                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-2251
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellant,
                             v.

ROOSEVELT D. VALLERY,
                                        Defendant-Appellee.
                       ____________
           Appeal from the United States District Court
               for the Southern District of Illinois.
       No. 04 CR 30115—G. Patrick Murphy, Chief Judge.
                       ____________
  ARGUED NOVEMBER 8, 2005—DECIDED FEBRUARY 7, 2006
                   ____________


  Before CUDAHY, KANNE, and SYKES, Circuit Judges.
  KANNE, Circuit Judge. The government appeals from the
district court’s sentencing of Roosevelt Vallery as a
misdemeanant following his conviction under 18 U.S.C.
§ 111(a). It is the government’s contention that the in-
dictment properly alleged a felony rather than a misde-
meanor. Vallery’s conviction is not in dispute. A fair reading
of the statute requires us to conclude that the misdemeanor
provision of § 111(a) applies to all conduct prohibited by the
subsection. Having determined that Vallery’s conviction
was for a misdemeanor, we affirm his twelve-month
sentence.
2                                                No. 05-2251

                    I. BACKGROUND
  The criminal statute involved in this case is 18 U.S.C.
§ 111. It provides:
    (a) In general.—Whoever—
        (1) forcibly assaults, resists, opposes, impedes,
        intimidates, or interferes with any person desig-
        nated in section 1114 of this title while engaged
        in or on account of the performance of official
        duties; or
        (2) forcibly assaults or intimidates any person who
        formerly served as a person designated in section
        1114 on account of the performance of official duties
        during such person’s term of service,
    shall, where the acts in violation of this section consti-
    tute only simple assault, be fined under this title or
    imprisoned not more than one year, or both, and in
    all other cases, be fined under this title or imprisoned
    not more than 8 years, or both.
    (b) Enhanced penalty.—Whoever, in the commission of
    any acts described in subsection (a), uses a deadly or
    dangerous weapon (including a weapon intended to
    cause death or danger but that fails to do so by rea-
    son of a defective component) or inflicts bodily injury,
    shall be fined under this title or imprisoned not
    more than 20 years, or both.
The designation in 18 U.S.C. § 1114 includes federal
corrections officers.
  Correctional Officer Ron Garver was employed at the
Federal Correctional Institution in Greenville, Illinois. On
July 24, 2003, he was instructed to escort Roosevelt Vallery,
an inmate, to the lieutenant’s office. Garver found Vallery
in the food services area and told Vallery to come with him
to the lieutenant’s office. Garver escorted Vallery alone and
No. 05-2251                                                 3

unrestrained. Garver noticed Vallery growing increasingly
nervous and evasive as they approached the lieutenant’s
office, so Garver directed Vallery into a restroom to strip
search him for contraband.
   As Vallery removed his clothes, his apprehension intensi-
fied. When Vallery got to his underwear, Vallery pushed
Garver out of his way and ran into an empty toilet stall.
Garver followed Vallery into the stall and repeatedly yelled
for Vallery to stop. When Garver entered the stall, he saw
Vallery remove an object from his underwear and throw it
into the toilet. Garver attempted to prevent Vallery from
flushing the item by placing his arm around Vallery’s neck
and shoulder and pulling back. Vallery backed Garver into
the stall to break Garver’s hold and then flushed the item.
  During the melee, Garver used his free hand to radio
for help. Other officers soon arrived, handcuffed Vallery,
and placed him in a special housing unit. Garver re-
ceived minor injuries during the struggle and his uniform
was ripped; Vallery was unharmed. Vallery later told
investigators that the contraband he flushed down the toilet
was a shank.
  The facts described above were presented to a federal
grand jury in the Southern District of Illinois. The grand
jury returned the following one-count indictment:
        THE GRAND JURY CHARGES:
        On or about July 24, 2003, in Bond County, Illinois,
        in the Southern District of Illinois,
                  ROOSEVELT D. VALLERY,
        defendant herein, did knowingly and forcibly
        assault, resist, impede, and interfere with Ron
        Garver, a Federal Correctional Officer, while he
        was engaged in his official duties, to wit: conducting
        a visual search and restraining a federal inmate
        attempting to dispose of contraband, in violation of
4                                               No. 05-2251

