The Honorable Michael P. McCuskey, United States District



Court for the Central District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2947

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES K. TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:09-cr-150—Robert L. Miller, Jr., Judge.

ARGUED DECEMBER 6, 2010—DECIDED DECEMBER 29, 2010

Before BAUER and WILLIAMS, Circuit Judges, and

MCCUSKEY, District Judge.

WILLIAMS, Circuit Judge. James K. Taylor pleaded

guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 64

months’ imprisonment. His sentence was based in part
2 No. 10-2947

Taylor was also charged with one count of aiding and 1

abetting the furnishing of false and fictitious statements

during the acquisition of a firearm, in violation of 18 U.S.C.

(continued...)

on the district court’s conclusion that his prior Indiana

conviction for Class C felony battery, Ind. Code § 35-42-2-

1(a)(3), qualified as a “crime of violence” under § 4B1.2(a)

of the federal sentencing guidelines, enhancing his recommended base offense level. Taylor appeals the district court’s finding, arguing that his battery conviction

was not a crime of violence for the purposes of the

federal sentencing guidelines. We find that the Indiana

battery offense of which Taylor was convicted—touching

someone in a rude, insolent, or angry manner by means

of a deadly weapon—qualifies as a crime of violence

because such conduct will ordinarily involve, at a minimum, the threatened use of physical force. We affirm.

I. BACKGROUND

Between May 2008 and October 2009, Taylor, a convicted felon, directed a third party to make straw purchases of nine firearms for him at a gun store in

Mishawaka, Indiana. A store employee alerted an ATF

agent to the suspected straw purchases, and Taylor

was apprehended. He was indicted on November 12,

2009, and on February 19, 2010 pleaded guilty to one

count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Taylor’s criminal history 1
No. 10-2947 3

(...continued)

§ 922(a)(6). This count was dismissed pursuant to his plea

agreement.

included a 2004 conviction for Class C felony battery in

St. Joseph County (Indiana) Superior Court, for which

he had received a sentence of four years’ imprisonment.

Indiana’s battery statute, Ind. Code § 35-42-2-1, provides

in relevant part:

Sec. 1. (a) A person who knowingly or intentionally

touches another person in a rude, insolent, or

angry manner commits battery, a Class B misdemeanor. However, the offense is:

. . . 

(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.

Specifically, the criminal information in Taylor’s battery case stated that he “did knowingly touch [the

victim] in a rude, insolent, or angry manner, to-wit: by

striking [the victim] in the stomach and said touching

being committed with a deadly weapon, to-wit: a knife.”

Taylor’s presentence investigation report recommended

that his base offense level under the guidelines—which

would otherwise have been 14 per § 2K2.1(a)(6)—be

increased to 20 on the basis that this prior battery conviction qualified as a “crime of violence.” U.S.S.G.

§§ 2K2.1(a)(4)(A), 4B1.2(a). The district court agreed,

concluding over Taylor’s objection that the battery con-
4 No. 10-2947

viction qualified as a crime of violence under the guidelines. Coupled with a criminal history category of III,

Taylor’s resulting advisory guideline range was 57-71

months. The court imposed a sentence of 64 months

and two years’ supervised release.

II. ANALYSIS

Taylor appeals the district court’s conclusion that his

Indiana battery conviction qualifies as a “crime of violence” for purposes of the federal sentencing guidelines.

This is a question of law we review de novo. United States

v. Clinton, 591 F.3d 968, 972 (7th Cir. 2010).

The guidelines define a “crime of violence” as any

federal or state offense, punishable by more than a year

of imprisonment, that:

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

threatened use of physical force against the

person of another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

We use a “categorical approach” to determine whether

a given crime qualifies as a crime of violence. United

States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009). Under

the categorical approach, courts look to the statutory

definition of the offense in question, not to the specific
No. 10-2947 5

Begay, James, and other cases in this area apply the 2

categorical approach to the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), which defines “violent felony”

virtually the same way § 4B1.2 defines “crime of violence.” As

we have done in prior cases, we refer to cases dealing with

the ACCA and the career offender guideline provision interchangeably. See United States v. Fife, 624 F.3d 441, 444 n.1

(7th Cir. 2010).

conduct that the defendant engaged in on that occasion.

Id.; see also Begay v. United States, 553 U.S. 137, 141 (2008).

