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                                                                             [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 13-15013
                             ________________________

                     D.C. Docket No. 8:13-cr-00243-JSM-AEP-1



UNITED STATES OF AMERICA,

                                                                     Plaintiff - Appellee,

                                            versus

RAYMOND EDWARD BRAUN,

                                                                 Defendant - Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                  (September 8, 2015)

Before ED CARNES, Chief Judge, COX, Circuit Judge, and ROYAL, * District
Judge.

COX, Circuit Judge:

       *
         Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
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      Defendant Raymond Edward Braun challenges on this appeal his sentence

under the Armed Career Criminal Act (“ACCA”). Braun was sentenced under the

“violent felony” provision of the ACCA, 18 U.S.C. § 924(e)(1). Sentencing under

this provision requires proof of three prior violent felonies. He was sentenced to

fifteen years in prison, which is the mandatory minimum under this statute. We

hold that the Government failed to prove that Braun had three prior convictions for

violent felonies. We reverse and remand.

                        I. Facts and Procedural History

      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
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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


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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.



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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).
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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).
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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


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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


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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).


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      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


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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


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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


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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


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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,


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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


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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.

                                  III. Conclusion

      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.


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