Donnie Johnson v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1912
D ONNIE J OHNSON,
Petitioner‐Appellant,
v.
U NITED STATES OF A MERICA ,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 16‐cv‐00214 — Rudy Lozano, Judge.
____________________
A RGUED SEPTEMBER 28, 2021 — D ECIDED J ANUARY 24, 2022
____________________
Before FLAUM, KANNE , and SCUDDER , Circuit Judges.
FLAUM, Circuit Judge. In 2004, a jury convicted Donnie
Johnson of being a felon in possession of a firearm. Based on
his prior convictions, the district court found that he qualified
for a sentencing enhancement under the Armed Career Crim‐
inal Act (ACCA) and sentenced him to 275 months in prison.
In 2015, the Supreme Court decided Samuel Johnson v. United
States, holding that the so‐called “residual clause” of the

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2 No. 17‐1912
ACCA was unconstitutionally vague. See 576 U.S. 591 (2015).1
Johnson then filed a motion in 2016 under 28 U.S.C. § 2255 to
vacate his sentence on the grounds that it was based on the
ACCA’s now‐defunct residual clause. The district court de‐
nied his motion, and this Court subsequently granted John‐
son’s request for a certificate of appealability.
Despite the Supreme Court’s holding in Samuel Johnson,
Johnson’s sentence is proper if he has at least three prior con‐
victions that qualify for enhancement under the provisions of
the ACCA which Samuel Johnson left undisturbed (the “vio‐
lent felony” and “serious drug offense” provisions). Because
Johnson does have at least three such convictions, we affirm
the district court’s decision to deny Johnson’s motion to va‐
cate his sentence.
I. Background
In August 2001, a Gary, Indiana police officer stopped a
van Johnson was driving. The officer observed Johnson move
from the front seat to the middle of the van. After arresting
Johnson on an outstanding warrant, the officer searched the
van and found a loaded .22 caliber handgun. A federal jury
subsequently convicted Johnson of being a felon in possession
of a firearm under 18 U.S.C. § 922(g)(1).
1 There are two Supreme Court cases named “Johnson v. United States”
that are relevant to Donnie Johnson’s appeal: Samuel Johnson, 576 U.S. 591
(2015), which, as noted, declared the residual clause of the ACCA uncon‐
stitutional, and Curtis Johnson v. United States, 559 U.S. 133 (2010), which
addressed the amount of force necessary for a crime to be a “violent fel‐
ony” under the ACCA. To avoid confusion, we will refer to these cases as
Samuel Johnson and Curtis Johnson respectively.

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No. 17‐1912 3
As his conviction for being a felon in possession of a fire‐
arm suggests, this was not Johnson’s first run‐in with the law.
Relevant here are four of his prior convictions: (1) a 1982 con‐
viction for distribution of a controlled substance, (2) a 1984
burglary conviction, (3) a 1989 criminal deviate conduct con‐
viction, and (4) a 1990 conviction for inflicting bodily injury
during an escape. Based on these convictions, the district
court found that Johnson qualified for a sentence enhance‐
ment under the ACCA, which establishes a mandatory mini‐
mum sentence of 15 years (180 months) when a defendant is
convicted of being a felon in possession of a firearm and has
at least three convictions which qualify as “violent felon[ies]”
or “serious drug offense[s].” See 18 U.S.C. § 924(e)(1). Pursu‐
ant to this finding, the district court sentenced Johnson to 275
months in prison.
Relevant to petitioner’s appeal is the ACCA’s definition of
“violent felony,” which reads:
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceed‐
ing one year… that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the per‐
son of another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct
that presents a serious potential risk of physical
injury to another[.]
18 U.S.C. § 924(e)(2)(B).

