### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 2861

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

R ANDALL J ENNINGS

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 15

‐ CR

‐ 138

— James D. Peterson

, Chief Judge

.

____________________

A RGUED A PRIL 4, 2017

— D ECIDED J UNE 16, 2017

____________________

Before W OOD

, Chief Judge

, and K ANNE and R OVNER

, Cir

‐

cuit Judges

.

R OVNER

, Circuit Judge

. Defendant Randall Jennings

pleaded guilty to being a felon in possession of a firearm. See

18 U.S.C. § 922(g)(1). At senten cing, the district court found

that Jennings’ prior convictions in Minnesota for simple robbery and felony domestic assault constituted convictions for

crimes of violence for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and the parallel provi-2 No. 16

‐ 2861

sion of the Sentencing Guidelines. Consequently, Jennings

was subject to a 15-year statutory minimum prison term

along with an enhanced Guide lines offense level and criminal history categorization. Jennings appeals, contending that

neither simple robbery nor dome stic assault, as Minnesota

defines those crimes, qualify as a crime of violence. We affirm.

I.

On August 22, 2015, an individual attempted to purchase

prescription Klonopin pills from Jennings in Hudson, Wisconsin. The transaction went aw ry for the purchaser when

Jennings put a gun to his head and Jennings’ girlfriend proceeded to steal his money from his truck. After the victim

reported the robbery, local police stopped Jennings’ car.

Nearby, police found a loaded semi-automatic Ruger handgun that Jennings’ girlfriend had thrown from his vehicle

shortly before he was pulled over. Jennings was arrested and

indicted for possessing a firearm following a felony conviction, in violation of section 922( g)(1). He eventually pleaded

guilty to that charge.

As relevant here, Jennings’ criminal history included a

prior conviction in Minnesota for simple robbe ry along with

two additional convictions in that same state for felony domestic assault. The probation officer’s pre-sentence report

(both original and as amended) treated those convictions as

crimes of violence for purposes of the armed career criminal

provisions of the Criminal Co de and the Sentencing Guidelines. See § 924(e); U.S.S.G. § 4B1.4. Jennings objected to the

characterization of these offens es, contending that, as defined by Minnesota law, they do not categorically involve

the use or threatened use of violent physical force and for

that reason do not qua lify as violent felonies. See Curtis Johnson v. United States , 559 U.S. 133, 140, 130 S. Ct. 1265, 1271

(2010). The district court, relying on our decisions in UnitedNo. 16

‐ 2861 3

States v. Maxwell , 823 F.3d 1057 (7th Cir.), cert. denied , 137

S. Ct. 401 (2016) (Minnesota simple robbery), and United

States v. Yang , 799 F.3d 750 (7th Cir. 2015) (Minnesota felony

domestic violence), overruled Jennings’ objections. After soliciting supplemental briefing, the court found that Jennings’

two Minnesota convictions for ma king terroristic threats also

constituted convictions for a violent crime—meaning that

Jennings had a total of five su ch prior convictions. R. 31.

Designation as an armed career criminal had a triple impact

on Jennings’ sentencing range: (1) pursuant to section 924(e),

Jennings was subject to a stat utory minimum term of 15

years; (2) coupled with Jennings’ use of a weapon in robbing

his prescription pill customer, it boosted his Guidelines base

offense level to 34, see U.S.S.G. § 4B1.4(b)(3)(A); and (3) again

in combination with his use of the gun to commit a robbery,

it pushed him into the upperm ost criminal history category

of VI, see U.S.S.G. § 4B1.4(c)(2). After a 3-level reduction in

the offense level for Jennings’ acceptance of responsibility,

see U.S.S.G. § 3E1.1(b), the Guidelines called for a sentence in

the range of 188 to 235 months. The district court elected to

impose a below-Guidelines sentence of 180 months, the lowest sentence that the ACCA permitted him to impose. Jennings appeals the treatment of his prior convictions as

crimes of violence.

II.

Whether any of Jennings’ prior convictions qualify as

crimes of violence, and in sufficient number to trigger the

statutory and Guidelines enhancements for career offenders,

present legal questions as to which our review is de novo.

E.g.

, United States v. Meherg , 714 F.3d 457, 458 (7th Cir. 2013).

