                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2424

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

M ATTHEW E VANS,
                                          Defendant-Appellant.


            Appeal from the United States District Court
               for the Western District of Wisconsin.
       No. 07-CR-159-BBC-04—Barbara B. Crabb, Chief Judge.



     A RGUED JANUARY 5, 2009—D ECIDED A UGUST 13, 2009




 Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
  P ER C URIAM. The defendant was convicted of armed
bank robbery and related crimes and sentenced to
382 months in prison. The sentence was within the guide-
lines range, but only because the district judge deemed
the defendant’s previous conviction of aggra-
vated battery in violation of Illinois law a “crime of vio-
lence” within the meaning of section 4B1.2(a) of the
2                                              No. 08-2424

federal sentencing guidelines. The appeal challenges that
ruling.
  Under Illinois law, “a person commits battery if he
intentionally or knowingly without legal justification and
by any means, (1) causes bodily harm to an individual
or (2) makes physical contact of an insulting or pro-
voking nature with an individual.” 720 ILCS 5/12-3(a). He
commits “aggravated battery” (so far as relates to this
case) if in addition he “knows the individual harmed is
pregnant.” 720 ILCS 5/12-4(b)(11). The defendant had
been indicted for having “knowingly and without legal
justification, made contact of an insulting or provoking
nature with April Lauderdale, in that the defendant
pushed April Lauderdale, knowing April Lauderdale to
be pregnant.” He pleaded guilty, admitting the following
facts: at 10 p.m. one night he entered the apartment of
Lauderdale, four months pregnant by him, and accused
her of sleeping with other men. He began carrying things
out of the apartment, including a television set. She
locked the door to keep him from returning and taking
more stuff out but he kicked in the door, “grabbed
Ms. Lauderdale by the face and pushed her down to
the floor. He then yelled for the two girls [who had ac-
companied him on the visit to the apartment, but were
outside] to come inside and, quote, kick this bitch’s ass.”
Lauderdale grabbed a knife and stabbed the defendant,
and he left, saying, “I pushed her down, and she stabbed
me.”
  So was his conviction of “aggravated battery” a con-
viction of a “crime of violence”? It was if the crime
No. 08-2424                                                    3

of which he was convicted has “as an element the use,
attempted use, or threatened use of physical force
against the person of another,” U.S.S.G. § 4B1.2(a)(1), or
is “burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” § 4B1.2(a)(2). (These definitions are identical
to those found in the Armed Career Criminal Act,
18 U.S.C. § 924(e)(2)(B), another basis for increasing
a federal defendant’s sentence because of previous con-
victions, except that the statutory definition leaves out “of
a dwelling.”) The crime of which the defendant had
been convicted does not fit the first subsection quoted
above. The use, etc., of “physical force” is not an
element of that crime, since all that that crime requires is
proof of making an “insulting or provoking” physical
contact with a woman known to be pregnant. The
question is whether the defendant’s crime fitted the
second subsection (“conduct that presents a serious
potential risk of physical injury to another”).
  The terms “insulting” and “provoking” are taken from
the common law tort of battery, which requires only an
offensive contact—the sort of thing that might provoke
a breach of the peace, as it did here: the provoker was
stabbed by his victim. Spitting on a person is the usual
example given of a provoking act that amounts to bat-
tery. E.g., Alcorn v. Mitchell, 63 Ill. 553 (1872); Cohen v.
Smith, 648 N.E.2d 329, 331-33 (Ill. App. 1995); Caudle v.
Betts, 512 So.2d 389, 391-92 (La. 1987); see also W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 9, p. 41-
42 (5th ed. 1984); Restatement (Second) of Torts § 19 and
4                                                   No. 08-2424

