Case Information
*1 Before W OOD , Chief Judge , K ANNE and R OVNER , Cir cuit Judges .
R OVNER Circuit Judge
. Defendant Randall Jennings pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). At sentencing, the district court found that Jennings’ prior convictions in Minnesota for simple rob- bery and felony domestic assault constituted convictions for crimes of violence for purposes of the Armed Career Crimi- nal Act (“ACCA”), 18 U.S.C. § 924(e), and the parallel provi- sion of the Sentencing Guidelines. Consequently, Jennings was subject to a 15-year statutory minimum prison term along with an enhanced Guidelines offense level and crimi- nal history categorization. Jennings appeals, contending that neither simple robbery nor domestic assault, as Minnesota defines those crimes, qualify as a crime of violence. We af- firm.
I. On August 22, 2015, an individual attempted to purchase prescription Klonopin pills from Jennings in Hudson, Wis- consin. The transaction went awry for the purchaser when Jennings put a gun to his head and Jennings’ girlfriend pro- ceeded to steal his money from his truck. After the victim reported the robbery, local police stopped Jennings’ car. Nearby, police found a loaded semi-automatic Ruger hand- gun that Jennings’ girlfriend had thrown from his vehicle shortly before he was pulled over. Jennings was arrested and indicted for possessing a firearm following a felony convic- tion, in violation of section 922(g)(1). He eventually pleaded guilty to that charge.
As relevant here, Jennings’ criminal history included a prior conviction in Minnesota for simple robbery along with two additional convictions in that same state for felony do- mestic assault. The probation officer’s pre-sentence report (both original and as amended) treated those convictions as crimes of violence for purposes of the armed career criminal provisions of the Criminal Code and the Sentencing Guide- lines. § 924(e); U.S.S.G. § 4B1.4. Jennings objected to the characterization of these offenses, contending that, as de- fined by Minnesota law, they do not categorically involve the use or threatened use of violent physical force and for that reason do not qualify as violent felonies. See Curtis John- son v. United States , 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010). The district court, relying on our decisions in United States v. Maxwell , 823 F.3d 1057 (7th Cir.), cert. denied , 137 S. Ct. 401 (2016) (Minnesota simple robbery), and United States v. Yang , 799 F.3d 750 (7th Cir. 2015) (Minnesota felony domestic violence), overruled Jennings’ objections. After so- liciting supplemental briefing, the court found that Jennings’ two Minnesota convictions for making terroristic threats also constituted convictions for a violent crime—meaning that Jennings had a total of five such prior convictions. R. 31. Designation as an armed career criminal had a triple impact on Jennings’ sentencing range: (1) pursuant to section 924(e), Jennings was subject to a statutory minimum term of 15 years; (2) coupled with Jennings’ use of a weapon in robbing his prescription pill customer, it boosted his Guidelines base offense level to 34, see U.S.S.G. § 4B1.4(b)(3)(A); and (3) again in combination with his use of the gun to commit a robbery, it pushed him into the uppermost criminal history category of VI, see U.S.S.G. § 4B1.4(c)(2). After a 3-level reduction in the offense level for Jennings’ acceptance of responsibility, see U.S.S.G. § 3E1.1(b), the Guidelines called for a sentence in the range of 188 to 235 months. The district court elected to impose a below-Guidelines sentence of 180 months, the low- est sentence that the ACCA permitted him to impose. Jen- nings appeals the treatment of his prior convictions as crimes of violence.
II. Whether any of Jennings’ prior convictions qualify as crimes of violence, and in sufficient number to trigger the statutory and Guidelines enhancements for career offenders, present legal questions as to which our review is de novo. E.g. United States v. Meherg , 714 F.3d 457, 458 (7th Cir. 2013).
