In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2947
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES K. T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-cr-150—Robert L. Miller, Jr., Judge.
A RGUED D ECEMBER 6, 2010—D ECIDED D ECEMBER 29, 2010
Before B AUER and W ILLIAMS, Circuit Judges, and
M C C USKEY, District Judge.
W ILLIAMS, Circuit Judge. James K. Taylor pleaded
guilty to being a felon in possession of a firearm in viola-
tion of 18 U.S.C. § 922(g)(1) and was sentenced to 64
months’ imprisonment. His sentence was based in part
The Honorable Michael P. McCuskey, United States District
Court for the Central District of Illinois, sitting by designation.
2 No. 10-2947
on the district court’s conclusion that his prior Indiana
conviction for Class C felony battery, Ind. Code § 35-42-2-
1(a)(3), qualified as a “crime of violence” under § 4B1.2(a)
of the federal sentencing guidelines, enhancing his rec-
ommended base offense level. Taylor appeals the dis-
trict court’s finding, arguing that his battery conviction
was not a crime of violence for the purposes of the
federal sentencing guidelines. We find that the Indiana
battery offense of which Taylor was convicted—touching
someone in a rude, insolent, or angry manner by means
of a deadly weapon—qualifies as a crime of violence
because such conduct will ordinarily involve, at a mini-
mum, the threatened use of physical force. We affirm.
I. BACKGROUND
Between May 2008 and October 2009, Taylor, a con-
victed felon, directed a third party to make straw pur-
chases of nine firearms for him at a gun store in
Mishawaka, Indiana. A store employee alerted an ATF
agent to the suspected straw purchases, and Taylor
was apprehended. He was indicted on November 12,
2009, and on February 19, 2010 pleaded guilty to one
count of being a felon in possession of a firearm, in vio-
lation of 18 U.S.C. § 922(g)(1).1 Taylor’s criminal history
1
Taylor was also charged with one count of aiding and
abetting the furnishing of false and fictitious statements
during the acquisition of a firearm, in violation of 18 U.S.C.
(continued...)
No. 10-2947 3
included a 2004 conviction for Class C felony battery in
St. Joseph County (Indiana) Superior Court, for which
he had received a sentence of four years’ imprisonment.
Indiana’s battery statute, Ind. Code § 35-42-2-1, provides
in relevant part:
Sec. 1. (a) A person who knowingly or intentionally
touches another person in a rude, insolent, or
angry manner commits battery, a Class B misde-
meanor. However, the offense is:
...
(3) a Class C felony if it results in serious
bodily injury to any other person or if it is
committed by means of a deadly weapon.
Specifically, the criminal information in Taylor’s bat-
tery case stated that he “did knowingly touch [the
victim] in a rude, insolent, or angry manner, to-wit: by
striking [the victim] in the stomach and said touching
being committed with a deadly weapon, to-wit: a knife.”
Taylor’s presentence investigation report recommended
that his base offense level under the guidelines—which
would otherwise have been 14 per § 2K2.1(a)(6)—be
increased to 20 on the basis that this prior battery con-
viction qualified as a “crime of violence.” U.S.S.G.
§§ 2K2.1(a)(4)(A), 4B1.2(a). The district court agreed,
concluding over Taylor’s objection that the battery con-
(...continued)
§ 922(a)(6). This count was dismissed pursuant to his plea
agreement.
4 No. 10-2947
viction qualified as a crime of violence under the guide-
lines. Coupled with a criminal history category of III,
Taylor’s resulting advisory guideline range was 57-71
months. The court imposed a sentence of 64 months
and two years’ supervised release.
II. ANALYSIS
Taylor appeals the district court’s conclusion that his
Indiana battery conviction qualifies as a “crime of vio-
lence” for purposes of the federal sentencing guidelines.
This is a question of law we review de novo. United States
v. Clinton, 591 F.3d 968, 972 (7th Cir. 2010).
The guidelines define a “crime of violence” as any
federal or state offense, punishable by more than a year
of imprisonment, that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise in-
volves conduct that presents a serious poten-
tial risk of physical injury to another.
U.S.S.G. § 4B1.2(a).
We use a “categorical approach” to determine whether
a given crime qualifies as a crime of violence. United
States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009). Under
the categorical approach, courts look to the statutory
definition of the offense in question, not to the specific
No. 10-2947 5
conduct that the defendant engaged in on that occasion.
Id.; see also Begay v. United States, 553 U.S. 137, 141 (2008).
