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DON’T TOUCH ME

Eddy Vail-Bailon pled guilty to reentering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Section 1326(b)(1) increases the penalty for illegal reentry when the was deported following conviction of a felony. Eddy’s crime was felony battery under Fla. Stat. § 784.041.

The district court socked Eddy with a 16-level increase in his Guidelines level because the judge decided felony battery is a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). It sure sounds it. “Battery” – unless we’re talking about the Eveready Bunny – sounds ugly.

But, observing that “you can’t judge a book by its cover,” the 11th Circuit reversed. In a decision handed down yesterday, the Court held that the Florida batter statute is divisible, but – in the wake of Welch, Mathis and Curtis Johnson, neither alternative element is a crime of violence.

Under Fla. Stat. § 784.041, a person commits felony battery if he (a) actually and intentionally touches or strikes another person against the will of the other; or (b) causes great bodily harm, permanent disability, or permanent disfigurement. The prosecution can prove a violation of statute “by showing that a defendant “intentionally struck” the victim or that he merely “actually and intentionally touched” the victim).”

When statutes are divisible, trial judges are permitted to look at the state court records to see under which of the alternatives a defendant is convicted. Eddy’s state records were not illuminating, leaving the Court to assume Eddy was convicted under the less serious of the alternatives, “actually and intentionally touching.”

The “elements clause” of Guideline 2L1.2(b)(1)(A) defines a “crime of violence” as including any “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Supreme Court has already held that Florida battery, when committed by actually and intentionally touching another against his or her will, does not satisfy the “elements clause” because it can be satisfied by any intentional physical contact, ‘no matter how slight.’ The Circuit observed that the phrase “physical force” that appears in the “elements clause” necessarily refers to “violent force—that is, force capable of causing physical pain or injury to another person.”

The Circuit held that the second element under the Florida batter statute – that the intentional touching from the first element have “cause[d] great bodily harm, permanent disability, or permanent disfigurement” – likewise contains no requirement that the offender intentionally or knowingly cause bodily harm of any type. So, as Eddy argued and the government conceded, a person can be guilty of Florida felony battery if the offender taps another person on the shoulder while that person stands near the top of stairs, and the person whose shoulder was tapped is either startled or otherwise reacts in such a way that he falls down the stairs and suffers grievous bodily harm.”

The 11th Circuit said, “A crime that occurs in these ways does not qualify under the ‘elements clause’ as a ‘crime of violence’ under Supreme Court precedent. First, it does not involve physical force’…” The Supreme Court has explained that the phrase ‘physical force’ means violent force – that is, force capable of causing physical pain or injury to another person – and explained that “violent” force is “the sort that is intended to cause bodily injury, or at a minimum likely to do so.”

This necessarily excludes Florida felony battery committed by mere touching. “Nor can it be that,” the Court held, “in a given case, the fact that a mere touching actually does result in great bodily harm somehow changes the character of the mere touching from an action that is not likely to result in bodily harm to one that is likely to result in bodily harm. In other words, the results of a specific incident of mere touching do not alter the fact that the nature of mere touching, in and of itself, as the Supreme Court concluded in Curtis Johnson, is not likely to result in bodily harm. So Florida felony battery by mere touching cannot qualify as a ‘crime of violence,’ no matter what the injury resulting from the mere touching might turn out to be.”

United States v. Vail-Bailon, Case No. 15-10351 (11th Circuit, Sept. 28, 2010)