               Case: 17-15035       Date Filed: 03/06/2019      Page: 1 of 38


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 17-15035
                              ________________________

                        D.C. Docket No. 3:16-cr-00055-MCR-1



UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,
                                            versus

CLIFFORD B. GANDY, JR.

                                                                   Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                             _______________________

                                      (March 6, 2019)

Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and CONWAY, *
District Judge.

WILLIAM PRYOR, Circuit Judge:




* Honorable Anne C. Conway, United States District Judge for the Middle District of Florida,
sitting by designation.
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      This appeal requires us to decide whether Clifford Gandy Jr.’s prior

conviction for battery of a jail detainee, Fla. Stat. §§ 784.03, 784.082, qualifies as a

“crime of violence” under the Sentencing Guidelines. Gandy was convicted of

possession with intent to distribute cocaine and marijuana, 21 U.S.C. § 841(a)(1),

(b)(1)(C)–(D), possession of a firearm in furtherance of a drug-trafficking offense,

18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm by a convicted felon, id.

§§ 922(g)(1), 924(a)(2). Based on Gandy’s prior convictions for battery and a

controlled-substance offense, the district court classified him as a career offender.

United States Sentencing Guidelines Manual § 4B1.1(a) (Nov. 2016). The district

court then calculated Gandy’s sentencing range as 360 months to life imprisonment

and varied downward to impose a 300-month sentence of imprisonment. Gandy

contends that his prior conviction for battery is not a crime of violence under the

Guidelines. He argues that Florida battery is divisible only between “touching and

striking” and “intentionally causing bodily harm,” and that, under the modified

categorical approach, we cannot determine that he was convicted of “intentionally

causing bodily harm.” Because the record makes clear that Gandy’s conviction for

battery necessarily was for “intentionally causing bodily harm,” we affirm.

                                 I. BACKGROUND

      In June 2016, a grand jury indicted Gandy for possession with intent to

distribute cocaine and marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C)–(D) (Count 1);



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possession of a firearm in furtherance of a drug-trafficking offense, 18 U.S.C.

924(c)(1)(A)(i) (Count 2); and possession of a firearm by a convicted felon, id.

§§ 922(g)(1), 924(a)(2) (Count 3). After a two-day trial, the jury convicted Gandy

on all counts. The district court then scheduled a sentencing hearing, and the

probation officer prepared Gandy’s presentence investigation report.

      The probation officer classified Gandy as a career offender based on three

prior felony convictions: a 2010 nolo contendere plea for battery upon a detainee,

Fla. Stat. §§ 784.03, 784.082; a 2012 nolo contendere plea for felony battery; and a

2013 nolo contendere plea for the sale, manufacture, delivery, or possession of a

controlled substance with intent to sell. See U.S.S.G. § 4B1.1(a). This

classification subjected Gandy to the increased sentencing ranges that apply to

career offenders with multiple counts of conviction one of which is possession of a

firearm in furtherance of a drug-trafficking offense, 18 U.S.C. § 924(c). See

U.S.S.G. § 4B1.1(b)–(c). The probation officer calculated that Gandy’s total

sentencing range was 360 months to life imprisonment.

      Gandy objected to his classification as a career offender on the ground that

his battery convictions were not crimes of violence. He asserted that our decision

in United States v. Green (Green I), 842 F.3d 1299 (11th Cir. 2016), opinion

vacated and superseded on denial of reh’g, 873 F.3d 846 (11th Cir. 2017), was

wrongly decided and that striking and touching for Florida battery, Fla. Stat. §



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784.03, are not divisible. And Gandy argued, based on Descamps v. United States,

570 U.S. 254 (2013), that no documents could be used to determine whether his

battery convictions qualified as crimes of violence under the modified categorical

approach. See Shepard v. United States, 544 U.S. 13 (2005). Gandy calculated that

his total sentencing range should be 144 to 165 months’ imprisonment.