Our focus shall be on Jennings’ prior convictions for sim- ple robbery and felony domestic violence. The district court relied in part on Jennings’ prior convictions under the Min- nesota terroristic threat statute, Minn. Stat. § 609.713, subd. 1, in concluding that Jennings is a career offender. But the court’s rationale in that regard was premised on the notion that the Minnesota statute is divisible as to the type of crime the defendant threatens to commit in order to terrorize his victims, rendering it permissible, using a modified categori- cal approach, to examine the so-called Shepard documents ( e.g. , the indictment, plea agreement, and plea colloquy) in order to determine whether the particular crime Jennings had threatened to commit involves the threatened, attempt- ed, or actual use of physical force. R. 31 at 2–3; see Shepard v. United States , 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005) . However, the government believes that the Supreme Court’s decision in Mathis v. United States , 136 S. Ct. 2243, 2256 (2016) (if listed components of alternatively phrased criminal stat- ute are means rather than elements, modified categorical approach not permitted), forecloses the district court’s premise as to the divisibility of the statute. As the govern- ment does not defend the career criminal determination on the basis of these convictions, we shall abstain from any analysis of them and turn to Jennings’ convictions for rob- bery and domestic violence.
The ACCA, in relevant part, specifies that a person con- victed of being a felon in possession of a firearm pursuant to section 922(g) shall be sentenced to a prison term of not less than 15 years if he has three prior convictions “for a violent felony or a serious drug offense, or both, committed on occa- sions different from one another.” § 924(e)(1). The “violent felony” provision is the one that is relevant here. The statute defines “violent felony” to include any felony that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burgla- ‐ ry, arson, or extortion, [or] involves use of explosives[.]” § 924(e)(2)(B). None of Jennings’ prior offenses are among those identified in the enumerated crimes-clause of the stat- ute, § 924(e)(2)(B)(ii), so only if they satisfy the force clause, § 924(e)(2)(B)(i) can they qualify as violent felonies.
The armed career criminal guideline specifies an elevated offense level of 34 and a criminal history category of VI for a defendant who is subject to an enhanced statutory minimum sentence pursuant to section 924(e) and whose underlying offense involved the use or possession of a firearm in con- nection with (as relevant here) a crime of violence. U.S.S.G. § 4B1.4(b)(3)(A) and (c)(2). The guideline’s definition of “crime of violence” includes a force clause that is identical to the force clause of section 924(e), see U.S.S.G. § 4B1.2(a)(1), cross referenced § 4B1.4(b)(3)(A), and consequently the analysis as to whether a particular conviction constitutes a crime of violence because it has as an element the use of force is the same whether we are applying the guideline or the ACCA. , e.g. , United States v. Wyatt , 672 F.3d 519, 521 (7th Cir. 2012).
Our assessment of the two state offenses at issue in this appeal entails a categorical inquiry. The facts underlying Jennings’ prior convictions are irrelevant to our evaluation; our one and only consideration is whether each of the stat- utes pursuant to which Jennings was convicted has as an el- ement the use, attempted use, or threatened use of physical force against the person of another. See Taylor v. United States , 495 U.S. 575, 600–02, 110 S. Ct. 2143, 2159–60 (1990); United States v. Maxwell , supra , 823 F.3d at 1060–61.
Curtis Johnson v. United States , supra , 559 U.S. at 140, 130 S. Ct. at 1271, defines “physical force” to mean “violent force,” in other words, “force capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130 S. Ct. at 1271 (emphasis in original). The mere touching of another person, which is all the force that the prior state conviction at issue in Curtis Johnson required, is not sufficient to satisfy the ACCA. Id. at 139, 130 S. Ct. at 1270. Curtis Johnson thus re- quires us to consider whether the Minnesota statutes under which Jennings was convicted categorically require the use or threatened use of violent physical force as that case de- fines it.
