United States v. Diaz-Calderone, 12–12013.

• Decision Date: 23 May 2013
• Docket Number: No. 12–12013.,12–12013.
• Citation: 716 F.3d 1345
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Pedro DIAZ–CALDERONE, a.k.a. Pedro Calderone Diaz, a.k.a. Calderon Pedro, a.k.a. Pedro Diaz, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

716 F.3d 1345

UNITED STATES of America, Plaintiff–Appellee,

v.Pedro DIAZ–CALDERONE, a.k.a. Pedro Calderone Diaz, a.k.a. Calderon Pedro, a.k.a. Pedro Diaz, Defendant–Appellant.

No. 12–12013.

United States Court of Appeals, Eleventh Circuit.

May 23, 2013.

Harriett Galvin, Wifredo A. Ferrer, Lisa Tobin Rubio, Kathleen Mary Salyer, Anne Ruth Schultz, U.S. Attys., Miami, FL, Carmen M. Lineberger, U.S. Atty., Fort Pierce, FL, for Plaintiff–Appellee.

Michael Caruso, Fed. Pub. Def., Miami, FL, Fletcher Peacock, Fed. Pub. Def., Fort Pierce, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, Chief Judge, and BARKETT and KLEINFELD,^* Circuit Judges.

KLEINFELD, Circuit Judge:

We address whether, in the circumstances of this case, facts alleged in police officers' affidavits established a sufficient basis for a “crime of violence” sentencing enhancement.

FACTS

Diaz–Calderone's conviction and sentence before us was for being a deported alien found in or having reentered the United States without permission. ¹ He received a sentence of 48 months' imprisonment, towards the low end of his guidelines range of 46–57 months. His guidelines range would have been considerably lower had he not received a sixteen level enhancement for a prior conviction for a “crime of violence.”² The question raised in this appeal is whether the sentencing judge erred when he applied the modified categorical approach and determined that Diaz–Calderone had committed a prior “crime of violence” under U.S.S.G. § 2L1.2.³

Diaz–Calderone's prior convictions were for a State of Florida crime, “aggravated battery,” consisting of battery upon a pregnant victim whom the perpetrator knew or should have known was pregnant.⁴ The complication in this case is that Florida battery, even aggravated battery upon a pregnant woman, need not be violent. It can be accomplished merely by an intentional touching against the victim's will. Florida courts interpret the aggravated battery upon a pregnant victim statute to mean that the defendant must 1) commit simple battery 2) upon a pregnant victim that they knew or should have known was pregnant.⁵ Florida simple battery “occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.”⁶ Florida courts interpret simple battery to include “any intentional touching, no matter how slight.”⁷ Therefore, aggravated battery upon a pregnant woman can be accomplished by 1) intentional touching, including slight contact; 2) striking; or 3) intentionally causing bodily harm.

Conceivably a grandmotherly stranger in a shopping mall or a lady at work might see a pregnant woman, say “oh how adorable, may I feel?” and, without waiting for an answer, touch the pregnant woman's stomach, much to the annoyance of the pregnant woman. That would be “aggravated battery” under the Florida statute, but not a “crime of violence” under the federal sentencing guidelines. Thus a Florida conviction for aggravated battery on a pregnant woman is not a categorical crime of violence for sentencing guidelines purposes. The district court correctly used the modified categorical approach instead.

Diaz–Calderone's Florida charge and conviction do not by themselves establish just what he did. He pleaded nolo contendere to two informations, both of which say that he committed aggravated battery, on March 14 and June 16, 2006, on the same pregnant woman. Both informations charged in the disjunctive that he “did intentionally touch or strike [the victim] against that person's will or did intentionally cause bodily harm to said person ....” ⁸ He pleaded nolo contendere and was convicted on his plea. By itself, those facts are consistent with merely touching, which would not be a “crime of violence,” as well as possibly striking or causing bodily harm, which would be a “crime of violence.”

To support treating the batteries as crimes of violence, the prosecutor in this federal case submitted as exhibits sworn affidavits from police officers describing the events as violent, and not merely unwanted touching.⁹ The complaint affidavit by the investigating police officer for the March incident says that the pregnant victim told him that her boyfriend Diaz–Calderone got angry at her because she left the car window open when they went into the store, so he hit her in the arm, she hit him back, she got out her cell phone to call the police, and he knocked it out of her hand. He continued hitting her, she took off her shoes and used them to hit him, and he left. The arrest affidavit for the June incident says that the pregnant victim told the police officer that Diaz–Calderone struck her several times in the arm and stomach, when they argued about a recent dance. The officer observed that her stomach was badly bruised.

