                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3458
                         ___________________________

                                  Patrick Allen Jones

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                        lllllllllllllllllllllRespondent - Appellee
                                        ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: May 12, 2017
                               Filed: August 29, 2017
                                   ____________

Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

      In 1998, Patrick Jones was convicted of battery of a law enforcement officer
pursuant to Wisconsin Statute § 940.20(2) (1998).1 In 2004, Jones pleaded guilty to
one count of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g).


      1
      All the court’s references to Wisconsin’s battery statute are to the 1998 version
under which Jones was convicted.
He was sentenced under the Armed Career Criminal Act (ACCA) based on the court’s
finding that Jones had been convicted of multiple prior violent felonies, including his
1998 Wisconsin conviction for battery of a law enforcement officer.

        In 2015, Jones filed a motion under 28 U.S.C. § 2255 to vacate or correct his
sentence following Johnson v. United States, 135 S. Ct. 2551 (2015), which
invalidated the ACCA’s “residual clause.”2 Id. at 2551; Welch v. United States, 136
S. Ct. 1257, 1264–68 (2016) (holding that Johnson is retroactive in cases on collateral
review). Jones argued that many of his prior convictions were not violent felonies
after Johnson, and thus that he should be resentenced without the ACCA
enhancement. The government argued that even after Johnson, Jones still had four
qualifying violent felonies under the ACCA’s remaining clauses, see 18 U.S.C.
§§ 924(e)(2)(B)(i) (force clause) & (ii) (enumerated crimes clause), and therefore was
not entitled to resentencing. The district court3 denied Jones’ § 2255 petition, finding
that Jones had three prior convictions for violent felonies, including two burglary
convictions—which qualified as violent felonies under the enumerated crimes
clause4 —and one battery conviction pursuant to Wisconsin Statute
§ 940.20(2)—which qualified under the force clause. The district court issued a
certificate of appealability on the question of whether a conviction for battery of a law
enforcement officer in Wisconsin constitutes a violent felony, and Jones timely
appealed the denial of his § 2255 petition on that basis.


      2
        The residual clause brought crimes that “otherwise involve[] conduct that
presents a serious potential risk of physical injury to another” within the ACCA’s
definition of violent felony. 18 U.S.C. § 924(e)(2)(B)(ii) (2015). The Supreme Court
invalidated the clause as unconstitutionally vague. Johnson, 135 S. Ct. at 2557–58.
      3
       The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.
      4
       Jones does not challenge the determination that his burglary convictions
qualify as violent felonies.

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       We have jurisdiction pursuant to 28 U.S.C. § 2253, and we review de novo the
district court’s determination that a Wisconsin conviction for battery of a law
enforcement officer is a violent felony. See United States v. Schaffer, 818 F.3d 796,
798 (8th Cir. 2016).

       The ACCA mandates a 15-year minimum sentence for any defendant convicted
of being a felon in possession of a firearm under 18 U.S.C. § 922(g) who has three
prior convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). Under the ACCA’s
force clause, a crime is a violent felony if it is “punishable by imprisonment for a term
exceeding one year” and “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
“[P]hysical force” means “violent force—that is, force capable of causing physical
pain or injury to another person.” Johnson v. United States (Curtis Johnson), 559
U.S. 133, 140 (2010). Physical force “might consist, for example, of only that degree
of force necessary to inflict pain—a slap in the face, for example.” Id. at 143.

       The question here is whether a conviction for battery of a law enforcement
officer under Wisconsin Statute § 940.20(2) “necessarily involve[s] the ‘use,
attempted use, or threatened use of physical force against the person of another.’”
United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (quoting USSG
§ 4B1.2(a)(1)). In answering this question, we look to only the elements of the crime
at issue, and “[h]ow a given defendant actually perpetrated the crime—what we have
referred to as the underlying facts or means of commission—makes no difference.”
Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (internal quotation and citation
omitted); see also Yates v. United States, 842 F.3d 1051, 1052 (7th Cir. 2016).
Section 940.20(2) reads:

      BATTERY TO LAW ENFORCEMENT OFFICERS AND FIRE
      FIGHTERS. Whoever intentionally causes bodily harm to a law
      enforcement officer or fire fighter . . . acting in an official capacity and the


                                        -3-
      person knows or has reason to know that the victim is a law enforcement
      officer or fire fighter, by an act done without the consent of the person so
      injured, is guilty of a class D felony.