“That is, we consider whether the elements of the offense

are of the type that would justify its inclusion . . . without

inquiring into the specific conduct of this particular

offender.” James v. United States, 550 U.S. 192, 202 (2007)

(emphasis in original).

2

When a statute describes multiple modes of commission, however, some that might be a crime of violence

and some that might not, the categorical approach

cannot answer the question completely because a court

cannot tell from the statute itself exactly what offense

the defendant committed. See, e.g., Fife, 624 F.3d at 445;

United States v. McDonald, 592 F.3d 808, 810 (7th Cir.

2010). In these cases involving a “divisible” statute, courts

employ a “modified categorical approach” and look to a

defendant’s charging document, plea agreement, or other

similar judicial record for the limited purpose of determining which part of the offense the prior conviction

was for—but still not to the particular facts underlying

the conviction. See Shepard v. United States, 544 U.S. 13,
6 No. 10-2947

26 (2005); United States v. Ellis, 622 F.3d 784, 798 (7th

Cir. 2010). “[T]he additional materials . . . may be used

only to determine which crime within a statute the defendant committed, not how he committed that crime.”

Woods, 576 F.3d at 405 (emphases in original).

The district court—as well as both parties in their

briefs on appeal—applied the modified categorical approach to Ind. Code § 35-42-2-1(a)(3), apparently

premised on an assumption that the statute requires it.

Clearly, § 35-42-2-1(a)(3) can be violated in one of two

ways: touching someone in a rude, insolent, or angry

manner that (1) “results in serious bodily injury to any

other person” or (2) “is committed by means of a

deadly weapon.” And Taylor’s charging document

makes clear that he was convicted of the second

category, the “means of a deadly weapon” violation. But

the fact that § 35-42-2-1(a)(3) sets out two modes of commission doesn’t automatically mean it is “divisible” in

a way that requires a modified categorical approach—

if both methods of violating the statute qualify as a crime

of violence for federal purposes, there would be no need

to look at Taylor’s charging document for clarification

at all. See, e.g., McDonald, 592 F.3d at 810 (modified categorical approach necessary when statute lists multiple

modes of commission, “some of which may be crimes

of violence and some not.”); see also United States v.

Dismuke, 593 F.3d 582, 589 (7th Cir. 2010) (statute is divisible “when it describes multiple offense categories,

some of which would be crimes of violence and some

of which would not.”).
No. 10-2947 7

The government does not argue, however, that either

mode of violation of § 35-42-2-1(a)(3) would constitute

a crime of violence, and instead proceeds on the assumption that the statute is in fact divisible. We will

similarly approach the statute as being divisible for

the purpose of deciding this appeal, and leave for

another day the broader question of whether any violation of Indiana’s Class C battery statute would qualify

as a crime of violence. It may be the case that the other

prong of § 35-42-2-1(a)(3)—touching someone in a rude,

insolent, or angry manner that “results in serious bodily

injury to another person” — does not categorically qualify

as a crime of violence under either prong of the federal

definition. See, e.g., Johnson v. United States, --- U.S. ----, 130

S. Ct. 1265, 1271-72 (2010) (“touching” in Florida battery

statute does not categorically equate to “physical force”

necessary to qualify as a violent felony under first part of

ACCA definition); Flores v. Ashcroft, 350 F.3d 666, 672

(7th Cir. 2003) (“touching” in Indiana misdemeanor

battery statute includes any contact, however slight,

and thus does not necessarily satisfy “physical force”

requirement in analogous crime of violence definition

in 18 U.S.C. § 16); Begay, 553 U.S. at 143-45 (residual

clause in second part of crime of violence definition is

limited to offenses similar both in kind and degree of

risk to those enumerated, demonstrating the same “purposeful, violent, and aggressive” conduct); Woods, 576

F.3d at 407 (same).