comment a (1965). And so if you deliberately spit on a
pregnant woman you are guilty of the crime of aggravated
battery in Illinois, People v. Dorn, 883 N.E.2d 584, 588-89
(Ill. App. 2008); People v. Johnson, 807 N.E.2d 693, 695-97
(Ill. App. 2004); People v. Peck, 633 N.E.2d 222 (Ill. App.
1994), even though spitting does not involve “physical
force” or inflict bodily harm. Garcia-Meza v. Mukasey, 516
F.3d 535, 537 (7th Cir. 2008).
  To fall under the second subsection of section 4B1.2(a)
of the guidelines, the crime must be similar to the
offenses listed in that subsection—similar, that is, to
burglary of a dwelling, arson, extortion, any crime that
involves the use of explosives, or any other crime that
presents a serious risk of physical injury. Begay v. United
States, 128 S. Ct. 1581, 1585 (2008); James v. United States, 550
U.S. 192, 203-09 (2007). Merely careless (even though
criminal and dangerous) conduct will not suffice, how-
ever. Begay v. United States, supra, 128 S. Ct. at 1586-
88; United States v. Woods, No. 07-3851, 2009 WL 2382700, at
*7-8 (7th Cir. Aug. 5, 2009). That is not a problem
in this case; the Illinois statute requires that the
defendant’s “insulting or provoking” physical contact
with the victim be intentional or, what amounts to the
same thing, knowing. See, e.g., United States v. Holland, 831
F.2d 717, 722-23 (7th Cir. 1987). But an “insulting or
provoking” physical contact, though intentional, could
be no more violent than spitting, and a battery that
consists merely of deliberately spitting on someone is not
comparable to burglary, arson, extortion, or a crime
involving the use of explosives. Nor could it be said to
present a serious risk of physical injury, United States v.
No. 08-2424                                                5

Jones, 235 F.3d 342, 346-48 (7th Cir. 2000), though some
courts would disagree, most clearly the Tenth Circuit. See
United States v. Paxton, 422 F.3d 1203, 1205-07 (10th Cir.
2005).
   Although the words “insulting or provoking” make
it sound as if all that the Illinois legislature had in mind
is the kind of light offensive touching familiar from
civil battery cases, the Illinois courts have held that it
embraces more forceful blows as well, the kind that as
in this case can knock a person to the ground. Allstate
Ins. Co. v. Kovar, 842 N.E.2d 1268, 1270-71 (Ill. App. 2006);
People v. Young, 840 N.E.2d 825, 832-33 (Ill. App. 2005); cf.
People v. Reynolds, 832 N.E.2d 512, 517 (Ill. App. 2005).
Were it not for this judicial gloss, the aggravated-
battery statute would fail to reach a class of batteries that
is at least as serious as the ones it does reach. Kissing a
pregnant woman knowing she didn’t want to be kissed
is an aggravated battery. But if the statute is confined
to physical contacts that, like kissing, do not inflict any
bodily harm, then if the defendant’s victim did not
belong to any of the vulnerable groups enumerated in
720 ILCS 5/12-4(b) he would not be guilty of aggravated
battery even if instead of kissing her he beat her up,
provided only that he did not cause “great bodily harm, or
permanent disability or disfigurement.” § 12-4(a).
  Thus, the same statute, the same form of words, em-
braces two crimes: offensive battery, and forcible battery.
If the two crimes were in separate sections of the
battery statute (or within the same section but listed
separately, Nijhawan v. Attorney General, 129 S. Ct. 2294,
6                                               No. 08-2424

2299 (2009), as would be the case if the same section
punished “insulting a pregnant woman” and “beating a
pregnant woman”), and the defendant were convicted
of violating the section punishing forcible battery, the
fact that another section punished a battery that was not
forcible and therefore not a crime of violence under
federal law would be irrelevant. But in United States v.
Woods, supra, another panel of this court has held that
when a statute fails to place the crime that is a crime of
violence, and the crime that is not a crime of violence,
in separate sections (or in a list of separate crimes in the
same section), the defendant cannot be given the crime-of-
violence enhancement. There is an exception if the “ge-
neric” crime (that is, the crime of conviction, here an
insulting and provoking physical contact with a pregnant
woman) as generally committed is violent. See id. at *7. But
the government doesn’t argue that most insulting or
provoking conduct with a pregnant woman is violent, as
the conduct in the present case was, and so the sen-
tence cannot be upheld on that basis.
  Woods was circulated to the full court in advance of
issuance, and a majority voted not to hear the case en banc.
Woods governs, and requires that the defendant be
resentenced. His sentence is therefore
                                                 V ACATED .
No. 08-2424                                                7

