Daniel C. Portee v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1034
D ANIEL C. P ORTEE ,
Petitioner‐Appellant,
v.
U NITED STATES OF A MERICA ,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:16‐CV‐168 — Theresa L. Springmann, Chief Judge.
____________________
A RGUED MAY 30, 2019 — D ECIDED OCTOBER 18, 2019
____________________
Before BAUER , FLAUM, and MANION, Circuit Judges.
MANION, Circuit Judge. Daniel Portee pleaded guilty to
possession of a firearm by a convicted felon. He received a
15‐year mandatory‐minimum sentence under the Armed Ca‐
reer Criminal Act. In Johnson’s wake, 1 Portee challenged his
sentence. He argues he lacks enough qualifying felony con‐
1 Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).

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2 No. 18‐1034
victions to trigger the ACCA. The government argues he has
four ACCA‐qualifying felony convictions. Three suffice. We
conclude two felony convictions proposed by the govern‐
ment do not satisfy the ACCA, so we reverse and remand.
I. Background
Portee pleaded guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). With an
offense level of 19 and a criminal history category of VI, Por‐
tee faced a sentencing guidelines range of 63–78 months, and
a statutory maximum of 120 months. But the government
sought sentencing under the Armed Career Criminal Act, 18
U.S.C. § 924(e), arguing Portee’s record included four prior
ACCA‐qualifying offenses:
(1) a 1983 conviction of attempted armed robbery in Illi‐
nois, in violation of Ill. Rev. Stat. 38 § 18‐1;
(2) a 1990 conviction of robbery in Indiana, in violation
of Ind. Code § 35‐42‐5‐1;
(3) a 2000 conviction of pointing a firearm in Indiana, in
violation of Ind. Code § 35‐47‐4‐3; and
(4) a 2006 conviction of intimidation in Indiana, in viola‐
tion of Ind. Code § 35‐45‐2‐1.
Portee does not dispute he incurred these convictions. Under
the ACCA, a defendant convicted of 18 U.S.C. § 922(g) who
has three prior violent felony convictions must be sentenced
to at least 15 years. In 2010, the district judge agreed Portee
fell under the ACCA and sentenced him to 180 months.
But in 2015, the Supreme Court held the ACCA’s residual
clause unconstitutionally vague. Johnson, 135 S. Ct. at 2563.
The residual clause defined “violent felony” to include any

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No. 18‐1034 3
felony that “otherwise involves conduct that presents a seri‐
ous potential risk of physical injury to another.” So, after
Johnson, a felony is a “violent felony” for ACCA purposes
only if it satisfies the ACCA’s elements clause (“has as an el‐
ement the use, attempted use, or threatened use of physical
force against the person of another”) or if the ACCA specifi‐
cally enumerates it as a violent felony.
Portee moved to correct his sentence under 28 U.S.C. §
2255. He argued his Indiana robbery conviction, Indiana
pointing‐a‐firearm conviction, and Indiana intimidation
conviction were not violent felonies under the ACCA after
Johnson. The judge held the Illinois attempted‐robbery con‐
viction, the Indiana robbery conviction, and the Indiana
pointing‐a‐firearm conviction were violent felonies under
the ACCA’s elements clause. The judge held the Indiana in‐
timidation conviction was not a violent felony for ACCA
purposes because the Indiana intimidation statute does not
require as an element the use, attempted use, or threatened
use of physical force against the person of another. Yet be‐
cause three ACCA‐qualifying felonies suffice, the judge con‐
cluded application of the ACCA was constitutional, but cer‐
tified appealability. Portee appeals, arguing none of the four
priors support application of the ACCA. The government
argues all four do.
II. Discussion
The four prior felonies are not serious drug offenses and
are not enumerated violent felonies. So after Johnson struck
down the residual clause, the only way any of these priors
qualifies under the ACCA is if it satisfies the ACCA’s ele‐
ments clause, which defines “violent felony,” in part, to be
any crime punishable by imprisonment for more than one

