     Case: 16-40241   Document: 00514098373        Page: 1   Date Filed: 08/01/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                    No. 16-40241                          FILED
                                                                     August 1, 2017
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

             Plaintiff - Appellee

v.

OSMAN RUTILIO REYES,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
REAVLEY, Circuit Judge:
      This Court implicitly held in United States v. Velasco, 465 F.3d 633 (5th
Cir. 2006), that the Illinois aggravated battery statute is divisible—meaning
that if a defendant has a prior conviction under that statute and a sentencing
court must determine whether this prior conviction qualifies for a sentencing
enhancement, the court should look to certain records of conviction to identify
the particular offense of which the defendant had been convicted. Applying
Mathis v. United States, 136 S.Ct. 2243 (2016), we must decide whether that
holding retains vitality. We find that it does.
      Recitation of only a few facts is necessary. In April of 2015, defendant
Osman Rutilio Reyes was convicted of aggravated battery under Illinois’
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                                 No. 16-40241
aggravated battery statute, 720 Ill. Comp. Stat. Ann. § 5/12-3.05.          More
specifically, he was convicted of aggravated battery with a deadly weapon
under Section 5/12-3.05(f)(1). Reyes was deported in May of that year. By
August, he was back in the country. Immigration and Customs Enforcement
agents apprehended him in Texas, and he pleaded guilty to violating 8 U.S.C.
§ 1326.
      The district court found that Reyes’ prior conviction qualified as a crime
of violence for purposes of the United States Sentencing Guidelines and
imposed a 16-level sentencing enhancement when calculating the applicable
Guidelines range. See USSG § 2L1.2(b)(1)(A)(ii). This ruling was required by
Velasco, which had held that a conviction under the Illinois aggravated battery
statute for aggravated battery based on the use of a deadly weapon necessarily
involved “the use of force” and therefore categorically qualified as a crime of
violence. 465 F.3d at 638–40 (citing 720 Ill. Comp. Stat. 5/12–4(b)(1)). The
opinion also recognized that when Illinois’ aggravated battery statute cannot
be “pare[d] down,” a conviction under the statute will not categorically qualify
as a crime of violence because the “statute provides for the commission of the
offense of aggravated battery in a number of different ways, some of which do
not require the use of physical force against a person.” Id. at 639 (quoting
United States v. Aguilar-Delgado, 120 F. App’x 522, 523 (5th Cir. 2004)).
      Though Velasco foreclosed his argument, Reyes duly objected to a crime-
of-violence sentencing enhancement on the grounds that the Illinois
aggravated battery statute is indivisible. As that very case shows, a finding of
indivisibility would establish the sentencing enhancement’s impropriety. See
Velasco, 465 F.3d at 639. On appeal, we consider Reyes’ divisibility argument
in light of Mathis, and review is de novo. See United States v. Sam, 467 F.3d
857, 861 (5th Cir. 2006). Because Reyes is challenging a precedent of this
Court, he must show that Mathis “unequivocally abrogated” Velasco. United
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                                 No. 16-40241
States v. Tanksley, 848 F.3d 347, 350 (5th Cir.), supplemented, 854 F.3d 284
(5th Cir. 2017).     Mathis “is controlling regarding the methodology of the
modified categorical approach,” United States v. Hinkle, 832 F.3d 569, 574 (5th
Cir. 2016), so our task is to check the result of Velasco according to the method
of Mathis, see Tanksley, 848 F.3d at 351.
      The broad issue in this case is whether Reyes’ conviction under the
Illinois aggravated battery statute properly counts as a crime of violence under
the Guidelines. “To determine whether a given prior conviction qualifies for a
Guidelines enhancement, courts use either (1) the categorical approach or (2)
the modified categorical approach.” United States v. Rico-Mejia, 859 F.3d 318,
322 (5th Cir. 2017). Courts applying the categorical approach simply “look to
the elements of the offense enumerated or defined by the Guideline section and
compare those elements to the elements of the prior offense for which the
defendant was convicted.” United States v. Howell, 838 F.3d 489, 494 (5th Cir.
2016).
      Some statutes resist this approach because they “list elements in the
alternative, and thereby define multiple crimes.” Mathis, 136 S.Ct. at 2249.
When confronted with such a statute, courts employ the modified categorical
approach and examine “a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of.” Id.         Some
statutes seem at a glance to bear this same structure but, upon examination,
merely list “various factual means of committing a single element.” Id. When
a statute lists different possible ways of committing one crime, the modified
categorical approach is impermissible. Id. at 2251.
      The Illinois aggravated battery statute is lengthy and complex. See 720
Ill. Comp. Stat. § 5/12-3.05(a)–(g). According to the government, the statute
sets forth the necessary alternative elements that render the modified
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                                  No. 16-40241
categorical approach permissible and allow Reyes’ prior conviction to be
identified as an aggravated battery involving the use of a deadly weapon. See
720 Ill. Comp. Stat. § 5/12-3.05(f)(1).     According to Reyes, the statute is
indivisible and “overbroad” in that it “sweeps in conduct that does not qualify
as a ‘crime of violence.’” Reyes’ fallback position is that even if the aggravated
battery statute can be narrowed to Section 5/12-3.05(f), it cannot be narrowed
further. In other words, Section 5/12-3.05(f) is itself indivisible and overbroad.
      In determining if the aggravated battery statute is divisible, we look to
its alternative components and ask “elements or means?” Mathis, 136 S.Ct. at
2256. State law governs this “threshold inquiry.” Id. State courts are the ideal
expositors of state law, but we may also examine the statutory text and
structure or, if necessary, “the record of a prior conviction itself.” Id. If the
Illinois aggravated battery statute lists various means of committing one
aggravated battery offense, it is indivisible. Hinkle, 832 F.3d at 575. In such
a case, a jury need not agree on how the offense was committed, and Reyes’
crime of conviction could not be narrowed to encompass any one factual theory,
no matter the actual evidence or indictment in his case. Mathis, 136 S.Ct. at
2251. Elements, by contrast, are those “things the ‘prosecution must prove to
sustain a conviction.’” Id. at 2248 (quoting Black’s Law Dictionary 634 (10th
ed. 2014). Distilled to its essence, Mathis recognizes that, when applying a
recidivism statute to a defendant’s prior convictions, each “crime of conviction”
is defined by solely by its elements. Id. at 2251. “How a given defendant
actually perpetrated the crime” is irrelevant, “regardless of whether a statute
omits or instead specifies alternative possible means of commission.” Id.
      We first consider Reyes’ broad argument: that the “aggravated battery
statute contains [a] lengthy list of ways that a person can violate the statute.”
(Emphasis added (citing 720 Ill. Comp. Stat. § 5/12-3.05(a)–(g)).) Do its many
subsections and their nested paragraphs simply establish a multiplicity of
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ways of committing one aggravated battery offense? No. The Supreme Court
of Illinois recently analyzed the aggravated battery statute and held that it
contained (at least) two different crimes requiring different proofs. 1 People v.
Cherry, 63 N.E.3d 871, 877 (Ill. 2016) (discussing aggravated battery and
aggravated battery with a firearm).
      The Illinois aggravated battery statute sets forth many types of
aggravated battery. It is error to analyze the statute as if it instead establishes
a basic aggravated battery offense that is supplemented throughout the rest of
the statute by various further-aggravating circumstances. Thus, in Cherry,
the Supreme Court of Illinois rejected the appellate court’s conclusion that
aggravated battery with a firearm was merely “an enhanced version of
aggravated battery.” Id. (quoting People v. Cherry, 22 N.E.3d 1277, 1283 (Ill.
App. Ct. 2014)). And it chided the lower court for “wholly ignor[ing] the actual
elements of these offenses.” Id.
      [T]he statutory elements plainly demonstrate that, rather than
      being an aggravated or enhanced version of aggravated battery,
      aggravated battery with a firearm is, like aggravated battery
      itself, an aggravated or enhanced version of battery.           The
      aggravated battery and aggravated battery with a firearm statutes
      share an identical structure. Both offenses require the State to
      prove the commission of a battery, and both offenses require the
      State to prove the presence of an additional factor aggravating that
      battery.
Id. (emphases added).
      Cherry thus forecloses Reyes’ argument that the entirety of the
aggravated battery statute is indivisible. Accordingly, our focus shifts to one
particular subsection, Section 5/12-3.05(f). Reyes’ “crime of conviction” for
purposes of Mathis is either a Section 5/12-3.05(f) violation (aggravated battery