Our focus shall be on Jennings’ prior convictions for simple robbery and felony domestic violence. The district court

relied in part on Jennings’ prior convictions under the Minnesota terroristic threat statute, Minn. Stat. § 609.713, subd.4 No. 16

‐ 2861

1, in concluding that Jennings is a career offender. But the

court’s rationale in that regard was premised on the notion

that the Minnesota statute is divisible as to the type of crime

the defendant threatens to commit in order to terrorize his

victims, rendering it permissible, using a modified categorical approach, to examine the so-called Shepard documents

( e.g. , the indictment, plea agr eement, and plea colloquy) in

order to determine whether the particular crime Jennings

had threatened to commit involves the threatened, attempted, or actual use of physical force. R. 31 at 2–3; see Shepard v.

United States , 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005)

. However, the government believe s that the Supreme Court’s

decision in Mathis v. United States , 136 S. Ct. 2243, 2256 (2016)

(if listed components of altern atively phrased criminal statute are means rather than elements, modified categorical

approach not permitted), 1 forecloses the district court’s

premise as to the divisibility ofthe statute. As the government does not defend the car eer criminal determination on

the basis of these convictions, we shall abstain from any

analysis of them and turn to Jennings’ convictions for robbery and domestic violence.

The ACCA, in relevant part, specifies that a person convicted of being a felon in posse ssion of a firearm pursuant to

section 922(g) shall be sentenced to a prison term of not less

than 15 years if he has three prior convictions “for a violent

felony or a serious drug offense, or both, committed on occasions different from one another.” § 924(e)(1). The “violent

felony” provision is the one that is relevant here. The statute

defines “violent felony” to includ e any felony that “(i) has as

an element the use, attempted use, or threatened use of

physical force against the person of another; or (ii) is burgla-

1 Mathis was decided on the same day as the district court’s decision as

to the terroristic threat convictions.No. 16

‐ 2861 5

ry, arson, or extortion, [or] in volves use of explosives[.]”

§ 924(e)(2)(B). None of Jennings’ prior offenses are among

those identified in the enumerat ed crimes-clause of the statute, § 924(e)(2)(B)(ii), so only if they satisfy the force clause,

§ 924(e)(2)(B)(i) can they qualify as violent felonies. 2

The armed career criminal guid eline specifies an elevated

offense level of 34 and a criminal history category of VI for a

defendant who is subject to an enhanced statutory minimum

sentence pursuant to section 924(e) and whose underlying

offense involved the use or possession of a firearm in connection with (as relevant here) a crime of violence. U.S.S.G.

§ 4B1.4(b)(3)(A) and (c)(2). The guideline’s definition of

“crime of violence” includes a force clause that is identical to

the force clause of section 924(e), see U.S.S.G. § 4B1.2(a)(1),

cross

‐ referenced by § 4B1.4(b)(3)(A), and consequently the

analysis as to whether a particular conviction constitutes a

crime of violence because it has as an element the use of

force is the same whether we are applying the guideline or

the ACCA. See

, e.g.

, United States v. Wyatt , 672 F.3d 519, 521

(7th Cir. 2012).

Our assessment of the two state offenses at issue in this

appeal entails a categorical inquiry. The facts underlying

Jennings’ prior convictions are irrelevant to our evaluation;

our one and only consideration is whether each of the statutes pursuant to which Jennings was convicted has as an element the use, attempted use, or threatened use of physical

2 The residual clause of section 924(e)(2)(B)(ii), which treats as a violent

felony any offense that “otherwise involves conduct that presents a seri

‐

ous potential risk of physical injury to another,” was declared unconsti

‐ tutionally vague in Samuel Johnson v. United States

, 135 S. Ct. 2551 (2015).

Consequently, a felony offense must meet the criteria of either the force

clause or the enumerated

‐ crimes clause in order to qualify as a violent

felony.6 No. 16

‐ 2861

force against the person of another. See Taylor v. United

States , 495 U.S. 575, 600–02, 110 S. Ct. 2143, 2159–60 (1990);

United States v. Maxwell

, supra , 823 F.3d at 1060–61.

Curtis Johnson v. United States

, supra , 559 U.S. at 140, 130

S. Ct. at 1271, 3 defines “physical force” to mean “violent

force,” in other words, “force capable of causing physical

pain or injury to another pe rson.” 559 U.S. at 140, 130 S. Ct.

at 1271 (emphasis in original). The mere touching of another

person, which is all the force that the prior state conviction at

issue in Curtis Johnson required, is not sufficient to satisfy the

ACCA. Id. at 139, 130 S. Ct. at 1270. Curtis Johnson thus requires us to consider whether the Minnesota statutes under

which Jennings was convicted categorically require the use

or threatened use of violent ph ysical force as that case defines it.

