In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1479
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EANDRE R. H AMPTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-CR-20063—Michael P. McCuskey, Judge.
A RGUED M ARCH 28, 2011—D ECIDED M ARCH 27, 2012
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
S YKES, Circuit Judge. Deandre Hampton was arrested
for unlawfully possessing a firearm as a felon after he
discarded a loaded handgun during a foot chase with
police in Kankakee, Illinois. At the jail Hampton signed
a Miranda waiver and began to give a statement, but
soon invoked his right to counsel. The Kankakee officers
halted the interview and summoned a guard to take
Hampton back to his cell. Hampton then changed his
2 No. 10-1479
mind and asked to speak with the officers with-
out counsel present. The rest of the interview was
audiorecorded.
After new Miranda warnings, the officers again
asked Hampton if he wanted a lawyer. He replied, “Yeah,
I do, but you . . . .” On hearing this the officers reminded
him that they couldn’t talk if he was asking for counsel.
After a long pause, Hampton continued the conversa-
tion, hemming for a few minutes more before saying
unambiguously that he wanted to continue without a
lawyer. He then gave a statement denying the gun was
his, saying it belonged to an acquaintance who was at
the scene of the encounter with the police. Hampton
admitted that he held the gun for a moment before
the police arrived, but said he gave it back to the acquain-
tance and did not toss it during the foot chase.
Hampton was charged with one count of possession
of a firearm by a felon and as an armed career criminal
under the Armed Career Criminal Act (“ACCA”). See 18
U.S.C. §§ 922(g)(1), 924(e). He moved to suppress his
custodial statement, claiming that the officers violated
Miranda and Edwards by questioning him after he
invoked his right to counsel. See Edwards v. Arizona,
451 U.S. 477, 484-85 (1981); Miranda v. Arizona, 384 U.S.
436, 471-72 (1966). The district court denied the motion,
holding that (1) the officers appropriately stopped the
interview when Hampton asked for an attorney; and
(2) Hampton himself reinitiated the interview and did
not thereafter unequivocally invoke his right to counsel.
Hampton’s statement was admitted at trial, and a jury
found him guilty.
No. 10-1479 3
At sentencing the district court designated Hampton
as an armed career criminal based on three prior
felony convictions, including an Illinois aggravated
battery conviction for making “insulting or provoking”
physical contact with a peace officer. This triggered a
statutory minimum of 15 years, see id. § 924(e), a guide-
lines offense level of 33, see U.S.S.G. § 4B1.4(b)(3)(B), and
an advisory guidelines range of 235 to 293 months.
The district court settled on 252 months. Hampton ap-
pealed, challenging the denial of his suppression
motion and his designation as an armed career criminal.
We affirm the conviction but vacate the sentence and
remand for resentencing. The Kankakee officers did not
violate the Miranda/Edwards rule. They honored Hampton’s
initial request for counsel and immediately stopped
questioning him. Hampton himself reinitiated the inter-
view, and the record supports the district court’s con-
clusion that he did not thereafter make an unambiguous
request for counsel as required by Davis v. United
States, 512 U.S. 452, 459 (1994). But Hampton does not
qualify as an armed career criminal. The Illinois crime
of making insulting or provoking physical contact with
a peace officer is not a violent felony under the ACCA.
I. Background
Shortly after midnight on September 25, 2008, Deandre
Hampton was standing with others outside a friend’s
apartment building on Wildwood Avenue in Kankakee
when two police patrol cars drove by. As the squads
approached, Hampton began to run into the apartment
4 No. 10-1479
building. Two officers gave chase and followed him
into the building; the apartment manager had previously
given them a key and permission to enter the building
to patrol the common areas. Once inside, the officers
saw Hampton running up a flight of stairs. One of the
officers ran after him; as the officer reached the top of the
first flight, he heard a thud on the second-floor landing
above him as if something heavy was dropped on the
floor. Hampton fled down a second staircase and ran
into the other officer, who intercepted and tried to stop
him. Hampton resisted, a scuffle ensued, and the two
tumbled down the stairs. In the meantime the first
officer retrieved a loaded semiautomatic handgun from
the second-floor landing in the path of Hampton’s
flight. After Hampton was subdued and handcuffed, the
officers took him to the hospital for treatment of minor
injuries sustained in the tussle and then to the county jail.