      The government responded that Gandy’s battery convictions constituted

crimes of violence based on Green I. In Green I, we explained that the Florida

simple battery statute is divisible between “touching,” “striking,” and

“intentionally causing bodily harm” battery, and that a court should use the

modified categorical approach and consult Shepard-approved documents to decide

which elements of battery a conviction was based on. 842 F.3d at 1322. And we

held that if Shepard documents establish that a defendant was convicted of the

“striking” element as opposed to the “touching” element of simple battery, then the

conviction qualifies as a predicate “violent felony” under the Armed Career

Criminal Act, 18 U.S.C. § 924(e). Id.

      With respect to the 2010 conviction, the government submitted four Shepard

documents. First, the government submitted a charging document that stated that

Gandy committed a battery upon a jail detainee “by actually and intentionally

touching or striking [the victim] . . . or by intentionally causing bodily harm to [the




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victim,] by hitting the victim in the face and head,” in violation of Fla. Stat. §§

784.03, 784.082.

      Second, the government submitted Gandy’s sentence-recommendation form,

which is the equivalent of his plea agreement. The sentence recommendation

reflects that Gandy pleaded nolo contendere to “Battery Upon a Jail Visitor or

Other Detainee.” The sentence recommendation, which Gandy and his state-court

counsel signed, also includes the following factual basis:

      FACTUAL BASIS: The arrest report . . . which is a part of the court
      record filed with the clerk of the court is hereby incorporated by
      reference and agreed to by the defendant as a factual basis for this
      plea and/or the factual basis is as follows:

      ...

      On December 11, 2010, deputies responded to the Red Pod in the
      Escambia County Jail and observed victim Clunion Galloway laying
      on the floor and bleeding. Victim Galloway stated that he was playing
      cards with other inmates when he was hit from behind. Victim
      Galloway did not see who the attacker was.

      Video surveillance was reviewed and shows the defendant approached
      the victim and str[uck] him in the head multiple times causing the
      victim to fall to the ground. The video then shows the defendant
      continuing to strike the victim on the ground. The video does not
      show any provocation.

Gov. Ex. A at 5, United States v. Gandy, No. 3:16-cr-00055-MCR-1 (N.D. Fla.

Dec. 9, 2016), ECF No. 58-1 (emphasis altered).




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      Third, the government submitted the arrest report that Gandy expressly

incorporated as the factual basis for his plea. The arrest report includes the

following statement of probable cause:

      On 12/11/2010 . . . Clifford Gandy, Jr did knowingly and intentionally
      commit the offense of Battery Causing Bodily Harm, as follows.

      On 12/12/10, I was dispatched to [the jail] in reference to a battery
      complaint. Upon arrival, I made contact with Sergeant Bullion . . .
      who stated that at approximately 2135 hours on 12/11/2010 an inmate
      attacked another inmate. Sergeant Bullion provided me with their
      incident report . . . . The report stated that Deputy Frymire . . .
      responded to the Red Pod where he observed V/Clunion Galloway
      lying on the floor and bleeding. V/Galloway told Deputy Frymire that
      he was playing cards when someone hit him from behind. V/Galloway
      stated that he did not see who hit him. V/Galloway was transported to
      the Infirmary where he was treated by medical staff. Deputy Frymire
      stated that S/Clifford Gandy later admitted to hitting V/Galloway.
      S/Gandy was also escorted to the Infirmary where he was seen by
      medical staff.

      I was advised by Sergeant Bullion that V/Galloway wished to pursue
      criminal charges, and he also advised me that there was a video of the
      incident. Sergeant Buillion played the video for me at which time I
      observed V/Galloway playing cards. I could then clearly see S/Gandy
      walk up behind V/Galloway and unprovokedly str[ike] V/Galloway in
      the face which caused V/Galloway to fall down to the ground.
      S/Gandy then continued to strike V/Galloway multiple times on the
      head. . . . Sergeant Bullion took photographs of V/Galloway’s injuries
      which he provided to me. . . . V/Galloway had a cut below his right
      eye, a scratch below his right ear, a bruise on the top of his head, a
      minor cut on his nose and a cut above his left eye.

      S/Gandy was charged with battery causing bodily harm.

Id. at 11–12 (emphasis added). The report also lists the charge as “Battery

Caus[ing] Bodily Harm,” and it refers exclusively to the subsection of the statute

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that Gandy violated as section 784.03(1)(a)(2), which addresses “intentionally

causing bodily harm.”

