                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                               APR 1, 2010
                             No. 09-14537                      JOHN LEY
                         Non-Argument Calendar                   CLERK
                       ________________________

                   D. C. Docket No. 09-20388-CR-PCH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAMES JOSEPH,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 1, 2010)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
      James Joseph appeals from his sentence for possession of a firearm as a

convicted felon, a violation of 18 U.S.C. § 922(g)(1). On appeal, Joseph argues

that his base offense level under U.S.S.G. § 2K2.1(a)(2) should have been two

points lower because his previous conviction for battery on a law enforcement

officer, pursuant to Fla. Stat. §§ 784.03 and 784.07, was not a crime of violence.

In support of this argument, he points out that, in State v. Hearns, 961 So.2d 211

(Fla. 2007), the Florida Supreme Court held that battery on a law enforcement

officer does not constitute a forcible felony for purposes of sentencing under

Florida’s violent-career-criminal statute, Fla. Stat. § 775.084.

      For the reasons set forth below, we vacate and remand.

                                           I.

      A federal grand jury indicted Joseph, charging him with the following

offenses: (1) possession of a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1); and (2) possession of a firearm on which the manufacturer’s serial

number has been removed or altered, in violation of 18 U.S.C. § 922(k). Joseph

ultimately pled guilty to Count 1, without the benefit of a written plea agreement.

      In preparing Joseph’s pre-sentence investigation report (“PSI”), the

probation officer found that Joseph’s base offense level was 24 under U.S.S.G.

§ 2K2.1(a)(2) because he committed the present offense after sustaining two



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previous felony convictions for either a crime of violence or a controlled substance

offense. The officer found that Joseph’s February 2007 conviction for battery on a

law enforcement officer constituted a crime of violence, and that his 2005

conviction for possession with intent to distribute cocaine constituted a controlled

substance offense. The probation officer also increased Joseph’s offense level by

four levels under U.S.S.G. § 2K2.1(b)(4)(B) because the firearm that he possessed

had an altered or obliterated serial number. Finally, the officer decreased Joseph’s

offense level by three levels under U.S.S.G. § 3E1.1(a) and (b) for acceptance of

responsibility. Accordingly, the probation officer determined that Joseph’s total

offense level was 25 which, when combined with his criminal history category of

VI, produced a guideline range of 110 to 137 months’ imprisonment. The officer

also noted, however, that pursuant to 18 U.S.C. § 924(a)(2), Joseph was subject to

a statutory maximum sentence of 120 months’ imprisonment. Thus, the officer

concluded that Joseph’s guideline range effectively was 110 to 120 months’

imprisonment.

      At sentencing, the court confirmed with Joseph that his only objection to the

PSI was the probation officer’s finding that his 2007 conviction for battery on a

law enforcement officer constituted a crime of violence. The court overruled the

objection, noting that precedent established that the Florida offense of simple



                                          3
battery was a crime of violence. The parties agreed that Joseph’s total offense

level was 25, his criminal history category was VI, and that this guideline range

was 110 to 120 months’ imprisonment. The parties discussed the extent and nature

of Joseph’s criminal history, and Joseph apologized to the court for his offense.

The court sentenced Joseph to a term of 110 months’ imprisonment, stating that it

had determined that a sentence at the low end of Joseph’s guideline range was

appropriate after its consideration of the advisory guideline range and the

sentencing factors set forth in 18 U.S.C. § 3553(a). The court asked the parties if

there were any objections to its factual findings or the manner in which it

pronounced the sentence, and Joseph stated that he wished to preserve his

argument that his battery conviction did not constitute a crime of violence within

the meaning of § 2K2.1(a)(2).

                                          II.

      “We review questions of law with respect to the district court’s application

of the Sentencing Guidelines de novo.” United States v. Aguilar-Ortiz, 450 F.3d

1271, 1272 (11th Cir. 2006). Pursuant to U.S.S.G § 2K2.1(a)(2), a defendant’s

base offense level for possessing a firearm as a convicted felon is 24 if he

committed the offense after sustaining at least two felony convictions for either a

crime of violence or a controlled substance offense. U.S.S.G § 2K2.1(a)(2). If the



                                           4
defendant committed the offense after sustaining only one felony conviction for a

crime of violence or a controlled substance offense, his base offense level is 22.

U.S.S.G. § 2K2.1(a)(3). For purposes of § 2K2.1, a “crime of violence” has the

meaning given to the term under U.S.S.G. §§ 4B1.1 and 4B1.2, the career-offender

guideline. U.S.S.G. § 2K2.1, comment. (n.1).

      The career-offender guideline in §§ 4B1.1 and 4B1.2 provides that:

      (a)    The term “crime of violence” means any offense under federal
             or state law, punishable by imprisonment for a term exceeding
             one year, that –

             (1)    has as an element the use, attempted use, or threatened
                    use of physical force against the person of another, or

             (2)    is burglary of a dwelling, arson, or extortion, involves
                    use of explosives, or otherwise involves conduct that
                    presents a serious potential risk of physical injury to
                    another.

