IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40241

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

OSMAN RUTILIO REYES, 

 Defendant - Appellant 

Appeal from the United States District Court

for the Southern District of Texas 

Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges. 

REAVLEY, Circuit Judge:

This Court implicitly held in United States v. Velasco, 465 F.3d 633 (5th 

Cir. 2006), that the Illinois aggravated battery statute is divisible—meaning 

that if a defendant has a prior conviction under that statute and a sentencing 

court must determine whether this prior conviction qualifies for a sentencing 

enhancement, the court should look to certain records of conviction to identify 

the particular offense of which the defendant had been convicted. Applying 

Mathis v. United States, 136 S.Ct. 2243 (2016), we must decide whether that 

holding retains vitality. We find that it does. 

Recitation of only a few facts is necessary. In April of 2015, defendant 

Osman Rutilio Reyes was convicted of aggravated battery under Illinois’ 

United States Court of Appeals

Fifth Circuit

FILED

August 1, 2017

Lyle W. Cayce

Clerk

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2 

aggravated battery statute, 720 Ill. Comp. Stat. Ann. § 5/12-3.05. More 

specifically, he was convicted of aggravated battery with a deadly weapon 

under Section 5/12-3.05(f)(1). Reyes was deported in May of that year. By 

August, he was back in the country. Immigration and Customs Enforcement 

agents apprehended him in Texas, and he pleaded guilty to violating 8 U.S.C. 

§ 1326. 

The district court found that Reyes’ prior conviction qualified as a crime 

of violence for purposes of the United States Sentencing Guidelines and 

imposed a 16-level sentencing enhancement when calculating the applicable 

Guidelines range. See USSG § 2L1.2(b)(1)(A)(ii). This ruling was required by 

Velasco, which had held that a conviction under the Illinois aggravated battery 

statute for aggravated battery based on the use of a deadly weapon necessarily 

involved “the use of force” and therefore categorically qualified as a crime of 

violence. 465 F.3d at 638–40 (citing 720 Ill. Comp. Stat. 5/12–4(b)(1)). The 

opinion also recognized that when Illinois’ aggravated battery statute cannot 

be “pare[d] down,” a conviction under the statute will not categorically qualify 

as a crime of violence because the “statute provides for the commission of the 

offense of aggravated battery in a number of different ways, some of which do 

not require the use of physical force against a person.” Id. at 639 (quoting 

United States v. Aguilar-Delgado, 120 F. App’x 522, 523 (5th Cir. 2004)). 

Though Velasco foreclosed his argument, Reyes duly objected to a crimeof-violence sentencing enhancement on the grounds that the Illinois 

aggravated battery statute is indivisible. As that very case shows, a finding of 

indivisibility would establish the sentencing enhancement’s impropriety. See 

Velasco, 465 F.3d at 639. On appeal, we consider Reyes’ divisibility argument 

in light of Mathis, and review is de novo. See United States v. Sam, 467 F.3d 

857, 861 (5th Cir. 2006). Because Reyes is challenging a precedent of this 

Court, he must show that Mathis “unequivocally abrogated” Velasco. United 

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States v. Tanksley, 848 F.3d 347, 350 (5th Cir.), supplemented, 854 F.3d 284 

(5th Cir. 2017). Mathis “is controlling regarding the methodology of the 

modified categorical approach,” United States v. Hinkle, 832 F.3d 569, 574 (5th 

Cir. 2016), so our task is to check the result of Velasco according to the method 

of Mathis, see Tanksley, 848 F.3d at 351. 

The broad issue in this case is whether Reyes’ conviction under the 

Illinois aggravated battery statute properly counts as a crime of violence under 

the Guidelines. “To determine whether a given prior conviction qualifies for a 

Guidelines enhancement, courts use either (1) the categorical approach or (2) 

the modified categorical approach.” United States v. Rico-Mejia, 859 F.3d 318, 

322 (5th Cir. 2017). Courts applying the categorical approach simply “look to 

the elements of the offense enumerated or defined by the Guideline section and 

compare those elements to the elements of the prior offense for which the 

defendant was convicted.” United States v. Howell, 838 F.3d 489, 494 (5th Cir. 

2016). 

Some statutes resist this approach because they “list elements in the 

alternative, and thereby define multiple crimes.” Mathis, 136 S.Ct. at 2249. 

When confronted with such a statute, courts employ the modified categorical 

approach and examine “a limited class of documents (for example, the 

indictment, jury instructions, or plea agreement and colloquy) to determine 

what crime, with what elements, a defendant was convicted of.” Id. Some 

statutes seem at a glance to bear this same structure but, upon examination, 

merely list “various factual means of committing a single element.” Id. When 

a statute lists different possible ways of committing one crime, the modified 

categorical approach is impermissible. Id. at 2251. 

The Illinois aggravated battery statute is lengthy and complex. See 720 

Ill. Comp. Stat. § 5/12-3.05(a)–(g). According to the government, the statute 

sets forth the necessary alternative elements that render the modified 

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categorical approach permissible and allow Reyes’ prior conviction to be 

identified as an aggravated battery involving the use of a deadly weapon. See 

720 Ill. Comp. Stat. § 5/12-3.05(f)(1). According to Reyes, the statute is 

indivisible and “overbroad” in that it “sweeps in conduct that does not qualify 

as a ‘crime of violence.’” Reyes’ fallback position is that even if the aggravated 

battery statute can be narrowed to Section 5/12-3.05(f), it cannot be narrowed 

further. In other words, Section 5/12-3.05(f) is itself indivisible and overbroad.

In determining if the aggravated battery statute is divisible, we look to 

its alternative components and ask “elements or means?” Mathis, 136 S.Ct. at 

2256. State law governs this “threshold inquiry.” Id. State courts are the ideal 

expositors of state law, but we may also examine the statutory text and 

structure or, if necessary, “the record of a prior conviction itself.” Id. If the 

Illinois aggravated battery statute lists various means of committing one 

aggravated battery offense, it is indivisible. Hinkle, 832 F.3d at 575. In such 

a case, a jury need not agree on how the offense was committed, and Reyes’

crime of conviction could not be narrowed to encompass any one factual theory, 

no matter the actual evidence or indictment in his case. Mathis, 136 S.Ct. at 

2251. Elements, by contrast, are those “things the ‘prosecution must prove to 

sustain a conviction.’” Id. at 2248 (quoting Black’s Law Dictionary 634 (10th 

ed. 2014). Distilled to its essence, Mathis recognizes that, when applying a 

recidivism statute to a defendant’s prior convictions, each “crime of conviction” 

is defined by solely by its elements. Id. at 2251. “How a given defendant 

actually perpetrated the crime” is irrelevant, “regardless of whether a statute 

omits or instead specifies alternative possible means of commission.” Id. 

