyer. They also told

him they could not promise him a deal and that the

decision whether to have a lawyer present was his.

When Hampton began venturing into the facts of the

case, the officers again pressed him to clarify whether

he wanted counsel:

Nicholos: Again, do you want an attorney here or

not? I mean, you asked for an attorney,

we have to get that cleared up before

we talk about anything. You know what

I’m saying?

Hampton: I think, I, I felt like it should have been

an attorney here cause that’s what

I asked for. You know what I’m saying?

Before we talked . . .

Nicholos: Then we’re done . . .

Hampton: Yeah[.]

Nicholos: You know what I’m saying? We’re not

going to sit here and play, you know . . .
No. 10-1479 7

Hampton: Naw, it’s, I don’t . . .

Nicholos: Cause you asked for an attorney.

Hampton: That’s the whole point man, I don’t want

ya’ll to think I’m playing with you or

something.

Nicholos: No . . .

Hampton: I just want everything to see, my point,

you know what I’m saying?

Nicholos: Right, I hear you, that’s your right. That’s

why we read you those rights man.

We’re not going to think anything less

of you because you want an attorney.

That’s your right. That’s why we read

you those rights man.

Hampton: Right.

Nicholos: You choose one, you choose one, man.

No hard feelings. You know what I’m

saying?

Hampton: I keep telling ya’ll man, that that’s

not . . . that I told ya’ll who’s gun it is

like . . .

Nicholos: I understand.

Hampton: I will give a written statement and testify, man.

Passwater: Oh, okay but we . . . once again, we got

to know do you want an attorney or

not? I mean yes or no? It’s that . . .
8 No. 10-1479

Hampton: No, I don’t want no attorney for right

now.

Hampton then gave the following statement to the

officers: On the night of his arrest, he was hanging

around with an acquaintance named “Mike-Mike” and a

few others outside the apartment building on Wildwood Avenue. Shortly before the police arrived, MikeMike asked Hampton to hold his gun. Hampton

initially agreed and briefly took Mike-Mike’s gun, but

then got scared and gave it back. When the police

arrived in the neighborhood and approached the group

outside the apartment building, everyone scattered.

Hampton insisted it was Mike-Mike who carried the

gun into the apartment building during the chase.

Hampton was charged with possession of a firearm by

a felon as an armed career criminal in violation of 18

U.S.C. §§ 922(g)(1) and 924(e). He moved to suppress

his statement. The district court heard evidence on the

motion, including the audiorecording and testimony

from Nicholos, Passwater, and Hampton. The officers’

account of what happened before the recorded portion

of the interview differed slightly from Hampton’s.

The district court credited the officers’ version, and

Hampton does not challenge that part of the court’s

ruling on appeal.

As for the recorded portion of the interview, the court

held that (1) Hampton himself reinitiated the conversation with the officers; (2) Miranda warnings were

properly administered; and (3) Hampton’s references to

an attorney were ambiguous and did not amount to an
No. 10-1479 9

unequivocal request for counsel. The judge observed

that Hampton was “looking for a deal and a way out,”

while the officers “were doing everything possible to

comply with the law.” Hampton’s equivocation, the

judge held, prompted the officers to try to clarify the

situation; they gave Hampton “every opportunity to

have a lawyer,” but Hampton “continued to fish . . . for

a deal.” The judge concluded that “[w]hat Mr. Hampton

needed to do and . . . did not do was make a clear, unambiguous assertion of his right to counsel to stop questioning. That didn’t happen here.” Accordingly, the

court denied the motion to suppress.

The government introduced Hampton’s statement at

trial, playing the audiorecording for the jury. Hampton

was convicted. The presentence report (“PSR”) recommended that Hampton be classified as an armed career

criminal based on three prior felony convictions—one

for home invasion and two for aggravated battery.

Hampton objected to the armed career criminal designation, arguing that one of his aggravated battery convictions—a 1999 Illinois conviction for making “insulting

or provoking” physical contact with a peace officer—

did not qualify as a violent felony under the ACCA or

a crime of violence under the corresponding guidelines provision, U.S.S.G. § 4B1.1. The district court overruled the objection and accepted the PSR’s recommendation. As a result Hampton was subject to a statutory

minimum sentence of 15 years in prison and an advisory

sentencing range of 235 to 293 months. The court

imposed a sentence of 252 months, well above the

statutory minimum and in the middle of the guidelines

range. Hampton appealed.
10 No. 10-1479

II. Discussion

Hampton raises two issues on appeal: (1) his custodial

statement was procured in violation of Miranda and

Edwards and should have been suppressed; and (2) the

Illinois aggravated-battery offense of making insulting

or provoking contact with a peace officer is not a violent

felony under the ACCA.

