USA v. Eddy Vail-Bailon

Filing

Opinion issued by court as to Appellant Eddy Wilmer Vail-Bailon. Decision: Vacated and Remanded. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-10351

Date Filed: 09/28/2016

Page: 1 of 22

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10351
________________________
D.C. Docket No. 9:14-cr-80117-KLR-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDDY WILMER VAIL-BAILON,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 28, 2016)
Before JORDAN, ROSENBAUM and SILER, * Circuit Judges.
ROSENBAUM, Circuit Judge:

*

The Honorable Eugene E. Siler, Jr., United States Court of Appeals for the Sixth Circuit
sitting by designation.

Case: 15-10351

Date Filed: 09/28/2016

Page: 2 of 22

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 (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

1

The Supreme Court’s comments arose in the context of considering the residual clause
of the ACCA’s definition of “violent felony.” But the principle that we cannot determine
whether a crime sounds like it should be a violent felony simply by considering the name of the
crime remains the same, whether we are discussing the residual clause or the elements clause of
the ACCA’s definition of “violent felony,” or, as here, the elements clause of U.S.S.G. § 2L1.2’s
definition of “crime of violence.”
2

Case: 15-10351

touching.

Date Filed: 09/28/2016

Page: 3 of 22

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. §
3

Case: 15-10351

Date Filed: 09/28/2016

Page: 4 of 22

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
(1993)).

4

Case: 15-10351

Date Filed: 09/28/2016

Page: 5 of 22

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 careeroffender 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. ___,
5

Case: 15-10351

Date Filed: 09/28/2016

Page: 6 of 22

136 S. Ct. 1257, 1262 (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 (2016). If a statute is
divisible, courts look to see whether documents approved under Shepard v. United
States, 554 U.S. 13, 125 S. Ct. 154 (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 (2010) (“Curtis Johnson”) (citing State v. Hearns,
6

Case: 15-10351

Date Filed: 09/28/2016

Page: 7 of 22

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

2

Under Fla. Stat. § 784.03(1)(a), a person commits the crime of simple battery in Florida
when that person
1.
Actually and intentionally touches or strikes another person
against the will of the other; or
2.
Intentionally causes bodily harm to another person.
Section 784.03(1)(a)(1) sets forth two alternative ways of violating the statute, with §
784.03(1)(a)(2) listing a third.
7

Case: 15-10351

Date Filed: 09/28/2016

Page: 8 of 22

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. 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 Flores v.
Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003)). Indeed, the joining of the words
“violent” and “felony,” or, in the case of § 2L1.2, “crime” and “of violence,”
renders the “connotation of strong physical force” required to satisfy the “elements
clause” “even clearer.”

See id.

For these reasons, the Supreme Court has

concluded that mere touching does not involve the “use, attempted use, or
threatened use of physical force against the person of another” under the “elements
clause.” See id. at 143-44, 130 S. Ct. at 1272.

8

Case: 15-10351

B.

Date Filed: 09/28/2016

Page: 9 of 22

The element of “[c]aus[ing] great bodily harm, permanent disability, or
permanent disfigurement” does not make felony battery under Fla. Stat. §
784.041 a “crime of violence” under the “elements clause”
As we have noted, the second element of felony battery under Fla. Stat. §

784.041 requires that the intentional touching from the first element have “cause[d]
great

bodily harm,

permanent

disability,

or

permanent

disfigurement.”

Significantly, however, § 784.041 contains no requirement that the offender
intentionally or knowingly cause bodily harm of any type. T.S. v. State, 965 So. 2d
1288, 1290 (Fla. 2007). So, as Vail-Bailon asserted at oral argument and the
government expressly conceded, a person can be guilty of felony battery in Florida
under § 784.041 if the offender taps another person on the shoulder while that
person stands near the top of stairs, and the person whose shoulder was tapped is
either startled or otherwise reacts in such a way that he falls down the stairs and
suffers grievous bodily harm. Similarly, Vail-Bailon argued at oral argument—
and the government did not challenge his interpretation—that a person can be
guilty of felony battery in Florida if he tickles another and that person jerks back
and, for example, stumbles through an open window.
A crime that occurs in these ways does not qualify under the “elements
clause” as a “crime of violence” under Supreme Court precedent. First, it does not
involve “physical force” as the Supreme Court expressed its understanding of that
phrase in Curtis Johnson.

