In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1104

CHARLES B. DOUGLAS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:16-cv-270 — Jon E. DeGuilio, Judge.

____________________

ARGUED MAY 16, 2017 — DECIDED JUNE 5, 2017

____________________

Before EASTERBROOK, SYKES, and HAMILTON, Circuit Judges.

EASTERBROOK, Circuit Judge. Charles Douglas pleaded 

guilty to possessing a firearm, which his earlier felony convictions made it illegal for him to have. 18 U.S.C. §922(g)(1). 

He was sentenced to 110 months after the district judge 

found that at least 3 of Douglas’s 16 other felony convictions 

were “violent felonies” as defined by the Armed Career 

Criminal Act, 18 U.S.C. §924(e). After the Supreme Court 
2 No. 17-1104

held the residual clause of §924(e)(2)(B)(ii) unconstitutionally vague, Samuel Johnson v. United States, 135 S. Ct. 2551 

(2015), Douglas filed a motion under 28 U.S.C. §2255, asking 

the district court to reduce his sentence. But the judge concluded that Douglas is properly classified as an armed career 

criminal.

The invocation of §2255 is problematic. Douglas treats

Samuel Johnson as opening to collateral review all sentences 

under the Armed Career Criminal Act. Yet the Court did not 

hold the Act invalid; Samuel Johnson concerns only a part of

§924(e)(2)(B)(ii). The elements clause in §924(e)(2)(B)(i) remains in effect, as does the burglary clause in 

§924(e)(2)(B)(ii). See, e.g., Stanley v. United States, 827 F.3d 

562 (7th Cir. 2016); Holt v. United States, 843 F.3d 720 (7th Cir. 

2016). The district court concluded that Douglas’s prior convictions are violent felonies under the elements clause of 

§924(e)(2)(B)(i), so Samuel Johnson does not affect his situation.

Douglas does not contend that classifying his convictions 

as violent felonies violates the Constitution but instead that 

the district court misapplied the elements clause, as interpreted in Curtis Johnson v. United States, 559 U.S. 133 (2010).

Curtis Johnson, a statutory decision, was issued about five 

years before Douglas filed his §2255 motion, which was accordingly untimely even if Curtis Johnson applies retroactively on collateral review. See 28 U.S.C. §2255(f)(3). What’s 

more, as part of his plea agreement Douglas agreed to waive 

the right to seek collateral review.

Yet the United States has chosen not to contest the use of 

§2255 to obtain collateral review of a contention that rests on

Curtis Johnson, not to invoke the one-year time limit in 
No. 17-1104 3

§2255(f), and to waive its rights under the plea agreement. 

The Supreme Court has held that federal courts may dismiss 

procedurally defective collateral attacks when the government fails to notice the problems, see Granberry v. Greer, 481 

U.S. 129 (1987), but must respect formal waivers by prosecutors and wardens. See Wood v. Milyard, 566 U.S. 463 (2012). 

None of the procedural problems we have mentioned affects 

subject-matter jurisdiction, so we give effect to the United 

States’ waiver and turn to the merits.

The parties agree that the sole issue on the merits is 

whether Class C felony battery in Indiana at the time of 

Douglas’s two convictions for that offense was a violent felony under the elements clause of §924(e)(2)(B)(i). The state 

statute has since been amended, but we must consider its 

elements as they were when Douglas committed those offenses. The state law provided:

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:

(1) a Class A misdemeanor if:

(A) it results in bodily injury to any other person; ...

(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[.]

Ind. Code §35-42-2-1(a) (2005). The elements clause of 

§924(e)(2)(B)(i) designates an offense as a violent felony if it 

“has as an element the use, attempted use, or threatened use 

of physical force against the person of another”. Accordingly 

we look at the elements of the state offense, not at what 

Douglas did in fact. See, e.g., Mathis v. United States, 136 S. 
4 No. 17-1104

Ct. 2243 (2016) (discussing the “modified categorical approach” that the Court uses for federal recidivist statutes).