A. We begin with the offense of simple robbery. Minn. Stat. § 609.24 provides that “[w]hoever, having knowledge of not being entitled thereto, takes personal property from the per- son or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery … .” Our decision in Maxwell recognized that under Minnesota law, fifth-degree assault is a lesser in- cluded offense of simple robbery. 823 F.3d at 1061 (citing State v. Stanifer , 382 N.W.2d 213, 220 (Minn. Ct. App. 1986)). The Minnesota criminal code defines fifth-degree assault as an act committed with “intent to cause fear in another of immediate bodily harm or death” or “intent[ ] [to] inflict[ ] or attempt[ ] to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1; see Maxwell , 823 F.3d at 1061. “Bodily harm” is in turn defined as “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7. In short, in order to commit simple robbery in Minnesota, one must intentionally inflict, or attempt to inflict, physical pain or injury upon another or must act in such a way as to place a person in fear of physical injury, pain, or death. For that reason, Maxwell rejected an argument that it might be possible to commit simple robbery in Minne- sota by means of mental force, which (Maxwell believed) would not meet Curtis Johnson ’s requirement that violent physical force be used before an offense can be labeled a crime of violence. 823 F.3d at 1061. See also United States v. Raymond , 778 F.3d 716, 717 (8th Cir. 2015) (per curiam); Unit- ed States v. Samuel Johnson , 526 F. App’x 708, 711 (8th Cir. 2013) (non-precedential decision), j. rev’d on other grounds , 135 S. Ct. 2551 (2015).
Jennings urges us to overrule Maxwell , arguing that we overlooked a parallel line of Minnesota cases that, in contrast to Stanifer , appears not to require the use or threatened use of substantial physical force. He notes that in State v. Burrell , 506 N.W.2d 34 (Minn. Ct. App. 1993), the Minnesota Court of Appeals said that “[m]ere force suffices for the simple robbery statute,” id. at 37, and Jennings equates “mere force” with de minimis force that would neither inflict pain or inju- ry nor instill fear of pain or injury. By way of illustration, he highlights a series of cases in which Minnesota courts have expressly found relatively modest physical contact with or injury to a victim sufficient to satisfy the force element of robbery. State v. Slaughter , 691 N.W.2d 70, 76 (Minn. 2005) (snatching chains from victim’s neck, leaving scratch- es); State v. Nelson , 297 N.W.2d 285 (Minn. 1980) (per curiam) (jostling and grabbing victim and pulling on his jacket); Du- luth St. Ry. Co. v. Fidelity & Deposit Co. of Md. , 161 N.W. 595 (Minn. 1917) (“gentle but firm” crowding of victim inside of elevator).
This line of argument has divided judges in the District of Minnesota. Compare United States v. Pettis , 2016 WL 5107035, at *3 (D. Minn. Sept. 19, 2016) (holding simple rob- bery not a crime of violence), appeal filed , No. 16-3988 (8th Cir. Oct. 20, 2016), with United States v. Willis , 2017 WL 1288362, at *3 & n.3 (D. Minn. April 6, 2017) (holding simple robbery does constitute crime of violence); United States v. Taylor , 2017 WL 506253, at *5–*7 (D. Minn. Feb. 7, 2017) (same), appeal filed , No. 17-1760 (8th Cir. April 10, 2017); United States v. Pankey , 2017 WL 1034581, at *3 n.2 (D. Minn. Mar. 16, 2017) (same). See also Ward v. United States , 2017 WL 2216394, at *5–*7 (D. Id. May 18, 2017) (deeming Minnesota simple robbery to be crime of violence). But we are not per- suaded by Jennings’ argument.
First, as the government rightly points out, Burrell ’s use of the phrase “mere force” does not signal that de minimis force is sufficient to satisfy the force element of simple rob- bery. Burrell used that phrase to distinguish aggravated rob- bery, Minn. Stat. § 609.245, from simple robbery, § 609.24. The defendant in that case argued that the two statutes over- lapped impermissibly and that, on the facts, either could control, such that his conviction should be reduced to the lesser of the two offenses. The court rejected that argument, reasoning that the statutes described distinct crimes. 506 N.W.2d at 37. Aggravated robbery, the court pointed out, requires that the victim suffer an injury by virtue of the de- fendant’s use of force, whereas simple robbery is satisfied by the use or threat of force, without more. Id. That is what the court meant by “mere force.” The defendant in Burrell did not contend that the particular degree of force he used in carrying away a store owner’s property (he threw the store owner against a car, bit her wrist, punched her in the face, and knocked her to the ground) was insufficient to sustain his convictions.
