United States v. Eddy Wilmer Vail-Bailon
2017 U.S. App. LEXIS 16283
11th Cir.2017Background
- Defendant Eddy Vail-Bailon (Guatemalan citizen) was deported after a Florida conviction for felony battery (Fla. Stat. § 784.041) and later pleaded guilty to illegal reentry (8 U.S.C. § 1326).
- At sentencing the district court applied a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his prior Florida felony battery was treated as a "crime of violence."
- A divided Eleventh Circuit panel vacated the enhancement; the Government obtained en banc rehearing.
- The en banc majority applied the categorical approach (no Shepard documents available) and analyzed whether Florida felony battery necessarily involves the "use... of physical force" in § 2L1.2's elements clause.
- The majority held that under Supreme Court precedent (Curtis Johnson) "physical force" means violent force "capable of causing physical pain or injury," and that Florida felony battery (which requires causing great bodily harm, permanent disability, or disfigurement) categorically satisfies that standard; the sentence was reinstated.
Issues
| Issue | Vail-Bailon (Defendant) Argument | Government (Respondent) Argument | Held |
|---|---|---|---|
| Whether Florida felony battery (§ 784.041) is a "crime of violence" under the elements clause of U.S.S.G. § 2L1.2 | The statute can be violated by a mere, minimal touching that accidentally causes serious injury; Curtis Johnson shows mere touching is not "physical force" | The statute requires a touching/strike that in fact causes "great bodily harm," which necessarily entails force capable of causing pain or injury, satisfying Curtis Johnson | Yes — felony battery categorically qualifies as a crime of violence under § 2L1.2 (majority) |
| Proper definition of "physical force": capability vs. likelihood/degree | Urged adoption of a "likely to cause pain" or intent-based standard (relying on Flores/Douglas); argues Curtis Johnson should not be read to sweep in all conduct "capable" of causing injury | Read Curtis Johnson as adopting a "capable of causing pain or injury" test; a statute requiring actual great bodily harm necessarily involves such force | Majority: adopt Curtis Johnson’s wording — "force capable of causing physical pain or injury"; reject defendant’s alternative standard |
| Relevance of Florida caselaw and realistic-probability hypotheticals | Florida precedent is irrelevant to federal meaning; hypotheticals (tap/tickle) show a realistic possibility the statute covers nonviolent conduct | Florida courts interpreting similar state sentencing provisions treat § 784.041 as necessarily involving physical force; improbable hypotheticals are not realistic probabilities | Majority: Florida appellate decisions support that § 784.041 cannot be committed without physical force; hypothetical edge-cases are too speculative to defeat categorical approach |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" in elements clause means violent force capable of causing pain or injury)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical-approach principles; presume conviction rests on least culpable conduct)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) ("use" of force suggests higher degree of intent than negligent/accidental conduct)
- United States v. Castleman, 572 U.S. 157 (2014) (intentional or knowing causation of bodily injury can constitute "use" of force)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (reckless domestic assault can constitute "use" of physical force for misdemeanor-DV statute)
- Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) (earlier circuit discussion of "likely to cause" formulation; relied on by dissent/defendant)
- Douglas v. United States, 858 F.3d 1069 (7th Cir. 2017) (applying Curtis Johnson’s capability language to an Indiana felony-battery statute similar to Florida’s)