So the question before us is whether violating Ind. Code

§ 35-42-2-1(a)(3) the way Taylor did—touching someone
8 No. 10-2947

The government also advances two alternative bases for 3

affirming: (1) that Taylor’s offense meets the definition of “crime

of violence” set forth in § 4B1.2(a)(2) as well; and (2) that

the offense also qualifies because Application Note 1 to § 4B1.2

permits courts to look to actual charged conduct in making

a crime-of-violence determination. Because we affirm on

the basis of § 4B1.2(a)(1), we do not reach these alternative

arguments.

in a rude, insolent, or angry manner, by means of a deadly

weapon—qualifies as a crime of violence. We conclude

that it does, because in the ordinary case, violating Indiana’s Class C battery statute by touching someone in a

rude, insolent, or angry manner with a deadly weapon

will at the very least present a threat of physical force,

thus qualifying it under § 4B1.2(a)(1) of the guidelines.3

Taylor argues that there are ways to touch someone in

a rude, insolent, or angry manner using a deadly

weapon that do not necessarily involve the use, attempted use, or threatened use of force. While there

may be hypothetical situations where this might be

true (one involving utensils at a particularly contentious

Thanksgiving dinner came up during oral argument),

such possibilities are outliers. In applying the categorical

approach, we are concerned with the ordinary case,

not fringe possibilities. James, 550 U.S. at 208 (categorical

approach does not require that “every conceivable

factual offense” qualify); Woods, 576 F.3d at 404. And

we believe that in the ordinary case, touching someone

rudely, insolently, or angrily with a deadly weapon

involves, at a minimum, a threat of physical force.
No. 10-2947 9

Other circuits evaluating similar statutes have

reached the same conclusion. In United States v. TretoMartinez, 421 F.3d 1156 (10th Cir. 2005), the defendant

challenged the classification of his prior conviction

under Kansas’s aggravated battery statute as a crime

of violence. That statute prohibits, much like the Indiana

law, “intentionally causing physical contact with another person when done in a rude, insulting or angry

manner with a deadly weapon.” Kan. Stat. Ann. § 21-

3414(a)(1)(C). Applying the categorical approach, the

Tenth Circuit found that touching someone with a

deadly weapon in a rude, insulting, or angry manner

“could always lead to more substantial and violent contact” and thus will always include “at the very least”

the threatened use of physical force. Treto-Martinez,

421 F.3d at 1160; see also United States v. Ramon Silva, 608

F.3d 663, 672 (10th Cir. 2010) (applying similar reasoning to New Mexico aggravated assault statute).

We agree with this reasoning and find it applicable

to the Indiana statute here. Other circuits have similarly

held that touching with a deadly weapon constitutes

a “crime of violence” for the same reason. See United

States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (California assault offense of touching someone with a

deadly weapon qualifies as a crime of violence because

it “demonstrates at a minimum the threatened use of

actual force”); United States v. Dominguez, 479 F.3d 345,

348 (5th Cir. 2007) (Florida aggravated battery offense

of intentionally touching someone with a deadly weapon

qualifies because “the touching of an individual with

a deadly weapon creates a sufficient threat of force

to qualify as a crime of violence.”).
10 No. 10-2947

We briefly address Taylor’s argument that the district

court improperly looked at the actual facts underlying

his battery conviction in determining that it qualified as

a crime of violence. A review of the sentencing hearing

transcript reveals that Taylor is correct, although it does

not affect the outcome here. In making a determination

as to whether Taylor’s conviction constituted a crime

of violence, the district judge read the information in

Taylor’s battery case (which set forth the underlying

fact that Taylor had committed the battery by striking

someone with a knife) and stated:

The Information in this case, however, charges

striking, specifies striking, which is the use of physical force against the person of another, and accordingly, it appears to me that, even under the Woods

decision . . . what we have here is a crime of violence because it involved the use of physical force

against the person of another.

This was improper, because instead of using

the charging document solely to determine which part

of § 35-42-2-1(a)(3) Taylor had violated (i.e., causing

serious bodily injury versus using a deadly weapon), the

judge went further, looked at the actual facts of what

Taylor had done, and focused on the “striking” in

reaching a conclusion. This, as Taylor correctly points

out, is exactly what Woods says a court cannot do in

applying the modified categorical approach. See Woods,

576 F.3d at 404 (“[w]hat the sentencing court cannot do

is to look at the particular facts underlying the defendant’s conviction.”) (emphasis in original). The error
No. 10-2947 11

was obviously harmless, however—despite making a

misstep in how it got there, the district court reached

the correct conclusion that Taylor’s battery conviction

qualifies as a crime of violence under § 4B1.2. See Ellis,

622 F.3d at 798.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

12-29-10