United States of America v. Cirilo Aviles-Solarzano

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3992
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CIRILO AVILES-SOLARZANO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 9—Amy J. St. Eve, Judge.
ARGUED SEPTEMBER 20, 2010—DECIDED OCTOBER 13, 2010
Before EASTERBROOK, Chief Judge, and POSNER and
ROVNER, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty
to having reentered the United States after having been
removed (deported) as an illegal alien, in violation of
8 U.S.C. § 1326(a). The judge sentenced him to 70
months in prison. This was below the federal sentencing
guidelines range of 77 to 96 months that she thought
applicable, but considerably above the guidelines range

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2 No. 09-3992
of 33 to 41 months that would have been applicable
had she not determined that the defendant’s conviction
for aggravated battery under Illinois law at a time
when he was in the United States illegally was a convic-
tion for a “crime of violence” within the meaning of
section 2L1.2(b)(1)(A)(ii) of the guidelines. That section
defines the term, so far as bears on this case, as a crime
“that has as an element the use, attempted use, or threat-
ened use of physical force,” which the Supreme Court
has interpreted to mean “force capable of causing
physical pain or injury to another person.” Johnson v.
United States, 130 S. Ct. 1265, 1271 (2010). The crime
must, moreover, be a felony to count as a crime of vio-
lence. U.S.S.G. § 2L1.2, Application Note 1(B)(iii).
Under Illinois law “a person commits battery if he
intentionally or knowingly without legal justification
and by any means, (1) causes bodily harm to an indi-
vidual or (2) makes physical contact of an insulting or
provoking nature with an individual.” 720 ILCS 5/12-3(a).
This is “simple battery,” a misdemeanor. Id., 5/12-3(b). A
person commits “aggravated battery,” a felony, either
if, “in committing a [simple] battery, [he] intentionally or
knowingly causes great bodily harm, or permanent dis-
ability or disfigurement,” id., 5/12-4(a), or if the battery
involves one or more aggravating factors other than
intentionally or knowingly causing great bodily harm or
permanent disability or disfigurement. Id., 5/12-4(b). The
present case is of the second type, and the aggravating
factor is committing the battery on a “public way.” Id.,
5/12-4(b)(8). It may seem odd that committing a battery
on a street or a sidewalk rather than on private property

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No. 09-3992 3
should make it a felony; but a battery that occurs in
private is less worrisome to the public at large because
more likely to arise from a private quarrel than from a
mugging—or so at least the Illinois legislature seems to
have believed. See People v. Cole, 362 N.E.2d 432, 435
(Ill. App. 1977).
The district judge ruled that the defendant had commit-
ted a battery on a public way, and therefore a crime of
violence within the meaning of the sentencing guideline,
and it was on this basis that she concluded that the 77 to
96 month guidelines range was the proper starting
point for deciding how long a sentence to impose. The
defendant challenges that ruling. He also complains that
the judge should have dipped even farther below the
applicable guideline range in sentencing him than she
did, but that complaint is frivolous and requires no dis-
cussion.
He begins by noting correctly that not every crime that
Illinois classifies as an aggravated battery is a crime of
violence within the meaning of the sentencing guide-
line. Violence is not an element of battery under Illinois
law, or even of aggravated battery under 720 ILCS 5/12-
4(b), as distinct from under 4(a). Remember that under 4(b)
aggravated battery is simple battery plus an aggravating
factor, and neither simple battery nor the 4(b) aggravating
factor need be violent. Simple battery can consist of just
“physical contact of an insulting or provoking nature”
with the victim, and the aggravating factor can just be
the fact that, as in this case, the simple battery occurred on
a public way. But this means that had the defendant

