from the United States District Court for the Southern
District of Texas
REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
REAVLEY, CIRCUIT JUDGE
Court implicitly held in United States v. Velasco,
465 F.3d 633 (5th Cir. 2006), that the Illinois aggravated
battery statute is divisible-meaning that if a defendant has
a prior conviction under that statute and a sentencing court
must determine whether this prior conviction qualifies for a
sentencing enhancement, the court should look to certain
records of conviction to identify the particular offense of
which the defendant had been convicted. Applying Mathis
v. United States, 136 S.Ct. 2243 (2016), we must decide
whether that holding retains vitality. We find that it does.
of only a few facts is necessary. In April of 2015, defendant
Osman Rutilio Reyes was convicted of aggravated battery under
Illinois' aggravated battery statute, 720 Ill. Comp.
Stat. Ann. § 5/12-3.05. More specifically, he was
convicted of aggravated battery with a deadly weapon under
Section 5/12-3.05(f)(1). Reyes was deported in May of that
year. By August, he was back in the country. Immigration and
Customs Enforcement agents apprehended him in Texas, and he
pleaded guilty to violating 8 U.S.C. § 1326.
district court found that Reyes' prior conviction
qualified as a crime of violence for purposes of the United
States Sentencing Guidelines and imposed a 16-level
sentencing enhancement when calculating the applicable
Guidelines range. See USSG §
2L1.2(b)(1)(A)(ii). This ruling was required by
Velasco, which had held that a conviction under the
Illinois aggravated battery statute for aggravated battery
based on the use of a deadly weapon necessarily involved
"the use of force" and therefore categorically
qualified as a crime of violence. 465 F.3d at 638-40 (citing
720 Ill. Comp. Stat. 5/12-4(b)(1)). The opinion also
recognized that when Illinois' aggravated battery statute
cannot be "pare[d] down, " a conviction under the
statute will not categorically qualify as a crime of
violence because the "statute provides for the
commission of the offense of aggravated battery in a number
of different ways, some of which do not require the use of
physical force against a person." Id. at 639
(quoting United States v. Aguilar-Delgado, 120
F.App'x 522, 523 (5th Cir. 2004)).
Velasco foreclosed his argument, Reyes duly objected
to a crime-of-violence sentencing enhancement on the grounds
that the Illinois aggravated battery statute is indivisible.
As that very case shows, a finding of indivisibility would
establish the sentencing enhancement's impropriety.
See Velasco, 465 F.3d at 639. On appeal, we consider
Reyes' divisibility argument in light of Mathis,
and review is de novo. See United States v.
Sam, 467 F.3d 857, 861 (5th Cir. 2006). Because Reyes is
challenging a precedent of this Court, he must show that
Mathis "unequivocally abrogated"
Velasco. United States v. Tanksley, 848
F.3d 347, 350 (5th Cir.), supplemented, 854 F.3d 284
(5th Cir. 2017). Mathis "is controlling
regarding the methodology of the modified categorical
approach, " United States v. Hinkle, 832 F.3d
569, 574 (5th Cir. 2016), so our task is to check the result
of Velasco according to the method of
Mathis, see Tanksley, 848 F.3d at 351.
broad issue in this case is whether Reyes' conviction
under the Illinois aggravated battery statute properly counts
as a crime of violence under the Guidelines. "To
determine whether a given prior conviction qualifies for a
Guidelines enhancement, courts use either (1) the categorical
approach or (2) the modified categorical approach."
United States v. Rico-Mejia, 859 F.3d 318, 322 (5th
Cir. 2017). Courts applying the categorical approach simply
"look to the elements of the offense enumerated or
defined by the Guideline section and compare those elements
to the elements of the prior offense for which the defendant
was convicted." United States v. Howell, 838
F.3d 489, 494 (5th Cir. 2016).
statutes resist this approach because they "list
elements in the alternative, and thereby define multiple
crimes." Mathis, 136 S.Ct. at 2249. When
confronted with such a statute, courts employ the modified
categorical approach and examine "a limited class of
documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of."
