# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted February 14

, 2018

Decided February 22 , 2018

Before

WILLIAM J. BAUER

, Circuit Judge

DIANE S. SYKES

, Circuit Judge

DAVID F. HAMILTON

, Circuit Judge

No. 17

- 1157

UNITED STATES OF AMERICA

, Plaintiff

- Appellee

,

v

.

WILLIAM BOSWELL

, Defendant

- Appellant

. Appeal from the United States District
Court for the Southern District of Indiana, Indianapolis Division

.

No. 1:12CR00098

- 001

William T. Lawrence

, Judge

.

O R D E R

William Boswell was convicted of possessing a firearm as a felon

, 18 U.S.C. § 924(g)(1), and sentenced under the Armed Career Criminal Act

, id

. § 924(e) . He filed a notice of appeal from his resentencing , which was ordered after Johnson v. United States

, 135 S. Ct. 2551 (2015) , and Welch v. United States , 136 S. Ct. 1257 (2016)

, inv alidated the
residual clause of the Act and held the invalidation retroactive

. His attorney moved to withdraw on the ground that the appeal is frivolous. See Anders v. California , 386 U.S. 738 (1967). Boswell has not respond ed to counsel’s motion. See 7 TH C IR

. R. 51(b).
Counsel submitted a brief explaining the nature of the case and addressing issues that an appeal of this kind might be expected to involve. Because the analysis in the brief appears thorough, we limit our review to the subjects that counsel discusses. See United NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 1157 Page 2

States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner , 103 F.3d 551, 553 (7th Cir. 1996).

We begin by describing the history of Boswell’s sentencing

. At his original sentencing

, the district judge deemed Boswell an armed career criminal based on t hree prior felony convictions

— one in Indiana for Class C felony battery and two in Florida for aggravated battery . He impose d a 235

- month prison term, which w e affirmed along
with Boswell’s conviction in United States v. Boswell , 772 F.3d 469, 471 (7th Cir. 2014)

. After the Supreme Court decided Johnson and Welch

, Boswell moved to vacate his

sentence under 28 U.S.C. § 2255 . T he parties stipulated that resentencing was warranted
because they believed that Boswell’s three convictions qualified as violent felonies
under only the invalidated residual clause. T he judge vacated the original sentence based on the parties’ stipulation

.
Before resentencing t he g overnment changed its position . It argu ed that all three

o f Boswell’s convictions constituted violent felonies under the Act ’s elements clause, § 924(e)(2)(B)( i) . That clause applies to felonies that include “ as an element the use, attempted use, or threatened use of physical force against the person of another .” At resentencing Boswell contended that his Indiana conviction did not meet th is definition ; he raised no argument about his two Florida convictions

. S iding with the government, the judge concluded that Boswell remained an armed career criminal and resentenced
him to 211 month s followed by 5 years of supervised release . The judge also ordered
him to pay a fine and special assessment.

Counsel first considers

, and correctly rejects as frivolous

, an argument that the judge erred by ruling that Boswell has three violent felonies under the Act

. We begin
with the Indiana conviction and look to the definition of Class C felony battery that applied at the time of Boswell’s conviction, I ND

. C ODE § 35

- 42

- 2

- 1(a)(3) ( e ffective July 1, 2007 to June 30, 2008 ) . Because the Indiana statute require d a touching that either caused “serious bodily injury” or was “ committ ed by means of a deadly weapon, ”
Boswell’s Indiana conviction for Class C felony battery qualifies as a violent felony under the elements clause of § 924(e)(2)(B)(i). S ee Douglas v. United States

, 858 F.3d 1069, 1071 (7th Cir. 2017) (reasoning that an act that actually causes “serious bodily injury”
must have entailed physical force within the meaning of the elements clause ) ; see also
United States v. Taylor , 630 F.3d 629, 635 (7th Cir. 2010) (decid ing that battery with a deadly weapon qualifies as a violent felony under the elements clause ).No. 17

- 1157 Page 3

We reach the same conclusion regarding B oswell ’s two Florida convictions for aggravated battery under § 784.045(1)(a)1 of the Florida Statutes . Because in the district court Boswell did not dispute that these convictions were for violent felonies, we would
review a challenge only for plain error

, United States v. Butler , 777 F.3d 382, 387

– 88 (7th Cir. 2015), but such a challenge would be frivolous

. Section 784.0 45(1)(a)1 requires “great bodily harm, permanent disability, or disfigurement,” all of which entail physical
force for purposes of the elements clause, i.e., “ force capable of causing physical pain or injury to another person.” See Curtis Johnson v. United States , 559 U.S. 133, 140 (2010)

. T wo other circuits al ready confirmed that aggravated battery in Florida is a violent felony under the elements clause

. S ee Turner v. Warden Coleman FCI (Medium) , 709 F.3d 1328, 1341 (11th Cir. 2013); United States v. Dominguez , 479 F.3d 345, 349 (5th Cir. 2007)

. Thus we see no potential argument for plain error.