A.

We begin with the offense of simple robbery. Minn. Stat.

§ 609.24 provides that “[w]hoever, having knowledge of not

being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the

imminent use of force against any person to overcome the

person’s resistance or powers of resistance to, or to compel

acquiescence in, the taking or carrying away of the property

is guilty of robbery ... .” Our decision in Maxwell recognized

that under Minnesota law, fifth-degree assault is a lesser included offense of simple robbery. 823 F.3d at 1061 (citing

State v. Stanifer , 382 N.W.2d 213, 220 (Minn. Ct. App. 1986)).

The Minnesota criminal code defines fifth-degree assault as

an act committed with “intent to cause fear in another of

3 We are using the petitioner’s full name in citing the case to distinguish

it from Samuel Johnson v. United States

, 135 S. Ct. 2551, supra n.2, which

held the residual clause of the ACCA to be unconstitutional.No. 16

‐ 2861 7

immediate bodily harm or death” or “intent[ ] [to] inflict[ ]

or attempt[ ] to inflict bodily harm upon another.” Minn.

Stat. § 609.224, subd. 1; see Maxwell , 823 F.3d at 1061. “Bodily

harm” is in turn defined as “physical pain or injury, illness,

or any impairment of physical condition.” Minn. Stat.

§ 609.02, subd. 7. In short, in order to commit simple robbery

in Minnesota, one must intentionally inflict, or attempt to

inflict, physical pain or injury upon another or must act in

such a way as to place a person in fear of physical injury,

pain, or death. For that reason, Maxwell rejected an argument

that it might be possible to co mmit simple robbery in Minnesota by means of mental force, which (Maxwell believed)

would not meet Curtis Johnson ’s requirement that violent

physical force be used before an offense can be labeled a

crime of violence. 823 F.3d at 1061. See also United States v.

Raymond , 778 F.3d 716, 717 (8th Cir. 2015) (per curiam); United States v. Samuel Johnson , 526 F. App’x 708, 711 (8th Cir.

2013) (non-precedential decision), j. rev’d on other grounds

, 135 S. Ct. 2551 (2015).

Jennings urges us to overrule Maxwell , arguing that we

overlooked a parallel line of Mi nnesota cases that, in contrast

to Stanifer , appears not to require the use or threatened use

of substantial physical force. He notes that in State v. Burrell

, 506 N.W.2d 34 (Minn. Ct. App. 1993), the Minnesota Court

of Appeals said that “[m]ere force suffices for the simple

robbery statute,” id. at 37, and Jennings equates “mere force”

with de minimis force that woul d neither inflict pain or injury nor instill fear of pain or injury. By way of illustration, he

highlights a series of cases in which Minnesota courts have

expressly found relatively modest physical contact with or

injury to a victim sufficient to satisfy the force element of

robbery. See State v. Slaughter , 691 N.W.2d 70, 76 (Minn.

2005) (snatching chains from victim’s neck, leaving scratches); State v. Nelson , 297 N.W.2d 285 (Minn. 1980) (per curiam)8 No. 16

‐ 2861

(jostling and grabbing victim and pulling on his jacket); Duluth St. Ry. Co. v. Fidelity & Deposit Co. of Md. , 161 N.W. 595

(Minn. 1917) (“gentle but firm” crowding of victim inside of

elevator).

This line of argument has divided judges in the District

of Minnesota. Compare United States v. Pettis , 2016 WL

5107035, at *3 (D. Minn. Sept. 19, 2016) (holding simple robbery not a crime of violence), appeal filed , No. 16-3988 (8th

Cir. Oct. 20, 2016), with United States v. Willis , 2017 WL

1288362, at *3 & n.3 (D. Minn. Apr il 6, 2017) (holding simple

robbery does constitute crime of violence); United States v.

Taylor , 2017 WL 506253, at *5–*7 (D. Minn. Feb. 7, 2017)

(same), appeal filed , No. 17-1760 (8th Cir. April 10, 2017);

United States v. Pankey , 2017 WL 1034581, at *3 n.2 (D. Minn.

Mar. 16, 2017) (same). See also Ward v. United States , 2017 WL

2216394, at *5–*7 (D. Id. May 18, 2017) (deeming Minnesota

simple robbery to be crime of violence). But we are not persuaded by Jennings’ argument.

First, as the government rightly points out, Burrell ’s use

of the phrase “mere force” does not signal that de minimis

force is sufficient to satisfy the force element of simple robbery. Burrell used that phrase to distinguish aggravated robbery, Minn. Stat. § 609.245, from simple robbery, § 609.24.