Second, neither of the two additional cases that Jennings and other defendants point to as confirmation that de mini- mis force is sufficient to sustain a conviction for simple rob- bery in Minnesota— Nelson or Duluth St. Ry. —really stands for that proposition at all.
In Nelson , the defendant and his accomplice, both adults, set out to rob a 13-year-old boy they saw alighting from a bus because he appeared to have “lots of money.” Having resolved to “get[ ]” the boy, they proceeded to follow, “jos- tle[ ]” and “grab[ ]” him. As the defendant pulled on the vic- tim’s jacket, the boy managed to slip out of it and run to his family’s nearby restaurant for help. The boy’s father later came upon the two perpetrators going through the pockets of the jacket. In appealing his conviction for simple robbery, the defendant argued that the jury should have been in- structed on the lesser included offenses of misdemeanor and felony theft, because his use of force was so minimal as to negate the notion that his victim had acquiesced to that force. The Minnesota Supreme Court wasted few words on this argument, agreeing with the trial court that “ there was no rational basis finding defendant’s use force did not cause the victim to acquiesce the taking the property.” N.W.2d 286.
What is apparent from facts Nelson is the de fendant his accomplice intended employ substantial order relieve minor money; defendant’s act pulling on victim’s jacket but one manifestation intent. As it happened, one tug jacket pre terminated encounter, because it gave ‐ young victim opportunity escape his assailants and seek help. It is fair, and perhaps inevitable, inference boy ran from his assailants in fear his safety, sacrific ing his jacket (which defendant admitted was not what he and accomplice were after) order avoid pain and/or injury. As district court Taylor put it, “The Nelson more than de minimis; two adults pursing year old with intention ‘getting him,’ following him grabbing him, constitutes force—and surely threat force—capable causing pain, if not also injury.” WL *5.
Duluth St. Ry. is barely relevant, let alone instructive. The issue in that civil case was whether an insurance policy’s coverage as to robbery included pickpocketing. Thieves had exerted “gentle but firm” pressure to “crowd” (i.e., closely surround) the insured on an elevator, and then surrepti- tiously took from his coat pocket an envelope containing $1,600 in cash. The insured contended that this qualified as robbery under the policy, given that force was used to effec- tuate the theft—albeit not to overcome the victim’s re- sistance, but rather to distract the victim so that his pocket could be picked surreptitiously. The insurance company, by contrast, contended that coverage was limited to instances in which force was used to overcome a victim’s resistance. The court agreed with the insured, reasoning in essence that a theft amounts to robbery when it is accomplished by any degree of force, whether said force is used to overcome a vic- tim’s resistance or to prevent the victim from realizing his property has been taken from him. Id. at 301–02. But the court was construing the policy terms rather than the Min- nesota criminal code, and for guidance the court consulted the common law (citing precedents from multiple states) ra- ther than the current Minnesota robbery statute, which ‐ would not be enacted for another 46 years. In ruling for the insured, the court also construed the policy against the in- surance company (which had authored its terms) and in fa- vor of the insured. Id. at 302. The case has no bearing on what constitutes simple robbery under the current Minneso- ta statute. See Ward v. United States , supra , 2017 WL 2216394, at *5; Taylor , 2017 WL 506253, at *5.
