In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-‐‑3728
LONZO J. STANLEY,
Petitioner-‐‑Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-‐‑Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 15-‐‑cv-‐‑222-‐‑bbc — Barbara B. Crabb, Judge.
____________________
SUBMITTED MAY 31, 2016 — DECIDED JUNE 1, 2016 —
OPINION ISSUED JUNE 27, 2016*
____________________
Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judg-‐‑
es.
EASTERBROOK, Circuit Judge. More than a decade ago
Lonzo Stanley was sentenced to 200 months’ imprisonment
* This appeal initially was decided by a nonprecedential order. The
court has revised the order and issued it as an opinion.
2 No. 15-‐‑3728
after he pleaded guilty to distributing crack cocaine. His sen-‐‑
tence depended in part on the district court’s conclusion that
he is a career offender under U.S.S.G. §4B1.1, which calls for
extra time in prison if the defendant has two or more prior
convictions for serious drug crimes or violent felonies. The
court counted three qualifying convictions: one for a con-‐‑
trolled-‐‑substance offense, another for unlawfully possessing
a firearm, and a third for aggravated battery. Stanley did not
appeal from his sentence or file a collateral attack under 28
U.S.C. §2255 within the year allowed by §2255(f).
After the Supreme Court decided Johnson v. United States,
135 S. Ct. 2551 (2015), Stanley took advantage of the oppor-‐‑
tunity created by §2255(f)(3), which allows a fresh year from
“the date on which the right asserted was initially recog-‐‑
nized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review”. We held in Price v.
United States, 795 F.3d 731 (7th Cir. 2015), that the right new-‐‑
ly identified in Johnson is retroactive, and in Welch v. United
States, 136 S. Ct. 1257 (2016), the Supreme Court agreed. But
the district judge concluded that Johnson does not affect Stan-‐‑
ley’s sentence and denied his petition for collateral review.
2015 U.S. Dist. LEXIS 72909 (W.D. Wis. June 5, 2015).
Johnson holds that part of 18 U.S.C. §924(e)(2)(B)(ii) is un-‐‑
constitutional. Subsection 924(e), called the Armed Career
Criminal Act, requires longer sentences for persons convict-‐‑
ed of three or more violent felonies or serious drug offenses.
The statute defines some of these categories and adds a kick-‐‑
er in clause (ii), which classifies as a violent felony any crime
that “is burglary, arson, or extortion, involves use of explo-‐‑
sives, or otherwise involves conduct that presents a serious
No. 15-‐‑3728 3
potential risk of physical injury to another”. The part of
clause (ii) that begins “or otherwise involves” is known as
the residual clause. Johnson holds that the residual clause is
unconstitutionally vague. Johnson does not otherwise affect
the operation of the Armed Career Criminal Act. Nor does
Johnson discuss how, if at all, its holding affects the career-‐‑
offender guideline. For the purpose of this appeal, we as-‐‑
sume that Johnson applies to the Sentencing Guidelines. An-‐‑
other panel has that question under advisement. We do not
express any opinion on it.
A flurry of filings in the district courts after Price, which
became a blizzard after Welch, depends on a belief that John-‐‑
son reopens all questions about the proper classification of
prior convictions under the Guidelines and the Armed Ca-‐‑
reer Criminal Act. But the sole holding of Johnson is that the
residual clause is invalid. Johnson does not affect the first
portion of clause (ii) (“burglary, arson, or extortion, [or] use
of explosives”) and does not have anything to do with the
proper classification of drug offenses or the operation of
§924(e)(2)(B)(i), known as the elements clause, which classi-‐‑
fies as a violent felony any crime punishable by a year or
more in prison that “has as an element the use, attempted
use, or threatened use of physical force against the person of
another”. The Guidelines contain the same language.
U.S.S.G. §4B1.2(a)(1).
Stanley is among the many petitioners who have misun-‐‑
derstood the effect of Johnson. We go through his prior felo-‐‑
ny convictions one at a time to show why.
His drug conviction counts under U.S.S.G. §4B1.2(b), and
it would have counted under §924(e)(2)(A) if this had been a
4 No. 15-‐‑3728
proceeding under the Armed Career Criminal Act. He does
not argue otherwise.