We first consider Reyes’ broad argument: that the “aggravated battery 

statute contains [a] lengthy list of ways that a person can violate the statute.” 

(Emphasis added (citing 720 Ill. Comp. Stat. § 5/12-3.05(a)–(g)).) Do its many 

subsections and their nested paragraphs simply establish a multiplicity of 

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ways of committing one aggravated battery offense? No. The Supreme Court 

of Illinois recently analyzed the aggravated battery statute and held that it 

contained (at least) two different crimes requiring different proofs.1 People v. 

Cherry, 63 N.E.3d 871, 877 (Ill. 2016) (discussing aggravated battery and 

aggravated battery with a firearm). 

The Illinois aggravated battery statute sets forth many types of 

aggravated battery. It is error to analyze the statute as if it instead establishes 

a basic aggravated battery offense that is supplemented throughout the rest of 

the statute by various further-aggravating circumstances. Thus, in Cherry,

the Supreme Court of Illinois rejected the appellate court’s conclusion that 

aggravated battery with a firearm was merely “an enhanced version of 

aggravated battery.” Id. (quoting People v. Cherry, 22 N.E.3d 1277, 1283 (Ill. 

App. Ct. 2014)). And it chided the lower court for “wholly ignor[ing] the actual 

elements of these offenses.” Id.

[T]he statutory elements plainly demonstrate that, rather than 

being an aggravated or enhanced version of aggravated battery, 

aggravated battery with a firearm is, like aggravated battery 

itself, an aggravated or enhanced version of battery. The 

aggravated battery and aggravated battery with a firearm statutes 

share an identical structure. Both offenses require the State to 

prove the commission of a battery, and both offenses require the 

State to prove the presence of an additional factor aggravating that 

battery. 

Id. (emphases added).

Cherry thus forecloses Reyes’ argument that the entirety of the 

aggravated battery statute is indivisible. Accordingly, our focus shifts to one 

particular subsection, Section 5/12-3.05(f). Reyes’ “crime of conviction” for 

purposes of Mathis is either a Section 5/12-3.05(f) violation (aggravated battery 

 

1 The code numbers cited herein are different than those referenced in both Velasco 

and Cherry because this portion of the Illinois penal code has been renumbered. 

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based on the use of a weapon or device) or a 5/12-3.05(f)(1) violation (aggravated 

battery involving the use of a deadly weapon). See 136 S.Ct. at 2251. 

In its entirety, subsection (f) reads as follows: 

Offense based on use of a weapon or device. A person commits 

aggravated battery when, in committing a battery, he or she does 

any of the following: 

(1) Uses a deadly weapon other than by discharge of a firearm, 

or uses an air rifle as defined in Section 24.8-0.1 of this Code.

(2) Wears a hood, robe, or mask to conceal his or her identity. 

(3) Knowingly and without lawful justification shines or flashes 

a laser gunsight or other laser device attached to a firearm, 

or used in concert with a firearm, so that the laser beam 

strikes upon or against the person of another. 

(4) Knowingly video or audio records the offense with the intent 

to disseminate the recording. 

720 Ill. Comp. Stat. Ann. 5/12-3.05(f). 

As can be seen from the statute, if Reyes’ crime of conviction is 

aggravated battery based on the use of a weapon or device, then the conviction 

would not categorically qualify as a crime of violence under the Guidelines; the 

conviction could be based on wearing a hood while committing a non-violent 

battery, for instance. But if the crime of conviction is aggravated battery 

involving the use of a deadly weapon it categorically qualifies as a crime of 

violence under the Guidelines. United States v. Sanchez-Sanchez, 779 F.3d 

300, 305 (5th Cir. 2015). We must determine the nature of Section 5/12-3.05(f). 

Do paragraphs (1) through (4) itemize means of committing a single crime, or 

do paragraphs (1) through (4) represent distinct crimes with distinct elements? 

See Hinkle, 832 F.3d at 575.

We are aware of no Illinois case describing aggravated battery based on 

the use of a weapon or device as a unitary offense, which offense may be proven 

by showing that Section 5/12-3.05(f) was violated in any one of four ways

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enumerated in paragraphs (1) through (4) of that subsection. Compare Mathis, 

136 S.Ct. at 2256 (finding the Iowa burglary statute indivisible because of a 

state supreme court holding that “[t]he listed premises in Iowa’s burglary law 

. . . are ‘alternative method[s]’ of committing one offense, so that a jury need 

not agree whether the burgled location was a building, other structure, or 

vehicle” (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981))). But nor 

can we find cases holding that Section 5/12-3.05(f) describes four different 

crimes with four distinct sets of elements. Compare United States v. Uribe, 

838 F.3d 667, 670 (5th Cir. 2016) (holding that the Texas burglary statute, 

which describes three forms of burglary, is divisible because the Texas Court 

of Criminal Appeals had previously held that each “type” of burglary had its 

own set of elements (citing Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 

1975))).

There are cases, however, that answer the precise question necessary to 

resolve this case: whether Section 5/12-3.05(f)(1) is a distinct crime (aggravated 

battery involving the use of a deadly weapon) that includes, as an element, use 

of a deadly weapon in the commission of a battery. We return to Cherry, where 

Illinois’ high court said exactly this. There, the court used a wide-ranging 

discussion of the Illinois aggravated battery statute to explain its ultimate 

holding—that aggravated battery with a firearm is a separate offense from 

aggravated battery. In the process, it asked the reader to consider the example 

of aggravated battery “involving the use of a deadly weapon other than a 

firearm.” Cherry, 63 N.E.3d at 877. To “prove” this “offense,” the court said,

“the State must prove that the defendant: ‘in committing a battery, used a 

deadly weapon other than by the discharge of a firearm.’” Id. (quoting 720 Ill. 

Comp. Stat. Ann. 5/12-4(b)(1)) (cleaned up). Thus, aggravated battery 

involving the use of a deadly weapon is not a way of committing aggravated 

battery or even aggravated battery based on the use of a weapon or device; it is 

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a distinct offense requiring proof of the use of a deadly weapon. And there is 

no shortage of consistent Illinois decisions.2 There is also an abundance of 

cases that do not address the issue but demonstrate that defendants accused 

of violating 5/12-3.05(f)(1) are charged with and convicted of violating 5/12-

3.05(f)(1).3 Any purported Illinois crime known as aggravated battery based on 

the use of a weapon or device is a chimera; the crime of aggravated battery 

involving the use of a deadly weapon is routinely charged and proven. 

It is true that Cherry’s discussion of Section 5/12-3.05(f)(1) is dicta. We 

follow it for several reasons. First, a federal court tasked with interpreting 

state law must give state supreme court dicta great weight.4 Avakian v. 

