Date: 09-08-2015

Case Style: USA v. Raymond Edward Braun

Case Number: 13-15013

Judge: Circuit Judge Cynthia L. Cox

Court: IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Plaintiff's Attorney: Mark A. Clodfelter

Defendant's Attorney: Craig M. Blackwell - FPD

Description: In July 2013, Braun pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). This was the second time that Braun
was convicted of being a felon in possession of a firearm. While admitting that he
had at least one prior felony conviction, Braun preserved his objection that he did
not qualify as an armed career criminal.
The first time that Braun was convicted of being a felon in possession of a
firearm was in 2003 after a guilty plea. Braun was sentenced as an armed career
criminal for this first conviction and given the applicable mandatory minimum
sentence of fifteen years imprisonment. Braun was released in 2012. As a part of
Braun’s sentencing proceeding for his 2003 conviction, a Presentence Report (“the
2003 Presentence Report”) was submitted, which the district court relied on in
sentencing Braun. When Braun was sentenced in 2003, he did not object to the
Case: 13-15013 Date Filed: 09/08/2015 Page: 2 of 16
3
facts in the 2003 Presentence Report. And, he did not object to being sentenced
under the ACCA.
As part of Braun’s sentencing proceeding in this case, the Government also
submitted a Presentence Report (“the 2013 Presentence Report”), which included a
number of documents purporting to establish the three requisite violent felonies
necessary to sentence Braun under the ACCA. One of these documents was the
2003 Presentence Report. Braun objected to the district court’s reliance on the
2003 Presentence Report. And, he objected to being sentenced as an armed career
criminal. He argued that the Supreme Court’s decisions in Shepard v. United
States, 544 U.S. 13, 125 S. Ct. 1254 (2005), and Descamps v. United States, _ U.S.
_, 133 S. Ct. 2276 (2013), precluded the Government from relying on the 2003
Presentence Report to establish that Braun was an armed career criminal. The
district court sentenced Braun as an armed career criminal over his objection.
II. Discussion
Section 924(e)(1) of the ACCA provides that “a person who violates section
922(g) of this title and has three previous convictions by any court . . . for a violent
felony . . . shall be . . . imprisoned not less than fifteen years . . . .” 18 U.S.C. §
924(e)(1). Section 924(e)(2)(B) defines “violent felony” to include “any crime
punishable by imprisonment for a term exceeding one year . . . that – (i) has as an
element the use, attempted use, or threatened use of physical force against the
Case: 13-15013 Date Filed: 09/08/2015 Page: 3 of 16
4
person of another; or (ii) is burglary, arson, or extortion [or] involves use of
explosives . . . .” 18 U.S.C. § 924(e)(2)(B)(i)–(ii).
The ACCA also defines a violent felony to include a crime that “otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” Id. During the pendency of Braun’s appeal, the Supreme Court found
this portion of the statute—known as the “residual clause”—unconstitutionally
vague. Johnson v. United States, _ U.S. _, 135 S. Ct. 2551, 2557 (2015)
(hereinafter Samuel Johnson). Braun raised the issue of whether the residual
clause is unconstitutionally vague in the district court, but did not raise the issue in
his opening brief on appeal. He raised it for the first time in a supplemental letter
to this court. Ordinarily, an argument not presented in a party’s opening brief is
waived. However, also during the pendency of Braun’s appeal, this court decided
in an en banc decision that defendants such as Braun may raise the Samuel
Johnson issue. United States v. Durham, _ F.3d _, Nos. 14-12198 & 14-12807 at
4–5 (11th Cir. Aug. 5, 2015) (en banc). According to the Durham court:
[W]here there is an intervening decision of the Supreme Court on an issue that overrules either a decision of that Court or a published decision of this Court that was on the books when the appellant’s opening brief was filed, and that provides the appellant with a new claim or theory, the appellant will be allowed to raise that new claim or theory in a supplemental or substitute brief provided that he files a motion to do so in a timely fashion after . . . the new decision is issued.
Case: 13-15013 Date Filed: 09/08/2015 Page: 4 of 16
5
Id. While Braun raised the issue by supplemental letter (rather than by
supplemental brief), the Government also filed a supplemental letter to this court,
in which it agrees that the residual clause cannot be applied to define a violent
