                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-3688
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                v.

KER YANG,
                                             Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
                   Western District of Wisconsin.
      No. 3:14-CR-00070-001 — William M. Conley, Chief Judge.
                    ____________________

     ARGUED MAY 27, 2015 — DECIDED AUGUST 21, 2015
                ____________________

   Before POSNER, MANION, and HAMILTON, Circuit Judges.
    HAMILTON, Circuit Judge. Ker Yang pled guilty to being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). The district court then found that Yang had three
felony convictions that could be classified as violent under
the Armed Career Criminal Act, often called ACCA. The
court imposed the resulting mandatory minimum sentence
of fifteen years in prison. 18 U.S.C. § 924(e)(1). Yang appeals,
arguing that one of the three felony convictions cannot be a
2                                                           No. 14-3688

violent felony under ACCA. The state court document re-
cording the conviction did not clearly identify the statute of
conviction. Yang argues that the district court was not per-
mitted to look beyond the face of the document to identify
the statute of conviction and thereby impose the heavier
ACCA sentence.
   We affirm. The conviction in question was for felony do-
mestic assault in violation of Minnesota Statute § 609.224(4),
which is a violent felony under ACCA. The district court
could consult the relevant sentencing and plea transcripts to
identify the statute of conviction without running afoul of
ACCA or the Supreme Court’s decisions interpreting it.
    Before turning to what a district court may or must do
with an ambiguous judgment of conviction, we first provide
some background about how a sentencing court must de-
termine whether a prior conviction qualifies under ACCA.
The statute requires an enhanced sentence for a felon in pos-
session of a firearm who “has three previous convic-
tions … for a violent felony or a serious drug offense.”
§ 924(e)(1). The statute defines a “violent felony” as “any
crime punishable by imprisonment for a term exceeding one
year” that “(i) has as an element the use, attempted use, or
threatened use of physical force against the person of anoth-
er; or (ii) is burglary, arson, or extortion, [or] involves use of
explosives.” § 924(e)(2)(B).1



    1  The Supreme Court recently invalidated as unconstitutionally
vague ACCA’s so-called “residual clause” that had extended the defini-
tion of “violent felony” to include any felony that “otherwise involves
conduct that presents a serious potential risk of physical injury to anoth-
er.” Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551, 2563 (2015); 18
No. 14-3688                                                               3

    Determining which prior convictions were for violent
felonies under ACCA can be difficult in some cases. In most
cases, a federal sentencing court determines whether a prior
conviction counts as a violent felony under ACCA by using
the “categorical approach.” See Descamps v. United States, 570
U.S. —, 133 S. Ct. 2276, 2281 (2013). Under the categorical
approach, the sentencing court looks at the elements of the
statute of conviction to determine if it “has as an element the
use, attempted use, or threatened use of physical force
against the person of another,” see § 924(e)(2)(B)(i), or it has
elements that are the same as, or narrower than, those of the
“generic” crimes listed in § 924(e)(2)(B)(ii), burglary, arson,
extortion, or a crime involving the use of explosives.
    The issue is “whether the elements of the offense are of the
type” that makes the offense a violent felony, and the court
must answer this question “without inquiring into the spe-
cific conduct of this particular offender.” United States v.
Woods, 576 F.3d 400, 403 (7th Cir. 2009), quoting James v.
United States, 550 U.S. 192, 202 (2007); see also id. at 405 (sen-
tencing under ACCA “precludes deciding on a case-by-case
basis whether a particular prior violation of a general statute
posed the kind of risk of violence that would justify the re-
cidivism enhancements provided by the ACCA”). The sen-
tencing judge need not and may not consult any of the facts
underlying the prior conviction. It does not matter if the de-
fendant violated the statute of conviction in a particularly
violent or non-violent way. The inquiry looks only at the
statutory elements of the prior conviction to determine
whether it qualifies as a violent felony. See Descamps, 133 S.

U.S.C. § 924(e)(2)(B)(ii). Yang’s case does not involve the residual clause,
so Johnson does not affect him.
4                                                           No. 14-3688

Ct. at 2285–86; Shepard v. United States, 544 U.S. 13, 16 (2005);
Taylor v. United States, 495 U.S. 575, 600 (1990); United States v.
Misleveck, 735 F.3d 983, 984 (7th Cir. 2013).
    In some circumstances, however, ACCA permits the sen-
tencing judge to look beyond the judgment and statute of
conviction as part of this inquiry. Using what has been called
the “modified categorical approach,” the court may look to a
limited selection of additional documents, including charg-
ing documents, plea agreements, jury instructions, plea and
sentencing transcripts, and findings of fact and conclusions
of law from a bench trial, when necessary to determine the
elements of conviction—as opposed to the facts underlying
that conviction. See Descamps, 133 S. Ct. at 2281; Johnson v.
United States, 559 U.S. 133, 144 (2010); Shepard, 544 U.S. at 16;
United States v. Mathews, 453 F.3d 830, 835 (7th Cir. 2006).2
    Resort to such materials is necessary when the prior con-
viction is for violating a “divisible” statute. Such statutes list
one or more elements in the alternative, giving the prosecu-
tion multiple ways to prove the offense. If the judgment
identifies only the statute of conviction, it will not specify
which elements necessarily served as the basis for the con-
viction. If not all alternatives would qualify the conviction as