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4 No. 18‐1034
year that “has as an element the use, attempted use, or
threatened use of physical force against the person of anoth‐
er.” 18 U.S.C. § 924(e)(2)(B)(i). The categorical approach de‐
termines whether a prior felony satisfies the ACCA’s ele‐
ments clause. Mathis v. United States, 136 S. Ct. 2243, 2247
(2016); Descamps v. United States, 570 U.S. 254, 260–61 (2013).
That is, we consider whether the elements of the prior felony
required the prosecution to prove defendant used, attempted
to use, or threatened to use physical force against the person
of another. We consider the version of the State’s criminal
statute in effect at the time of the offense. See United States v.
Bennett, 863 F.3d 679, 680 (7th Cir. 2017). We do not consider
the actual facts underlying the prior conviction. We do not
consider what defendant actually did.
Sometimes a statute sets out alternative elements rather
than alternative means or facts to satisfy a single element. In
such a situation, the statute is divisible, and we apply the
modified categorical approach. United States v. Ker Yang, 799
F.3d 750, 753 (7th Cir. 2015). We may glance at limited doc‐
uments in the prior case to determine which of the alterna‐
tive elements formed the basis of conviction. Id.; Shepard v.
United States, 544 U.S. 13 (2005). We allow these Shepard doc‐
uments to steer us to “which crime within a statute the de‐
fendant committed, not how he committed that crime.” Unit‐
ed States v. Woods, 576 F.3d 400, 405 (7th Cir. 2009). Even un‐
der the modified categorical approach, we do not consider
the facts of what defendant did. We merely consider whether
the crime with the selected alternative element required
proof he used, attempted to use, or threatened to use physi‐
cal force against the person of another.

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No. 18‐1034 5
Here, the parties and the district judge discuss only four
potential ACCA‐qualifying offenses. The government argues
all four qualify. Portee argues none do. The judge held three
qualify, but Indiana intimidation does not. The government
must be right about three prior offenses for the ACCA sen‐
tence to stand. Portee must be right about only two for the
ACCA sentence to fall. We conclude Portee’s convictions for
Indiana pointing‐a‐firearm and Indiana intimidation do not
qualify under the ACCA because neither satisfies the
ACCA’s elements clause.2 There is no need to discuss fur‐
ther whether his convictions for Illinois attempted armed
robbery or Indiana robbery satisfy the ACCA.
A. Indiana pointing‐a‐firearm
In 2000, Portee was convicted of Indiana felony pointing‐
a‐firearm for an event in October 1999. At the time of the
event (and conviction) Indiana law prohibited pointing a
firearm at another without particular justifications:
A person who knowingly or intentionally
points a firearm at another person commits a
Class D felony. However, the offense is a Class
A misdemeanor if the firearm was not loaded.
2 The records in Portee’s pointing‐a‐firearm case and intimidation
case suggest the seriousness of these offenses. But the ACCA and Su‐
preme Court precedent preclude us from considering the “brute facts.”
See Mathis, 136 S. Ct. at 2248 (“Distinguishing between elements and
facts is therefore central to ACCA’s operation. … Facts … are mere real‐
world things—extraneous to the crime’s legal requirements. … [T]hey
need neither be found by a jury nor admitted by a defendant.”); Richard‐
son v. United States, 526 U.S. 813, 817 (1999).

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6 No. 18‐1034
I.C. 35‐47‐4‐3(b).3 Indiana law provided multiple particular
exceptions to this prohibition based on various justifications.
The pointing prohibition did not apply to a law enforcement
officer acting in the scope of his duties or to a person justi‐
fied in using reasonable force against another. I.C. 35‐47‐4‐3‐
(a). The pointing prohibition did not apply to a person using
reasonable force in self‐defense, defense of others, or defense
of property in certain situations. I.C. 35‐41‐3‐2. Nor did the
pointing provision apply to a person justified in using rea‐
sonable force to arrest someone or prevent his escape in cer‐
tain circumstances. I.C. 35‐41‐3‐3.
We apply the categorical approach to determine whether
this crime necessarily includes as an element the use,
attempted use, or threatened use of physical force against
the person of another. If the use, attempted use, or threat‐
ened use of physical force against the person of another was
an element Indiana had to prove beyond a reasonable doubt
to support a felony conviction for pointing a firearm, then
such a conviction supports application of the ACCA. Other‐
wise, it does not.
The district judge decided Indiana felony pointing‐a‐
firearm supports application of the ACCA. The judge item‐
ized the elements of the crime as: (1) knowingly and inten‐
tionally, (2) pointing a firearm, (3) at another person.4 Portee
argues it is possible to violate this statute without using,
3 All citations to the Indiana Code reference the version of the stat‐
ute in effect on the date of the subject occurrence.
4 We note Indiana’s pointing‐a‐firearm statute said (and says)
“knowingly or intentionally,” not “knowingly and intentionally.” But
this nuance does not alter our conclusion.