The defendant in that case argue d that the two statutes overlapped impermissibly and that, on the facts, either could

control, such that his conviction should be reduced to the

lesser of the two offenses. The court rejected that argument,

reasoning that the statutes described distinct crimes. 506

N.W.2d at 37. Aggravated robbery, the court pointed out,

requires that the victim suffer an injury by virtue of the defendant’s use of force, whereas simple robbery is satisfied by

the use or threat of force, without more. Id. That is what the

court meant by “mere force.” The defendant in Burrell did

not contend that the particular degree of force he used inNo. 16

‐ 2861 9

carrying away a store owner’s property (he threw the store

owner against a car, bit her wris t, punched her in the face,

and knocked her to the ground) was insufficient to sustain

his convictions.

Second, neither of the two addi tional cases that Jennings

and other defendants point to as confirmation that de minimis force is sufficient to sustai n a conviction for simple robbery in Minnesota— Nelson or Duluth St. Ry. —really stands

for that proposition at all.

In Nelson , the defendant and his accomplice, both adults,

set out to rob a 13-year-old boy they saw alighting from a

bus because he appeared to ha ve “lots of money.” Having

resolved to “get[ ]” the boy, they proceeded to follow, “jostle[ ]” and “grab[ ]” him. As the defendant pulled on the victim’s jacket, the boy managed to slip out of it and run to his

family’s nearby restaurant for help. The boy’s father later

came upon the two perpetrators going through the pockets

of the jacket. In appealing his conviction for simple robbery,

the defendant argued that the jury should have been instructed on the lesser included offenses of misdemeanor and

felony theft, because his use of force was so minimal as to

negate the notion that his victim had acquiesced to that

force. The Minnesota Supreme Court wasted few words on

this argument, agreeing with the trial court that “ there was

no rational basis for a finding that defendant’s use of force

did not cause the victim to acquiesce in the taking of the

property.” 297 N.W.2d at 286.

What is apparent from the facts of Nelson is that the de

‐

fendant and his accomplice intended to employ substantial

physical force in order to relieve a minor of his money; the

defendant’s act of pulling on the victim’s jacket was but one

manifestation of that intent. As it happened, that one tug on

the jacket pre

‐ terminated the encounter, because it gave the10 No. 16

‐ 2861

young victim the opportunity to escape his assailants and

seek help. It is a fair, and perhaps inevitable, inference that

the boy ran from his assailants in fear for his safety, sacrific

‐ ing his jacket (which the defendant admitted was not what

he and his accomplice were after) in order to avoid pain

and/or injury. As the district court in Taylor put it, “The force

in Nelson was more than de minimis; two adults pursing a

13

‐ year

‐ old with the intention of ‘getting him,’ following

him and grabbing him, constitutes force—and surely the

threat of force—capable of causing physical pain, if not also

injury.” 2017 WL 506253, at *5.

Duluth St. Ry. is barely relevant, let alone instructive. The

issue in that civil case was whether an insurance policy’s

coverage as to robbery included pickpocketing. Thieves had

exerted “gentle but firm” pressure to “crowd” (i.e., closely

surround) the insured on an elevator, and then surreptitiously took from his coat po cket an envelope containing

$1,600 in cash. The insured contended that this qualified as

robbery under the policy, given that force was used to effectuate the theft—albeit not to overcome the victim’s resistance, but rather to distract th e victim so that his pocket

could be picked surreptitiously . The insurance company, by

contrast, contended that coverage was limited to instances in

which force was used to overcome a victim’s resistance. The

court agreed with the insured, reasoning in essence that a

theft amounts to robbery when it is accomplished by any

degree of force, whether said force is used to overcome a victim’s resistance or to prevent the victim from realizing his

property has been taken from him. Id. at 301–02. But the

court was construing the policy terms rather than the Minnesota criminal code, and for guidance the court consulted

the common law (citing precedents from multiple states) rather than the current Minnes ota robbery statute, whichNo. 16

‐ 2861 11

would not be enacted for another 46 years. 4 In ruling for the

insured, the court also construed the policy against the insurance company (which had authored its terms) and in favor of the insured. Id. at 302. The case has no bearing on

what constitutes simple robbery under the current Minnesota statute. See Ward v. United States

, supra , 2017 WL 2216394,

at *5; Taylor, 2017 WL 506253, at *5.

