United States v. Pedro Diaz-Calderone
716 F.3d 1345
| 11th Cir. | 2013Background
- Diaz-Calderone was convicted of being a deported alien found in or reentering the U.S. without permission, sentenced to 48 months.
- His guideline range would have been lower but for a 16-level enhancement for a prior conviction designated as a crime of violence.
- The key question is whether the district court erred in using the modified categorical approach to treat the Florida aggravated battery on a pregnant woman as a crime of violence.
- Florida aggravated battery on a pregnant woman can be constituted by non-violent touching, depending on interpretation of the statute, creating ambiguity for a categorical approach.
- The state plea records could provide a factual basis, via the modified categorical approach, for the federal sentencing enhancement.
- The district court relied on a state-court plea colloquy and accepting statements to find a factual basis for violence despite the absence of a transcript.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Florida aggravated battery on a pregnant woman is a crime of violence. | Diaz-Calderone argues no categorical match. | Government argues modified categorical approach valid due to ambiguity. | Ambiguous statute; modified categorical approach proper. |
| Whether the district court may rely on arrest affidavits to determine a prior violent crime. | Affidavits cannot establish the conduct conclusively. | Affidavits lack reliability; plea colloquy can supply basis. | Arrest affidavits alone cannot; but plea colloquy and transcript-like materials may provide sufficient basis. |
| Whether the plea colloquy and defense counsel acknowledgments can establish a factual basis for the violence finding. | Admission was not a formal admission of violence. | Colloquy can confirm the factual basis for the plea. | District court properly found a factual basis from the plea colloquy recording. |
Key Cases Cited
- United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. 2007) (Florida simple battery not categorically violent after Johnson.)
- Johnson v. United States, 130 S. Ct. 1265 (2010) (Johnson overruling strict physical-force requirement for certain batteries.)
- United States v. Williams, 609 F.3d 1168 (11th Cir. 2010) (Distinguishes ACCA from guidelines-based violence definitions.)
- United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010) (Ambiguity in statutes with different phrases triggers modified categorical approach.)
- Rosales-Bruno, 676 F.3d 1017 (11th Cir. 2012) (Arrest affidavits generally not reliable for modified categorical inquiry.)
- Shepard v. United States, 544 U.S. 13 (2005) (Used to justify relying on a transcript or comparable record for factual basis.)
- Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013) (Support for reliance on reliable judicial records in the modified categorical approach.)