                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                       No. 18-2567
                                    ________________

                          UNITED STATES OF AMERICA

                                           v.

                               CHRISTIAN ROSADO,
                                              Appellant
                                ________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal No. 3-16-cr-00265-001)
                     District Judge: Honorable James M. Munley
                                 ________________

                              Argued: February 13, 2019

            Before: HARDIMAN, SCIRICA, and COWEN, Circuit Judges

                               (Filed: August 19, 2019)


Quin M. Sorenson
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101

      Counsel for Appellant

Stephen R. Cerutti, II
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Evan J. Gotlob
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503

       Counsel for Appellee


                                   ________________

                                       OPINION *
                                   ________________


SCIRICA, Circuit Judge

       After pleading guilty to federal felony charges, Christian Rosado was sentenced as

a “career offender” under § 4B1.1 of the United States Sentencing Guidelines. A “career

offender” is someone who, among other requirements, has twice previously been

convicted of a “crime of violence” or controlled substance offense. A “crime of

violence,” in turn, is either one of a number of specifically enumerated crimes generally

considered violent, or, alternatively, an offense for which physical force is a mandatory

element of any conviction under that offense. U.S.S.G. § 4B1.2. Rosado objected to his

designation as a career offender and now argues that one or both of his past offenses

should not have been considered “crimes of violence.” Because both offenses include

physical force as a mandatory element, we will affirm.



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.


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                                            I.

       Rosado pled guilty in January 2018 to possession and discharge of a firearm in

connection with a drug trafficking crime, 18 U.S.C. § 924(c), and possession of a firearm

by a prohibited person, 18 U.S.C. § 922(g). The Presentencing Report recommended that

Rosado be sentenced as a career offender on the basis of two prior Florida convictions,

both in 2010: one for aggravated battery with a deadly weapon, and the other for

domestic battery by strangulation. The Probation Office calculated a Guidelines

sentencing range of 262–327 months. In the absence of career offender status, Rosado’s

Guidelines sentencing range would have been 177–91 months.

       Rosado objected to the career offender designation, arguing these two convictions

should not be considered “crimes of violence,” and the District Court considered his

objection at a sentencing hearing. The District Court evaluated Rosado’s aggravated

battery conviction using the enumerated offenses clause of § 4B1.1, finding that “the

offense is equal to if not more severe than aggravated assault, which is an enumerated

offense . . . .” App. 25. The District Court also evaluated Rosado’s domestic battery by

strangulation conviction using the elements clause of § 4B1.1, finding the Florida crime

necessarily included as an element the use, threatened use, or attempted use of physical

force, and was therefore a crime of violence. Id. Rosado’s ultimate sentence was 262

months. 1


1
       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s
factual findings for clear error and exercise de novo review over its legal conclusions.
United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). The question whether

                                            3
                                              II.

       The U.S. Sentencing Guidelines designate sentencing enhancements for any

defendant who is a “career offender,” defined as an offender with two or more prior

convictions for a “crime of violence,” among other requirements. U.S.S.G. § 4B1.1(a). A

conviction can be classified as a crime of violence in either of two ways, if the offense:

          (1)     has as an element the use, attempted use, or threatened use of
                  physical force against the person of another [the “elements
                  clause”]; or
          (2)     is murder, voluntary manslaughter, kidnapping, aggravated
                  assault, a forcible sex offense, robbery, arson, extortion, or the use
                  or unlawful possession of a firearm described in 26 U.S.C. §
                  5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [the
                  “enumerated offenses clause”].
Id. § 4B1.2(a).

       Under either clause, the sentencing court must employ the “categorical approach,”

meaning the court may consider only the elements of the crime as defined by statute, and

may not consider the actual conduct of the defendant leading to the conviction. See, e.g.,

United States v. Graves, 877 F.3d 494, 501 (3d Cir. 2017); United States v. Chapman,

866 F.3d 129, 134 (3d Cir. 2017). A defendant’s prior conviction is a “crime of

violence,” then, only if every realistically plausible conviction of that offense would

necessarily meet the criteria to constitute a crime of violence. Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007). To demonstrate that hypothetical conduct could

realistically lead to a conviction of the offense, the defendant “must at least point to his


a prior state conviction is a crime of violence under the U.S. Sentencing Guidelines is a
question of law over which we exercise de novo review. United States v. Brown, 765 F.3d
185, 188 (3d Cir. 2014).


                                              4
own case or other cases in which the state courts in fact did apply the statute in the

special (nongeneric) manner for which he argues.” Id. The elements clause of § 4B1.2 is

identical to the elements clause of the Armed Career Criminal Act (ACCA); for that

reason precedent discussing the application of either sentencing enhancement may inform

our analysis. 18 U.S.C. § 924(e)(2)(B)(i).

