Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, September 08, 2015

Braun: Prior Batteries do not qualify under ACCA

In U.S. v. Braun, No. 13-15013 (Sept. 8, 2015), the Court held that because two of the defendant’s prior convictions did not qualify as “violent felonies” under ACCA, the district court erred in imposing ACCA’s mandatory minimum sentence. One of the prior convictions relied on by the district court was a conviction for aggravated battery on a pregnant woman, in violation of Fla. Stat. § 784.045(1)(b). This was a “divisible” statute, because one could violate it by “touching,” or by “striking,” a pregnant woman. The government noted that in a later unrelated case, Braun failed to object to a Presentence Investigation Report that stated that this offense involved “pushing” and “choking” the victim. But the Court held that a Presentence Report in another case was not a Shepard document – not a document that the district court could rely on in determining whether a prior conviction counted as a “violent felony” under ACCA. Thus, the district court erred in relying on this Presentence Report. And because a conviction is presumed to rest upon no more than the least of the acts criminalized, here, mere “touching” did not qualify as a “violent felony.” The Court found that, as to Braun’s prior conviction for battery on a police officer, the Shepard documents only allowed it to conclude that Braun “touched” a police officer. Thus, the Court distinguished its prior decision in U.S. v. Turner, and concluded that Braun’s battery on a police officer did not qualify under ACCA.