November 14, 2017
from the United States District Court for the Northern
District of Illinois, Western Division. No. 16 C 50136 -
Philip G. Reinhard, Judge.
Bauer, Easterbrook, and Sykes, Circuit Judges.
Easterbrook, Circuit Judge.
his convictions for drug and firearms crimes, Michael Hill
was sentenced to 276 months' imprisonment as an armed
career criminal. See 18 U.S.C. §924(e), the Armed Career
Criminal Act or ACCA. He contends in this successive
collateral attack (which we authorized under 28 U.S.C.
§§ 2244(b), 2255(h)) that one of his earlier
convictions does not qualify as a "violent felony"
and that the recidivist enhancement therefore is improper.
The United States could have invoked a number of procedural
defenses, see Stanley v. United States, 827 F.3d 562
(7th Cir. 2016), but has not developed any of them. As the
defenses are not jurisdictional we proceed to the merits.
Wood v. Milyard, 566 U.S. 463 (2012); Douglas v.
United States, 858 F.3d 1069 (7th Cir. 2017).
conviction in question is for attempted murder, in violation
of Illinois law. Hill observes that §924(e)(2)(B)(i),
the ACCA's elements clause, labels as a "violent
felony" a crime that "has as an element the use,
attempted use, or threatened use of physical force against
the person of another". Yet it is possible to attempt
murder without using, attempting, or threatening physical
force. The crime of attempt in Illinois consists in setting
out to commit a crime and taking a substantial step toward
accomplishing that end. 720 ILCS 5/8-4(a). So one could be
convicted of attempted murder for planning the assassination
of a public official and buying a rifle to be used in that
endeavor. Buying a weapon does not itself use, attempt, or
threaten physical force; neither does drawing up
assassination plans. See, e.g., People v. Voit, 355
Ill.App.3d 1015 (2004) (providing money and a car key to a
hit man constitutes attempted murder even though violence did
not follow). It follows, Hill maintains, that attempts are
not violent felonies under the elements clauses of
§924(e) and similar federal recidivist laws, such as 18
U.S.C. §16 and 18 U.S.C. §924(c).
least two courts of appeals have held otherwise. See
United States v. Fogg, 836 F.3d 951 (8th Cir. 2016)
(attempted drive-by shooting is a violent felony); United
States v. Mansur, 375 Fed.App'x 458, 463-64 (6th
Cir. 2010) (attempted robbery is a violent felony). One
additional circuit appears to agree. United States v.
Wade, 458 F.3d 1273, 1278 (11th Cir. 2006) (an attempt
to commit any crime treated as a violent felony in the
listing of §924(e)(2)(B)(ii) is itself a violent
felony). Hill does not point to any circuit that has accepted
circuit, United States v. Armour, 840 F.3d 904,
907-09 (7th Cir. 2016), holds that attempted bank robbery is
a crime of violence under §924(c), and Hill v.
United States, 827 F.3d 560 (7th Cir. 2016), that
attempted murder is a crime of violence under U.S.S.G.
§4B1.2(a)(1), the career-offender Guideline that closely
parallels §924(e). Both Armour and Hill
are distinguishable. Armour observed that the
federal offense of attempted bank robbery requires at least
the use of "intimidation, " a form of threatened
violence, and Hill relied on Application Note 1 to
the Guideline. Application Note 1 states that a crime of
violence "include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit such"
crimes. It is possible, therefore, that the Sentencing
Commission meant to differentiate §4B1.2(a)(1) from
§924(e)(2)(B)(i) despite the fact that the
provisions' texts are all but identical. See United
States v. Raupp, 677 F.3d 756 (7th Cir. 2012) (inchoate
offenses can be crimes of violence under the Guidelines
whether or not they are covered by statutory elements
clauses). But perhaps the Commission thinks that the
Guideline and statutes should be treated alike and tried to
ward off unnecessary disputes about the right answer. (Our
opinion in United States v. Rollins, 836 F.3d 737
(7th Cir. 2016) (en banc), disapproved
Raupp''s reliance on an Application Note in
the Sentencing Guidelines as a disambiguating tool; the same
criticism would apply to Hill. We said that this was
necessary to implement United States v. Hurlburt,
835 F.3d 715 (7th Cir. 2016) (en banc), which held part of
the Guidelines to be unconstitutionally vague. But
Beckles v. United States, 137 S.Ct. 886 (2017), has
disapproved Hurlburt. Elimination of vagueness
challenges to the Guidelines undermines Rollins as
well as Hurlburt, so we treat Raupp and
Hill as having unimpaired precedential force.)