      1The code numbers cited herein are different than those referenced in both Velasco
and Cherry because this portion of the Illinois penal code has been renumbered.
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                                  No. 16-40241
based on the use of a weapon or device) or a 5/12-3.05(f)(1) violation (aggravated
battery involving the use of a deadly weapon). See 136 S.Ct. at 2251.
      In its entirety, subsection (f) reads as follows:
      Offense based on use of a weapon or device. A person commits
      aggravated battery when, in committing a battery, he or she does
      any of the following:
      (1)   Uses a deadly weapon other than by discharge of a firearm,
            or uses an air rifle as defined in Section 24.8-0.1 of this Code.
      (2)   Wears a hood, robe, or mask to conceal his or her identity.
      (3)   Knowingly and without lawful justification shines or flashes
            a laser gunsight or other laser device attached to a firearm,
            or used in concert with a firearm, so that the laser beam
            strikes upon or against the person of another.
      (4)   Knowingly video or audio records the offense with the intent
            to disseminate the recording.
720 Ill. Comp. Stat. Ann. 5/12-3.05(f).
      As can be seen from the statute, if Reyes’ crime of conviction is
aggravated battery based on the use of a weapon or device, then the conviction
would not categorically qualify as a crime of violence under the Guidelines; the
conviction could be based on wearing a hood while committing a non-violent
battery, for instance. But if the crime of conviction is aggravated battery
involving the use of a deadly weapon it categorically qualifies as a crime of
violence under the Guidelines. United States v. Sanchez-Sanchez, 779 F.3d
300, 305 (5th Cir. 2015). We must determine the nature of Section 5/12-3.05(f).
Do paragraphs (1) through (4) itemize means of committing a single crime, or
do paragraphs (1) through (4) represent distinct crimes with distinct elements?
See Hinkle, 832 F.3d at 575.
      We are aware of no Illinois case describing aggravated battery based on
the use of a weapon or device as a unitary offense, which offense may be proven
by showing that Section 5/12-3.05(f) was violated in any one of four ways


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                                  No. 16-40241
enumerated in paragraphs (1) through (4) of that subsection. Compare Mathis,
136 S.Ct. at 2256 (finding the Iowa burglary statute indivisible because of a
state supreme court holding that “[t]he listed premises in Iowa’s burglary law
. . . are ‘alternative method[s]’ of committing one offense, so that a jury need
not agree whether the burgled location was a building, other structure, or
vehicle” (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981))). But nor
can we find cases holding that Section 5/12-3.05(f) describes four different
crimes with four distinct sets of elements. Compare United States v. Uribe,
838 F.3d 667, 670 (5th Cir. 2016) (holding that the Texas burglary statute,
which describes three forms of burglary, is divisible because the Texas Court
of Criminal Appeals had previously held that each “type” of burglary had its
own set of elements (citing Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App.
1975))).
      There are cases, however, that answer the precise question necessary to
resolve this case: whether Section 5/12-3.05(f)(1) is a distinct crime (aggravated
battery involving the use of a deadly weapon) that includes, as an element, use
of a deadly weapon in the commission of a battery. We return to Cherry, where
Illinois’ high court said exactly this. There, the court used a wide-ranging
discussion of the Illinois aggravated battery statute to explain its ultimate
holding—that aggravated battery with a firearm is a separate offense from
aggravated battery. In the process, it asked the reader to consider the example
of aggravated battery “involving the use of a deadly weapon other than a
firearm.” Cherry, 63 N.E.3d at 877. To “prove” this “offense,” the court said,
“the State must prove that the defendant: ‘in committing a battery, used a
deadly weapon other than by the discharge of a firearm.’” Id. (quoting 720 Ill.
Comp. Stat. Ann. 5/12-4(b)(1)) (cleaned up).         Thus, aggravated battery
involving the use of a deadly weapon is not a way of committing aggravated
battery or even aggravated battery based on the use of a weapon or device; it is
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                                       No. 16-40241
a distinct offense requiring proof of the use of a deadly weapon. And there is
no shortage of consistent Illinois decisions. 2 There is also an abundance of
cases that do not address the issue but demonstrate that defendants accused
of violating 5/12-3.05(f)(1) are charged with and convicted of violating 5/12-
3.05(f)(1). 3 Any purported Illinois crime known as aggravated battery based on
the use of a weapon or device is a chimera; the crime of aggravated battery
involving the use of a deadly weapon is routinely charged and proven.
       It is true that Cherry’s discussion of Section 5/12-3.05(f)(1) is dicta. We
follow it for several reasons. First, a federal court tasked with interpreting
state law must give state supreme court dicta great weight. 4 Avakian v.
Citibank, N.A., 773 F.3d 647, 651–52 (5th Cir. 2014). Second, the statements
in Cherry follow from its parsing of the relevant statutory language. Velasco
reached the same result based on a similar parsing, 465 F.3d at 639–40, and



