Fla. Agg Battery Conviction Not Categorically a Crime of Violence

United States v. Barraza-Ramos, ___ F.3d ___, 2008 WL 5401417 (10th Cir. 2008)
The Court happily determines, in at least the context of this case, “or” does not mean “and.”

Defendant’s Florida conviction for felony aggravated battery was not categorically a crime of violence and could not support the 16 level upward adjustment under USSG 2L1.2 on a reentry conviction. Because agg battery is not one of the enumerated COVs in the guideline, the Court looked to whether it had the element of use, attempted use, or threatened use of physical force against the person of another. The subsection of the Fla. statute to which Defendant pleaded guilty applied to battery of a pregnant person, elevating the offense of simple battery to a felony and requiring a look at simple battery. Fla. simple battery is broad, and can be committed in a number of ways, including touching the person of another against that person’s will. Employing the modified categorical approach, the COA determined that Defendant’s charging document listed “touching or striking” as the manner of battery. The charging document therefore failed to show that force was involved in Defendant’s conviction (it did not show which of the two prongs he was convicted of). The COA referred to the recent Hays opinion in which it held that rude touching does not amount to the force needed to constitute a categorical crime of violence.

NOTE: The 10th got to dodge addressing a wacky and patently unfair upward variance–from 57-71 months (and correctly from 24-30 months)–to 192 months in this case where the Defendant alien’s only other past criminal problems involved DWIs. In other words, in Kansas, alien + DWI = mega time in prison.