UNITED STATES of America, Plaintiff-Appellee, v. Raymond Edward BRAUN, Defendant-Appellant.
No. 13-15013.
United States Court of Appeals, Eleventh Circuit.
Sept. 8, 2015.
1301
Rosemary Cakmis, Donna Lee Elm, Federal Public Defender‘s Office, Orlando, FL, Jenny L. Devine, Mara Allison Guagliardo, Federal Public Defender‘s Office, Tampa, FL, for Defendant-Appellant.
Before ED CARNES, Chief Judge, COX, Circuit Judge, and ROYAL,* District Judge.
COX, Circuit Judge:
Defendant Raymond Edward Braun challenges on this appeal his sentence under the Armed Career Criminal Act (“ACCA“). Braun was sentenced under the “violent felony” provision of the ACCA,
I. Facts and Procedural History
In July 2013, Braun pleaded guilty to being a felon in possession of a firearm in violation of
While admitting that he had at least one prior felony conviction, Braun preserved his objection that he did not qualify as an armed career criminal.
The first time that Braun was convicted of being a felon in possession of a firearm was in 2003 after a guilty plea. Braun was sentenced as an armed career criminal for this first conviction and given the applicable mandatory minimum sentence of fifteen years imprisonment. Braun was released in 2012. As a part of Braun‘s sentencing proceeding for his 2003 conviction, a Presentence Report (“the 2003 Presentence Report“) was submitted, which the district court relied on in sentencing Braun. When Braun was sentenced in 2003, he did not object to the facts in the 2003 Presentence Report. And, he did not object to being sentenced under the ACCA.
As part of Braun‘s sentencing proceeding in this case, the Government also submitted a Presentence Report (“the 2013 Presentence Report“), which included a number of documents purporting to establish the three requisite violent felonies necessary to sentence Braun under the ACCA. One of these documents was the 2003 Presentence Report. Braun objected to the district court‘s reliance on the 2003 Presentence Report. And, he objected to being sentenced as an armed career criminal. He argued that the Supreme Court‘s decisions in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), precluded the Government from relying on the 2003 Presentence Report to establish that Braun was an armed career criminal. The district court sentenced Braun as an armed career criminal over his objection.
* Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia, sitting by designation.
Section
The ACCA also defines a violent felony to include a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
[W]here there is an intervening decision of the Supreme Court on an issue that overrules either a decision of that Court or a published decision of this Court that was on the books when the appellant‘s opening brief was filed, and that provides the appellant with a new claim or theory, the appellant will be allowed to raise that new claim or theory in a supplemental or substitute brief provided that he files a motion to do so in a timely fashion after ... the new decision is issued.
Id. While Braun raised the issue by supplemental letter (rather than by supplemental brief), the Government also filed a supplemental letter to this court, in which it agrees that the residual clause cannot be applied to define a violent felony under the ACCA. Thus, we find that further briefing is unnecessary. The residual clause is unconstitutionally vague and cannot be applied to define a violent felony under the ACCA.
We review de novo whether a conviction constitutes an ACCA violent felony. United States v. Day, 465 F.3d 1262, 1264 (11th Cir.2006). We are bound by federal law when we interpret terms in the ACCA, and we are bound by state law when we interpret the elements of state-law crimes. Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010) (hereinafter Curtis Johnson).
In this case, three prior violent felony convictions are needed to support a sentence under Section
The application of this rule becomes more difficult in what the Supreme Court refers to as “divisible” statutes. See id. at 2289-90. A divisible statute is one that “comprises multiple, alternative versions of a crime.” Id. at 2284. The difficulty of this situation is that the sentencing court must determine which version of the crime the defendant was convicted of, without engaging in the type of fact finding that the Sixth Amendment requires be done by a jury. The Supreme Court‘s solution to this difficulty is to allow the sentencing court to refer only to Shepard documents to determine which version of the crime the defendant was convicted of. Shepard documents include “the charging document, ... a plea agreement or 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.” Shepard, 544 U.S. at 26, 125 S.Ct. at 1263.
