United States v. Lee
| Decision Date | 25 April 2018 |
| Docket Number | Case No. 3:17cr63/MCR |
| Parties | UNITED STATES OF AMERICA v. DARREN L. LEE. |
| Court | U.S. District Court — Northern District of Florida |
Defendant Darren L. Lee pled guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Lee's Presentence Investigation Report ("PSR") classified him as an armed career criminal and increased his base offense level from 24 to 30, pursuant to 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"), and U.S.S.G. § 2K2.1, based on four prior convictions in the state of Florida: (1) one for possession with intent to sell or distribute cocaine; (2) one for aggravated battery of a pregnant woman; and (3) two for felony battery. The resulting Guidelines range was 180 months to 210 months.1 Lee objected to the armed career criminal classification, arguing that his prior aggravated battery and felony battery convictions do not qualify as "violent felonies"for purposes of the ACCA. At sentencing, the Court disagreed with Lee and applied the ACCA enhancement.2 This Order memorializes and further explains that ruling.
Under the ACCA, a defendant who is convicted of being a felon in possession of a firearm is subject to a mandatory minimum sentence of 15 years (180 months) if he has three prior convictions for a "violent felony" or "serious drug offense." 18 U.S.C. § 924(e)(1). The parties agree that Lee's prior conviction for possession with intent to distribute cocaine qualifies as a serious drug offense for purposes of the ACCA. The only dispute is whether Lee's prior aggravated battery and felony battery convictions qualify as violent felonies. At least two of the convictions must qualify in order for Lee to have the three predicates necessary to support an ACCA-enhanced sentence.
The ACCA defines a "violent felony" as any crime punishable by imprisonment for a term exceeding one year that either: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is burglary, arson, extortion, or involves the use of explosives. 18 U.S.C. § 924(e)(2). The first prong of this definition is commonly referred to as the elements clause and the second prong as the enumerated clause.3 United States v.Fritts, 841 F.3d 937, 939 (11th Cir. 2016). Neither aggravated battery nor felony battery is listed as an ACCA predicate under the enumerated clause. Therefore, Lee is only subject to the ACCA enhancement if these offenses, as defined by Florida law, fall within the elements clause.
To determine whether a prior conviction falls within the elements clause, sentencing courts generally employ a categorical approach, looking only to the statutory definition of the offense, without inquiring into the defendant's specific conduct in committing it. See Mathis v. United States, 136 S. Ct. 2243, 2251-52 (2016). Under this approach, courts must presume that the defendant's conviction "rested upon the least of the acts criminalized" by the statute and determine whether, in all instances, those acts involve the use, attempted use, or threatened use of physical force against another person. United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017). If so, then the offense categorically qualifies as an ACCA predicate and the inquiry ends there. Id. If not—that is, if the statute criminalizes conduct that does not involve physical force—then the offense cannot categorically qualify as an ACCA predicate, even if the particular facts underlying the defendant's own conviction might satisfy the definition. Id.
"In most cases, the categorical approach should be the beginning and end of the analysis." United States v. Estrella, 758 F.3d 1239, 1245 (11th Cir. 2014). However, in a "narrow range of cases" where the statute of conviction is divisible—that is, where it is "disjunctive[ly] phras[ed]" and lists multiple alternative elements of functionally separate crimes, as opposed to various factual means of committing the same element of a single crime—and at least one, but not all of the criminalized acts falls within the elements clause, sentencing courts employ a "modified categorical approach" to determine whether the statute qualifies as an ACCA predicate. Mathis, 136 S. Ct. at 2249, 2253; see also Estrella, 758 F.3d at 1245. The modified categorical approach allows courts to examine a limited class of documents, in addition to the statute and the fact of conviction, "to determine what crime, with what elements" formed the basis of the defendant's prior conviction. Mathis, 136 S. Ct. at 2245. These documents, known as Shepard materials, include the charging document, jury instructions, a written plea agreement, a transcript of a plea colloquy, and "any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16 (2005). Importantly, the modified categorical approach retains the categorical approach's focus on the elements of the underlying crime, not the facts. See Descamps v. United States, 570 U.S. 254, 263 (2013). After identifying the statutory elements of the crime for which the defendant was convicted, courts must "decide whether the least of the acts criminalized by that statutory phrase (instead of whether all of the acts criminalized by all of the statutory phrases) includes the use, attempted use, or threatened use of physical force against another person." See Davis, 875 F.3d at 598.