At the jail Sergeant Peter Nicholos and Lieutenant
Robin Passwater sought to question Hampton about the
gun, first giving him Miranda warnings. Hampton ac-
knowledged that he understood his rights, signed a
waiver, and agreed to talk to the officers, but quickly
changed his mind and requested a lawyer. The officers
immediately halted the interview, and Nicholos left
the room to summon a correctional officer to escort
Hampton back to his jail cell. When the guard arrived,
Hampton changed his mind again and asked to talk
with the officers without an attorney present. At this
point Nicholos and Passwater decided to audiorecord
the remainder of the interview.
No. 10-1479 5
The interview resumed on tape.1 After new Miranda
warnings, the following exchange took place:
Passwater: Alright. Earlier, you told us you—
you—you were gonna talk about getting
a lawyer or whatever . . . do you want
a lawyer at this time?
Hampton: Yeah, I do, but you . . .
Passwater: Then I can’t talk to you, alright? We
can’t— I can’t take a statement from you
if you want a lawyer.
Five seconds of silence followed. Then Hampton spoke:
Hampton: But see, I’m askin’ you is this gonna
effect what’s goin’ on[?]
Passwater: To be honest, I don’t know—I mean . . .
Hampton: What does—what does me—my attorney
bein’ present has to do with it—you
know what I’m sayin’? That’s what I . . .
I don’t . . . that’s what ya’ll don’t under-
stand . . . you makin’ me [. . .]
Passwater: If you want a lawyer then we need to
stop the deal, okay?
Hampton: See, I’m—
1
The account that follows is based on the transcript of the
interview and our review of the audiorecording, both of
which are part of the record on appeal. Unless indicated
otherwise, the quotes are presented as they appear in the
transcript, with original punctuation, including ellipses.
6 No. 10-1479
Passwater: It’s one way or another. OK?
Hampton: Yeah, come on man.
Passwater: All right.
Nicholos: Wanna go on?
Hampton: Go ahead.
The officers thereafter tried to clarify whether Hampton
wanted an attorney. Hampton asked again how an at-
torney’s presence would affect his situation. The officers
repeatedly explained that they could not continue the
interview if Hampton wanted a lawyer. They also told
him they could not promise him a deal and that the
decision whether to have a lawyer present was his.
When Hampton began venturing into the facts of the
case, the officers again pressed him to clarify whether
he wanted counsel:
Nicholos: Again, do you want an attorney here or
not? I mean, you asked for an attorney,
we have to get that cleared up before
we talk about anything. You know what
I’m saying?
Hampton: I think, I, I felt like it should have been
an attorney here cause that’s what
I asked for. You know what I’m saying?
Before we talked . . .
Nicholos: Then we’re done . . .
Hampton: Yeah[.]
Nicholos: You know what I’m saying? We’re not
going to sit here and play, you know . . .
No. 10-1479 7
Hampton: Naw, it’s, I don’t . . .
Nicholos: Cause you asked for an attorney.
Hampton: That’s the whole point man, I don’t want
ya’ll to think I’m playing with you or
something.
Nicholos: No . . .
Hampton: I just want everything to see, my point,
you know what I’m saying?
Nicholos: Right, I hear you, that’s your right. That’s
why we read you those rights man.
We’re not going to think anything less
of you because you want an attorney.
That’s your right. That’s why we read
you those rights man.
Hampton: Right.
Nicholos: You choose one, you choose one, man.
No hard feelings. You know what I’m
saying?
Hampton: I keep telling ya’ll man, that that’s
not . . . that I told ya’ll who’s gun it is
like . . .
Nicholos: I understand.
Hampton: I will give a written statement and tes-
tify, man.
Passwater: Oh, okay but we . . . once again, we got
to know do you want an attorney or
not? I mean yes or no? It’s that . . .
8 No. 10-1479
Hampton: No, I don’t want no attorney for right
now.