Citibank, N.A., 773 F.3d 647, 651–52 (5th Cir. 2014). Second, the statements 

in Cherry follow from its parsing of the relevant statutory language. Velasco

reached the same result based on a similar parsing, 465 F.3d at 639–40, and 

 

2 People v. Marston, 818 N.E.2d 1261, 1267 (Ill. App. Ct. 2004) (where defendant was 

charged with aggravated battery with a deadly weapon: “As was charged in this case, a 

person commits aggravated battery when he intentionally or knowingly without legal 

justification uses a deadly weapon other than a firearm to cause bodily harm to an 

individual.”); People v. Blanks, 845 N.E.2d 1, 11–12 (Ill. App. Ct. 2005) (describing proof of 

the use of a deadly weapon as “the aggravating factor which satisfies the statute”); People v. 

Garita, 2016 WL 7228782, *3 (Ill. App. Ct. 2016) (unpublished) (“[T]he aggravated battery 

with a deadly weapon charge required the State to prove that defendant caused bodily harm 

to [the victim] while using a ‘deadly weapon other than by discharging a firearm.’” (quoting 

Section 5/12-3.05(f)(1)).

3 See, e.g., People v. Pratt, 2017 WL 1497733, at *1 (Ill. App. Ct. Apr. 25, 2017)

(unpublished); People v. Williams, 2017 WL 1211254, at *1 (Ill. App. Ct. Apr. 3, 2017); People 

v. Khan, 2017 WL 1019777, at *1 (Mar. 14, 2017) (unpublished); People v. Curry, 2017 WL 

776082, at *1 (Ill. App. Ct. Feb. 24, 2017) (unpublished); see also People v. Crespo, 788 N.E.2d 

1117, 1122 (Ill. 2001), as modified on denial of reh’g (Mar. 31, 2003) (defendant charged with 

distinct aggravated battery offenses, including “aggravated battery (great bodily harm)” and 

“aggravated battery (deadly weapon)”).

4 When, as here, a federal court must identify and apply state law in the absence of a 

clearly controlling state supreme court opinion, the analogous Erie inquiry calls on federal 

courts to “guess” how a state supreme court “would decide.” Howe ex rel. Howe v. Scottsdale 

Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000). This “guess” is not a surmise of what the state 

law would become if the state supreme court addressed the issue but rather what the state 

law is. See, e.g., Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 749–50 (5th Cir. 1995). 

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Mathis endorses examinations of the statutory text when no state supreme 

court decision provides a definitive answer, 136 S.Ct. at 2256. Third, under 

Illinois’ Murderer and Violent Offender Against Youth Registration Act, a 

“violation or attempted violation” of Section 5/12-3.05(f)(1) can constitute a 

“violent offense against youth,” but subsections 5/12-3.05(f)(2)–(4) are not 

listed as qualifying offenses. 730 Ill. Comp. Stat. Ann. 154/5(b)(4.4). This 

works only if Section 12-3.05(f)(1) describes a discrete offense. 

The Dissent announces it has found a Mathis-approved state court 

decision that conclusively resolves the question, People v. Diaz, 614 N.E.2d 268 

(Ill. App. Ct. 1993). But Diaz turns out to be (1) Illinois law on the 

permissibility of general verdicts where a defendant is charged with multiple 

and distinct offenses, and is unrelated to the present case where conviction 

matches the crime charged and satisfies federal sentencing requirements; (2) 

a mere intermediate state court opinion, (3) a case that did not consider the 

statute before us and was in fact decided before both Section 12-3.05 and its 

predecessor statute (discussed in Cherry) were ever enacted, and (4) a case 

simply not involving statutory language, design, or meaning. Inasmuch as 

Diaz does not address Section 12-3.05(f) and therefore could not have possibly 

determined its divisibility, it is legally off-topic. Inasmuch as it deals with a

situation where the prosecution seeks to convict under two different 

“definitions” of aggravated battery, it is factually inapt. But even if we 

overlook all of this and proceed as if Diaz muddled the picture, a return to our 

Mathis-mandated order of operations confirms our conclusion that Reyes’ prior 

conviction qualifies as a crime of violence. 

Diaz plainly does not “definitively answer[] the question” before us. 

Mathis, 136 S.Ct. at 2256. Accordingly, if the Dissent is not convinced by 

Cherry (and the host of intermediate appellate court decisions we have cited 

that do involve the relevant statute), it should next examine the statutory 

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text—which, as we have noted, Cherry does. Id. And if there is still no good 

answer, “federal judges have another place to look: the record of a prior 

conviction itself.” Id. At this third Mathis step, courts utilize record documents 

as an aid in determining a statute’s divisibility. See id. at 2257 n. 7 (“[W]hen 

state law does not resolve the means-or-elements question, courts should 

‘resort[ ] to the [record] documents’ for help in making that determination.’” 

(quoting Descamps v. United States, 133 S.Ct. 2276, 2285 n.2 (2013)) 

(alterations in original)). 

An indictment can resolve the elements-means question “by referencing 

one alternative term to the exclusion of all others,” thereby indicating “that the 

statute contains a list of elements, each one of which goes toward a separate 

crime.” Id. Here, Reyes’ indictment is in the record. In Count 1—the count to 

which he pleaded guilty—Reyes was charged with “committing a battery . . . 

by use of a deadly weapon” and, more specifically still, with “a violation of 720 

ILCS 5/12-3.05(f)(1).” There is no mention of Section 12-3.05(f)’s remaining 

provisions. This “peek” at the indictment was not necessary to determine 

Section 12-3.05(f) is divisible. But it demonstrates that Diaz has no 

application. “As was charged in this case, a person commits aggravated battery 

when he intentionally or knowingly without legal justification uses a deadly 

weapon other than a firearm to cause bodily harm to an individual.” Marston, 

818 N.E.2d at 1267 (emphasis added). 

Reyes was charged and convicted of violating Section 5/12-3.05(f)(1). 

Aggravated battery involving use of a deadly weapon under Section 5/12-

3.05(f)(1) is a discrete offense requiring proof of the use of a deadly weapon. It 

has been established, categorically, that the offense of which he was convicted 

represents a crime of violence under the Guidelines. The district court did not 

err in following Velasco and applying the crime-of-violence enhancement. 

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Illinois’ aggravated battery statute is complex and has many parts. We 

have held that its Section 5/12-3.05(f) is divisible and that a conviction under

Section 5/12-3.05(f)(1) requires proof of the use of a deadly weapon. We have 

no occasion to examine the statute further. Mathis did not abrogate Velasco, 

and the sentence is AFFIRMED. 

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LESLIE H. SOUTHWICK, Circuit Judge, concurring: 

I concur in the decision to affirm the sentence. Where I depart from 

Judge Reavley is that I do not conclude that the Illinois Supreme Court clearly 

resolved our issue in People v. Cherry, 63 N.E.3d 871 (Ill. 2016). As a result, I 

find it necessary to look elsewhere to be sure this statute is divisible. 

