NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 6, 2016
Decided October 7, 2016
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 16-‐‑1895 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Central District of Illinois.
Plaintiff-‐‑Appellee,
v. No. 15-‐‑20021-‐‑001
Colin S. Bruce, Judge.
MARKESE D. SMITH,
Defendant-‐‑Appellant.
Order
Markese Smith pleaded guilty to possessing heroin with intent to distribute, 21
U.S.C. §841, and was sentenced to 212 months’ imprisonment. His plea agreement con-‐‑
tains a clause waiving the right to appeal, with an exception if counsel furnished inef-‐‑
fective assistance. Smith makes just such an argument on appeal.
The district court enhanced Smith’s sentence after concluding that he is a career of-‐‑
fender within the scope of U.S.S.G. §4B1.1. Smith now contends that counsel should
have contested the conclusion of the presentence report (a conclusion adopted by the
district judge) that he has at least two convictions for crimes of violence or controlled
No. 16-‐‑1895 Page 2
substance offenses as defined in §4B1.2. Smith maintains that counsel should have taken
advantage of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015), and contended that the convictions do not count under the residual clause of
§4B1.2(a)(2). See United States v. Hurlburt, No. 14-‐‑3611 (7th Cir. Aug. 29, 2016) (en banc)
(applying Johnson to the residual clause in §4B1.2(a)(2)).
The principal difficulty with this line of argument is that the district court did not re-‐‑
ly on the residual clause. Smith has a conviction for possessing marijuana with intent to
deliver, which qualifies as a “controlled substance offense” under §4B1.2(b). Smith does
not argue otherwise. The court found that Smith’s convictions for domestic battery and
robbery under Illinois law are violent felonies under the elements clause in §4B1.2(a)(1)
(a crime that “has as an element the use, attempted use, or threatened use of physical
force against the person of another”). Johnson does not affect convictions classified un-‐‑
der the elements clause of the Guidelines or the Armed Career Criminal Act. See Stanley
v. United States, 827 F.3d 562 (7th Cir. 2016).
We held in United States v. Waters, 823 F.3d 1062 (7th Cir. 2016), that a conviction for
domestic battery satisfies §4B1.2(a)(1). See also De Leon Castellanos v. Holder, 652 F.3d
762, 764–67 (7th Cir. 2011) (same conclusion under the elements clause of 18 U.S.C.
§16(a)). Two qualifying felonies make a person a career offender, and Smith has a third:
he has been convicted of robbery, in violation of Illinois law, and we have held that
convictions under that statute are crimes of violence under the elements clauses of the
Guidelines and similarly worded statutes. See, e.g., United States v. Dickerson, 901 F.2d
579, 584 (7th Cir. 1990); United States v. Bedell, 981 F.2d 915, 916 (7th Cir. 1992).
A lawyer is entitled to accept the law of the circuit unless there is good reason (such
as a conflict among the circuits) to believe that the Supreme Court would rule other-‐‑
wise. Smith does not contend that the circuits were, or are, in disagreement on the ques-‐‑
tion whether domestic battery or robbery in violation of statutes similar to the ones un-‐‑
der which he was convicted come within the Guidelines’ elements clause, or the lan-‐‑
guage of equivalent statutes. And it would not have helped Smith to knock out either
the battery conviction or the robbery conviction; his lawyer would have had to show
that circuit law on both convictions is mistaken. The chances of that were low indeed.
The Sixth Amendment does not compel lawyers to pursue such remote possibilities.
Counsel therefore did not exhibit deficient performance, and there is no basis for avoid-‐‑
ing the waiver in the plea agreement.
AFFIRMED