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No. 18‐1034 7
attempting to use, or threatening to use physical force
against the person of another. He argues Indiana could
prove all the elements of this felony without proving the de‐
fendant used, attempted to use, or threatened to use physical
force against the person of another. He proposes a hypothet‐
ical: A person could say to another, “The first chamber in my
weapon is empty, the safety is on, and my finger is not in‐
side the trigger guard,” and point a gun at him.
The judge reasoned that even in this scenario, “[i]t is
difficult to imagine that such action is not intended to com‐
municate a threat of injury, which is implicit in the elements
of the offense.” The judge essentially concluded knowingly
or intentionally aiming a firearm at another is always at least
threatening the use of physical force against another.
We disagree. It is not hard to imagine situations in which
pointing a loaded gun at another person does not constitute
a threat of injury or physical force. There are situations in
which a person points a loaded gun at another but everyone
understands the pointer is not using, attempting to use, or
threatening to use physical force against the other person.
Take Portee’s example. Suppose an armed person is joking
with his friend. The armed person says his gun is loaded but
there is no bullet in the first chamber, and the safety is on,
and his finger is not over the trigger. And then he points the
gun at his friend and they both laugh. All elements of Indi‐
ana felony pointing‐a‐firearm are met. But there is no use,
attempted use, or threatened use of physical force against
the person of another. Yet even though they both laughed, it
is not funny. It is gravely perilous. There is no reason to
think Indiana would not want to prosecute and punish this

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8 No. 18‐1034
sort of reckless shenanigan, even though the ACCA is not
satisfied.
Or perhaps the pointer and pointee are foolish actors. Or
perhaps the pointer points at a person’s back, or at a sleep‐
ing person, in idle and reckless whimsy. Or perhaps the
pointing occurs in the context of a demonstration gone awry.
In these circumstances, the pointer intentionally and know‐
ingly points a loaded gun at another person, meeting all el‐
ements of the crime, but there is no use, attempted use, or
threatened use of physical force against the person of anoth‐
er, so the ACCA is unsatisfied. Nevertheless, Indiana has a
reasonable interest in preventing all these situations and in
prosecuting and punishing all these pointers. Note that Indi‐
ana’s pointing statute and the statutes it references included
(and include) numerous specific exceptions (police, self‐
defense, defense of others, defense of property, arrest, es‐
cape prevention) but did not include (and do not include)
exceptions for jokes, jests, horseplay, acting, or demonstra‐
tions. Unprotected by any exceptions, the pointers in those
situations have committed felony pointing even though they
have not used, attempted to use, or threatened to use physi‐
cal force against the person of another.
A prosecutor can prove the elements of Indiana felony
pointing beyond a reasonable doubt without proving the de‐
fendant used, attempted to use, or threatened to use physical
force against the person of another. The district judge erred
in concluding that a threat is necessarily implicit in the ele‐
ments of the crime. Perhaps a threat is usually implicit, but a
threat is not always or necessarily implicit. The elements of
the crime simply do not include a threat of physical force
against the person of another, much less use or attempted