Cherry held that aggravated battery “involving the use of a deadly 

weapon other than a firearm” requires the State to “prove” a defendant used 

“a deadly weapon other than by the discharge of a firearm[.]” Id. at 877 

(quoting 720 ILL. COMP. STAT. § 5/12-4(b)(1) (West 2010)). The court referred 

to the use of a deadly weapon other than by discharge of a firearm as an 

“element[]” that “serve[s] to aggravate [the] battery.” Id. at 878. What 

concerns me is that there is Illinois caselaw that suggests the use of the term 

“element” in Cherry might not have been with the same meaning as the United 

States Supreme Court meant in Mathis. See Mathis v. United States, 136 S. 

Ct. 2243, 2256–57 (2016). 

Cherry said it would discuss two “forms” of aggravated battery under the 

2010 aggravated-battery statute: (1) causing great bodily harm under Section 

5/12-4(a), and (2) using a deadly weapon other than by discharge of a firearm 

under Section 5/12-4(b)(1). See Cherry, 63 N.E.3d at 877–78. It analyzed these 

forms of aggravated battery in order to determine whether aggravated battery 

could be the predicate offense for another crime Cherry committed, which was 

armed violence. Id. at 876–77. There is no need to get into the nuances of that 

issue other than to pull a few points from the state court’s analysis. First, the 

aggravated-battery statute, 2010 edition, required that a battery be 

committed. That also is the case for the statute under which Reyes was 

convicted. Second, the crime was aggravated if the State could “prove the 

presence of an additional factor aggravating that battery.” Id. at 877. 

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In the course of its analysis, the Cherry court said that “[t]he aggravated 

battery and aggravated battery with a firearm statutes share an identical 

structure. Both offenses require the State to prove the commission of a battery, 

and both offenses require the State to prove the presence of an additional factor 

aggravating that battery.” Id. The court did not have before it the issue of 

whether jurors would need to be unanimous regarding any one form of 

aggravated battery. 

My uncertainties partly arise from an earlier Illinois intermediate 

appellate court decision. See People v. Diaz, 614 N.E.2d 268 (Ill. App. Ct. 1993). 

The Diaz court dealt with jury unanimity, which in substance is our issue. 

Jurors were given a verdict form which provided they could find Diaz guilty of 

aggravated battery if he “[1] intentionally and knowingly caused great bodily 

harm . . . or . . . [2] knowingly and intentionally caused bodily harm . . . and 

used a deadly weapon.” Id. at 270. The offenses the Diaz court considered on 

the issue of juror unanimity are quite similar to the offenses the Cherry court 

considered on an unrelated issue of sentencing. 

The defendant in Diaz argued that the general verdict form was fatally 

flawed because the jury did not need to be unanimous regarding the two 

theories of aggravated battery. Id. The court disagreed, holding the jury 

needed to be unanimous regarding the defendant’s guilt of the crime charged, 

not the “‘alternate ways in which the crime can be committed[.]’” Id. at 271 

(quoting People v. Travis, 525 N.E.2d 1137, 1147 (Ill. App. Ct. 1988)). That 

would indicate at least some of the aggravating factors in the aggravated 

battery statute are means, not elements. 

There are Illinois Supreme Court decisions that, like Diaz, fully embrace 

general verdicts for offenses that can be committed in disparate ways, a fact 

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recognized in the court’s approved pattern jury instructions.1 We read too 

much into Cherry to conclude it definitely meant “elements” in the Mathissense when that was not the court’s concern. 

Diaz must be viewed for what it is: an earlier decision of an intermediate 

court dealing with an earlier aggravated-battery statute. Even so, because the 

opinions were discussing different legal issues, I do not believe the Diaz 

decision which indicates the two forms of battery it was discussing should be 

considered two different means, and Cherry which uses “elements” for quite 

similar offenses, are necessarily inconsistent. Hence, my uncertainty. 

Still, Cherry does not discuss Diaz. It did not need to as its issue was 

different. Perhaps Cherry implies that, if put to the test, the Illinois Supreme 

Court would hold that the forms of aggravated battery under Section 5/12-

3.05(f)(1)–(4) contain separate Mathis elements. We have considered cases 

before that imply divisibility. See, e.g., United States v. Mendez-Henriquez, 847 

F.3d 214, 219 (5th Cir. 2017). The implication is strengthened when we see 

that the Diaz court recognized there are “due process limitations on a ‘State’s 

capacity to define different courses of conduct, or states of mind, as merely 

alternative means of committing a single offense[.]’” Diaz, 614 N.E.2d at 272 

(quoting Schad v. Arizona, 501 U.S. 624, 632 (1991)). The variation among the 

forms of aggravated battery in the four subparts of Subsection (f) are quite 

 

1 See People v. Smith, 906 N.E.2d 529, 538 (Ill. 2009) (“[B]ecause first degree murder 

is a single offense, it is constitutionally permissible for jurors to return a general verdict of 

guilty even if there is no juror unanimity with regard to the means by which the murder was 

committed.”); Illinois Pattern Instruction Criminal No. 26.01 at 5–6 (using aggravated 

battery as an example for an instruction that may be used where “a defendant is charged in 

multiple counts with an offense that can be charged with different elements,” but noting that 

distinguishing among the ways in which the offense can be committed is not mandatory 

according to People v. Travis, 525 N.E.2d 1137 (Ill. App. Ct. 1988)); cf. People v. Graves, 800 

N.E.2d 790, 793 n.1 (Ill. 2003) (referring to aggravated battery as “[a] textbook example of a 

single offense that can be committed in multiple ways,” yet distinguishing two subsections, 

referring to each as an “offense,” and observing they contain distinct “elements”).

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different from each other, except for the two (Subparts (1) and (3)) that both 

deal with the use of a deadly weapon. 

All that said, I see Judge Reavley’s interpretation of Cherry just to be 

one possible view. Our task certainly does not end, though, even if Cherry does 

not provide clear answers. See Mathis, 136 S. Ct. at 2256–57. We can also 

examine whether “the statute on its face” resolves the issue, as Judge Reavley 

notes. Id. at 2256. The section of the Illinois statute at issue here does not 

seem to be providing “illustrative examples” but instead identifying widely 

different crimes, suggesting “elements.” See id. Further, looking at the entire 

statute, the final Subsection (h) specifies different classifications for some but 

not all of the specific aggravated-battery provisions, which leads to different 

sentences. See 720 ILL. COMP. STAT. § 5/12-3.05(h). The provision at issue in 

our case is not identified in Subsection (h) as having a specific sentence range, 

but this part of the statute provides some evidence regarding the entire 

statute. When “statutory alternatives carry different punishments, then under 

Apprendi they must be elements.” Mathis, 136 S. Ct. at 2256. 