  POSNER,         Circuit    Judge,       with      whom
Chief Judge E ASTERBROOK joins, concurring. The Woods
decision compels reversal, but I do not agree that the
rule it lays down is sound. The rule is that if a statute
punishes two crimes, one a crime of violence, one not,
under the same name (in this case, “aggravated battery”
defined as intentionally or knowingly making physical
contact of an insulting or provoking nature with a
pregnant woman), the defendant cannot be given the
sentencing guidelines’ crime-of-violence enhancement
unless the statute is generally violated by the crime of
violence. It is not enough that, as in this case, as the per
curiam opinion makes clear, the defendant committed
the “crime of violence” version of the statutory offense,
the statutory defense being battery of a pregnant woman.
  A sentencing judge is not permitted to base a recidivist
enhancement on conduct that violates a statute other
than the one the defendant had been charged with vio-
lating. The judge is not to base the sentence on his “own
conception of the offense actually constituted by the
defendant’s conduct.” Stephen J. Schulhofer, “Due Process
of Sentencing,” 128 U. Pa. L. Rev. 733, 757 (1980). He is not
to “consider the nature and characteristics of the crim-
inal conduct involved without regard to the offense
charged.” Michael H. Tonry, “Real Offense Sentencing: The
Model Sentencing and Corrections Act,” 72 J. Crim. L. &
Criminology 1550, 1555-56 (1981) (emphasis in original).
  Suppose, therefore, that Evans had been indicted and
convicted of simple larceny based on his theft of Lauder-
dale’s television set, and at the guilty-plea hearing the
8                                               No. 08-2424

prosecutor described the circumstances surrounding the
theft, including the pushing of Lauderdale, and the
defendant admitted under oath that the circumstances
had been exactly as the prosecutor described. Never-
theless the district judge, in applying the guidelines in
the present case, would not have been authorized to
treat the defendant’s conviction of simple larceny (akin
to stealing a bicycle from a bicycle stand, the owner
being nowhere in sight) as a conviction of a crime of
violence within the meaning of the sentencing guide-
lines. He would have to treat it as a conviction for a
nonviolent crime because that was the only crime the
defendant had been convicted of. See United States v.
Lewis, 405 F.3d 511, 513-15 (7th Cir. 2005); United States v.
Bartee, 529 F.3d 357, 360-61 (6th Cir. 2008). Having deter-
mined that the defendant had been convicted of a nonvio-
lent crime, the judge could not go on to consider how the
defendant had committed that crime, and, if he had used
violence in the commission of it, enhance the sentence
accordingly.
  But since the statutory term “insulting or provoking”
covers a range of kinds or concepts of battery, some of
which create a serious risk of injury and some of which
do not, and the indictment or other charging document
does not indicate where in the range the defendant’s
conduct fell, we can look at the record of the guilty-plea
hearing to disambiguate the application of statute to the
case. In Shepard v. United States, 544 U.S. 13 (2005), the
Supreme Court ruled that if burglary under state law
includes entry into a boat, but “crime of violence” for
purposes of the Armed Career Criminal Act requires
No. 08-2424                                                  9

entry into a building, the sentencing judge can, and in
fact has to, look to the guilty-plea hearing to determine
whether the defendant admitted to entering a building. See
also Taylor v. United States, 495 U.S. 575, 602 (1990); Cham-
bers v. United States, 129 S. Ct. 687 (2009); United States v.
Smith, 544 F.3d 781, 786-87 (7th Cir. 2008); United States v.
Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008); United States v.
Rosa, 507 F.3d 142, 151-54 (2d Cir. 2007).
  Shepard was a case in which the same state criminal
statute punished both conduct that was not a crime of
violence under federal law and conduct that was: pun-
ished, in effect, two crimes, and the question was which
the defendant had committed. To answer that question
required knowing what the defendant had done. Admis-
sions in a guilty-plea hearing, being judicial admissions,
bind the defendant in subsequent proceedings and so
avoid any occasion for the federal sentencing judge to
determine contested facts regarding an earlier crime for
purposes of deciding which niche it fits in—the offense
that is not a crime of violence or the offense that is, both
being covered by the same statutory language. Brown v.
Green, 738 F.2d 202, 206 (7th Cir. 1984); Huerta-Guevara v.
Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003). The making of
such a factual determination would be objectionable as
requiring trials within sentencing hearings and (if the
result was to increase the maximum punishment of the
defendant) infringing the right to trial by jury conferred
by the Sixth Amendment. Taylor v. United States, supra, 495
U.S. at 600-02; United States v. Shannon, 110 F.3d 382, 384-
85 (7th Cir. 1997) (en banc); United States v. Browning, 436
F.3d 780, 780-82 (7th Cir. 2006); United States v. Rosa, supra,
10                                             No. 08-2424