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4 No. 17‐1912
In 2015, the Supreme Court held the last clause of this def‐
inition (“or otherwise involves conduct that presents a serious
potential risk of physical injury to another”) to be void for
vagueness, declaring that any sentence imposed under the so‐
called “residual clause” violates due process. Samuel Johnson,
576 U.S. at 606. The decision, however, left undisturbed the
other provisions of the definition, id., and, thus, a sentence en‐
hancement under the ACCA may stand if the underlying,
prior convictions qualify under the remaining definitional
provisions.
Based on the Court’s decision in Samuel Johnson, petitioner
filed a motion pro se in the district court in 2016 to vacate his
sentence. He argued, among other things, that his criminal de‐
viate conduct and escape convictions qualified as “violent fel‐
onies” only under the ACCA’s now‐invalidated residual
clause and that, as a result, he was entitled to re‐sentencing. 2
The district court disagreed and denied his motion, rea‐
soning that both convictions qualified as violent felonies un‐
der subpart (i) (the “force provision”) of the definition since
they involve the use of force against another. Though the
court declined to issue a certificate of appealability in tandem
with its opinion and order, this Court subsequently granted
Johnson’s request for such a certificate. On appeal, Johnson
2 At the district court, petitioner also argued that his drug and bur‐
glary offenses did not qualify as predicates under the ACCA. The district
court rejected those arguments, and petitioner does not now challenge
that portion of the court’s decision. For this reason, we proceed with the
understanding that these offenses qualify under the ACCA, meaning that
petitioner has, at a minimum, two of the three offenses required for a sen‐
tencing court to impose an enhancement under the ACCA, not counting
the criminal deviate conduct and escape convictions at issue here.

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No. 17‐1912 5
challenges the district court’s findings that both the criminal
deviate conduct and escape convictions qualified as violent
felonies under the force provision.
II. Discussion
“Whether a prior conviction constitutes a violent felony
under the ACCA is a legal conclusion that we review de
novo.” United States v. Fife, 624 F.3d 441, 445 (7th Cir. 2010).
Because he does not challenge the district court’s finding
that his drug and burglary convictions did not implicate the
residual clause and thus were proper predicate convictions
for a sentence enhancement under the ACCA, Johnson must
succeed in showing that neither his criminal deviate conduct
conviction nor his escape conviction qualifies as a proper third
offense to trigger ACCA’s sentence enhancement.
Courts reviewing whether a prior conviction qualifies as a
violent felony or serious drug offense under the ACCA em‐
ploy what is known as the categorial approach. Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016). Under this ap‐
proach, a reviewing court looks only to the elements of the
offense of conviction to determine whether such an offense
categorically falls within the definitions of either a violent fel‐
ony or serious drug offense as defined by the ACCA. See id. It
is not the actual facts of the defendant’s actions in committing
the offense but, rather, the elements of the offense itself that
matter for this inquiry. See id; Taylor v. United States, 495 U.S.
575, 600–02 (1990).
One complication arises, however, when the statute defin‐
ing the offense of the prior conviction is disjunctive (that is, it
proscribes a swath of conduct via a list of alternatives). In such

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6 No. 17‐1912
a scenario, one portion of the statute may outlaw conduct
clearly falling outside of the ACCA’s reach while another por‐
tion outlaws conduct clearly falling within its reach. To deter‐
mine whether a violation of such a statute qualifies as an
ACCA predicate offense, then, a court must determine
whether the statute’s list contains a number of different ele‐
ments pertaining to a variety of separable crimes or whether
the statute’s list merely contains a variety of means by which
one overarching crime may be committed. Mathis, 136 S. Ct.
at 2249. If it is the former, the statute is said to be “divisible,”
and the court must then determine the precise crime of which
the defendant was convicted and compare the appropriate el‐
ements to the ACCA’s definitions. Id. If, on the other hand,
the court determines that the statute merely contains a list of
various means by which one crime may be committed, the
statute is referred to as being “indivisible” and its violation
may not serve as a predicate offense under the ACCA if any
one of the listed “means” of committing the offense does not
qualify as a violent felony or drug offense. Id. at 2248–49, 2257.
To make this determination of “divisibility,” the Supreme
Court has offered a number of sources that may illuminate
whether the listed alternatives are elements or means: author‐
itative case law from the state courts, the text of the statute
itself, and, if neither of these prove helpful, the record of the
prior conviction for “the sole and limited purpose of deter‐
mining whether [the listed items are] element[s] of the of‐
fense.” Id. at 2256–57 (alterations in original) (quoting Rendon
v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)). If the charging
instrument and the jury instructions, for instance, include all
of the alternatives listed in the statute, “[t]hat is as clear an
indication as any that each alternative is only a possible
means of commission, not an element that the prosecutor