So far, the evidence points towards the subparts of Subsection (f) 

containing different elements. Still, if doubt remains, we examine “the record 

of a prior conviction itself.” Id. In one case where “state law [did] not give us 

a clear answer” on this issue, we held the statute was divisible because the 

defendant “actually pleaded guilty” to a specific element, and the documents 

in the record made clear that the statute set forth elements. Ibanez-Beltran v. 

Lynch, 858 F.3d 294, 298 (5th Cir. 2017). In another case, we first took note of

one state court decision that “implie[d] the statute list[ed] alternative 

elements,” but turned to the record of conviction because that case was not 

dispositive. See Mendez-Henriquez, 847 F.3d at 219. Because the defendant 

was charged with one element to the exclusion of all others, we held that “the 

statute enumerates alternative elements for committing a felony[.]” Id.

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This record contains a copy of Reyes’s indictment. He was charged with 

a violation of Section 5/12-3.05(f)(1). The indictment said a dangerous weapon

was used, specifically a machete. It contained no citation to or inclusion of 

language from any other subpart, i.e., no reference to hoods or robes or 

recording the crime. This peek at the court record supports that the statute is 

divisible. 

I find it necessary to go beyond Cherry. Doing so, I reach the same 

destination as does Judge Reavley, namely, that this subsection of the 

aggravated-battery statute is divisible. 

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PRISCILLA R. OWEN, Circuit Judge, dissenting: 

The question to be resolved is whether a conviction for aggravated 

battery under 720 ILL. COMP. STAT. § 5/12-3.05 is a “crime of violence” within 

the meaning of section 2L1.2(b)(1)(A)(ii) of the United States Sentencing 

Guidelines that was in effect when Reyes was sentenced in 2016.1 To answer 

this question, we must determine whether section 5/12-3.05 is “divisible” 

within the meaning of the Supreme Court’s decision in Mathis v. United 

States.2 The Court explained in Mathis that if, under state law, a jury need 

not agree on the particular method by which the defendant committed an 

offense, then alternative methods set forth in the statute of conviction are 

“means” of committing the offense, not “elements” of the offense.3 A statute 

that sets forth “means” rather than “elements” is not divisible. A decision from 

an intermediate Illinois appellate court, People v. Diaz, held that when a jury 

is presented with two statutorily described alternative ways of committing 

aggravated battery, jurors, in convicting the defendant, need not agree as to 

which of the alternatives occurred.4 A more recent intermediate appellate 

 

1 See U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2L1.2 cmt. n.1(B)(iii) (U.S.

SENTENCING COMM’N 2015): 

“Crime of violence” means any of the following: murder, manslaughter, 

kidnapping, aggravated assault, forcible sex offenses . . . , statutory rape, 

sexual abuse of a minor, robbery, arson, extortion, extortionate extension of 

credit, burglary of a dwelling, or any other offense under federal, state, or local 

law that has as an element the use, attempted use, or threatened use of 

physical force against the person of another.

2 136 S. Ct. 2243 (2016).

3 Id. at 2256 (“This threshold inquiry—elements or means?—is easy in this case, as it 

will be in many others. Here, a state court decision definitively answers the question: The 

listed premises in Iowa’s burglary law, the State Supreme Court held, are ‘alternative 

method[s]’ of committing one offense, so that a jury need not agree whether the burgled 

location was a building, other structure, or vehicle. When a ruling of that kind exists, a 

sentencing judge need only follow what it says.” (alteration in original) (citation omitted) 

(quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981))).

4 614 N.E.2d 268, 270-71 (Ill. App. Ct. 1993).

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court decision recognizes that Diaz stands for the proposition that the State 

may present a jury with alternative bases, as identified in the aggravated 

battery statute, on which to convict a defendant and that jury unanimity is not 

required.5 Though Diaz did not deal with subsection (f) of Illinois’s aggravated 

battery statute, but instead concerned former sections 11.05, 11.07, and 11.09 

of the Illinois criminal statutes that governed aggravated battery,6 its holding 

is highly instructive and has not been overruled. Unless and until the Illinois 

courts say otherwise, the Diaz decision, coupled with the Illinois Supreme 

Court’s decision in People v. Smith,7 provides significant guidance regarding

jury unanimity that we should accept. 

I 

A “crime of violence,” as defined in section 2L1.2(b)(1)(A)(ii) of the 

Guidelines, includes “any . . . offense under federal, state, or local law that has 

as an element the use, attempted use, or threatened use of physical force 

against the person of another.” The Government contends that Reyes’s 

conviction under section 5/12-3.05(f) necessarily “has as an element the use, 

attempted use, or threatened use of physical force against the person of 

another.” 

A person commits the offense of “battery” under Illinois law “if he 

or she knowingly without legal justification by any means (1) causes bodily 

harm to an individual or (2) makes physical contact of an insulting or 

provoking nature with an individual.”8 The offense of “battery” does not have 

 

5 See People v. Smith, 866 N.E.2d 1192, 1198 (Ill. App. Ct. 2007), aff’d in part and rev’d 

in part, 906 N.E.2d 529 (Ill. 2009) (explaining that in Diaz, the jury could have convicted the 

defendant without agreeing upon which “alternative course of conduct that the defendant 

committed”).

6 See Diaz, 614 N.E.2d at 271. 

7 906 N.E.2d at 540-42. 

8 720 ILL. COMP. STAT. § 5/12-3.

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as an element the use, attempted use, or threatened use of physical force 

against the person of another.9 Reyes was convicted of “aggravated battery” 

under section 5/12-3.05(f), which provides: 

(f) Offense based on use of a weapon or device. A person 

commits aggravated battery when, in committing a battery, he or 

she does any of the following: 

(1) Uses a deadly weapon other than by discharge of a 

firearm, or uses an air rifle as defined in Section 24.8-0.1 of 

this Code. 

(2) Wears a hood, robe, or mask to conceal his or her 

identity. 

(3) Knowingly and without lawful justification shines 

or flashes a laser gunsight or other laser device attached to 

a firearm, or used in concert with a firearm, so that the laser 

beam strikes upon or against the person of another. 

(4) Knowingly video or audio records the offense with 

the intent to disseminate the recording. 

If section 5/12-3.05(f) is divisible, then a conviction under subsection (1) 

would involve the use or threatened use of physical force against the person of 

another, but a conviction under subsection (2) or (4) would not. However, as 

explained above, the Illinois intermediate courts have not required a jury to 

agree on the method by which an aggravated battery was committed in order 

to convict a defendant. For example, a defendant could be charged under this 

section for committing a battery while “us[ing] a deadly weapon other than by 

discharge of a firearm” or while “wear[ing] a hood.” Jurors could disagree on 

whether a deadly weapon was used and still return a guilty verdict.

