United States v. Amed Antonio Solis-Alonzo ( 2018 )


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  •            Case: 15-15576   Date Filed: 01/30/2018   Page: 1 of 12
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-15576
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 9:15-cr-80079-RLR-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    AMED ANTONIO SOLIS-ALONZO,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 30, 2018)
    Before TJOFLAT, JILL PRYOR, and EDMONDSON, Circuit Judges.
    Case: 15-15576     Date Filed: 01/30/2018   Page: 2 of 12
    PER CURIAM:
    Amed Solis-Alonzo appeals his 40-month sentence, imposed after pleading
    guilty to one count of reentry of a deported alien. He argues, for the first time on
    appeal, that his prior guilty plea to Florida felony battery was not a conviction
    within the meaning of U.S.S.G. § 2L1.2 because adjudication was withheld. In
    addition, he contends that his prior Florida felony battery offense does not qualify
    as a crime of violence under § 2L1.2 because it does not have as an element the
    use, attempted use, or threatened use of physical force against the person of
    another. He also asserts that the district court committed clear error in admitting
    and relying on a police report in its crime of violence determination.
    I.
    We review an error raised for the first time on appeal for plain error. United
    States v. Olano, 
    507 U.S. 725
    , 731-32, 
    113 S. Ct. 1770
    , 1776, 
    123 L. Ed. 2d 508
    (1993). Under the plain error standard, an appellant must show that (1) an error
    occurred; (2) the error was plain; and (3) the error affected the appellant’s
    substantial rights. 
    Id. If these
    elements are met, we have the discretion to correct
    the error; but we should not exercise this discretion unless the error seriously
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    affects the fairness, integrity, or public reputation of judicial proceedings. 
    Id. Also, under
    the prior precedent rule, a prior panel’s holding is binding on all
    subsequent panels unless the holding is overruled or undermined to the point of
    abrogation by the Supreme Court or this Court sitting en banc. United States v.
    Sneed, 
    600 F.3d 1326
    , 1332 (11th Cir. 2010).
    Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines assigns a 16-level
    enhancement if (1) the defendant was previously deported or unlawfully remained
    in the United States; (2) after a conviction for a felony that was a crime of
    violence; (3) for which the defendant received criminal history points. See
    U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Sentencing Commission did not define
    “conviction” as that term is used in § 2L1.2. United States v. Anderson, 
    328 F.3d 1326
    , 1327-28 (11th Cir. 2003).
    The meaning of conviction for purposes of sentencing enhancement under
    the Sentencing Guidelines is a matter of federal, rather than state, law. United
    States v. Madera-Madera, 
    333 F.3d 1228
    , 1231 n.2 (11th Cir. 2003) (“Federal law,
    not state law, controls the application of the Sentencing Guidelines.”). In
    Anderson, we concluded that the term conviction, as used in § 2L1.2, is governed
    by the definition of conviction set forth in 8 U.S.C. § 1101(a)(48)(A). 
    Anderson, 328 F.3d at 1328
    . In § 1101(a)(48)(A), Congress defined conviction to include
    circumstances in which adjudication of guilt has been withheld and where (1) “the
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    alien has entered a plea of guilty or nolo contendere” and (2) “the judge has
    ordered some form of punishment, penalty, or restraint on the alien’s liberty to be
    imposed.” Id.; 8 U.S.C. § 1101(a)(48)(A). As a result, we determined that a
    defendant’s nolo contendere plea with adjudication withheld and 22-day
    imprisonment term qualified as a conviction for purposes of a § 2L1.2(b)(1)
    sentencing enhancement. See 
    Anderson, 328 F.3d at 1328
    .
    Furthermore, the term “conviction” as used in other statutory and Guideline
    enhancement provisions includes nolo contendere and guilty pleas with
    adjudication withheld. See United States v. Fernandez, 
    234 F.3d 1345
    , 1346 (11th
    Cir. 2000) (holding a plea of nolo contendere with adjudication withheld qualifies
    as a conviction for purposes of calculating the base offense level under U.S.S.G.
