Sentencing Guidelines/Career Offender – Under the modified categorical approach, a prior conviction for battery under Florida law is a “crime of violence” under the Career Offender provision of the Guidelines, U.S.S.G. § 4B1.1(a).
Clifford Gandy, Jr. was convicted of multiple drug trafficking and firearm charges and was sentenced to 300 months after the district court found he was a “career offender” under § 4B1.1 of the Sentencing Guidelines, which resulted in a recommended range of 360 months to life. The sentencing court based its finding on Gandy’s three prior state convictions for drug trafficking, battery upon a detainee, and felony battery.
Gandy appealed, arguing that the battery convictions were not “crimes of violence.” He argued that the Court should overrule its prior decision in United States v. Green, 842 F.3d 1299 (11th Cir. 2016), where the Eleventh Circuit held that the relevant Florida battery statute, which defines battery as occurring when one “touches or strikes another person” or “intentionally causes bodily harm to another person” was divisible between three provisions: “touching,” “striking,” and “intentionally causing bodily harm,” and that sentencing courts could consult Shepard documents to establish which provision the defendant was convicted under.
On appeal, the Court declined to decide whether the Florida battery statute was divisible between touching and striking, holding instead that Gandy’s prior conviction was necessarily based on the provision for “intentionally causing bodily harm,” which was categorically a crime of violence.
The Court further held that the Shepard documents used to make that determination properly included the arrest report since it was incorporated in the plea agreement. The report made clear Gandy was charged and convicted for “battery causing bodily harm.” The Court also rejected Gandy’s argument that his nolo contendre plea did not mean he adopted the factual allegations of the report.
Dissenting, Judge Rosenbaum contended that Gandy’s prior conviction was not a “crime of violence” since it was not “necessarily” based on the intentional harm provision of the Florida battery statute. She further argued that “touching” and “striking” in the Florida battery statute was not divisible since they provided alternative means but not alternative elements to the crime of battery. Judge Rosenbaum also noted that the Court’s application of the modified categorical approach created a circuit split regarding its consideration of the arrest reports, especially the arresting author’s written legal conclusions that Gandy had committed “battery causing bodily harm.”
TIP: While the Court must apply the Career Offender Enhancement when the enhancement is supported by the evidence, recent recommendations by the U.S. Sentencing Commission to limit application of the enhancement may be persuasive in requesting a downward variance from the Guidelines range. See, https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/criminal-history/201607_RtC-Career-Offenders.pdf.
Appeal from Northern District of Florida
Opinion by W. Pryor, joined by Conway (by designation from M.D. Fla)
Dissent by Rosenbaum