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.