Stanley’s conviction for illegal possession of a firearm, by
contrast, does not count—not because of Johnson, but be-‐‑
cause it never qualified as a violent felony. The Sentencing
Commission has concluded that a felon’s possession of a gun
that could be possessed lawfully by a non-‐‑felon is not a
crime of violence for the purpose of the career-‐‑offender
guideline. See Amendment 433 (Nov. 1991), now reflected in
§4B1.2 Application Note 1 ¶3. See also Stinson v. United
States, 508 U.S. 36, 47 (1993). The district court should not
have counted this conviction in 2004, when Stanley was sen-‐‑
tenced. Because the classification of this conviction is unaf-‐‑
fected by Johnson, §2255(f)(3) does not grant Stanley a fresh
window to file a collateral attack. Indeed, because Stanley
could have appealed his sentence based on the application
note, he could not have filed a collateral attack even within
the year originally allowed by §2255(f). The United States
has waived its timeliness and forfeiture defenses in order to
obtain a substantive decision on this appeal, however, so the
validity of Stanley’s sentence depends on the treatment of
his remaining prior conviction.
Stanley’s conviction for aggravated battery of a peace of-‐‑
ficer, in violation of 720 ILCS 5/12-‐‑3, 5/12-‐‑4(b)(6) (1997), also
is outside the scope of Johnson. The district court counted
this conviction under the elements clause, U.S.S.G.
§4B1.2(a)(1), which is parallel to 18 U.S.C. §924(e)(2)(B)(i).
Johnson does not have anything to do with the elements
clause of either the Guidelines or the Armed Career Criminal
Act, and §2255(f)(3) therefore does not afford prisoners a
No. 15-‐‑3728 5
new one-‐‑year period to seek collateral relief on a theory that
the elements clause does not apply to a particular conviction.
Perhaps a prisoner could argue that he decided not to
press an argument about the elements clause at sentencing,
or on appeal, when the only consequence would have been
to move a conviction from the elements clause to the residu-‐‑
al clause. Then it would be possible to see some relation be-‐‑
tween Johnson and a contention that the conviction has been
misclassified, for the line of argument could have been
pointless before Johnson but dispositive afterward. But this is
not the sort of argument that Stanley makes.
Hill v. Werlinger, 695 F.3d 644, 649–50 (7th Cir. 2012), con-‐‑
cludes that the Illinois offense of aggravated battery of a
peace officer is a violent felony because the use of force is an
element of the offense. Johnson has nothing to say about that
subject. What Stanley now contends is that he might have
pleaded guilty to aggravated battery under a different part
of the battery statute that penalizes insulting conduct. That
would not be a crime of violence under either the elements
clause or the residual clause, so this possibility, too, is unaf-‐‑
fected by Johnson.
What the Supreme Court curiously calls the “modified
categorical” approach determines how to classify a prior
conviction under the Armed Career Criminal Act and simi-‐‑
lar provisions, including §4B1.2. Under this approach the
Court asks whether the elements of the crime—rather than
what the defendant did in fact—bring the conviction within
the scope of the recidivist enhancement. Usually a statute
will be wholly in or wholly out, but some statutes are divisi-‐‑
ble into discrete theories of criminal culpability. See
Descamps v. United States, 133 S. Ct. 2276 (2013). When a
6 No. 15-‐‑3728
statute is divisible, a court may consider the charging papers
and judicial findings, or concessions made at a plea collo-‐‑
quy, to determine whether the conviction qualifies. See, e.g.,
Shepard v. United States, 544 U.S. 13 (2005). We held in United
States v. Rodriguez-‐‑Gomez, 608 F.3d 969, 973 (7th Cir. 2010),
that aggravated battery in Illinois is a divisible statute. Stan-‐‑
ley contends that he might have been convicted under a part
of this statute that lacks an element based on the use of force.
Yet this contention is unrelated to Johnson and so does not
authorize a belated collateral attack.
Stanley’s argument fails on the merits in addition to be-‐‑
ing untimely. Illinois charged Stanley with a violent battery
that satisfies the elements clause. See 720 ILCS 5/12-‐‑3(a)(1). It
is always possible that someone charged with a violent felo-‐‑
ny may plead guilty to a lesser offense, but a court does not
assume this. It must be shown. As the proponent of collat-‐‑
eral review, Stanley had to produce evidence demonstrating
entitlement to relief. See Hawk v. Olson, 326 U.S. 271, 279
(1945); Martin v. United States, 789 F.3d 703, 706 (7th Cir.
2015). For Stanley that meant showing a difference between
the charge and the conviction. A notation in the judgment of
conviction might do this. Judicial findings, or stipulations
during a plea colloquy, also might suffice. But Stanley did
not produce any of this potentially relevant evidence. When
a statute is divisible, “a silent record leaves up in the air
whether an error has occurred, and the allocation to defend-‐‑
ant of the burdens of production and persuasion makes a
difference.” United States v. Ramirez, 606 F.3d 396, 398–99
(7th Cir. 2010). The absence of any evidence to undermine
the indictment’s description of a violent felony means that
Stanley would have lost, even had he raised this contention
No. 15-‐‑3728 7
on direct appeal or by a timely motion under §2255. His sen-‐‑
tence is lawful.
AFFIRMED