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No. 17‐1912 7
must prove to a jury beyond a reasonable doubt.” Id. at 2257.
By contrast, a charging instrument or jury instruction that in‐
cludes only one of the statute’s listed alternatives, to the ex‐
clusion of all others, would suggest that the statute’s list is a
list of elements, with each element pertaining to a separate
crime. Id.
If a court determines the statute is divisible, it then may
apply the “modified categorical approach.” The Supreme
Court has clarified that, “[u]nder that approach, a sentencing
court looks to a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and collo‐
quy) to determine what crime, with what elements, a defend‐
ant was convicted of.” Id. at 2249. To reiterate, this examina‐
tion of the record documents is only to determine the ele‐
ments of the crime for which the defendant was convicted and
may not be relied upon to find that a defendant qualifies for
a sentence enhancement under the ACCA because he, for in‐
stance, committed a non‐violent crime in a violent way. See id.
at 2253. The crime itself, divorced from the facts of the defend‐
ant’s particular commission of it, still must categorically qual‐
ify as a violent felony or a serious drug offense as the ACCA
defines those terms.
Johnson essentially raises the same three arguments with
respect to both his criminal deviate conduct and escape con‐
victions to show that they do not qualify as violent felonies:
the statutes are indivisible, they do not require sufficient force
to qualify as ACCA violent felonies, and they do not require
sufficient intent to qualify as ACCA violent felonies. Starting
with petitioner’s criminal deviate conduct conviction, we find
that the offense does qualify as a violent felony under the

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8 No. 17‐1912
ACCA and therefore do not reach his arguments about his es‐
cape conviction.
A. Divisibility
We ask first whether Indiana’s criminal deviate conduct
statute is divisible. Johnson argues that Indiana’s criminal de‐
viate conduct statute is indivisible and, therefore, that a con‐
viction under it cannot qualify as a violent felony. At the time
of Johnson’s conviction, the relevant portion of Indiana’s stat‐
ute read:
A person who knowingly or intentionally
causes another person to perform or submit to
deviate sexual conduct when:
(1) the other person is compelled by force or im‐
minent threat of force;
(2) the other person is unaware that the conduct
is occurring; or
(3) the other person is so mentally disabled or
deficient that consent to the conduct cannot be
given;
commits criminal deviate conduct, a Class B fel‐
ony.
Ind. Code § 35‐42‐4‐2. “Deviate sexual conduct” was further
defined as:
[A]n act involving:

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No. 17‐1912 9
(1) a sex organ of one person and the
mouth or anus of another person; or
(2) the penetration of the sex organ or
anus of a person by an object.
Ind. Code § 35‐41‐1‐9.
On its face, the text of Indiana’s criminal deviate conduct
statute raises questions about divisibility. It proscribes a
swath of conduct via a list of alternatives, some of which may
qualify as violent felonies under the ACCA’s force provision
(e.g., subpart (1)) and some of which likely do not (subparts
(2) and (3)). Thus, if the statute is indivisible, a conviction un‐
der it cannot qualify for an ACCA enhancement because the
offense does not categorically qualify as a violent felony as con‐
templated by the ACCA. If, on the other hand, the statute is
divisible, we must engage in the modified categorical ap‐
proach to first determine which of the alternative crimes John‐
son was convicted of and then determine whether that crime
meets the requirements of the ACCA’s violent felony defini‐
tion.
As a starting point for the divisibility analysis, we look to
authoritative state law. See Mathis, 136 S. Ct. at 2256–57. Peti‐
tioner argues that the three alternatives listed in the criminal
deviate conduct statute are merely means of satisfying an im‐
plied “absence of consent element.” But this interpretation is
unsupported by Indiana’s case law. For instance, in Collins v.
State, the Indiana Supreme Court held that the state’s criminal
deviate conduct and deviate sexual conduct provisions “de‐
fine multiple sets of essential elements, and each set describes
a separate offense of criminal deviate conduct.” 717 N.E.2d
108, 110 (Ind. 1999). This understanding aligns with the