Id. Some statutes seem at a glance to bear this same
structure but, upon examination, merely list "various
factual means of committing a single element."
Id. When a statute lists different possible ways of
committing one crime, the modified categorical approach is
impermissible. Id. at 2251.
Illinois aggravated battery statute is lengthy and complex.
See 720 Ill. Comp. Stat. § 5/12-3.05(a)-(g).
According to the government, the statute sets forth the
necessary alternative elements that render the modified
categorical approach permissible and allow Reyes' prior
conviction to be identified as an aggravated battery
involving the use of a deadly weapon. See 720 Ill.
Comp. Stat. § 5/12-3.05(f)(1). According to Reyes, the
statute is indivisible and "overbroad" in that it
"sweeps in conduct that does not qualify as a 'crime
of violence.'" Reyes' fallback position is that
even if the aggravated battery statute can be narrowed to
Section 5/12-3.05(f), it cannot be narrowed further. In other
words, Section 5/12-3.05(f) is itself indivisible and
determining if the aggravated battery statute is divisible,
we look to its alternative components and ask "elements
or means?" Mathis, 136 S.Ct. at 2256. State law
governs this "threshold inquiry." Id.
State courts are the ideal expositors of state law, but we
may also examine the statutory text and structure or, if
necessary, "the record of a prior conviction
itself." Id. If the Illinois aggravated battery
statute lists various means of committing one aggravated
battery offense, it is indivisible. Hinkle, 832
F.3d at 575. In such a case, a jury need not agree on
how the offense was committed, and Reyes' crime
of conviction could not be narrowed to encompass any one
factual theory, no matter the actual evidence or indictment
in his case. Mathis, 136 S.Ct. at 2251. Elements, by
contrast, are those "things the 'prosecution must
prove to sustain a conviction.'" Id. at
2248 (quoting Black's Law Dictionary 634 (10th ed. 2014).
Distilled to its essence, Mathis recognizes that,
when applying a recidivism statute to a defendant's prior
convictions, each "crime of conviction" is defined
by solely by its elements. Id. at 2251. "How a
given defendant actually perpetrated the crime" is
irrelevant, "regardless of whether a statute omits or
instead specifies alternative possible means of
first consider Reyes' broad argument: that the
"aggravated battery statute contains [a] lengthy list of
ways that a person can violate the statute."
(Emphasis added (citing 720 Ill. Comp. Stat. §
5/12-3.05(a)-(g)).) Do its many subsections and their nested
paragraphs simply establish a multiplicity of ways of
committing one aggravated battery offense? No. The
Supreme Court of Illinois recently analyzed the aggravated
battery statute and held that it contained (at least) two
different crimes requiring different proofs. People
v. Cherry, 63 N.E.3d 871, 877 (Ill. 2016)
(discussing aggravated battery and aggravated battery with a
Illinois aggravated battery statute sets forth many types of
aggravated battery. It is error to analyze the statute as if
it instead establishes a basic aggravated battery offense
that is supplemented throughout the rest of the statute by
various further-aggravating circumstances. Thus, in
Cherry, the Supreme Court of Illinois rejected the
appellate court's conclusion that aggravated battery with
a firearm was merely "an enhanced version of aggravated
battery." Id. (quoting People v.
Cherry, 22 N.E.3d 1277, 1283 (Ill.App.Ct. 2014)). And it
chided the lower court for "wholly ignor[ing] the actual
elements of these offenses." Id.
[T]he statutory elements plainly demonstrate that, rather
than being an aggravated or enhanced version of
aggravated battery, aggravated battery with a
firearm is, like aggravated battery itself, an aggravated or
enhanced version of battery. The aggravated battery
and aggravated battery with a firearm statutes share an
identical structure. Both offenses require the State to prove
the commission of a battery, and both offenses require the
State to prove the presence of an additional factor
aggravating that battery.
