In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3173
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ERARDO R ODRIGUEZ-G OMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 006—Wayne R. Andersen, Judge.
A RGUED A PRIL 1, 2010—D ECIDED JUNE 11, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
H AMILTON, Circuit Judges.
B AUER, Circuit Judge. At issue in this appeal is whether
it was plain error for the district court to conclude that
Gerardo Rodriguez-Gomez’s prior conviction for aggra-
vated battery constituted a crime of violence, warranting
a sentencing enhancement. Finding no error, we affirm.
2 No. 08-3173
I. BACKGROUND
Federal prosecutors charged Rodriguez with illegal re-
entry after having previously been deported following a
conviction of an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2). Rodriguez pleaded not guilty,
but at trial he took the witness stand and admitted his
guilt. Thereafter, the jury found him guilty.
As this conviction makes clear, this is not Rodriguez’s
first run-in with the law. From the record, it appears that
many of his altercations with the law stem from his
abuse of alcohol. For example, in 2005, Rodriguez
pleaded guilty to an Illinois charge of aggravated battery,
in violation of 720 Ill. Comp. Stat. 5/12-4(b)(6), stemming
from an arrest for driving under the influence and
leaving the scene of an accident. And it is the effect that
this previous conviction has on Rodriguez’s current
sentence that is on appeal.
The Guideline under which Rodriguez is currently
sentenced states: “If the defendant previously was de-
ported, or unlawfully remained in the United States,
after . . . a conviction for a felony that is . . . a crime of
violence . . . increase by 16 levels.” U.S. Sentencing Guide-
lines Manual § 2L1.2(b)(1)(A)(ii) (2009). A copy of the
charging document from Rodriguez’s aggravated
battery conviction was not attached to the pre-sentence
investigation report (“PSR”). However, the probation
officer summarized the offense, Case. No. 05 CR 799901,
from Cook County, Illinois:
[Rodriguez] was arrested for driving under the
influence (DUI) and leaving the scene of an acci-
No. 08-3173 3
dent. While being placed under arrest, [Rodriguez]
became combative and kicked an officer in the leg.
After being brought to the police station, [Rodri-
guez] became combative again and kicked
another officer in the groin area.
PSR at 2, 4.
Also attached to the PSR was a copy of the
government’s submission to the probation officer,
which included the following quotation from the state
indictment of the aggravated battery charge:
Gerardo Rodriguez-Gomez committed the
offense of Aggravated Battery in that he, in com-
mitting a battery other than by the discharge of a
firearm, knowingly or intentionally caused
bodily harm to Jonathan Cwynar, to wit: kicked
Jonath[a]n Cwynar about the body, knowing
Jonathan Cwynar to be a peace officer, to wit: a
Chicago Police Officer, while engaged in the
execution of his official duties, in violation of 720
ILCS 5/12-4(b)(6).
The probation officer concluded that Rodriguez’s ag-
gravated battery conviction constituted a crime of
violence, warranting a 16-level enhancement of his base
offense level. The probation officer also determined that
Rodriguez’s adjusted offense level was 24, found that he
had a criminal history category of VI, and recommended
an advisory sentencing Guidelines range of 100 to 125
months.
At the sentencing hearing, the district judge stated that
he was accepting the offense-summary behavior in the
4 No. 08-3173
PSR and summarized the offense-level calculation to the
parties:
COURT: The defendant in this case under Count
One was charged with illegal reentry
of a previously-deported alien. There is
a base offense level of eight for viola-
tion of 8 U.S.C. § 1326(a) and (b)(2) under
the Guideline 2L.1.2(a). And because he
was previously deported after a convic-
tion for a felony that was a crime of vio-
lence, under 2L.1.2(b)(1)(A)[ii] there is a
16-level increase, putting us at an ad-
justed offense level, before considering
acceptance of responsibility, at 24.
Does everyone agree with that?
AUSA: The Government agrees.
DEFENSE: We agree.