       2  People v. Marston, 818 N.E.2d 1261, 1267 (Ill. App. Ct. 2004) (where defendant was
charged with aggravated battery with a deadly weapon: “As was charged in this case, a
person commits aggravated battery when he intentionally or knowingly without legal
justification uses a deadly weapon other than a firearm to cause bodily harm to an
individual.”); People v. Blanks, 845 N.E.2d 1, 11–12 (Ill. App. Ct. 2005) (describing proof of
the use of a deadly weapon as “the aggravating factor which satisfies the statute”); People v.
Garita, 2016 WL 7228782, *3 (Ill. App. Ct. 2016) (unpublished) (“[T]he aggravated battery
with a deadly weapon charge required the State to prove that defendant caused bodily harm
to [the victim] while using a ‘deadly weapon other than by discharging a firearm.’” (quoting
Section 5/12-3.05(f)(1)).
        3 See, e.g., People v. Pratt, 2017 WL 1497733, at *1 (Ill. App. Ct. Apr. 25, 2017)

(unpublished); People v. Williams, 2017 WL 1211254, at *1 (Ill. App. Ct. Apr. 3, 2017); People
v. Khan, 2017 WL 1019777, at *1 (Mar. 14, 2017) (unpublished); People v. Curry, 2017 WL
776082, at *1 (Ill. App. Ct. Feb. 24, 2017) (unpublished); see also People v. Crespo, 788 N.E.2d
1117, 1122 (Ill. 2001), as modified on denial of reh’g (Mar. 31, 2003) (defendant charged with
distinct aggravated battery offenses, including “aggravated battery (great bodily harm)” and
“aggravated battery (deadly weapon)”).
        4 When, as here, a federal court must identify and apply state law in the absence of a

clearly controlling state supreme court opinion, the analogous Erie inquiry calls on federal
courts to “guess” how a state supreme court “would decide.” Howe ex rel. Howe v. Scottsdale
Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000). This “guess” is not a surmise of what the state
law would become if the state supreme court addressed the issue but rather what the state
law is. See, e.g., Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 749–50 (5th Cir. 1995).
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                                  No. 16-40241
Mathis endorses examinations of the statutory text when no state supreme
court decision provides a definitive answer, 136 S.Ct. at 2256. Third, under
Illinois’ Murderer and Violent Offender Against Youth Registration Act, a
“violation or attempted violation” of Section 5/12-3.05(f)(1) can constitute a
“violent offense against youth,” but subsections 5/12-3.05(f)(2)–(4) are not
listed as qualifying offenses. 730 Ill. Comp. Stat. Ann. 154/5(b)(4.4). This
works only if Section 12-3.05(f)(1) describes a discrete offense.
      The Dissent announces it has found a Mathis-approved state court
decision that conclusively resolves the question, People v. Diaz, 614 N.E.2d 268
(Ill. App. Ct. 1993).     But Diaz turns out to be (1) Illinois law on the
permissibility of general verdicts where a defendant is charged with multiple
and distinct offenses, and is unrelated to the present case where conviction
matches the crime charged and satisfies federal sentencing requirements; (2)
a mere intermediate state court opinion, (3) a case that did not consider the
statute before us and was in fact decided before both Section 12-3.05 and its
predecessor statute (discussed in Cherry) were ever enacted, and (4) a case
simply not involving statutory language, design, or meaning. Inasmuch as
Diaz does not address Section 12-3.05(f) and therefore could not have possibly
determined its divisibility, it is legally off-topic. Inasmuch as it deals with a
situation where the prosecution seeks to convict under two different
“definitions” of aggravated battery, it is factually inapt.     But even if we
overlook all of this and proceed as if Diaz muddled the picture, a return to our
Mathis-mandated order of operations confirms our conclusion that Reyes’ prior
conviction qualifies as a crime of violence.
      Diaz plainly does not “definitively answer[] the question” before us.
Mathis, 136 S.Ct. at 2256. Accordingly, if the Dissent is not convinced by
Cherry (and the host of intermediate appellate court decisions we have cited
that do involve the relevant statute), it should next examine the statutory
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                                   No. 16-40241
text—which, as we have noted, Cherry does. Id. And if there is still no good
answer, “federal judges have another place to look: the record of a prior
conviction itself.” Id. At this third Mathis step, courts utilize record documents
as an aid in determining a statute’s divisibility. See id. at 2257 n. 7 (“[W]hen
state law does not resolve the means-or-elements question, courts should
‘resort[ ] to the [record] documents’ for help in making that determination.’”
(quoting Descamps v. United States, 133 S.Ct. 2276, 2285 n.2 (2013))
(alterations in original)).
      An indictment can resolve the elements-means question “by referencing
one alternative term to the exclusion of all others,” thereby indicating “that the
statute contains a list of elements, each one of which goes toward a separate
crime.” Id. Here, Reyes’ indictment is in the record. In Count 1—the count to
which he pleaded guilty—Reyes was charged with “committing a battery . . .
by use of a deadly weapon” and, more specifically still, with “a violation of 720
ILCS 5/12-3.05(f)(1).” There is no mention of Section 12-3.05(f)’s remaining
provisions. This “peek” at the indictment was not necessary to determine
Section 12-3.05(f) is divisible.     But it demonstrates that Diaz has no
application. “As was charged in this case, a person commits aggravated battery
when he intentionally or knowingly without legal justification uses a deadly
weapon other than a firearm to cause bodily harm to an individual.” Marston,
818 N.E.2d at 1267 (emphasis added).
      Reyes was charged and convicted of violating Section 5/12-3.05(f)(1).
Aggravated battery involving use of a deadly weapon under Section 5/12-
3.05(f)(1) is a discrete offense requiring proof of the use of a deadly weapon. It
has been established, categorically, that the offense of which he was convicted
represents a crime of violence under the Guidelines. The district court did not
err in following Velasco and applying the crime-of-violence enhancement.


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                                 No. 16-40241
      Illinois’ aggravated battery statute is complex and has many parts. We
have held that its Section 5/12-3.05(f) is divisible and that a conviction under
Section 5/12-3.05(f)(1) requires proof of the use of a deadly weapon. We have
no occasion to examine the statute further. Mathis did not abrogate Velasco,
and the sentence is AFFIRMED.