        Title 18, United States Code, Sections [sic]
        111(a)(1).
  A jury trial ensued. Vallery objected to the govern-
ment’s proposed jury instruction on non-simple assault
arguing that because the government did not allege physi-
cal force in the indictment, Vallery had only been charged
with simple assault, a misdemeanor offense. The district
court agreed and refused to give the government’s proposed
felony instruction.
  A verdict form was submitted to the jury which contained
two blanks. Under the first blank was typed “(Guilty/Not
Guilty)” and under the second blank was typed “(assaulting,
resisting, impeding or interfering with)”. The judge ex-
plained to the jury that it should determine whether
Vallery was guilty or not guilty and enter that determina-
tion in the first blank. The judge further explained that if
the determination was guilty, the specific conduct that the
jury found Vallery committed should be entered in the
second blank. The jury returned a guilty verdict and wrote
the words “resisting, impeding, interfering with” on the
special verdict form.
  Following Vallery’s conviction, the probation officer
concluded in the presentence report (“PSR”) that Vallery
had been convicted of a felony offense subject to a statutory
maximum term of imprisonment of up to eight years. The
PSR’s calculation of Vallery’s sentencing guideline range
was 51-63 months’ imprisonment. Vallery objected, arguing
that he had only been convicted of a simple assault and was
therefore subject to the one-year maximum sentence.
Finding that Vallery was charged only with a misdemeanor,
the district court imposed a sentence of twelve months’
imprisonment.
No. 05-2251                                                5

                      II. ANALYSIS
   As a preliminary matter, we first address the govern-
ment’s argument that Vallery’s indictment did allege
physical contact. If so, then there is no need for us to
deal with the meaning of § 111. But as it was raised for the
first time at oral argument, this argument is waived.
Szczesny v. Ashcroft, 358 F.3d 464, 465 (7th Cir. 2004)
(citation omitted). In any event, we reject the govern-
ment’s premise that all “restrainings” necessarily in-
volve physical contact and conclude the indictment did
not allege physical contact.
  We now turn to the same statutory issue as was twice
before the district court—that is, whether Vallery’s indict-
ment, which did not allege physical contact, charged him
under § 111 with a felony or a misdemeanor. Section 111 is
designed to protect certain federal officers and employees of
the United States performing their official duties by
criminalizing assaults against them. United States v. Feola,
420 U.S. 671, 678-84 (1975). In 1994, Congress added the
misdemeanor simple assault provision to § 111(a) by
amendment. Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, § 320101(a)(1), 108 Stat.
1796, 2108.
  Adhering to Jones v. United States, 526 U.S. 227 (1999),
several other circuits have found post-1994 amendment
§ 111 to constitute three separate offenses: first, misde-
meanor simple assault under § 111(a); second “all other
cases” felony assault under § 111(a); and third, felony
assault involving a deadly or dangerous weapon or resulting
in bodily injury under § 111(b). See, e.g., United States v.
Hathaway, 318 F.3d 1001, 1006-08 (10th Cir. 2003); United
States v. Yates, 304 F.3d 818, 821-22 (8th Cir. 2002); United
States v. McCulligan, 256 F.3d 97, 102 (3d Cir. 2001);
United States v. Chestaro, 197 F.3d 600, 608 (2d Cir. 1999);
United States v. Nunez, 180 F.3d 227, 233 (5th Cir. 1999).
6                                                No. 05-2251

Even though we have not specifically so held, we assumed
as much in United States v. Gray, 332 F.3d 491, 492-93 (7th
Cir. 2003) (finding error in sentence exceeding statutory
maximum of § 111(a) where indictment failed to allege
violation of § 111(b)). The parties do not dispute the issue,
and we think the question is settled.
  Because Vallery was charged with violating § 111(a) but
not § 111(b), only the first two offenses, simple assault and
felony “all other cases” assault, are relevant here. The
government’s argument is that the indictment properly
alleged “all other cases” felonious assault by including in its
allegations that Vallery resisted, impeded and interfered
with Garver, and, therefore, that the district court was
wrong to rule that it only alleged simple assault because
physical contact was not alleged.
  The linchpin in the government’s argument is that
the “physical contact rule” of felonious assault, in which
physical contact is an element of the crime, applies only
to the “assault prong” of § 111(a)(1) and not to the other
prohibited conduct—namely, resisting, opposing, impeding,
intimidating, and interfering with. Therefore, the govern-
ment concludes, physical contact is not required to rise
to the level of a felony for violations of § 111(a) other
than “assaults,” and its absence in the indictment does
not preclude a felony conviction. Vallery, on the other hand,
argues that the misdemeanor simple assault provision must
be applied to all conduct prohibited by § 111(a)(1). Because
we are presented with the issue of statutory interpretation,
a question of law, we review de novo. United States v. Jones,
372 F.3d 910, 911-12 (7th Cir. 2004).
  When interpreting statutes, first and foremost, we
give words their plain meaning unless doing so would
frustrate the overall purpose of the statutory scheme, lead
to absurd results, or contravene clearly expressed legisla-
tive intent. Id. at 912; see also United States v. Chemetco,
No. 05-2251                                                7