Battery was a Class C felony in Indiana if a person 

“knowingly or intentionally touches another person in a 

rude, insolent, or angry manner” and that touch “results in 

serious bodily injury to any other person”. Any touch entails 

the use of force as an engineer or physicist uses that word,

but Curtis Johnson holds that this is not the legal sense of 

“force” in §924(e)(2)(B)(i). The Court stated that the sort of 

force that comes within the elements clause is “force capable 

of causing physical pain or injury to another person.” 559 

U.S. at 140. Douglas tells us that Indiana’s statute did not require the prosecutor to demonstrate that sort of force.

And that’s true enough for the simple battery defined by 

the introductory clause of Indiana’s law. But Douglas was 

not convicted of the Class B misdemeanor version of the 

crime; he was convicted of the Class C felony version, which 

has “serious bodily injury” as an element. Curtis Johnson tells 

us that the sort of force to which §924(e)(2)(B)(i) refers is 

force “capable of causing” injury, 559 U.S. at 140; force that

actually causes injury necessarily was capable of causing that 

injury and thus satisfies the federal definition. So we held in

Yates v. United States, 842 F.3d 1051 (7th Cir. 2016), with respect to a Wisconsin statute that penalized battery that 

“causes bodily harm”. If force that causes bodily harm qualifies, as Yates held, then force that causes “serious bodily 

harm” necessarily qualifies.

Douglas observes that tickling another person entails

force. If the tickled person twitches, falls, strikes his head on 

a coffee table, and suffers a serious injury, Douglas tells us, 

the tickler could be convicted of Class C felony battery. If 
No. 17-1104 5

Indiana treated that situation, and similar ones, as Class C 

felonies, then Douglas would have a good point under Curtis 

Johnson. But just as Yates could not identify any case in 

which Wisconsin’s judiciary had deemed a light touch 

enough to convict someone of causing bodily harm, so 

Douglas has not located any decision in which Indiana’s 

courts have convicted someone of committing Class C felony 

battery after a light touch initiates a long causal chain that 

ends in serious injury. All the cases that the parties discuss 

involve violent force. See, e.g., Mann v. State, 895 N.E.2d 119 

(Ind. App. 2008). Indeed, Indiana’s courts say that the force 

must be enough to exclude any possibility that the injuries 

occurred by accident or an unforeseeable intervening circumstance. See, e.g., Moore v. State, 49 N.E.3d 1095 (Ind. 

App. 2016). Indiana’s statute therefore must be treated the 

same way Yates treated Wisconsin’s.

According to Douglas, however, no state crime can be a 

violent felony unless the person intends not only the use of 

force but also the injury caused by that force. Indiana’s battery law has an intent element, but that element applies to 

the force rather than the outcome. Douglas relies on Leocal v. 

Ashcroft, 543 U.S. 1 (2004), and some similar decisions, but 

they do not establish the proposition that the injury must 

have its own mens rea.

Leocal dealt with the elements clause in 18 U.S.C. §16(a), 

which is similar to the elements clause in the Armed Career 

Criminal Act. The Court held that drunk driving is not a violent felony under §16(a) because, to “use” force—the verb in 

both §16(a) and §924(e)(2)(B)(i)—a person must intend more 

than negligent or accidental contact. Because a person can 

drive under the influence without intending to touch any-
6 No. 17-1104

one, the Court concluded that the crime does not entail the

use of force. That conclusion does not help Douglas, because 

the Indiana statute applies only to a “person who knowingly 

or intentionally touches another person” in a forbidden 

manner. Intentional touching is an element of Class C felony 

battery in Indiana. Leocal neither holds nor suggests that 

there must be a separate intent element attached to the degree 

of injury. It is enough to “use” force.

We have held that an offense defined as a knowing or intentional act that causes bodily harm comes within the elements clause of §16(a), §924(e)(2)(B)(i), or 18 U.S.C. 

§924(c)(3)(A) (the third of the trio of elements clauses in Title 

18). See, e.g., Yates; De Leon Castellanos v. Holder, 652 F.3d 762,

764–66 (7th Cir. 2011); LaGuerre v. Mukasey, 526 F.3d 1037, 

1039 (7th Cir. 2008). Indiana’s statute makes intent to use 

force an element of the offense; that satisfies the elements 

clause as Leocal understands it.

AFFIRMED