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                                  No. 16-40241
LESLIE H. SOUTHWICK, Circuit Judge, concurring:
      I concur in the decision to affirm the sentence. Where I depart from
Judge Reavley is that I do not conclude that the Illinois Supreme Court clearly
resolved our issue in People v. Cherry, 63 N.E.3d 871 (Ill. 2016). As a result, I
find it necessary to look elsewhere to be sure this statute is divisible.
      Cherry held that aggravated battery “involving the use of a deadly
weapon other than a firearm” requires the State to “prove” a defendant used
“a deadly weapon other than by the discharge of a firearm[.]” Id. at 877
(quoting 720 ILL. COMP. STAT. § 5/12-4(b)(1) (West 2010)). The court referred
to the use of a deadly weapon other than by discharge of a firearm as an
“element[]” that “serve[s] to aggravate [the] battery.”       Id. at 878.   What
concerns me is that there is Illinois caselaw that suggests the use of the term
“element” in Cherry might not have been with the same meaning as the United
States Supreme Court meant in Mathis. See Mathis v. United States, 136 S.
Ct. 2243, 2256–57 (2016).
      Cherry said it would discuss two “forms” of aggravated battery under the
2010 aggravated-battery statute: (1) causing great bodily harm under Section
5/12-4(a), and (2) using a deadly weapon other than by discharge of a firearm
under Section 5/12-4(b)(1). See Cherry, 63 N.E.3d at 877–78. It analyzed these
forms of aggravated battery in order to determine whether aggravated battery
could be the predicate offense for another crime Cherry committed, which was
armed violence. Id. at 876–77. There is no need to get into the nuances of that
issue other than to pull a few points from the state court’s analysis. First, the
aggravated-battery statute, 2010 edition, required that a battery be
committed. That also is the case for the statute under which Reyes was
convicted. Second, the crime was aggravated if the State could “prove the
presence of an additional factor aggravating that battery.” Id. at 877.


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                                  No. 16-40241
      In the course of its analysis, the Cherry court said that “[t]he aggravated
battery and aggravated battery with a firearm statutes share an identical
structure. Both offenses require the State to prove the commission of a battery,
and both offenses require the State to prove the presence of an additional factor
aggravating that battery.” Id. The court did not have before it the issue of
whether jurors would need to be unanimous regarding any one form of
aggravated battery.
      My uncertainties partly arise from an earlier Illinois intermediate
appellate court decision. See People v. Diaz, 614 N.E.2d 268 (Ill. App. Ct. 1993).
The Diaz court dealt with jury unanimity, which in substance is our issue.
Jurors were given a verdict form which provided they could find Diaz guilty of
aggravated battery if he “[1] intentionally and knowingly caused great bodily
harm . . . or . . . [2] knowingly and intentionally caused bodily harm . . . and
used a deadly weapon.” Id. at 270. The offenses the Diaz court considered on
the issue of juror unanimity are quite similar to the offenses the Cherry court
considered on an unrelated issue of sentencing.
      The defendant in Diaz argued that the general verdict form was fatally
flawed because the jury did not need to be unanimous regarding the two
theories of aggravated battery. Id. The court disagreed, holding the jury
needed to be unanimous regarding the defendant’s guilt of the crime charged,
not the “‘alternate ways in which the crime can be committed[.]’” Id. at 271
(quoting People v. Travis, 525 N.E.2d 1137, 1147 (Ill. App. Ct. 1988)). That
would indicate at least some of the aggravating factors in the aggravated
battery statute are means, not elements.
      There are Illinois Supreme Court decisions that, like Diaz, fully embrace
general verdicts for offenses that can be committed in disparate ways, a fact




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                                        No. 16-40241
recognized in the court’s approved pattern jury instructions. 1 We read too
much into Cherry to conclude it definitely meant “elements” in the Mathis-
sense when that was not the court’s concern.
       Diaz must be viewed for what it is: an earlier decision of an intermediate
court dealing with an earlier aggravated-battery statute. Even so, because the
opinions were discussing different legal issues, I do not believe the Diaz
decision which indicates the two forms of battery it was discussing should be
considered two different means, and Cherry which uses “elements” for quite
similar offenses, are necessarily inconsistent. Hence, my uncertainty.
       Still, Cherry does not discuss Diaz. It did not need to as its issue was
different. Perhaps Cherry implies that, if put to the test, the Illinois Supreme
Court would hold that the forms of aggravated battery under Section 5/12-
3.05(f)(1)–(4) contain separate Mathis elements. We have considered cases
before that imply divisibility. See, e.g., United States v. Mendez-Henriquez, 847
F.3d 214, 219 (5th Cir. 2017). The implication is strengthened when we see
that the Diaz court recognized there are “due process limitations on a ‘State’s
capacity to define different courses of conduct, or states of mind, as merely
alternative means of committing a single offense[.]’” Diaz, 614 N.E.2d at 272
(quoting Schad v. Arizona, 501 U.S. 624, 632 (1991)). The variation among the
forms of aggravated battery in the four subparts of Subsection (f) are quite



       1 See People v. Smith, 906 N.E.2d 529, 538 (Ill. 2009) (“[B]ecause first degree murder
is a single offense, it is constitutionally permissible for jurors to return a general verdict of
guilty even if there is no juror unanimity with regard to the means by which the murder was
committed.”); Illinois Pattern Instruction Criminal No. 26.01 at 5–6 (using aggravated
battery as an example for an instruction that may be used where “a defendant is charged in
multiple counts with an offense that can be charged with different elements,” but noting that
distinguishing among the ways in which the offense can be committed is not mandatory
according to People v. Travis, 525 N.E.2d 1137 (Ill. App. Ct. 1988)); cf. People v. Graves, 800
N.E.2d 790, 793 n.1 (Ill. 2003) (referring to aggravated battery as “[a] textbook example of a
single offense that can be committed in multiple ways,” yet distinguishing two subsections,
referring to each as an “offense,” and observing they contain distinct “elements”).
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                                  No. 16-40241
different from each other, except for the two (Subparts (1) and (3)) that both
deal with the use of a deadly weapon.
      All that said, I see Judge Reavley’s interpretation of Cherry just to be
one possible view. Our task certainly does not end, though, even if Cherry does
not provide clear answers. See Mathis, 136 S. Ct. at 2256–57. We can also
examine whether “the statute on its face” resolves the issue, as Judge Reavley
notes. Id. at 2256. The section of the Illinois statute at issue here does not
seem to be providing “illustrative examples” but instead identifying widely
different crimes, suggesting “elements.” See id. Further, looking at the entire
statute, the final Subsection (h) specifies different classifications for some but
not all of the specific aggravated-battery provisions, which leads to different
sentences. See 720 ILL. COMP. STAT. § 5/12-3.05(h). The provision at issue in
our case is not identified in Subsection (h) as having a specific sentence range,
but this part of the statute provides some evidence regarding the entire
statute. When “statutory alternatives carry different punishments, then under
Apprendi they must be elements.” Mathis, 136 S. Ct. at 2256.
      So far, the evidence points towards the subparts of Subsection (f)
containing different elements. Still, if doubt remains, we examine “the record
of a prior conviction itself.” Id. In one case where “state law [did] not give us
a clear answer” on this issue, we held the statute was divisible because the
defendant “actually pleaded guilty” to a specific element, and the documents
in the record made clear that the statute set forth elements. Ibanez-Beltran v.
Lynch, 858 F.3d 294, 298 (5th Cir. 2017). In another case, we first took note of
one state court decision that “implie[d] the statute list[ed] alternative
elements,” but turned to the record of conviction because that case was not
dispositive. See Mendez-Henriquez, 847 F.3d at 219. Because the defendant
was charged with one element to the exclusion of all others, we held that “the
statute enumerates alternative elements for committing a felony[.]” Id.
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                                 No. 16-40241
      This record contains a copy of Reyes’s indictment. He was charged with
a violation of Section 5/12-3.05(f)(1). The indictment said a dangerous weapon
was used, specifically a machete. It contained no citation to or inclusion of
language from any other subpart, i.e., no reference to hoods or robes or
recording the crime. This peek at the court record supports that the statute is
divisible.
      I find it necessary to go beyond Cherry. Doing so, I reach the same
destination as does Judge Reavley, namely, that this subsection of the
aggravated-battery statute is divisible.