Hampton then gave the following statement to the
officers: On the night of his arrest, he was hanging
around with an acquaintance named “Mike-Mike” and a
few others outside the apartment building on Wild-
wood Avenue. Shortly before the police arrived, Mike-
Mike asked Hampton to hold his gun. Hampton
initially agreed and briefly took Mike-Mike’s gun, but
then got scared and gave it back. When the police
arrived in the neighborhood and approached the group
outside the apartment building, everyone scattered.
Hampton insisted it was Mike-Mike who carried the
gun into the apartment building during the chase.
Hampton was charged with possession of a firearm by
a felon as an armed career criminal in violation of 18
U.S.C. §§ 922(g)(1) and 924(e). He moved to suppress
his statement. The district court heard evidence on the
motion, including the audiorecording and testimony
from Nicholos, Passwater, and Hampton. The officers’
account of what happened before the recorded portion
of the interview differed slightly from Hampton’s.
The district court credited the officers’ version, and
Hampton does not challenge that part of the court’s
ruling on appeal.
As for the recorded portion of the interview, the court
held that (1) Hampton himself reinitiated the conversa-
tion with the officers; (2) Miranda warnings were
properly administered; and (3) Hampton’s references to
an attorney were ambiguous and did not amount to an
No. 10-1479 9
unequivocal request for counsel. The judge observed
that Hampton was “looking for a deal and a way out,”
while the officers “were doing everything possible to
comply with the law.” Hampton’s equivocation, the
judge held, prompted the officers to try to clarify the
situation; they gave Hampton “every opportunity to
have a lawyer,” but Hampton “continued to fish . . . for
a deal.” The judge concluded that “[w]hat Mr. Hampton
needed to do and . . . did not do was make a clear, unam-
biguous assertion of his right to counsel to stop ques-
tioning. That didn’t happen here.” Accordingly, the
court denied the motion to suppress.
The government introduced Hampton’s statement at
trial, playing the audiorecording for the jury. Hampton
was convicted. The presentence report (“PSR”) recom-
mended that Hampton be classified as an armed career
criminal based on three prior felony convictions—one
for home invasion and two for aggravated battery.
Hampton objected to the armed career criminal designa-
tion, arguing that one of his aggravated battery con-
victions—a 1999 Illinois conviction for making “insulting
or provoking” physical contact with a peace officer—
did not qualify as a violent felony under the ACCA or
a crime of violence under the corresponding guide-
lines provision, U.S.S.G. § 4B1.1. The district court over-
ruled the objection and accepted the PSR’s recommenda-
tion. As a result Hampton was subject to a statutory
minimum sentence of 15 years in prison and an advisory
sentencing range of 235 to 293 months. The court
imposed a sentence of 252 months, well above the
statutory minimum and in the middle of the guidelines
range. Hampton appealed.
10 No. 10-1479
II. Discussion
Hampton raises two issues on appeal: (1) his custodial
statement was procured in violation of Miranda and
Edwards and should have been suppressed; and (2) the
Illinois aggravated-battery offense of making insulting
or provoking contact with a peace officer is not a violent
felony under the ACCA.
A. Hampton’s Suppression Motion
Hampton argues that Nicholos and Passwater improp-
erly questioned him in violation of Miranda and Edwards
after he invoked his right to counsel and the district
court therefore should have granted his motion to sup-
press. In an appeal challenging the denial of a motion
to suppress, we review the district court’s legal conclu-
sions de novo and its factual findings for clear error.
United States v. Lee, 413 F.3d 622, 624-25 (7th Cir. 2005).
To protect a suspect’s Fifth Amendment right against
compelled self-incrimination, custodial interrogations
must be preceded by the familiar Miranda warnings,
including a warning that the suspect has a right to an
attorney at state expense during questioning; if the
suspect invokes the right to counsel, he “is not subject
to further interrogation . . . until counsel has been made
available to him, unless [he] himself initiates further
communication, exchanges, or conversations with the
police.” Edwards, 451 U.S. at 484-85; see also Miranda,
384 U.S. at 474. Questioning may continue, however,
if the suspect’s reference to counsel “is ambiguous or
No. 10-1479 11
equivocal in that a reasonable officer in light of the cir-
cumstances would have understood only that the
suspect might be invoking the right to counsel.” Davis v.