felony under the ACCA. Thus, we find that further briefing is unnecessary. The
residual clause is unconstitutionally vague and cannot be applied to define a
violent felony under the ACCA.
We review de novo whether a conviction constitutes an ACCA violent
felony. United States v. Day, 465 F.3d 1262, 1264 (11th Cir. 2006). We are bound
by federal law when we interpret terms in the ACCA, and we are bound by state
law when we interpret the elements of state-law crimes. Johnson v. United States,
559 U.S. 133, 137, 130 S. Ct. 1265, 1269 (2010) (hereinafter Curtis Johnson).
In this case, three prior violent felony convictions are needed to support a sentence under Section 924(e)(1). The Government presents four1 prior
convictions to justify Braun’s sentence: (1) aggravated battery on a pregnant
woman under Florida law, FLA. STAT. § 784.045(1)(b); (2) battery on a law enforcement officer under Florida law, FLA. STAT. § 784.07(2)(b);2 (3) resisting
arrest with violence under Florida law, FLA. STAT. § 843.01; and (4) assault with
1 The district court relied on a fifth conviction, for arson under Maryland law. The Government concedes that this conviction was not a violent felony under the ACCA. 2 The parties discuss this conviction as battery on a corrections officer. However, the statute describes battery on a law enforcement officer, and it defines law enforcement officers to include corrections officers. FLA. STAT. § 784.07(1)(d).
Case: 13-15013 Date Filed: 09/08/2015 Page: 5 of 16
6
intent to commit robbery under Maryland law, MD. CODE ANN. 27, § 12 (LexisNexis 1992).3 We hold that the Government failed to prove that two of
these four convictions—aggravated battery on a pregnant woman and battery on a
law enforcement officer—were violent felonies. Because the Government was
required to prove three prior violent felony convictions to support an ACCA
sentence, we need not address whether the other two convictions constitute violent
felonies under the ACCA.
The Supreme Court requires a very specific method for the determination of
whether a defendant’s prior conviction qualifies as a violent felony. The Sixth
Amendment requires that any fact be submitted to a jury if it increases the statutory
maximum sentence for an offense. Shepard, 544 U.S. at 24, 125 S. Ct. at 1262
(plurality opinion); Descamps, 133 S. Ct. at 2289. However, there is one exception
to this rule: the fact of a prior conviction may be found by the sentencing judge,
even if it increases the statutory maximum sentence for the offense. Descamps, 133
S. Ct. at 2289. The reason for this exception is that the defendant either had a jury
during the trial that led to the conviction, or waived this right when pleading guilty.
However, as the Court explained in Descamps, “when a defendant pleads guilty to
a crime, he waives his right to a jury determination of only that offense’s
elements.” Id. at 2288. For this reason, in deciding whether a prior conviction 3 This Maryland statute has since been repealed. See Johnson v. State, 199 Md.App. 331, 343 (Md. Ct. Spec. App. 2011), rev’d on other grounds, 427 Md. 356 (Md. 2012).
Case: 13-15013 Date Filed: 09/08/2015 Page: 6 of 16
7
qualifies as a violent felony under the ACCA, sentencing courts may look only to
the elements of the crime, not the underlying facts of the conduct that led to the
conviction. Id. Otherwise, sentencing courts would be finding facts that increase
the defendant’s sentence, which is a task reserved for a jury.
The application of this rule becomes more difficult in what the Supreme
Court refers to as “divisible” statutes. See id. at 2289–90. A divisible statute is one
that “comprises multiple, alternative versions of a crime.” Id. at 2284. The
difficulty of this situation is that the sentencing court must determine which
version of the crime the defendant was convicted of, without engaging in the type
of fact finding that the Sixth Amendment requires be done by a jury. The Supreme
Court’s solution to this difficulty is to allow the sentencing court to refer only to
Shepard documents to determine which version of the crime the defendant was
convicted of. Shepard documents include “the charging document, . . . a plea
agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or . . . some comparable
judicial record of this information.” Shepard, 544 U.S. at 26, 125 S. Ct. at 1263.
A. Aggravated Battery on a Pregnant Woman
1. Whether the Statute is Divisible
Braun concedes that he was convicted of aggravated battery on a pregnant
woman under FLA. STAT. § 784.045(1)(b). Ordinarily, our first step is to examine
Case: 13-15013 Date Filed: 09/08/2015 Page: 7 of 16