The district court applied the modified categorical approach, but did not rely on the affidavits themselves for his decision to add the guidelines enhancement for a crime of violence. Instead, the court relied upon statements made in Diaz–Calderone's change of plea proceeding in state court for the two aggravated battery on a pregnant woman cases. The government submitted an audio recording of this plea as an exhibit, and the sentencing judge in this federal case “listened very carefully to the recording.” The judge found that in the colloquy, “the defendant assented to the facts which would make this a violent offense” and that defense counsel affirmed that the arrest affidavit provided a factual basis for Diaz–Calderone's plea.

Diaz–Calderone argues that the district court should have determined that Florida aggravated battery was not categorically a crime of violence, and stopped there. He objects to the court's use of the modified categorical approach, and says that the court should not have made any findings based on the arrest affidavit. He argues that since he pleaded nolo contendere to the Florida aggravated batteries, he should be deemed to have admitted nothing, and the plea to have established nothing, about whether they were violent.

ANALYSIS

“We review de novo whether a defendant's prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.”¹⁰ We review the district court's findings of fact for clear error.¹¹As stated above, the Florida offense of aggravated battery upon a pregnant woman is not categorically a crime of violence. We had held otherwise in United States v. Llanos–Agostadero,¹² but the Supreme Court's decision in Johnson v. United States¹³ overruled Llanos–Agostadero on this point.¹⁴ The court in Llanos–Agostadero based its decision on the understanding that the Florida offense of simple battery was a categorical crime of violence under U.S.S.G. § 2L1.2(b), as it had as an element “the use of physical force.”¹⁵ But in Johnson, the Supreme Court held that even a slight touching, such as an unwanted tap on the shoulder, could satisfy the elements of Florida simple battery, and that therefore Florida simple battery did not require the use of physical force.¹⁶Johnson dealt with the Armed Career Criminal Act's definition of a violent felony, not the sentencing guidelines' definition of a crime of violence. However, United States v. Williams¹⁷ makes clear that this distinction makes no difference.¹⁸

But Diaz–Calderone is mistaken in arguing that that should be the end of the inquiry, and that the district court should not have used the modified categorical approach in this case. Diaz–Calderone argues that Florida's aggravated battery statute is not ambiguous, and does not have “as an element the use ... of physical force.”¹⁹ He argues that the phrase “different statutory phrases” in United States v. Palomino Garcia,²⁰ implies a negative pregnant, that in the absence of such different statutory phrases there can be no ambiguity justifying application of the modified categorical approach. But because the word “battery” in Florida's aggravated battery upon a pregnant woman statute encompasses a mix of forceful and non-forceful conduct, the statute is ambiguous. The district court was correct to use the modified categorical approach.²¹

United States v. Rosales–Bruno²² holds that, like police reports, Florida arrest affidavits cannot be used in the modifiedcategorical inquiry because they do not establish with sufficient certainty the conduct involved in the state crime for the modified categorical approach.²³ Florida complaint affidavits are not distinguishable from arrest affidavits for this purpose. Thus the two affidavits about what the victim told investigating police officers cannot, by themselves, establish a predicate for the crime of violence sentencing enhancement. Such affidavits serve useful purposes, such as determining whether there is probable cause for an arrest or charges, and guiding investigation by prosecutors and defense attorneys, but they do not establish what the convicted defendant did with sufficient certainty for the enhancement. “We will not rely on the arrest affidavit in making this determination. Evidence used to determine whether a prior guilty plea supported a conviction for a violent felony must ‘be confined to records of the convicting court approaching the certainty of the record of conviction.’ ” ²⁴ Witnesses may be mistaken or may lie to the police, police may misunderstand what upset people are trying to tell them, and police reports may tell only part of the story.

But the district judge in this case did not make the mistake of treating the two affidavits as establishing how Diaz–Calderone committed the two batteries on a pregnant woman. Nor did the judge treat the nolo contendere plea as though it had been an admission, by itself, of anything at all. Instead he listened carefully to the change of plea proceedings. Shepard v. United States²⁵ and the cases following it allow a...