UNITED STATES of America, Plaintiff-Appellee, v. Pedro DIAZ-CALDERONE, a.k.a. Pedro Calderone Diaz, a.k.a. Calderon Pedro, a.k.a. Pedro Diaz, Defendant-Appellant.
No. 12-12013.
United States Court of Appeals, Eleventh Circuit.
May 23, 2013.
1345
Before DUBINA, Chief Judge, and BARKETT and KLEINFELD,* Circuit Judges.
KLEINFELD, Circuit Judge:
We address whether, in the circumstances of this case, facts alleged in police officers’ affidavits established a sufficient basis for a “crime of violence” sentencing enhancement.
Diaz-Calderone‘s conviction and sentence before us was for being a deported alien found in or having reentered the United States without permission.1 He received a sentence of 48 months’ imprisonment, towards the low end of his guidelines range of 46-57 months. His guidelines range would have been considerably lower had he not received a sixteen level enhancement for a prior conviction for a “crime of violence.”2 The question raised in this appeal is whether the sentencing judge erred when he applied the modified categorical approach and determined that Diaz-Calderone had committed a prior “crime of violence” under
Diaz-Calderone‘s prior convictions were for a State of Florida crime, “aggravated battery,” consisting of battery upon a pregnant victim whom the perpetrator knew or should have known was pregnant.4 The complication in this case is that Florida battery, even aggravated battery upon a pregnant woman, need not be violent. It can be accomplished merely by an intentional touching against the victim‘s will. Florida courts interpret the aggravated battery upon a pregnant victim statute to mean that the defendant must 1) commit simple battery 2) upon a pregnant victim that they knew or should have known was pregnant.5 Florida simple battery “occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.”6 Florida courts interpret simple battery to include “any intentional touching, no matter how slight.”7 Therefore, aggravated battery upon a pregnant woman can be accomplished by 1) intentional touching, including slight contact; 2) striking; or 3) intentionally causing bodily harm.
Conceivably a grandmotherly stranger in a shopping mall or a lady at work might see a pregnant woman, say “oh how adorable, may I feel?” and, without waiting for an answer, touch the pregnant woman‘s stomach, much to the annoyance of the pregnant woman. That would be “aggravated battery” under the Florida statute, but not a “crime of violence” under the federal sentencing guidelines. Thus a Florida conviction for aggravated battery on a pregnant woman is not a categorical crime of violence for sentencing guidelines purposes. The district court correctly used the modified categorical approach instead.
Diaz-Calderone‘s Florida charge and conviction do not by themselves establish
To support treating the batteries as crimes of violence, the prosecutor in this federal case submitted as exhibits sworn affidavits from police officers describing the events as violent, and not merely unwanted touching.9 The complaint affidavit by the investigating police officer for the March incident says that the pregnant victim told him that her boyfriend Diaz-Calderone got angry at her because she left the car window open when they went into the store, so he hit her in the arm, she hit him back, she got out her cell phone to call the police, and he knocked it out of her hand. He continued hitting her, she took off her shoes and used them to hit him, and he left. The arrest affidavit for the June incident says that the pregnant victim told the police officer that Diaz-Calderone struck her several times in the arm and stomach, when they argued about a recent dance. The officer observed that her stomach was badly bruised.
The district court applied the modified categorical approach, but did not rely on the affidavits themselves for his decision to add the guidelines enhancement for a crime of violence. Instead, the court relied upon statements made in Diaz-Calderone‘s change of plea proceeding in state court for the two aggravated battery on a pregnant woman cases. The government submitted an audio recording of this plea as an exhibit, and the sentencing judge in this federal case “listened very carefully to the recording.” The judge found that in the colloquy, “the defendant assented to the facts which would make this a violent offense” and that defense counsel affirmed that the arrest affidavit provided a factual basis for Diaz-Calderone‘s plea.