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No. 18‐1034 9
use of such force. Indiana did not need to prove a threat to
sustain a felony pointing conviction. Therefore, Portee’s
conviction of Indiana felony pointing‐a‐firearm fails the cat‐
egorical approach and cannot support application of the
ACCA.
The government insists the ACCA applies and calls our
attention to United States v. Hataway, 933 F.3d 940 (8th Cir.
2019). There, the Eighth Circuit recently concluded an Ar‐
kansas conviction for aggravated assault (divisible to the el‐
ement of “Displays a firearm”) and a South Carolina convic‐
tion for pointing a firearm at another person were violent
felonies under the ACCA. But Hataway is distinguishable.
Regarding Arkansas, the statute of conviction said “A
person commits aggravated assault if, under circumstances
manifesting extreme indifference to the value of human life,
he or she purposely … Displays a firearm in such a manner
that creates a substantial danger of death or serious physical
injury to another person … .” Ark. Code § 5‐13‐204(a)(2)
(2014).
But the Indiana statute did not contain those specifica‐
tions of indifference to the value of human life or dangerous
manner. The elements of Indiana pointing generally are con‐
sistently simple: 1) knowingly or intentionally 2) pointing 3)
a firearm 4) at another. See Duncan v. State, 23 N.E.3d 805,
816 (Ind. Ct. App. 2014) (“To prove that Duncan committed
pointing a firearm, the State was require[d] to prove that he
knowingly or intentionally pointed a firearm at another per‐
son.”); C.T.S. v. State, 781 N.E.2d 1193, 1201 (Ind. Ct. App.
2003) (“To find that C.T.S. had committed the act of pointing
a firearm, the State was required to prove that C.T.S. know‐
ingly or intentionally pointed a firearm at D.A.O.”); Ind.

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10 No. 18‐1034
Pattern Crim. Jury Inst. 7.2700 (2019) (“Before you may con‐
vict the Defendant, the State must have proved each of the
following beyond a reasonable doubt: 1. The Defendant 2.
[knowingly] [intentionally] 3. pointed a firearm 4. at
[name].”). A conviction for Indiana pointing‐a‐firearm does
not require proof that the pointing was “under circumstanc‐
es manifesting extreme indifference to the value of human
life” or “in such a manner that creates a substantial danger
of death or serious physical injury to another person.”
South Carolina’s “Pointing firearm at another person”
statute is also distinguishable on its face from Indiana’s
pointing statute. South Carolina’s statute provides: “It is un‐
lawful for a person to present or point at another person a
loaded or unloaded firearm. … This section must not be con‐
strued to abridge the right of self‐defense or to apply to the‐
atricals or like performances.” S.C. Code § 16‐23‐410. But In‐
diana’s statute did not include presenting a firearm as crimi‐
nal conduct. And Indiana’s statute did not exclude “theatri‐
cals or like performances.”
Moreover, South Carolina courts and federal courts have
interpreted South Carolina’s statute to require “a threatening
manner” as part of the elements for conviction. See Hataway,
2019 WL 3770202, at *4; Reyes‐Soto v. Lynch, 808 F.3d 369,
371–73 (8th Cir. 2015); United States v. King, 673 F.3d 274,
279–80 (4th Cir. 2012); In re Spencer R., 692 S.E.2d 569, 572
(S.C. Ct. App. 2010). But Indiana courts routinely do not re‐
quire a threat as an element of pointing. Again, the elements
of Indiana pointing generally are consistently simple.
Indeed, an unpublished Court of Appeals of Indiana de‐
cision distinguished Indiana pointing from Indiana intimida‐
tion for double‐jeopardy purposes on the grounds that in‐

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No. 18‐1034 11
timidation required the “additional elements” of communi‐
cation of a threat and intending to place a person in fear of
retaliation, which are not elements of pointing. Hoeft v. State,
No. 37A03‐0707‐CR‐347, 2008 WL 413399, at *2 (Ind. Ct. App.
Feb. 18, 2008) (unpublished disposition). There, the State’s
evidence satisfied the pointing elements by showing the de‐
fendant “pulled his shotgun from the closet and pointed it at
Hamby’s neck.” Id. at *3. A threat is not required for an Indi‐
ana pointing conviction.
We conclude Portee’s conviction of Indiana felony point‐
ing‐a‐firearm fails the categorical approach and cannot sup‐
port application of the ACCA.
B. Indiana intimidation
In 2006, Portee was convicted of Indiana felony intimida‐
tion based on an occurrence in March 2006. The district
judge determined that conviction did not satisfy the ACCA.
Portee obviously does not challenge that conclusion on ap‐
peal. But the government does.
At the time of the occurrence Indiana prohibited certain
forms of intimidation:
(a) A person who communicates a threat to
another person, with the intent:
(1) that the other person engage in conduct
against the other person’s will;
(2) that the other person be placed in fear of
retaliation for a prior lawful act; or
(3) of causing:
(A) a dwelling, a building, or another
structure; or