In Curtis Johnson, the Supreme Court explained that
9

Case: 15-10351

Date Filed: 09/28/2016

Page: 10 of 22

“the phrase ‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” 559 U.S. at 140, 130 S. Ct. at 1271.
But significantly, the Supreme Court then directed readers to see Flores, 350 F.3d
at 672. At that pincite, Flores explained that “violent” force is “the sort that is
intended to cause bodily injury, or at a minimum likely to do so.” Flores, 350
F.3d at 672 (emphasis added).
The Flores definition necessarily excludes Florida felony battery committed
by mere touching. As we have established, a person may violate § 784.041 with
no intent to cause bodily injury, so the first part of Flores’s definition of “physical
force” relied on by the Supreme Court in Curtis Johnson does not apply.
And since the Supreme Court held in Curtis Johnson that mere intentional
and actual touching does not qualify as “violent in nature,” it necessarily concluded
that Florida battery by mere touching is not conduct that is likely to cause bodily
injury. As a result, Florida battery by mere touching does not satisfy the second
part of Flores’s definition of “physical force” that the Supreme Court relied on in
Curtis Johnson.
Nor can it be that, in a given case, the fact that a mere touching actually does
result in great bodily harm somehow changes the character of the mere touching
from an action that is not likely to result in bodily harm to one that is likely to
result in bodily harm. In other words, the results of a specific incident of mere
10

Case: 15-10351

Date Filed: 09/28/2016

Page: 11 of 22

touching do not alter the fact that the nature of mere touching, in and of itself, as
the Supreme Court concluded in Curtis Johnson, is not likely to result in bodily
harm. So Florida felony battery by mere touching cannot qualify as a “crime of
violence,” no matter what the injury resulting from the mere touching might turn
out to be.
Also, notice considerations dictate that the inquiry into whether a crime
qualifies as a “crime of violence” under the “elements clause” should be forwardlooking, from the perspective of the wrongdoer, not backward-looking in
hindsight. That way, when a person is held responsible for committing a “crime of
violence,” that person either intended to commit a “crime of violence” or should
have known before committing the act that resulted in the conviction that it was at
least likely that his act would cause bodily harm. But since the Supreme Court has
already concluded that mere touching is not likely to result in bodily injury, we
cannot expect a person who engages in mere touching to believe that his actions
will cause bodily injury.
Second, Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377 (2004), also supports
our conclusion that felony battery committed by mere touching does not constitute
a “crime of violence” under the “elements clause” just because the results of the
mere touching were great bodily injury. In Leocal, the Supreme Court considered
whether the Florida crime of driving under the influence of alcohol (“DUI”) and
11

Case: 15-10351

Date Filed: 09/28/2016

Page: 12 of 22

causing serious bodily injury, in violation of Fla. Stat. § 316.193(3)(c)(2) satisfied
the definition of “crime of violence” under, among other things, 18 U.S.C. § 16’s
“elements

clause.”

Because § 16’s

“elements

clause”

is

materially

indistinguishable from § 2L1.2’s “elements clause,” Leocal’s analysis is pertinent
here.3
The Supreme Court characterized the issue in Leocal as involving “whether
state DUI offenses similar to the one in Florida, which either do not have a mens
rea component or require only a showing of negligence in the operation of a
vehicle, qualify as a crime of violence.” Id. at 6, 125 S. Ct. at 380. As the Court
saw it, the key consideration of the “elements clause” concerns the requirement
that a crime of violence be one involving the “use . . . of physical force against the
person or property of another.” Id. at 9, 125 S. Ct. at 382 (emphasis in original).
And, significantly, the Supreme Court expounded on that phrase as “most naturally
suggest[ing] a higher degree of intent than negligent or merely accidental
conduct.” Id. Indeed, the Supreme Court emphasized that the phrase “crime of
violence,” when considered in conjunction with § 16’s reliance on the use of
physical force against another person, “suggests a category of violent, active

3

Section 16’s “elements clause” defines a “crime of violence,” in pertinent part, as “(a)
an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.”
12

