           Case: 15-15576   Date Filed: 01/30/2018   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15576
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:15-cr-80079-RLR-1



UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                   versus

AMED ANTONIO SOLIS-ALONZO,

                                                       Defendant-Appellant.

                       ________________________

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

                            (January 30, 2018)



Before TJOFLAT, JILL PRYOR, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Amed Solis-Alonzo appeals his 40-month sentence, imposed after pleading

guilty to one count of reentry of a deported alien. He argues, for the first time on

appeal, that his prior guilty plea to Florida felony battery was not a conviction

within the meaning of U.S.S.G. § 2L1.2 because adjudication was withheld. In

addition, he contends that his prior Florida felony battery offense does not qualify

as a crime of violence under § 2L1.2 because it does not have as an element the

use, attempted use, or threatened use of physical force against the person of

another. He also asserts that the district court committed clear error in admitting

and relying on a police report in its crime of violence determination.



                                          I.



      We review an error raised for the first time on appeal for plain error. United

States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508

(1993). Under the plain error standard, an appellant must show that (1) an error

occurred; (2) the error was plain; and (3) the error affected the appellant’s

substantial rights. Id. If these elements are met, we have the discretion to correct

the error; but we should not exercise this discretion unless the error seriously


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affects the fairness, integrity, or public reputation of judicial proceedings. Id.

Also, under the prior precedent rule, a prior panel’s holding is binding on all

subsequent panels unless the holding is overruled or undermined to the point of

abrogation by the Supreme Court or this Court sitting en banc. United States v.

Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010).

      Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines assigns a 16-level

enhancement if (1) the defendant was previously deported or unlawfully remained

in the United States; (2) after a conviction for a felony that was a crime of

violence; (3) for which the defendant received criminal history points. See

U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Sentencing Commission did not define

“conviction” as that term is used in § 2L1.2. United States v. Anderson, 328 F.3d

1326, 1327-28 (11th Cir. 2003).

      The meaning of conviction for purposes of sentencing enhancement under

the Sentencing Guidelines is a matter of federal, rather than state, law. United

States v. Madera-Madera, 333 F.3d 1228, 1231 n.2 (11th Cir. 2003) (“Federal law,

not state law, controls the application of the Sentencing Guidelines.”). In

Anderson, we concluded that the term conviction, as used in § 2L1.2, is governed

by the definition of conviction set forth in 8 U.S.C. § 1101(a)(48)(A). Anderson,

328 F.3d at 1328. In § 1101(a)(48)(A), Congress defined conviction to include

circumstances in which adjudication of guilt has been withheld and where (1) “the


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alien has entered a plea of guilty or nolo contendere” and (2) “the judge has

ordered some form of punishment, penalty, or restraint on the alien’s liberty to be

imposed.” Id.; 8 U.S.C. § 1101(a)(48)(A). As a result, we determined that a

defendant’s nolo contendere plea with adjudication withheld and 22-day

imprisonment term qualified as a conviction for purposes of a § 2L1.2(b)(1)

sentencing enhancement. See Anderson, 328 F.3d at 1328.

      Furthermore, the term “conviction” as used in other statutory and Guideline

enhancement provisions includes nolo contendere and guilty pleas with

adjudication withheld. See United States v. Fernandez, 234 F.3d 1345, 1346 (11th

Cir. 2000) (holding a plea of nolo contendere with adjudication withheld qualifies

as a conviction for purposes of calculating the base offense level under U.S.S.G.

§ 2K2.1(a)(2)); United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (holding

a plea of nolo contendere with adjudication withheld is a conviction that supports

an enhanced sentence under 21 U.S.C. § 841(b)(1)(B)); United States v. Jones, 910

F.2d 760, 761 (11th Cir. 1990) (holding that plea of nolo contendere with

adjudication withheld is a conviction for purposes of U.S.S.G. § 4B1.1 career

offender enhancement). Moreover, because the meaning of conviction under the

Sentencing Guidelines is a matter of federal law, certain state court adjudications

qualify as convictions for federal sentencing purposes -- even though those

adjudications do not qualify as convictions under state law. United States v. Elliot,


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732 F.3d 1307, 1310-13 (11th Cir. 2013) (holding an Alabama “youthful offender

adjudication” qualified as a conviction for purposes of classifying defendant as a

career offender under § 4B1.1, even though a youthful offender adjudication did

not qualify as a conviction under Alabama law).

      The district court committed no error, plain or otherwise, in considering

Solis-Alonzo’s guilty plea to felony battery, with adjudication withheld, as a

conviction for purposes of § 2L1.2. Solis-Alonzo pled guilty to Florida felony

battery and was sentenced to a 95-day term of imprisonment, followed by 3 years’

probation. Therefore, although Solis-Alonzo’s adjudication of guilt was withheld,

he pleaded guilty to the offense and suffered a restraint on his liberty. Thus, his

Florida felony battery guilty plea and term of imprisonment qualifies as a

conviction under § 2L1.2. See Anderson, 38 F.3d at 1328.




                                          II.