8
the statute of conviction and compare the elements of that crime to the “generic”
(i.e., commonly understood) elements of the enumerated felonies. United States v.
Howard, 742 F.3d 1334, 1345 (11th Cir. 2014); see also 18 U.S.C.
§ 924(e)(2)(B)(ii) (listing the enumerated felonies). This is referred to as the
“categorical approach.” Howard, 742 F3d at 1345. However, the Government
does not contend that this conviction contains the elements of one of the felonies
enumerated in the ACCA (e.g., burglary). Thus, our first inquiry is whether the
statute is divisible or indivisible. Id.
The statute reads, “[a] person commits aggravated battery if the person who
was the victim of the battery was pregnant at the time of the offense and the
offender knew or should have known that the victim was pregnant.” Id. Under
Florida law, the elements of this crime are (1) a battery, with (2) actual or
constructive knowledge that the victim was pregnant. “The offense of battery
occurs when a person: (1) [a]ctually and intentionally touches or strikes another
person against the will of the other; or (2) [i]ntentionally causes bodily harm to
another person.” FLA. STAT. § 784.03(1)(a). Both Braun and the Government
contend that this statute is divisible. We agree. Descamps, 133 S. Ct. at 2284 (A
divisible statute is one that “comprises multiple, alternative versions of a crime.”).
Therefore, there are three ways to commit aggravated battery on a pregnant woman
under Florida law: (1) actually and intentionally touching, against her will, a
Case: 13-15013 Date Filed: 09/08/2015 Page: 8 of 16
9
woman that you know or should know is pregnant; (2) actually and intentionally
striking, against her will, a woman that you know or should know is pregnant; or
(3) intentionally causing bodily harm to a woman that you know or should know is
pregnant.
2. The Shepard Documents
Because the statute is divisible, our next step is to apply the “modified
categorical approach.” Howard, 742 F.3d at 1347. Under the modified categorical
approach, we consult any Shepard documents that the Government submitted to
determine which version of the crime Braun was convicted of. Id. The
Government submitted the charging document, the plea agreement, the judgment
of conviction, and the 2003 Presentence Report. The first three documents are
Shepard documents. They establish that Braun was convicted of “actually and
intentionally touch[ing] or strik[ing]” a pregnant woman against her will. From
these documents, we are only permitted to conclude that Braun intentionally
touched a pregnant woman against her will. See e.g., Curtis Johnson, 559 U.S. at
138, 130 S. Ct. at 1269–70 (“[N]othing in the record” permitted the court to
conclude that the conviction “rested upon anything more than the least of these
acts.”); Moncrieffe v. Holder, _ U.S. _, 133 S. Ct. 1678, 1684 (2013) (“[W]e must
presume that the conviction rested upon nothing more than the least of the acts
criminalized . . . .”) (quotations and alterations omitted).
Case: 13-15013 Date Filed: 09/08/2015 Page: 9 of 16
10
In addition to the Shepard documents, the Government seeks to rely on the
2003 Presentence Report to establish that Braun was convicted of the more serious
portion of the divisible statute: intentionally causing bodily harm to a pregnant
woman. According to the 2003 Presentence Report, he “pushed the victim against
the wall and began choking her.” Thus, the Government contends, the district
court properly concluded that this conviction was a prior violent felony.
We now turn to the issue of whether the district court properly relied on the
2003 Presentence Report in determining that the conviction for aggravated battery
on a pregnant woman was a prior violent felony. We conclude that the district
court erred in relying on the facts in the 2003 Presentence Report in determining
that Braun’s conviction for aggravated battery on a pregnant woman was a violent
felony. According to Shepard, the only documents that a sentencing court may
rely on are “the charging document, . . . a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed
by the defendant, or . . . some comparable judicial record of this information.”
Shepard, 544 U.S. at 26, 125 S. Ct. at 1263.
This court has substantial precedent on the use of a Presentence Report in
determining whether a prior conviction constitutes a violent felony under the
ACCA. See, e.g., Turner v. Warden Coleman FCI, 709 F.3d 1328, 1336 (11th Cir.
2013); Rozier v. United States, 701 F.3d 681, 685–86 (11th Cir. 2012); United
Case: 13-15013 Date Filed: 09/08/2015 Page: 10 of 16
11