United States, 512 U.S. 452, 459 (1994). In this situation,
although “it will often be good police practice for the
interviewing officers to clarify whether or not [the
suspect] actually wants an attorney,” the police are not
constitutionally obligated to ask clarifying questions. Id.
at 461. But a request for counsel, unequivocal when
made, cannot be rendered equivocal by continued ques-
tioning. Smith v. Illinois, 469 U.S. 91, 100 (1984). Put dif-
ferently, a suspect’s later statements in response to con-
tinued questioning cannot be used to undermine an
earlier unambiguous invocation of the right to counsel. Id.
Here, most of the evidentiary facts relevant to the
district court’s suppression decision were captured on
audiotape and are not subject to dispute. After initially
signing a Miranda waiver, Hampton changed his mind
and invoked his right to counsel, which was honored;
questioning immediately ceased and the officers arranged
for Hampton to be returned to his cell. When the guard
arrived, Hampton changed course and reengaged the
officers, saying he wanted to proceed without counsel.
The officers properly started anew with fresh Miranda
warnings. This is where the audiotape begins, and we
have reproduced the most important parts of the
transcript above. The parties disagree about the legal
significance of what was said during the recorded part
of the interview. Did Hampton unequivocally re-invoke
his right to counsel?
12 No. 10-1479
Hampton focuses on two particular statements he
made on the recording. After Passwater administered
new Miranda warnings and asked Hampton whether
he wanted a lawyer, he responded, “Yeah, I do, but
you . . . .” Hampton contends that this statement was an
unambiguous request for counsel. The government dis-
agrees, defending the district court’s contextual inter-
pretation. The government maintains that the use of
the qualifying word “but” when considered in light
of Hampton’s prior equivocation would lead a rea-
sonable officer to conclude only that Hampton might
be invoking his right to counsel, not that he clearly
was doing so.
The government is right to consider Hampton’s state-
ment in light of the circumstances in which it was
made. Whether a suspect clearly invoked his right to
counsel is an objective inquiry. Davis, 512 U.S. at 458-59;
United States v. Martin, 664 F.3d 684, 688 (7th Cir. 2011);
United States v. Shabaz, 579 F.3d 815, 818 (7th Cir. 2009).
We have emphasized that the “analysis does not end
with words alone; . . . we also consider the circumstances
in which the statement was made.” Shabaz, 579 F.3d at
819; see also Lord v. Duckworth, 29 F.3d 1216, 1221 (7th
Cir. 1994) (“[T]he context in which [the suspect] made
reference to a lawyer also supports the conclusion that
any request for counsel was ambiguous . . . .”).
Here, Hampton had already signed a Miranda waiver
and agreed to talk to the officers without a lawyer, only
to change his mind just as the interview was getting
underway. The officers immediately stopped the inter-
No. 10-1479 13
rogation and summoned a guard to take Hampton back
to his cell. When the guard arrived, Hampton changed
his mind again and reinitiated the interview, asking to
talk to the officers without an attorney present. The
officers paused and took the precautionary step of
bringing in audiorecording equipment. When Passwater
renewed the Miranda warnings, Hampton hesitated again
and appeared to have another change of heart. Based
on this pattern of equivocation and because Hampton’s
reference to a lawyer used the hedge word “but,” we
agree with the government that a reasonable officer
would have understood only that Hampton might want
an attorney present, not that he was clearly invoking
his right to deal with the officers only through counsel.
See, e.g., Davis, 512 U.S. at 455 (the statement “[m]aybe
I should talk to a lawyer” was not an unambiguous
request for counsel); Shabaz, 579 F.3d at 819 (the ques-
tion “am I going to be able to get an attorney” was not
an unambiguous request for counsel); Lord, 29 F.3d at
1221 (the question “I can’t afford a lawyer but is there
anyway I can get one?” was not an unambiguous
request for counsel); United States v. Buckley, 4 F.3d 552,
558-59 (7th Cir. 1993) (the statement “I don’t know if
I need an attorney” was not an unambiguous request
for counsel).