Diaz-Calderone argues that the district court should have determined that Florida aggravated battery was not categorically a crime of violence, and stopped there. He objects to the court‘s use of the modified categorical approach, and says that the court should not have made any findings based on the arrest affidavit. He argues that since he pleaded nolo contendere to the Florida aggravated batteries, he should be deemed to have admitted nothing, and the plea to have established nothing, about whether they were violent.
ANALYSIS
“We review de novo whether a defendant‘s prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.”10 We review the district court‘s findings of fact for clear error.11
But Diaz-Calderone is mistaken in arguing that that should be the end of the inquiry, and that the district court should not have used the modified categorical approach in this case. Diaz-Calderone argues that Florida‘s aggravated battery statute is not ambiguous, and does not have “as an element the use . . . of physical force.”19 He argues that the phrase “different statutory phrases” in United States v. Palomino Garcia,20 implies a negative pregnant, that in the absence of such different statutory phrases there can be no ambiguity justifying application of the modified categorical approach. But because the word “battery” in Florida‘s aggravated battery upon a pregnant woman statute encompasses a mix of forceful and non-forceful conduct, the statute is ambiguous. The district court was correct to use the modified categorical approach.21
United States v. Rosales-Bruno22 holds that, like police reports, Florida arrest affidavits cannot be used in the modi-
But the district judge in this case did not make the mistake of treating the two affidavits as establishing how Diaz-Calderone committed the two batteries on a pregnant woman. Nor did the judge treat the nolo contendere plea as though it had been an admission, by itself, of anything at all. Instead he listened carefully to the change of plea proceedings. Shepard v. United States25 and the cases following it allow a sentencing judge engaging in the modified categorical approach to consult a “transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial record of this information.”26 The cases generally refer to the “transcript” of the plea colloquy, and there was no transcript here, but listening to the actual proceedings is even better than reading a transcript.
We have listened to the recording carefully ourselves, on the CD that was admitted as an exhibit. The state judge, following the Florida rule on acceptance of a nolo contendere plea,27 asked Diaz-Calderone whether he was acknowledging his guilt, or choosing to plead nolo contendere because he felt it was in his best interest. After a lengthy discussion with his attorney, Diaz-Calderone said he was guilty. The judge then asked whether the arrest affidavit established a factual basis for the plea, and Diaz-Calderone‘s attorney said that it did. In the context in which the affidavit was discussed, Diaz-Calderone‘s answer apparently meant “I did what the affidavit says I did.” The district court made a finding of fact, not clearly erroneous, that during his plea colloquy Diaz-Calderone “assented to the facts which would make this a violent offense.” A Florida court finding that the offense was
True, were the statement “I‘m guilty” taken in isolation, it would not necessarily admit violence.28 And were the concession that the arrest affidavit established a factual basis taken in isolation, that too might not necessarily admit violence. Sometimes the defense concedes that the prosecution‘s offer of proof would establish a factual basis for the plea even though not admitting anything. The Florida Supreme Court in Williams v. State29 explained that the “sole purpose” of requiring a factual basis for a plea is
to determine the accuracy of the plea, thereby avoiding a mistake. The trial judge, under this provision, is to ensure that the facts of the case fit the offense with which the defendant is charged. The purpose has been more fully expressed in the committee notes to
Federal Rule 11 . . . “Such inquiry should, e.g., protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge[.]” . . . Clearly, the purpose is to avoid a defendant‘s mistakenly entering a plea of guilty to the wrong offense.30
And Florida expressly provides, as stated above, that a defendant may plead nolo contendere because he feels it to be in his best interest even though he does not admit guilt.31 But combining Diaz-Calderone‘s admission of guilt with counsel‘s statement that the affidavit established a factual basis for his plea established a sufficient basis for the district court‘s finding of fact that Diaz-Calderone was indeed admitting that he did what the affidavit said.
Once it is established, as it is, that Diaz-Calderone admitted that the way he committed aggravated battery on a pregnant victim was by striking the victim, as his arrest affidavit says, the case is over. He committed a prior crime of violence, and the district court properly imposed a sixteen-level sentencing enhancement.
AFFIRMED.