    § 2K2.1(a)(2)); United States v. Mejias, 
    47 F.3d 401
    , 404 (11th Cir. 1995) (holding
    a plea of nolo contendere with adjudication withheld is a conviction that supports
    an enhanced sentence under 21 U.S.C. § 841(b)(1)(B)); United States v. Jones, 
    910 F.2d 760
    , 761 (11th Cir. 1990) (holding that plea of nolo contendere with
    adjudication withheld is a conviction for purposes of U.S.S.G. § 4B1.1 career
    offender enhancement). Moreover, because the meaning of conviction under the
    Sentencing Guidelines is a matter of federal law, certain state court adjudications
    qualify as convictions for federal sentencing purposes -- even though those
    adjudications do not qualify as convictions under state law. United States v. Elliot,
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    732 F.3d 1307
    , 1310-13 (11th Cir. 2013) (holding an Alabama “youthful offender
    adjudication” qualified as a conviction for purposes of classifying defendant as a
    career offender under § 4B1.1, even though a youthful offender adjudication did
    not qualify as a conviction under Alabama law).
    The district court committed no error, plain or otherwise, in considering
    Solis-Alonzo’s guilty plea to felony battery, with adjudication withheld, as a
    conviction for purposes of § 2L1.2. Solis-Alonzo pled guilty to Florida felony
    battery and was sentenced to a 95-day term of imprisonment, followed by 3 years’
    probation. Therefore, although Solis-Alonzo’s adjudication of guilt was withheld,
    he pleaded guilty to the offense and suffered a restraint on his liberty. Thus, his
    Florida felony battery guilty plea and term of imprisonment qualifies as a
    conviction under § 2L1.2. See 
    Anderson, 38 F.3d at 1328
    .
    II.
    We review de novo whether a defendant’s prior conviction qualifies as a
    crime of violence under the Sentencing Guidelines and whether the district court
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    improperly relied on non-Shepard1 documents in making its enhancement
    determination. United States v. Romo-Villalobos, 
    674 F.3d 1246
    , 1247 (11th Cir.
    2012); 
    Sneed, 600 F.3d at 1333
    (“[I]n light of Shepard . . . the district court erred
    in overruling Sneed’s objections to the use of the police reports to establish [the
    enhancement].”). We have stated that, when considering whether an offense
    qualifies as a crime of violence under § 4B1.2 (which has the same “use of
    physical force” clause as § 2L1.2), we look to cases applying the Armed Career
    Criminal Act (“ACCA”) for guidance. United States v. Alexander, 
    609 F.3d 1250
    ,
    1253 (11th Cir. 2010). Compare U.S.S.G. § 4B1.2 with U.S.S.G. § 2L1.2
    n.1(B)(iii).
    Section 2L1.2’s commentary defines a crime of violence this way:
    [A]ny of the following offenses under federal, state or local law:
    murder, manslaughter, kidnapping, aggravated assault, forcible sex
    offenses (including where consent to the conduct is not given or is not
    legally valid, such as where consent to the conduct is involuntary,
    incompetent, or coerced), statutory rape, sexual abuse of a minor,
    robbery, arson, extortion, extortionate extension of credit, burglary of
    a dwelling, or any other offense under federal, state, or local 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 n.1(B)(iii).
    1
    Shepard v. United States, 
    544 U.S. 13
    , 26, 
    125 S. Ct. 1254
    , 1263, 
    161 L. Ed. 2d 205
    (2005) (limiting inquiry to “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 to some comparable judicial record of this information.”).
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    “Generally, . . . in determining whether a prior conviction is a qualifying
    offense for sentencing enhancement purposes,” we apply a “categorical approach.”
    United States v. Palomino Garcia, 
    606 F.3d 1317
    , 1336 (11th Cir. 2010). Using
    the categorical approach, we look only at the statutory elements of an offense, and
    not the particular facts underlying the conviction, in determining whether an
    offense qualifies as a predicate for enhancement. Descamps v. United States, 570
    U.S. __, 
    133 S. Ct. 2276
    , 2283-86, 
    186 L. Ed. 2d 438
    (2013); see also Mathis v.
    United States, 579 U.S. __, __, 
    136 S. Ct. 2243
    , 2251, 
    195 L. Ed. 2d 604
    (2016)
    (“How a given defendant actually perpetrated the crime . . . makes no difference.”).