Id. (emphases added).
thus forecloses Reyes' argument that the entirety of the
aggravated battery statute is indivisible. Accordingly, our
focus shifts to one particular subsection, Section
5/12-3.05(f). Reyes' "crime of
conviction" for purposes of Mathis is either a
Section 5/12-3.05(f) violation (aggravated
battery based on the use of a weapon or device)
or a 5/12-3.05(f)(1) violation (aggravated
battery involving the use of a deadly weapon).
See 136 S.Ct. at 2251.
entirety, subsection (f) reads as follows:
Offense based on use of a weapon or device. A person commits
aggravated battery when, in committing a battery, he or she
does any of the following:
(1) Uses a deadly weapon other than by discharge of a
firearm, or uses an air rifle as defined in Section 24.8-0.1
of this Code.
(2) Wears a hood, robe, or mask to conceal his or her
(3) Knowingly and without lawful justification shines or
flashes a laser gunsight or other laser device attached to a
firearm, or used in concert with a firearm, so that the laser
beam strikes upon or against the person of another.
(4) Knowingly video or audio records the offense with the
intent to disseminate the recording.
720 Ill. Comp. Stat. Ann. 5/12-3.05(f).
be seen from the statute, if Reyes' crime of conviction
is aggravated battery based on the use of a weapon or
device, then the conviction would not categorically
qualify as a crime of violence under the Guidelines; the
conviction could be based on wearing a hood while committing
a non-violent battery, for instance. But if the crime of
conviction is aggravated battery involving the use of a
deadly weapon it categorically qualifies as a crime of
violence under the Guidelines. United States v.
Sanchez-Sanchez, 779 F.3d 300, 305 (5th Cir. 2015). We
must determine the nature of Section 5/12-3.05(f).
Do paragraphs (1) through (4) itemize means of
committing a single crime, or do paragraphs (1) through (4)
represent distinct crimes with distinct elements?
See Hinkle, 832 F.3d at 575.
aware of no Illinois case describing aggravated battery
based on the use of a weapon or device as a unitary
offense, which offense may be proven by showing that Section
5/12-3.05(f) was violated in any one of four ways enumerated
in paragraphs (1) through (4) of that subsection. Compare
Mathis, 136 S.Ct. at 2256 (finding the Iowa burglary
statute indivisible because of a state supreme court holding
that "[t]he listed premises in Iowa's burglary law .
. . are 'alternative method[s]' of committing one
offense, so that a jury need not agree whether the burgled
location was a building, other structure, or vehicle"
(quoting State v. Duncan, 312 N.W.2d 519');">312 N.W.2d 519, 523 (Iowa
1981))). But nor can we find cases holding that Section
5/12-3.05(f) describes four different crimes with four
distinct sets of elements. Compare United States v.
Uribe, 838 F.3d 667, 670 (5th Cir. 2016) (holding that
the Texas burglary statute, which describes three forms of
burglary, is divisible because the Texas Court of Criminal
Appeals had previously held that each "type" of
burglary had its own set of elements (citing Day v.
State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975))).
are cases, however, that answer the precise question
necessary to resolve this case: whether Section
5/12-3.05(f)(1) is a distinct crime (aggravated battery
involving the use of a deadly weapon) that includes, as
an element, use of a deadly weapon in the commission of a
battery. We return to Cherry, where Illinois'
high court said exactly this. There, the court used a
wide-ranging discussion of the Illinois aggravated battery
statute to explain its ultimate holding-that aggravated
battery with a firearm is a separate offense from aggravated
battery. In the process, it asked the reader to consider the
example of aggravated battery "involving the use of a
deadly weapon other than a firearm." Cherry, 63
N.E.3d at 877. To "prove" this "offense,
" the court said, "the State must prove that the
defendant: 'in committing a battery, used a deadly weapon
other than by the discharge of a firearm.'"