Inc., 274 F.3d 1154, 1158-59 (7th Cir. 2001); United States
v. Cuteo, 151 F.3d 620, 630 (7th Cir. 1998); United States v.
Aerts, 121 F.3d 277, 280 (7th Cir. 1997). Both parties claim
to be supported by the plain meaning of § 111, but they
refer to different words.
  The government cites the plain meaning of “resists,
opposes, impedes, intimidates, or interferes with,” i.e., the
verbs of § 111(a)(1) proscribing conduct other than “assault”
(actions alleged in the indictment, three of which were
found by the jury), claiming that because they do not entail
physical contact, the misdemeanor provision does not apply.
The government contends that “assault” is a term of art
encompassing the physical contact rule, so that those
“assaults” with physical contact are felonies while those
without are not. But “assault” is used twice in § 111. First,
“assault” in § 111(a)(1) is a verb proscribing conduct.
Second, in the punishment clause of § 111(a), “assault”
(“simple assault” actually) is a noun denoting a crime
punishable as a misdemeanor. Prior to the
1994 amendment, the first incarnation of “assault” in
§ 111(a)(1), in addition to the words cited by the govern-
ment, likewise did not entail physical contact. See United
States v. Mathis, 579 F.2d 415, 418 (7th Cir. 1978) (holding
force to be an element of pre-1994 amendment § 111, which
may be satisfied by proof of force or threat of force).
  Because all violations of the statute, regardless of the
presence of physical contact, prior to the 1994 amendment
were subject to statutory maximum sentences greater
than one year, the physical contact rule simply was irrele-
vant to defining crimes under § 111. So to prevail, the
government must show that the 1994 amendment ap-
plied only to the word “assault,” which implicates the
plain meaning of “simple assault,” not the other verbs
proscribing conduct.
8                                                No. 05-2251

  Vallery hangs his hat on the plain meaning of the 1994
amendment, “acts in violation of this section constitute only
simple assault.” Violent Crime Control and Law Enforce-
ment Act of 1994 § 320101(a)(1) (emphasis added). Holding
the amendment to apply only to “assault” rather than to the
remainder of this section, Vallery argues, would
impermissibly render the amendment superfluous. See
Chemetco, 274 F.3d at 1160. If Congress had intended the
1994 amendment to apply only to “assault,” it could have
simply repeated the government’s alleged distinction in
§ 111(a)(1) in the punishment provision. But, while
strongly suggestive that the 1994 amendment applies to
all illegal acts of § 111(a), we do not think these words
completely foreclose the government’s view.
  It is the meaning of “simple assault” of the punish-
ment provision, which is not defined by the statute, that
is our starting point. “[W]here a federal criminal statute
uses a common-law term of established meaning with-
out otherwise defining it, the general practice is to give that
term its common-law meaning.” United States v. Turley, 352
U.S. 407, 411 (1957) (citations omitted); United States v.
Perez, 43 F.3d 1131, 1137 (7th Cir. 1994) (citations omitted).
  There is no dispute that “simple assault” is a crime
“committed by either a willful attempt to inflict injury upon
the person of another, or by a threat to inflict injury upon
the person of another which, when coupled with
an apparent present ability, causes a reasonable appre-
hension of immediate bodily harm.” Chestaro, 197 F.3d
at 605 (quoting United States v. Johnson, 637 F.2d 1224,
1242 n.26 (9th Cir. 1980)); accord United States v. Ramirez,
233 F.3d 318, 321-22 (5th Cir. 2000), overruling on other
grounds recognized by United States v. Longoria, 298 F.3d
367, 372 n.6 (5th Cir. 2002). Under the common law,
physical contact is the line of demarcation between simple
assault and battery. Wayne R. LaFave, Substantive Crimi-
nal Law § 16.1(a), (2d ed. 2003); Ramirez, 233 F.3d at 321-
No. 05-2251                                                 9