      We review de novo whether a defendant’s prior conviction qualifies as a

crime of violence under the Sentencing Guidelines and whether the district court




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improperly relied on non-Shepard1 documents in making its enhancement

determination. United States v. Romo-Villalobos, 674 F.3d 1246, 1247 (11th Cir.

2012); Sneed, 600 F.3d at 1333 (“[I]n light of Shepard . . . the district court erred

in overruling Sneed’s objections to the use of the police reports to establish [the

enhancement].”). We have stated that, when considering whether an offense

qualifies as a crime of violence under § 4B1.2 (which has the same “use of

physical force” clause as § 2L1.2), we look to cases applying the Armed Career

Criminal Act (“ACCA”) for guidance. United States v. Alexander, 609 F.3d 1250,

1253 (11th Cir. 2010). Compare U.S.S.G. § 4B1.2 with U.S.S.G. § 2L1.2

n.1(B)(iii).

       Section 2L1.2’s commentary defines a crime of violence this way:

       [A]ny of the following offenses under federal, state or local law:
       murder, manslaughter, kidnapping, aggravated assault, forcible sex
       offenses (including where consent to the conduct is not given or is not
       legally valid, such as where consent to the conduct is involuntary,
       incompetent, or coerced), statutory rape, sexual abuse of a minor,
       robbery, arson, extortion, extortionate extension of credit, burglary of
       a dwelling, or any other offense under federal, state, or local law that
       has as an element the use, attempted use, or threatened use of physical
       force against the person of another.

U.S.S.G. § 2L1.2 n.1(B)(iii).




       1
         Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263, 161 L. Ed. 2d 205
(2005) (limiting inquiry to “the terms of the charging document, the terms of 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 to some comparable judicial record of this information.”).
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      “Generally, . . . in determining whether a prior conviction is a qualifying

offense for sentencing enhancement purposes,” we apply a “categorical approach.”

United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). Using

the categorical approach, we look only at the statutory elements of an offense, and

not the particular facts underlying the conviction, in determining whether an

offense qualifies as a predicate for enhancement. Descamps v. United States, 570

U.S. __, 133 S. Ct. 2276, 2283-86, 186 L. Ed. 2d 438 (2013); see also Mathis v.

United States, 579 U.S. __, __, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604 (2016)

(“How a given defendant actually perpetrated the crime . . . makes no difference.”).

We must assume that the conviction rested upon the least of the acts criminalized

by the statute and determine whether those acts fall within the generic federal

offense. United States v. Estrella, 758 F.3d 1239, 1245 (11th Cir. 2014). If a

criminal statute is divisible, meaning it lists multiple potential offense elements in

the alternative (only some of which qualify as a predicate for enhancement), we

use the “modified categorical approach” and look to a restricted set of materials

such as plea agreements or plea colloquy transcripts to determine which element

formed the basis of the defendant’s conviction. Descamps, 570 U.S. at __, 133 S.

Ct. at 2283-85; Shepard, 544 U.S. at 26, 125 S. Ct. at 1263. Nonetheless, the

modified categorical approach retains the categorical approach’s central feature, a




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focus on the elements, rather than the facts, of a crime. Descamps, 570 U.S. at __,

133 S. Ct. at 2283-85.

      The applicable Florida statute provides that a person commits felony battery

if he (1) “[a]ctually and intentionally touches or strikes another person against”

their will and (2) “[c]auses great bodily harm, permanent disability, or permanent

disfigurement.” Fla. Stat. § 784.041(1). A violation of § 784.041 constitutes a

third-degree felony. Fla. Stat. § 784.041(3). As stated by the statute’s plain

language and confirmed by Florida case law, the touching or striking must be

intentional rather than accidental. See Fla. Stat. § 784.041(1); W.E.P., Jr. v. State,

790 So. 2d 1166, 1170 (Fla. Dist. Ct. App. 2001). The lack of specific intent for

the causation-of-injury element distinguishes Florida felony battery from Florida

aggravated battery, which requires intentional and knowing infliction of great

bodily harm, permanent disability, or permanent disfigurement. Compare Fla.

Stat. § 784.045(1)(a)(1) with Fla. Stat. § 784.041(1)(b).

      Although the Sentencing Guidelines do not define the term “physical force”

as used in § 2L1.2’s crime of violence definition, the Supreme Court has defined

the term, in the ACCA context, to mean “violent force—that is, force capable of

causing physical pain or injury to another person.” Johnson v. United States, 559

U.S. 133, 140, 130 S. Ct. 1265, 1271, 176 L. Ed. 2d 1 (2010). In Johnson, the

Supreme Court concluded that Florida simple battery, Fla. Stat. § 784.03, was no


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violent felony under the ACCA because the Florida Supreme Court had interpreted

the “actually and intentionally touching” element as being “satisfied by any

intentional physical contact, ‘no matter how slight.’” Id. at 138, 130 S. Ct. at

1269-70 (emphasis in original) (citing State v. Hearns, 961 So. 2d 211, 218 (Fla.

2007)). Thus, the Supreme Court concluded that Florida simple battery did not

categorically require an offender to employ force capable of causing physical pain

or injury to another person. Id.