       Neither aggravated battery with a deadly weapon nor domestic battery by

strangulation appears on the list of enumerated offenses in § 4B1.2(a)(ii). The

Government concedes the District Court was incorrect to classify aggravated battery with

a deadly weapon as a crime of violence on that basis.

       Both offenses, though, satisfy the elements clause. To determine whether, under

the elements clause, an offense is a “crime of violence,” we check whether the offense

“has as an element the use, attempted use, or threatened use of physical force against the

person of another.” U.S.S.G. § 4B1.2. In Johnson v. United States, the Supreme Court

found that the “force” requisite to constitute a “violent felony” must be “violent force,”

meaning “force capable of causing physical pain or injury to another.” 599 U.S. 133, 140

(2010). Specifically, the Court held that Florida battery is not a crime of violence because

it includes conduct as mild as “mere unwanted touching.” Id. at 142. In Stokeling v.

United States, evaluating a robbery offense that included as an element the use of “force

necessary to overcome a victim’s physical resistance,” the Supreme Court added that “the

force necessary to overcome a victim’s physical resistance is inherently ‘violent.’” 139 S.

Ct. 544, 553 (2019). The Court explained that a crime of violence “does not require any

particular degree of likelihood or probability that the force used will cause physical pain


                                              5
or injury; only potentiality.” Id. at 554. Florida’s crime of aggravated battery with a

deadly weapon is a crime of violence because it is not possible for a defendant to “use” a

deadly weapon to commit a battery without at minimum threatening to use physical force.

Florida’s crime of domestic battery by strangulation is, similarly, a crime of violence

because there is no realistic scenario in which this crime could be committed without

physical force.

                                             A.

       Aggravated battery with a deadly weapon is defined under Florida law as follows.

“A person commits aggravated battery who, in committing battery . . . . (2) [u]ses a

deadly weapon.” Fla. Stat. § 784.045(1)(a). Battery, in turn, is defined, “[t]he 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.” Id. § 784.03(1)(a).

       Under Johnson, Florida battery alone is not a crime of violence. 599 U.S. at 136–

37, 145. The question, then, is whether the use of a deadly weapon necessarily renders

even mere unwanted touching “violent.” “Deadly weapon” is not defined by Florida

statute. In Florida common law, it has two related definitions. Under the first definition,

included in Florida’s pattern jury instructions, battery with a deadly weapon is a crime of

violence. “A weapon is a ‘deadly weapon’ if it is used or threatened to be used in a way

likely to produce death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) § 8.4. This

definition references the weapon and the defendant’s conduct: it requires that the

defendant used or threatened to use the deadly weapon in a way that would likely


                                              6
produce great bodily harm, necessarily satisfying the element of actual or threatened

physical force. U.S.S.G. § 4B1.2.

       Although it is not part of standard jury instructions, Florida courts also employ a

second definition of deadly weapon: “any instrument which, when it is used in the

ordinary manner contemplated by its design and construction will or is likely to cause

great bodily harm.” Nguyen v. State, 858 So.2d 1259, 1260 (Fla. Dist. Ct. App. 2003)

(quoting D.C. v. State, 567 So.2d 998, 1000 (Fla. Dist. Ct. App. 1990)). This definition

does not require any specific action by the defendant, except that the defendant must,

under the statute “use[]” the deadly weapon in committing the battery. Fla. Stat.

§ 784.045(1)(a)(2). Merely carrying a weapon during a crime is not sufficient to

constitute “use” in the crime. Owens v. State, 475 So.2d 1238, 1239 (Fla. 1985). But it is

also not required that the deadly weapon itself do the touching that constitutes the battery.

Severance v. State, 972 So.2d 931, 933–34 (Fla. Dist. Ct. App. 2007). The defendant may

use the weapon in furtherance of the crime in some other way.

       In Severance, relied on by Rosado, a Florida appellate court addressed a case in

which the defendant battered the victim with his hands and put a knife near the victim’s

throat. Id. at 932. He was convicted of aggravated battery with a deadly weapon. Id. The

defendant argued the trial court had erred by failing to instruct the jury that aggravated

assault required the deadly weapon to touch the victim. Id. The court disagreed, in a

plurality opinion holding “use” of a deadly weapon “includes holding a deadly weapon

without actually touching the victim with the weapon.” Id. at 934. Severance and Owens,




                                              7
together, hold that “use” of a deadly weapon requires more than carrying, but does not

require touching.