It is true enough, however, that contemporary Minnesota

cases do sustain robbery convictions based on the use (or

threatened use) of relatively li mited force or infliction of minor injuries. See Slaughter , 691 N.W.2d at 72, 76 (snatching

gold chains from victim’s neck, leaving scratches: “these

scratches provide sufficient evid ence of the ‘use of force’

necessary to sustain a conviction of simple robbery”); State v.

Nash , 339 N.W.2d 554, 557 (Minn. 1983) (“if a defendant

pushes a victim against a wall and takes his wallet, then the

defendant has committed robbery, not theft from the person”) (citing Minn. Stat. § 609.24, advisory committee comment (1963)); State v. Kvale , 302 N.W.2d 650, 652-53 (Minn.

1981) (running up to and poundi ng on window of victim’s

car); State v. Oksanen , 249 N.W.2d 464, 466 (Minn. 1977) (per

curiam) (grabbing and pushing victim, causing him to fall);

State v. Gaiovnik , 2010 WL 1439156, at *4 (Minn. Ct. App.

April 13, 2010) (non-precedential decision) (“grabbing or

yanking [the victim’s] arm and pulling on it when she resisted him taking her purse”), j. aff’d , 794 N.W.2d 643 (Minn.

2011); State v. Taylor , 427 N.W.2d 1, 4 (Minn. Ct App. 1988)

(placing hand under shirt, as if holding gun, and telling convenience store occupants to get down on floor). These instances of force might result in minor injuries, such as

scratches or reddened skin, or none at all. Jennings com-

4 Notably, a common

‐ law definition of force was what the Supreme

Court rejected in Curtis Johnson

. 559 U.S. at 138

‐ 143, 130 S. Ct. at 1270–73.12 No. 16

‐ 2861

plains that if the relatively mi nor manifestations of force involved in these cases are deemed to constitute violent force

for purposes of section 924(e), then any manner of quotidian

physical force—kicks, scratches, shoves, and slaps—will also

qualify, which in his view is contrary to Curtis Johnson ’s conclusion that “physical force” connotes strong, i.e. “ violent

force.” 559 U.S. at 140, 130 S. Ct. at 1271 (emphasis in original). See Pettis

, supra , 2016 WL 5107135, at *3 (“Minnesota’s

simple-robbery statute ... does not require the government

to prove that the defendant used a strong, substantial, or violent degree of force.”) (emphasis ours).

But in suggesting that the force employed must be of

such a degree as to cause (or threaten) more serious injuries

in order to qualify as violent fo rce, Jennings is setting the bar

higher than Curtis Johnson itself does. Curtis Johnson held that

force sufficient to cause physic al pain or harm qualifies as

violent force. 559 U.S. at 140–41, 130 S. Ct. at 1271. Any

number of physical acts may cause physical pain: C urtis

Johnson itself suggested that a slap in the face might suffice.

559 U.S. at 143, 130 S. Ct. at 1272. Similarly, any number of

forceful acts beyond simple touching may in context suffice

to inflict bodily harm upon a victim (or instill fear of such

harm). Such acts qualify as vi olent force in the sense that

they have the capacity to inflic t physical pain, if not concrete

physical injury, upon the victim. Justice Scalia’s concurrence

in United States v. Castleman , 134 S. Ct. 1405 (2014), thus

makes the point that physical actions such as hitting, slapping, shoving, grabbing, pinc hing, biting, and hair-pulling

all qualify as violent force under Curtis Johnson : “None of

those actions bears any real resemblance to mere offensive

touching, and all of them are capable of causing physical

pain or injury.” Id. at 1421 (Scalia, J., concurring in part andNo. 16

‐ 2861 13

concurring in the judgment). 5 Because he was the author of

the majority opinion in Curtis Johnson , courts have treated

his concurrence on this point as more authoritative than it

otherwise might be. See United States v. Harris , 844 F.3d 1260,

1265 (10th Cir. 2017), pet’n for cert. filed , No. 16-8616 (U.S.

April 4, 2017); United States v. Hill , 832 F.3d 135, 142 (2d Cir.

2016); United States v. Rice , 813 F.3d 704, 706 (8th Cir.), cert.

denied , 137 S. Ct. 59 (2016); Taylor

, supra , 2017 WL 506253, at

*2.

For all of these reasons, we remain convinced that Maxwell was correctly decided, and that Minnesota simple robbery constitutes a crime of violence for purposes of section

924(e).

B.

