United States v. Clifford B. Gandy, Jr.
917 F.3d 1333
| 11th Cir. | 2019Background
- Defendant Clifford Gandy Jr. was convicted in federal court of drug and firearm offenses; the present appeal concerns whether a 2010 Florida conviction for "battery upon a jail detainee" (Fla. Stat. §§ 784.03, 784.082) qualifies as a "crime of violence" under the Sentencing Guidelines and thus supports a career‑offender designation.
- Florida simple battery, § 784.03(1)(a), criminalizes either (1) "actually and intentionally touch[ing] or strike[ing]" another or (2) "intentionally caus[ing] bodily harm." Battery of a detainee is a felony under § 784.082.
- The probation officer treated Gandy as a career offender based on three prior felonies (including the 2010 battery), producing a Guidelines range of 360 months to life; the court varied to 300 months. Gandy challenged the career‑offender designation.
- The government submitted Shepard‑type documents (charging paper, plea/sentence‑recommendation incorporating the arrest report, arrest report, and state judgment). The arrest report repeatedly described the offense as "Battery Causing Bodily Harm" and recited facts (video of multiple strikes, cuts/bruises); the plea incorporated that report as the factual basis.
- The panel majority held that (1) bodily‑harm battery under § 784.03(1)(a)(2) categorically meets the Guidelines’ "crime of violence" definition, and (2) Shepard documents "speak plainly" that Gandy necessarily pleaded to the bodily‑harm variant, so the conviction supports the career‑offender designation.
- Judge Rosenbaum dissented, arguing the modified categorical approach was misapplied: the Shepard materials did not establish with the required certainty which alternative subsection supported the conviction, so the prior conviction should not have been treated as a qualifying violent offense.
Issues
| Issue | Plaintiff's Argument (Gandy) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Gandy's 2010 Florida battery conviction is a "crime of violence" under U.S.S.G. § 4B1.2(a) | The battery statute is not divisible in the relevant way or, if divisible, the record does not necessarily show he pleaded to the bodily‑harm variant; absent certainty, it cannot be used as a violent predicate | The record (charging doc, plea/sentencing recommendation, arrest report incorporated as factual basis, judgment) shows Gandy necessarily pleaded to "intentionally causing bodily harm," which categorically involves violent force | Affirmed: conviction qualifies as a crime of violence because Shepard documents establish bodily‑harm battery was the basis of the plea |
| Whether bodily‑harm battery (§ 784.03(1)(a)(2)) categorically involves "physical force" per Curtis Johnson | Bodily harm can be broad; some hypotheticals (indirect harms) might not involve the degree of force Johnson requires | Bodily harm requires intentional use of force capable of producing physical pain/injury and thus fits Johnson and Castleman definitions of violent force | Held: bodily‑harm battery categorically involves violent force and is a crime of violence |
| Whether the arrest report (a police report) may be used under the modified categorical approach when incorporated into the plea | Police reports are generally unreliable for this purpose; a defendant’s incorporation of a report does not necessarily mean he adopted legal conclusions in it | Where a defendant signs/accepts a plea/sentence‑recommendation that incorporates the arrest report as the factual basis, the report is a Shepard‑approved record of comparable findings adopted by the defendant | Held: because Gandy incorporated the arrest report as the factual basis without qualification, the court could rely on it to determine the offense of conviction |
| Whether an officer’s legal characterization in the arrest report can bind the court’s determination of what the defendant was convicted of | The officer’s label is merely a legal conclusion and the court — not the arresting officer — determines the actual conviction; reliance on that conclusion risks substituting the officer’s view for the court’s adjudication | The incorporated arrest report did more than label the offense: it recited facts and specifically listed the charge as "Battery Causing Bodily Harm," and the defendant adopted that report as the factual basis | Held: the majority treated the officer’s report (as incorporated) as sufficiently conclusive to show Gandy necessarily pleaded to bodily‑harm battery; the dissent disagreed |
Key Cases Cited
- Curtis Johnson v. United States, 559 U.S. 133 (Sup. Ct.) (defines "physical force" as "violent force" capable of causing pain or injury)
- Shepard v. United States, 544 U.S. 13 (Sup. Ct.) (limits documents courts may consult under the modified categorical approach)
- Descamps v. United States, 570 U.S. 254 (Sup. Ct.) (clarifies that the modified categorical approach identifies which statutory phrase was the basis for conviction)
- Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct.) (addresses divisible statutes and distinction between alternative elements and alternative means)
- United States v. Vail‑Bailon, 868 F.3d 1293 (11th Cir. en banc) (held Florida felony battery qualifies as a crime of violence under Guidelines)
- United States v. Green, 842 F.3d 1299 (11th Cir.) (panel opinion on divisibility later vacated and superseded)
- United States v. Green, 873 F.3d 846 (11th Cir.) (superseding opinion in the Green matter)
- United States v. Horse Looking, 828 F.3d 744 (8th Cir.) (contrasting authority: factual basis that fits multiple alternatives may not establish which subsection was the basis of conviction)
- United States v. Castleman, 572 U.S. 157 (Sup. Ct.) (use of force can include force sufficient to cause pain)
- United States v. Deshazior, 882 F.3d 1352 (11th Cir.) (indirect use of force still qualifies when statute requires force capable of causing pain or injury)