                                                                           [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                           JUNE 22, 2010
                                     No. 08-10185
                                                                            JOHN LEY
                               ________________________
                                                                             CLERK

                          D. C. Docket No. 03-14041-CR-KMM

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

PATRICK FREDERICK WILLIAMS,

                                                                       Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
                                    (June 22, 2010)

                        ON REMAND FROM THE
                  SUPREME COURT OF THE UNITED STATES


Before DUBINA, Chief Judge, CARNES, Circuit Judge, and RESTANI,* Judge.

       *
          Honorable Jane Restani, Chief Judge of the United States Court of International Trade,
sitting by designation.
DUBINA, Chief Judge:

      In United States v. Williams, 563 F.3d 1239 (11th Cir. 2009), we affirmed

Patrick Frederick Williams’s life sentence as a career offender under U.S.S.G. §

4B1.1 following his conviction for possession of crack cocaine. The Supreme

Court vacated our judgment, Williams v. United States, 130 S. Ct. 1734 (2010),

and remanded the case to us for further consideration in light of its decision in

Johnson v. United States, __ U.S. __, 130 S. Ct. 1265 (2010). After additional

review, we vacate Williams’s sentence and remand for re-sentencing.

      In Johnson, the Supreme Court held that the Florida felony offense of

battery was not a “violent felony” under the “physical force” subdivision of the

Armed Career Criminal Act (“ACCA”). 130 S. Ct. at 1274; see also 18 U.S.C. §

924(e)(2)(B)(i) (2006) (defining “violent felony” in part as any crime that “has as

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

person of another”). The Court reasoned that “in the context of a statutory

definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that

is, force capable of causing physical pain or injury to another person.” 130 S. Ct.

at 1271. The Court concluded that the Florida battery offense was not a “violent

felony” under the “physical force” subdivision of the ACCA because Florida

courts have held that the felony battery offense requires proof of only slight,

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incidental physical contact. Id. at 1269, 1274; see also State v. Hearns, 961 So. 2d

211, 219 (Fla. 2007) (holding that the Florida crime of battery on a law

enforcement officer, “like battery itself, may be committed with only nominal

contact”).

       In this case, the district court apparently relied on Williams’s prior

conviction for battery on a law enforcement officer as a predicate for sentence

enhancement under the career offender provision of the sentencing guidelines.1

See U.S.S.G. § 4B1.1(a) (defining career offender as one who has “at least two

prior felony convictions of either a crime of violence or a controlled substance

offense”). We hold that, in light of the Supreme Court’s ruling in Johnson, the

fact of a conviction for felony battery on a law enforcement officer in Florida,

standing alone, no longer satisfies the “crime of violence” enhancement criteria as

defined under the “physical force” subdivision of section 4B1.2(a)(1) of the

sentencing guidelines. Though the statutory context here varies somewhat from



       1
          At the sentencing hearing, the district court did not indicate under which subdivision of
the “crime of violence” definition, found in U.S.S.G. § 4B1.2(a), Williams’s conviction for
battery on a law enforcement officer qualified. We note a general lack of specificity regarding
the basis for Williams’s career offender enhancement, especially because the record suggests
that, in addition to Williams’s convictions for battery on a law enforcement officer, Williams
pled nolo contendere to resisting an officer with violence in violation of Fla. Stat. § 843.01, a
third degree felony. Florida courts have noted that a conviction under this statute requires proof
of conduct or attempted conduct involving threatened or actual physical force with violence.
Walker v. State, 965 So. 2d 1281, 1283–84 (Fla. Dist. Ct. App. 2007).

                                                 3
that present in Johnson, we have no reason to believe that the words present in the

ACCA have a different meaning than the same words used in the sentencing

guidelines. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)

(“This court has repeatedly read the definition of a ‘violent felony’ under § 924(e)

of the Armed Career Criminal Act as ‘virtually identical’ to the definition of a

‘crime of violence’ under U.S.S.G. § 4B1.2.”).

      At the time of Williams’s conviction, Florida law criminalizing battery on a

police officer provided as follows:

      Whenever any person is charged with knowingly committing an
      assault or battery upon a law enforcement officer . . . the offense for
      which the person is charged shall be reclassified as follows: . . .
      (b) In the case of battery, from a misdemeanor of the first degree to a
      felony of the third degree.

Fla. Stat. § 784.07(2).

      A person commits battery if he:
      (a) Actually and intentionally touches or strikes another person
      against the will of the other; or
      (b) Intentionally causes bodily harm to an individual.

Fla. Stat. § 784.03(1). We see no evidence in the record, that we may consider

under Shepard v. United States, to clarify under which of these provisions

Williams was convicted. See 544 U.S. 13, 26, 125 S. Ct. 1254, 1262 (2005)

(limiting fact-finding concerning prior convictions to “the terms of the charging



                                          4
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”). To the

extent that the district court believed that Williams’s conviction for battery on a

law enforcement officer was a “crime of violence” because it involved “the use,

attempted use, or threatened use of physical force” and thus qualified for

enhancement, the sentence must be set aside. Accordingly, we vacate Williams’s

sentence and remand this case for re-sentencing consistent with this opinion.

VACATED and REMANDED.




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