It is true enough, however, that contemporary Minnesota cases do sustain robbery convictions based on the use (or threatened use) of relatively limited force or infliction of mi- nor injuries. See Slaughter , 691 N.W.2d at 72, 76 (snatching gold chains from victim’s neck, leaving scratches: “these scratches provide sufficient evidence of the ‘use of force’ necessary to sustain a conviction of simple robbery”); State v. Nash , 339 N.W.2d 554, 557 (Minn. 1983) (“if a defendant pushes a victim against a wall and takes his wallet, then the defendant has committed robbery, not theft from the per- son”) (citing Minn. Stat. § 609.24, advisory committee com- ment (1963)); State v. Kvale , 302 N.W.2d 650, 652-53 (Minn. 1981) (running up to and pounding on window of victim’s car); State v. Oksanen , 249 N.W.2d 464, 466 (Minn. 1977) (per curiam) (grabbing and pushing victim, causing him to fall); State v. Gaiovnik , 2010 WL 1439156, at *4 (Minn. Ct. App. April 13, 2010) (non-precedential decision) (“grabbing or yanking [the victim’s] arm and pulling on it when she resist- ed him taking her purse”), j. aff’d , 794 N.W.2d 643 (Minn. 2011); State v. Taylor , 427 N.W.2d 1, 4 (Minn. Ct App. 1988) (placing hand under shirt, as if holding gun, and telling con- venience store occupants to get down on floor). These in- stances of force might result in minor injuries, such as scratches or reddened skin, or none at all. Jennings com- plains that if the relatively minor manifestations of force in- volved in these cases are deemed to constitute violent force for purposes of section 924(e), then any manner of quotidian physical force—kicks, scratches, shoves, and slaps—will also qualify, which in his view is contrary to Curtis Johnson ’s con- clusion that “physical force” connotes strong, i.e. “ violent force.” 559 U.S. at 140, 130 S. Ct. at 1271 (emphasis in origi- nal). See Pettis , supra , 2016 WL 5107135, at *3 (“Minnesota’s simple-robbery statute … does not require the government to prove that the defendant used a strong, substantial, or vio- lent degree of force.”) (emphasis ours).
But in suggesting that the force employed must be of such a degree as to cause (or threaten) more serious injuries in order to qualify as violent force, Jennings is setting the bar higher than Curtis Johnson itself does. Curtis Johnson held that force sufficient to cause physical pain or harm qualifies as violent force. 559 U.S. at 140–41, 130 S. Ct. at 1271. Any number of physical acts may cause physical pain: C urtis itself suggested that a slap in the face might suffice. 559 U.S. at 143, 130 S. Ct. at 1272. Similarly, any number of forceful acts beyond simple touching may in context suffice to inflict bodily harm upon a victim (or instill fear of such harm). Such acts qualify as violent force in the sense that they have the capacity to inflict physical pain, if not concrete physical injury, upon the victim. Justice Scalia’s concurrence in United States v. Castleman , 134 S. Ct. 1405 (2014), thus makes the point that physical actions such as hitting, slap- ping, shoving, grabbing, pinching, biting, and hair-pulling all qualify as violent force under Curtis Johnson : “None of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” Id. at 1421 (Scalia, J., concurring in part and concurring in the judgment). Because he was the author of the majority opinion in Curtis Johnson , courts have treated his concurrence on this point as more authoritative than it otherwise might be. See United States v. Harris , 844 F.3d 1260, 1265 (10th Cir. 2017), pet’n for cert. filed , No. 16-8616 (U.S. April 4, 2017); United States v. Hill , 832 F.3d 135, 142 (2d Cir. 2016); United States v. Rice , 813 F.3d 704, 706 (8th Cir.), cert. denied , 137 S. Ct. 59 (2016); Taylor , supra , 2017 WL 506253, at *2.
For all of these reasons, we remain convinced that Max- well was correctly decided, and that Minnesota simple rob- bery constitutes a crime of violence for purposes of section 924(e).