This brings us to Jennings’ two convictions for felony

domestic assault. Minnesota law provides that an individual

is guilty of misdemeanor domestic assault if he takes one of

the following actions against a family member: “(1) commits

an act with intent to cause fe ar in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to

inflict bodily harm upon another.” § 609.2242, subd. 1. The

offense becomes a felony if committed “within ten years of

5 The majority in Castleman concluded that 18 U.S.C. § 922(g)(9), which

proscribes the possession of a firearm by one convicted of a misdemean

‐

or crime of domestic violence—defined in relevant part as a crime com

‐

mitted against a family member or intimate partner that has as an ele

‐

ment the use or attempted use of physical force, see 18 U.S.C.

§ 921(a)(33)(A)(ii)—incorporates the common

‐ law definition of force,

including offensive touching. 134 S. Ct. at 1410. Justice Scalia disagreed

on that point, but he thought that Curtis Johnson ’s definition of “physical

force” was sufficient to encompass most criminal acts characterized as

domestic violence and to include the defendant’s prior conviction in the

case before the Court.14 No. 16

‐ 2861

the first of any combination of two or more previous qualified domestic violence-relat ed offense convictions ... .”

§ 609.2242, subd. 4. As noted above, bodily harm is defined

to include “physical pain or injury, illness, or any impairment of physical condition .” Minn. Stat. § 609.02, subd. 7.

Having in mind that what Curtis Johnson defines as vio

‐

lent force is the use or threatened use of force “capable of

causing physical pain or injury to another person,” 559 U.S.

at 140, 130 S. Ct. at 1271, one may readily conclude, as we

did in United States v. Yang

, supra

, 799 F.3d at 756, that a fel

‐

ony domestic assault as defined by Minnesota constitutes a

crime of violence. The statute envisions action by the de

‐

fendant that either inflicts physical pain or injury on the vic

‐

tim or places the victim in fear of immediate pain or injury.

Id. ; s ee also Yates v. United States

, 842 F.3d 1051, 1053 (7th Cir.

2016) (criminal statute proscribing the intentional infliction

of bodily harm—defined to mean physical pain or injury,

illness, or any impairment of physical condition—upon a

victim “tracks what Curtis Johnson said would suffice: force

capable of causing physical pain or injury to another per

‐

son”), cert. denied

, 137 S. Ct. 1392 (2017). Jennings suggests

that Yang was wrongly decided on two grounds, but we find

neither of his arguments persuasive.

Jennings’ first contention is that the domestic assault

statute, although it requires the infliction of bodily harm on

the victim (or instilling the fear of such harm), does not re

‐ quire an act of physical force to be the agent of such harm.

As our colleagues in the First Circuit put it when confronted

with comparable statutory language, “the text [of the statute]

... speaks to the ‘who’ and the ‘what’ of the offense, but not

the ‘how,’ other than requiring ‘intent’.” Whyte v. Lynch

, 807

F.3d 463, 468 (1st Cir. 2015). Because the statute does notNo. 16

‐ 2861 15

speak to the means of inflicting harm, Jennings believes it

possible that one could commit domestic assault in Minneso

‐

ta without actually employing physical force. By way of il

‐

lustration, he suggests that a parent might be guilty of do

‐

mestic assault if he inflicts harm on his child by withholding

food. Jennings Br. 23.

The notion that an offense cannot qualify as a violent

crime unless the underlying statute expressly requires both

the infliction of bodily harm and the employment of physical

force to inflict that harm is one that has found favor in a

number of circuits. See

, e.g.

, Whyte

, 807 F.3d at 468–69, 471

(concluding that Connecticut third

‐ degree assault does not

constitute a crime of violence under 18 U.S.C. § 16(a), be

‐

cause although relevant subsection of statute requires the

intentional infliction of bodily harm on another person, it

does not specify that the harm must be inflicted by way of

physical force); United States v. Torres

‐ Miguel

, 701 F.3d 165,

168–69 (4th Cir. 2012) (willfully threatening to commit crime

resulting in death or great bodily injury to another, as pro

‐

scribed by California statute, does not constitute crime of vi

‐

olence for purposes of unlawful entry guideline, U.S.S.G.

§ 2L1.2, because statute does not require threatened use of

physical force); United States v. Villegas

‐ Hernandez

, 468 F.3d

874, 879 (5th Cir. 2006) (assault as defined by Texas penal

code does not constitute crime of violence under 18 U.S.C.