A. Hampton’s Suppression Motion

Hampton argues that Nicholos and Passwater improperly questioned him in violation of Miranda and Edwards

after he invoked his right to counsel and the district

court therefore should have granted his motion to suppress. In an appeal challenging the denial of a motion

to suppress, we review the district court’s legal conclusions de novo and its factual findings for clear error.

United States v. Lee, 413 F.3d 622, 624-25 (7th Cir. 2005).

To protect a suspect’s Fifth Amendment right against

compelled self-incrimination, custodial interrogations

must be preceded by the familiar Miranda warnings,

including a warning that the suspect has a right to an

attorney at state expense during questioning; if the

suspect invokes the right to counsel, he “is not subject

to further interrogation . . . until counsel has been made

available to him, unless [he] himself initiates further

communication, exchanges, or conversations with the

police.” Edwards, 451 U.S. at 484-85; see also Miranda,

384 U.S. at 474. Questioning may continue, however,

if the suspect’s reference to counsel “is ambiguous or
No. 10-1479 11

equivocal in that a reasonable officer in light of the circumstances would have understood only that the

suspect might be invoking the right to counsel.” Davis v.

United States, 512 U.S. 452, 459 (1994). In this situation,

although “it will often be good police practice for the

interviewing officers to clarify whether or not [the

suspect] actually wants an attorney,” the police are not

constitutionally obligated to ask clarifying questions. Id.

at 461. But a request for counsel, unequivocal when

made, cannot be rendered equivocal by continued questioning. Smith v. Illinois, 469 U.S. 91, 100 (1984). Put differently, a suspect’s later statements in response to continued questioning cannot be used to undermine an

earlier unambiguous invocation of the right to counsel. Id.

Here, most of the evidentiary facts relevant to the

district court’s suppression decision were captured on

audiotape and are not subject to dispute. After initially

signing a Miranda waiver, Hampton changed his mind

and invoked his right to counsel, which was honored;

questioning immediately ceased and the officers arranged

for Hampton to be returned to his cell. When the guard

arrived, Hampton changed course and reengaged the

officers, saying he wanted to proceed without counsel.

The officers properly started anew with fresh Miranda

warnings. This is where the audiotape begins, and we

have reproduced the most important parts of the

transcript above. The parties disagree about the legal

significance of what was said during the recorded part

of the interview. Did Hampton unequivocally re-invoke

his right to counsel?
12 No. 10-1479

Hampton focuses on two particular statements he

made on the recording. After Passwater administered

new Miranda warnings and asked Hampton whether

he wanted a lawyer, he responded, “Yeah, I do, but

you . . . .” Hampton contends that this statement was an

unambiguous request for counsel. The government disagrees, defending the district court’s contextual interpretation. The government maintains that the use of

the qualifying word “but” when considered in light

of Hampton’s prior equivocation would lead a reasonable officer to conclude only that Hampton might

be invoking his right to counsel, not that he clearly

was doing so.

The government is right to consider Hampton’s statement in light of the circumstances in which it was

made. Whether a suspect clearly invoked his right to

counsel is an objective inquiry. Davis, 512 U.S. at 458-59;

United States v. Martin, 664 F.3d 684, 688 (7th Cir. 2011);

United States v. Shabaz, 579 F.3d 815, 818 (7th Cir. 2009).

We have emphasized that the “analysis does not end

with words alone; . . . we also consider the circumstances

in which the statement was made.” Shabaz, 579 F.3d at

819; see also Lord v. Duckworth, 29 F.3d 1216, 1221 (7th

Cir. 1994) (“[T]he context in which [the suspect] made

reference to a lawyer also supports the conclusion that

any request for counsel was ambiguous . . . .”).