States v. Bennett, 472 F.3d 825, 833–34 (11th Cir. 2006). These cases rely on the
fact that the defendant admitted the facts in the Presentence Report. Cf. Shepard,
544 U.S. at 24, 125 S. Ct. at 1262 (plurality opinion) (“[A]ny fact other than a prior
conviction sufficient to raise the limit of the possible federal sentence must be
found by a jury, in the absence of any waiver of rights by the defendant.”) (citation
omitted) (emphasis added). Braun contends that Descamps has undermined these
cases to the point of abrogation. The Government responds by citing United States
v. Ramirez-Flores, 743 F.3d 816, 823 (11th Cir. 2014), which was decided after
Descamps, and, according to the Government, demonstrates that these cases
remain good law.
These Eleventh Circuit cases address whether a sentencing court properly
relied on a Presentence Report prepared for the sentence at issue on appeal, where
the Defendant did not object to its use (or the facts contained in it) in the district
court. This issue generally arises in habeas proceedings or on direct appellate
review where the defendant did not object to the sentencing court’s reliance on the
facts in the Presentence Report, but later seeks to challenge the district court’s
reliance on those facts. None of these cases address the situation raised here:
whether facts admitted in a Presentence Report in one case may be relied on in a
later unrelated case in finding a violent felony under the ACCA. It is one thing to
consider an objection—raised for the first time on appeal—to facts that were never
Case: 13-15013 Date Filed: 09/08/2015 Page: 11 of 16
12
objected to in the district court. It is another thing to say that, once a defendant
failed to challenge facts in a Presentence Report, the Government no longer has to
prove those facts in a manner consistent with the Sixth Amendment in a later
proceeding, whether or not the two proceedings bear any relation to each other.
Therefore, our holding is limited. Under Shepard and Descamps, a
sentencing court may not rely on a Presentence Report from an unrelated
proceeding in place of a Shepard document. It is not a charging document, a plea
agreement or colloquy, or a comparable judicial record. See Shepard, 544 U.S. at
26, 125 S. Ct. at 1263. And, the facts in the 2003 Presentence Report were
properly objected to in this proceeding. To allow the use of the 2003 Presentence
Report in the manner advocated by the Government would be inconsistent with the
Court’s holding in Descamps that, “when a defendant pleads guilty to a crime, he
waives his right to a jury determination of only that offense’s elements; whatever
he says, or fails to say, about superfluous facts cannot license a later sentencing
court to impose extra punishment.” See Descamps, 133 St. Ct. at 2288.
Having determined that the district court’s reliance on the 2003 Presentence
Report was error, we cannot conclude that Braun intentionally caused bodily harm
to a pregnant woman. As Descamps makes clear, we may not consider the facts of
the underlying conviction, no matter how violent the facts may be. 133 S. Ct. at
2288. Our only inquiry is what elements Braun was convicted of. As discussed
Case: 13-15013 Date Filed: 09/08/2015 Page: 12 of 16
13
above, applying this method to the Shepard documents that the Government
submitted in this case, we are only permitted to conclude that Braun “actually and
intentionally touch[ed]” a pregnant woman against her will.
3. Whether the Conviction Was a Violent Felony
We now determine whether actually and intentionally touching a pregnant
woman against her will constitutes a violent felony under the ACCA. The only
issue before us is whether the conviction “has as an element the use, attempted use,
or threatened use of physical force against the person of another.” 18 U.S.C. §
924(e)(2)(B)(i). This clause is often referred to as the “elements clause.”
We must consider whether actually and intentionally touching a pregnant
woman against her will involves the use, attempted use, or threatened use of
physical force against the person of another. In Curtis Johnson, the Supreme Court
considered whether Florida battery involved the use, attempted use, or threatened
use of physical force against another. 559 U.S. at 136–37, 130 S. Ct. at 1268–69.
The Court held that, because the defendant could have been convicted of merely
unwanted touching, this did not involve “physical force.” The Court reasoned that
“the phrase ‘physical force’ means violent force.” Id. at 140, 1271. Thus, since the
same Florida statute supplies the elements of battery in this case, our only inquiry
