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United States v. Waters

United States Court of Appeals, Seventh Circuit

May 24, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
CLINTON W. WATERS, Defendant-Appellant

         Argued April 27, 2016.

          Appeal from the United States District Court for the Southern District of Illinois. No. 14-CR-40083 -- Staci M. Yandle, Judge.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: Amanda A. Robertson, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Benton, IL.

         For CLINTON W. WATERS, Defendant - Appellant: Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL; Elisabeth R. Pollock, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL.

         Before FLAUM, MANION, and WILLIAMS, Circuit Judges.

          OPINION

         Flaum, Circuit Judge.

         Clinton Waters cooked methamphetamine at locations throughout southern Illinois and taught others to do the same. He eventually was caught and pled guilty to conspiring to manufacture a controlled substance in violation of 21 U.S.C. § § 846, 841(a)(1). Waters had several prior convictions, including for enhanced domestic battery in violation of Illinois law, which the probation office characterized as a crime of violence in the presentence investigation report (" PSR" ). The district court overruled Waters's challenge to that characterization and sentenced him as a career offender. Waters renews his challenge on appeal, arguing that the Illinois statute prohibiting domestic battery does not include the use of physical force as an element of the offense and thus, is not a crime of violence. Because Circuit precedent forecloses this argument and Waters does not provide a persuasive reason for overturning it, we affirm.

         I. Background

         After Waters pled guilty to conspiring to manufacture a controlled substance, the PSR recommended that he be sentenced as a career offender. A defendant can be sentenced as a career offender if he has two or more previous felony convictions for a crime of violence. U.S.S.G. § 4B1.1(a). A crime of violence is defined as any state or federal offense punishable by more than one year in prison that " has as an element the use, attempted use, or threatened use of physical force against the person of another ... ." § 4B1.2(a)(1). The PSR's recommendation was based on two convictions: (1) the Illinois conviction for enhanced domestic battery, 720 Ill.Comp.Stat. § 5/12-3.2, and (2) a federal conviction for conspiracy to manufacture methamphetamine, 21 U.S.C. § § 846, 841(a)(1). See § 4B1.1(a).

          Enhanced domestic battery is simply a domestic battery committed after a previous conviction for that same crime and it is classified as a felony rather than a misdemeanor. See § 5/12-3.2(b); [1] People v. White, 2015 IL App. (1st) 131111, 399 Ill.Dec. 570, 46 N.E.3d 889, 899 (Ill.App.Ct. 2015). At sentencing, Waters objected to characterizing the enhanced domestic battery offense as a felony crime of violence because the underlying conduct would have been only a misdemeanor if not for his previous conviction for domestic battery. See § 5/12-3.2(b). He emphasized that he had not been charged with aggravated domestic battery, which always is a felony under Illinois law. See § 5/12-3.3.

         The district judge rejected Waters's argument, agreeing with the government that enhanced domestic battery is both a crime of violence and a felony. The court reasoned that, no matter how Illinois classifies a first conviction for domestic battery, Waters was convicted of enhanced domestic battery, which is a felony. The court sentenced Waters to 188 months in prison (the high end of the guidelines range) and three years of supervised release.[2]

         II. Discussion

         On appeal, Waters has abandoned his argument that enhanced domestic battery cannot be a felony crime of violence because a first offense is a misdemeanor. He instead argues that enhanced domestic battery is not a crime of violence under § 4B1.2(a)(1) because the statute does not include the use, attempted use, or threatened use of physical force as an element of the crime. He further contends that the classification cannot be salvaged under the guidelines' residual clause given the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

         As Waters acknowledges, this Court has already rejected his argument about the elements of § 5/12-3.2(a)(1), concluding that a conviction for domestic battery under Illinois law necessarily requires proving physical force. SeeDe Leon Castellanos v. Holder, 652 F.3d 762, 764-65 (7th Cir. 2011) (reaffirming that domestic battery under § 5/12-3.2(a)(1) is a crime of violence under 18 U.S.C. § 16(a)) ;LaGuerre v. Mukasey, 526 F.3d 1037, 1039 (7th Cir. 2008) (holding that a felony conviction under § 5/12-3.2(a)(1) is a crime of violence under § 16(a)); United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) (holding that felony convictions for domestic battery under ยง 5/12-3.2(a)(1) " clearly qualify" as " violent felon[ies]" under the Armed Career Criminal ...


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