Here, Hampton had already signed a Miranda waiver

and agreed to talk to the officers without a lawyer, only

to change his mind just as the interview was getting

underway. The officers immediately stopped the inter-
No. 10-1479 13

rogation and summoned a guard to take Hampton back

to his cell. When the guard arrived, Hampton changed

his mind again and reinitiated the interview, asking to

talk to the officers without an attorney present. The

officers paused and took the precautionary step of

bringing in audiorecording equipment. When Passwater

renewed the Miranda warnings, Hampton hesitated again

and appeared to have another change of heart. Based

on this pattern of equivocation and because Hampton’s

reference to a lawyer used the hedge word “but,” we

agree with the government that a reasonable officer

would have understood only that Hampton might want

an attorney present, not that he was clearly invoking

his right to deal with the officers only through counsel.

See, e.g., Davis, 512 U.S. at 455 (the statement “[m]aybe

I should talk to a lawyer” was not an unambiguous

request for counsel); Shabaz, 579 F.3d at 819 (the question “am I going to be able to get an attorney” was not

an unambiguous request for counsel); Lord, 29 F.3d at

1221 (the question “I can’t afford a lawyer but is there

anyway I can get one?” was not an unambiguous

request for counsel); United States v. Buckley, 4 F.3d 552,

558-59 (7th Cir. 1993) (the statement “I don’t know if

I need an attorney” was not an unambiguous request

for counsel).

Even if Hampton’s statement “Yeah, I do, but you . . .”

was definite enough to constitute an unambiguous

request for counsel (and considering the context, we do

not think it was), the record is clear that no interrogation occurred until Hampton himself resumed the conversation. Passwater immediately told Hampton that
14 No. 10-1479

they could not talk to him if he was asking for a lawyer.

A long moment of silence followed in which neither

officer asked a question or said anything further. A full

five seconds passed before Hampton reengaged the

officers by asking them how the presence of an attorney

would affect his situation. Once he did this, the officers

were permitted to resume questioning, although the

record reflects that what happened next was not an

interrogation at all but an effort to clarify Hampton’s

intent. Though not constitutionally required, this is

just what the Supreme Court recommends that officers

do in this situation. See Davis, 512 U.S. at 461.

The next several minutes of the audiotape consists of putative bargaining by Hampton. He is plainly

trying—as the district court aptly put it—to “fish . . . for

a deal.” For their part, the officers continued to press

him for a decision about counsel. When he started to

veer into the facts of the case, the officers stopped him

and again tried to clarify whether he wanted an attorney. In response Hampton said, “I think, I, I felt like it

should have been an attorney here cause that’s what

I asked for.” This is the second statement that Hampton

emphasizes. Considered in context, however, this statement, like the earlier one, is not an unambiguous

request for counsel.

By this point in the encounter, Hampton had twice

mentioned an attorney only to change his mind and

reinitiate the conversation with the officers. The officers

scrupulously honored Hampton’s request for counsel

that occurred soon after his initial Miranda waiver; his
No. 10-1479 15

first reference to counsel was not unclear. Hampton

then changed his mind and asked to talk to the officers

without an attorney. Wary, the officers began recording

the conversation. Almost immediately after new Miranda

warnings, Hampton again mentioned a lawyer, but

this time he equivocated. Again the officers stopped

the interview, reminding him that they couldn’t talk

any further if he was asking for counsel. Hampton

paused to think about it, then plunged back in and tried

to take control of the situation, asking the officers how

a lawyer would affect his situation. As he searched for a

deal, they took another stab at clarifying his intent.

When he strayed into the facts of the case, they stopped

him and insisted on a clarification of his desire for

counsel before proceeding. Under these circumstances,

Hampton’s statement “I think, I, I felt like it should

have been an attorney here cause that’s what I asked

for” was not definite enough to unambiguously invoke

the right to counsel. Instead, a reasonable officer would

have understood that Hampton might want a lawyer,

but also might want to proceed without one.

In short, we agree with the district court that Hampton

did not “make a clear and unambiguous assertion of his

right to counsel to stop questioning.” United States v. Lee,

413 F.3d 622, 625 (7th Cir. 2005). The officers’ effort

to obtain clarification—eventually resulting in a firm

“no” from Hampton that he did not want counsel

present—was appropriate and consistent with the “good

police practice” endorsed by the Supreme Court in Davis. Hampton’s motion to suppress was properly denied. 
16 No. 10-1479

B. Armed Career Criminal Designation

Hampton also challenges the district court’s determination that his prior conviction for making insulting or

provoking contact with a peace officer, a form of aggravated battery in Illinois, is a “violent felony” under

the ACCA and a “crime of violence” in the parlance

of the sentencing guidelines, see U.S.S.G. § 4B.1.2(a). We

review this legal ruling de novo. United States v. Smith,

544 F.3d 781, 783 (7th Cir. 2008).

The ACCA enhances a sentence for being a felon in

possession of a firearm if the defendant has three prior

convictions for a “violent felony.” See 18 U.S.C. § 924(e).