507 F.3d at 152-53. The question in this case as in Taylor
is not what the defendant did—that is not in dispute—but
what crime he was convicted of. “Congress intended
the sentencing court to look only to the fact that the
defendant had been convicted of crimes falling within
certain categories, and not to the facts underlying the
prior convictions.” 495 U.S. at 600.
  It is the same here. A single statutory provision creates
crimes both within the federal domain and outside it. In
Chambers v. United States, supra, the two crimes were
breaking out of a jail and failing to report for weekend
confinement, and the Court held that the latter was not
a crime of violence. In this case, the two crimes are a
battery that causes or threatens physical injury and a
battery that involves just an offensive touching and is
punished not because it causes or even creates a risk of
physical injury but because it might provoke a breach of
the peace by the victim. The former but not the latter
offense fits the definition of violent felony.
  I cannot see what difference it makes that these crimes
are not in separate sections of the battery statute. The
division of a statute into sections has never been
regarded as having substantive significance; it is merely
a device for ease of reference. No Supreme Court deci-
sion attaches significance to the presence or absence of
sections. If the same section covers two crimes, the court
can look at the conceded facts of the defendant’s con-
duct to determine which crime the defendant commit-
ted. The “categorical” approach requires the court to
identify the crime committed by the defendant and to
No. 08-2424                                                11

stop there and not consider how he committed it—whether
for example he committed a crime in a violent manner
though violence was not an element of the crime. That
limitation upon the court’s inquiry does not make “cate-
gory” a synonym for “section.”
  Since the indictment doesn’t indicate which kind of
battery the defendant committed, we may look behind
the indictment to the factual allegations that the
defendant admitted in pleading guilty, and when we
do this we learn that he not only shoved a pregnant
woman to the ground but by shouting for “the girls” to
beat her up made her fear a more serious physical
injury—and the combination of physical force and fear
of serious injury could induce a miscarriage. Cf.
Brownback v. Frailey, 78 Ill. App. 262 (Ill. App. 1898); Engle
v. Simmons, 41 So. 1023, 1023-24 (Ala. 1906); Whitsel v.
Watts, 159 P. 401, 401-02 (Kan. 1916); Kirby v. Jules Chain
Stores Corp., 188 S.E. 625 (N.C. 1936). In the language of
the guideline, the defendant created “a serious potential
risk of physical injury to another.”
  In Taylor the Supreme Court said that “in a State
whose burglary statutes include entry of an automobile
as well as a building, if the indictment or information
and jury instructions show that the defendant was
charged only with a burglary of a building, and that the
jury necessarily had to find an entry of a building to
convict, then the Government should be allowed to use
the conviction for enhancement.” 495 U.S. at 602. If for
“burglary” we substitute “battery,” for “automobile” a
merely “offensive” touching, and for “building” creating
12                                             No. 08-2424

a risk of physical harm by shoving a pregnant woman to
the ground, we have this case.
   Both in Shepard and in Chambers the two crimes that the
Supreme Court considered were found in the same statu-
tory section. 720 ILCS 5/12-4(b)(11) likewise punishes
two separate crimes (so far as bears on this case)—offen-
sive physical contact with a pregnant woman that does,
and that does not, inflict bodily harm, We need to look
to the charging document and the guilty-plea hearing
to determine, on the basis of the defendant’s admission,
which crime he was convicted of. As shown in the
charging papers and plea colloquy, he was convicted of
the type of aggravated battery under Illinois law that
fits within the generic federal definition of crime of vio-
lence. His sentence was therefore proper.
  But since a majority of the court has voted not to rehear
Woods, I bow to its precedential force and thus agree
that the defendant’s sentence must be vacated.




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