Case: 15-10351

Date Filed: 09/28/2016

Page: 13 of 22

crimes . . . .” Id. at 11, 125 S. Ct. at 383. As a result, DUI—even DUI involving
negligence—does not satisfy the “elements clause.” Id.at 9-10, 125 S. Ct. at 382.
Section 784.041 fares no better under the “elements clause” than the DUI
statutes at issue in Leocal. A person who commits felony battery by mere touching
intends to engage in mere touching, and that mere touching negligently or
accidentally results in great bodily harm under § 784.041, just as a person who
commits DUI that causes serious bodily injury under the statutes under review in
Leocal intends to engage in driving while under the influence, and that driving
accidentally or negligently results in serious bodily injury to another. Though both
offenders intend their actions—mere touching and driving—neither intends the
accidental or negligent consequences—great bodily harm under § 784.041 and
serious bodily injury under § 316.193(3)(c)(2).

And we do not rely on the

consequences of the driving or the mere touching to determine whether,
categorically, the crime involves the use, attempted use, or threatened use of force
looking forward from the offender’s perspective. Instead, under Leocal, when we
discuss an action that normally does not cause bodily injury—in Leocal, driving,
and here, mere touching—that element of a crime can qualify the crime as a “crime
of violence” under the “elements clause” only if the offender engages in it with
some type of intent to harm another.

13

Case: 15-10351

Date Filed: 09/28/2016

Page: 14 of 22

The dissent suggests that we look at the phrase “force capable of causing
physical pain or injury to another person” from Curtis Johnson in isolation,
without the context provided by the Supreme Court’s immediate citation to Flores.
We respectfully disagree for three reasons.
First, this argument reads the Supreme Court’s statement unmoored from its
context. Citations to circuit-court opinions such as Flores do not find their way
into Supreme Court opinions by accident. The Supreme Court’s reliance on Flores
must mean something. The dissent’s argument does not account at all for the
Supreme Court’s reliance on Flores, which very clearly puts into context what the
Supreme Court had in mind when it used the phrase on which the government
relies. Ignoring the citation to Flores would deprive the Supreme Court’s
discussion of the meaning of “physical,” and thus, “violent,” force of its intended
connotation—force that is “intended to cause bodily injury, or at a minimum likely
to do so.” See Curtis Johnson, 559 U.S. at 140, 130 S. Ct. at 1271 (citing Flores,
350 F.3d at 672).
Second, the dissent’s proposed interpretation of “physical force” would
require us to disregard the lessons of Leocal. Leocal reinforces our conclusion that
intent to engage in force that is, at a minimum, likely to cause bodily injury,
matters. If we determined whether a crime involved “force capable of causing
physical pain or injury to another person” by whether, in fact, the crime actually
14

Case: 15-10351

Date Filed: 09/28/2016

Page: 15 of 22

caused physical pain or injury to another person, the DUI offenses that resulted in
serious bodily injury in Leocal would necessarily qualify as “crimes of violence”
under the “elements clause” since they all caused serious bodily injury. But we
know that these offenses do not qualify as “crimes of violence” under the
“elements clause.” And that’s because the phrase on which the dissent relies
cannot be read in isolation, untethered from its context and Supreme Court
precedent.
Third, holding someone responsible for committing a “crime of violence”
when the person engaged in, for example, nothing more than tapping another on
the shoulder or tickling another, is inconsistent with the Supreme Court’s
expressed understanding of the term “crime of violence.” As we have noted, the
Supreme Court has opined that the term “crime of violence” “suggests a category
of violent, active crimes . . . ,” Curtis Johnson, 559 U.S. at 140, 130 S. Ct. at 1271
(quoting Leocal, 543 U.S. at 11, 125 S. Ct. at 383) (internal quotation marks
omitted)—a category that clearly does not include mere touching, shouldertapping, or tickling. In short, Florida felony battery, when committed by mere
touching, does not satisfy the “elements clause” of the definition of “crime of
violence” contained in § 2L1.2 of the Guidelines.

15

Case: 15-10351

Date Filed: 09/28/2016

Page: 16 of 22

V.
Though we can understand the temptation to conclude, based on its name,
that a crime called “felony battery” categorically constitutes a “crime of violence,”
engaging in actual analysis of the elements of “felony battery” leads to the opposite
conclusion when the crime is committed by mere touching. But nothing we have
said here today precludes a court from finding that a defendant engaged in a “crime
of violence” if Shepard documents reflect that a defendant was convicted of felony
battery for striking another, as opposed to by mere touching of another. Because
the record in this case does not satisfy that showing, we VACATE Vail-Bailon’s
sentence and REMAND for resentencing.
VACATED AND REMANDED.