B. This brings us to Jennings’ two convictions for felony domestic assault. Minnesota law provides that an individual is guilty of misdemeanor domestic assault if he takes one of the following actions against a family member: “(1) commits an act with intent to cause fear in another of immediate bodi- ly harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another.” § 609.2242, subd. 1. The offense becomes a felony if committed “within ten years of *14 14 16 2861 the first of any combination of two or more previous quali- fied domestic violence-related offense convictions … .” § 609.2242, subd. 4. As noted above, bodily harm is defined to include “physical pain or injury, illness, or any impair- ment of physical condition.” Minn. Stat. § 609.02, subd. 7.
Having in mind that what Curtis Johnson defines as vio ‐ lent force is the use or threatened use of force “capable of causing physical pain or injury to another person,” 559 U.S. at 140, S. Ct. at 1271, one may readily conclude, we did United States v. Yang , supra , F.3d 756, a fel ‐ ony domestic assault defined by Minnesota constitutes crime of violence. The statute envisions action the de ‐ fendant either inflicts physical pain or injury on the vic ‐ tim or places the victim fear of immediate pain or injury. Id. ; s ee also Yates v. United States , F.3d 1051, (7th Cir. 2016) (criminal statute proscribing the intentional infliction of bodily harm—defined to mean physical pain or injury, illness, or any impairment of physical condition—upon victim “tracks what Curtis said would suffice: force capable of causing physical pain injury to another per son”), cert. denied , S. Ct. (2017). Jennings suggests Yang wrongly decided on two grounds, but we find neither arguments persuasive.
Jennings’ first contention is the domestic assault statute, although it requires the infliction bodily harm the victim (or instilling the fear such harm), does not re quire an act be the agent such harm. As our colleagues the First Circuit put it when confronted with comparable statutory language, “the text [of statute] … speaks ‘who’ ‘what’ offense, but not ‘how,’ other than requiring ‘intent’.” Whyte Lynch F.3d (1st Cir. 2015). Because statute does not *15 15 ‐ 2861 speak to the means of inflicting harm, Jennings believes it possible that one could commit domestic assault Minneso ‐ ta without actually employing physical force. By way of il ‐ lustration, he suggests that a parent might be guilty of do ‐ mestic assault if he inflicts harm on child by withholding food. Jennings Br. 23.
The notion that an offense cannot qualify as a violent crime unless the underlying statute expressly requires both infliction of bodily harm the employment of physical to inflict that harm is one that has found favor a number of circuits. , e.g. , Whyte , F.3d 468–69, (concluding Connecticut third ‐ degree assault does not constitute a crime of violence under U.S.C. § 16(a), be ‐ cause although relevant subsection of statute requires intentional infliction of bodily harm another person, it does not specify harm must be inflicted by way of physical force); United States v. Torres Miguel , F.3d 165, 168–69 (4th Cir. 2012) (willfully threatening to commit crime resulting death or great bodily injury to another, pro scribed by California statute, does not constitute crime of vi olence purposes of unlawful entry guideline, U.S.S.G. § 2L1.2, because statute does not require threatened use physical force); United States Villegas Hernandez F.3d (5th Cir. 2006) (assault defined by Texas penal code does not constitute crime violence under U.S.C. §16 because statute requires defendant intentionally, knowingly, or recklessly causes bodily injury another but does not require he do so means force; “[s]uch injury could result from any number acts, without use ‘destructive or violent force,’ [ e.g. ,] making available victim poisoned drink while reassuring him drink is safe, telling victim he can safely back *16 16 16 ‐ 2861 car out while knowing an approaching car driven by an independently acting third party will hit the victim”).
