In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-‐‑3172
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
JOSEPH JAY JOHNSON,
Defendant-‐‑Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:11-‐‑cr-‐‑184-‐‑WTL-‐‑MJD — William T. Lawrence, Judge.
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ARGUED FEBRUARY 20, 2014 — DECIDED FEBRUARY 26, 2014
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Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. When police spotted Joseph
Johnson, he was toting a gun. He threw it away, but the po-‐‑
lice recovered it. A felon-‐‑in-‐‑possession prosecution ensued.
Johnson has a long record, and the prosecutors charged that
at least three of his convictions were for “violent felonies” as
the Armed Career Criminal Act, 18 U.S.C. §924(e), defines
that term. After Johnson pleaded guilty to the felon-‐‑in-‐‑
possession charge, the district judge determined that John-‐‑
2 No. 13-‐‑3172
son’s convictions for robbery, domestic battery, and resisting
law enforcement all meet the Act’s definition of violent felo-‐‑
ny. The judge sentenced Johnson to 180 months’ imprison-‐‑
ment, the statutory minimum. But for Johnson’s history of
violent felonies, the maximum would have been 120 months.
Johnson contends that only a jury can determine whether
a person’s criminal history justifies an enhanced penalty, but
the Supreme Court rejected that contention in Almendarez–
Torres v. United States, 523 U.S. 224 (1998). The argument that
later cases conflict with Almendarez–Torres is wasted on a
court of appeals. Only the Justices can overrule their own
decisions. Although Alleyne v. United States, 133 S. Ct. 2151
(2013), holds that facts increasing statutory minimum penal-‐‑
ties must be determined by a jury (or the judge in a bench
trial), if the defendant does not admit them, the Court point-‐‑
edly observed that this does not alter the status of Al-‐‑
mendarez–Torres. 133 S. Ct. at 2160 n.1. The fate of that deci-‐‑
sion is not in our hands, and the district judge acted proper-‐‑
ly under current law.
Johnson also contends that his 1997 conviction for resist-‐‑
ing law enforcement is too old to count under the Act. Pas-‐‑
sage of time matters for some purposes; many old convic-‐‑
tions are excluded from criminal history under the Sentenc-‐‑
ing Guidelines and can’t be used for impeachment on cross-‐‑
examination. See Fed. R. Evid. 609(b) (limit after 10 years);
U.S.S.G. §4A1.2(e)(1) (limit after 15 years). But the ACCA
does not contain any parallel provision disregarding older
convictions. We held in United States v. Wright, 48 F.3d 254,
256 (7th Cir. 1995), that there is no time limit on qualifying
felonies; Johnson does not give us any reason to think Wright
mistaken.
No. 13-‐‑3172 3
His appeal rests primarily on a contention that domestic
battery in the presence of a child, in violation of Ind. Code
§35-‐‑42-‐‑2-‐‑1.3, is not a violent felony. The Supreme Court’s
categorical approach looks to the statute and the judgment
of conviction, rather than what the defendant did in fact. See
Descamps v. United States, 133 S. Ct. 2276 (2013); Taylor v.
United States, 495 U.S. 575 (1990). Indiana’s domestic battery
statute provides:
(a) A person who knowingly or intentionally touches an indi-‐‑
vidual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as pro-‐‑
vided in subsection (c); or
(3) has a child in common with the other person;
in a rude, insolent, or angry manner that results in bodily injury
to the person described in subdivision (1), (2), or (3) commits
domestic battery, a Class A misdemeanor.
(b) However, the offense under subsection (a) is a Class D felony
if the person who committed the offense:
…
(2) committed the offense in the physical presence of a child
less than sixteen (16) years of age, knowing that the child
was present and might be able to see or hear the offense.
Johnson was convicted of the felony version of this offense
because he committed the acts in the presence of a child un-‐‑
der the age of 16. The prosecutor contended, and the district
judge found, that the state crime is a violent felony under 18
U.S.C. §924(e)(2)(B), which reads:
4 No. 13-‐‑3172
the term “violent felony” means any crime punishable by im-‐‑
prisonment for a term exceeding one year … that—
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explo-‐‑
sives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another[.]
The district judge found that domestic battery satisfies the
residual clause, §924(e)(2)(B)(ii).
Much of Johnson’s appellate presentation supposes that
if a prior offense does not satisfy clause (i), which depends
on the “elements” of that crime, it cannot satisfy clause (ii),
which depends on “a serious potential risk of physical injury
to another”. Statutes such as Ind. Code §35-‐‑42-‐‑2-‐‑1.3 do not
meet clause (i) because rude or insolent touching does not
necessarily entail “physical force”. See, e.g., Johnson v. United
States, 559 U.S. 133 (2010); Leocal v. Ashcroft, 543 U.S. 1 (2004);
Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003). But many
crimes create risk of physical injury even though they do not
include force as an element. One example is vehicular flight
to avoid arrest, which Sykes v. United States, 131 S. Ct. 2267
(2011), holds is within the scope of clause (ii). That it does
not also satisfy clause (i) is neither here nor there. So too
with Ind. Code §35-‐‑42-‐‑2-‐‑1.3.
Sykes holds that a crime requiring intentional misconduct
satisfies the residual clause when it is as dangerous as bur-‐‑
glary. Relying on data, the Court concluded that about 3% of
burglaries end in injuries to persons other than the criminals,
while about 4% of auto chases do so. 131 S. Ct. at 2273–75.
The Court did not hold that 3% is the minimum for “serious
potential risk of physical injury” but did conclude that 3% is
No. 13-‐‑3172 5
enough to be a “serious” risk. By that standard, classifying
Ind. Code §35-‐‑42-‐‑2-‐‑1.3 is simple, because 100% of the time
injury occurs. Bodily injury is an element of the offense; no
injury, no crime. Even a lawyer knows that 100% is greater
than 3%.
True, Indiana does not require a serious injury; any bodi-‐‑
ly injury will do. But what clause (ii) requires is a “serious
potential risk of physical injury”, not a “potential risk of se-‐‑
rious physical injury”. When estimating injury rates in Sykes,
the Court counted all injuries, not just serious ones. See also,
e.g., United States v. Howze, 343 F.3d 919 (7th Cir. 2003) (esti-‐‑
mating injury rates caused by theft from a person). And even
if serious injury were essential, it would be enough if more
than 3% of domestic batteries produced it. Our opinion in
United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc),
collects some studies that show how injurious domestic bat-‐‑
tery can be. Williams v. State, 798 N.E.2d 457, 461 (Ind. App.
2003), remarks that domestic battery is treated separately
from other kinds of battery precisely because of the danger
to one spouse or domestic partner when the couples’ life has
deteriorated but social or economic circumstances, including
children, lead them to live together anyway. “Firearms and
domestic strife are a potentially deadly combination nation-‐‑
wide.” United States v. Hayes, 555 U.S. 415, 427 (2009).
Knives, bludgeons, and fists also cause grievous injuries to
household partners. Domestic battery is at least as danger-‐‑
ous to its victims as purse snatching (Howze) or attempted
burglary (James v. United States, 550 U.S. 192 (2007)) and is
properly classified as “violent” under clause (ii).
AFFIRMED