22 (“[A]t common law ‘simple assault’ did not involve any
physical contact.”); accord Chestaro, 197 F.3d at 606
(agreeing with trial court’s construction that “simple
assault, which in accord with its common-law definition,
does not involve touching”).
  Even though strict adherence to the common-law defini-
tion of simple assault requires a finding that physical
contact is an element of “all other assaults” under § 111,
McCulligan, 256 F.3d at 104; Ramirez, 233 F.3d at 322;
Chestaro, 197 F.3d at 606, some circuits have broadened its
definition by looking to 18 U.S.C. § 113, a generalized
assault statute for maritime and federal territorial jurisdic-
tion containing a simple assault provision, Hathaway, 318
F.3d at 1008; Yates, 304 F.3d at 822, or the Model Penal
Code, United States v. Duran, 96 F.3d 1495, 1509 (D.C. Cir.
1996).
  The government cites to the circuits which departed from
the common law to support its argument that physical
contact is not necessary for “all other cases” assaults. But
we note that even in these circuits “all other cases” assault
requires either physical contact or a similar aggravating
factor, e.g., intent to commit murder or serious felony,
Hathaway, 318 F.3d at 1008-09; Yates, 304 F.3d at 822, and
apprehension of immediate serious bodily harm or death,
United States v. Fallen, 256 F.3d 1082, 1087-88 (11th Cir.
2001). However, Vallery’s indictment did not allege physical
contact or any aggravating facts, and thus, the finer points
of the definition of “simple assault” are not before us. Under
any formulation of simple assault, the facts alleged by
Vallery’s indictment do not give rise to “all other cases”
assault unless the simple assault provision applies only to
the word “assaults” and not to “resists, opposes, impedes,
intimidates, or interferes with.”
  With that understanding, we turn to the scope of the
simple assault provision within § 111(a). The government
10                                               No. 05-2251

contends that we should look to § 113, the only other
statute passed by Congress referencing simple assault, to
guide our inquiry as to its application within § 111. In
contrast to § 111(a)(1), in § 113, “assault” is the only
prohibited conduct. The government claims “the differing
language in these two statutes demonstrates that Congress
knew the difference between ‘assault’ and the other forms
of conduct prohibited by Section 111, and when it referred
to ‘simple assault’ in Section 111, it was referring not to the
other conduct prohibited by Section 111.”
  But using § 113 to confirm Congress adopted the common-
law meaning of “simple assault” and using § 113 to deter-
mine which words in § 111(a) “simple assault” modifies are
not the same thing. Assuming Congress contemplated the
difference between “assault” and the other forms of prohib-
ited conduct, the differing statutory language supports the
statutes’ respective purposes. Section 111(a)(1) protects only
federal officers acting under lawful authority while § 113
protects the public at large.
  The additional verbs of § 111(a)(1) are necessary to
safeguard federal officers whose duties and authority
expose them to unique risks. Indeed, the government does
not mention that the wording of § 111(a)(2), which protects
former federal officers and employees, is limited to “assaults
or intimidates” and differs from § 111(a)(1) by not including
“resists, opposes, impedes” and “interferes with.” The
significance of these omissions is to distinguish between an
active federal officer who can be unlawfully “resist[ed],
oppose[d], impede[d], or interfere[d] with,” and a former
federal officer who cannot.
  Similar to § 111(a)(2), § 113 protects those with no federal
authority and likewise does not use verbs which relate to
endangering those presently carrying out their official
duties. Rather than support the government’s argument,
the differences between § 111(a)(1), § 111(a)(2), and § 113
merely indicate nuances in Congress’s approach in creating
No. 05-2251                                                11