in Morris v. United States, 827 F.3d 696, 698-99
(7th Cir. 2016), Judge Hamilton concluded that an attempt to
commit a crime should be treated as an attempt to commit
every element of that crime-and since under
§924(e)(2)(B)(i) the fact that a statute contains as an
element attempt at physical force suffices to label the crime
itself a violent felony, it follows that an attempt to commit
a violent felony is itself a violent felony. Judge Hamilton
recognized that the crime of attempt requires only a
substantial step toward completion, but he thought it
sufficient that one must intend to commit every
element of the completed crime in order to be guilty of
attempt. When the intent element of the attempt offense
includes intent to commit violence against the person of
another, Judge Hamilton concluded, it makes sense to say that
the attempt crime itself includes violence as an element- and
we know from the text of §924(e)(2)(B)(i), which says
that the attempted use of physical force against the person
of another suffices, that force need not be used.
the statutory specification that an element of attempted
force operates the same as an element of completed force, and
the rule that conviction of attempt requires proof of intent
to commit all elements of the completed crime, we now adopt
Judge Hamilton's analysis as the law of the circuit. When
a substantive offense would be a violent felony under
§924(e) and similar statutes, an attempt to commit that
offense also is a violent felony.
insists, however, that even the completed crime of
murder in Illinois, under 720 ILCS 5/9-l(a)(1), is not a
violent felony under the federal elements clause. It is
possible to commit murder in Illinois by administering
poison, or exposing a baby to freezing conditions, or placing
a hapless person in danger (for example, in the middle of a
busy highway) and then standing aside while the risk comes to
pass. See, e.g., People v. Banks, 161 Ill.2d 119
(1994); People v. Hanei, 81 Ill.App.3d 690 (1980).
Hill tells us that none of these means of committing murder
entails "the use, attempted use, or threatened use of
physical force against the person of another".
line of argument, however, disregards Johnson v. United
States, 559 U.S. 133, 140 (2010), where the Court held
that "physical force" means "force capable of
causing physical pain or injury to another person". All
of our examples- poison, leaving a baby outside in the
winter, and placing a trussed-up or unconscious person in the
middle of a highway-involve "force" as a physicist
uses that word: the wrongdoer applies energy to bring about
an effect on the would-be victim. None of these examples
involves hitting the victim with brass knuckles, but all
entail force that is "capable of causing physical pain
or injury to another person". Cf. United States v.
Castleman, 134 S.Ct. 1405, 1415 (2014). No more is
required for classification under the elements clauses of
federal recidivist statutes.
Supreme Court's opinion in Johnson, 559 U.S. at
140-41, refers to murder as the paradigm of an offense that
comes within the elements clause of §924(e). We stated
in United States v. Waters, 823 F.3d 1062, 1066 (7th
Cir. 2016), that administering poison or withholding medicine
entails the use of force; that's equally true of the many
other ways one can commit murder. Accord, In re
Irby, 858 F.3d 231, 236 (4th Cir. 2017).
the felony-murder doctrine, which Hill says takes the crime
of murder outside §924(e): The proper treatment of
felony murder is the same as that of attempted murder. As
long as the completed crime of murder has as an element the
actual or attempted use of violence against the person of
another, a state rule making a person accountable for the
substantive crime must be treated as equivalent to the