United States v. Winex Eugene

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12923 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 15, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:09-cr-60327-WJZ-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
WINEX EUGENE,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 15, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Winex Eugene pleaded guilty to distributing 5 grams or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1), carrying a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possessing
firearms and ammunition as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). If a person is convicted of a felony controlled substance offense or
felony crime of violence that he committed over the age of 18, like Eugene was,
and he has two prior felony convictions that were either crimes of violence or
controlled substance offenses, he is classified as a career offender under the
sentencing guidelines. U.S.S.G. § 4B1.1(a). The district court determined that
Eugene’s two prior Florida convictions for felony battery and strong arm robbery
were “crimes of violence” under the sentencing guidelines, U.S.S.G. § 4B1.2(a),
and he was classified as a career offender, which increased his guidelines range
from between 188 and 235 months’ imprisonment to between 262 and 327
months’ imprisonment. Eugene was sentenced to 262 months’ imprisonment.
Eugene appeals from his sentence and asks that we determine whether his
prior Florida felony convictions for battery and strong arm robbery are crimes of
violence under the guidelines.
II.
As part of his plea agreement, Eugene waived his right to appeal his
conviction and all but three issues related to his sentence. Under the agreement,
Eugene could appeal any sentence imposed above the statutory maximum for the
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offense or as the result of an upward departure or variance from the guidelines.
Eugene could also appeal the trial court’s conclusion that his conviction for felony
battery under Florida state law was a crime of violence under the sentencing
guidelines. Eugene raises that last issue on appeal, but also asks us to decide
whether his Florida conviction for strong arm robbery is a crime of violence. The
government argues that we should not consider the latter issue because Eugene
waived his right to appeal it. We agree.
We review the validity of a sentencing appeal waiver de novo. United
States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). The waiver must be
made knowingly and voluntarily. Id. The waiver will be valid if the government
can show that the district court specifically questioned the defendant about the
waiver or that the record makes it clear that the defendant understood the
significance of the waiver. Id.
At Eugene’s change-of-plea hearing, the district court asked him if he
understood that he had a right to appeal and that he would waive that right subject
to certain conditions as part of the plea agreement. Eugene responded that he
understood the waiver and its conditions and that he still wished to waive his right
to appeal. He also said that he was waiving his right to appeal voluntarily.
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Because we conclude that Eugene waived his right to appeal knowingly and
voluntarily, and the question whether his conviction for strong arm robbery is a
crime of violence was not an exception to the waiver, we dismiss that portion of
his appeal. Because Eugene preserved his right to appeal whether Florida’s felony
battery law is a crime of violence under the sentencing guidelines, we now turn to
that issue.
III.
We review de novo whether a defendant’s earlier conviction is a crime of
violence under the sentencing guidelines. United States v. Harris, 586 F.3d 1283,
1284 (11th Cir. 2009).
The sentencing guidelines define a crime of violence as
any offense, under federal or state law, punishable by imprisonment for a
term exceeding one year, that (1) has as an element the use, attempted use,
or threatened use of physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves use of explosive, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.
U.S.S.G. § 4B1.2(a). The district court concluded that Eugene’s Florida
conviction for felony battery was a crime of violence under the guidelines. Under
Florida law, a person is guilty of felony battery if he “(a) actually or intentionally
touches or strikes another person against the will of the other; and (b) causes great
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bodily harm, permanent disability, or permanent disfigurement.” Fla. Stat.
§ 784.041.
The Supreme Court recently considered whether Florida’s simple battery
statute, Fla. Stat. § 784.03, was a violent felony under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(c). Johnson v. United States, 130 S. Ct. 1265, 1268
(2010). Because the definitions of “violent felony” under ACCA and “crime of
violence” under the sentencing guidelines are virtually identical, we consider
cases interpreting one as authority in cases interpreting the other. United States v.
Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010).
In Johnson, the Supreme Court concluded that Florida’s simple battery
statute was not necessarily a violent felony because a person could be convicted of
the offense based on any unwanted, intentional physical contact, “no matter how
slight.” Johnson, 130 S. Ct. at 1270 (quoting State v. Hearns, 961 So. 2d 211, 218
(Fla. 2007)). After reviewing the plain language of the statute, the Supreme Court
defined “physical force” in the context of ACCA’s definition of “violent felony”
as “violent force—that is, force capable of causing physical pain or injury to
another person.” Id. at 1271; see also United States v. Harris, 608 F.3d 1222,
1226 (11th Cir. 2010). The Supreme Court reasoned that the minimal contact that
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could result in a simple battery conviction was not “physical force,” and thus not
every conviction for simple battery in Florida was a violent felony under ACCA.
Although Florida’s felony battery statute contains the same “actually and
intentionally touching” language as the simple battery statute, the felony battery
statute has an additional requirement. Compare Fla. Stat. § 784.041 with id. §
784.03. The felony battery statute also requires that the touching “cause[] great
bodily harm, permanent disability, or permanent disfigurement.” Fla. Stat.
§ 784.041. That language means that each touching that violates the felony
battery statute is not only “capable of causing physical pain or injury to another
person,” Johnson, 130 S. Ct. at 1271, it must also actually cause great or
permanent physical harm or injury to another person. See Fla. Stat.§ 784.041.
Thus it is impossible for one to be convicted of felony battery in Florida without
having used “physical force” as defined in Johnson.
Because it is clear that Florida’s felony battery statute, Fla. Stat.§ 784.041,
requires the use of force capable of causing physical pain or injury to another,
Eugene’s prior conviction under the statute was for a crime of violence. And
because that means Eugene had two prior felony convictions for crimes of
violence, he was appropriately classified as a career offender under the guidelines.
Accordingly, we affirm his sentence.
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DISMISSED IN PART, AFFIRMED IN PART.
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