A “violent felony” is defined as a crime punishable by

a year or more in prison 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 the use

of explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another . . . .

Id. § 924(e)(2)(B) (emphasis added). A defendant’s status

as an armed career criminal also enhances his offense

level and criminal history category under the sentencing

guidelines. See U.S.S.G. § 4B1.4.

Hampton concedes that two of his prior convictions

are violent felonies: his Illinois convictions for home

invasion and for aggravated battery for causing bodily

harm to a peace officer. He argues that his 1999

aggravated-battery conviction—for making “insulting
No. 10-1479 17

or provoking” physical contact with a peace officer—does

not qualify as a violent felony.

Everyone agrees that if this conviction is to be counted

as an ACCA predicate, it must satisfy the so-called

“residual clause” of the violent-felony definition, which

sweeps in crimes that “otherwise involve[] conduct that

presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B). The Supreme Court

requires that we use a categorical approach, which is to

say we examine only ” ‘whether the elements of the

offense are of the type that would justify its inclusion

within the residual provision, without inquiring into the

specific conduct of this particular offender.’ ” Sykes v.

United States, 131 S. Ct. 2267, 2272 (2011) (quoting James

v. United States, 550 U.S. 192, 202 (2007)). The categorical

approach assesses the risk of injury in the generic

offense as generally committed. Id. at 2275. “[A] crime

involves the requisite risk when ‘the risk posed by [the

crime in question] is comparable to that posed by its

closest analog among the enumerated offenses’ “—namely,

burglary, arson, extortion, or crimes involving the use

of explosives. Id. at 2273 (quoting James, 550 U.S. at 203);

see also Begay v. United States, 553 U.S. 137, 144-45 (2008);

United States v. Dismuke, 593 F.3d 583, 589 (7th Cir. 2010).

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 ILL. COMP.

STAT. 5/12-3(a) (1993). Simple battery is treated as a
18 No. 10-1479

The definition of “crime of violence” in the career-offender 2

guidelines is almost identical to the definition of “violent

felony” in the ACCA; therefore, our caselaw interpreting the

two definitions is interchangeable. United States v. Templeton,

543 F.3d 378, 380 (7th Cir. 2008).

felony aggravated battery if one of several enumerated

aggravating factors is present. See id. 5/12-4(b)(6). Here,

Hampton was convicted in 1999 of the simple battery

form of the offense—more specifically, the “insulting or

provoking” contact form—but the crime was elevated

to felony aggravated battery because the victim was “a

peace officer . . . engaged in the execution of . . . official

duties.” See id.

We have already addressed the related question

whether the insulting-or-provoking contact form of the

Illinois battery offense is a crime of violence under the

career-offender sentencing guideline when the offense is

a felony aggravated battery because the victim is a pregnant woman. See United States v. Evans, 576 F.3d 766 2

(7th Cir. 2009). In Evans we held that making insulting

or provoking contact with a pregnant woman is not a

crime of violence because: (1) the act of making insulting

or provoking contact—which might include giving an

unwanted kiss and often includes spitting—does not

generally create a risk of injury; and (2) there was no

evidence that the typical crime of making insulting or

provoking contact with a pregnant woman is violent. Id.

at 768-69. In another case—albeit a nonprecedential

order—we held that “[t]he presence of a different ag-
No. 10-1479 19

gravating factor—a public place rather than a pregnant

victim—does not change Evans’s conclusion that

insulting or provoking contact, in the ordinary case, is

not violent.” United States v. Johnson, 365 F. App’x 3, 5

(7th Cir. 2010).

At issue here is whether the presence of a different

aggravating factor—a peace-officer victim—changes the

analysis. Evans left open the possibility that other

versions of the Illinois aggravated-battery offense might

be a crime of violence (or a violent felony) if the crime

as generally committed is violent and carries the

required degree of risk of physical injury. Here, the

district court held that when committed against a

peace officer, the offense of making insulting or

provoking physical contact generally creates a risk of

injury comparable to the risk created by the enumerated

offenses in the residual clause.