Even if Hampton’s statement “Yeah, I do, but you . . .”
was definite enough to constitute an unambiguous
request for counsel (and considering the context, we do
not think it was), the record is clear that no interroga-
tion occurred until Hampton himself resumed the con-
versation. Passwater immediately told Hampton that
14 No. 10-1479
they could not talk to him if he was asking for a lawyer.
A long moment of silence followed in which neither
officer asked a question or said anything further. A full
five seconds passed before Hampton reengaged the
officers by asking them how the presence of an attorney
would affect his situation. Once he did this, the officers
were permitted to resume questioning, although the
record reflects that what happened next was not an
interrogation at all but an effort to clarify Hampton’s
intent. Though not constitutionally required, this is
just what the Supreme Court recommends that officers
do in this situation. See Davis, 512 U.S. at 461.
The next several minutes of the audiotape con-
sists of putative bargaining by Hampton. He is plainly
trying—as the district court aptly put it—to “fish . . . for
a deal.” For their part, the officers continued to press
him for a decision about counsel. When he started to
veer into the facts of the case, the officers stopped him
and again tried to clarify whether he wanted an attor-
ney. In response Hampton said, “I think, I, I felt like it
should have been an attorney here cause that’s what
I asked for.” This is the second statement that Hampton
emphasizes. Considered in context, however, this state-
ment, like the earlier one, is not an unambiguous
request for counsel.
By this point in the encounter, Hampton had twice
mentioned an attorney only to change his mind and
reinitiate the conversation with the officers. The officers
scrupulously honored Hampton’s request for counsel
that occurred soon after his initial Miranda waiver; his
No. 10-1479 15
first reference to counsel was not unclear. Hampton
then changed his mind and asked to talk to the officers
without an attorney. Wary, the officers began recording
the conversation. Almost immediately after new Miranda
warnings, Hampton again mentioned a lawyer, but
this time he equivocated. Again the officers stopped
the interview, reminding him that they couldn’t talk
any further if he was asking for counsel. Hampton
paused to think about it, then plunged back in and tried
to take control of the situation, asking the officers how
a lawyer would affect his situation. As he searched for a
deal, they took another stab at clarifying his intent.
When he strayed into the facts of the case, they stopped
him and insisted on a clarification of his desire for
counsel before proceeding. Under these circumstances,
Hampton’s statement “I think, I, I felt like it should
have been an attorney here cause that’s what I asked
for” was not definite enough to unambiguously invoke
the right to counsel. Instead, a reasonable officer would
have understood that Hampton might want a lawyer,
but also might want to proceed without one.
In short, we agree with the district court that Hampton
did not “make a clear and unambiguous assertion of his
right to counsel to stop questioning.” United States v. Lee,
413 F.3d 622, 625 (7th Cir. 2005). The officers’ effort
to obtain clarification—eventually resulting in a firm
“no” from Hampton that he did not want counsel
present—was appropriate and consistent with the “good
police practice” endorsed by the Supreme Court in Da-
vis. Hampton’s motion to suppress was properly denied.
16 No. 10-1479
B. Armed Career Criminal Designation
Hampton also challenges the district court’s determina-
tion that his prior conviction for making insulting or
provoking contact with a peace officer, a form of aggra-
vated battery in Illinois, is a “violent felony” under
the ACCA and a “crime of violence” in the parlance
of the sentencing guidelines, see U.S.S.G. § 4B.1.2(a). We
review this legal ruling de novo. United States v. Smith,
544 F.3d 781, 783 (7th Cir. 2008).
The ACCA enhances a sentence for being a felon in
possession of a firearm if the defendant has three prior
convictions for a “violent felony.” See 18 U.S.C. § 924(e).
A “violent felony” is defined as a crime punishable by
a year or more in prison that
(i) has as an element the use, attempted use, or threat-
ened use of physical force against the person of an-
other; or
(ii) is burglary, arson, or extortion, involves the use
of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another . . . .
Id. § 924(e)(2)(B) (emphasis added). A defendant’s status
as an armed career criminal also enhances his offense
level and criminal history category under the sentencing
guidelines. See U.S.S.G. § 4B1.4.
