United States v. Vail-Bailon

• Decision Date: 28 September 2016
• Docket Number: No. 15–10351,15–10351
• Parties: United States of America, Plaintiff–Appellee, v. Eddy Wilmer Vail–Bailon, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

838 F.3d 1091

United States of America, Plaintiff–Appellee,

v.Eddy Wilmer Vail–Bailon, Defendant–Appellant.

No. 15–10351

United States Court of Appeals, Eleventh Circuit.

September 28, 2016

Rehearing En Banc Granted, Opinion Vacated November 21, 2016

Wifredo A. Ferrer, Laura Thomas Rivero, Kathleen Mary Salyer, John C. Shipley, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, Brandy Brentari Galler, U.S. Attorney's Office, West Palm Beach, FL, for Plaintiff–Appellee.

Robert E. Adler, Federal Public Defender's Office, West Palm Beach, FL, Brenda Greenberg Bryn, Federal Public Defender's Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Before JORDAN, ROSENBAUM and SILER,^* Circuit Judges.

ROSENBAUM, Circuit Judge:

When I was growing up, my parents told me not to judge a book by its cover. The Supreme Court has expressed an analogous concern about concluding that a crime qualifies as a violent crime under the Armed Career Criminal Act (“ACCA”), based solely on the name of the crime. See Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2560, 192 L.Ed.2d 569 (2015) (discussing whether Connecticut's offense of “rioting at a correctional institution,” a crime that the Supreme Court characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent felony under the residual clause of the ACCA).¹

This case raises the question of whether the Florida crime of felony battery—a crime that, from its name, may sound like a crime of violence—actually satisfies the definition of “crime of violence” under § 2L1.2 of the Sentencing Guidelines when it is committed by mere touching. Heeding the Supreme Court's warning, we have carefully compared the elements of felony battery under Florida law to the “elements clause” of § 2L1.2's definition of “crime of violence.” Based on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not qualify as a “crime of violence” under § 2L1.2 when it is committed by mere touching. For this reason, we vacate Vail–Bailon's sentence and remand for resentencing.

II.

Vail–Bailon pled guilty to illegally reentering the United States after previously being deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Section 1326(b)(1) increases the penalty for simple illegal reentry (§ 1326(a) ) when the defendant illegally reenters the United States after deportation following conviction of, among other things, a felony (though not an “aggravated felony”). In Vail–Bailon's case, Vail–Bailon reentered after deportation following his conviction for felony battery under Fla. Stat. § 784.041.

In the presentence investigation report (“PSI”), the Probation Office recommended increasing Vail–Bailon's base offense level by 16, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because, the Probation Office concluded, Vail–Bailon's prior conviction for felony battery qualified as a “crime of violence” under that guideline. Vail–Bailon objected to the PSI's proposed 16–level enhancement, contending that felony battery under Florida law does not categorically constitute a “crime of violence.” The government took the opposite position.

At the sentencing hearing, the district court overruled Vail–Bailon's objection to the PSI and concluded that felony battery under Florida law categorically satisfies the definition of “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). As a result, Vail–Bailon's offense level increased by 16, based on the prior conviction for felony battery. The district court sentenced Vail–Bailon to 37 months' imprisonment. Vail–Bailon now appeals.

III.

We review de novo the issue of whether a prior conviction qualifies as a “crime of violence” under the Sentencing Guidelines. United States v. Estrella , 758 F.3d 1239, 1244 (11th Cir. 2014). Proper interpretation of the Sentencing Guidelines requires us to account for both the individual guidelines and the commentary. United States v. Fulford , 662 F.3d 1174, 1177 (11th Cir. 2011) (citation omitted). In doing so, we give the language of the Sentencing Guidelines, “like the language of a statute, ... its plain and ordinary meaning, ... because as with Congress, we presume that the Sentencing Commission said what it meant and meant what it said.” Id. (citations, internal quotation marks, and modification omitted). And we follow the Guidelines commentary “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” United States v. Jordi , 418 F.3d 1212, 1216 (11th Cir. 2005) (quoting Stinson v. United States , 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993) ).

IV.