“That is, we consider whether the elements of the offense
are of the type that would justify its inclusion . . . without
inquiring into the specific conduct of this particular
offender.” James v. United States, 550 U.S. 192, 202 (2007)
(emphasis in original).2
When a statute describes multiple modes of commis-
sion, however, some that might be a crime of violence
and some that might not, the categorical approach
cannot answer the question completely because a court
cannot tell from the statute itself exactly what offense
the defendant committed. See, e.g., Fife, 624 F.3d at 445;
United States v. McDonald, 592 F.3d 808, 810 (7th Cir.
2010). In these cases involving a “divisible” statute, courts
employ a “modified categorical approach” and look to a
defendant’s charging document, plea agreement, or other
similar judicial record for the limited purpose of deter-
mining which part of the offense the prior conviction
was for—but still not to the particular facts underlying
the conviction. See Shepard v. United States, 544 U.S. 13,
2
Begay, James, and other cases in this area apply the
categorical approach to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), which defines “violent felony”
virtually the same way § 4B1.2 defines “crime of violence.” As
we have done in prior cases, we refer to cases dealing with
the ACCA and the career offender guideline provision inter-
changeably. See United States v. Fife, 624 F.3d 441, 444 n.1
(7th Cir. 2010).
6 No. 10-2947
26 (2005); United States v. Ellis, 622 F.3d 784, 798 (7th
Cir. 2010). “[T]he additional materials . . . may be used
only to determine which crime within a statute the de-
fendant committed, not how he committed that crime.”
Woods, 576 F.3d at 405 (emphases in original).
The district court—as well as both parties in their
briefs on appeal—applied the modified categorical ap-
proach to Ind. Code § 35-42-2-1(a)(3), apparently
premised on an assumption that the statute requires it.
Clearly, § 35-42-2-1(a)(3) can be violated in one of two
ways: touching someone in a rude, insolent, or angry
manner that (1) “results in serious bodily injury to any
other person” or (2) “is committed by means of a
deadly weapon.” And Taylor’s charging document
makes clear that he was convicted of the second
category, the “means of a deadly weapon” violation. But
the fact that § 35-42-2-1(a)(3) sets out two modes of com-
mission doesn’t automatically mean it is “divisible” in
a way that requires a modified categorical approach—
if both methods of violating the statute qualify as a crime
of violence for federal purposes, there would be no need
to look at Taylor’s charging document for clarification
at all. See, e.g., McDonald, 592 F.3d at 810 (modified cate-
gorical approach necessary when statute lists multiple
modes of commission, “some of which may be crimes
of violence and some not.”); see also United States v.
Dismuke, 593 F.3d 582, 589 (7th Cir. 2010) (statute is di-
visible “when it describes multiple offense categories,
some of which would be crimes of violence and some
of which would not.”).
No. 10-2947 7
The government does not argue, however, that either
mode of violation of § 35-42-2-1(a)(3) would constitute
a crime of violence, and instead proceeds on the assump-
tion that the statute is in fact divisible. We will
similarly approach the statute as being divisible for
the purpose of deciding this appeal, and leave for
another day the broader question of whether any viola-
tion of Indiana’s Class C battery statute would qualify
as a crime of violence. It may be the case that the other
prong of § 35-42-2-1(a)(3)—touching someone in a rude,
insolent, or angry manner that “results in serious bodily
injury to another person” — does not categorically qualify
as a crime of violence under either prong of the federal
definition. See, e.g., Johnson v. United States, --- U.S. ----, 130
S. Ct. 1265, 1271-72 (2010) (“touching” in Florida battery
statute does not categorically equate to “physical force”
necessary to qualify as a violent felony under first part of
ACCA definition); Flores v. Ashcroft, 350 F.3d 666, 672
(7th Cir. 2003) (“touching” in Indiana misdemeanor
battery statute includes any contact, however slight,
and thus does not necessarily satisfy “physical force”
requirement in analogous crime of violence definition
in 18 U.S.C. § 16); Begay, 553 U.S. at 143-45 (residual
clause in second part of crime of violence definition is
limited to offenses similar both in kind and degree of
risk to those enumerated, demonstrating the same “pur-
poseful, violent, and aggressive” conduct); Woods, 576
F.3d at 407 (same).