    2 While the modified categorical approach allows a court to look be-
yond the judgment and the statute of conviction to documents such as
plea agreements and transcripts of guilty pleas and sentencings, the
court may not consider police reports, complaint applications, or other
sources that do not reflect either the defendant’s own admissions or the
findings of a judge or jury. Formal charging documents may be used,
however, to identify just which elements of a crime were resolved by a
judgment of conviction. See Shepard, 544 U.S. at 16; see also United States
v. Black, 636 F.3d 893, 898 (7th Cir. 2011).
No. 14-3688                                                 5

a violent felony under ACCA, a court may try to determine
which alternative served as the basis of a defendant’s convic-
tion.
    For this limited inquiry, these outside documents (often
called “Shepard documents” after Shepard v. United States, 544
U.S. 13) are available and can prove decisive. See Descamps,
133 S. Ct. at 2281, 2284–85. Once the elements of conviction
are definitively established, the inquiry is identical to the
categorical approach described above: those elements are
evaluated to determine whether they establish a violent fel-
ony under ACCA. Id. at 2281, 2285. Even when this modified
categorical approach is used, the sentencing court may use
these additional sources “only to determine which crime
within a statute the defendant committed, not how he com-
mitted that crime.” Woods, 576 F.3d at 405.
    Against this backdrop, Yang argues that one of his three
convictions relied upon by the district court could not quali-
fy under ACCA because it was not clear from the judgment
of conviction which provision of the Minnesota criminal
code he had violated. The judgment is a printed form with
handwriting. Its only identification of the crime of convic-
tion is the handwritten note “felony domestic” for the
charge, without any more specific citation to a state statute.
Unless the district judge could tell what the statute was,
Yang argues, it would be impossible for the judge to apply
the categorical approach to determine whether the convic-
tion counted as an ACCA predicate. Instead, as happened
here, the judge would need to look beyond the judgment of
conviction to the plea and sentencing transcripts to deter-
mine that he was convicted of felony domestic assault in vio-
lation of Minn. Stat. § 609.224(4).
6                                                   No. 14-3688

    Yang argues that Supreme Court precedent prohibited
the sentencing judge from looking beyond the judgment un-
less the statute of conviction was divisible. In his view, only
when the sentencing court confronts a conviction under a
divisible statute may the court consult the documents al-
lowed under the modified categorical approach. Yang relies
on Descamps, where the Court wrote: “A court may use the
modified approach only to determine which alternative ele-
ment in a divisible statute formed the basis of the defend-
ant’s conviction.” 133 S. Ct. at 2293 (emphasis added). As
Yang sees it, the modified approach was used here for a dif-
ferent purpose, so the district court erred by doing what
Descamps prohibits.
    The government argues that the district court did not ac-
tually base its finding that the conviction was for a violent
felony on anything other than the judgment of conviction
and a look at the Minnesota criminal code, which is always
permissible under ACCA. One can read the sentencing tran-
script that way, but it is also clear that the district judge did
in fact consult the so-called Shepard documents at the very
least to confirm his conclusion that Yang was convicted un-
der the felony provision of § 609.224.
    We think the better approach here is to assume that the
judge’s examination of the Shepard documents to confirm his
research may well have been decisive. Even if those docu-
ments made a decisive difference, we find no error. A sen-
tencing judge faced with an arguably ambiguous judgment
of conviction may consult Shepard documents, such as plea
and sentencing transcripts, to determine under which statute
the defendant was convicted. Cf. United States v. Meherg, 714
F.3d 457, 459 (7th Cir. 2013) (noting that defendant could
No. 14-3688                                                   7

have disputed the interpretation of an unclear judgment by
offering “evidence, such as a plea colloquy or sentencing
transcript, indicating that he was convicted of a crime differ-
ent from the one charged”).
    But what of the Descamps language quoted above saying
the modified categorical approach may be used “only to de-
termine which alternative element in a divisible statute
formed the basis of the defendant’s conviction”? 133 S. Ct. at
2293. Similar language has echoed through our opinions, as
well. See Black, 636 F.3d at 899 (district court did not err
when it declined to consider underlying documents, even in
the face of ambiguity, because “the controlled substance
statutes under which [defendant] was convicted are not di-
visible”); United States v. Ramirez, 606 F.3d 396, 399 (7th Cir.
2010) (“When an offense is not divisible, plea colloquies, ju-
dicial admissions, judicial findings, and jury instructions
from the prior prosecutions cannot be used to classify the
prior convictions.”); Woods, 576 F.3d at 411 (“As we ex-
plained earlier, James, Taylor, and Shepard permit a court to
go beyond the statutory definition of the crime to consult ju-
dicial records (charging documents, plea colloquy, etc.) only
where the statute defining the crime is divisible.”).
    Yang’s argument illustrates the hazards of reading too lit-
erally the language in judicial opinions. The actual issue in
Descamps was what a federal court could do when evaluating
a conviction under California’s broad burglary statute, which
does not require proof of an unlawful entry. The Supreme
Court has treated unlawful entry as an essential element un-
der ACCA’s use of a generic “burglary” as a predicate vio-
lent felony. See 133 S. Ct. at 2282. The Supreme Court held in
Descamps that a sentencing court could not look at Shepard
8                                                  No. 14-3688

