United States v. Winyontis Quavari Gordon ( 2020 )


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  •         USCA11 Case: 19-13708    Date Filed: 10/15/2020   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 19-13708
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 5:19-cr-00034-JDW-PRL-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    WINYONTIS QUAVARI GORDON,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (October 15, 2020)
    Before MARTIN, ROSENBAUM and BLACK, Circuit Judges.
    PER CURIAM:
    USCA11 Case: 19-13708          Date Filed: 10/15/2020   Page: 2 of 8
    Winyontis Gordon appeals his 192-month sentence imposed after pleading
    guilty to one count of being a felon in possession of a firearm and ammunition, in
    violation of 18 U.S.C. § 922(g)(1). Gordon asserts (1) his conviction and sentence
    violate the Commerce Clause because the Government did not have to prove his
    possession of a firearm had a substantial effect on interstate commerce; and (2) the
    district court erred in finding a Florida criminal punishment code sentencing
    scoresheet was a Shepard 1 document and then relying on that scoresheet to
    sentence him under the Armed Career Criminal Act (ACCA). After review, we
    affirm Gordon’s conviction, but vacate and remand for resentencing.
    I. DISCUSSION
    A. Constitutionality of § 922(g)(1)
    It is unlawful for a convicted felon to “possess in or affecting commerce,
    any firearm or ammunition.” 18 U.S.C. § 922(g)(1). The Supreme Court has held
    that, under the predecessor statute to § 922(g), proof the firearm had previously
    traveled in interstate commerce was sufficient to satisfy the required “minimal
    nexus” between possession and commerce. Scarborough v. United States, 
    431 U.S. 563
    , 575-77 (1977). We have “repeatedly held” § 922(g)(1) “is not a facially
    unconstitutional exercise of Congress’s power under the Commerce Clause
    because it contains an express jurisdictional requirement.” United States v.
    1
    Shepard v. United States, 
    544 U.S. 13
    (2005).
    2
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    Jordan, 
    635 F.3d 1181
    , 1189 (11th Cir. 2011). We have also held § 922(g)(1) is
    not unconstitutional as applied to a defendant where the government demonstrated
    that the firearm had traveled in interstate commerce.
    Id. A showing the
    firearm
    was manufactured in one state and traveled in interstate commerce to another state
    satisfies the “minimal nexus” test. United States v. Wright, 
    607 F.3d 708
    , 715-16
    (11th Cir. 2010) (concluding the government satisfied the nexus requirement by
    showing the firearms were manufactured outside the state in which the offense
    took place, thereby necessarily traveling in interstate commerce).
    Plain error review applies because Gordon did not challenge § 922(g)’s
    constitutionality in the district court. United States v. Wright, 
    607 F.3d 708
    , 715
    (11th Cir. 2010) (reviewing a constitutional challenge raised for the first time on
    appeal for plain error). The district court did not plainly err because Gordon
    admitted to knowingly possessing a firearm and ammunition as a felon and did not
    dispute that those items were manufactured out of state. See 
    Wright, 607 F.3d at 715-16
    . And our precedent forecloses Gordon’s facial and as-applied
    constitutional challenges to § 922(g)(1). See id.; 
    Jordan, 635 F.3d at 1189
    .
    Accordingly, we affirm Gordon’s conviction.
    B. ACCA
    The ACCA mandates a minimum sentence of 15 years’ imprisonment for
    any defendant convicted of being a felon in possession of a firearm who has 3
    3
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    previous convictions “for a violent felony or a serious drug offense, or both,
    committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The
    “elements clause” of the ACCA defines “violent felony” as any crime punishable
    by a term of imprisonment exceeding one year that “has as an element the use,
    attempted use, or threatened use of physical force against the person of another.”
    Id. § 924(e)(2)(B); United
    States v. Owens, 
    672 F.3d 966
    , 968 (11th Cir. 2012).
    Under the elements clause, “the phrase ‘physical force’ means violent force—that
    is, force capable of causing physical pain or injury to another person.” Johnson v.
    United States, 
    559 U.S. 133
    , 140 (2010). And “use” requires “active employment”
    of physical force. Leocal v. Ashcroft, 
    543 U.S. 1
    , 9 (2004).
    To determine whether a predicate offense qualifies as a violent felony under
    the elements clause, courts apply either the categorical or the modified categorical
    approach. Mathis v. United States, 
    136 S. Ct. 2243
    , 2248-49 (2016). The modified
    categorical approach, which applies when a statute is divisible into multiple
    crimes, allows courts to look to a “limited class of documents” to determine the
    defendant’s crime of conviction.
    Id. at 2249.
    Those documents are “the charging
    document, the . . . plea agreement or transcript of colloquy between judge and
    defendant in which the factual basis for the plea was confirmed by the defendant,
    or [] some comparable judicial record of this information.” Shepard v. United
    States, 
    544 U.S. 13
    , 26 (2005). The documents must speak plainly in establishing
    4
    USCA11 Case: 19-13708        Date Filed: 10/15/2020     Page: 5 of 8
    whether the defendant necessarily committed the qualifying crime because “[t]he
    Supreme Court has repeatedly stressed that there is a ‘demand for certainty’ in
    determining whether a defendant was convicted of a qualifying offense.” United
    States v. Gandy, 
    917 F.3d 1333
    , 1340 (11th Cir. 2019).
    At issue in this case is Gordon’s prior conviction under Florida Statute
    § 784.03. In Florida, a person commits a third-degree felony where he “has one
    prior conviction for battery, aggravated battery, or felony battery” and “commits
    any second or subsequent battery.” Fla. Stat. § 784.03(2). Battery, in turn, occurs
    when someone: “1. [a]ctually and intentionally touches or strikes another person
    against the will of the other [(touching or striking battery)]; or 2. [i]ntentionally
    causes bodily harm to another person [(bodily harm battery)].”
    Id. § 784.03(1)(a). Bodily
    harm encompasses “slight, trivial, or moderate harm” to a victim, all of
    which satisfy the ACCA’s definition of violent force. 
    Gandy, 917 F.3d at 1340
    (quotations omitted).
    We have treated Florida Statute § 784.03(1)(a) as divisible and, therefore,
    applied the modified categorical approach and allowed review of Shepard
    documents regarding convictions under that statute.
    Id. at 1339-40.
    Section
    784.03(1)(a)1—touching and striking battery—does not categorically qualify as a
    violent felony, and § 784.03(2)(a)2—bodily harm battery—does categorically
    qualify as a violent felony. See 
    Johnson, 559 U.S. at 136-40
    (concluding offenses
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    under § 784.03(1)(a) do not categorically qualify as ACCA violent felonies
    because battery by touching does not have the requisite physical-force element);
    