In ascertaining the scope of conduct criminalized by the elements of an offense, sentencing courts consider not only the statutory language, but also the interpretation given to that language by appropriate state appellate courts, which is binding. See Davis, 875 F.3d at 597; see also United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015) (); United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) (). To find an offense overboard, there must be a "realistic probability, not a theoretical possibility" that the statute would be applied to conduct not encompassed by the elements clause of the ACCA. See United States v. Dixon, 874 F.3d 678, 681 (11th Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
Lee was previously convicted of aggravated battery, a second-degree felony, in violation of Fla. Stat. § 784.045(1)(b), which requires proof that a defendant: (1) committed a simple battery; and (2) knew or should have known that the victim was pregnant at the time.4 See Small v. State, 899 So.2d 862, 863 (Fla. 1st DCA 2005). Lee also has two prior third-degree felony battery convictions under Fla. Stat. § 784.03(2), which requires proof that a defendant: (1) committed a simple battery; and (2) at the time, had one or more prior convictions for simple battery, aggravated battery, or felony battery.5 See Osborn v. State, 177 So.3d 1034, 1035 (Fla. 1st DCA 2015). The substantive offense underlying both of these statutes is simple battery, which ordinarily is a first-degree misdemeanor in Florida, see Fla. Stat. § 784.03(1), but is elevated to a felony for a defendant who, like Lee, has been convicted of battery in the past or knew that the victim was pregnant at the time. See Fla. Stat. §§ 784.03(2), 784.045(1)(b). Thus, determining whether Lee's prior convictions qualify as "violent felonies" under the elements clause of the ACCA depends on whether simple battery, under Florida law, has as an element the use, attempted use,or threatened use of physical force. Physical force, in this context, means "violent force—that is, force capable of causing pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010) ("Curtis Johnson").
Under Florida law, simple battery occurs when a person either: (1) actually and intentionally touches or strikes another person without consent; or (2) intentionally causes bodily harm to another person. Fla. Stat. § 784.03(1). The Supreme Court has held that a Florida felony battery conviction predicated on the commission of simple battery does not categorically constitute a "violent felony" under the ACCA because the least of the acts criminalized by Florida's simple battery statute—i.e., an actual and intentional touching—does not have as an element the use, attempted use, or threatened use of violent force. Curtis Johnson, 559 U.S. at 138. To the contrary, the simple battery statute encompasses "any intentional, physical contact, no matter how slight," and even "[t]he most nominal contact, such as a tap on the shoulder without consent, establishes a violation." See id. (internal marks omitted). Accordingly, pursuant to Curtis Johnson, the Court finds that Lee's prior aggravated battery and felony battery convictions, which are predicated on his commission of simple battery, do not categorically constitute violent felonies.
The Court next analyzes whether Florida's simple battery statute is divisible. Importantly, the Supreme Court did not reach this question in Curtis Johnson because there were no available Shepard documents that would have permitted a conclusion that the defendant's conviction rested on anything more than the least of the acts criminalized by the simple battery statute. Curtis Johnson, 559 U.S. at 136. In the Eleventh Circuit, it is well-established that Florida's simple battery statute "comprises multiple, alternative versions of [the] crime" of battery. See United States v. Braun, 801 F.3d 1301, 1305 (11th Cir. 2015); Wilson v. Warden, FCC Coleman, 581 F. App'x 750, 754 (11th Cir. 2014); United States v. Diaz-Calderone, 716 F.3d 1345 (11th Cir. 2013). Until...
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