United States v. Rosales-Bruno

• Decision Date: 06 April 2012
• Docket Number: No. 11–14293Non–Argument Calendar.,11–14293Non–Argument Calendar.
• Citation: 676 F.3d 1017,23 Fla. L. Weekly Fed. C 904
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesus ROSALES–BRUNO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 904

676 F.3d 1017

UNITED STATES of America, Plaintiff–Appellee,

v.Jesus ROSALES–BRUNO, Defendant–Appellant.

No. 11–14293Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 6, 2012.

Anne Ruth Schultz, Wifredo A. Ferrer, Harriett Galvin, Laura Thomas Rivero, U.S. Attys., Miami, FL, Theodore Cooperstein, 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 PRYOR, MARTIN and KRAVITCH, Circuit Judges.

MARTIN, Circuit Judge:

Jesus Rosales–Bruno appeals his sentence of eighty-seven months imprisonment, imposed following his plea of guilty to one count of illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). In this appeal, Rosales–Bruno claims that the district court erred by enhancing his sentence based on its finding that his prior conviction for false imprisonment under Florida law qualified as a conviction for a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See Fla. Stat. § 787.02 (defining “false imprisonment” as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will”).

Rosales–Bruno contends that, because Florida's false imprisonment statute creates criminal liability for detaining another person “secretly,” it is possible to commit the offense without employing the “physical force” contemplated in the Guidelines. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). From there, Rosales–Bruno argues that the government failed to establish that he did, in fact, employ “physical force” when he committed the offense of false imprisonment. Because the government has not proven that Rosales–Bruno's guilty plea for false imprisonment necessarily supported a conviction for a violent felony, we vacate Rosales–Bruno's sentence and remand.

The Sentencing Guidelines impose a sixteen-level enhancement if an alien “was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 1, 2011). “We review de novo whether a defendant's prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris, 586 F.3d 1283, 1284 (11th Cir.2009).

We pursue a “modified categorical approach” in making the determination about whether a prior conviction was for a “crime of violence.” United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir.2010); see also Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010). Under this approach, we first look to the “fact of conviction and the statutory definition of the prior offense, as well as any charging paper and jury instructions to ascertain whether,” as a formal matter, committing the offense required committing a “crime of violence.” Palomino Garcia, 606 F.3d at 1328 (quotation marks omitted); see also James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007). However, where the statutory definition of the prior offense encompasses both violent and nonviolent conduct, we look beyond the fact of conviction and elements of the offense to determine whether the prior conviction falls under a particular statutory phrase that qualifies it as a “crime of violence.” See Johnson, 130 S.Ct. at 1273.

In making this second inquiry, we limit our review to reliable materials that allow us to determine whether the particular conviction “necessarily” rested on a fact establishing the crime as a violent offense. Shepard v. United States, 544 U.S. 13, 21, 125 S.Ct. 1254, 1260, 161 L.Ed.2d 205 (2005). Where, as here, the prior conviction stems from a guilty plea, the materials we review include “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.” Id. at 26, 125 S.Ct. at 1263. In that vein, we may also rely on facts contained in a presentence investigation report (PSR), so long as those facts are undisputed. United States v. Beckles, 565 F.3d 832, 843 (11th Cir.2009); see also Shepard, 544 U.S. at 24, 125 S.Ct. at 1261 (plurality opinion) (stating that, for a pleaded conviction, “the only certainty ... lies ... in the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea”). In contrast, we do not “rely on police reports or other documents supporting the criminal complaint because a defendant generally does not admit the conduct described in those documents.” Palomino Garcia, 606 F.3d at 1328 (citing Shepard, 544 U.S. at 22–23, 125 S.Ct. at 1260–61).

Addressing Rosales–Bruno's appeal then, we first consider whether false imprisonment under Florida law is categorically a “crime of violence.” Id. at 1326.¹ While the Commentary of the Guidelines identifies several offenses as crimes of violence, it does not specify false imprisonment as being among that group. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). Thus, we must decide whether a conviction for false imprisonment under Florida law “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id.

The meaning of “physical force” is a question of federal law, not state law. Palomino Garcia, 606 F.3d at 1331. But, in determining whether a conviction for false imprisonment under Fla. Stat. § 787.02 is a “crime of violence” for sentencing enhancement purposes, we are bound by Florida courts' determination and construction of the substantive elements of that state offense. See Johnson, 130 S.Ct. at 1269; see also Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir.2011) (affording Johnson deference to states' intermediate courts, where no state supreme court precedent exists).

The ordinary meaning of the phrase “physical force” “suggests a category of violent, active crimes ....” Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 383, 160 L.Ed.2d 271 (2004). Further, when interpreting “physical force” in defining the analogous statutory category of “violent felon[ies],” the Supreme Court has confirmed that “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Johnson, 130 S.Ct. at 1271; see also id. at 1272 (“[T]he term ‘physical force’ itself normally connotes force strong enough to constitute ‘power’—and all the more so when it is contained in a definition of ‘violent felony.’ ”).

Against this backdrop, we look to Florida case law to determine whether a conviction under § 787.02 necessarily involves the employment of “physical force” as that term is defined by federal law. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). Section 787.02 requires that “some amount of force” be used. Proko v. State, 566 So.2d 918, 920 (Fla.Dist.Ct.App.1990); see also id. (noting that the state must prove, among other things, that a “defendant forcibly restrained the victim against her will”). However, the force need not be “substantial.” Id. And, though that appears to be a fine distinction, case law since Proko makes clear that a § 787.02 offense can be committed without employing the type of “physical force” contemplated in the Guidelines.

Specifically, Florida jurisprudence indicates that “the statutory elements of the offense of false imprisonment do not necessarily involve the use or threat of physical force or violence against an individual.” Lamb v. State, 32 So.3d 117, 119 (Fla.Dist.Ct.App.2009); see also Kalogeras v. State, 58 So.3d 889, 891 (Fla.Dist.Ct.App.2011) (stating that false imprisonment does not “necessarily involve[ ] an intentional, unlawful threat by word or act to do violence to another”); Davis v. State, 20 So.3d 1024, 1025 (Fla.Dist.Ct.App.2009) (construing § 787.02 to permit false imprisonment to “be accomplished by physical force, but also in other ways ” (emphasis added)); Mosquera v. State, 16 So.3d 255, 256 (Fla.Dist.Ct.App.2009) (suggesting that not all ways of committing false imprisonment “involve the use or threat of physical force or violence” (quotation marks omitted)). In light of this case law, we conclude that false imprisonment under Florida law encompasses several distinct crimes, some of which qualify as crimes of violence and others of which do not.²

We now move to the second part of the modified categorical approach, inquiring whether the particular statutory phrase underlying Rosales–Bruno's prior false imprisonment conviction qualifies it as a “crime of violence.” See Johnson 130 S.Ct. at 1273. To prove that the conduct underlying Rosales–Bruno's conviction involved the use of “physical force” and was therefore a “crime of violence,” the government introduced three documents: (1) the information, a barebones document closely tracking the language of the three statutes that there was probable cause to believe Rosales–Bruno had violated; (2) the judgment, providing a record of conviction for two offenses to which Rosales–Bruno pleaded nolo contendere; and (3) an arrest affidavit, a sworn document outlining the arresting officer's on-the-scene understanding of the details of the crimes.

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.” Shepard, 544 U.S. at 23, 125 S.Ct. at 1261. Like the Massachusetts police reports and complaint applications at issue in Shepard, the Florida arrest affidavit here was originally intended to be used to assess probable cause for a...