16

Case: 15-10351

Date Filed: 09/28/2016

Page: 17 of 22

JORDAN, Circuit Judge, concurring:
I join Judge Rosenbaum’s opinion for the court in full and add the following
comments.
In three unpublished cases, we have previously held that the crime of felony
battery in Florida, as set forth in Fla. Stat. § 784.041, has as an element “the use,
attempted use, or threatened use of physical force against the person of another.”
See United States v. Eady, 591 Fed. App’x 711, 719 (11th Cir. 2014); United States
v. Eugene, 423 Fed. App’x 908, 911 (11th Cir. 2011); United States v. Crawford,
568 Fed. App’x 725, 728 (11th Cir. 2014). Although these decisions are not
binding, see 11th Cir. R. 36-2, I write separately to explain why they are flawed
and do not constitute persuasive authority.
In Eady (a case where I served on the panel), we held that felony battery
under § 784.041 qualified as a “violent felony” under the elements clause of the
ACCA. See 591 Fed. App’x at 719. Our elements clause analysis in Eady,
however, started from the incorrect premise that Florida’s felony battery statute
“has a single, indivisible set of elements,” and that “hitting” was the least culpable
conduct under the statute. See id. at 719–20 (“It is incorrect to say that a person
can ‘actually and intentionally’ hit another person and cause ‘great bodily harm,
permanent disability, or permanent disfigurement’ without using ‘force capable of
causing physical pain or injury.’”) (emphasis in the original). Eady is wrong
17

Case: 15-10351

Date Filed: 09/28/2016

Page: 18 of 22

because the Supreme Court has explained that the first element for Florida simple
battery (which is the same for Florida felony battery) is divisible and can be
accomplished by any intentional touching, “no matter how slight.” See Johnson v.
United States, 559 U.S. 133, 138 (2010) (citing State v. Hearns, 961 So. 2d 211,
218 (Fla. 2007). Eady therefore is not persuasive here.
In Eugene, we recognized that felony battery under § 784.041 can be
committed by any intentional touching yet held that it categorically qualified as a
“crime of violence” under U.S.S.G § 4B1.2(a)(1), the career offender guideline.
See 423 Fed. App’x at 911. But we did not perform an elements clause analysis in
Eugene. Nor did we explore the possibility that a touch as insignificant as a tap on
the shoulder can satisfy the first element of the offense. Instead, we concluded that
“each touching that violates the felony battery statute is not only capable of
causing physical pain or injury to another person . . . it must also actually cause
great or permanent physical harm or injury to another person.” See id. (internal
quotation marks omitted). As we now explain in more detail, § 784.041’s second
element—“[c]aus[ing] great bodily harm, permanent disability, or permanent
disfigurement”—on its own does not change the nature of the first element that we
know encompasses even the “slightest unwanted physical touch.” See Johnson,
559 U.S. at 137.

18

Case: 15-10351

Date Filed: 09/28/2016

Page: 19 of 22

And finally, in Crawford we summarily concluded, without any analysis,
that Florida felony battery satisfied the definition of “violent felony” under the
ACCA.

See 568 Fed. App’x at 728 (citing the elements clause under 18 U.S.C. §

924(e)(2)(B)(i) without explanation). It goes without saying that Crawford, which
is bereft of analysis, does not help us to resolve the issue here.
In sum, our three unpublished opinions in Eady, Eugene, and Crawford fall
short of persuasively explaining how a Florida felony battery by any intentional
touching—including a tap or even a tickle—can categorically satisfy the definition
of “crime of violence” under the elements clause of § 2L1.2. I therefore agree that
Florida felony battery under § 784.041 does not categorically have as an element
“the use, attempted use, or threatened use of physical force against the person of
another” when it is committed by a mere touching. Because § 784.041 is divisible,
our decision leaves open the possibility that a district court may use the modified
categorical approach in a case where Shepard-approved documents confirm that
the defendant’s felony battery conviction was based on the striking of another.
That approach was not available here due to the absence of such documents.

