Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, March 06, 2019

Gandy: Florida Battery by Bodily-Harm Satisfies the Elements Clause, and Courts May Consider Arrest Reports Incorporated in a Plea Agreement

In United States v. Gandy, No. 17-15035 (Mar. 6, 2019) (William Pryor, Rosenbaum, Conway), the Court held that Florida battery of a jail detainee was a crime of violence under the elements clause in the Guidelines.

Although the parties agreed that Florida battery has two alternative elements -- "touching or striking" and "intentional causation of bodily harm" -- the Court reserved judgment on whether "touching or striking" was divisible.  That is so because it concluded that the defendant's conviction was for "intentional causation of harm," and that form of Florida battery necessarily required the use, attempted use, or threatened use of force.  To arrive at that conclusion, the Court relied on an arrest report.  Although arrest reports are not Shepard documents and ordinarily may not be considered, the Court relied on it here because the report was incorporated by reference into a plea agreement, which was a Shepard document.   And the Court concluded that the defendant agreed to the arrest report as the factual basis of his plea, without qualification. 

Judge Rosenbaum dissented, opining that the Shepard documents did not allow the Court to conclude that the defendant was "necessarily" convicted of bodily-harm battery.  On her view, the factual basis for the plea would have satisfied both the touching/striking and bodily-harm elements, and so the court could not conclude that his offense necessarily was for the latter.  And, on her view, the arrest report only supplied the arresting officer's legal conclusion that the defendant committed bodily-harm battery; it did not necessarily show that this was the type of battery for which he was ultimately prosecuted and convicted.