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United States v. Lee

United States District Court, N.D. Florida, Pensacola Division

April 25, 2018




         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.

         I. Legal Standard

         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) (“We are bound by federal law when we interpret terms in the ACCA, and we are bound by state law when we interpret the elements of state-law crimes.”); United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) (“[W]e look to [state] case law to determine whether a conviction under [a state statute] necessarily involves the employment of ‘physical force' as that term is defined by federal law.”). 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)).

         II. Analysis

         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 Fed.Appx. 750, 754 (11th Cir. 2014); United States v. Diaz-Calderone, 716 F.3d 1345 (11th Cir. 2013). Until recently, this meant that the statute was divisible and could be violated by a defendant in three different ways: (1) by actually and intentionally touching the victim; (2) by actually and intentionally striking the victim; or (3) by intentionally causing bodily harm to the victim. See Braun, 801 F.3d at 1305. In Mathis v. United States, 136 S.Ct. 2243 (2016), however, the Supreme Court clarified the meaning of the term divisible, as well as the analytical framework that sentencing courts must employ in assessing divisibility. To date, the Eleventh Circuit has not addressed the divisibility of Florida's simple battery statute in light of the principles espoused in Mathis.[6] In this case, the Government argues that the simple battery statute remains divisible after Mathis, but into two elementally distinct battery offenses, rather than three. For the following reasons, the Court agrees.

         In Mathis, the Supreme Court explained that a statute is divisible where it lists multiple alternative elements, thereby creating multiple separate offenses in a divisible statutory structure. Mathis, 136 S.Ct. at 2249. In contrast, a statute is considered indivisible where its alternative phrasing “enumerates various factual means of” satisfying one or more of the statute's otherwise indivisible set of elements. Id. at 2256. Thus, the “threshold inquiry” for every divisibility determination is whether the state statute sets out alternative “elements” or “means.” Id. Sentencing courts are instructed to discern “elements” from “means” by reference to: (1) the text of the state statute; (2) state appellate court decisions interpreting and applying the statute; and (3) where state law does not clearly resolve the question, the record of the prior conviction itself-including charging documents and jury instructions-which “can reveal, in some cases better than state law itself, ” the nature of an alternatively phrased statutory list. Id. at 2256-57.

         The Court begins, as Mathis instructs, with the text of the Florida simple battery statute. Again, the statute defines two, separately numbered forms of battery: (1) actually and intentionally touching or striking another person; or (2) intentionally causing bodily harm.[7] See Fla. Stat. § 784.03(1)(a). These two statutory alternatives criminalize different categories of conduct, separated by the word “or, ” which require different elements of proof. See id. Either alternative, standing alone, constitutes simple battery. See id. Thus, the text and structure of Florida's simple battery statute support a conclusion that the enumerated alternatives are functionally separate offenses, and not simply “factual means of committing a single element” of a single offense. See Mathis, 136 U.S. at 2249; see also Castillo v. United States, 530 U.S. 120, 124 (2000) (explaining that statutory “structure” informs the analysis of whether the statute defines separate crimes).

         This reading of Florida's simple battery statute is consistent with Florida case law. The Florida Supreme Court has definitively stated that the statutory alternatives in Fla. Stat. § 784.03(1)(a) contain different “elements” that “describe two distinct levels of force, ” either of which, alone, constitutes the “complete” offense of simple battery. State v. Hearns, 961 So.2d 211, 214, 219 (Fla. 2007). Florida's intermediate appellate courts have also interpreted § 784.03(1)(a) as creating two distinct battery offenses. See Byrd v. State, 789 So.2d 1169, 1171 (Fla. 3d DCA 2001) (“There are two distinct definitions of the offense of battery.”); see also Nash v. State, 766 So.2d 310 (Fla. 4th DCA 2000); Hendricks v. State, 744 So.2d 542 (Fla. 1st DCA 1999). And where “there are two distinct versions of [an] offense . . . the jury must unanimously find all the elements necessary for one or the other in order to convict the defendant.” See Miller v. State, 123 So.3d 595, 598 (Fla. 2d DCA 2013) (holding that a jury must unanimously agree on the alternative elements of aggravated battery under Fla. Stat. §§ 784.03(1) and 784.045(1)). Given the bedrock principle that elements “are what the jury must find beyond a reasonable doubt to convict the defendant, ” see Mathis, 136 S.Ct. at 2248, this Florida case law provides strong evidence that the subsections of the simple battery statute are elements.

         The conclusion that Florida's simple battery statute sets forth alternative elements finds further support in Florida Supreme Court decisions reviewing trial court jury instructions for error in battery cases. Significantly, under Florida law, if an indictment charges a defendant with only one of the statutory alternatives (e.g., touching or striking), it is error-albeit, usually of the harmless variety-for the trial court to also instruct the jury on the uncharged alternative (e.g., causing bodily harm).[8]State v. Weaver, 957 So.2d 586 (Fla. 2007); see also Jaimes v. State, 51 So.3d 445, 450-51 (Fla. 2010). These decisions confirm that the statutory alternatives of “touch[ing] or strik[ing]” and “intentionally caus[ing] bodily harm” are alternative elements, each corresponding to a different crime of battery, which is why it is error to charge only one type of battery and instruct on the other. See Taylorv. State, 7 ...

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