Section 2L1.2, the guideline at issue here, imposes a 16–level enhancement on a defendant who previously was deported after “a conviction for a felony that is ... (ii) a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). The Application Notes to § 2L1.2 explain that the term “crime of violence” includes, among other qualifying crimes, any offense under state law “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iii). We refer to this clause as the “elements clause” of § 2L1.2's definition of “crime of violence.” See United States v. Romo–Villalobos , 674 F.3d 1246, 1248 (11th Cir. 2012) (per curiam). Because it is the same as the elements clauses of the ACCA and the career-offender guideline, cases construing the “elements clauses” of any of these three provisions are instructive here. Id.

With this framework in mind, we consider whether Fla. Stat. § 784.041 qualifies as a “crime of violence” under § 2L1.2. Under § 784.041, a person commits felony battery if he “(a) [a]ctually and intentionally touches or strikes another person against the will of the other; and (b) [c]auses great bodily harm, permanent disability, or permanent disfigurement.” Fla. Stat. § 784.041(1).

In determining whether a crime qualifies as a “crime of violence,” we generally employ a categorical approach. Welch v. United States , –––U.S. ––––, 136 S.Ct. 1257, 1262, 194 L.Ed.2d 387 (2016). Under the categorical approach, “a court assesses whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Id. (citations and internal quotation marks omitted). That requires us to evaluate the least of the ways in which a given crime may be committed to determine whether it constitutes a “crime of violence.”

Besides the categorical approach, however, the Supreme Court has also approved a modified categorical approach when a statute is divisible—meaning that it sets forth alternative elements of the same crime—to allow courts to evaluate whether the particular alternative version of the crime under which the defendant was convicted satisfies the definition of “crime of violence.” See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). If a statute is divisible, courts look to see whether documents approved under Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), appear in the record and can answer under which alternative version of the statutory elements a defendant was convicted. See Mathis , 136 S.Ct. at 2250. If so, the court evaluates the alternative version of the statute under which the defendant was convicted to determine whether his crime meets the definition of “crime of violence.”

Section 784.041 is divisible. See Johnson v. United States , 559 U.S. 133, 136–37, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010) (“Curtis Johnson ”) (citing State v. Hearns , 961 So.2d 211, 218 (Fla. 2007), for the proposition that, as relevant here, two of the three ways that the prosecution can prove a violation of Fla. Stat. § 784.03(1)(a)(1), which includes the same language as Fla. Stat. § 784.041(1)(a), include by showing that a defendant “intentionally str[uck]” the victim or that he merely “[a]ctually and intentionally touche[d]” the victim). But since the parties agree that no Shepard -approved documents establish under which alternative element Vail–Bailon was convicted, we must assume that Vail–Bailon violated the statute by “[a]ctually and intentionally touch[ing]” another when we determine whether Vail–Bailon's conviction qualifies as a “crime of violence.” See Curtis Johnson , 559 U.S. at 137, 130 S.Ct. at 1269.

A. Mere touching does not involve “the use, attempted use, or threatened use of physical force against the person of another.”

As relevant here, the first element of Florida's felony-battery law requires that the offender have “[a]ctually and intentionally touche [d] ... another person against the will of the other.” Fla. Stat. § 784.041(1)(a). It is exactly the same as one of the three alternative ways that a person can commit the complete crime of simple battery in Florida under Fla. Stat. § 784.03(1)(a)(1).²

Significantly, the Supreme Court has already held that Florida battery, when committed by actually and intentionally touching another against his or her will, does not satisfy the “elements clause.” See Curtis Johnson , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1. As the Supreme Court explained, “[t]he Florida Supreme Court has held that the element of ‘actually and intentionally touching’ under Florida's battery law is satisfied by any intentional physical contact, ‘no matter how slight.’ ” Id. at 138, 130 S.Ct. at 1269–70 (quoting Hearns , 961 So.2d at 218 ). Even “[t]he most ‘nominal contact,’ such as a ‘ta[p] ... on the shoulder without consent,’ ... establishes a violation.” Id. (quoting Hearns , 961 So.2d at 219 ).

But the phrase “physical force” that appears in the “elements clause” necessarily refers to “violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. at 1271 (citing ...