A. Aggravated Battery on a Pregnant Woman
1. Whether the Statute is Divisible
Braun concedes that he was convicted of aggravated battery on a pregnant woman under
2. The Shepard Documents
Because the statute is divisible, our next step is to apply the “modified categorical approach.” Howard, 742 F.3d at 1347. Under the modified categorical approach, we consult any Shepard documents that the Government submitted to determine which version of the crime Braun was convicted of. Id. The Government submitted the charging document, the plea agreement, the judgment of conviction, and the 2003 Presentence Report. The first three documents are Shepard documents. They establish that Braun was convicted of “actually and intentionally touch[ing] or strik[ing]” a pregnant woman against her will. From these documents, we are only permitted to conclude that Braun intentionally touched a pregnant woman against her will. See e.g., Curtis Johnson, 559 U.S. at 138, 130 S.Ct. at 1269-70 (“[N]othing in the record” permitted the court to conclude that the conviction “rested upon anything more than the least of these acts.“); Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (“[W]e must presume that the conviction rested upon nothing more than the least of the acts criminalized....“) (quotations and alterations omitted).
In addition to the Shepard documents, the Government seeks to rely on the 2003 Presentence Report to establish that Braun was convicted of the more serious portion of the divisible statute: intentionally causing bodily harm to a pregnant woman. According to the 2003 Presentence Report, he “pushed the victim against the wall and began choking her.” Thus, the Government contends, the district court properly concluded that this conviction was a prior violent felony.
We now turn to the issue of whether the district court properly relied on the 2003 Presentence Report in determining that the conviction for aggravated battery on a pregnant woman was a prior violent felony. We conclude that the district court erred in relying on the facts in the 2003 Presentence Report in determining that Braun‘s conviction for aggravated battery on a pregnant woman was a violent felony. According to Shepard, the only documents that a sentencing court may rely on are “the charging document, ... a plea agreement or 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.” Shepard, 544 U.S. at 26, 125 S.Ct. at 1263.
These Eleventh Circuit cases address whether a sentencing court properly relied on a Presentence Report prepared for the sentence at issue on appeal, where the Defendant did not object to its use (or the facts contained in it) in the district court. This issue generally arises in habeas proceedings or on direct appellate review where the defendant did not object to the sentencing court‘s reliance on the facts in the Presentence Report, but later seeks to challenge the district court‘s reliance on those facts. None of these cases address the situation raised here: whether facts admitted in a Presentence Report in one case may be relied on in a later unrelated case in finding a violent felony under the ACCA. It is one thing to consider an objection—raised for the first time on appeal—to facts that were never objected to in the district court. It is another thing to say that, once a defendant failed to challenge facts in a Presentence Report, the Government no longer has to prove those facts in a manner consistent with the Sixth Amendment in a later proceeding, whether or not the two proceedings bear any relation to each other.
Therefore, our holding is limited. Under Shepard and Descamps, a sentencing court may not rely on a Presentence Report from an unrelated proceeding in place of a Shepard document. It is not a charging document, a plea agreement or colloquy, or a comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. at 1263. And, the facts in the 2003 Presentence Report were properly objected to in this proceeding. To allow the use of the 2003 Presentence Report in the manner advocated by the Government would be inconsistent with the Court‘s holding in Descamps that, “when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense‘s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.” See Descamps, 133 S.Ct. at 2288.
Having determined that the district court‘s reliance on the 2003 Presentence Report was error, we cannot conclude that Braun intentionally caused bodily harm to a pregnant woman. As Descamps makes clear, we may not consider the facts of the underlying conviction, no matter how violent the facts may be. Id. at 2288.