19

Case: 15-10351

Date Filed: 09/28/2016

Page: 20 of 22

SILER, Circuit Judge, dissenting.
I respectfully dissent from the majority opinion that Vail-Bailon’s prior
conviction for felony battery in violation of Fla. Stat. § 784.041 fails to qualify as a
crime of violence under USSG § 2L1.2. I do not quarrel with the procedure
outlined in the majority opinion as to how we approach the analysis. Moreover, I
agree with Part III. A. that mere touching does not meet the definition of “violent
force.” As the majority states, that constitutes the misdemeanor crime of simple
battery under Fla. Stat. § 784.03(1)(a). See Johnson v. United States, 559 U.S.
133, 140, 130 S. Ct. 1265, 1270-71 (2010)(Curtis Johnson).
Nevertheless, I disagree with the conclusions made in Part II. B. that the
crime described in Fla. Stat. § 784.041 is not a “crime of violence” under the
“elements clause.” The Supreme Court defined “physical force” under the Armed
Career Criminal Act (ACCA) as a “violent force — that is, force capable of
causing physical pain or injury to another person.” Id. (citing Flores v. Ashcroft,
350 F.3d 666, 672 (7th Cir. 2003)). Although Johnson involved the definition of
“physical force” under the ACCA, we have previously observed that the “elements
clause” for “violent felony” under the ACCA and “crime of violence” under USSG
§ 2L1.2(b)(1)(B) “is the same.” See United States v. Romo-Villalobos, 674 F.3d
1246, 1248 (11th Cir. 2012). Instead of focusing on the language in Johnson, the
majority pivots to Johnson’s citation to Flores, in which the Seventh Circuit
20

Case: 15-10351

Date Filed: 09/28/2016

Page: 21 of 22

defined “physical force” as “the sort that is intended to cause bodily injury, or at a
minimum likely to do so.” Flores, 350 F.3d at 672. However, we should not rely
on Flores, but we should follow the definition of “physical force” offered in
Johnson, “force capable of causing physical pain or injury to another person.” 559
U.S. at 140, 130 S. Ct. at 1271. Why do we need to speculate about the definition
of “physical force” when the Supreme Court provided one in Johnson?

The

Supreme Court was aware of the mens rea language used in Flores and chose not
to use it. Instead, the operative word is “capability” — that is, the crime must be
capable of causing physical injury. See id.
To be found guilty of violating § 784.041, the defendant must be more than
capable of causing bodily injury since he must in fact cause “great bodily harm.”
The majority states that “[n]or can it be that, in a given case, the fact that a mere
touching actually does result in great bodily harm somehow change[] the character
of the mere touching from an action that is not likely to result in bodily harm to
one that is likely to result in bodily harm.” However, the issue from Johnson is
whether the defendant’s action is capable of causing bodily injury, not whether it
is likely to cause injury. If something necessarily results from the touching, then
the logic is that it had to have been capable of that result from the beginning.
The majority also attempts to analogize § 784.041 to the statute at issue in
Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377 (2004). That case involved a
21

Case: 15-10351

Date Filed: 09/28/2016

Page: 22 of 22

violation of Fla. Stat. § 316.193(c)(2) for driving under the influence of alcohol
(DUI) and causing serious bodily injury. The Court held that a violation of §
316.193(c)(2) did not constitute a “crime of violence” under 18 U.S.C. § 16. The
majority suggests that the DUI statute at issue in Leocal contains an element with a
similar mens rea as § 784.041 — intentionally driving a vehicle. But that is not the
proper element to analogize the “touching” element in this case. Rather, the
Supreme Court was concerned in Leocal that a person could be found guilty under
§ 316.193(c)(2) without any intentional use of force, that is, someone could be
convicted by negligently or accidentally hitting a person with a vehicle. It is this
missing hitting element in § 316.193(c)(2) that distinguishes Leocal from the
present case. Unlike in the statute in Leocal, even in the least culpable formulation
of § 784.041, a defendant must engage in intentional force by intending to touch
someone.
In conclusion, I would find that the crime of felony battery under Florida
law satisfies the “elements clause” of the definition of “crime of violence”
contained in § 2L1.2 of the Guidelines. Therefore, I would affirm the sentence in
the district court.

22