    We must assume that the conviction rested upon the least of the acts criminalized
    by the statute and determine whether those acts fall within the generic federal
    offense. United States v. Estrella, 
    758 F.3d 1239
    , 1245 (11th Cir. 2014). If a
    criminal statute is divisible, meaning it lists multiple potential offense elements in
    the alternative (only some of which qualify as a predicate for enhancement), we
    use the “modified categorical approach” and look to a restricted set of materials
    such as plea agreements or plea colloquy transcripts to determine which element
    formed the basis of the defendant’s conviction. Descamps, 570 U.S. at __, 133 S.
    Ct. at 2283-85; 
    Shepard, 544 U.S. at 26
    , 125 S. Ct. at 1263. Nonetheless, the
    modified categorical approach retains the categorical approach’s central feature, a
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    focus on the elements, rather than the facts, of a crime. Descamps, 570 U.S. at __,
    133 S. Ct. at 2283-85.
    The applicable Florida statute provides that a person commits felony battery
    if he (1) “[a]ctually and intentionally touches or strikes another person against”
    their will and (2) “[c]auses great bodily harm, permanent disability, or permanent
    disfigurement.” Fla. Stat. § 784.041(1). A violation of § 784.041 constitutes a
    third-degree felony. Fla. Stat. § 784.041(3). As stated by the statute’s plain
    language and confirmed by Florida case law, the touching or striking must be
    intentional rather than accidental. See Fla. Stat. § 784.041(1); W.E.P., Jr. v. State,
    
    790 So. 2d 1166
    , 1170 (Fla. Dist. Ct. App. 2001). The lack of specific intent for
    the causation-of-injury element distinguishes Florida felony battery from Florida
    aggravated battery, which requires intentional and knowing infliction of great
    bodily harm, permanent disability, or permanent disfigurement. Compare Fla.
    Stat. § 784.045(1)(a)(1) with Fla. Stat. § 784.041(1)(b).
    Although the Sentencing Guidelines do not define the term “physical force”
    as used in § 2L1.2’s crime of violence definition, the Supreme Court has defined
    the term, in the ACCA context, to mean “violent force—that is, force capable of
    causing physical pain or injury to another person.” Johnson v. United States, 
    559 U.S. 133
    , 140, 
    130 S. Ct. 1265
    , 1271, 
    176 L. Ed. 2d 1
    (2010). In Johnson, the
    Supreme Court concluded that Florida simple battery, Fla. Stat. § 784.03, was no
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    violent felony under the ACCA because the Florida Supreme Court had interpreted
    the “actually and intentionally touching” element as being “satisfied by any
    intentional physical contact, ‘no matter how slight.’” 
    Id. at 138,
    130 S. Ct. at
    1269-70 (emphasis in original) (citing State v. Hearns, 
    961 So. 2d 211
    , 218 (Fla.
    2007)). Thus, the Supreme Court concluded that Florida simple battery did not
    categorically require an offender to employ force capable of causing physical pain
    or injury to another person. 
    Id. In Leocal
    v. Ashcroft, the Supreme Court held that a conviction under
    Florida’s DUI statute did not qualify as a crime of violence under 18 U.S.C. § 16,
    which -- like § 2L1.2 -- defines a crime of violence as “an offense that has as an
    element the use, attempted use, or threated use of physical force” against the
    person of another. 
    543 U.S. 1
    , 12, 
    125 S. Ct. 377
    , 384, 
    160 L. Ed. 2d 271
    (2004);
    compare 18 U.S.C. § 16 with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The Supreme
    Court clarified that the word “use,” in the context of the definition of crime of
    violence, “requires active employment.” 
    Leocal, 543 U.S. at 8-9
    , 125 S. Ct. at 382.
    The Supreme Court reasoned that because defendants could be convicted under
    Florida’s DUI statute for negligent or accidental conduct, Florida’s DUI statute did
    not qualify as an offense requiring “use of physical force against the person or
    property of another”: such offenses required purposeful, intentional criminal
    behavior from the defendant. 
    Id. at 9,
    125 S. Ct. at 382.
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    In Palomino Garcia, we concluded that Arizona aggravated assault did not
    qualify as a crime of violence under § 
    2L1.2. 606 F.3d at 1337
    . Arizona’s
    aggravated assault statute provided that a person commits a version of felony
    aggravated assault if he assaults another while in custody of law enforcement
    agency personnel and has reason to know that the assault victim is an agency
    employee acting in an official capacity. 
