Tuesday, November 22, 2016

If felony-battery in Florida a crime of violence under 2L1.2 of the Sentencing Guidelines?

That's the question the en banc 11th Circuit will take up in U.S. v. Vail-Bailon.  Here's the panel decision by Judge Rosenbaum saying it is not a crime of violence:
When I was growing up, my parents told me not to judge a book by its
cover. The Supreme Court has expressed an analogous concern about concluding
that a crime qualifies as a violent crime under the Armed Career Criminal Act
(“ACCA”), based solely on the name of the crime. See Johnson v. United States,
___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s
offense of “rioting at a correctional institution,” a crime that the Supreme Court
characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent
felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony
battery—a crime that, from its name, may sound like a crime of violence—actually
satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing
Guidelines when it is committed by mere touching. Heeding the Supreme Court’s
warning, we have carefully compared the elements of felony battery under Florida
law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based
on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not
qualify as a “crime of violence” under § 2L1.2 when it is committed by mere
touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

Judge Jordan concurred, and visiting Judge Siler dissented.

The en banc order is here.


Anonymous said...

Looks like CJ Carnes trying to put J. Rosenbaum in her place. I don't think he realizes who he is tangling with.

Bob Becerra said...

Nice work on the Colombian extradtion case. If the treaty is not really in force, does extradition become "rendition"?

Anonymous said...

The 11th is at war. Old guard vs new.