 

9 See United States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006).

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II

JUDGE REAVLEY’s opinion properly sets forth the “threshold inquiry” of 

“elements or means” from the Supreme Court’s decision in Mathis v. United 

States10 and correctly observes that “[s]tate courts are the ideal expositors of 

state law.”11 Resolving the threshold inquiry in Mathis was “easy” for the 

Supreme Court, because a “state court decision definitively answer[ed] the 

question” and “[w]hen a ruling of that kind exists, a sentencing judge need only 

follow what it says.”12 In Mathis, a state court decision definitively held that 

“[t]he listed premises in Iowa’s burglary law . . . are ‘alternative method[s]’ of 

committing one offense, so that a jury need not agree whether the burgled 

location was a building, other structure, or vehicle.”13 “Armed with such 

authoritative sources of state law, federal sentencing courts can readily 

determine the nature of an alternatively phrased list.”14

The guidance that we have from the Illinois courts indicates that 

a jury would not have to agree as to which subsection of section 5/12-3.05(f) 

applied in finding a defendant guilty under subsection (f). In People v. Diaz, 

the defendant was convicted of aggravated battery, though the jury 

instructions did not require the jury to agree on how the defendant actually 

committed the crime.15 Instead, the instructions “permitted the jury to return 

a general guilty verdict of aggravated battery” by finding that the defendant 

either “intentionally and knowingly caused great bodily harm” or “knowingly 

and intentionally caused bodily harm . . . and used a deadly weapon.”16 On 

 

10 136 S. Ct. 2243, 2256 (2016).

11 Ante at 4.

12 Mathis, 136 S. Ct. at 2256.

13 Id. (alteration in original) (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 

1981)). 

14 Id.

15 614 N.E.2d 268, 270 (Ill. App. Ct. 1993).

16 Id. 

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appeal, the defendant argued that allowing the jury to “disagree[] as to which 

alternative course of conduct [he] committed” violated his constitutional 

rights.17 An Illinois appellate court affirmed the conviction, quoting People v. 

Travis18 for the proposition that “the jury need only be unanimous with respect 

to the ultimate question of defendant’s guilt or innocence of the crime charged, 

and unanimity is not required concerning alternate ways in which the crime 

can be committed, and, accordingly, we so hold.”19 The threshold inquiry 

should end here, as it did in Mathis. 

 JUDGE SOUTHWICK’s opinion discounts Diaz as an older, 

intermediate appellate court decision.20 However, Illinois’s current pattern 

jury instructions reflect that Diaz continues to have purchase in the 

submission of aggravated battery to jurors. A “General Concluding 

Instruction” in the pattern jury instructions specifically allows a jury to convict 

a defendant of aggravated battery without agreeing on the alternative methods 

of the crime.21 The Committee Notes to the instructions state that “[w]hen a 

defendant is charged in multiple counts with an offense that can be charged 

with different elements,” the court may use a jury instruction that requires the 

jury to agree on which “particular way” the defendant committed the crime, 

but it is not required to do so.22 The instructions use aggravated battery as an 

example: 

An example would be a defendant charged in three separate counts 

with aggravated battery based upon his alleged (1) causing great 

 

17 Id.

18 525 N.E.2d 1137 (Ill. App. Ct. 1988).

19 Diaz, 614 N.E.2d at 271 (quoting Travis, 525 N.E.2d at 1147); see also People v. 

Jackson, 874 N.E.2d 123, 129 (Ill. App. Ct. 2007) (“Defendant was not entitled to a unanimous 

verdict on whether he fired the weapon or whether [his friend] fired the weapon.” (citing 

Travis, 525 N.E.2d at 1147)).

20 Ante at 14. 21 Illinois Pattern Jury Instructions–Criminal § 26.01 & accompanying notes.

22 Id.

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bodily harm, (2) causing bodily harm to a police officer, and (3) 

committing a battery upon a public way. Each of these charges is 

called aggravated battery, but each contains an element that must 

be proved beyond a reasonable doubt that neither of the other 

charges contains. Accordingly, a court may choose to distinguish 

on the verdict forms between the ways in which aggravated battery 

can be committed. If the court so chooses, then the opening 

sentence of the issues instructions as well as the guilty and not 

guilty verdict forms should be expanded to distinguish among the 

different ways a particular charge is before the jury. 

 . . . . 

The Committee wishes to emphasize that distinguishing 

among the various ways in which a given charge is brought is not 

required by law. In People v. Travis, 170 Ill. App. 3d 873, 525 

N.E.2d 1137, 121 Ill. Dec. 830 (4th Dist. 1988), the court rejected 

the argument that such distinctions were mandatory and stated 

the following: “the best rule is that the jury need only be 

unanimous with respect to the ultimate question of defendant’s 

guilt or innocence of the crime charged, and unanimity is not 

required concerning alternate ways in which the crime can be 

committed . . . .”23

JUDGE SOUTHWICK’s opinion suggests that “if put to the test, the Illinois 

Supreme Court would hold that the forms of aggravated battery under 

Section 5/12-3.05(f)(1)–(4) contain separate Mathis elements.”24 With great 

respect, this Erie guess25 seems to miss the mark for several reasons. First, at 

the time Reyes was convicted, through the present, Illinois courts have 

construed the varying methods of committing “aggravated battery” to comprise 

a single offense. The Illinois Supreme Court has construed varying means of 

committing murder to comprise a single event.26 Discounting and disregarding 

these state court opinions ignores “‘Taylor’s demand for certainty’ when 

 

23 Id.

24 Ante at 14. 

25 See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

26 See People v. Smith, 906 N.E.2d 529, 540-42 (Ill. 2009).

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determining whether a defendant was convicted of a generic offense.”27 A 

federal sentencing court must ask what the state court required a jury to find, 

under state law, to convict a defendant of the state offense at the time of 

conviction.28 Neither JUDGE REAVLEY’s opinion nor JUDGE SOUTHWICK’s 

opinion offers any basis for concluding with assurance that, at the time that 

Reyes was convicted, Illinois law treated the various methods of committing 

aggravated burglary set forth in section 5/12-3.05 as elements of separate 

offenses, not means of committing an offense. As will be discussed below, 

virtually all of the Illinois decisions indicate that the Illinois courts have 

treated aggravated battery, and certain other crimes with statutorilydescribed means of committing the offense, as a single offense. 