    Id. at 1325.
    In turn, Arizona defined
    assault as “intentionally, knowingly or recklessly causing any physical injury to
    another person.” 
    Id. We reasoned
    that Arizona aggravated assault’s mens rea
    (recklessness), stripped the statute of the intentionality necessary to trigger
    § 2L1.2’s crime of violence enhancement. 
    Id. at 1336.
    We stated that, because
    Arizona law defined recklessness as nothing more than the conscious disregard of
    a substantial and unjustifiable risk, a conviction with a mens rea of recklessness
    was more akin to negligence and, therefore, did not require the “use” of physical
    force. 
    Id. We have
    recently determined that Florida felony battery qualifies as a crime
    of violence under the elements clause of § 2L1.2. See United States v. Vail-Bailon,
    
    868 F.3d 1293
    , 1302 (11th Cir. 2017). We noted that a statute that required a
    touching that caused “great bodily harm, permanent disability, or permanent
    disfigurement,” which Fla. Stat. § 784.041 required, was a statute that called for
    force capable of causing physical injury. See 
    id. Thus, we
    concluded that
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    intentional force—even of the touching variety—that in fact caused “great bodily
    harm, permanent disability, or permanent disfigurement,” as required to sustain a
    conviction under Fla. Stat. § 784.041, necessarily constituted force that was
    capable of causing pain or injury. See 
    id. at 1304-08.
    We noted that this analysis
    was compatible with the Supreme Court’s decision in Leocal because, unlike the
    DUI crime at issue in that case, Fla. Stat. § 784.041 required an intentional use of
    force—a touch or strike—that was exactly the kind of “violent active crime” that
    the elements clause was designed to encompass. See 
    id. at 1307.
    As an initial matter, although a police report is no Shepard document, the
    district court did not err in admitting Solis-Alonzo’s felony-battery police report
    because the report was admitted for the purpose of considering Solis-Alonzo’s
    objection to the facts as alleged in paragraph 24 of the Presentence Investigation
    Report; and the court did not rely on the report in its determination that Florida
    felony battery was a crime of violence under § 2L1.2. See 
    Shepard, 544 U.S. at 26
    , 125 S. Ct. at 1263. While the district court did not rely in its final analysis on
    the Shepard documents supplied by the government, their consideration would not
    change the analysis. Because Solis-Alonzo was charged generically, using all the
    elements of the statute, and the judgment does not specify particular elements,
    either way we must look to the least culpable means of violating the statute. See
    Descamps, 570 U.S. at __, 133 S. Ct. at 2283-86.
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    Solis-Alonzo’s argument is foreclosed by our binding precedent in Vail-
    Bailon. 
    See 868 F.3d at 1302-08
    . We have definitively said that a defendant
    convicted of Florida felony battery must act with “force capable of causing
    physical pain or injury to another person” because a conviction requires that the
    touching actually cause “great bodily harm, permanent disability, or permanent
    disfigurement.” See id.; Fla. Stat. § 784.041(1)(b). Because the measure of force
    under Johnson is whether the force is “capable” of causing physical pain or injury,
    proof that the force, in fact, caused the harm necessarily proves that it was
    “capable” of doing so. See 
    Vail-Bailon, 868 F.3d at 1302-08
    ; Fla. Stat. § 784.041;
    
    Johnson, 559 U.S. at 140
    , 130 S. Ct. at 1271. Moreover, for a conviction, the
    defendant must “use” that degree of force intentionally. See 
    Vail-Bailon, 868 F.3d at 1307
    . A defendant convicted of Florida felony battery has necessarily acted
    with a “higher degree of intent than negligent or merely accidental,” or even
    reckless, conduct because he must act with purposeful intent to touch the victim.
    See id.; Leocal, 543 U.S. at 
    9, 125 S. Ct. at 382
    ; Palomino 
    Garcia, 606 F.3d at 1336
    .
    Accordingly, based on Vail-Bailon, the district court did not err in qualifying
    Solis-Alonzo’s Florida felony batter offense as a crime of violence under § 2L1.2.
    
    See 868 F.3d at 1302-08
    ; Fla. Stat. § 784.041(1)(a)-(b).
    AFFIRMED.
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