United States v. Vail-Bailon, No. 15-10351

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtJULIE CARNES, Circuit Judge
Citation868 F.3d 1293
Parties UNITED STATES of America, Plaintiff-Appellee, v. Eddy Wilmer VAIL-BAILON, Defendant-Appellant.
Decision Date25 August 2017
Docket NumberNo. 15-10351

868 F.3d 1293

UNITED STATES of America, Plaintiff-Appellee,
v.
Eddy Wilmer VAIL-BAILON, Defendant-Appellant.

No. 15-10351

United States Court of Appeals, Eleventh Circuit.

August 25, 2017


Wifredo A. Ferrer, Laura Thomas Rivero, Kathleen Mary Salyer, John C. Shipley, Assistant U.S. Attorney, 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, Andrew L. Adler, Federal Public Defender's Office, FORT LAUDERDALE, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL, for Defendant-Appellant.

Before ED CARNES, Chief Judge, and TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.*

JULIE CARNES, Circuit Judge:

This appeal requires us to decide whether Florida felony battery is a crime of violence under the Sentencing Guidelines. Defendant Eddy Wilmer Vail-Bailon was convicted in 2014 of illegally reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(1), after having been deported following a conviction for felony battery under Florida Statute § 784.041. Based on Vail-Bailon's felony battery conviction, the district court imposed a sentencing enhancement that applies when a defendant has been deported after committing a crime of violence as defined by the applicable Guidelines provision. Vail-Bailon appealed his sentence, arguing that a Florida felony battery conviction does not qualify as a crime of violence. A divided panel of this Court agreed with Vail-Bailon, and vacated his sentence. See United States v. Vail-Bailon , 838 F.3d 1091 (11th Cir. 2016), reh'g en banc granted, opinion vacated (11th Cir. Nov. 21, 2016). Our full Court granted the Government's petition to rehear the case en banc , and we now hold that Florida felony battery does categorically qualify as a crime of violence under § 2L1.2 of the Guidelines. Thus, we affirm and reinstate Vail-Bailon's sentence.

BACKGROUND

Vail-Bailon, a citizen of Guatemala, was deported in 2008 following his conviction for felony battery under Florida Statute § 784.041. In 2014, Vail-Bailon was arrested in Palm Beach County, Florida and charged with illegally reentering the United States after being deported following a felony conviction, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Vail-Bailon pled guilty to the charge.

At Vail-Bailon's sentencing, the district court imposed a 16-level enhancement pursuant to § 2L1.2 of the Sentencing Guidelines. At the time of the sentencing, § 2L1.2 required this enhancement for a defendant previously deported after being convicted of a felony that is a crime of

868 F.3d 1296

violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii)(2014).1 Over Vail-Bailon's objection, the district court concluded that felony battery as set forth in Florida Statute § 784.041 qualifies as a crime of violence under § 2L1.2, and that the enhancement thus applied to Vail-Bailon. As enhanced, Vail-Bailon's advisory guidelines range was 37 to 46 months. He was sentenced to 37 months. As noted, on appeal, a divided panel of this Court agreed with Vail-Bailon that Florida felony battery under § 784.041 does not constitute a crime of violence.

STANDARD OF REVIEW AND ANALYTIC FRAMEWORK

We review de novo whether Vail-Bailon's felony battery conviction qualifies as a crime of violence under § 2L1.2 of the Sentencing Guidelines, and we apply a categorical approach. United States v. Garcia-Martinez , 845 F.3d 1126, 1129–30 (11th Cir. 2017). That is, we look at how the Florida statute defines felony battery to determine whether the offense qualifies as a crime of violence rather than looking at the particular facts underlying Vail-Bailon's conviction. See 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." (internal quotation marks omitted)). More specifically, we assume Vail-Bailon committed felony battery by the least of the acts criminalized under the statute, and then we ask whether that act necessarily satisfies the definition of a crime of violence as set forth in § 2L1.2. See Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) ("Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized [.]" (alterations adopted and internal quotation marks omitted)).

In some cases, we are able to use a modified categorical approach to determine whether a conviction qualifies as a crime of violence. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (describing the modified categorical approach and clarifying when it is applicable). The modified categorical approach only applies when a criminal statute is divisible, meaning that it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Id. When that is the case, the modified approach allows us to examine a "limited class of documents"—known as Shepard2 documents and including such items as the indictment, jury instructions, and plea agreement—"to determine what crime, with what elements, a defendant was convicted" of so that we can then assess whether the conviction satisfies the definition

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of a crime of violence. Mathis , 136 S.Ct. at 2249.

Because there are no available Shepard documents in this case, the modified categorical approach has no applicability here.3 See Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( " Curtis Johnson ") (applying the categorical approach where there were no Shepard documents to show that the defendant's conviction rested on anything more than the least of the acts criminalized by Florida's simple battery statute). That means that the only question before us is whether Florida felony battery constitutes a crime of violence under the categorical approach.