Wis. Stat. § 940.20(2). The parties do not appear to dispute that § 940.20(2) is
indivisible and therefore subject to the categorical approach. See Mathis, 136 S. Ct.
at 2249, 2253 (statute that “enumerates various factual means of committing a single
element,” rather than “one that lists multiple elements disjunctively,” is indivisible
and therefore subject to the categorical approach).

       In Wisconsin, “bodily harm” is defined as “physical pain or injury, illness, or
any impairment of physical condition.” Wis. Stat. § 939.22(4). Jones argues that the
range of conduct capable of causing “bodily harm” under this statutory definition
encompasses conduct that falls short of “violent force” as defined by Curtis Johnson.
In determining whether a conviction under Wisconsin Statute § 940.20(2) constitutes
a crime of violence, we must consider not just the language of the relevant statutes,
but Wisconsin courts’ application of those statutes. See Curtis Johnson, 559 U.S. at
138. If Wisconsin interprets § 940.20(2) to criminalize conduct that does not amount
to violent force, then a conviction for battery of a law enforcement officer in
Wisconsin is not categorically a violent felony for purposes of the ACCA. See id. at
138–43; United States v. Eason, 829 F.3d 633, 641–42 (8th Cir. 2016).

       Though Jones is correct that Wisconsin’s statute may be interpreted as defining
“bodily harm” broadly, Jones has not identified, and we have not found, a case in
which a Wisconsin court affirmed a conviction under § 940.20(2) based on conduct
that fails to rise to the level required by Curtis Johnson. Instead, Wisconsin courts
have consistently interpreted the statute to require violent force akin to a slap in the
face. See State v. Rowan, 814 N.W.2d 854, 856 (Wis. 2012) (defendant resisted a
police officer who tried to restrain her and seriously injured the officer’s hand); State
v. Helnik, 177 N.W.2d 881, 882 (Wis. 1970) (defendant struck an officer in the face


                                          -4-
and attempted to free himself, and later bit another officer); State v. Doerr, 599
N.W.2d 897, 899 (Wis. Ct. App. 1999) (defendant kicked officer in the shin); see
Warrichaiet v. Jansen, 441 F. Supp. 2d 989, 992 (E.D. Wis. 2006) (defendant punched
officer in the eye and tried to break away).

        In arguing that § 940.20(2) criminalizes conduct falling short of violent force,
Jones relies primarily on State v. Higgs, 601 N.W.2d 653 (Wis. Ct. App. 1999). In
Higgs, the defendant threw urine on an officer that “in fact caused pain to the guard
when it got into his eyes and nose.” Yates, 842 F.3d at 1053 (discussing Higgs, 601
N.W.2d at 658–59). As noted by the Seventh Circuit, conduct resulting in the actual
infliction of pain necessarily “comes within the language of Curtis Johnson, which
said that it is enough if the force is ‘capable of’ causing pain.” Id. Higgs therefore
does not establish that conduct less than violent force is sufficient to sustain a
conviction under Wisconsin Statute § 940.20(2).

       Finally, Jones argues that, because the statutory definition of bodily harm
includes “illness,” a person could be convicted under § 940.20(2) merely for
attempting to give an officer a cold. However, as discussed above, Wisconsin cases
provide no realistic basis to conclude that courts would find such low-level conduct
sufficient to support a conviction under the statute. See United States v. Bell, 840
F.3d 963, 966 (8th Cir. 2016) (“Although the ‘theoretical possibility’ that a state may
apply its statute to conduct falling short of violent force is not enough to disqualify
a conviction, a ‘realistic probability’ will suffice.”). The simple fact that the word
“illness” is included in the definition of bodily harm is insufficient to render the
statute overbroad. See Yates, 842 F.3d at 1052–53.

      The judgment of the district court is affirmed.
                     ______________________________




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