      In Leocal v. Ashcroft, the Supreme Court held that a conviction under

Florida’s DUI statute did not qualify as a crime of violence under 18 U.S.C. § 16,

which -- like § 2L1.2 -- defines a crime of violence as “an offense that has as an

element the use, attempted use, or threated use of physical force” against the

person of another. 543 U.S. 1, 12, 125 S. Ct. 377, 384, 160 L. Ed. 2d 271 (2004);

compare 18 U.S.C. § 16 with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The Supreme

Court clarified that the word “use,” in the context of the definition of crime of

violence, “requires active employment.” Leocal, 543 U.S. at 8-9, 125 S. Ct. at 382.

The Supreme Court reasoned that because defendants could be convicted under

Florida’s DUI statute for negligent or accidental conduct, Florida’s DUI statute did

not qualify as an offense requiring “use of physical force against the person or

property of another”: such offenses required purposeful, intentional criminal

behavior from the defendant. Id. at 9, 125 S. Ct. at 382.


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      In Palomino Garcia, we concluded that Arizona aggravated assault did not

qualify as a crime of violence under § 2L1.2. 606 F.3d at 1337. Arizona’s

aggravated assault statute provided that a person commits a version of felony

aggravated assault if he assaults another while in custody of law enforcement

agency personnel and has reason to know that the assault victim is an agency

employee acting in an official capacity. Id. at 1325. In turn, Arizona defined

assault as “intentionally, knowingly or recklessly causing any physical injury to

another person.” Id. We reasoned that Arizona aggravated assault’s mens rea

(recklessness), stripped the statute of the intentionality necessary to trigger

§ 2L1.2’s crime of violence enhancement. Id. at 1336. We stated that, because

Arizona law defined recklessness as nothing more than the conscious disregard of

a substantial and unjustifiable risk, a conviction with a mens rea of recklessness

was more akin to negligence and, therefore, did not require the “use” of physical

force. Id.

      We have recently determined that Florida felony battery qualifies as a crime

of violence under the elements clause of § 2L1.2. See United States v. Vail-Bailon,

868 F.3d 1293, 1302 (11th Cir. 2017). We noted that a statute that required a

touching that caused “great bodily harm, permanent disability, or permanent

disfigurement,” which Fla. Stat. § 784.041 required, was a statute that called for

force capable of causing physical injury. See id. Thus, we concluded that


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intentional force—even of the touching variety—that in fact caused “great bodily

harm, permanent disability, or permanent disfigurement,” as required to sustain a

conviction under Fla. Stat. § 784.041, necessarily constituted force that was

capable of causing pain or injury. See id. at 1304-08. We noted that this analysis

was compatible with the Supreme Court’s decision in Leocal because, unlike the

DUI crime at issue in that case, Fla. Stat. § 784.041 required an intentional use of

force—a touch or strike—that was exactly the kind of “violent active crime” that

the elements clause was designed to encompass. See id. at 1307.

      As an initial matter, although a police report is no Shepard document, the

district court did not err in admitting Solis-Alonzo’s felony-battery police report

because the report was admitted for the purpose of considering Solis-Alonzo’s

objection to the facts as alleged in paragraph 24 of the Presentence Investigation

Report; and the court did not rely on the report in its determination that Florida

felony battery was a crime of violence under § 2L1.2. See Shepard, 544 U.S. at

26, 125 S. Ct. at 1263. While the district court did not rely in its final analysis on

the Shepard documents supplied by the government, their consideration would not

change the analysis. Because Solis-Alonzo was charged generically, using all the

elements of the statute, and the judgment does not specify particular elements,

either way we must look to the least culpable means of violating the statute. See

Descamps, 570 U.S. at __, 133 S. Ct. at 2283-86.


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        Solis-Alonzo’s argument is foreclosed by our binding precedent in Vail-

Bailon. See 868 F.3d at 1302-08. We have definitively said that a defendant

convicted of Florida felony battery must act with “force capable of causing

physical pain or injury to another person” because a conviction requires that the

touching actually cause “great bodily harm, permanent disability, or permanent

disfigurement.” See id.; Fla. Stat. § 784.041(1)(b). Because the measure of force

under Johnson is whether the force is “capable” of causing physical pain or injury,

proof that the force, in fact, caused the harm necessarily proves that it was

“capable” of doing so. See Vail-Bailon, 868 F.3d at 1302-08; Fla. Stat. § 784.041;

Johnson, 559 U.S. at 140, 130 S. Ct. at 1271. Moreover, for a conviction, the

defendant must “use” that degree of force intentionally. See Vail-Bailon, 868 F.3d

at 1307. A defendant convicted of Florida felony battery has necessarily acted

with a “higher degree of intent than negligent or merely accidental,” or even

reckless, conduct because he must act with purposeful intent to touch the victim.

See id.; Leocal, 543 U.S. at 9, 125 S. Ct. at 382; Palomino Garcia, 606 F.3d at

1336.

        Accordingly, based on Vail-Bailon, the district court did not err in qualifying

Solis-Alonzo’s Florida felony batter offense as a crime of violence under § 2L1.2.

See 868 F.3d at 1302-08; Fla. Stat. § 784.041(1)(a)-(b).

        AFFIRMED.


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