United States v. Gandy

• Citation: 917 F.3d 1333
• Decision Date: 06 March 2019
• Docket Number: No. 17-15035,17-15035
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford B. GANDY, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

917 F.3d 1333

UNITED STATES of America, Plaintiff-Appellee,

v.Clifford B. GANDY, Jr., Defendant-Appellant.

No. 17-15035

United States Court of Appeals, Eleventh Circuit.

March 6, 2019

David Lance Goldberg, Robert G. Davies, U.S. Attorney Service - Northern District of Florida, U.S. Attorney's Office, PENSACOLA, FL, Jordane E. Learn, Karen E. Rhew-Miller, U.S. Attorney's Office, TALLAHASSEE, FL, for Plaintiff-Appellee.

Randall Scott Lockhart, Federal Public Defender's Office, PENSACOLA, FL, Randolph Patterson Murrell, Richard Michael Summa, Federal Public Defender's Office, TALLAHASSEE, FL, for Defendant-Appellant.

Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and CONWAY,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether Clifford Gandy Jr.’s prior conviction for battery of a jail detainee, Fla. Stat. §§ 784.03, 784.082, qualifies as a "crime of violence" under the Sentencing Guidelines. Gandy was convicted of possession with intent to distribute cocaine and marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C)–(D), possession of a firearm in furtherance of a drug-trafficking offense, 18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm by a convicted felon, id. §§ 922(g)(1), 924(a)(2). Based on Gandy’s prior convictions for battery and a controlled-substance offense, the district court classified him as a career offender. United States Sentencing Guidelines Manual § 4B1.1(a) (Nov. 2016). The district court then calculated Gandy’s sentencing range as 360 months to life imprisonment and varied downward to impose a 300-month sentence of imprisonment. Gandy contends that his prior conviction for battery is not a crime of violence under the Guidelines. He argues that Florida battery is divisible only between "touching and striking" and "intentionally causing bodily harm," and that, under the modified categorical approach, we cannot determine that he was convicted of "intentionally causing bodily harm." Because the record makes clear that Gandy’s conviction for battery necessarily was for "intentionally causing bodily harm," we affirm.

I. BACKGROUND

In June 2016, a grand jury indicted Gandy for possession with intent to distribute cocaine and marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C)–(D) (Count 1); possession of a firearm in furtherance of a drug-trafficking offense, 18 U.S.C. § 924(c)(1)(A)(i) (Count 2); and possession of a firearm by a convicted felon, id. §§ 922(g)(1), 924(a)(2) (Count 3). After a two-day trial, the jury convicted Gandy on all counts. The district court then scheduled a sentencing hearing, and the probation officer prepared Gandy’s presentence investigation report.

The probation officer classified Gandy as a career offender based on three prior felony convictions: a 2010 nolo contendere plea for battery upon a detainee, Fla. Stat. §§ 784.03, 784.082 ; a 2012 nolo contendere plea for felony battery; and a 2013 nolo contendere plea for the sale, manufacture, delivery, or possession of a controlled substance with intent to sell. See U.S.S.G. § 4B1.1(a). This classification subjected Gandy to the increased sentencing ranges that apply to career offenders with multiple counts of conviction one of which is possession of a firearm in furtherance of a drug-trafficking offense, 18 U.S.C. § 924(c). See U.S.S.G. § 4B1.1(b)–(c). The probation officer calculated that Gandy’s total sentencing range was 360 months to life imprisonment.

Gandy objected to his classification as a career offender on the ground that his battery convictions were not crimes of violence. He asserted that our decision in United States v. Green (Green I) , 842 F.3d 1299 (11th Cir. 2016), opinion vacated and superseded on denial of reh’g , 873 F.3d 846 (11th Cir. 2017), was wrongly decided and that striking and touching for Florida battery, Fla. Stat. § 784.03, are not divisible. And Gandy argued, based on Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), that no documents could be used to determine whether his battery convictions qualified as crimes of violence under the modified categorical approach. See Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Gandy calculated that his total sentencing range should be 144 to 165 months’ imprisonment.

The government responded that Gandy’s battery convictions constituted crimes of violence based on Green I . In Green I , we explained that the Florida simple battery statute is divisible between "touching," "striking," and "intentionally causing bodily harm" battery, and that a court should use the modified categorical approach and consult Shepard -approved documents to decide which elements of battery a conviction was based on. 842 F.3d at 1322. And we held that if Shepard documents establish that a defendant was convicted of the "striking" element as opposed to the "touching" element of simple battery, then the conviction qualifies as a predicate "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Id.

