Appeal from the United States District Court for the Western District of Wisconsin. No. 07-CR-159-BBC-04-Barbara B. Crabb, Chief Judge.
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
The defendant was convicted of armed bank robbery and related crimes and sentenced to 382 months in prison. The sentence was within the guidelines range, but only because the district judge deemed the defendant's previous conviction of aggravated battery in violation of Illinois law a "crime of violence" within the meaning of section 4B1.2(a) of the 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 provoking 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 accompanied 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 conviction of a "crime of violence"? It was if the crime 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 convictions, 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 battery. 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 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. 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, 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 "generic" 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 sentence 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 VACATED.
POSNER, Circuit Judge, with whom Chief Judge EASTERBROOK 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 violating. 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 criminal conduct involved without regard to the offense charged." Michael H. Tonry, "Real ...