documents to determine if the prosecution had actually
proven defendant’s unlawful entry even though no element,
or alternative element, of the statute required such proof. See
id. at 2287–88, 2293. In other words the Court held that a
court may not consult sources outside the judgment and
statute of conviction to determine whether or not a given de-
fendant’s actions would be an ACCA violent felony. Id. at
2293.
    The issue here is determining the identity of the statute of
conviction, not the particular way in which it was violated.
Looking to a limited set of outside sources—here the plea
and sentencing transcripts—to identify the statute of convic-
tion is consistent with the modified categorical approach and
the limits ACCA places on federal sentencing courts. Despite
the general language Yang quotes, the Supreme Court has
made clear that a sentencing court may reach beyond the
judgment of conviction when it needs to “determine which
statutory phrase was the basis for the conviction.” Johnson v.
United States, 559 U.S. 133, 144 (2010).
    The precise statutory basis for the conviction (the “statu-
tory phrase”) can be ambiguous either because the statute
lists elements in the alternative or (less often) because the
statute is not identified clearly. We see no reason to distin-
guish between the two situations in deciding how the sen-
tencing court may resolve the ambiguity. For the same rea-
sons that the “modified categorical approach” may be used
as a tool to determine the correct statutory subsection of con-
viction—in effect, to choose among several different
crimes—it makes equal sense to use that tool to determine
the correct statutory section of conviction. See Descamps, 133
S. Ct. at 2285 (“All the modified approach adds is a mecha-
No. 14-3688                                                    9

nism for making that comparison when a statute lists multi-
ple, alternative elements, and so effectively creates ‘several
different Y crimes.’”), quoting Nijhawan v. Holder, 557 U.S. 29,
41 (2009). Either way, the approach is used only to “identify,
from among several alternatives, the crime of conviction” so
that the court can correctly apply the categorical approach.
Id. at 2285.
    If we read the language of Descamps too literally, without
regard for the issue decided and the reasoning behind the
decision, we would be attributing to the Supreme Court an
imprudently wooden formalism with the language of its
own opinions. The “language of an opinion is not always to
be parsed as though we were dealing with language of a
statute,” Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979), for
“[j]udges expect their pronunciamentos to be read in con-
text.” Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005); see
also Illinois v. Lidster, 540 U.S. 419, 424 (2004) (general lan-
guage in judicial opinions must be read in context and not as
“referring to quite different circumstances that the Court
was not then considering”); Cohens v. Virginia, 19 U.S. 264,
399 (1821) (Marshall, C.J.) (“general expressions, in every
opinion, are to be taken in connection with the case in which
those expressions are used. If they go beyond the case, they
may be respected, but ought not to control the judgment in a
subsequent suit when the very point is presented for deci-
sion.”).
    Extending the use of the Shepard documents from identi-
fying the right statutory subsection to identifying the right
statutory section does not threaten to transform the “ele-
ments-based” inquiry under the categorical approach to the
“evidence-based” inquiry rejected in Descamps, 133 S. Ct. at
10                                                   No. 14-3688

2287. When faced with an ambiguous judgment, the sentenc-
ing court will look to the approved sources to determine the
statute of conviction—that is, the elements of the crime of
conviction—to compare it to the requirements of ACCA.
    At no point does this approach permit the sentencing
judge to look beyond the elements of the crime of conviction
when determining whether the felony is violent. The use of
Shepard documents is therefore nothing like the use prohibit-
ed in Descamps, where the government sought to use the ad-
ditional materials to establish that the state had actually
proven a violent felony as defined by ACCA even though the
words of the underlying statute did not necessarily require
the jury (or judge accepting a plea) to find that one of the
ACCA-defined violent felony elements was met. See 133 S.
Ct. at 2285–87.
    The district court properly determined that Yang was
convicted of felony domestic assault under Minn. Stat. §
609.224 and that the crime qualifies as a violent felony under
ACCA. As it happens, § 609.224 can be violated in a number
of ways: as a misdemeanor, as a “gross misdemeanor,” or as
a felony. Using the same documents consulted to determine
the overall statute of conviction—those permitted by the
modified categorical approach—it is easy to find that Yang’s
conviction was under the subdivision describing felony as-
sault, § 609.224(4). Under the statute, an individual is guilty
of felony domestic assault if he “(1) commits an act with an
intent to cause fear in another of immediate bodily harm or
death; or (2) intentionally inflicts or attempts to inflict bodily
harm upon another” and does so within a specified amount
of time of having committed other qualified domestic vio-
lence-related offenses. Minn. Stat. § 609.224(1), (4). A convic-
No. 14-3688                                                  11

tion under this statute qualifies as a violent felony because it
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).
   The judgment of the district court is AFFIRMED.