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                                        No. 16-40241
PRISCILLA R. OWEN, Circuit Judge, dissenting:
       The question to be resolved is whether a conviction for aggravated
battery under 720 ILL. COMP. STAT. § 5/12-3.05 is a “crime of violence” within
the meaning of section 2L1.2(b)(1)(A)(ii) of the United States Sentencing
Guidelines that was in effect when Reyes was sentenced in 2016. 1 To answer
this question, we must determine whether section 5/12-3.05 is “divisible”
within the meaning of the Supreme Court’s decision in Mathis v. United
States. 2 The Court explained in Mathis that if, under state law, a jury need
not agree on the particular method by which the defendant committed an
offense, then alternative methods set forth in the statute of conviction are
“means” of committing the offense, not “elements” of the offense. 3 A statute
that sets forth “means” rather than “elements” is not divisible. A decision from
an intermediate Illinois appellate court, People v. Diaz, held that when a jury
is presented with two statutorily described alternative ways of committing
aggravated battery, jurors, in convicting the defendant, need not agree as to
which of the alternatives occurred. 4 A more recent intermediate appellate


      See U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2L1.2 cmt. n.1(B)(iii) (U.S.
       1

SENTENCING COMM’N 2015):

               “Crime of violence” means any of the following: murder, manslaughter,
       kidnapping, aggravated assault, forcible sex offenses . . . , statutory rape,
       sexual abuse of a minor, robbery, arson, extortion, extortionate extension of
       credit, burglary of a dwelling, or any other offense under federal, state, or local
       law that has as an element the use, attempted use, or threatened use of
       physical force against the person of another.

       2 136 S. Ct. 2243 (2016).
       3 Id. at 2256 (“This threshold inquiry—elements or means?—is easy in this case, as it
will be in many others. Here, a state court decision definitively answers the question: The
listed premises in Iowa’s burglary law, the State Supreme Court held, are ‘alternative
method[s]’ of committing one offense, so that a jury need not agree whether the burgled
location was a building, other structure, or vehicle. When a ruling of that kind exists, a
sentencing judge need only follow what it says.” (alteration in original) (citation omitted)
(quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981))).
       4 614 N.E.2d 268, 270-71 (Ill. App. Ct. 1993).

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                                        No. 16-40241
court decision recognizes that Diaz stands for the proposition that the State
may present a jury with alternative bases, as identified in the aggravated
battery statute, on which to convict a defendant and that jury unanimity is not
required. 5 Though Diaz did not deal with subsection (f) of Illinois’s aggravated
battery statute, but instead concerned former sections 11.05, 11.07, and 11.09
of the Illinois criminal statutes that governed aggravated battery, 6 its holding
is highly instructive and has not been overruled. Unless and until the Illinois
courts say otherwise, the Diaz decision, coupled with the Illinois Supreme
Court’s decision in People v. Smith, 7 provides significant guidance regarding
jury unanimity that we should accept.
                                               I
       A “crime of violence,” as defined in section 2L1.2(b)(1)(A)(ii) of the
Guidelines, includes “any . . . offense under federal, state, or local law that has
as an element the use, attempted use, or threatened use of physical force
against the person of another.”             The Government contends that Reyes’s
conviction under section 5/12-3.05(f) necessarily “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.”
              A person commits the offense of “battery” under Illinois law “if he
or she knowingly without legal justification by any means (1) causes bodily
harm to an individual or (2) makes physical contact of an insulting or
provoking nature with an individual.” 8 The offense of “battery” does not have




       5 See People v. Smith, 866 N.E.2d 1192, 1198 (Ill. App. Ct. 2007), aff’d in part and rev’d
in part, 906 N.E.2d 529 (Ill. 2009) (explaining that in Diaz, the jury could have convicted the
defendant without agreeing upon which “alternative course of conduct that the defendant
committed”).
       6 See Diaz, 614 N.E.2d at 271.
       7 906 N.E.2d at 540-42.
       8 720 ILL. COMP. STAT. § 5/12-3.

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                                        No. 16-40241
as an element the use, attempted use, or threatened use of physical force
against the person of another. 9 Reyes was convicted of “aggravated battery”
under section 5/12-3.05(f), which provides:
            (f) Offense based on use of a weapon or device. A person
      commits aggravated battery when, in committing a battery, he or
      she does any of the following:

                     (1) Uses a deadly weapon other than by discharge of a
               firearm, or uses an air rifle as defined in Section 24.8-0.1 of
               this Code.

                     (2) Wears a hood, robe, or mask to conceal his or her
               identity.

                      (3) Knowingly and without lawful justification shines
               or flashes a laser gunsight or other laser device attached to
               a firearm, or used in concert with a firearm, so that the laser
               beam strikes upon or against the person of another.

                     (4) Knowingly video or audio records the offense with
               the intent to disseminate the recording.


      If section 5/12-3.05(f) is divisible, then a conviction under subsection (1)
would involve the use or threatened use of physical force against the person of
another, but a conviction under subsection (2) or (4) would not. However, as
explained above, the Illinois intermediate courts have not required a jury to
agree on the method by which an aggravated battery was committed in order
to convict a defendant. For example, a defendant could be charged under this
section for committing a battery while “us[ing] a deadly weapon other than by
discharge of a firearm” or while “wear[ing] a hood.” Jurors could disagree on
whether a deadly weapon was used and still return a guilty verdict.




