United States v. Eddy Wilmer Vail-Bailon
838 F.3d 1091
11th Cir.2016Background
- Vail-Bailon pled guilty to illegal reentry after deportation, citing a prior Florida felony battery conviction under Fla. Stat. § 784.041.
- The PSI proposed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based on the prior felony battery as a crime of violence.
- The district court held that Fla. § 784.041 satisfied the crime-of-violence element and sentenced Vail-Bailon to 37 months.
- The majority held Fla. § 784.041 does not categorically satisfy the elements-clause crime-of-violence when committed by mere touching and vacated/remanded.
- The statute is divisible, allowing a potential Shepard-based analysis if record documents show the defendant was convicted for striking rather than mere touching.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Fla. § 784.041 qualify as a crime of violence under § 2L1.2(b)(1)(A)? | Vail-Bailon argues it does not. | The government contends it does. | No; not categorically under the elements clause when by mere touching. |
| Is § 784.041 divisible, enabling a modified (Shepard) approach? | Assume elements alternative and apply modified approach if records show the version. | Not clearly establishable from record here. | Statute is divisible; modified approach may apply with Shepard docs on conviction basis. |
| Does mere touching satisfy the 'use of physical force' element of the clause? | Touching could meet force as used in the statute. | Mere touching does not constitute 'violent force' under the elements clause. | Mere touching does not involve use of physical force against the person; not a crime of violence. |
| Does the 'great bodily harm' element in § 784.041 alter the analysis under the elements clause? | Conceivably could render it a crime of violence if harm is caused. | Harm outcomes do not retroactively change the nature of the initial act. | No; the mere act, even if resulting in harm, does not make the crime satisfy the elements clause. |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defining physical force and the 'elements clause' context)
- Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) (definition of violent force linked to bodily injury likelihood)
- Curtis Johnson, 559 U.S. 133 (2010) (relates to Florida’s battery touching standard and physical force)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (drug DUI analogies; analyzes 'use of physical force' concept)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisible statute; Shepard approach for element variants)
- Romó-Villalobos, 674 F.3d 1246 (11th Cir. 2012) (treats elements-clause framework across related statutes)