But this is a line of reasoning we have considered and rejected on multiple occasions. See LaGuerre v. Mukasey , 526 F.3d 1037, 1039 (7th Cir. 2008) (per curiam); United States v. Rodriguez ‐ Gomez , 608 F.3d 969, 973–74 (7th Cir. 2010); De Leon Castellanos v. Holder , 652 F.3d 762, 766–67 (7th Cir 2011); United States v. Waters , F.3d 1062, 1065 66 (7th Cir.), cert. denied , S. Ct. (2016); United States v. Bailey , — F. App’x —, WL at *1 (7th Cir. Feb. 23, 2017) (non precedential decision). These cases reason a crimi ‐ nal act (like battery) causes bodily harm to a person necessarily entails the use of physical force to produce the harm. See De Leon Castellanos , F.3d at 766; Waters , F.3d at 1065–66. Obviously this is true when the defendant inflicts the harm directly making forceful physical contact with the victim: punching or kicking him, example. Castleman , supra , S. Ct. (majority opinion). It is also true, though less obviously so, when the defendant de ‐ liberately exposes the victim a harmful agent ( e.g. , a toxin, lethal biological agent, or hidden explosive) without actually making contact with the victim’s person, let alone in a way typically thought violent. Delivering the agent (slip ‐ ping poison into the victim’s drink secreting the explosive the victim’s bag) may itself involve only a minimal degree physical force, but the proper focus here is on the physical inherent the harmful agent itself—force works direct potentially devastating harm body victim. Id. (“The ‘use force’ Castleman’s ex ample is not act ‘sprink[ling]’ poison [into vic tim’s drink]; it is act employing poison knowingly device cause harm.”); see also e.g. , United States De La *17 17 Fuente , F.3d 766, (9th Cir. 2003) (concluding that mailed threat to injure by means of anthrax poisoning quali ‐ fies as a threat to employ violent force, in that “the [anthrax] bacteria ʹ s physical effect on the body is no less violently forceful than the effect of a kick or a blow”). The same is true when the defendant uses guile or deception to trick his vic ‐ tim into consuming the harmful agent: although he is using intellectual force to deploy the harmful agent, the agent itself will, through a physical process, work a concrete harm on the victim. id.; Waters , F.3d at 1066; De Leon Castella ‐ nos F.3d at 766–67; see also United States Calderon Pena , F.3d (5th Cir. 2004) (en banc) (Smith, J., dissent ‐ ing) (“If someone lures a poor swimmer into waters with a strong undertow in order he drown, or tricks a victim into walking toward a high precipice so he might fall,” example, the offender “has least attempted to make use of against the person of the target, either through the action of water to cause asphyxiation or im ‐ pact of earth flesh and bone. However remote these forc ‐ es may be time or distance from the defendant, they were still directed to work according to will, as surely as a swung fist or a fired bullet.”).
Jennings’ hypothetical to the denial of food to a child is, a matter of logic, a more challenging one to place with ‐ the category violent offenses two respects: (1) the mechanism harm is the withholding something is necessary to sustain life rather than the deployment some ‐ thing (be it swing arm or poisoning a drink) actively causes pain or injury; (2) it is more difficult identify particular “force” involved. To take latter point first, if defendant has ability withhold life sustaining food medication, then victim is likely disa ‐ bled from sustaining himself a circumstance like age, in ‐ firmity, or captivity—a vulnerability that renders him sub ‐ ject to the defendant’s control. The relevant “force” may simply be the exertion of that control with the aim of physi ‐ cally harming the victim. And, to take the second point, why should it matter that the mechanism of harm is negative (pinching off the victim’s oxygen supply or withholding an EpiPen ® in the midst of a severe allergic reaction) or positive (swinging a fist or administering a poison). If the natural intended result of that force is physical pain, injury, or ill ‐ ness, then arguably the force employed is “violent” force in the sense that Curtis requires. See Waters , F.3d (positing that withholding of medication constitutes the use violent for reason).
The dispositive point against Jennings’ argument, how ‐ ever, is he is unable to cite any cases supporting the ‐ ory withholding food from one’s child might be prose ‐ cuted as domestic assault Minnesota. A likely explanation is other Minnesota statutes cover such scenarios. Minn. Stat. §§ 609.377 (malicious punishment child); 609.378 (neglect or endangerment child). So a prosecution for domestic assault based withholding food, med icine, like might be a purely abstract possibility.