U.S.S.G. § 4B1.2(a). We have noted that the definition of a “crime of violence”

under §§ 4B1.1 and 4B1.2, and the definition of a “violent felony” under the

Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), are virtually identical,

and that decisions addressing violent felonies under the ACCA thus provide

important guidance in determining if a crime constitutes a crime of violence under

the Guidelines. See United States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004).

      “Generally, in determining whether a prior conviction is a qualifying offense



                                          5
for enhancement purposes, we apply a ‘categorical’ approach, which means that we

look no farther than the judgment of conviction.” Aguilar-Ortiz, 450 F.3d at 1273.

In some cases, however, the judgment of conviction and the relevant statute are

ambiguous, and it is impossible to discern whether the previous conviction is a

qualifying offense. Id. In these cases, “we remand for the district judge to look at

the facts underlying a state conviction.” Id. In making this determination, the

district court “is limited 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.” Shepard v. United States, 544 U.S. 13, 26, 125

S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005); Aguilar-Ortiz, 450 F.3d at 1273-74.

      Under Florida law, an individual commits the crime of battery where he:

“(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). The crime normally constitutes a misdemeanor offense in the first

degree. Fla. Stat. Ann. § 784.03(2). Where an individual commits battery against

a law enforcement officer, however, the offense is upgraded to a third-degree

felony. Fla. Stat. Ann. § 784.07(1)(d) and (2)(b).

      In United States v. Glover, we held that the offense of battery on a law



                                           6
enforcement officer, as defined by Fla. Stat. Ann. §§ 784.03 and 784.07,

constitutes a crime of violence under § 4B1.2. 431 F.3d 744, 749 (11th Cir. 2005).

Subsequently, in Hearns, the Florida Supreme Court held that battery on a law

enforcement officer did not constitute a forcible felony for purposes of sentencing

under Florida’s violent-career-criminal statute, Fla. Stat. Ann. § 775.084. 961

So.2d at 214, 218. The Florida Supreme Court reasoned that the offense of battery,

as defined under §§ 784.03 and 784.07, would not invariably involve violent

conduct because an individual could commit the offense by simply tapping a police

officer on the shoulder without his consent. Id. at 219. In United States v.

Johnson, we held that, even after Hearns, a third-degree felony battery conviction

under §§ 784.03 and 784.07 constitutes a violent felony under the ACCA, though it

did not constitute a forcible felony under state law. 528 F.3d 1318, 1319-21 (11th

Cir. 2008), rev’d, Johnson v. United States, No. 08-6925 (U.S. Mar. 2, 2010).

      The Supreme Court, however, recently reversed our decision in Johnson.

Johnson, No. 08-6925, slip. op. at 11-12. The Court held that, while Hearns is

controlling as to the definition of simple battery under state law, it is not binding as

to whether the offense constitutes a violent felony under the ACCA, which is a

matter of federal law. Id. at 3-4. The Court also held that, in order to constitute a

violent felony under the ACCA, an offense must involve “violent force”—i.e.,



                                            7
“force capable of causing physical pain or injury to another person.” Id. at 6.

Noting that Hearns made clear that the offense of battery could be accomplished

by mere unwanted, intentional touching, the Court held that battery did not

constitute a violent felony when accomplished in this manner. Id. at 4-8, 11.

Because nothing in the record of the defendant’s battery conviction permitted a

conclusion that the defendant sustained the conviction due to behavior amounting

to more than mere unwanted touching, the Court held that the defendant’s previous

offense was not a violent felony. Id. at 2-3, 11-12.

      Pursuant to the Supreme Court’s recent decision in Johnson, we conclude

that the Florida offense of simple battery, as defined by Fla. Stat. Ann. §§ 784.03

and 784.07, will not invariably constitute a crime of violence under the Guidelines.

This is because, under the terms of the state statute, the defendant’s underlying

conduct could have involved the intentional infliction of bodily harm to another,

but it also could have involved mere unwanted touching. Because the fact of the

conviction and the elements of Florida’s simple battery statute, standing alone, do

not unambiguously establish that Joseph previously committed a crime of violence,

the district court may consider the underlying conduct. In order to aid this

consideration, the court may look to the charging document, a plea agreement, a

plea colloquy in which Joseph assented to the factual basis for the plea, or a



                                          8
comparable judicial record of this information. See Shepard, 544 U.S. at 26, 125

S.Ct. at 1263. If such documents are unavailable, Johnson instructs that it should

be assumed that Joseph committed the battery offense by mere unwanted touching.

See Johnson, No. 08-6925, slip op. at 2-3.

      Accordingly, we vacate Joseph’s sentence and remand for further

proceedings consistent with this decision.

      VACATED AND REMANDED.




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