April 27, 2016.
from the United States District Court for the Southern
District of Illinois. No. 14-CR-40083 -- Staci M. Yandle,
UNITED STATES OF AMERICA, Plaintiff - Appellee: Amanda A.
Robertson, Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
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.
FLAUM, MANION, and WILLIAMS, Circuit Judges.
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.
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);  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.
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.
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).
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 §
5/12-3.2(a)(1) " clearly qualify" as " violent
felon[ies]" under the Armed Career Criminal ...