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10 No. 17‐1912
court’s analysis in Taylor v. State, 496 N.E.2d 561 (Ind. 1986),
another case involving the criminal deviate conduct statute.
In analyzing the question of whether it was proper to admit a
witness’s testimony about the victim’s lack of consent and the
fact that the defendant used a gun to facilitate the crimes, the
state’s supreme court held that this “testimony was relevant
and properly admitted as evidence on the element[] of force.”
Taylor, 496 N.E.2d at 565 (emphasis added). If, instead, the
statute’s force provision was merely a means of satisfying a
lack of consent element (as petitioner proposes), it would be
odd for the Taylor court to describe the evidence as support‐
ing the victim’s testimony “that she did not consent” but then,
in the very next sentence, state that this evidence about lack
of consent was relevant to the “element[] of force.”
In arguing that the alternatives listed in the criminal devi‐
ate conduct statute are merely alternative means of satisfying
one unifying element that he refers to as the “absence of con‐
sent element,” petitioner places too much weight on wording
cherry‐picked from Stewart v. State, 555 N.E.2d 121 (Ind. 1990).
First, petitioner points to the fact that the court twice (both
times in footnotes) describes the criminal deviate conduct
statute as “set[ting] out the circumstances under which the
commission of sexual deviate conduct is a crime.” See Stewart,
555 N.E.2d at 122, n.1 & 126, n.4 (emphasis added). Petitioner
makes much of the court’s use of the word “circumstances”
in these footnotes, pointing to the fact that the Supreme Court
later used the same word to describe a crime’s means as op‐
posed to its elements. See Mathis, 136 S. Ct. at 2248, 2253;
Descamps v. United States, 570 U.S. 254, 268, 270, 277 (2013).
This argument would carry some weight if Stewart had been
decided after these Supreme Court cases which, petitioner ar‐
gues, gave the word a special meaning—and if Stewart had

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No. 17‐1912 11
cited to them. But both Mathis and Descamps were decided af‐
ter Stewart. The sentences from Stewart to which petitioner
points, then, are most plausibly read as clarifying that Indiana
does not criminalize all sexual deviate conduct but, rather,
criminalizes it only in certain circumstances. Indeed, attempt‐
ing to replace “circumstances” with either “means” or “ele‐
ments” in this excerpt from Stewart renders the text unnatural
and disjointed, further suggesting that the court was not at‐
tempting to convey any special “means versus elements” con‐
notation.
Next, petitioner argues that the following text from Stew‐
art supports his theory that the criminal deviate conduct stat‐
ute has an implied “absence of consent” element: “The crimi‐
nal deviate conduct statute prohibits [certain] sex acts … in
the absence of the consent of one of the participants.” Stewart,
555 N.E.2d at 126 (Ind. 1990). Petitioner asserts that this
phrase “define[s]” the criminal deviate conduct statute. Not
so. This phrase merely describes the statute and does so at a
very general level. Given the other Indiana cases on this issue
and the context of the sentence Johnson relies on, the phrase
is most plausibly read as a general description of what the
statute does, rather than a technical definition of the statute
intended to add an implied element to the offense.
Next, should authoritative state law fail to decisively re‐
solve our divisibility questions, we look to record documents.
See Mathis, 136 S. Ct. at 2256–57. To the extent the above‐re‐
cited case law leaves any doubt as to the divisibility of Indi‐
ana’s criminal deviate conduct offense, the record documents
are revelatory. At trial, the applicable jury instruction read, in
relevant part:

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12 No. 17‐1912
To convict the defendant of the crime of Crimi‐
nal Deviate Conduct as a Class B Felony, the
State must prove each of the following elements
beyond a reasonable doubt.
The Defendant:
1. knowingly or intentionally
2. caused another person to perform or sub‐
mit to deviate sexual conduct
3. when the other person was compelled by
force or imminent threat of force.
The fact that the jury instruction singles out one of the stat‐
ute’s listed alternatives (compulsion via force) to the exclu‐
sion of all others and further states that the government must
prove that “element[] beyond a reasonable doubt” to secure a
conviction buttresses the view that Indiana’s criminal deviate
conduct statute is divisible into distinct elements. For all of
these reasons, we hold that the statute is divisible.
Given these jury instructions, we can make short work of
the next step in our analysis: determining which crime John‐
son was convicted of under the criminal deviate conduct stat‐
ute. See Mathis, 136 S. Ct. at 2249 (instructing that, under the
modified categorical approach, courts reviewing ACCA sen‐
tence enhancements may examine a limited set of judicial rec‐
ords to determine which version of the statutory alternatives
the defendant was charged and convicted under). The jury in‐
structions make clear that Johnson was convicted of the ver‐
sion of criminal deviate conduct requiring compulsion by
force.

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No. 17‐1912 13
B. Sufficiency of the Force Required
Following this divisibility holding, we turn next to the
question of what level of force qualifies a crime as an ACCA
predicate offense. Petitioner contends that even if the Court
finds that Indiana’s criminal deviate conduct statute is divisi‐
ble and even if the Court finds that Johnson’s conviction was
for criminal deviate conduct via forcible compulsion, Indiana
law defines “force” to include conduct that does not meet the
higher bar for “force” contemplated by the ACCA’s definition
of “violent felony.” Beginning with the federal statute, the rel‐
evant portion of the ACCA’s definition of violent felony is the
first prong, which states that a felony qualifies as a “violent
felony” if it “has as an element the use, attempted use, or
threatened use of physical force against the person of an‐
other.” 18 U.S.C. § 924(e)(2)(B)(i). Notably, the statute explic‐
itly states that the sort of force contemplated is physical, ra‐
ther than emotional or psychological.
The ACCA does not provide any definition for “physical
force,” but two Supreme Court cases have shed light on the
meaning of this term: Curtis Johnson v. United States, 559 U.S.
133 (2010) and Stokeling v. United States, 139 S. Ct. 544 (2019).
In Curtis Johnson, the Supreme Court decided whether the
petitioner’s previous conviction in Florida for simple battery
qualified as a violent felony predicate offense under the
ACCA. Under Florida law, a battery occurs “when a person
either ‘1. [a]ctually and intentionally touches or strikes an‐
other person against the will of the other,’ or ‘2. [i]ntentionally
causes bodily harm to another person.’” Id. at 136 (alteration
in original) (citing Fla. Stat. § 784.03(1)(b)). The Court deter‐
mined that the statute was indivisible, meaning that in order
to categorically qualify as a violent felony, the least violent

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14 No. 17‐1912
version of the offense—“[a]ctually and intentionally
touch[ing] another person”—must constitute the use of
“physical force” contemplated by the statute. In ruling that it
did not, the Court held that “physical force”—at least in the
context of defining a “violent felony” under the ACCA—
meant “force capable of causing physical pain or injury to an‐
other person.” Id. at 140.
The Court returned to this definition of “physical force”
nearly a decade later, in Stokeling. There, the Court held that
common law robbery—which requires at least some re‐
sistance, no matter how slight, by the victim—meets the
ACCA’s requirements for physical force. Stokeling, 139 S. Ct.
at 555. In so ruling, the Court explained: “[T]he common law
[] linked the terms ‘violence’ and ‘force.’ Overcoming a vic‐
tim’s resistance was per se violence against the victim, even if
it ultimately caused minimal pain or injury.” Id. at 553. This
understanding, the Court explained, comported with Curtis
Johnson’s requirement that the force be “capable of causing
physical pain or injury,” Curtis Johnson, 559 U.S. at 140, since
any overcoming of resistance inherently involves a “physical
contest” and “it is the physical contest between the criminal
and the victim that is itself ‘capable of causing physical pain
or injury.’” Stokeling, 139 U.S. at 553 (quoting Curtis Johnson,
559 U.S. at 140).
To summarize, after Curtis Johnson, any offense involving
force “capable of causing physical pain or injury” is sufficient
to qualify as a violent felony under the ACCA. And after
Stokeling, an offense per se satisfies Curtis Johnson’s definition
of force if it involves the offender’s overcoming the victim’s
resistance. Per the wording of the ACCA statute itself, an of‐
fense that satisfies either Curtis Johnson’s or Stokeling’s level of