Id. (quoting 720 Ill. Comp. Stat. Ann. 5/12-4(b)(1))
(cleaned up). Thus, aggravated battery involving the use
of a deadly weapon is not a way of committing
aggravated battery or even aggravated battery
based on the use of a weapon or device; it is a distinct
offense requiring proof of the use of a deadly weapon. And
there is no shortage of consistent Illinois
decisions. There is also an abundance of cases
that do not address the issue but demonstrate that defendants
accused of violating 5/12-3.05(f)(1) are charged
with and convicted of violating
5/12-3.05(f)(1). Any purported Illinois crime known
as aggravated battery based on the use of a weapon or
device is a chimera; the crime of aggravated battery
involving the use of a deadly weapon is routinely
charged and proven.
true that Cherry's discussion of Section
5/12-3.05(f)(1) is dicta. We follow it for several reasons.
First, a federal court tasked with interpreting state law
must give state supreme court dicta great
weight. Avakian v. Citibank, N.A.,
773 F.3d 647, 651-52 (5th Cir. 2014). Second, the statements
in Cherry follow from its parsing of the relevant
statutory language. Velasco reached the same result
based on a similar parsing, 465 F.3d at 639-40, and
Mathis endorses examinations of the statutory text
when no state supreme court decision provides a definitive
answer, 136 S.Ct. at 2256. Third, under Illinois'
Murderer and Violent Offender Against Youth Registration Act,
a "violation or attempted violation" of Section
5/12-3.05(f)(1) can constitute a "violent offense
against youth, " but subsections 5/12-3.05(f)(2)-(4) are
not listed as qualifying offenses. 730 Ill. Comp. Stat. Ann.
154/5(b)(4.4). This works only if Section 12-3.05(f)(1)
describes a discrete offense.
Dissent announces it has found a Mathis-approved
state court decision that conclusively resolves the question,
People v. Diaz, 614 N.E.2d 268 (Ill.App.Ct. 1993).
But Diaz turns out to be (1) Illinois law on the
permissibility of general verdicts where a defendant is
charged with multiple and distinct offenses, and is unrelated
to the present case where conviction matches the crime
charged and satisfies federal sentencing requirements; (2) a
mere intermediate state court opinion, (3) a case that did
not consider the statute before us and was in fact decided
before both Section 12-3.05 and its predecessor statute
(discussed in Cherry) were ever enacted, and (4) a
case simply not involving statutory language, design, or
meaning. Inasmuch as Diaz does not address Section
12-3.05(f) and therefore could not have possibly determined
its divisibility, it is legally off-topic. Inasmuch as it
deals with a situation where the prosecution seeks to convict
under two different "definitions" of aggravated
battery, it is factually inapt. But even if we overlook all
of this and proceed as if Diaz muddled the picture,
a return to our Mathis-mandated order of operations
confirms our conclusion that Reyes' prior conviction
qualifies as a crime of violence.
plainly does not "definitively answer the
question" before us. Mathis, 136 S.Ct. at 2256.
Accordingly, if the Dissent is not convinced by
Cherry (and the host of intermediate appellate court
decisions we have cited that do involve the relevant
statute), it should next examine the statutory text-which, as
we have noted, Cherry does. Id. And if
there is still no good answer, "federal judges have
another place to look: the record of a prior conviction
itself." Id. At this third Mathis
step, courts utilize record documents as an aid in
determining a statute's divisibility. See id. at
2257 n. 7 ("[W]hen state law does not resolve the
means-or-elements question, courts should 'resort[ ] to
the [record] documents' for help in making that
determination.'" (quoting Descamps v. United
States, 133 S.Ct. 2276, 2285 n.2 (2013)) (alterations in
indictment can resolve the elements-means question "by
referencing one alternative term to the exclusion of all
others, " thereby indicating "that the statute
contains a list of elements, each one of which goes toward a
separate crime." Id. Here, Reyes'
indictment is in the record. In Count 1-the count to which he
pleaded guilty-Reyes was charged with "committing a
battery . . . by use of a deadly weapon" and, more
specifically still, with "a violation of 720 ILCS
5/12-3.05(f)(1)." There is no mention of Section
12-3.05(f)'s remaining provisions. This "peek"
at the indictment was not necessary to determine Section
12-3.05(f) is divisible. But it demonstrates that
Diaz has no application. "As was charged in
this case, a person commits aggravated battery when he
intentionally or knowingly without legal justification uses a
deadly weapon other than a firearm to cause bodily harm to an
individual." Marston, 818 N.E.2d at 1267
was charged and convicted of violating Section
5/12-3.05(f)(1). Aggravated battery involving use of a deadly
weapon under Section 5/12-3.05(f)(1) is a discrete offense
requiring proof of the use of a deadly weapon. It has been
established, categorically, that the offense of which he was
convicted represents a crime of violence under the
Guidelines. The district court did not err in following
Velasco and applying the crime-of-violence
aggravated battery statute is complex and has many parts. We
have held that its Section 5/12-3.05(f) is divisible and that
a conviction under Section 5/12-3.05(f)(1) requires proof of
the use of a deadly weapon. We have no occasion to examine
the statute further. Mathis did not abrogate
Velasco, and the sentence is AFFIRMED.