a scheme to protect those presently with federal authority
(§ 111(a)(1)), those formerly with federal authority
(§ 111(a)(2)), and the public at large (§ 113). Simply put,
§ 113 is not relevant to our inquiry and certainly is of no
help to the government.
   Although not mentioned by either side, we must interpret
§ 111 taking into account the meaning of the statute as a
whole. The government’s argument that simple assault
applies only to the “assault prong” of § 111(a)(1) makes
little sense when considering § 111(a)(2), which punishes
one who “assaults or intimidates” a former federal officer.
If simple assault did not apply to the remainder of
§ 111(a)(1), we would be left with two unavailing alterna-
tives before us: either simple assault does not apply to
§ 111(a)(2) at all; or that the simple assault provision
applies only to the word “assault” of §§ 111(a)(1) and (a)(2).
The former does little to carry out the purpose of the statute
because it would afford greater protection to those without
present federal authority by making all assaults against
them felonies. The latter would require us to glean an
“assault prong” from two subsections and apply the simple
assault clause. But without a good reason to do so, we
cannot disregard the statutory structure of § 111(a) in this
manner, particularly where the text clearly directs that
“acts in violation of this section constitute only simple
assault.” Contra Jones, 526 U.S. at 239 (interpreting statute
contrary to structure to avoid “grave and doubtful con-
stitutional questions”).
  Moreover, in addition to the plain language of the statute,
case law supports Vallery by stating or implying that the
simple assault provision applies to the entirety of § 111(a).
See United States v. Arrington, 309 F.3d 40, 44 (D.C. Cir.
2002) (holding the second element of assault is “assault,
resist, oppose, impede, intimidate, or interfere with” and
that the word “forcibly . . . modifies each of the prohibited
12                                                   No. 05-2251

acts specified in the second element”); Yates, 304 F.3d at
822 (“We hold that, in the context of § 111, the definition of
simple assault is conduct in violation of § 111(a) . . . .”)
(emphasis added); Ramirez, 233 F.3d at 322 (holding
statutory definition of “all other cases” assault to be “[a]ny
physical contact which by which a person ‘forcibly assaults,
resists, impedes, intimidates, or interferes with’ ”) (empha-
sis in original). Of the remaining cases we reviewed, none
referred to the “assault” of § 111(a)(1) as a term of art, as
the government advocates, even when discussing the
meaning of simple assault.
  The government’s position further erodes when we
consider its practical effects. Because of the over-
lapping nature of many of the terms, it is difficult to
imagine a situation in which one who assaults an officer
does not also simultaneously resist, oppose, impede,
intimidate, or interfere with that officer. If the misde-
meanor provision was as narrow as the government would
have us believe, then prosecutors could avoid a lesser-
included offense simply by omitting “assault” from the
indictment. We cannot assume that it was Congress’s intent
to amend a statute with no de facto application. We hold the
simple assault provision of § 111(a) applies to all violations
of § 111(a), not merely to “assaults.”
    Turning to Vallery’s indictment1, the language closely


1
  Despite correctly reciting the de novo standard of review, the
government devoted much of the substance of its appeal to
the proceedings below, which is wholly irrelevant aside from
satisfying us that the issue has been preserved. See Groves v.
Apfel, 148 F.3d 809, 811 (7th Cir. 1998). Moreover, the govern-
ment repeatedly supports its argument by referring to Vallery’s
actions, which likewise have no place in determining congressio-
nal intent. If we were to find Vallery guilty of a felony because
                                                     (continued...)
No. 05-2251                                                   13

follows the language of § 111(a) sufficiently to allege the
elements of simple assault. However, physical contact
was not explicitly or, as previously discussed, implicitly
alleged; therefore, we agree with the district court’s conclu-
sion that Vallery was not charged with, and could not be
convicted of, “all other assaults.” Because Vallery was
charged only with a misdemeanor and not a felony, he was
subject to a statutory maximum term of imprisonment of
only one year, not eight. Neither the government nor
Vallery otherwise challenges the reasonableness of Vallery’s
sentence of twelve months’ imprisonment. See generally
United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).




1
   (...continued)
he did use physical force (as the background indicates), even
though he was charged only with a misdemeanor (as we hold),
then we would be unconstitutionally enlarging the scope of
Vallery’s indictment. See Stirone v. United States, 361 U.S. 212,
215-16 (1960). It is the indictment’s allegations, not Vallery’s
conduct, which matters here. See Arrington, 309 F.3d at 45-46
(“[T]he decisive question is not whether the element [defendant]
proposes would make any difference in this or other cases, but
whether Congress intended it to be an element of the offense.”).
14                                           No. 05-2251

                  III. CONCLUSION
  For the foregoing reasons, the sentence imposed by the
district court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—2-7-06