      9   See United States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006).
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                                          No. 16-40241
                                                 II
          JUDGE REAVLEY’s opinion properly sets forth the “threshold inquiry” of
“elements or means” from the Supreme Court’s decision in Mathis v. United
States 10 and correctly observes that “[s]tate courts are the ideal expositors of
state law.” 11 Resolving the threshold inquiry in Mathis was “easy” for the
Supreme Court, because a “state court decision definitively answer[ed] the
question” and “[w]hen a ruling of that kind exists, a sentencing judge need only
follow what it says.” 12 In Mathis, a state court decision definitively held that
“[t]he listed premises in Iowa’s burglary law . . . are ‘alternative method[s]’ of
committing one offense, so that a jury need not agree whether the burgled
location was a building, other structure, or vehicle.” 13              “Armed with such
authoritative sources of state law, federal sentencing courts can readily
determine the nature of an alternatively phrased list.” 14
                 The guidance that we have from the Illinois courts indicates that
a jury would not have to agree as to which subsection of section 5/12-3.05(f)
applied in finding a defendant guilty under subsection (f). In People v. Diaz,
the defendant was convicted of aggravated battery, though the jury
instructions did not require the jury to agree on how the defendant actually
committed the crime. 15 Instead, the instructions “permitted the jury to return
a general guilty verdict of aggravated battery” by finding that the defendant
either “intentionally and knowingly caused great bodily harm” or “knowingly
and intentionally caused bodily harm . . . and used a deadly weapon.” 16 On



          10 136 S. Ct. 2243, 2256 (2016).
          11 Ante at 4.
          12 Mathis, 136 S. Ct. at 2256.
          13 Id. (alteration in original) (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa

1981)).
          14 Id.
          15 614 N.E.2d 268, 270 (Ill. App. Ct. 1993).
          16 Id.

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                                      No. 16-40241
appeal, the defendant argued that allowing the jury to “disagree[] as to which
alternative course of conduct [he] committed” violated his constitutional
rights. 17 An Illinois appellate court affirmed the conviction, quoting People v.
Travis 18 for the proposition that “the jury need only be unanimous with respect
to the ultimate question of defendant’s guilt or innocence of the crime charged,
and unanimity is not required concerning alternate ways in which the crime
can be committed, and, accordingly, we so hold.” 19 The threshold inquiry
should end here, as it did in Mathis.
              JUDGE SOUTHWICK’s opinion discounts Diaz as an older,
intermediate appellate court decision. 20 However, Illinois’s current pattern
jury instructions reflect that Diaz continues to have purchase in the
submission of aggravated battery to jurors.                   A “General Concluding
Instruction” in the pattern jury instructions specifically allows a jury to convict
a defendant of aggravated battery without agreeing on the alternative methods
of the crime. 21 The Committee Notes to the instructions state that “[w]hen a
defendant is charged in multiple counts with an offense that can be charged
with different elements,” the court may use a jury instruction that requires the
jury to agree on which “particular way” the defendant committed the crime,
but it is not required to do so. 22 The instructions use aggravated battery as an
example:
       An example would be a defendant charged in three separate counts
       with aggravated battery based upon his alleged (1) causing great


       17 Id.
       18 525 N.E.2d 1137 (Ill. App. Ct. 1988).
       19 Diaz, 614 N.E.2d at 271 (quoting Travis, 525 N.E.2d at 1147); see also People v.

Jackson, 874 N.E.2d 123, 129 (Ill. App. Ct. 2007) (“Defendant was not entitled to a unanimous
verdict on whether he fired the weapon or whether [his friend] fired the weapon.” (citing
Travis, 525 N.E.2d at 1147)).
       20 Ante at 14.
       21 Illinois Pattern Jury Instructions–Criminal § 26.01 & accompanying notes.
       22 Id.

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                                      No. 16-40241
      bodily harm, (2) causing bodily harm to a police officer, and (3)
      committing a battery upon a public way. Each of these charges is
      called aggravated battery, but each contains an element that must
      be proved beyond a reasonable doubt that neither of the other
      charges contains. Accordingly, a court may choose to distinguish
      on the verdict forms between the ways in which aggravated battery
      can be committed. If the court so chooses, then the opening
      sentence of the issues instructions as well as the guilty and not
      guilty verdict forms should be expanded to distinguish among the
      different ways a particular charge is before the jury.

             ....

            The Committee wishes to emphasize that distinguishing
      among the various ways in which a given charge is brought is not
      required by law. In People v. Travis, 170 Ill. App. 3d 873, 525
      N.E.2d 1137, 121 Ill. Dec. 830 (4th Dist. 1988), the court rejected
      the argument that such distinctions were mandatory and stated
      the following: “the best rule is that the jury need only be
      unanimous with respect to the ultimate question of defendant’s
      guilt or innocence of the crime charged, and unanimity is not
      required concerning alternate ways in which the crime can be
      committed . . . .” 23
      JUDGE SOUTHWICK’s opinion suggests that “if put to the test, the Illinois
Supreme Court would hold that the forms of aggravated battery under
Section 5/12-3.05(f)(1)–(4) contain separate Mathis elements.” 24 With great
respect, this Erie guess 25 seems to miss the mark for several reasons. First, at
the time Reyes was convicted, through the present, Illinois courts have
construed the varying methods of committing “aggravated battery” to comprise
a single offense. The Illinois Supreme Court has construed varying means of
committing murder to comprise a single event. 26 Discounting and disregarding
these state court opinions ignores “‘Taylor’s demand for certainty’ when


      23 Id.
      24 Ante at 14.
      25 See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
      26 See People v. Smith, 906 N.E.2d 529, 540-42 (Ill. 2009).

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                                      No. 16-40241
determining whether a defendant was convicted of a generic offense.” 27 A
federal sentencing court must ask what the state court required a jury to find,
under state law, to convict a defendant of the state offense at the time of
conviction. 28   Neither JUDGE REAVLEY’s opinion nor JUDGE SOUTHWICK’s
opinion offers any basis for concluding with assurance that, at the time that
Reyes was convicted, Illinois law treated the various methods of committing
aggravated burglary set forth in section 5/12-3.05 as elements of separate
offenses, not means of committing an offense. As will be discussed below,
virtually all of the Illinois decisions indicate that the Illinois courts have
treated aggravated battery, and certain other crimes with statutorily-
described means of committing the offense, as a single offense.
       JUDGE REAVLEY’s opinion characterizes the holding in Diaz as “Illinois
law on the permissibility of general verdicts where a defendant is charged with
multiple and distinct offenses, and is unrelated to the present case where
conviction matches the crime charged and satisfies federal sentencing
requirements.” 29 Though the defendant in Diaz was charged with multiple
offenses, only aggravated battery was at issue on review, as he was acquitted
of all other charges. 30 The Diaz decision focused on the validity of a general
verdict finding the defendant guilty of one offense—aggravated battery—“even
though the jury may have disagreed over which of the instruction’s two
alternative courses of conduct defendant committed.” 31 Diaz is related to the




       27  Mathis v. United States, 136 S. Ct. 2243, 2257 (2016) (quoting Shepard v. United
States, 544 U.S. 13, 21 (2005)).
        28 See id. at 2255 (“[A]n ACCA penalty may be based only on what a jury ‘necessarily

found’ to convict a defendant (or what he necessarily admitted).” (quoting Descamps v. United
States, 133 S. Ct. 2276, 2287 (2013))).
        29 Ante at 9.
        30 People v. Diaz, 614 N.E.2d 268, 269 (Ill. App. Ct. 1993).
        31 Id.

