United States v. Raymond Edward Braun
2015 U.S. App. LEXIS 15908
| 11th Cir. | 2015Background
- Braun pleaded guilty in 2013 to being a felon in possession of a firearm; the Government sought ACCA treatment based on three prior violent-felony convictions, triggering a 15-year mandatory minimum.
- Government relied on four prior convictions to reach three violent felonies: aggravated battery on a pregnant woman (Fla. § 784.045(1)(b)), battery on a law-enforcement officer (Fla. § 784.07(2)(b)), resisting arrest with violence (Fla. § 843.01), and assault with intent to rob (Md. law).
- The Government included a 2003 Presentence Report (from an earlier, unrelated proceeding in which Braun had pleaded guilty and not objected to the PSR) among the documents supporting the predicate convictions.
- Braun objected that Shepard/Descamps precluded reliance on the 2003 PSR to show which alternative element of a divisible statute he was convicted of, and also invoked the Supreme Court’s later decision finding the ACCA residual clause void for vagueness (Samuel Johnson).
- The district court sentenced Braun under the ACCA; on appeal the Eleventh Circuit reviewed de novo, held the residual clause unconstitutional and that the Government failed to prove two of the alleged predicates (battery on a pregnant woman and battery on an officer), reversed and remanded for resentencing without ACCA enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Presentence Report from an unrelated prior case may be used (per Shepard/Descamps) to identify which alternative element of a divisible statute the defendant was convicted of | Gov: the 2003 PSR can be used to show the underlying conduct and thus the specific alternative offense | Braun: Shepard/Descamps limit permissible sources to Shepard documents; an unrelated PSR is not a Shepard document and cannot be used here | The court held a PSR from an unrelated proceeding is not an allowable Shepard document; the district court erred in relying on the 2003 PSR |
| Whether aggravated battery on a pregnant woman (Fla. § 784.045(1)(b)) qualifies as an ACCA "violent felony" under the elements clause | Gov: underlying PSR shows violent conduct (pushing, choking), so conviction qualifies | Braun: Shepard documents show only unwanted touching; Curtis Johnson establishes mere touching is not "physical force" under the elements clause | The court held the Shepard documents support only an unwanted touching; under Curtis Johnson "physical force" requires violent force, so the conviction is not a violent felony |
| Whether battery on a law-enforcement officer (Fla. § 784.07(2)(b)) qualifies as a violent felony under the elements clause | Gov: conviction against an officer can be violent; PSR facts could show striking rather than mere touching | Braun: Shepard materials show only unwanted touching; Curtis Johnson bars classifying mere touching as "physical force" | The court held the record shows only touching; under Curtis Johnson it is not a violent felony; Government failed to prove it |
| Whether Samuel Johnson (residual-clause invalidation) could be raised on appeal | Braun: raised residual-clause argument in supplemental filing after the decision | Gov: did not oppose permitting supplemental consideration; Eleventh Circuit precedent allows raising an intervening Supreme Court decision | The court accepted the supplemental raising of Samuel Johnson and held the residual clause is unconstitutional and inapplicable |
Key Cases Cited
- Shepard v. United States, 544 U.S. 13 (2005) (limits sentencing-court sources to specified "Shepard" documents when identifying which statutory alternative a defendant was convicted of)
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach applies only to divisible statutes; sentencing courts may not consult facts beyond Shepard documents)
- Johnson v. United States, 559 U.S. 133 (2010) (Curtis Johnson) ("physical force" in ACCA elements clause means violent force)
- Johnson v. United States, 576 U.S. 591 (2015) (Samuel Johnson) (ACCA residual clause is unconstitutionally vague)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (presumption that conviction rests on the least conduct criminalized)
- United States v. Howard, 742 F.3d 1334 (11th Cir. 2014) (discusses categorical/modified categorical approaches)
- United States v. Turner, 709 F.3d 1328 (11th Cir. 2013) (previous Eleventh Circuit treatment of battery-on-officer predicate under ACCA)