JUDGE REAVLEY’s opinion characterizes the holding in Diaz as “Illinois 

law on the permissibility of general verdicts where a defendant is charged with 

multiple and distinct offenses, and is unrelated to the present case where 

conviction matches the crime charged and satisfies federal sentencing 

requirements.”29 Though the defendant in Diaz was charged with multiple 

offenses, only aggravated battery was at issue on review, as he was acquitted 

of all other charges.30 The Diaz decision focused on the validity of a general 

verdict finding the defendant guilty of one offense—aggravated battery—“even 

though the jury may have disagreed over which of the instruction’s two 

alternative courses of conduct defendant committed.”31 Diaz is related to the 

 

27 Mathis v. United States, 136 S. Ct. 2243, 2257 (2016) (quoting Shepard v. United 

States, 544 U.S. 13, 21 (2005)).

28 See id. at 2255 (“[A]n ACCA penalty may be based only on what a jury ‘necessarily 

found’ to convict a defendant (or what he necessarily admitted).” (quoting Descamps v. United 

States, 133 S. Ct. 2276, 2287 (2013))).

29 Ante at 9.

30 People v. Diaz, 614 N.E.2d 268, 269 (Ill. App. Ct. 1993).

31 Id.

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present case because it demonstrates that Illinois law does not require jury 

unanimity how an aggravated battery was committed. 

JUDGE REAVLEY’s opinion relies on the Illinois Supreme Court’s decision 

in People v. Cherry,32 contending that its “ultimate holding” was that 

“aggravated battery with a firearm is a separate offense from aggravated 

battery.”33 The actual issue in Cherry was “whether aggravated battery with 

a firearm is an enhanced or aggravated version of aggravated battery, such 

that aggravated battery cannot serve as the predicate for armed violence.”34 

The court held that “like aggravated battery itself, aggravated battery with a 

firearm is an enhanced or aggravated form of battery. Consequently, there is 

absolutely no reason why, as charged in this case, aggravated battery cannot 

serve as the predicate for a charge of armed violence.”35 The Illinois court 

suggested in Cherry, in dicta, that aggravated battery involving the use of a 

deadly weapon might be a separate “offense,”36 but the court was not 

addressing the question we must resolve. It was not using the term “offense” 

in the context of Mathis’s distinction between a “means” of committing an 

offense and the “elements” of an offense. The Illinois court compared 

aggravated battery by great bodily harm and aggravated battery by use of a 

deadly weapon (contained in different subsections in the same former section), 

denominating “both of these provisions” “two forms of aggravated battery.”37 

The court continued by stating that “to prove the latter offense, the State must 

prove that the defendant . . . [used] a deadly weapon.”38

 

32 63 N.E.3d 871 (Ill. 2016).

33 Ante at 7.

34 Cherry, 63 N.E.3d at 879.

35 Id.

36 Id. at 877-78.

37 Id. 38 Id. at 877 (second alteration in original).

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The Illinois court did not hold in Cherry that in convicting a defendant 

of aggravated battery, jury unanimity was required as to whether aggravated 

battery had been committed by great bodily harm or instead had been 

committed by use of a deadly weapon. Rather, the court observed that they 

share the underlying offense of simple battery.39 

None of the other decisions cited in JUDGE REAVLEY’s opinion address 

the issue of juror unanimity, on which our analysis of section 5/12-3.05(f) 

turns.40 They address only the proof required when a specific means is 

charged,41 not whether a jury is required to agree if the defendant committed 

aggravated battery while wearing a hood or while using a deadly weapon other 

than by discharging a firearm. 

 JUDGE SOUTHWICK’s opinion correctly observes that certain 

subsections of Illinois’s aggravated battery statute carry different 

punishments42 and that, as a general proposition, when “statutory alternatives 

carry different punishments, then under Apprendi they must be elements.”43 

However, the punishment for an offense described in subsection (f) does not 

vary based on which of the four subsections is applicable.44 It is also important 

to understand that while federal sentencing courts may recognize that there 

may be an issue under Apprendi if, for example, the Illinois courts did not 

require jury unanimity as to which subsection of section 5/12-3.05(a) a 

defendant violated, since the punishment differs among those subsections, that 

does not speak to actual practice in the state courts. If a state court in actual 

 

39 Id. at 877-78.

40 See ante at 8 n.4.

41 See ante at 8 n.4.

42 Ante at 15; see 720 ILL. COMP. STAT. § 5/12-3.05(h).

43 Mathis v. United States, 136 S. Ct. 2243, 2256 (2016) (citing Apprendi v. New Jersey, 

530 U.S. 466 (2000)).

44 § 5/12-3.05(h).

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practice did not require juror unanimity, then a conviction under a statute with 

alternatives that fall outside the definition of a “crime of violence” should not 

be used to enhance a sentencing range, since the courts did not treat the 

statute as divisible within the meaning of Mathis. 

It bears repeating that the punishment for any conduct described in 

subsection 5/12-3.05(f) is the same. In any event, the fact that Illinois varies 

its punishments for conduct described within other subsections of section 5/12-

3.05, such as subsection (a), does not mean that the varying conduct described 

within every subsection of section 5/12-3.05 defines a separate “offense” such 

that the statute is divisible under Mathis. To the contrary, the Illinois courts 

have held that a single offense may have different punishments and that a jury 

may convict a defendant of that offense without specifying which means the 

defendant used to commit the crime.45 Instead of requiring jury unanimity as 

to which of the various means that were charged was actually employed, the 

Illinois courts have held that, at least when a trial court denies a defendant’s 

request for a specific verdict form for each means charged and instead submits 

a general verdict form, the sentence for the offense is limited to the most 

favorable sentence from the defendant’s perspective.46 

In People v. Smith, the Illinois Supreme Court described first degree 

murder as a single offense, even though the statute had “three ‘types’ of 

murder,”—intentional, knowing, and felony murder—and prescribed “different 

sentencing consequences based on the specific theory of murder proven.”47 The 

court concluded that the different types are “merely different ways to commit 

 

45 See People v. Smith, 906 N.E.2d 529, 540-42 (Ill. 2009).

46 Id.

47 Id. at 537, 538 (“While our statute describes three ‘types’ of murder, first degree 

murder is a single offense. As we have explained on numerous occasions, ‘the different 

theories embodied in the first degree murder statute . . . are merely different ways to commit 

the same crime.’” (quoting People v. Cooper, 743 N.E.2d 32, 39 (Ill. 2000))).