As government reminds us, Supreme Court has cautioned us not allow our “legal imagination[s]” roam too freely postulating what types conduct theoretically might be prosecuted under a state statute for purposes determining whether offense defined qualifies predicate offense adverse federal action. Gonzales Du enas Alvarez U.S. S. Ct. 815, (2007). The issue before Court Duenas Alvarez whether conviction *19 19 under a California statute prohibiting the taking of a vehicle without the owner’s consent constituted a generic “theft ‐ fense” under U.S.C. 1101(a)(43)(G), rendering a lawful permanent resident subject to removal from the country. The statute penalized accomplices as well as principals. Duenas ‐ Alvarez argued that California law defined “aiding and abetting” in such a way as to criminalize conduct that would not be reached by generic theft laws. The Court rejected that argument concluded its discussion with the following admonition:
[T]o find that a state statute creates a crime outside the generic version a listed crime in a federal statute requires more than the appli ‐ cation legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, the State would apply its statute to conduct falls outside generic definition crime. To show realistic probability, an offender, course, may show statute so applied in his own case. But he must at least point own case other cases in which state courts in fact did apply statute special (nongener ic) manner which he argues. U.S. at 93, S. Ct. at 822; see also Moncrieffe Holder , S. Ct. 1684–85 (2013). We have heeded this advice,
as have other courts, related context assessing whether predicate state crime has, an element, use defined Curtis . Maxwell F.3d (“Maxwell cannot rely fanciful hypotheticals not applica ble real world contexts (apart from law school exams) *20 20 16 2861 show that the Minnesota statute is broader than the Sentenc ‐ ing Guidelines[‘]” definition crime of violence); see also , e.g. , Hill , F.3d at n.8; United States v. Ceron , F.3d 222, (5th Cir. 2014) (per curiam); United States Ayala Nicanor , F.3d 748, (9th Cir. 2011).
As we have nothing more than speculation to support the notion an act like withholding food medicine realisti cally might be prosecuted as domestic assault Minnesota, we may discount this possibility. Maxwell F.3d 1062. Because domestic assault, as defined, requires the infliction bodily harm (or the threat such harm) and typically such harm will be inflicted by means physical force, we decline to overrule our decision Yang .
In reply brief, Jennings defaults to the same point he makes with respect to simple robbery Minnesota—that even minor injuries will suffice as bodily harm, and minimal injuries are insufficient to show strong, i.e., “violent,” employed Curtis demands. And point we have already dealt with above.
III. As Jennings had one prior conviction for simple robbery and two prior convictions for felony domestic assault, and these constitute crimes violence all reasons we have discussed, district court appropriately treated him an armed career criminal. Jennings was, consequently, subject year minimum prison term mandated by ACCA various enhancements specified armed career criminal guideline.
AFFIRMED.
[1] Mathis decided same day district court’s decision terroristic threat convictions.
[2] The residual clause section 924(e)(2)(B)(ii), which treats a violent felony any offense “otherwise involves conduct presents a seri ous potential risk injury another,” declared unconsti tutionally vague Samuel United States S. Ct. (2015). Consequently, felony offense must meet criteria either clause enumerated crimes clause order qualify violent felony.
[3] We are using petitioner’s full name citing case distinguish it from Samuel United States S. Ct. supra n.2, which held residual clause ACCA be unconstitutional.
[4] Notably, common law definition what Supreme Court rejected Curtis . U.S. S. Ct. at 1270–73.
[5] The majority Castleman concluded U.S.C. § 922(g)(9), which proscribes possession a firearm one convicted a misdemean ‐ or crime domestic violence—defined relevant part as crime com mitted against family member or intimate partner has an ele ment use attempted use force, see U.S.C. § 921(a)(33)(A)(ii)—incorporates common law definition force, including offensive touching. S. Ct. 1410. Justice Scalia disagreed point, but he thought Curtis ’s definition “physical force” sufficient encompass most criminal acts characterized domestic violence include defendant’s prior conviction case before Court.