    Gandy, 917 F.3d at 1339-40
    (“Battery by ‘intentionally causing bodily harm’
    categorically constitutes a crime of violence.”).
    In Florida, the prosecution prepares a scoresheet for each defendant and
    presents it to defense counsel for review before sentencing. Fla. R. Crim. P.
    3.704(d)(1). A defendant receives points for his criminal history, the victim’s
    injury, and other relevant factors, which are then totaled. See Fla. Stat. § 921.0024.
    A victim injury is “scored for physical injury or death suffered by a person as a
    direct result of any offense pending before the court for sentencing.” Fla. R. Crim.
    P. 3.704(d)(9). A defendant can receive points for a victim’s injury where victim
    injury is not an element of the offense. Rogers v. State, 
    963 So. 2d 328
    , 330-32
    (Fla. 2d DCA 2007) (explaining the Florida Rules of Criminal Procedure were
    revised to remove a requirement the victim injury be an element of the crime for
    scoresheet purposes).
    In finding Gordon’s conviction under Florida Statute § 784.03 was a violent
    felony, the district court both (1) determined the Florida criminal punishment code
    sentencing scoresheet qualified as a Shepard document, and (2) relied on the
    scoresheet to conclude Gordon’s battery conviction under Florida Statute § 784.03
    was a violent felony. We need not decide whether the scoresheet is a Shepard
    6
    USCA11 Case: 19-13708           Date Filed: 10/15/2020      Page: 7 of 8
    document because the document lacks sufficient information to determine whether
    Gordon’s conviction qualifies as a violent felony.2 While the scoresheet states that
    Gordon’s victim’s injury was “slight” which satisfies the “violent force” definition,
    see 
    Gandy, 917 F.3d at 1340
    , the scoresheet does not specify under which
    subsection of § 784.03 Gordon’s conviction was obtained. That the victim injury
    was scored as “slight” does not provide the requisite certainty Gordon was
    convicted of the “bodily harm” subsection of the battery statute, however, because
    Florida law does not require that victim injury be an element of the offense in order
    to score the victim injury on the scoresheet. See 
    Rogers, 963 So. 2d at 330-32
    .
    Gordon’s scoresheet does not “speak[] plainly” in establishing the elements of
    Gordon’s conviction and thus does not satisfy the demand for certainty in
    determining whether Gordon was convicted of a qualifying ACCA offense. See
    
    Gandy, 917 F.2d at 1340
    (“[W]e may conclude that Gandy was convicted of a
    qualifying offense only if the Shepard documents ‘speak plainly’ in establishing
    the elements of his conviction.”).
    The district court erred in concluding Gordon’s conviction for battery under
    Florida Statute § 784.03 was a violent felony. See 
    Owens, 672 F.3d at 968
    (reviewing de novo whether a conviction is a violent felony for purposes of the
    2
    We offer no opinion regarding whether a scoresheet could be used as a Shepard
    document in another case. We hold only that, under these facts, the document lacks the requisite
    specificity required.
    7
    USCA11 Case: 19-13708     Date Filed: 10/15/2020   Page: 8 of 8
    ACCA). Because Gordon’s § 784.03 conviction does not qualify as a violent
    felony, we vacate Gordon’s ACCA enhancement and remand for resentencing.
    II. CONCLUSION
    We affirm Gordon’s § 922(g) conviction, but vacate his ACCA enhancement
    and remand for resentencing.
    CONVICTION AFFIRMED, SENTENCE VACATED AND
    REMANDED FOR RESENTENCING.
    8
    

Document Info

Docket Number: 19-13708

Filed Date: 10/15/2020

Precedential Status: Non-Precedential

Modified Date: 10/15/2020