        Fourth, the government submitted the state-court judgment. The judgment

states that Gandy pleaded nolo contendere to “battery upon a jail visitor or other

detainee,” in violation of sections 784.03 and 784.082.

        In January 2017, the district court entered an order continuing Gandy’s

sentencing. The court was inclined to agree with Gandy that section 784.03 is not

divisible between “touching” and “striking” elements, but it explained that it was

“clearly” bound by Green I. The court also mentioned that it hoped that the issue

of the divisibility of the Florida battery statute would be resolved in the then-

pending appeal in United States v. Vail-Bailon, No. 15-10351 (11th Cir.). Gandy’s

sentencing was then rescheduled for after we decided that appeal. In August 2017,

we issued our opinion in Vail-Bailon that felony battery under Fla. Stat. § 784.041

categorically qualifies as a crime of violence under the Sentencing Guidelines.

United States v. Vail-Bailon, 868 F.3d 1293, 1308 (11th Cir. 2017) (en banc). After

our ruling, the district court rescheduled Gandy’s sentencing hearing for September

2017.

        At his sentencing hearing, Gandy renewed his objection to the career-

offender designation. The district court explained that Green I remained binding

precedent even after Vail-Bailon. The district court then overruled the objection.



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      After that ruling, the government requested and was granted the opportunity

to further explain its position. The government first conceded that Gandy’s 2012

battery conviction did not qualify as a crime of violence under the career-offender

guideline. But the government maintained that Gandy was correctly designated a

career offender because the 2010 conviction of battery of a detainee qualified as a

crime of violence because it constituted “striking” battery under Green I.

      The government also advanced an alternative argument: even if Green I was

wrong about the divisibility of Florida battery, Gandy’s battery conviction would

still qualify as a crime of violence because battery would still be divisible between

“touching and striking” and “intentionally causing bodily harm,” and the Shepard

documents leave “no doubt” that Gandy pleaded to “intentionally causing bodily

harm.” Gandy responded that a conviction for bodily-harm battery does not require

proof of violent force, as required under Johnson v. United States (Curtis Johnson),

559 U.S. 133 (2010). According to Gandy, one could intentionally cause bodily

harm by, for example, “digging a hole and putting a blanket over it or loosening

someone’s tires,” and this would not meet the requirement of the use of violent

force. The court never addressed the government’s alternative argument.

      The court varied downward from the Guidelines range of 360 months to life

imprisonment and imposed a 300-month sentence of imprisonment. One week

later, we vacated Green I and issued a superseding opinion that did not address the



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divisibility of Florida simple battery. See United States v. Green (Green II), 873

F.3d 846 (11th Cir. 2017). Gandy then filed his appeal.

                          II. STANDARD OF REVIEW

      We review de novo whether a battery conviction qualifies as a crime of

violence under the Sentencing Guidelines. Vail-Bailon, 868 F.3d at 1296.

                                 III. DISCUSSION

      Gandy argues that the district court erred when it classified him as a career

offender on the ground that his 2010 conviction for battery of a detainee was a

crime of violence. To be classified as a career offender, Gandy must have at least

two prior felony convictions for crimes of violence or controlled-substance

offenses. U.S.S.G § 4B1.1(a). A “crime of violence” is defined as a felony offense

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

against the person of another.” Id. § 4B1.2(a)(1). The Supreme Court has defined

physical force as “violent force—that is, force capable of causing physical pain or

injury to another person.” Curtis Johnson, 559 U.S. at 140. Because there is no

dispute that, for purposes of Gandy’s career-offender designation, his conviction

for a controlled-substance offense is a predicate offense and that his 2012 battery

conviction is not, only the status of Gandy’s 2010 battery conviction is at issue.

      Gandy was convicted in 2010 under two statutes, Fla. Stat. §§ 784.03,

784.082. Section 784.03 defines the offense of simple battery:



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      (1)(a) The offense of battery occurs when a person:

      1. Actually and intentionally touches or strikes another person against
      the will of the other; or

      2. Intentionally causes bodily harm to another person.

Fla. Stat. § 784.03(1)(a). Although simple battery is ordinarily a misdemeanor,

battery of a jail detainee is classified as felony under another statute. Fla. Stat. §

784.082(3).

