Friday, August 25, 2017

Illinois Aggravated Battery with a Deadly Weapon is Crime of Violence

United States v. Reyes, No. 16-40241, — F.3d —, 2017 WL 3262281 (5th Cir. Aug. 1, 2017) (Reavley, Southwick; Southwick concurring; Owen dissenting)

The Court held that Illinois’s aggravated battery statute (720 Ill. Comp. Stat. § 5/12-3.05) is divisible, and that subsection (f)(1) (aggravated battery based on the use of a deadly weapon) is a crime of violence under the elements clause of guideline §2L1.2. Interesting is the Court’s disagreement over how to determine whether the statute identified elements or means.

Writing for the majority, Judge Reavley begins by acknowledging that Mathis required the Court to revisit United States v. Velasco, 465 F.3d 633 (5th Cir. 2006), to determine whether that case’s “implicit” holding—that the statute was divisible—retained vitality.

The majority held that the entirety of the statute is divisible, relying on a decision from the Illinois Supreme Court, People v. Cherry 63 N.E.3d 871 (Ill. 2016). It then addressed whether subsection (f), aggravated battery based on the use of a deadly weapon, listed means or elements. The Court noted that it could find no Illinois case that answered that question. It instead relied on dicta in Cherry that discussed aggravated battery with a firearm as a separate offense from aggravated battery. It found additional support by looking to another statute, Illinois’ Murderer and Violent Offender Against Youth Registration Act, which included § 5/12-3.05(f)(1) as a “violent offense against youth,” but not the remaining subsections, § 5/12-3.05(f)(2)–(4).

Judge Southwick concurred with the decision to affirm the sentence, but not that Cherry clearly resolved the issue.  Judge Southwick pointed to Illinois case law that suggests that the use of the term “element” in Cherry might not have the same meaning as what the Supreme Court intended in Mathis. Notwithstanding Cherry’s lack of clarity, Judge Southwick pointed to the “widely different crimes” described in the statute, as well as different classifications for some aggravated-battery provisions, which suggest that the subsection identified separate offenses rather than “means.”
Judge Owen’s lengthy dissent points to People v. Diaz, 614 N.E.2d 268, 270–71 (Ill. App. Ct. 1993), People v. Smith, 906 N.E.2d 1192 (Ill. App. Ct. 2007), and Illinois’s pattern jury instructions to reflect that jury unanimity is not required on which particular way a defendant committed aggravated battery. The statute, according to Judge Owen, is indivisible.

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