H. SOUTHWICK, Circuit Judge, concurring:
concur in the decision to affirm the sentence. Where I depart
from Judge Reavley is that I do not conclude that the
Illinois Supreme Court clearly resolved our issue in
People v. Cherry, 63 N.E.3d 871 (Ill. 2016). As a
result, I find it necessary to look elsewhere to be sure this
statute is divisible.
held that aggravated battery "involving the use of a
deadly weapon other than a firearm" requires the State
to "prove" a defendant used "a deadly weapon
other than by the discharge of a firearm[.]"
Id. at 877 (quoting 720 Ill. Comp. Stat. §
5/12-4(b)(1) (West 2010)). The court referred to the use of a
deadly weapon other than by discharge of a firearm as an
"element" that "serve[s] to aggravate [the]
battery." Id. at 878. What concerns me is that
there is Illinois caselaw that suggests the use of the term
"element" in Cherry might not have been
with the same meaning as the United States Supreme Court
meant in Mathis. See Mathis v. United
States, 136 S.Ct. 2243, 2256-57 (2016).
said it would discuss two "forms" of aggravated
battery under the 2010 aggravated-battery statute: (1)
causing great bodily harm under Section 5/12-4(a), and (2)
using a deadly weapon other than by discharge of a firearm
under Section 5/12-4(b)(1). See Cherry, 63 N.E.3d at
877-78. It analyzed these forms of aggravated battery in
order to determine whether aggravated battery could be the
predicate offense for another crime Cherry committed, which
was armed violence. Id. at 876-77. There is no need
to get into the nuances of that issue other than to pull a
few points from the state court's analysis. First, the
aggravated-battery statute, 2010 edition, required that a
battery be committed. That also is the case for the statute
under which Reyes was convicted. Second, the crime was
aggravated if the State could "prove the presence of an
additional factor aggravating that battery."
Id. at 877.
course of its analysis, the Cherry court said that
"[t]he aggravated battery and aggravated battery with a
firearm statutes share an identical structure. Both offenses
require the State to prove the commission of a battery, and
both offenses require the State to prove the presence of an
additional factor aggravating that battery."
Id. The court did not have before it the issue of
whether jurors would need to be unanimous regarding any one
form of aggravated battery.
uncertainties partly arise from an earlier Illinois
intermediate appellate court decision. See People v.
Diaz, 614 N.E.2d 268 (Ill.App.Ct. 1993). The
Diaz court dealt with jury unanimity, which in
substance is our issue. Jurors were given a verdict form
which provided they could find Diaz guilty of aggravated
battery if he " intentionally and knowingly caused
great bodily harm . . . or . . .  knowingly and
intentionally caused bodily harm . . . and used a deadly
weapon." Id. at 270. The offenses the
Diaz court considered on the issue of juror
unanimity are quite similar to the offenses the
Cherry court considered on an unrelated issue of
defendant in Diaz argued that the general verdict
form was fatally flawed because the jury did not need to be
unanimous regarding the two theories of aggravated battery.