Hampton concedes that two of his prior convictions
are violent felonies: his Illinois convictions for home
invasion and for aggravated battery for causing bodily
harm to a peace officer. He argues that his 1999
aggravated-battery conviction—for making “insulting
No. 10-1479 17
or provoking” physical contact with a peace officer—does
not qualify as a violent felony.
Everyone agrees that if this conviction is to be counted
as an ACCA predicate, it must satisfy the so-called
“residual clause” of the violent-felony definition, which
sweeps in crimes that “otherwise involve[] conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). The Supreme Court
requires that we use a categorical approach, which is to
say we examine only ” ‘whether the elements of the
offense are of the type that would justify its inclusion
within the residual provision, without inquiring into the
specific conduct of this particular offender.’ ” Sykes v.
United States, 131 S. Ct. 2267, 2272 (2011) (quoting James
v. United States, 550 U.S. 192, 202 (2007)). The categorical
approach assesses the risk of injury in the generic
offense as generally committed. Id. at 2275. “[A] crime
involves the requisite risk when ‘the risk posed by [the
crime in question] is comparable to that posed by its
closest analog among the enumerated offenses’ “—namely,
burglary, arson, extortion, or crimes involving the use
of explosives. Id. at 2273 (quoting James, 550 U.S. at 203);
see also Begay v. United States, 553 U.S. 137, 144-45 (2008);
United States v. Dismuke, 593 F.3d 583, 589 (7th Cir. 2010).
Under Illinois law a person commits battery “if he
intentionally or knowingly without legal justification
and by any means (1) causes bodily harm to an indi-
vidual or (2) makes physical contact of an insulting or
provoking nature with an individual.” 720 ILL. C OMP.
S TAT. 5/12-3(a) (1993). Simple battery is treated as a
18 No. 10-1479
felony aggravated battery if one of several enumerated
aggravating factors is present. See id. 5/12-4(b)(6). Here,
Hampton was convicted in 1999 of the simple battery
form of the offense—more specifically, the “insulting or
provoking” contact form—but the crime was elevated
to felony aggravated battery because the victim was “a
peace officer . . . engaged in the execution of . . . official
duties.” See id.
We have already addressed the related question
whether the insulting-or-provoking contact form of the
Illinois battery offense is a crime of violence under the
career-offender sentencing guideline when the offense is
a felony aggravated battery because the victim is a preg-
nant woman.2 See United States v. Evans, 576 F.3d 766
(7th Cir. 2009). In Evans we held that making insulting
or provoking contact with a pregnant woman is not a
crime of violence because: (1) the act of making insulting
or provoking contact—which might include giving an
unwanted kiss and often includes spitting—does not
generally create a risk of injury; and (2) there was no
evidence that the typical crime of making insulting or
provoking contact with a pregnant woman is violent. Id.
at 768-69. In another case—albeit a nonprecedential
order—we held that “[t]he presence of a different ag-
2
The definition of “crime of violence” in the career-offender
guidelines is almost identical to the definition of “violent
felony” in the ACCA; therefore, our caselaw interpreting the
two definitions is interchangeable. United States v. Templeton,
543 F.3d 378, 380 (7th Cir. 2008).
No. 10-1479 19
gravating factor—a public place rather than a pregnant
victim—does not change Evans’s conclusion that
insulting or provoking contact, in the ordinary case, is
not violent.” United States v. Johnson, 365 F. App’x 3, 5
(7th Cir. 2010).
At issue here is whether the presence of a different
aggravating factor—a peace-officer victim—changes the
analysis. Evans left open the possibility that other
versions of the Illinois aggravated-battery offense might
be a crime of violence (or a violent felony) if the crime
as generally committed is violent and carries the
required degree of risk of physical injury. Here, the
district court held that when committed against a
peace officer, the offense of making insulting or
provoking physical contact generally creates a risk of
injury comparable to the risk created by the enumerated
offenses in the residual clause.