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                                       No. 16-40241
present case because it demonstrates that Illinois law does not require jury
unanimity how an aggravated battery was committed.
      JUDGE REAVLEY’s opinion relies on the Illinois Supreme Court’s decision
in People v. Cherry, 32 contending that its “ultimate holding” was that
“aggravated battery with a firearm is a separate offense from aggravated
battery.” 33 The actual issue in Cherry was “whether aggravated battery with
a firearm is an enhanced or aggravated version of aggravated battery, such
that aggravated battery cannot serve as the predicate for armed violence.” 34
The court held that “like aggravated battery itself, aggravated battery with a
firearm is an enhanced or aggravated form of battery. Consequently, there is
absolutely no reason why, as charged in this case, aggravated battery cannot
serve as the predicate for a charge of armed violence.” 35 The Illinois court
suggested in Cherry, in dicta, that aggravated battery involving the use of a
deadly weapon might be a separate “offense,” 36 but the court was not
addressing the question we must resolve. It was not using the term “offense”
in the context of Mathis’s distinction between a “means” of committing an
offense and the “elements” of an offense.               The Illinois court compared
aggravated battery by great bodily harm and aggravated battery by use of a
deadly weapon (contained in different subsections in the same former section),
denominating “both of these provisions” “two forms of aggravated battery.” 37
The court continued by stating that “to prove the latter offense, the State must
prove that the defendant . . . [used] a deadly weapon.” 38




      32 63 N.E.3d 871 (Ill. 2016).
      33 Ante at 7.
      34 Cherry, 63 N.E.3d at 879.
      35 Id.
      36 Id. at 877-78.
      37 Id.
      38 Id. at 877 (second alteration in original).

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                                       No. 16-40241
       The Illinois court did not hold in Cherry that in convicting a defendant
of aggravated battery, jury unanimity was required as to whether aggravated
battery had been committed by great bodily harm or instead had been
committed by use of a deadly weapon. Rather, the court observed that they
share the underlying offense of simple battery. 39
       None of the other decisions cited in JUDGE REAVLEY’s opinion address
the issue of juror unanimity, on which our analysis of section 5/12-3.05(f)
turns. 40   They address only the proof required when a specific means is
charged, 41 not whether a jury is required to agree if the defendant committed
aggravated battery while wearing a hood or while using a deadly weapon other
than by discharging a firearm.
              JUDGE SOUTHWICK’s opinion correctly observes that certain
subsections     of   Illinois’s   aggravated       battery    statute     carry    different
punishments 42 and that, as a general proposition, when “statutory alternatives
carry different punishments, then under Apprendi they must be elements.” 43
However, the punishment for an offense described in subsection (f) does not
vary based on which of the four subsections is applicable. 44 It is also important
to understand that while federal sentencing courts may recognize that there
may be an issue under Apprendi if, for example, the Illinois courts did not
require jury unanimity as to which subsection of section 5/12-3.05(a) a
defendant violated, since the punishment differs among those subsections, that
does not speak to actual practice in the state courts. If a state court in actual




       39Id. at 877-78.
       40See ante at 8 n.4.
      41 See ante at 8 n.4.
      42 Ante at 15; see 720 ILL. COMP. STAT. § 5/12-3.05(h).
      43 Mathis v. United States, 136 S. Ct. 2243, 2256 (2016) (citing Apprendi v. New Jersey,

530 U.S. 466 (2000)).
      44 § 5/12-3.05(h).

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                                       No. 16-40241
practice did not require juror unanimity, then a conviction under a statute with
alternatives that fall outside the definition of a “crime of violence” should not
be used to enhance a sentencing range, since the courts did not treat the
statute as divisible within the meaning of Mathis.
       It bears repeating that the punishment for any conduct described in
subsection 5/12-3.05(f) is the same. In any event, the fact that Illinois varies
its punishments for conduct described within other subsections of section 5/12-
3.05, such as subsection (a), does not mean that the varying conduct described
within every subsection of section 5/12-3.05 defines a separate “offense” such
that the statute is divisible under Mathis. To the contrary, the Illinois courts
have held that a single offense may have different punishments and that a jury
may convict a defendant of that offense without specifying which means the
defendant used to commit the crime. 45 Instead of requiring jury unanimity as
to which of the various means that were charged was actually employed, the
Illinois courts have held that, at least when a trial court denies a defendant’s
request for a specific verdict form for each means charged and instead submits
a general verdict form, the sentence for the offense is limited to the most
favorable sentence from the defendant’s perspective. 46
       In People v. Smith, the Illinois Supreme Court described first degree
murder as a single offense, even though the statute had “three ‘types’ of
murder,”—intentional, knowing, and felony murder—and prescribed “different
sentencing consequences based on the specific theory of murder proven.” 47 The
court concluded that the different types are “merely different ways to commit



       45 See People v. Smith, 906 N.E.2d 529, 540-42 (Ill. 2009).
       46 Id.
       47 Id. at 537, 538 (“While our statute describes three ‘types’ of murder, first degree

murder is a single offense. As we have explained on numerous occasions, ‘the different
theories embodied in the first degree murder statute . . . are merely different ways to commit
the same crime.’” (quoting People v. Cooper, 743 N.E.2d 32, 39 (Ill. 2000))).
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                                       No. 16-40241
the same crime” even though the sentencing consequences varied. 48 The court
explained that “because first degree murder is a single offense, it is
constitutionally permissible for jurors to return a general verdict of guilty even
if there is no juror unanimity with regard to the means by which the murder
was committed,” 49 citing Schad v. Arizona. 50 The court upheld the murder
conviction in Smith even though the jury returned a general verdict of guilty
without specifying which type of murder the defendant committed. 51 The
Illinois Supreme Court held that “where a defendant is charged with murder
in multiple counts alleging intentional, knowing, and felony murder, and a
general verdict of guilty is returned, the defendant is presumed to be convicted
of the most serious offense.” 52 However, because the defendant had requested
specific verdict forms, and the trial court denied that request in submitting a
general verdict form, the Illinois court held that the lesser sentence must be
applied. 53