Id. The court disagreed, holding the jury needed to
be unanimous regarding the defendant's guilt of the crime
charged, not the "'alternate ways in which the crime
can be committed[.]'" Id. at 271 (quoting
People v. Travis, 525 N.E.2d 1137, 1147 (Ill.App.Ct.
1988)). That would indicate at least some of the aggravating
factors in the aggravated battery statute are means, not
are Illinois Supreme Court decisions that, like
Diaz, fully embrace general verdicts for offenses
that can be committed in disparate ways, a fact recognized in
the court's approved pattern jury
instructions. We read too much into Cherry
to conclude it definitely meant "elements" in the
Mathis-sense when that was not the court's
must be viewed for what it is: an earlier decision of an
intermediate court dealing with an earlier aggravated-battery
statute. Even so, because the opinions were discussing
different legal issues, I do not believe the Diaz
decision which indicates the two forms of battery it was
discussing should be considered two different means, and
Cherry which uses "elements" for quite
similar offenses, are necessarily inconsistent. Hence, my
Cherry does not discuss Diaz. It did not
need to as its issue was different. Perhaps Cherry
implies that, if put to the test, the Illinois Supreme Court
would hold that the forms of aggravated battery under Section
5/12-3.05(f)(1)-(4) contain separate Mathis
elements. We have considered cases before that imply
divisibility. See, e.g., United States v.
Mendez-Henriquez, 847 F.3d 214, 219 (5th Cir. 2017). The
implication is strengthened when we see that the
Diaz court recognized there are "due process
limitations on a 'State's capacity to define
different courses of conduct, or states of mind, as merely
alternative means of committing a single
offense[.]'" Diaz, 614 N.E.2d at 272
(quoting Schad v. Arizona, 501 U.S. 624, 632
(1991)). The variation among the forms of aggravated battery
in the four subparts of Subsection (f) are quite different
from each other, except for the two (Subparts (1) and (3))
that both deal with the use of a deadly weapon.
that said, I see Judge Reavley's interpretation of
Cherry just to be one possible view. Our task
certainly does not end, though, even if Cherry does
not provide clear answers. See Mathis, 136 S.Ct. at
2256-57. We can also examine whether "the statute on its
face" resolves the issue, as Judge Reavley notes.
Id. at 2256. The section of the Illinois statute at
issue here does not seem to be providing "illustrative
examples" but instead identifying widely different
crimes, suggesting "elements." See id.
Further, looking at the entire statute, the final Subsection
(h) specifies different classifications for some but not all
of the specific aggravated-battery provisions, which leads to
different sentences. See 720 Ill. Comp. Stat. §
5/12-3.05(h). The provision at issue in our case is not
identified in Subsection (h) as having a specific sentence
range, but this part of the statute provides some evidence
regarding the entire statute. When "statutory
alternatives carry different punishments, then under
Apprendi they must be elements."
Mathis, 136 S.Ct. at 2256.
the evidence points towards the subparts of Subsection (f)
containing different elements. Still, if doubt remains, we
examine "the record of a prior conviction itself."
Id. In one case where "state law [did] not give
us a clear answer" on this issue, we held the statute
was divisible because the defendant "actually pleaded
guilty" to a specific element, and the documents in the
record made clear that the statute set forth elements.
Ibanez-Beltran v. Lynch, 858 F.3d 294, 298 (5th Cir.
2017). In another case, we first took note of one state court
decision that "implie[d] the statute list[ed]
alternative elements, " but turned to the record of
conviction because that case was not dispositive. See
Mendez-Henriquez, 847 F.3d at 219. Because the defendant
was charged with one element to the exclusion of all others,
we held that "the statute enumerates alternative
elements for committing a felony[.]" Id.
record contains a copy of Reyes's indictment. He was
charged with a violation of Section 5/12-3.05(f)(1). The
indictment said a dangerous weapon was used, specifically a
machete. It contained no citation to or inclusion of language
from any other subpart, i.e., no reference to hoods
or robes or ...