3. Whether the Conviction Was a Violent Felony
We now determine whether actually and intentionally touching a pregnant woman against her will constitutes a violent felony under the ACCA. The only issue before us is whether the conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
We must consider whether actually and intentionally touching a pregnant woman against her will involves the use, attempted use, or threatened use of physical force against the person of another. In Curtis Johnson, the Supreme Court considered whether Florida battery involved the use, attempted use, or threatened use of physical force against another. 559 U.S. at 136-37, 130 S.Ct. at 1268-69. The Court held that, because the defendant could have been convicted of merely unwanted touching, this did not involve “physical force.” Id. The Court reasoned that “the phrase ‘physical force’ means violent force.” Id. at 140, 130 S.Ct. at 1271. Thus, since the same Florida statute supplies the elements of battery in this case, our only inquiry is whether the fact that the unwanted touching occurred on a pregnant woman alters the analysis. We conclude that it does not. The Supreme Court has made clear that “physical force” under the ACCA requires violent contact beyond a mere touching. And, the Government has presented no persuasive reason why the fact that the touching occurred on a pregnant woman would render an otherwise nonviolent touching violent.
We hold that Braun‘s conviction for aggravated battery on a pregnant woman was not a violent felony. As discussed above, all we are permitted to conclude from the Shepard documents and the statutory language is that Braun committed an unwanted touching on a pregnant woman. Thus, the Government has failed to prove that Braun‘s conviction for aggravated battery on a pregnant woman was a prior violent felony.
B. Battery on a Law Enforcement Officer
Braun concedes that he was convicted of battery on a law enforcement officer under
As with the conviction for battery on a pregnant woman, the Government submitted the charging document, the plea agreement, the judgment of conviction, and the 2003 Presentence Report. The first three documents are Shepard documents. They establish that Braun was convicted of “actually and intentionally touch[ing] or strik[ing]” a law enforcement officer against his will. As with the battery on a pregnant woman conviction, the Shepard documents only allow us to conclude that Braun actually and intentionally touched a law enforcement officer against his will. And, as discussed above, the district court erred in relying on the 2003 Presentence
The Supreme Court‘s holding in Curtis Johnson, that a conviction for Florida battery involving merely an unwanted touching does not qualify as a violent felony under the elements clause, applies here. 559 U.S. at 140, 130 S.Ct. at 1271. We note that in Turner, this court held that the defendant‘s conviction for battery on a law enforcement officer qualified as a violent felony under both the elements clause and the residual clause. 709 F.3d at 1340. However, the Turner court applied the modified categorical approach and concluded that the defendant was convicted of an actual and intentional striking, rather than a mere touching. Id. The Turner court appeared to assume that, had the conviction been for a mere touching, it would not qualify as a violent felony under the elements clause. See id. at 1339. And, as discussed, the Supreme Court has concluded that the residual clause is unconstitutionally vague. Samuel Johnson, 135 S.Ct. at 2557. Thus, this court‘s holdings in Turner do not apply here. We hold that the Government has failed to prove that Braun‘s conviction for battery on a law enforcement officer was a prior violent felony.
C. The Government‘s Supplemental Letter
After Samuel Johnson was decided, the Government filed a supplemental letter to this court. This letter requests a second opportunity on remand to show that the Florida resisting arrest with violence conviction qualifies as a prior violent felony under the ACCA elements clause. We deny the Government‘s request. The ACCA requires proof of three prior violent felonies, and we have concluded that the convictions for battery on a law enforcement officer and aggravated battery on a pregnant woman do not satisfy the ACCA elements clause. Thus, regardless of whether the Florida resisting arrest with violence conviction qualifies under the elements clause, the Government cannot prove three prior violent felonies.
III. Conclusion
The ACCA sentence requires proof of three violent felonies. We hold that the Government failed to prove that two of the four felonies on which the Government relies were violent felonies. We reverse the judgment of the district court sentencing Braun as an armed career criminal, hold that Braun may not be sentenced under the ACCA, and remand for resentencing.
REVERSED AND REMANDED.
No. 14-12366.
United States Court of Appeals, Eleventh Circuit.
Sept. 14, 2015.