Boswell’s attorney also considers whether the judge should have “ held [ the government ] to the stipulation ” that Boswell was not an armed career criminal

. T he

a ttorney correctly concludes this contention would be frivolous . J udges are not bound by stipulation s on legal questions

. United States v. Lisk , 522 F.2d 228, 231 n.8 (7th Cir. 1975); s ee also United States v. Barnes , 602 F.3d 790, 796 (7th Cir. 2010) (“ A stipulation is a contract between two parties to agree that a certain fact is true

. ... A contract between the prosecutor and the defendant cannot bind a third party

— the district court judge

... . ” )

. Rather judges must independently consider whether a statute requires a certain sentence

. S ee 18 U.S.C. § 3553(a)(3); United States v. Siegel , 753 F.3d 705, 714 (7th Cir. 2014); United States v. Moody , 770 F.3d 577, 580 (7th Cir. 2014)

. The judge did exactly this by revisiting the issue of Boswell’s status as an armed career criminal . Nor
did the law

- of

- the

- case doctrine require the judge to abid e by the stipulation

. That
doctrine g overns issue s of law decided by judge s

. S ee Pepper v. United States , 562 U.S. 476, 506 (2011 )

. Because Boswell’s armed

- career

- criminal status was tentatively agreed

upon by the parties , not the judge

, no prior ruling governed Boswell’s status at resentencing

.

Counsel next questions whether the judge misapplied the Sentencing Guidelines

. B ut counsel cannot identify any possible error ; nor can we. The judge correctly
calculated a G uidelines imprisonment range of 235 to 2 9 3 months based on a total offense level of 33 and a criminal history category of VI. Boswell’s total offense level
reflected his sta tus as an armed career criminal. S ee U.S.S.G. § 4B1.4 (a), (b)(3)(B) . And his criminal history category of VI was the result of a correct calculation of 17 criminal history points. Id. § 4B1.4 (c)(1). Two of those points were assessed because Boswell wasNo. 17

- 1157 Page 4

on probation at the time of his arrest, id. § 4A1.1(d), and the others resulted from his qualifying convictions under § 4A1.1( a ).

Lastly, t he attorney has considered whether he could contend that Boswell ’s sentence is substantively unreasonable

, but he has rightly concluded this argument
would be pointless

. Boswell’s below

- G uidelines prison term and within

- G uidelines period of supervised release are presumed reasonable. S ee United States v. White

, 868 F.3d 598, 603 (7th Cir. 2017) ; United States v. Jones , 774 F.3d 3 99, 404 (7th Cir. 2014 )

.
Counsel has not identified any reason to rebut th os e presumptions ; nor have we

. At resentencing t he judge assessed Boswell’s arguments in mitigation and properly
evaluated the sentencing factors in 18 U.S.C. § 3553(a). Boswell argued that a prison

term of 180 months was “sufficient ” based on his harsh childhood and good conduct in prison . As to good conduct

, Boswell pointed to several factors: he had worked to pay his special assessment and some of his fine , tak en prison classes, and received only one conduct report early in his term. The judge mentioned these aspects of Boswell’s personal history, acknowledging that he lacked childhood role models a nd “maybe ”
had “ turned around to some degree ” in prison. The jud ge credited him for working to pay his sentencing obligations ; for taking classes in anger management, personal development , and drug education ; and for his lack of recent conduct reports

. Nonetheless, the judge adequately justified a 211

- month term (which was 24 months less than the original sentence) by saying Boswell had “show [n] little or no respect for
the law” before his incarceration . In particular, a t trial Boswell had lied about possessing the gun for which he was convicted , despite “overwhe lming evidence ” of
his crime

. The judge ’s balancing of the se factors is reasonable

, so it w ould be frivolous
to ask us to substitute a different judgment if this case were to be argued on the merits

. United States v. Warner , 792 F.3d 847, 856 (7th Cir. 201 5),

Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.