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12 No. 18‐1034
(B) a vehicle;
to be evacuated;
commits intimidation, a Class A misde‐
meanor.
(b) However, the offense is a:
(1) Class D felony if:
(A) the threat is to commit a forcible
felony;
(B) the person to whom the threat is
communicated [is one of many par‐
ticular types of persons;]
(C) the person has a prior unrelated
conviction for an offense under this
section concerning the same victim;
or
(D) the threat is communicated using
property, including electronic
equipment or systems, of a school
corporation or other governmental
entity; and
(2) Class C felony if, while committing it,
the person draws or uses a deadly
weapon.
I.C. 35‐45‐2‐1.
The statute defined “threat” broadly:
(c) “Threat” means an expression, by words or
action, of an intention to:

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No. 18‐1034 13
(1) unlawfully injure the person threatened
or another person, or damage property;
(2) unlawfully subject a person to physical
confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or
cause such withholding;
(5) unlawfully withhold testimony or in‐
formation with respect to another per‐
son’s legal claim or defense, except for a
reasonable claim for witness fees or ex‐
penses;
(6) expose the person threatened to hatred,
contempt, disgrace, or ridicule;
(7) falsely harm the credit or business repu‐
tation of the person threatened; or
(8) cause the evacuation of a dwelling, a
building, another structure, or a vehicle.
I.C. 35‐45‐2‐1(c).
The judge correctly determined this statute is divisible. It
sets out various alternative elements. United States v. Ellis,
622 F.3d 784, 798 (7th Cir. 2010). So we apply the modified
categorical approach and may glance at limited documents
to determine what elements formed the basis of Portee’s in‐
timidation conviction. The judge determined the statutory
division underlying Portee’s intimidation conviction was
(b)(1)(A): the offense is a Class D felony if “the threat is to
commit a forcible felony.” On appeal, both parties accept

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14 No. 18‐1034
that Indiana’s intimidation statute is divisible and that the
division of conviction was (b)(1)(A).
Indiana has a statutory definition of “forcible felony.” In
2006, the statute stated: “‘Forcible felony’ means a felony
that involves the use or threat of force against a human be‐
ing, or in which there is imminent danger of bodily injury to
a human being.” I.C. 35‐41‐1‐11 (now codified at 35‐31.5‐2‐
138).5
The judge concluded Indiana felony intimidation failed
to satisfy the ACCA because the statutory definition of
“threat” includes expressions of an intention to “damage
property,” so the crime does not necessarily involve “physi‐
cal force against the person of another,” so the crime fails the
ACCA’s elements clause.
On appeal, the government argues the judge erred be‐
cause Portee was convicted of a crime that necessarily in‐
cluded a “forcible felony,” and a “forcible felony” necessari‐
ly involves “the use or threat of force against a human being,
or in which there is imminent danger of bodily injury to a
human being.” I.C. 35‐41‐1‐11. So a threat merely to damage
property, not involving the use or threat of force against a
human being, and not involving imminent danger of bodily
injury to a human being, could not have supported Portee’s
conviction.
5 The judge did not decide whether Indiana felony intimidation by
threat to commit a forcible felony is further divisible within the definition
of “forcible felony.” Nor do the parties on appeal directly address this
issue. Portee, of course, appropriately did not discuss this conviction in
detail in his opening appellate brief because the judge ruled in his favor
on this conviction, concluding it did not satisfy the ACCA. Neither party
asserts the crime is divisible within the definition of “forcible felony.”

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No. 18‐1034 15
But there is a more fundamental problem with the gov‐
ernment’s position. Compare the ACCA’s elements clause:
has as an element the use, attempted use, or
threatened use of physical force against the
person of another
to Indiana’s definition of “forcible felony”:
“Forcible felony” means a felony that involves
the use or threat of force against a human be‐
ing, or in which there is imminent danger of
bodily injury to a human being.
The ACCA requires physical force against the person of an‐
other, but an Indiana forcible felony could involve force
against or danger to a human being, any human being. So
Portee’s conviction of Indiana felony intimidation, involving
a threat to commit a forcible felony, did not require as an el‐
ement the use, attempted use, or threatened use of physical
force against the person of another because the human being
facing force or danger could be the defendant himself, so far
as Indiana’s elements are concerned.
There are situations which could meet all the elements of
Indiana felony intimidation by threat to commit a forcible
felony (I.C. 35‐45‐2‐1(b)(1)(A)) but do not involve the use,
attempted use, or threatened use of physical force against
the person of another.
For example, police surround an armed suspect. He
threatens them: “Back off or I’ll shoot myself!” All elements
of Indiana felony intimidation are met because resisting ar‐
rest is (or can be) a felony even though suicide (in Indiana) is