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No. 17‐1912 15
force satisfies the ACCA’s standard, whether it involves “the
use, attempted use, or threatened use” of such force.
We now turn to the state statute defining petitioner’s of‐
fense of conviction. Indiana’s forcible criminal deviate con‐
duct offense involves the defendant’s use of “force or immi‐
nent threat of force” to compel the victim to submit to a sexual
act against their will. Ind. Code § 35‐42‐4‐2. Contrary to peti‐
tioner’s view, Indiana’s criminal deviate conduct statute re‐
quires a sufficient level of force to qualify as a violent felony
under the ACCA. In Indiana, forcible criminal deviate con‐
duct may be committed in one of two ways: (1) the offender
may compel the victim to submit by overcoming their re‐
sistance; or (2) the offender may compel the victim to submit
by threatening or otherwise placing the victim in “fear of bod‐
ily harm,” in which case no physical resistance by the victim
is required. See Birch v. State, 401 N.E.2d 750, 751 (Ind. Ct.
App. 1980) (stating that a defendant may be convicted of crim‐
inal deviate conduct if he either overcomes a victim’s re‐
sistance or makes threats that place the victim in fear of bodily
injury); see also Woodson v. State, 483 N.E.2d 62, 64 (Ind. 1985)
(same).
Either variation requires a level of force sufficient under
the ACCA.3 A forcible criminal deviate conduct offense under
3 Johnson’s citation to Jansen v. State, 122 N.E.3d 473 (Ind. Ct. App.)
(unpublished), appeal denied, 127 N.E.3d 231 (Ind. 2019), is not to the con‐
trary for several reasons. In that case, the court interpreted Indiana’s sex‐
ual battery statute, which also required that the victim be “compelled to
submit.” Id. at ¶13. However, the case was decided after Indiana made
“comprehensive revision[s]” to its criminal statutes in 2014, see United
States v. Duncan, 833 F.3d 751, 754 n.1 (7th Cir. 2016), which resulted in the
elimination of the criminal deviate conduct statute. Additionally, Jansen is
an unpublished case issued by the Indiana Court of Appeals and therefore

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16 No. 17‐1912
the first variation clearly falls within the Supreme Court’s in‐
terpretation in Stokeling that force “sufficient to overcome a
victim’s resistance” satisfies the ACCA’s requirements. See
Stokeling, 139 S. Ct. at 554. Johnson’s argument to the contrary
is fatally undermined by the text of Indiana’s statute, which
requires that the victim be “compelled to submit” to the sex‐
ual conduct. The requirements of compulsion and submission
both indicate that, for instances in which the victim does re‐
sist, the offender must overcome that resistance, thereby sat‐
isfying Stokeling. See id. at 551 (adopting the common law’s
definition of “force” or “violence,” which required only that
“[s]ufficient force must be used to overcome resistance …
however slight the resistance” (citation omitted)). Moreover,
even if the Indiana criminal deviate conduct statute swept up
instances where the defendant attempted but failed to over‐
come the victim’s resistance, such conduct would still qualify
as a violent felony under the ACCA, which includes the “at‐
tempted use … of physical force.” 18 U.S.C. § 924(e)(2)(B)(i).
has no precedential value, see Ind. R. App. P. 65. As such, even if it inter‐
preted the right statute, the case is not an example of the “authoritative
sources of state law” to which the U.S. Supreme Court instructed review‐
ing courts to look. See Mathis, 136 S. Ct. at 2256–57. Moreover, however,
the defendant’s conduct in Jansen, which involved rubbing his hands over
the victim’s breasts and shorts and trying to take her shorts off—after the
victim repeatedly pushed his hands away—is not inconsistent with Stokel‐
ing’s definition of sufficient force. See Stokeling, 139 S. Ct. at 553 (conclud‐
ing that “the force necessary to overcome a victimʹs physical resistance is
inherently ‘violent’ in the sense contemplated by [Curtis] Johnson” because
“[t]he altercation need not cause pain or injury or even be prolonged; it is
the physical contest between the criminal and the victim that is itself ‘ca‐
pable of causing physical pain or injury’” (quoting Curtis Johnson, 559 U.S.
at 139, 140)).

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No. 17‐1912 17
For instances in which the victim does not resist, the con‐
duct may yet qualify as criminal deviate conduct under the
second variation of the offense if the victim declined to resist
because the offender placed them in fear of bodily harm.
Birch, 401 N.E.2d at 751 (holding that criminal deviate con‐
duct ordinarily requires that the offender overcome the vic‐
tim’s resistance but clarifying that “[p]hysical resistance is not
required if the victim is in fear of bodily harm.”). Because such
instances necessarily involve the “threatened use,” 18 U.S.C.
§ 924(e)(2)(B)(i), of “force capable of causing physical pain or
injury to another person,” Curtis Johnson, 559 U.S. at 140, they
also satisfy the ACCA’s “violent felony” requirements.
At bottom, Indiana’s forcible criminal deviate conduct of‐
fense involves the defendant’s use of “force or imminent
threat of force” to compel the victim to submit to a sexual act
against their will. Ind. Code § 35‐42‐4‐2. Under the Supreme
Court’s holdings in Curtis Johnson and Stokeling, there can be
no question that such an offense “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B).
C. Sufficiency of the Intent Required
Finally, we turn to the question of intent. See Borden v.
United States, 141 S. Ct. 1817, 1821–22 (2021) (holding that a
crime is not a violent felony “if it requires only a mens rea of
recklessness.”). Petitioner argues that Indiana’s forcible crim‐
inal deviate conduct offense does not qualify as an ACCA
predicate offense because it does not require that the prohib‐
ited conduct be committed intentionally. In support of this
contention, petitioner points to Leocal v. Ashcroft, 543 U.S. 1
(2004), claiming that the Supreme Court’s holding in that case
should be read to mean that an offense must require

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18 No. 17‐1912
intentional conduct in order to qualify as a violent felony un‐
der the ACCA.
Petitioner’s reliance on Leocal is misguided. In that case,
the Supreme Court interpreted a separate but similarly
worded statute defining the term “crime of violence,” 18
U.S.C. § 16, as requiring a higher mens rea than just “the
merely accidental or negligent conduct involved in a DUI of‐
fense.” Leocal, 543 U.S. at 11. The Court reasoned that the stat‐
ute’s text—in particular the phrase, “use … of physical force”
(which is also present in the ACCA’s definition of violent fel‐
ony)—implied that the employment of force must be more ac‐
tive than passive or accidental. Id. at 9. This Court has previ‐
ously held that “Leocal neither holds nor suggests that there
must be a separate intent element attached to the degree of in‐
jury,” and that “an offense defined as a knowing or inten‐
tional act that causes bodily harm comes within the elements
clause of … § 924(e)(2)(B)(i) [the violent felony definition] ….”
Douglas v. United States, 858 F.3d 1069, 1072 (7th Cir. 2017).
Indiana’s criminal deviate conduct offense requires that an of‐
fender act “knowingly or intentionally,” Ind. Code § 35‐42‐4‐
2, and thus clearly does not sweep up “merely accidental or
negligent conduct” like that of the DUI offense at issue in
Leocal. 543 U.S. at 11.
* * *
For these reasons, we hold that Indiana’s criminal deviate
conduct offense is divisible and that the forcible compulsion
variety of that offense requires sufficient force and intent to
qualify as a “violent felony” under the ACCA. Because peti‐
tioner has two prior convictions which he concedes qualify as
predicate offenses under the ACCA and because we hold that

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his criminal deviate conduct conviction is also a violent felony
under the ACCA, we need not examine whether his escape
conviction constitutes a predicate offense. Petitioner met the
criteria for the ACCA’s sentencing enhancement, so the impo‐
sition of his sentence under the statute was appropriate.
III. Conclusion
We AFFIRM the district court’s denial of petitioner’s motion
to vacate his sentence.

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