[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 22, 2010
No. 08-10185
JOHN LEY
________________________
CLERK
D. C. Docket No. 03-14041-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK FREDERICK WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 22, 2010)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before DUBINA, Chief Judge, CARNES, Circuit Judge, and RESTANI,* Judge.
*
Honorable Jane Restani, Chief Judge of the United States Court of International Trade,
sitting by designation.
DUBINA, Chief Judge:
In United States v. Williams,
563 F.3d 1239 (11th Cir. 2009), we affirmed
Patrick Frederick Williams’s life sentence as a career offender under U.S.S.G. §
4B1.1 following his conviction for possession of crack cocaine. The Supreme
Court vacated our judgment, Williams v. United States,
130 S. Ct. 1734 (2010),
and remanded the case to us for further consideration in light of its decision in
Johnson v. United States, __ U.S. __,
130 S. Ct. 1265 (2010). After additional
review, we vacate Williams’s sentence and remand for re-sentencing.
In Johnson, the Supreme Court held that the Florida felony offense of
battery was not a “violent felony” under the “physical force” subdivision of the
Armed Career Criminal Act (“ACCA”).
130 S. Ct. at 1274; see also
18 U.S.C. §
924(e)(2)(B)(i) (2006) (defining “violent felony” in part as any crime that “has as
an element the use, attempted use, or threatened use of physical force against the
person of another”). The Court reasoned that “in the context of a statutory
definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that
is, force capable of causing physical pain or injury to another person.”
130 S. Ct.
at 1271. The Court concluded that the Florida battery offense was not a “violent
felony” under the “physical force” subdivision of the ACCA because Florida
courts have held that the felony battery offense requires proof of only slight,
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incidental physical contact.
Id. at 1269, 1274; see also State v. Hearns,
961 So. 2d
211, 219 (Fla. 2007) (holding that the Florida crime of battery on a law
enforcement officer, “like battery itself, may be committed with only nominal
contact”).
In this case, the district court apparently relied on Williams’s prior
conviction for battery on a law enforcement officer as a predicate for sentence
enhancement under the career offender provision of the sentencing guidelines.1
See U.S.S.G. § 4B1.1(a) (defining career offender as one who has “at least two
prior felony convictions of either a crime of violence or a controlled substance
offense”). We hold that, in light of the Supreme Court’s ruling in Johnson, the
fact of a conviction for felony battery on a law enforcement officer in Florida,
standing alone, no longer satisfies the “crime of violence” enhancement criteria as
defined under the “physical force” subdivision of section 4B1.2(a)(1) of the
sentencing guidelines. Though the statutory context here varies somewhat from
1
At the sentencing hearing, the district court did not indicate under which subdivision of
the “crime of violence” definition, found in U.S.S.G. § 4B1.2(a), Williams’s conviction for
battery on a law enforcement officer qualified. We note a general lack of specificity regarding
the basis for Williams’s career offender enhancement, especially because the record suggests
that, in addition to Williams’s convictions for battery on a law enforcement officer, Williams
pled nolo contendere to resisting an officer with violence in violation of
Fla. Stat. § 843.01, a
third degree felony. Florida courts have noted that a conviction under this statute requires proof
of conduct or attempted conduct involving threatened or actual physical force with violence.
Walker v. State,
965 So. 2d 1281, 1283–84 (Fla. Dist. Ct. App. 2007).
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that present in Johnson, we have no reason to believe that the words present in the
ACCA have a different meaning than the same words used in the sentencing
guidelines. See United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008)
(“This court has repeatedly read the definition of a ‘violent felony’ under § 924(e)
of the Armed Career Criminal Act as ‘virtually identical’ to the definition of a
‘crime of violence’ under U.S.S.G. § 4B1.2.”).
At the time of Williams’s conviction, Florida law criminalizing battery on a
police officer provided as follows:
Whenever any person is charged with knowingly committing an
assault or battery upon a law enforcement officer . . . the offense for
which the person is charged shall be reclassified as follows: . . .
(b) In the case of battery, from a misdemeanor of the first degree to a
felony of the third degree.
Fla. Stat. § 784.07(2).
A person commits battery if he:
(a) Actually and intentionally touches or strikes another person
against the will of the other; or
(b) Intentionally causes bodily harm to an individual.
Fla. Stat. § 784.03(1). We see no evidence in the record, that we may consider
under Shepard v. United States, to clarify under which of these provisions
Williams was convicted. See
544 U.S. 13, 26,
125 S. Ct. 1254, 1262 (2005)
(limiting fact-finding concerning prior convictions to “the terms of the charging
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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”). To the
extent that the district court believed that Williams’s conviction for battery on a
law enforcement officer was a “crime of violence” because it involved “the use,
attempted use, or threatened use of physical force” and thus qualified for
enhancement, the sentence must be set aside. Accordingly, we vacate Williams’s
sentence and remand this case for re-sentencing consistent with this opinion.
VACATED and REMANDED.
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