To support this conclusion, the district court relied
primarily on statistics submitted by the government
regarding the incidence of injury to police officers
during assaults. These statistics—compiled by the De-
partment of Justice (“DOJ”)—show that in 2008, 26%
of reported assaults on law-enforcement officers re-
sulted in injuries to the officer—a rate 13 times higher
than the 2% injury rate for burglaries, a crime specif-
ically listed in the residual clause. But while statistics
can sometimes usefully inform the analysis, see, e.g.,
Sykes, 131 S. Ct. at 2274-75, the DOJ report is not helpful
here. Its methodology section states:
Law enforcement agencies report to the [crime-re-
porting] [p]rogram the number of assaults resulting
20 No. 10-1479
in injuries to their officers or instances in which
an offender used a weapon that could have caused
injury or death. Agencies record other assaults only
if they involved more than verbal abuse or minor
resistance to an arrest.
In other words, the report focuses on serious physical
assaults on officers, which would likely be charged as a
bodily injury battery under the Illinois battery statute.
The DOJ report specifically excludes nonserious assaults;
only assaults that involved “more than verbal abuse or
minor resistance to an arrest” were reported. As such, the
DOJ report does not paint an accurate picture of the
frequency of officer injuries resulting from “insulting
or provoking” contact batteries involving law-enforce-
ment officers as victims.
The government also analogizes this form of battery
to felony vehicular flight, which the Supreme Court held
to be a violent felony under the ACCA. See Sykes, 131 S.
Ct. at 2277. The Court in Sykes observed that even at
low speeds, vehicular flight is dangerous to pursuing
officers, other motorists, and bystanders because the
officers may be compelled to use countermaneuvers to
subdue the fleeing vehicle. See id. at 2273-74. By analogy,
the government argues that even a light insulting or
provoking contact with a peace officer has the potential
to induce a counterreaction that poses a serious risk
of injury to the officer or others.
We find this comparison inapt. Setting aside the orders-
of-magnitude difference between the force of a fleeing
vehicle and that of, say, a poking finger, vehicular flight
No. 10-1479 21
is inherently more risky than making insulting or pro-
voking contact with an officer. The former offense, as
generally committed, necessarily involves resistance to
the officer’s authority by the use of a dangerous instru-
mentality—a fleeing vehicle—and it induces an escalated
reaction from the pursuing officer that inherently
carries heightened risk of injury to others. In contrast,
the insulting-or-provoking-contact offense, though it
may require a certain bravado in the face of authority,
does not entail resistance of the sort that ordinarily
induces an escalated response from the officer that puts
the officer or others at a similar serious risk of injury. See,
e.g., People v. Smith, 794 N.E.2d 408, 409-11 (Ill. App. Ct.
2003) (affirming conviction under the insulting-or-
provoking-contact provision for throwing milk through
cell door at guard); People v. Peck, 633 N.E.2d 222, 223-24
(Ill. App. Ct. 1994) (affirming conviction for spitting on
a police officer); see also Garcia-Meza v. Mukasey, 516
F.3d 535, 538 (7th Cir. 2008) (suggesting that someone
could be convicted for crumpling up parking ticket
and throwing it at the issuing officer’s shoes).
Finally, the government argues that a person who is
brazen enough to make insulting or provoking physical
contact with a peace officer is also likely to violently
resist arrest. But the inquiry under the residual clause is
not whether some instances of the crime pose a serious
risk of injury to others. Rather, our focus is on the
generic crime as ordinarily committed—that is, whether
most instances of the crime present the required
degree of risk. See Dismuke, 593 F.3d at 594. Applying
the categorical approach, we conclude that the Illinois
22 No. 10-1479
aggravated-battery offense of making insulting or provok-
ing contact with a peace officer does not qualify as
a violent felony and is therefore not an ACCA predi-
cate. Because the district court’s determination to the
contrary enhanced Hampton’s sentencing range,3 we
vacate the sentence and remand for resentencing.
A FFIRMED in part,
V ACATED in part, and R EMANDED.
3
Without the armed career criminal designation, the 15-year
mandatory minimum drops out, and the statutory maximum
becomes ten years. See 18 U.S.C. § 924(a)(2). Hampton’s guide-
lines range thus becomes 120 months. See U.S.S.G. § 5G1.1.
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