Eleventh Circuit Court of Appeals - Published Opinions

Thursday, February 12, 2015

Estrada: Wantonly under Fla. St. 790.19 is not crime of violence

In U.S. v. Estrada, No. 14-10230 (Feb. 6, 2015), the Court, citing its recent decision in U.S. v. Estrella, 758 F.3d 1239 (11th Cir. 2014), held that the 16-level enhancement of U.S.S.G. § 2L1.2(b)(1)(A)(ii), for being convicted of illegal re-entry after committing a “crime of violence,” did not apply to a defendant with a prior conviction for violating Florida Statute § 790.19, where the Shepard documents did not indicate whether the prior crime involved a crime against the person or against property. The documents indicated that Estrada “wantonly or maliciously” threw a deadly missile at an occupied vehicle. Because “wantonly” refers to property and “maliciously” refers to a person, the Court accepted the government’s concession that the district court erred in concluding that this prior conviction was for a crime of violence offense. In light of the defendant’s concession in the trial court that the 8-level enhancement of § 2L1.2(b)(1)(C) applied, the Court remanded the case with an instruction that the district court impose this enhancement. However, the Court noted that at resentencing, “either party is free to advocate for a departure or variance.”