       48  Id. at 537 (quoting Cooper, 743 N.E.2d at 39); see also id. at 538 (“While it is
certainly true that first degree murder is but a single offense and, thus, a general verdict
need not rest on a unanimous finding of a particular theory of murder, it is also true that
there may be different sentencing consequences based on the specific theory of murder
proven. For example, there are several aggravating factors, applicable only to murders
committed intentionally or knowingly, which, if proven to exist, will support a sentence of
death.”); id. (“However, a person convicted of felony murder is eligible for the death penalty
only if the sentencing jury finds beyond a reasonable doubt . . . that the defendant actually
killed the victim or substantially contributed to his physical injuries and, in so doing,
intended to kill or knew that his acts caused a strong probability of death or great bodily
harm.”).
        49 Id. at 538.
        50 501 U.S. 624, 631-32 (1991).
        51 Smith, 906 N.E.2d at 545.
        52 Id. at 540.
        53 Id. at 541-43, 544-45 (noting that “where a defendant is charged with murder in

multiple counts alleging intentional, knowing, and felony murder, and a general verdict of
guilty is returned, the defendant is presumed to be convicted of the most serious offense—
intentional murder—so that judgment and sentence should be entered on the conviction for
intentional murder and the convictions on the less serious murder charges should be
vacated,” but concluding “that where, as here, specific findings by the jury with regard to the
offenses charged could result in different sentencing consequences, favorable to the
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                                      No. 16-40241
       JUDGE REAVLEY’s opinion additionally asserts that this case can be
resolved by using the documents from Reyes’s prior conviction “as an aid in
determining [the] statute’s divisibility.” 54 I sympathize with this view, but it
was expressly rejected in Mathis. The defendant in Mathis had previously
been convicted under an Iowa burglary statute that “covers more conduct than
generic burglary does.” 55 The Supreme Court reversed the sentence imposed
under the Armed Career Criminal Act (ACCA) because it concluded that the
Iowa statute was not divisible. 56 JUSTICE BREYER’s dissenting opinion argued
that the sentence could be upheld based on what was charged in that prior
Iowa case and what the prosecution had to prove to get a conviction in that
case. JUSTICE BREYER’s opinion explained that “[t]he relevant state statute,
an Iowa statute, says that a person commits a crime if he (1) ‘enters an occupied
structure,’ (2) ‘having no right . . . to do so,’ (3) with ‘the intent to commit a
felony.’” 57   The statute “define[d] ‘occupied structure’ as including any (1)
‘building,’ (2) ‘structure,’ (3) ‘land’ vehicle, (4) ‘water’ vehicle, or (5) ‘air vehicle,
or similar place.’” 58 But, “if the structure that the offender unlawfully entered
was a land, water, or air vehicle, the state crime does not count as a
‘burglary.’” 59   JUSTICE BREYER’s dissenting opinion then examined the
charging documents and advocated that Mathis had been convicted of generic




defendant, specific verdict forms must be provided upon request and the failure to provide
them is an abuse of discretion. Accordingly, we affirm the appellate court’s finding that, in
the cases at bar, the trial courts erred when they refused defendants’ requests for separate
verdict forms.”).
       54 Ante at 10.
       55 Mathis v. United States, 136 S. Ct. 2243, 2250 (2016).
       56 Id. at 2253-54, 2257.
       57 Id. at 2259 (BREYER, J., dissenting) (second alteration in original) (quoting IOWA

CODE § 713.1).
       58 Id. (quoting IOWA CODE § 702.12).
       59 Id. at 2260.

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                                        No. 16-40241
burglary because what the prosecutor actually charged, and therefore was
required to prove, constituted generic burglary:
            Here, if we look at the court documents charging Mathis
      with a violation of the state statute, they tell us that he was
      charged with entering, for example, a “house and garage.” They
      say nothing about any other structure, say, a “water vehicle.”
      Thus, to convict him, the jury—which had to find that he
      unlawfully entered an “occupied structure”—must have found that
      he entered a “house and garage,” which concededly count as
      “building [s].” So why is that not the end of this matter? Why does
      the federal statute not apply? 60
      This understanding of the modified categorical approach was expressly
rejected by the Court in Mathis, and JUDGE REAVLEY’s opinion reflects
precisely the same logically appealing, but incorrect, understanding of the
modified categorical approach. The Court’s opinion in Mathis draws a fine
distinction as to when and for what purpose the record of a prior conviction
may be consulted in determining if a statute is divisible. 61 But the Court’s
opinion in Mathis unequivocally disapproved of an approach like that advanced
in JUDGE REAVLEY’s opinion because otherwise, in Mathis, the Court would not
have reversed the court of appeals’ judgment.
             JUDGE REAVLEY’s opinion points to Illinois’s Murderer and Violent
Offender Against Youth Registration Act, 62 under which section 5/12-3.05(f)(1)
can constitute a “violent offense against youth” but the other subsections of
section 5/12-3.05(f) cannot. 63 That section 5/12-3.05(f)(1) is singled out in this
Act is not dispositive in our case. The Act lists two other types of aggravated
battery that can constitute a violent offense against youth: aggravated battery
by “great bodily harm or permanent disability or disfigurement,” section 5/12-


      60 Id. (alteration in original) (citation omitted).
      61 See id. at 2256-57 (majority opinion).
      62 Ante at 9; 730 ILL. COMP. STAT. § 154/1.
      63 730 ILL. COMP. STAT. § 154/5(b)(4.4).

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    Case: 16-40241     Document: 00514098373          Page: 30   Date Filed: 08/01/2017



                                       No. 16-40241
3.05(a)(1), and by committing battery on a “person who is pregnant or has a
physical disability,” section 5/12-3.05(d)(2). 64 However, as noted above, the
Illinois pattern jury instructions use aggravated battery by “great bodily harm”
as an example of one of the “various ways” of committing aggravated battery
that does not require jury unanimity. 65 That is, even though aggravated
battery by great bodily harm is singled out by Illinois’s Murderer and Violent
Offender Against Youth Registration Act, Illinois’s pattern jury instructions do
not require jury unanimity on whether a defendant actually did cause great
bodily harm.     A type of aggravated battery is not necessarily a “discrete
offense” because Illinois’s Murderer and Violent Offender Against Youth
Registration Act singles it out as a type of aggravated battery that can
constitute a “violent offense against youth.” 66
                                   *        *         *
            For these reasons, I respectfully dissent.




      64 Id.
      65 Illinois Pattern Jury Instructions–Criminal § 26.01 & accompanying notes.
      66 Ante at 9.

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