§16 because statute requires that defendant intentionally,

knowingly, or recklessly causes bodily injury to another but

does not require that he do so by means of physical force;

“[s]uch injury could result from any of a number of acts,

without use of ‘destructive or violent force,’ [ e.g. ,] making

available to the victim a poisoned drink while reassuring

him the drink is safe, or telling the victim he can safely back16 No. 16

‐ 2861

his car out while knowing an approaching car driven by an

independently acting third party will hit the victim”).

But this is a line of reasoning that we have considered

and rejected on multiple occasions. See LaGuerre v. Mukasey

,

526 F.3d 1037, 1039 (7th Cir. 2008) (per curiam); United States

v. Rodriguez

‐ Gomez

, 608 F.3d 969, 973–74 (7th Cir. 2010); De

Leon Castellanos v. Holder

, 652 F.3d 762, 766–67 (7th Cir 2011);

United States v. Waters

, 823 F.3d 1062, 1065

‐ 66 (7th Cir.), cert.

denied

, 137 S. Ct. 569 (2016); United States v. Bailey

, —

F. App’x

—, 2017 WL 716848, at *1 (7th Cir. Feb. 23, 2017)

(non

‐ precedential decision). These cases reason that a crimi

‐

nal act (like battery) that causes bodily harm to a person

necessarily entails the use of physical force to produce the

harm. See De Leon Castellanos

, 652 F.3d at 766; Waters

, 823

F.3d at 1065–66. Obviously this is true when the defendant

inflicts the harm directly by making forceful physical contact

with the victim: punching or kicking him, for example. See

Castleman

, supra

, 134 S. Ct. at 1415 (majority opinion). It is

also true, though less obviously so, when the defendant de

‐ liberately exposes the victim to a harmful agent ( e.g.

, a toxin,

lethal biological agent, or hidden explosive) without actually

making contact with the victim’s person, let alone in a way

typically thought of as violent. Delivering the agent (slip

‐ ping poison into the victim’s drink or secreting the explosive

in the victim’s bag) may itself involve only a minimal degree

of physical force, but the proper focus here is on the physical

force inherent in the harmful agent itself—force that works a

direct and potentially devastating physical harm on the

body of the victim. Id. (“The ‘use of force’ in Castleman’s ex

‐ ample is not the act of ‘sprink[ling]’ the poison [into the vic

‐

tim’s drink]; it is the act of employing poison knowingly as a

device to cause harm.”); see also

, e.g.

, United States v. De LaNo. 16

‐ 2861 17

Fuente

, 353 F.3d 766, 771 (9th Cir. 2003) (concluding that

mailed threat to injure by means of anthrax poisoning quali

‐

fies as a threat to employ violent force, in that “the [anthrax]

bacteria ʹ s physical effect on the body is no less violently

forceful than the effect of a kick or a blow”). The same is true

when the defendant uses guile or deception to trick his vic

‐

tim into consuming the harmful agent: although he is using

intellectual force to deploy the harmful agent, the agent itself

will, through a physical process, work a concrete harm on

the victim. See id.; Waters

, 823 F.3d at 1066; De Leon Castella

‐

nos

, 652 F.3d at 766–67; see also United States v. Calderon

‐ Pena

,

383 F.3d 254, 270 (5th Cir. 2004) (en banc) (Smith, J., dissent

‐ ing) (“If someone lures a poor swimmer into waters with a

strong undertow in order that he drown, or tricks a victim

into walking toward a high precipice so that he might fall,”

for example, the offender “has at least attempted to make

use of physical force against the person of the target, either

through the action of water to cause asphyxiation or by im

‐

pact of earth on flesh and bone. However remote these forc

‐

es may be in time or distance from the defendant, they were

still directed to work according to his will, as surely as was a

swung fist or a fired bullet.”).

Jennings’ hypothetical as to the denial of food to a child

is, as a matter of logic, a more challenging one to place with

‐

in the category of violent offenses in two respects: (1) the

mechanism of harm is the withholding of something that is

necessary to sustain life rather than the deployment of some

‐ thing (be it a swing of the arm or the poisoning of a drink)

that actively causes pain or injury; and (2) it is more difficult

to identify the particular “force” involved. To take the latter

point first, if a defendant has the ability to withhold life

‐ sustaining food or medication, then the victim is likely disa

‐18 No. 16

‐ 2861

bled from sustaining himself by a circumstance like age, in

‐ firmity, or captivity—a vulnerability that renders him sub

‐ ject to the defendant’s control. The relevant “force” may

simply be the exertion of that control with the aim of physi

‐ cally harming the victim. And, to take the second point, why

should it matter that the mechanism of harm is negative

(pinching off the victim’s oxygen supply or withholding an

EpiPen ® in the midst of a severe allergic reaction) or positive

(swinging a fist or administering a poison). If the natural and

intended result of that force is physical pain, injury, or ill

‐

ness, then arguably the force employed is “violent” force in

the sense that Curtis Johnson requires. See Waters

, 823 F.3d at

1066 (positing that withholding of medication constitutes the

use of violent physical force for that reason).