Sent. Tr. 5-6 (App. 11-12). After rejecting an acceptance-of-
responsibility adjustment, overruling the objection to
Rodriguez’s criminal history category, and listening to
the mitigation in sentence argument, the district court
imposed a sentence of 100 months’ imprisonment. There-
after, Rodriguez filed a notice of appeal.
Appointed counsel filed a motion for leave to
withdraw, stating that he had reviewed the record and
found no non-frivolous basis for appeal. We denied this
motion and directed appointed counsel to file a brief
discussing whether the district court committed plain
error by adding 16 levels to his base offense level, based
No. 08-3173 5
on the aggravated battery conviction, as well as any
other issue he deemed appropriate.
II. DISCUSSION
A. Waiver or Forfeiture
Whether the district court has followed the proper
procedures in determining a sentence is a question of
law, subject to de novo review. United States v. Clinton,
591 F.3d 968, 972 (7th Cir. 2010). However, as Rodriguez
did not object to his sentence in the district court, we
must first address whether Rodriguez waived or merely
forfeited any challenge to the probation officer’s recom-
mendation that he receive a 16-level increase. Waiver is
the intentional relinquishment of a known right, whereas
forfeiture is the failure to timely assert a right. United
States v. Olano, 507 U.S. 725, 733 (1993); United States v.
Jacques, 345 F.3d 960, 962 (7th Cir. 2003). Waiver pre-
cludes appellate review, but forfeiture permits review for
plain error. Olano, 507 U.S. at 733-34; Jacques, 345 F.3d
at 962.
We held in United States v. Jaimes-Jaimes that if a specific
objection was not raised at sentencing, we will view it
as having been waived if the defendant had a strategic
reason to forego the argument. 406 F.3d 845, 848 (7th
Cir. 2005). Our duty when considering waiver is to
divine from the record an intent to forego an argument.
United States v. Garcia, 580 F.3d 528, 542 (7th Cir.
2009). Rodriguez said the following at sentencing:
The only thing that makes me a little bit overwhelmed
or sad, because I use—and, like I said, I don’t know
6 No. 08-3173
your laws. . . . And if I didn’t have a record and if
I hadn’t been given 16 points . . . . And that increase
of the 16 levels because of a crime I have already
paid my debt . . . for the same crime . . . .
Sent. Tr. at 21.
We do not think this statement indicates that
Rodriguez intended to relinquish his right to be sen-
tenced at a lower offense level, only that he had come
to terms that his previous conviction made him eligible
for a sentence enhancement. In addition, we cannot
conceive of a strategic reason why defense counsel failed
to object to the enhancement, other than that he was
in agreement that the 16-level enhancement was war-
ranted. However, because we directed appointed coun-
sel to submit a brief discussing whether the district court
plainly erred by adding 16 levels to Rodriguez’s base
offense level, we will review the sentencing enhance-
ment under that standard.
“To establish plain error, [Rodriguez] has to demon-
strate a clear error that affects a substantial right and,
moreover, impacts ‘the fairness, integrity, or public
reputation of judicial proceedings.’ ” United States v.
Allen, 529 F.3d 390, 395 (7th Cir. 2008) (citations omitted).
B. Crime of Violence
Section 2L1.2(b)(1)(A)(ii) of the Guidelines states that a
defendant should receive a 16-level adjustment if he has
a prior conviction for a “crime of violence.” While the
No. 08-3173 7
term “crime of violence” is used in various contexts in
the federal code and sentencing Guidelines, the illegal
reentry Guideline contains its own definition, which
encompasses some enumerated offenses, as well as any
crime “that has as an element the use, attempted use, or
threatened use of physical force.” U.S.S.G. § 2L1.2 cmt. n.
1(B)(iii) (2009). Battery is not an enumerated offense so
we must determine whether Rodriguez’s aggravated
battery conviction has as an element the use, attempted
use, or threatened use of physical force, which will turn
on its statutory elements. “Force” must be an element
of the crime and not simply a possible byproduct of it.
Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003). And
“physical force” means violent force—that is, force
capable of causing physical pain or injury to another
person. Johnson v. United States, 130 S. Ct. 1265, 1271 (2010)
(citing Flores, 350 F.3d at 672).
Rodriguez pleaded guilty to committing an ag-
gravated battery, specifically that he committed a battery
to an individual he knew to be a community policing
volunteer, in violation of 720 Ill. Comp. Stat. 5/12-4(b)(6).
The Illinois battery statute provides that a person “com-
mits battery if he intentionally or knowingly without
legal justification and by any means, (1) causes bodily
harm to an individual or (2) makes physical contact of
an insulting or provoking nature with an individual.”
720 Ill. Comp. Stat. 5/12-3. Because there is more than
one way of committing battery (either by causing bodily
harm or by making physical contact that is insulting
or provoking), the mere fact that Rodriguez was con-
8 No. 08-3173
victed of aggravated battery does not tell us whether
he committed a crime that necessarily involved force.
Accordingly, we must determine whether Rodriguez
was convicted under the first or second prong of the
battery statute. United States v. Gilbert, 464 F.3d 674, 678
(7th Cir. 2006). The scope of our inquiry is limited to
(1) admissions made by the defendant, and (2) the
charging document, plea agreement, plea colloquy, and
comparable judicial records from the conviction. Shepard
v. United States, 544 U.S. 13, 16 (2005) (citing Taylor v.
United States, 495 U.S. 573 (1990)). Our purpose is to
determine what form of the offense Rodriguez com-
mitted, not how he happened to commit the crime; that
is, we want to know whether Rodriguez’s conviction
necessarily reflects a finding that force (actual, threatened,
or attempted) was used in the commission of the offense.
The record does not contain any admission made by
Rodriguez from the state court proceeding, so we turn
to the charging document.
Here, the charging document for the aggravated
battery conviction was not attached to the PSR. How-
ever, the government’s submission to the probation
officer quoted from the state indictment that stated
by kicking Jonathan Cwynar, a Chicago police officer,
Rodriguez “knowingly or intentionally caused bodily
harm.” We find that Rodriguez was therefore convicted
under the first prong of the battery statute, and that
the first prong of the statute requires the “use, attempted
use, or threatened use of physical force.” Accordingly,
it was not plain error to conclude that Rodriguez’s con-
viction for aggravated battery was a crime of violence.
We note that it would be good practice to provide the
No. 08-3173 9
appropriate state records at the sentencing hearing
and attach them to the appellate record so that the re-
viewing court can better ascertain whether a sentencing
enhancement is warranted.1
Johnson is easily distinguishable. There, the Supreme
Court held that because under Florida’s law, any inten-
tional physical contact, “no matter how slight” constitutes
a battery, it was not clear that the defendant’s previous
conviction for battery had the requisite “physical force
against the person of another” to warrant a sentence
enhancement. Johnson, 130 S. Ct. at 1269-70. However,
here, based on the recitation of the charging document,
it is clear that Rodriguez was charged under the first
prong of the Illinois statute because he was charged
with “caus[ing] bodily harm to an individual.” Similarly,
Jaimes-Jaimes is distinguishable because there, the
statutory elements of his crime imposed no requirement
that the state prove, as an element of the offense, that
the defendant used, attempted to use, or threatened to
use physical force “against the person of another.”
1
At oral argument, appointed counsel acknowledged receipt
of the charging document in the aggravated battery conviction.
He did not argue that it was error to conclude that Rodriguez
had been convicted under the first prong of the battery statute.
Any such argument is therefore waived. O’Neal v. City of
Chicago, 588 F.3d 406, 409 (7th Cir. 2009) (“[A]rguments not
raised on appeal are waived”).
10 No. 08-3173
III. CONCLUSION
For the reasons stated above, we A FFIRM Rodriguez’s
sentence.
6-11-10