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the same crime” even though the sentencing consequences varied.48 The court 

explained that “because first degree murder is a single offense, it is 

constitutionally permissible for jurors to return a general verdict of guilty even 

if there is no juror unanimity with regard to the means by which the murder 

was committed,”49 citing Schad v. Arizona.50 The court upheld the murder 

conviction in Smith even though the jury returned a general verdict of guilty

without specifying which type of murder the defendant committed.51 The 

Illinois Supreme Court held that “where a defendant is charged with murder 

in multiple counts alleging intentional, knowing, and felony murder, and a 

general verdict of guilty is returned, the defendant is presumed to be convicted 

of the most serious offense.”52 However, because the defendant had requested 

specific verdict forms, and the trial court denied that request in submitting a 

general verdict form, the Illinois court held that the lesser sentence must be 

applied.53

 

48 Id. at 537 (quoting Cooper, 743 N.E.2d at 39); see also id. at 538 (“While it is 

certainly true that first degree murder is but a single offense and, thus, a general verdict 

need not rest on a unanimous finding of a particular theory of murder, it is also true that 

there may be different sentencing consequences based on the specific theory of murder 

proven. For example, there are several aggravating factors, applicable only to murders 

committed intentionally or knowingly, which, if proven to exist, will support a sentence of 

death.”); id. (“However, a person convicted of felony murder is eligible for the death penalty 

only if the sentencing jury finds beyond a reasonable doubt . . . that the defendant actually 

killed the victim or substantially contributed to his physical injuries and, in so doing, 

intended to kill or knew that his acts caused a strong probability of death or great bodily 

harm.”).

49 Id. at 538.

50 501 U.S. 624, 631-32 (1991).

51 Smith, 906 N.E.2d at 545. 

52 Id. at 540.

53 Id. at 541-43, 544-45 (noting that “where a defendant is charged with murder in 

multiple counts alleging intentional, knowing, and felony murder, and a general verdict of 

guilty is returned, the defendant is presumed to be convicted of the most serious offense—

intentional murder—so that judgment and sentence should be entered on the conviction for 

intentional murder and the convictions on the less serious murder charges should be 

vacated,” but concluding “that where, as here, specific findings by the jury with regard to the 

offenses charged could result in different sentencing consequences, favorable to the 

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JUDGE REAVLEY’s opinion additionally asserts that this case can be 

resolved by using the documents from Reyes’s prior conviction “as an aid in 

determining [the] statute’s divisibility.”54 I sympathize with this view, but it 

was expressly rejected in Mathis. The defendant in Mathis had previously 

been convicted under an Iowa burglary statute that “covers more conduct than 

generic burglary does.”55 The Supreme Court reversed the sentence imposed 

under the Armed Career Criminal Act (ACCA) because it concluded that the 

Iowa statute was not divisible.56 JUSTICE BREYER’s dissenting opinion argued 

that the sentence could be upheld based on what was charged in that prior 

Iowa case and what the prosecution had to prove to get a conviction in that

case. JUSTICE BREYER’s opinion explained that “[t]he relevant state statute, 

an Iowa statute, says that a person commits a crime if he (1) ‘enters an occupied 

structure,’ (2) ‘having no right . . . to do so,’ (3) with ‘the intent to commit a 

felony.’”57 The statute “define[d] ‘occupied structure’ as including any (1) 

‘building,’ (2) ‘structure,’ (3) ‘land’ vehicle, (4) ‘water’ vehicle, or (5) ‘air vehicle, 

or similar place.’”58 But, “if the structure that the offender unlawfully entered 

was a land, water, or air vehicle, the state crime does not count as a 

‘burglary.’”59 JUSTICE BREYER’s dissenting opinion then examined the 

charging documents and advocated that Mathis had been convicted of generic 

 

defendant, specific verdict forms must be provided upon request and the failure to provide 

them is an abuse of discretion. Accordingly, we affirm the appellate court’s finding that, in 

the cases at bar, the trial courts erred when they refused defendants’ requests for separate 

verdict forms.”).

54 Ante at 10.

55 Mathis v. United States, 136 S. Ct. 2243, 2250 (2016).

56 Id. at 2253-54, 2257.

57 Id. at 2259 (BREYER, J., dissenting) (second alteration in original) (quoting IOWA 

CODE § 713.1).

58 Id. (quoting IOWA CODE § 702.12).

59 Id. at 2260.

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burglary because what the prosecutor actually charged, and therefore was 

required to prove, constituted generic burglary: 

Here, if we look at the court documents charging Mathis 

with a violation of the state statute, they tell us that he was 

charged with entering, for example, a “house and garage.” They 

say nothing about any other structure, say, a “water vehicle.” 

Thus, to convict him, the jury—which had to find that he 

unlawfully entered an “occupied structure”—must have found that 

he entered a “house and garage,” which concededly count as 

“building [s].” So why is that not the end of this matter? Why does 

the federal statute not apply?60

This understanding of the modified categorical approach was expressly 

rejected by the Court in Mathis, and JUDGE REAVLEY’s opinion reflects 

precisely the same logically appealing, but incorrect, understanding of the 

modified categorical approach. The Court’s opinion in Mathis draws a fine 

distinction as to when and for what purpose the record of a prior conviction 

may be consulted in determining if a statute is divisible.61 But the Court’s 

opinion in Mathis unequivocally disapproved of an approach like that advanced 

in JUDGE REAVLEY’s opinion because otherwise, in Mathis, the Court would not 

have reversed the court of appeals’ judgment.

 JUDGE REAVLEY’s opinion points to Illinois’s Murderer and Violent 

Offender Against Youth Registration Act,62 under which section 5/12-3.05(f)(1) 

can constitute a “violent offense against youth” but the other subsections of 

section 5/12-3.05(f) cannot.63 That section 5/12-3.05(f)(1) is singled out in this 

Act is not dispositive in our case. The Act lists two other types of aggravated 

battery that can constitute a violent offense against youth: aggravated battery 

by “great bodily harm or permanent disability or disfigurement,” section 5/12-

 

60 Id. (alteration in original) (citation omitted).

61 See id. at 2256-57 (majority opinion).

62 Ante at 9; 730 ILL. COMP. STAT. § 154/1.

63 730 ILL. COMP. STAT. § 154/5(b)(4.4).

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3.05(a)(1), and by committing battery on a “person who is pregnant or has a 

physical disability,” section 5/12-3.05(d)(2).64 However, as noted above, the 

Illinois pattern jury instructions use aggravated battery by “great bodily harm” 

as an example of one of the “various ways” of committing aggravated battery 

that does not require jury unanimity.65 That is, even though aggravated 

battery by great bodily harm is singled out by Illinois’s Murderer and Violent 

Offender Against Youth Registration Act, Illinois’s pattern jury instructions do 

not require jury unanimity on whether a defendant actually did cause great 

bodily harm. A type of aggravated battery is not necessarily a “discrete 

offense” because Illinois’s Murderer and Violent Offender Against Youth 

Registration Act singles it out as a type of aggravated battery that can 

constitute a “violent offense against youth.”66 

* * * 

 For these reasons, I respectfully dissent. 

 

64 Id.

65 Illinois Pattern Jury Instructions–Criminal § 26.01 & accompanying notes.

66 Ante at 9. 

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