DISCUSSION

I. Legal Background

A. Section 2L1.2

The operative version of § 2L1.2 requires a 16-level enhancement if a defendant who is convicted of illegal entry previously was deported after being convicted of a felony "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary4 to § 2L1.2 defines the term crime of violence to include, among other qualifying crimes, a state offense "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 cmt. n.1(B)(iii). We refer to this part of § 2L1.2's definition5 of the term crime of violence as the "elements clause." Garcia-Martinez , 845 F.3d at 1129.6

B. Curtis Johnson

As the basis for his challenge, Vail-Bailon argues that Florida felony battery does not require the use of "physical force." And because a statute must proscribe the use, attempted use, or threatened use of physical force before it can be said to constitute a crime of violence, Vail-Bailon contends that his felony-battery conviction therefore does not qualify.

In Curtis Johnson v. United States , the Supreme Court defined "physical force" for purposes of the elements clause to mean "violent force—that is, force capable of causing physical pain or injury to another person ." Curtis Johnson , 559 U.S. at 140, 130 S.Ct. 1265 (underlined emphasis added). However, in contrast with this case, which involves a felony battery conviction under Florida Statute § 784.041,7 Curtis Johnson examined

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whether a conviction for simple battery under Florida Statute § 784.03 satisfied the elements clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(i).8 Id. at 136, 130 S.Ct. 1265. The Florida simple battery statute is violated when a defendant "[a]ctually and intentionally touches or strikes another person against the will of the other."9 Fla. Stat. § 784.03(1)(a)(1). As interpreted by the Florida Supreme Court, actual and intentional touching—the only element necessary to support a conviction for simple battery—is satisfied by any physical contact, "no matter how slight." State v. Hearns , 961 So.2d 211, 218–19 (Fla. 2007) (explaining that simple battery "may be committed with only nominal contact"). For example, even a slight but unwanted tap on the shoulder suffices for a conviction under the simple battery statute. See id. at 219. That being so, the Supreme Court concluded in Curtis Johnson that simple battery, as defined by Florida Statute § 784.03, does not require the use of force capable of causing physical pain or injury and thus does not categorically satisfy the elements...

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68 practice notes
  • Beeman v. United States, No. 16-16710.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 22, 2017
    ...articulates a standard, it actually means the words it has used to set out that standard...." United States v. Eddy Wilmer Vail-Bailon, 868 F.3d 1293, 1301 (11th Cir. 2017). In the case of Johnson, the plain language of the decision makes clear that relief under the holding is not predicate......
  • U.S. v. Vereen, No. 17-11147
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 5, 2019
    ...pain or injury to another person." Curtis Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (emphasis omitted). In United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc), we held that the test in Curtis Johnson for "determining whether an offense calls for the use of physical force .......
  • United States v. Burris, No. 17-10478
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 18, 2018
    ...by Johnson —involves a use of force that is capable of inflicting pain.") (internal citation omitted); United States v. Vail–Bailon , 868 F.3d 1293, 1299 (11th Cir. 2017) (en banc) ("Nevertheless, physical force 'might consist ... of only that degree of force necessary to inflict pain—a sla......
  • United States v. Gillis, No. 16-16482
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 13, 2019
    ...federal prosecutions could charge defendants who have not used physical force with violating § 1201(a). See United States v. Vail-Bailon, 868 F.3d 1293, 1306 (11th Cir. 2017) (considering hypotheticals proffered by defendant to determine whether Florida felony battery was a crime of violenc......
  • Request a trial to view additional results
68 cases
  • Beeman v. United States, No. 16-16710.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 22, 2017
    ...articulates a standard, it actually means the words it has used to set out that standard...." United States v. Eddy Wilmer Vail-Bailon, 868 F.3d 1293, 1301 (11th Cir. 2017). In the case of Johnson, the plain language of the decision makes clear that relief under the holding is not predicate......
  • U.S. v. Vereen, No. 17-11147
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 5, 2019
    ...pain or injury to another person." Curtis Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (emphasis omitted). In United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc), we held that the test in Curtis Johnson for "determining whether an offense calls for the use of physical force .......
  • United States v. Burris, No. 17-10478
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 18, 2018
    ...by Johnson —involves a use of force that is capable of inflicting pain.") (internal citation omitted); United States v. Vail–Bailon , 868 F.3d 1293, 1299 (11th Cir. 2017) (en banc) ("Nevertheless, physical force 'might consist ... of only that degree of force necessary to inflict pain—a sla......
  • United States v. Gillis, No. 16-16482
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 13, 2019
    ...federal prosecutions could charge defendants who have not used physical force with violating § 1201(a). See United States v. Vail-Bailon, 868 F.3d 1293, 1306 (11th Cir. 2017) (considering hypotheticals proffered by defendant to determine whether Florida felony battery was a crime of violenc......
  • Request a trial to view additional results

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