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16 No. 18‐1034
not. Or police approach an unarmed suspect on a bridge and
he threatens them: “Back off or I’ll jump!”6
As another example, a doctor refuses to prescribe more
narcotics to a patient, so he threatens to use illegal drugs. See
Terrell v. Barnhart, No. 1:05CV1690 DFHTAB, 2007 WL
141932, at *2 (S.D. Ind. Jan. 5, 2007) (“The treating physician
refused to give more narcotics … . Mr. Terrell threatened to
use illegal drugs if no one would help him.”); see also De La
Cerda v. Astrue, No. 4:10CV3252, 2012 WL 82145, at *11 (D.
Neb. Jan. 11, 2012) (“[W]hen his prescription for the pain
killer Kadian was lost and the physician would not refill it,
De La Cerda threatened to take street drugs to control the
pain.”).
As another example, a mother tries to take her drug‐
addicted son to therapy. But he threatens her that if she per‐
sists he will buy and use meth. All Indiana felony intimida‐
tion elements are met. The son threatened his mother with
the intent either (or both) that she engage in conduct against
her will or that she be placed in fear of retaliation for a prior
lawful act, satisfying subsection (a). The threat is to commit a
“forcible felony” because using meth is (or consists in) a fel‐
ony in which there is imminent danger of bodily injury to a
6 Under the version of Indiana’s intimidation statute applicable at
the time of Portee’s conduct, this suspect could face a Class D felony
conviction under either I.C. 35‐45‐2‐1(b)(1)(A) (“the threat is to commit a
forcible felony”) or I.C. 35‐45‐2‐1(b)(1)(B) (“the person to whom the
threat is communicated … is a law enforcement officer”). A conviction
under the former fails to satisfy the ACCA because as a (modified) cate‐
gorical matter “a human being” is broader than “the person of another.”
A conviction under the latter also fails to satisfy the ACCA, as deter‐
mined in Ellis, 622 F.3d at 800.

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No. 18‐1034 17
human being, namely, the son himself. So subsection (b) and
the definition of “forcible felony” are satisfied. And the
threat meets the definition of “threat” under subsection
(c)(1) (injury to a person other than the person threatened)
and subsection (c)(3) (because using meth is [or consists in] a
crime). So the son can be convicted of Indiana felony intimi‐
dation without Indiana needing to prove he used, attempted
to use, or threatened to use physical force against the person
of another. See Cole v. State, 329 S.E.2d 146, 147–49 (Ga. 1985)
(Stepson, with a history of drug use, threatened his stepfa‐
ther with again using drugs.).
We are mindful we should not rely on “fanciful hypothet‐
icals not applicable in real world contexts” for the conclusion
that a conviction cannot support application of the ACCA.
See United States v. Jennings, 860 F.3d 450, 460 (7th Cir. 2017)
(quoting United States v. Maxwell, 823 F.3d 1057, 1062 (7th
Cir. 2016)). Such a conclusion generally requires a “realistic
probability, not a theoretical possibility,” that the State
would apply its statute to conduct falling outside the
ACCA’s elements clause. See Maxwell, 823 F.3d at 1062.
But here, actual cases provide real‐life examples of sce‐
narios potentially satisfying the relevant division of Indiana
intimidation but not the ACCA’s elements clause. Some cas‐
es are cited above. More are listed below. These cases do not
bind us here. They do not involve Indiana intimidation. The
list simply shows that conduct potentially satisfying the rel‐
evant division of Indiana felony intimidation but not the
ACCA’s elements clause is not far‐fetched, fanciful, or mere‐
ly theoretical.