is whether the fact that the unwanted touching occurred on a pregnant woman
alters the analysis. We conclude that it does not. The Supreme Court has made
Case: 13-15013 Date Filed: 09/08/2015 Page: 13 of 16
14
clear that “physical force” under the ACCA requires violent contact beyond a mere
touching. And, the Government has presented no persuasive reason why the fact
that the touching occurred on a pregnant woman would render an otherwise non
violent touching violent.
We hold that Braun’s conviction for aggravated battery on a pregnant
woman was not a violent felony. As discussed above, all we are permitted to
conclude from the Shepard documents and the statutory language is that Braun
committed an unwanted touching on a pregnant woman. Thus, the Government
has failed to prove that Braun’s conviction for aggravated battery on a pregnant
woman was a prior violent felony.
B. Battery on a Law Enforcement Officer
Braun concedes that he was convicted of battery on a law enforcement
officer under FLA. STAT. § 784.07(2)(b). This conviction involves the same
elements of battery as Braun’s conviction for battery on a pregnant woman. The
difference is that this battery was perpetrated against a law enforcement officer
rather than against a pregnant woman. Relying on our analysis in the previous
sections, we hold that the Government failed to prove that Braun’s conviction for
battery on a law enforcement officer was a violent felony in this case.
As with the conviction for battery on a pregnant woman, the Government
submitted the charging document, the plea agreement, the judgment of conviction,
Case: 13-15013 Date Filed: 09/08/2015 Page: 14 of 16
15
and the 2003 Presentence Report. The first three documents are Shepard
documents. They establish that Braun was convicted of “actually and intentionally
touch[ing] or strik[ing]” a law enforcement officer against his will. As with the
battery on a pregnant woman conviction, the Shepard documents only allow us to
conclude that Braun actually and intentionally touched a law enforcement officer
against his will. And, as discussed above, the district court erred in relying on the
2003 Presentence Report to determine which version of the crime Braun was
convicted of.
The Supreme Court’s holding in Curtis Johnson, that a conviction for
Florida battery involving merely an unwanted touching does not qualify as a
violent felony under the elements clause, applies here. 559 U.S. at 140, 130 S. Ct.
at 1271. We note that in Turner, this court held that the defendant’s conviction for
battery on a law enforcement officer qualified as a violent felony under both the
elements clause and the residual clause. 709 F.3d at 1340. However, the Turner
court applied the modified categorical approach and concluded that the defendant
was convicted of an actual and intentional striking, rather than a mere touching. Id.
The Turner court appeared to assume that, had the conviction been for a mere
touching, it would not qualify as a violent felony under the elements clause. See id.
at 1339. And, as discussed, the Supreme Court has concluded that the residual
clause is unconstitutionally vague. Samuel Johnson, 135 S. Ct. at 2557. Thus, this
Case: 13-15013 Date Filed: 09/08/2015 Page: 15 of 16
16
court’s holdings in Turner do not apply here. We hold that the Government has
failed to prove that Braun’s conviction for battery on a law enforcement officer
was a prior violent felony.
C. The Government’s Supplemental Letter
After Samuel Johnson was decided, the Government filed a supplemental
letter to this court. This letter requests a second opportunity on remand to show
that the Florida resisting arrest with violence conviction qualifies as a prior violent
felony under the ACCA elements clause. We deny the Government’s request. The
ACCA requires proof of three prior violent felonies, and we have concluded that
the convictions for battery on a law enforcement officer and aggravated battery on
a pregnant woman do not satisfy the ACCA elements clause. Thus, regardless of
whether the Florida resisting arrest with violence conviction qualifies under the
elements clause, the Government cannot prove three prior violent felonies.

Outcome: The ACCA sentence requires proof of three violent felonies. We hold that
the Government failed to prove that two of the four felonies on which the
Government relies were violent felonies. We reverse the judgment of the district
court sentencing Braun as an armed career criminal, hold that Braun may not be
sentenced under the ACCA, and remand for resentencing.
REVERSED AND REMANDED.

Plaintiff's Experts:

Defendant's Experts:

Comments: