Diaz-Calderone: Prior plea colloquy qualifies defendant for "crime of violence"

In U.S. v. Diaz-Calderone, No. 12-12013 (May 23, 2013), the Court affirmed a finding that a defendant’s prior aggravated battery on a pregnant victim, in violation of Fla. Stat. § 784.045(1)(b) was a “crime of violence” for purposes of imposing a 16-level Guideline sentence enhancement on a deported alien who reentered the United States illegally.

The Court acknowledged ambiguity in the Florida statute regarding whether it constituted a “crime of violence,” because this statute encompasses both a mere “touching,” and a striking or the causing of bodily harm.

However, using the modified categorical approach, the district court correctly relied on the defendant’s plea colloquy, and not just the probable cause arrest affidavits (which would not have sufficed to determine whether the prior conviction was a “crime of violence.”).   The tape of the state judge’s acceptance of Diaz-Calderone’s nolo contendere plea indicated that Diaz-Calderone admitted to what the affidavit said he did, namely striking the pregnant victim.  Therefore, the district court correctly concluded that in his case the prior aggravated battery was a crime of violence.

Dupree v. Warden: Recommending Stricter Review of Unobjected to R&R Issue

In Dupree v. Warden, No. 11-12888 (May 7, 2013),


the Court vacated the denial of habeas relief because the district court failed to address all issues raised in a habeas petition, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) (district court must address all issues raised in a habeas petition, regardless of whether relief is granted or denied).

The Court noted, however, that the issue that the district court had failed to address was also not addressed by a Magistrate Judge in his Report and Recommendation, and that the habeas petitioner had failed to object in the district court to the Magistrate Judge’s failure to address this issue. The Court noted that in the Eleventh Circuit, the unobjected-to legal issue is nonetheless reviewed de novo by the Court of Appeals. The Court added a lengthy “recommendation,” urging the full court en banc, or by administrative rule-making, to change its standard of review. The Court noted that in a majority of Circuits a party’s failure to object to a Report and Recommendation results in waiver of that issue, with plain error review only when in the “interests of justice.” The Court advocated adoption of this stricter rule, noting that it prevents “sandbagging” the district court.