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4 No. 09-3992
merely spat on his victim while the two were standing
on a public sidewalk, this would be an aggravated
battery but not a crime of violence, as it would involve
a merely “insulting or provoking” physical contact. The
terms “insulting” and “provoking” are taken from the
common law tort of battery, which requires only an
offensive contact—the sort of thing that might provoke a
breach of the peace. Spitting on a person is the standard
example of a provoking act, e.g., Alcorn v. Mitchell, 63
Ill. 553 (1872); Cohen v. Smith, 648 N.E.2d 329, 331-33 (Ill.
App. 1995), as distinct from a violent one. Cf. United States
v. Evans, 576 F.3d 766, 767-68 (7th Cir. 2009) (per curiam).
By its reference to conduct that “causes bodily harm,” the
statute embraces violent batteries as well, id. at 768-69;
Allstate Ins. Co. v. Kovar, 842 N.E.2d 1268, 1270-71 (Ill.
App. 2006), but just being told that a person was con-
victed of aggravated battery because he committed a
battery on a public way does not enable an inference
that he was convicted of a crime of violence.
When the same state criminal statute punishes conduct
that is and conduct that is not a crime of violence for
purposes of federal sentencing, the federal court is not
permitted to determine which kind of conduct the defen-
dant engaged in if the determination would require
resolving a factual dispute. For that would require a trial
within the sentencing hearing and if the result was to
increase the maximum punishment of the defendant
would infringe his constitutional right to trial by jury.
Taylor v. United States, 495 U.S. 575, 600-02 (1990); United
States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en
banc); United States v. Browning, 436 F.3d 780, 780-82 (7th

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No. 09-3992 5
Cir. 2006). “Congress intended the sentencing court to
look only to the fact that the defendant had been con-
victed of crimes falling within certain categories, and not
to the facts underlying the prior convictions.” Taylor v.
United States, supra, 495 U.S. at 600.
The Supreme Court thus held in Shepard v. United States,
544 U.S. 13, 26 (2005), that in seeking to classify a prior
state conviction for federal sentencing purposes the
sentencing judge “is limited to the terms of the charging
document, the terms of a plea agreement or transcript
or colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defen-
dant, or to some comparable judicial record of this infor-
mation.” See also United States v. Ramirez, 606 F.3d 396,
398 (7th Cir. 2010); United States v. Dismuke, 593 F.3d 582,
589 (7th Cir. 2010). There is no objection to using judicial
admissions, such as admissions in a guilty-plea hearing
(including the guilty plea itself), to determine whether
the crime of which the defendant was convicted is
within a category specified by federal law because
judicial admissions bind the defendant in subsequent
proceedings and so avoid any occasion for the federal
sentencing judge to determine contested facts regarding
an earlier crime.
The judge in this case did not base her determination
that the defendant’s aggravated battery was a crime of
violence on a judicial record, however—not directly at
any rate. She based it on a summary in the presentence
investigation report of the two-count indictment in the
battery case, and on the further statement in the report
that the defendant had pleaded guilty to both counts. A

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6 No. 09-3992
presentence investigation report is prepared by the
federal probation service. Fed. R. Crim. P. 32(c), (d). It is
not a judicial record.
One count in the indictment, according to the sum-
mary, was not a battery count at all; it charged the defen-
dant with having committed theft by reaching into his
victim’s pocket and removing $10 from it. There is no
contention that this count charged a crime of violence.
The other count, however, charged the defendant with
having committed aggravated battery by having “know-
ingly caused bodily harm” to the victim (the same
person named in the theft count) by “stri[king him] in
the face with his fist” on a public sidewalk.
Here is the summary in full:
According to the indictment filed, the defendant on
or about August 18, 2006, committed the offense of
theft, in that he knowingly obtained unauthorized
control over the property of James R. Raymond,
being $10.00 in United States currency, intending to
deprive James R. Raymond permanently of the use
or benefit of such property, in that he forcefully re-
moved such property from the person of James R.
Raymond, by reaching into the pocket of James R.
Raymond. The indictment further charges that, on
[or about August 18, 2006], the defendant committed
the offense of aggravated battery in that, while
James R. Raymond was on a public sidewalk, located
in Villa Park, Illinois, the defendant knowingly
caused bodily harm to James R. Raymond, in that he
struck James R. Raymond in the face with his fist.

