                Case: 15-13873   Date Filed: 11/08/2016   Page: 1 of 5


                                                              [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 15-13873
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 2:14-cr-00105-SPC-CM-1



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

versus

JOHN ROBERT HALDEMANN,

                                                   Defendant - Appellant.

                            ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                 (November 8, 2016)

Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

         John Robert Haldemann appeals his concurrent sentences of 211 months

imposed after pleading guilty to three counts of armed bank robbery, in violation
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of 18 U.S.C. § 2113(a), (d). The District Court sentenced Haldemann as a career

offender under U.S.S.G. § 4B1.1 based on his two prior felony convictions under

Wisconsin law for substantial battery with intent to cause bodily harm and for

manufacture or delivery of marijuana. Haldemann argues that his Wisconsin

substantial battery conviction, Wis. Stat. § 940.19(2) (2004), does not qualify as a

predicate offense to his career offender status because it is not a “crime of

violence” as is required under U.S.S.G. § 4B1.2. We disagree, and accordingly

affirm.

       We review de novo whether a defendant’s prior conviction qualifies as a

crime of violence under § 4B.2. United States v. Romo-Villalobos, 674 F.3d 1246,

1247 (11th Cir. 2012). A defendant qualifies as a career offender under §4B.2 if

he has at least two prior felony convictions of either a crime of violence or a

controlled substance offense. 1 U.S.S.G. § 4B1.1. Section 4B1.2 defines a “crime

of violence” as any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that “(1) has an element the use, attempted use, or

threatened use of physical force against the person of another, [the elements

clause] or (2) is burglary of a dwelling, arson, extortion, involves use of explosives

[enumerated offenses], or otherwise involves conduct that presents a serious


       1
         The other criteria for application of U.S.S.G. § 4B1.1—that the defendant be at least 18
years old at the time he committed the instant offense and that the instant offense was a felony
that was a crime of violence or a controlled substance offense—are not at issue.
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potential risk of physical injury to another [the residual clause].” Id. § 4B1.2. To

determine whether a crime is covered by § 4B1.2’s elements clause, we apply a

categorical approach, looking only at the statutory elements of the offense, rather

than the particular facts underlying the conviction. Descamps v. United States, 570

U.S. ___, ___, 133 S. Ct. 2276, 2283–86, 186 L. Ed. 2d 438 (2013).

      Haldemann contends, as he did to the District Court in his objections to the

presentence report, that the Wisconsin substantial battery statute does not trigger

§ 4B1.2’s elements clause because a conviction under that statute can be premised

on action committed without the use or attempted use of force. While § 4B1.2’s

elements clause mandates the defendant employ a direct use of force against a

victim, a conviction for Wisconsin substantial battery may be premised on intent to

cause bodily harm which can occur indirectly—that is, from acts other than the

defendant’s direct use of force, such as poisoning a drink or tampering with the

brakes of a car.

      When Haldemann was convicted, the Wisconsin substantial battery statute

provided that “[w]hoever causes substantial bodily harm to another by an act done

with intent to cause bodily harm to that person or another is guilty of a [] felony.”

Wis. Stat. § 940.19(2). Substantial bodily harm was defined by the statute as

“bodily injury that causes a laceration that requires stitches, staples, or a tissue

adhesive; any fracture of a bone; a broken nose; a burn; a temporary loss of


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consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.” Id.

§ 939.22(22). The United States Supreme Court has defined “physical force” to

mean “violent force—that is, force capable of causing physical pain or injury to

another person.”2 Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265,

1271, 176 L. Ed. 2d 1 (2010). Because a conviction for Wisconsin substantial

battery requires that the defendant have inflicted substantial bodily harm upon his

victim—a harm causing injury to the extent of a laceration requiring stitches, a

fracture of a bone, or a temporary loss of consciousness, for example—that statute

unquestionably mandates as an element proof of the use of violent force “capable

of causing physical pain or injury to another person.”

       And whether that use of force occurs indirectly, rather than directly, by way

of the defendant’s actions is of no consequence because intentional use of indirect

force to cause substantial bodily harm still qualifies as a use of violent force within

the meaning of § 4B1.2’s elements clause. See United States v. Castleman, 572

U.S. ___, ___, 134 S. Ct. 1405, 1414–15, 188 L. Ed. 2d 426 (2014) (rejecting the

defendant’s argument that the Tennessee domestic assault statute did not have as

an element the use or attempted use of physical force because a defendant could be

       2
          Johnson dealt with the definition of “physical force” under 18 U.S.C. § 924(e)(2)(B)(i),
a provision within the Armed Career Criminal Act (“ACCA”). While the Guidelines do not
define the term “physical force” under the career offender provision, because of the definitional
similarities between a violent felony under the ACCA and a crime of violence under § 4B1.2, we
look to cases applying the ACCA “for guidance in considering whether an offense qualifies as a
crime of violence under the Sentencing Guidelines.” United States v. Alexander, 609 F.3d 1250,
1253 (11th Cir. 2010).
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convicted under the Tennessee statute for causing bodily injury through the use of

indirect force, reasoning that “[i]t is impossible to cause bodily injury without

applying force in the common-law sense. . . . That the harm occurs indirectly,

rather than directly (as with a kick or punch), does not matter”). Because the

Wisconsin substantial battery statute has as an element the use, attempted use, or

threatened use of physical force against the person of another, it qualifies as a

crime of violence under § 4B1.2’s elements clause. Accordingly, Haldemann’s

sentence is

      AFFIRMED.




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