In the
United States Court of Appeals
For the Seventh Circuit
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No. 16-‐‑3048
ROBERT YATES,
Petitioner-‐‑Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-‐‑Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 16-‐‑cv-‐‑207-‐‑bbc — Barbara B. Crabb, Judge.
____________________
ARGUED NOVEMBER 29, 2016 — DECIDED DECEMBER 2, 2016
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Thirteen years ago, Robert
Yates was sentenced as an armed career criminal under 18
U.S.C. §924(e). The district court concluded that he had six
qualifying prior convictions; the statute provides that three
or more require an enhanced sentence. After the Supreme
Court held in Samuel Johnson v. United States, 135 S. Ct. 2551
(2015), that the “residual clause” in §924(e)(2)(B)(ii) is uncon-‐‑
stitutionally vague, and made that decision retroactive,
2 No. 16-‐‑3048
Welch v. United States, 136 S. Ct. 1257 (2016), Yates filed this
collateral attack. He contends that after Samuel Johnson only
two qualifying convictions remain, so that 28 U.S.C.
§2255(f)(3) restarts the time for collateral review. The prose-‐‑
cutor concedes that the petition is timely and that Samuel
Johnson knocks out three of the six convictions but maintains
that Yates’s conviction of battery by a prisoner, in violation
of Wis. Stat. §940.20(1), qualifies as a violent felony under
the “elements clause” of §924(e)(2)(B)(i) because it “has as an
element the use, attempted use, or threatened use of physical
force against the person of another”. Samuel Johnson does not
affect the elements clause of §924(e). See, e.g., Stanley v. Unit-‐‑
ed States, 827 F.3d 562 (7th Cir. 2016). The district court
agreed with the prosecutor and dismissed this proceeding.
2016 U.S. Dist. LEXIS 79058 (W.D. Wis. June 17, 2016).
Under Taylor v. United States, 495 U.S. 575 (1990), and its
successors, such as Descamps v. United States, 133 S. Ct. 2276
(2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), a
court must determine whether a conviction satisfies §924(e)
or a similar recidivist statute by looking at the elements of
the crime, no matter what the accused did in fact. We do not
know what he did that led to the battery conviction, but the
Supreme Court has held that the facts do not matter—indeed
that we are usually forbidden to know. See Shepard v. United
States, 544 U.S. 13 (2005). The elements of the offense, not the
facts of the crime, control. And the elements that matter are
those applicable when the person committed the earlier of-‐‑
fense. The elements of Wis. Stat. §940.20(1) and associated
provisions have changed since Yates’s conviction for battery
by a prisoner, so like the district court we refer to the state
law in force at the time of his conviction.
No. 16-‐‑3048 3
Yates maintains that Wisconsin law did not make “the
use, attempted use, or threatened use of physical force
against the person of another” an element of the crime, given
how the Supreme Court understood “force” in Curtis Johnson
v. United States, 559 U.S. 133 (2010). The Florida offense at
issue in Curtis Johnson prohibited “actually and intentionally
touching” another person without consent and causing
alarm or offense—a form of simple battery. Under that stat-‐‑
ute throwing a Nerf ball at someone who was hit and be-‐‑
came frightened could be penalized. The Court held that
such acts do not entail the use of “force” within the meaning
of §924(e)(2)(B)(i) even though the impact of a Nerf ball con-‐‑
veys some “force” according to the laws of physics. Curtis
Johnson stated that the sort of “force” that comes within the
elements clause is “force capable of causing physical pain or
injury to another person.” 559 U.S. at 140. Yates tells us that
Wisconsin’s battery-‐‑by-‐‑prisoner statute does not (well, did
not) require the prosecutor to demonstrate that sort of force.
The statute on the books at the time provided:
Any prisoner confined to a state prison or other state, county or
municipal detention facility who intentionally causes bodily
harm to an officer, employee, visitor or another inmate of such
prison or institution, without his or her consent, is guilty of a
Class D felony.
And Wis. Stat. §939.22(4) added that bodily harm means
“physical pain or injury, illness, or any impairment of physi-‐‑
cal condition”. That definition tracks what Curtis Johnson
said would suffice: “force capable of causing physical pain
or injury to another person.” This led the district court to
hold that Yates’s battery conviction satisfies the elements
clause of §924(e).
4 No. 16-‐‑3048
Yates asks us not to take the statutory language at face
value—because, he says, the state judiciary does not. He re-‐‑
lies principally on State v. Higgs, 230 Wis. 2d 1 (App. 1999),
which affirmed a conviction under this statute of a prisoner
who threw a cup of urine at a guard. Yet the ground on
which the court sustained this conviction—that the urine
had in fact caused pain to the guard when it got into his eyes
and nose—comes within the language of Curtis Johnson,
which said that it is enough if the force is “capable of” caus-‐‑
ing pain. Yates has not identified any case in which Wiscon-‐‑
sin’s judiciary affirmed a battery-‐‑by-‐‑prisoner conviction that
penalized acts that caused neither pain nor injury. This state
law therefore categorically is a crime of violence under the
elements clause, and Yates was properly sentenced as a ca-‐‑
reer criminal.
AFFIRMED