With respect to the 2010 conviction, the government submitted four Shepard documents. First, the government submitted a charging document that stated that Gandy committed a battery upon a jail detainee "by actually and intentionally touching or striking [the victim] ... or by intentionally causing bodily harm to [the victim,] by hitting the victim in the face and head," in violation of Fla. Stat. §§ 784.03, 784.082.

Second, the government submitted Gandy’s sentence-recommendation form, which is the equivalent of his plea agreement. The sentence recommendation reflects that Gandy pleaded nolo contendere to "Battery Upon a Jail Visitor or Other Detainee." The sentence recommendation, which Gandy and his state-court counsel signed, also includes the following factual basis:

FACTUAL BASIS: The arrest report ... which is a part of the court record filed with the clerk of the court is hereby incorporated by reference and agreed to by the defendant as a factual basis for this plea and/or the factual basis is as follows:

...

On December 11, 2010, deputies responded to the Red Pod in the Escambia County Jail and observed victim Clunion Galloway laying on the floor and bleeding. Victim Galloway stated that he was playing cards with other inmates when he was hit from behind. Victim Galloway did not see who the attacker was.

Video surveillance was reviewed and shows the defendant approached the victim and str[uck] him in the head multiple times causing the victim to fall to the ground. The video then shows the defendant continuing to strike the victim on the ground. The video does not show any provocation.

Gov. Ex. A at 5, United States v. Gandy , No. 3:16-cr-00055-MCR-1 (N.D. Fla. Dec. 9, 2016), ECF No. 58-1 (emphasis altered).

Third, the government submitted the arrest report that Gandy expressly incorporated as the factual basis for his plea. The arrest report includes the following statement of probable cause:

On 12/11/2010 ... Clifford Gandy, Jr did knowingly and intentionally commit the offense of Battery Causing Bodily Harm , as follows.

On 12/12/10, I was dispatched to [the jail] in reference to a battery complaint. Upon arrival, I made contact with Sergeant Bullion ... who stated that at approximately 2135 hours on 12/11/2010 an inmate attacked another inmate. Sergeant Bullion provided me with their incident report .... The report stated that Deputy Frymire ... responded to the Red Pod where he observed V/Clunion Galloway lying on the floor and bleeding. V/Galloway told Deputy Frymire that he was playing cards when someone hit him from behind. V/Galloway stated that he did not see who hit him. V/Galloway was transported to the Infirmary where he was treated by medical staff. Deputy Frymire stated that S/Clifford Gandy later admitted to hitting V/Galloway. S/Gandy was also escorted to the Infirmary where he was seen by medical staff.

I was advised by Sergeant Bullion that V/Galloway wished to pursue criminal charges, and he also advised me that there was a video of the incident. Sergeant Buillion played the video for me at which time I observed V/Galloway playing cards. I could then clearly see S/Gandy walk up behind V/Galloway and unprovokedly str[ike] V/Galloway in the face which caused V/Galloway to fall down to the ground. S/Gandy then continued to strike V/Galloway multiple times on the head. ... Sergeant Bullion took photographs of V/Galloway’s injuries which he provided to me. ... V/Galloway had a cut below his right eye, a scratch below his right ear, a bruise on the top of his head, a minor cut on his nose and a cut above his left eye.

S/Gandy was charged with battery causing bodily harm .

Id. at 11–12 (emphasis added). The report also lists the charge as "Battery Caus[ing] Bodily Harm," and it refers exclusively to the subsection of the statute that Gandy violated as section 784.03(1)(a)(2), which addresses "intentionally causing bodily harm."

Fourth, the government submitted the state-court judgment. The judgment states that Gandy pleaded nolo contendere to "battery upon a jail visitor or other detainee," in violation of sections 784.03 and 784.082.

In January 2017, the district court entered an order continuing Gandy’s sentencing. The court was inclined to agree with Gandy that section 784.03 is not divisible between "touching" and "striking" elements, but it explained that it was "clearly" bound by Green I . The court also mentioned that it hoped that the issue of the divisibility of the Florida battery statute would be resolved in the then-pending appeal in United States v. Vail-Bailon , No. 15-10351 (11th Cir.). Gandy’s sentencing was then rescheduled for after we decided that appeal. In August 2017, we issued our opinion in Vail-Bailon that felony battery under Fla. Stat. § 784.041 categorically qualifies as a crime of violence under the Sentencing Guidelines. United States v. Vail-Bailon , 868 F.3d 1293, 1308 (11th Cir. 2017) (en banc). After our ruling, the district court...