So the question before us is whether violating Ind. Code
§ 35-42-2-1(a)(3) the way Taylor did—touching someone
8 No. 10-2947
in a rude, insolent, or angry manner, by means of a deadly
weapon—qualifies as a crime of violence. We conclude
that it does, because in the ordinary case, violating Indi-
ana’s Class C battery statute by touching someone in a
rude, insolent, or angry manner with a deadly weapon
will at the very least present a threat of physical force,
thus qualifying it under § 4B1.2(a)(1) of the guidelines.3
Taylor argues that there are ways to touch someone in
a rude, insolent, or angry manner using a deadly
weapon that do not necessarily involve the use, at-
tempted use, or threatened use of force. While there
may be hypothetical situations where this might be
true (one involving utensils at a particularly contentious
Thanksgiving dinner came up during oral argument),
such possibilities are outliers. In applying the categorical
approach, we are concerned with the ordinary case,
not fringe possibilities. James, 550 U.S. at 208 (categorical
approach does not require that “every conceivable
factual offense” qualify); Woods, 576 F.3d at 404. And
we believe that in the ordinary case, touching someone
rudely, insolently, or angrily with a deadly weapon
involves, at a minimum, a threat of physical force.
3
The government also advances two alternative bases for
affirming: (1) that Taylor’s offense meets the definition of “crime
of violence” set forth in § 4B1.2(a)(2) as well; and (2) that
the offense also qualifies because Application Note 1 to § 4B1.2
permits courts to look to actual charged conduct in making
a crime-of-violence determination. Because we affirm on
the basis of § 4B1.2(a)(1), we do not reach these alternative
arguments.
No. 10-2947 9
Other circuits evaluating similar statutes have
reached the same conclusion. In United States v. Treto-
Martinez, 421 F.3d 1156 (10th Cir. 2005), the defendant
challenged the classification of his prior conviction
under Kansas’s aggravated battery statute as a crime
of violence. That statute prohibits, much like the Indiana
law, “intentionally causing physical contact with an-
other person when done in a rude, insulting or angry
manner with a deadly weapon.” Kan. Stat. Ann. § 21-
3414(a)(1)(C). Applying the categorical approach, the
Tenth Circuit found that touching someone with a
deadly weapon in a rude, insulting, or angry manner
“could always lead to more substantial and violent con-
tact” and thus will always include “at the very least”
the threatened use of physical force. Treto-Martinez,
421 F.3d at 1160; see also United States v. Ramon Silva, 608
F.3d 663, 672 (10th Cir. 2010) (applying similar rea-
soning to New Mexico aggravated assault statute).
We agree with this reasoning and find it applicable
to the Indiana statute here. Other circuits have similarly
held that touching with a deadly weapon constitutes
a “crime of violence” for the same reason. See United
States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (Cali-
fornia assault offense of touching someone with a
deadly weapon qualifies as a crime of violence because
it “demonstrates at a minimum the threatened use of
actual force”); United States v. Dominguez, 479 F.3d 345,
348 (5th Cir. 2007) (Florida aggravated battery offense
of intentionally touching someone with a deadly weapon
qualifies because “the touching of an individual with
a deadly weapon creates a sufficient threat of force
to qualify as a crime of violence.”).
10 No. 10-2947
We briefly address Taylor’s argument that the district
court improperly looked at the actual facts underlying
his battery conviction in determining that it qualified as
a crime of violence. A review of the sentencing hearing
transcript reveals that Taylor is correct, although it does
not affect the outcome here. In making a determination
as to whether Taylor’s conviction constituted a crime
of violence, the district judge read the information in
Taylor’s battery case (which set forth the underlying
fact that Taylor had committed the battery by striking
someone with a knife) and stated:
The Information in this case, however, charges
striking, specifies striking, which is the use of physi-
cal force against the person of another, and accord-
ingly, it appears to me that, even under the Woods
decision . . . what we have here is a crime of vio-
lence because it involved the use of physical force
against the person of another.
This was improper, because instead of using
the charging document solely to determine which part
of § 35-42-2-1(a)(3) Taylor had violated (i.e., causing
serious bodily injury versus using a deadly weapon), the
judge went further, looked at the actual facts of what
Taylor had done, and focused on the “striking” in
reaching a conclusion. This, as Taylor correctly points
out, is exactly what Woods says a court cannot do in
applying the modified categorical approach. See Woods,
576 F.3d at 404 (“[w]hat the sentencing court cannot do
is to look at the particular facts underlying the defen-
dant’s conviction.”) (emphasis in original). The error
No. 10-2947 11
was obviously harmless, however—despite making a
misstep in how it got there, the district court reached
the correct conclusion that Taylor’s battery conviction
qualifies as a crime of violence under § 4B1.2. See Ellis,
622 F.3d at 798.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
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