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No. 09-3992 7
The defendant as we said pleaded guilty to both theft
and aggravated battery, and since punching someone
in the face is a crime of violence within the meaning of
the relevant sentencing guideline because it involves the
use of physical force “capable of causing physical pain
or injury to another person,” Johnson v. United States,
supra, 130 S. Ct. at 1271; United States v. Rodriguez-Gomez,
608 F.3d 969, 973 (7th Cir. 2010), the defendant may
seem nailed. But there’s a rub. The indictment was
never placed in the record, either in the district court or
in this court. All we have is the summary. In Rodriguez-
Gomez we held that a quotation from the indictment in
a government submission to the probation service that
was attached to the presentence investigation report
could be treated as if it were the indictment itself. 608
F.3d at 974. But an additional factor in that case was
that “at oral argument, appointed counsel acknowl-
edged receipt of the [indictment] in the aggravated
battery conviction. He did not argue that it was error
to conclude that [the defendant] had been convicted
under the first prong of the battery statute,” id., that is,
720 ILCS 5/12-4(a), which, remember, requires the
“use, attempted use, or threatened use of physical force.”
We do not have an admission in this case, but only
the summary. If it can be taken as a complete and
accurate summary, then in pleading guilty to ag-
gravated battery the defendant was admitting that he
had punched his victim in the face, and the admission
would be binding and thus establish that he had been
convicted of a form of battery that constitutes a crime
of violence under the federal sentencing guidelines. But

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8 No. 09-3992
it may not be complete and accurate. No one has
vouched for its accuracy. An indictment is a public docu-
ment, and we can’t think of any reason—and have been
given no reason—why the government could not have
obtained a certified copy and submitted it at the sen-
tencing hearing. An unsubstantiated summary of an
indictment in a presentence investigation report
does not satisfy the Supreme Court’s requirement of a
judicial record and thus is not (unless its accuracy is
unquestioned—an important qualification to which
we’ll return) a proper basis for classifying a defendant’s
prior crimes for purposes of federal sentencing.
And so most courts have held. United States v. Wynn,
579 F.3d 567, 575-77 (6th Cir. 2009); United States v. Hays,
526 F.3d 674, 678 (10th Cir. 2008); United States v. Rosa, 507
F.3d 142, 156 (2d Cir. 2007); United States v. Martinez-
Vega, 471 F.3d 559, 561-62 (5th Cir. 2006); United States
v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006);
United States v. Webster, 442 F.3d 1065, 1068-69 (8th Cir.
2006); United States v. Contreras-Salas, 387 F.3d 1095, 1098
(9th Cir. 2004). We have found only two outliers. United
States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005), states
that “the trial judge was entitled to rely upon the
PSR because it bears the earmarks of derivation from
Shepard-approved sources such as the indictments and
state-court judgments from his prior convictions, and,
moreover, [the defendant] never raised the slightest
objection either to the propriety of its source material or
to its accuracy.” The alternative holding, in the second
sentence, is fine; but the phrase “earmarks of derivation”
makes us uncomfortable. Similarly, the statement in Ryle

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No. 09-3992 9
v. State, 842 N.E.2d 320, 323-25 (Ind. 2005), that because
probation officers are highly trained, a summary of
a judicial record appearing in a state presentence inves-
tigation report may be relied on in sentencing, troubles
us because it would open the door to a promiscuous use
of summaries composed by “highly trained” persons
in lieu of original documents. That’s a particularly dis-
turbing prospect when we reflect that in this case the
classification of the defendant’s battery as a crime of
violence may well have doubled his sentence.
In Rodriguez-Gomez at least, the material part of the
indictment was quoted, and, critically, the defendant’s
lawyer admitted the quotation was accurate; he had seen
the indictment and could attest to the accuracy of the
quotation. There is nothing like that here. But there’s
something else. The defendant’s lawyer didn’t question
the accuracy of the summary in the presentence inves-
tigation report, even though she had access to the indict-
ment; it is a public document, as we said. She could
have gotten hold of a certified copy of the indictment
and compared it with the summary in the presentence
investigation report, just as the defendant’s lawyer
in Rodriguez-Gomez had done. Her failure to do so
suggests fear of what she would find; and in any event,
not having objected in the district court to the sum-
mary, she can prevail on appeal only by showing that
the district judge committed a plain error (an error at
once evident and prejudicial) in basing the sentence on
the summary. United States v. Ramirez, supra, 606 F.3d
at 398-99.

