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.