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18 No. 18‐1034
 “Stoddard knocked on Lahood’s door and threatened
to use crack or commit suicide if she did not let him inside.”7
 “Mother threatened to ‘use crack’ if she was not al‐
lowed to remain in the home with Father and the children.”8
 “Coleman had threatened to use drugs in Davis’s
apartment … .” 9
 “Norma G. also threatened to use drugs that day so
that she would be eligible for drug treatment.”10
 “It is quite conceivable that an inmate might receive a
call in which the caller threatens to take a drug overdose or
relates that he has already done so.”11
 “Anthony and a companion attempted to construct a
‘pipe‐bomb’ … . [They] planned on exploding the bomb in a
forest preserve, but unfortunately the bomb exploded dur‐
ing construction and severely injured Anthony’s left hand.” 12
7 Stoddard v. Sec’y, Dep’t of Corrs., 600 Fed. App’x 696, 698 (11th Cir.
2015).
8 In re Ko. B., B230910, 2012 WL 681204, at *2 (Cal. Ct. App. Mar. 1,
2012).
9 Davis v. Lambert, 388 F.3d 1053, 1063 (7th Cir. 2004).
10 In re Ariana A., 1997 WL 375176, at *3 (Conn. Super. Ct. June 26,
1997).
11 State v. Moses, 480 So. 2d 146, 148 (Fla. Dist. Ct. App. 1985).
12 Berg v. Bd. of Trs., Local 705 Int’l Bhd. of Teamsters Health & Welfare
Fund, 725 F.2d 68, 69 (7th Cir. 1984); see I.C. 35‐47.5‐5‐2 (“A person who
knowingly or intentionally … possesses [or] manufactures … a destruc‐
tive device, unless authorized by law, commits a Level 5 felony.”).

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No. 18‐1034 19
These are real‐world scenarios, not fanciful hypotheticals.
And the plain language of Indiana’s intimidation statute en‐
compasses this sort of situation involving threats of self‐
harm. By encompassing self‐harm, Indiana’s intimidation
statute is broader than the ACCA’s elements clause, which
references the “person of another.” So the government has
not met its burden to show Portee’s conviction for Indiana
felony intimidation supports application of the ACCA. In the
absence of an opinion from the Indiana Supreme Court or
(perhaps) an Indiana appellate court declaring Indiana felo‐
ny intimidation does not apply in self‐harm situations, the
government has not overcome the plain language of Indi‐
ana’s statute.
The relevant division of Indiana’s felony intimidation
statute applies on its face to situations involving self‐harm.13
We think there is a realistic probability, and not merely a
theoretical possibility, that Indiana would apply its statute to
conduct falling outside the ACCA’s elements clause. There‐
13 Portee arguably came close to waiving this argument in his sup‐
plemental appellate brief. But he acknowledges the plain fact that “a
human being” in Indiana’s definition of “forcible felony” could include
the person making the threat. (So Indiana’s definition is broader than the
ACCA’s “person of another.”) And Portee perhaps confuses or fails to
consider fully the remaining parts of the definition of “forcible felony.”
Moreover, there is no apparent viable strategy beneficial to Portee in
making a knowing waiver here. “We are very careful when finding
waiver. It requires a knowing and intentional decision to forgo a right. A
party waives an issue when he intentionally relinquishes or abandons a
known right.” United States v. Macias, 927 F.3d 985, 989 (7th Cir. 2019)
(internal citation, quotation marks, and ellipsis omitted). Besides, this is a
pure question of law, and he certainly did not waive or forfeit the basic
argument that his Indiana felony intimidation conviction cannot support
application of the ACCA.

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20 No. 18‐1034
fore, Portee’s conviction for Indiana felony intimidation does
not support application of the ACCA.
III. Conclusion
Application of the ACCA to Portee requires three prior
qualifying convictions. The government argued Portee had
four. We conclude two do not support application of the
ACCA. Therefore, we have no occasion to address the other
two. We REVERSE the district court’s order denying relief
under 28 U.S.C. § 2255. We REMAND for further proceed‐
ings consistent with this opinion. This opinion, of course,
does not limit the district judge’s ability on remand to con‐
sider the full panoply of Portee’s criminal history under 18
U.S.C. § 3553(a).

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