United States v. Johnson
Opinion of the Court
ORDER
Sherman Johnson pleaded guilty to possessing crack with intent to distribute and was sentenced as a career offender to a term of 170 months. In the plea agreement Johnson waived his right to appeal all issues except whether his prior Illinois conviction for aggravated battery qualified as a crime of violence under the career-offender guideline. As the government concedes, circuit precedent controls the outcome here, and so we vacate the sentence and remand.
In the presentence investigation report, the probation officer classified Johnson as a career offender under § 4B1.1 of the sentencing guidelines because of two prior convictions for crimes of violence. Johnson objected that one of the convictions— for aggravated battery — was not a crime of violence under the residual, “otherwise involves” clause of § 4B1.2(a)(2).
After a hearing, the district court concluded that the aggravated-battery conviction — and specifically Johnson’s act of striking a woman in the face — qualified as
After Johnson filed a notice of appeal, we decided United States v. Evans, 576 F.3d 766, 767, 769 (7th Cir. 2009), concluding that the defendant’s prior Illinois conviction for aggravated battery — charged as making physical contact of an insulting or provoking nature against a woman known to be pregnant — was not a crime of violence for purposes of the career offender guideline. See 720 Ill. Comp. Stat. 5/12-4(b)(11). In Evans, we noted that the terms “insulting” or “provoking” derived from the common law tort of battery. Battery can be offensive (such as spitting on a person) or forcible (such as pushing a person to the floor) — and only the latter is a crime of violence. 576 F.3d at 768-69. But the statute is not divisible — that is, the same words, “insulting or provoking,” describe both a violent and nonviolent way of committing the crime. Thus, we could examine only which crime the defendant committed, not how he committed that crime. Id. at 769 (citing United States v. Woods, 576 F.3d 400, 407-08 (7th Cir. 2009)). And because most insulting or provoking contact with a pregnant woman is not violent, the defendant’s conviction for aggravated battery was not a crime of violence. Evans, 576 F.3d at 769.
Johnson argues that Evans is dispositive because if insulting or provoking contact with a pregnant woman is not a crime of violence, making insulting or provoking contact in a public place also cannot be. He asserts that the district court imper-missibly considered how he committed the crime for more than determining which part of the statute he violated. The government concedes that Evans is indistinguishable from this case. We agree. The presence of a different aggravating factor — a public place rather than a pregnant victim — does not change Evans’s conclusion that insulting or provoking contact, in the ordinary case, is not violent. See Woods, 576 F.3d at 403-06. The kind of insulting or provoking contact Johnson made is irrelevant, and so the district court erred by considering Johnson’s specific acts beyond the extent necessary to determine that Johnson was convicted of making insulting or provoking contact, not causing bodily harm. Johnson’s prior conviction for aggravated battery is not a crime of violence.
Accordingly, the sentence is VACATED and the case is REMANDED for resen-tencing.
. The guidelines define "crime of violence” as any offense under federal or state law punishable by imprisonment of more than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), or "is a burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2).
Reference
- Full Case Name
- United States v. Sherman A. JOHNSON
- Cited By
- 4 cases
- Status
- Published