To support this conclusion, the district court relied

primarily on statistics submitted by the government

regarding the incidence of injury to police officers

during assaults. These statistics—compiled by the Department of Justice (“DOJ”)—show that in 2008, 26%

of reported assaults on law-enforcement officers resulted in injuries to the officer—a rate 13 times higher

than the 2% injury rate for burglaries, a crime specifically listed in the residual clause. But while statistics

can sometimes usefully inform the analysis, see, e.g.,

Sykes, 131 S. Ct. at 2274-75, the DOJ report is not helpful

here. Its methodology section states:

Law enforcement agencies report to the [crime-reporting] [p]rogram the number of assaults resulting
20 No. 10-1479

in injuries to their officers or instances in which

an offender used a weapon that could have caused

injury or death. Agencies record other assaults only

if they involved more than verbal abuse or minor

resistance to an arrest.

In other words, the report focuses on serious physical

assaults on officers, which would likely be charged as a

bodily injury battery under the Illinois battery statute.

The DOJ report specifically excludes nonserious assaults;

only assaults that involved “more than verbal abuse or

minor resistance to an arrest” were reported. As such, the

DOJ report does not paint an accurate picture of the

frequency of officer injuries resulting from “insulting

or provoking” contact batteries involving law-enforcement officers as victims.

The government also analogizes this form of battery

to felony vehicular flight, which the Supreme Court held

to be a violent felony under the ACCA. See Sykes, 131 S.

Ct. at 2277. The Court in Sykes observed that even at

low speeds, vehicular flight is dangerous to pursuing

officers, other motorists, and bystanders because the

officers may be compelled to use countermaneuvers to

subdue the fleeing vehicle. See id. at 2273-74. By analogy,

the government argues that even a light insulting or

provoking contact with a peace officer has the potential

to induce a counterreaction that poses a serious risk

of injury to the officer or others.

We find this comparison inapt. Setting aside the ordersof-magnitude difference between the force of a fleeing

vehicle and that of, say, a poking finger, vehicular flight
No. 10-1479 21

is inherently more risky than making insulting or provoking contact with an officer. The former offense, as

generally committed, necessarily involves resistance to

the officer’s authority by the use of a dangerous instrumentality—a fleeing vehicle—and it induces an escalated

reaction from the pursuing officer that inherently

carries heightened risk of injury to others. In contrast,

the insulting-or-provoking-contact offense, though it

may require a certain bravado in the face of authority,

does not entail resistance of the sort that ordinarily

induces an escalated response from the officer that puts

the officer or others at a similar serious risk of injury. See,

e.g., People v. Smith, 794 N.E.2d 408, 409-11 (Ill. App. Ct.

2003) (affirming conviction under the insulting-orprovoking-contact provision for throwing milk through

cell door at guard); People v. Peck, 633 N.E.2d 222, 223-24

(Ill. App. Ct. 1994) (affirming conviction for spitting on

a police officer); see also Garcia-Meza v. Mukasey, 516

F.3d 535, 538 (7th Cir. 2008) (suggesting that someone

could be convicted for crumpling up parking ticket

and throwing it at the issuing officer’s shoes).

Finally, the government argues that a person who is

brazen enough to make insulting or provoking physical

contact with a peace officer is also likely to violently

resist arrest. But the inquiry under the residual clause is

not whether some instances of the crime pose a serious

risk of injury to others. Rather, our focus is on the

generic crime as ordinarily committed—that is, whether

most instances of the crime present the required

degree of risk. See Dismuke, 593 F.3d at 594. Applying

the categorical approach, we conclude that the Illinois
22 No. 10-1479

Without the armed career criminal designation, the 15-year 3

mandatory minimum drops out, and the statutory maximum

becomes ten years. See 18 U.S.C. § 924(a)(2). Hampton’s guidelines range thus becomes 120 months. See U.S.S.G. § 5G1.1.

3-27-12

aggravated-battery offense of making insulting or provoking contact with a peace officer does not qualify as

a violent felony and is therefore not an ACCA predicate. Because the district court’s determination to the

contrary enhanced Hampton’s sentencing range, we 3

vacate the sentence and remand for resentencing.

AFFIRMED in part,

VACATED in part, and REMANDED.