       As the defendant’s conduct in Severance exemplifies, though, a defendant who has

“used” a deadly weapon to commit an unwanted touching has necessarily threatened use

of force, even if the “use” involved holding the weapon without touching the victim with

it. A defendant who holds and “uses” a deadly weapon in a battery does so by, at

minimum, threatening the victim, as the defendant did in Severance. Rosado does not

point to any case in which a defendant was convicted of this offense absent threatened

physical force. We find his hypotheticals either would not realistically constitute

aggravated assault with a deadly weapon, or do indeed include actual or threatened

physical force. See Duenas-Alvarez, 549 U.S. at 193. Owens forecloses Rosado’s

argument that a defendant who secretly carries a weapon has “used” the weapon because

he is emboldened by it. See 475 So.2d at 1239. Conversely, a defendant who uses a

deadly weapon by displaying it during an unwanted touching necessarily threatens the

victim in doing so.

       The Eleventh Circuit has held that Florida’s offense of aggravated battery with a

deadly weapon satisfies the elements clause. Turner v. Warden Coleman FCI (Medium),

709 F.3d 1328, 1341 (11th Cir. 2013), abrogated on other grounds by United States v.

Hill, 799 F.3d 1318, 1321 n.1 (11th Cir. 2015). A number of other courts have also

addressed whether, under relevant state law, the use of a weapon creates a crime of

violence when accompanying otherwise nonviolent criminal conduct. All have come to

the conclusion that it does. A Ninth Circuit case evaluated an offense essentially identical


                                             8
to this one, consisting of, at minimum, “unlawful touching using a deadly weapon.”

United States v. Perez-Silvan, 861 F.3d 935, 943 (9th Cir. 2017). The court found that,

although “merely being in possession of a deadly weapon does not amount to a threat to

use force,” “regardless of whether the deadly weapon itself touches the victim’s body, we

cannot imagine one using or displaying a deadly weapon in the course of an offensive

touching without threatening the use of violent force.” Id; see also United States v.

Redrick, 841 F.3d 478, 483, 484 (D.C. Cir. 2016) (evaluating a Maryland offense of

robbery “with the use of a deadly or dangerous weapon”) (internal citations omitted);

Braden v. United States, 817 F.3d 926, 933 (6th Cir. 2016) (evaluating a Tennessee

offense of assault “while us[ing] or display[ing] a deadly weapon”). We find this

reasoning persuasive and conclude Florida’s aggravated assault with a deadly weapon is a

crime of violence.

                                             B.

       Rosado’s second conviction, domestic battery by strangulation, criminalizes

conduct in which the defendant, at minimum, “knowingly and intentionally, against the

will of another, impedes the normal breathing or circulation of [the victim], so as to

create a risk of . . . great bodily harm by applying pressure on the threat or neck of the

other person or by blocking the nose or mouth of the other person.” Fla. Stat. §

784.041(2)(a). The Eleventh Circuit has held this offense is a crime of violence, because

there is no way to commit it “without using ‘violent force’—that is, force capable of

causing physical pain or injury to another person.” United States v. Dixon, 874 F.3d 678,

681–82 (11th Cir. 2017). To demonstrate domestic battery by strangulation could occur


                                              9
without physical force, Rosado must identify a “realistic” example, generally by pointing

to an actual conviction resembling the hypothetical, in Florida or in a state criminalizing

similar conduct. Duenas-Alvarez, 549 U.S. at 193. Rosado points to no cases at all,

instead presenting a series of increasingly fanciful hypotheticals.

       Moreover, all of the hypotheticals Rosado offers in fact require physical force on

the part of the defendant. Rosado suggests a defendant could use a mask, poisonous gas,

or drowning to “block” the victim’s breathing, without directly applying force to the

victim. Appellant’s Br. 18–19. But United States v. Castleman held, in a similar statutory

context, that use of an object like poison would qualify as “force” because physical force

is “force exerted by and through concrete bodies,” including force that causes harm

“indirectly.” 572 U.S. 157, 170 (2014) (quoting Johnson, 559 U.S. at 138). A defendant

who uses a mask, poisonous gas, or water as an instrument still exerts physical force

through those objects under this definition. Rosado’s argument is also foreclosed by

Stokeling, which held that physical force includes the force necessary to overcome a

victim’s resistance. 139 S. Ct. at 552–53. Here, the offense includes a requirement that

the act occur against the victim’s will, and, as the Government points out, any victim

whose breath or circulation is blocked unwillingly to the point of risking bodily harm

would have some physiological response requiring the defendant to overcome it. We

agree with the District Court, and with the Eleventh Circuit, that domestic battery by

strangulation is a crime of violence.

                                            III.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence.


                                             10