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10 No. 09-3992
And just as in Ramirez, she has not carried that burden.
See also United States v. Martinez-Vega, supra, 471 F.3d
at 563. In fact, we don’t think she’s shown any error by
the district court. Nothing is more common than for
parties by stipulation formal or informal to agree to facts
that, were it not for the stipulation, would have to be
proved by evidence, in this case a judicial record. See
United States v. Mezzanatto, 513 U.S. 196, 203 (1995). Such
stipulations are routine, for example in crimes against
federally insured banks, where the parties normally
stipulate that the bank is federally insured rather than
requiring that this be proved by submitting the bank’s
FDIC certificate of deposit insurance to the court. E.g.,
United States v. Hampton, 464 F.3d 687, 688 (7th Cir. 2006);
Bailey v. Mitchell, 271 F.3d 652, 657 (6th Cir. 2001); United
States v. Branch, 46 F.3d 440, 441-42 (5th Cir. 1995). A
defendant’s criminal record is also commonly stipulated.
E.g., United States v. Stokes, 211 F.3d 1039, 1042-43 (7th
Cir. 2000); United States v. Le, 512 F.3d 128, 133 (5th Cir.
2007); United States v. Johnson, 505 F.3d 120, 122 (2d Cir.
2007).
There is no reason to go digging for a state-court indict-
ment if the parties agree on what it says. The judge was
entitled to assume that the parties agreed that the sum-
mary of the indictment was accurate. “At sentencing, the
court may accept any undisputed portion of the
presentence report as a finding of fact.” Fed. R. Crim. P.
32(i)(3)(A); see also United States v. Kelly, 519 F.3d 355,
366 (7th Cir. 2008); United States v. Thornton, 463 F.3d 693,
700-01 (7th Cir. 2006); United States v. Lopez-Garcia, 565
F.3d 1306, 1323 (11th Cir. 2009); United States v. Jimenez,

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No. 09-3992 11
512 F.3d 1, 7 (1st Cir. 2007). She didn’t have to insist that
they produce the indictment. “[I]f a defendant offers an
admission in court papers or colloquy, as [the defendant]
does here in his plea agreement and during sentencing,
the proper enquiry into the previous conviction no
longer matters because the answer is in the form of an
admission in the record.” United States v. Kindle, 453
F.3d 438, 442 (7th Cir. 2006); see also United States v. Billups,
536 F.3d 574, 583-84 (7th Cir. 2008). The judge could
reasonably assume that the defendant’s lawyer was
satisfied that the summary was accurate. United States
v. Kelly, supra, 519 F.3d at 366; United States v. Turbides-
Leonardo, supra, 468 F.3d at 39.
The lawyer’s failure (if she did fail—for all we know,
she read the indictment and concluded that the sum-
mary was accurate) to obtain a copy of the indictment
may conceivably have been a breach of her professional
obligations to her client. United States v. Davenport, 986
F.2d 1047, 1048, 1049-50 (7th Cir. 1993); cf. United States
v. Tucker, 603 F.3d 260, 266-67 (4th Cir. 2010). If so, and
if the summary is inaccurate and the inaccuracy
material, the defendant may have a claim of ineffective
assistance of counsel that he can raise in a postconviction
proceeding. But the sentencing judge committed no
error, plain or otherwise.
AFFIRMED.
10-13-10

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