The dispositive point against Jennings’ argument, how

‐

ever, is that he is unable to cite any cases supporting his the

‐

ory that withholding food from one’s child might be prose

‐

cuted as domestic assault in Minnesota. A likely explanation

is that other Minnesota statutes cover such scenarios. See

Minn. Stat. §§ 609.377 (malicious punishment of child);

609.378 (neglect or endangerment of child). So a prosecution

for domestic assault based on the withholding of food, med

‐

icine, or the like might be a purely abstract possibility.

As the government reminds us, the Supreme Court has

cautioned us not to allow our “legal imagination[s]” to roam

too freely in postulating what types of conduct theoretically

might be prosecuted under a state statute for purposes of

determining whether the offense as defined qualifies as a

predicate offense for adverse federal action. Gonzales v. Du

‐

enas

‐ Alvarez

, 549 U.S. 183, 127 S. Ct. 815, 822 (2007). The issue

before the Court in Duenas

‐ Alvarez was whether a convictionNo. 16

‐ 2861 19

under a California statute prohibiting the taking of a vehicle

without the owner’s consent constituted a generic “theft of

‐

fense” under 8 U.S.C. 1101(a)(43)(G), rendering a lawful

permanent resident subject to removal from the country. The

statute penalized accomplices as well as principals. Duenas

‐

Alvarez argued that California law defined “aiding and

abetting” in such a way as to criminalize conduct that would

not be reached by generic theft laws. The Court rejected that

argument and concluded its discussion with the following

admonition:

[T]o find that a state statute creates a crime

outside the generic version of a listed crime in

a federal statute requires more than the appli

‐

cation of legal imagination to a state statute’s

language. It requires a realistic probability, not

a theoretical possibility, that the State would

apply its statute to conduct that falls outside

the generic definition of a crime. To show that

realistic probability, an offender, of course,

may show that the statute was so applied in his

own case. But he must at least point to his own

case or other cases in which state courts in fact

did apply the statute in the special (nongener

‐

ic) manner for which he argues.

549 U.S. at 93, 127 S. Ct. at 822; see also Moncrieffe v. Holder

,

133 S. Ct. 1678, 1684–85 (2013). We have heeded this advice,

as have other courts, in the related context assessing whether

a predicate state crime has, as an element, the use of force as

defined by Curtis Johnson

. See Maxwell

, 823 F.3d at 1062

(“Maxwell cannot rely on fanciful hypotheticals not applica

‐

ble in real world contexts (apart from law school exams) to20 No. 16

‐ 2861

show that the Minnesota statute is broader than the Sentenc

‐ ing Guidelines[‘]” definition of a crime of violence); see also

,

e.g.

, Hill

, 832 F.3d at 141 n.8; United States v. Ceron

, 775 F.3d

222, 229 (5th Cir. 2014) (per curiam); United States v. Ayala

‐

Nicanor

, 659 F.3d 744, 748, 752 (9th Cir. 2011).

As we have nothing more than speculation to support the

notion that an act like withholding food or medicine realisti

‐ cally might be prosecuted as domestic assault in Minnesota,

we may discount this possibility. Maxwell

, 823 F.3d at 1062.

Because domestic assault, as defined, requires the infliction

of bodily harm (or the threat of such harm) and typically

such harm will be inflicted by means of physical force, we

decline to overrule our decision in Yang

.

In his reply brief, Jennings defaults to the same point he

makes with respect to simple robbery in Minnesota—that

even minor injuries will suffice as bodily harm, and that

minimal injuries are insufficient to show that strong, i.e.,

“violent,” physical force was employed as Curtis Johnson

demands. And that point we have already dealt with above.

III.

As Jennings had one prior conviction for simple robbery

and two prior convictions for felony domestic assault, and

these constitute crimes of violence for all of the reasons we

have discussed, the district court appropriately treated him

as an armed career criminal. Jennings was, consequently,

subject to the 15

‐ year minimum prison term mandated by

the ACCA and to the various enhancements specified by the

armed career criminal guideline.

AFFIRMED.