      Because section 784.03 does not define a crime of violence under the

categorical approach, see Curtis Johnson, 559 U.S. at 138–40, we must decide

whether the modified categorical approach allows us to conclude that Gandy’s

conviction qualifies. We may apply the modified categorical approach when the

statute is divisible—that is, it “define[s] multiple crimes”—and a limited class of

documents, often called Shepard documents, are available to determine “what

crime, with what elements, a defendant was convicted of.” Mathis v. United States,

136 S. Ct. 2243, 2249 (2016). Shepard documents may include the charging

document, any plea agreement submitted to the court, the transcript of the plea

colloquy, or any “record of comparable findings of fact adopted by the defendant

upon entering the plea.” Shepard, 544 U.S. at 20–21, 26.

      The parties agree that the battery conviction cannot be classified as a crime

of violence for “striking” battery because section 784.03 is only divisible between

“touching or striking” battery and “intentionally causing bodily harm” battery. The


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parties also agree that “touching or striking” battery does not constitute a crime of

violence. But the government argues that because Gandy necessarily pleaded to

“bodily harm” battery, his conviction still qualifies as a crime of violence.

      Because we agree with the government that we can determine that Gandy

was necessarily convicted of “intentionally causing bodily harm,” which qualifies

as a crime of violence, we need not decide whether “touching” and “striking” are

divisible or whether Gandy’s conviction would qualify as “striking” battery. The

parties do not dispute, and we agree, that the Florida statute is divisible and that

battery by “intentionally causing bodily harm” is a separate element of the offense.

      Battery by “intentionally causing bodily harm” categorically constitutes a

crime of violence. Bodily-harm battery is proved by establishing two elements: the

defendant caused bodily harm to another person, and he did so intentionally. See

Fla. Stat. § 784.03(1)(a)(2). Although, under Florida law, bodily harm is broadly

defined to encompass any “slight, trivial, or moderate harm” to a victim, see

Brown v. State, 86 So. 3d 569, 571–72 (Fla. Dist. Ct. App. 2012), and Florida

courts have applied the term to a wide range of physical injuries, see, e.g., Gordon

v. State, 126 So. 3d 292, 295–96, 296 n.4 (Fla. Dist. Ct. App. 2011) (bruises);

C.A.C. v. State, 771 So. 2d 1261, 1262 (Fla. Dist. Ct. App. 2000) (scratches,

swelling, and puncture marks), all of these injuries satisfy Curtis Johnson’s

definition of violent force. See Curtis Johnson, 559 U.S. at 143 (explaining that



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violent force “might consist . . . of only that degree of force necessary to inflict

pain—a slap in the face, for example”). A defendant convicted of bodily-harm

battery must have intentionally used “force capable of causing physical pain or

injury to another person,” id. at 140, so bodily-harm battery necessarily constitutes

a crime of violence.

      We next look to the Shepard documents for Gandy’s battery conviction to

determine whether he was necessarily convicted of intentionally causing bodily

harm. See Shepard, 544 U.S. at 21 (explaining that the question is “whether the

plea had ‘necessarily’ rested on the fact identifying the [offense]” as a predicate).

The Supreme Court has repeatedly stressed that there is a “demand for certainty” in

determining whether a defendant was convicted of a qualifying offense. See

Mathis, 136 S. Ct. at 2257; see Descamps, 570 U.S. at 272 (asking whether the

defendant “necessarily” committed the qualifying crime); Shepard, 544 U.S. at 21

(referring to “Taylor’s demand for certainty”); Taylor v. United States, 495 U.S.

575, 602 (1990). As a result, we may conclude that Gandy was convicted of a

qualifying offense only if the Shepard documents “speak plainly” in establishing

the elements of his conviction. Mathis, 136 S. Ct. at 2257.

      Although the charging document, the judgment, and Gandy’s sentence

recommendation do not identify which crime within section 784.03 he was

convicted of committing, the incorporated arrest report clearly identifies his



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offense as bodily harm battery. To be sure, we ordinarily do not rely on police

reports under the modified categorical approach because a defendant ordinarily

does not admit the conduct described in them. United States v. Rosales-Bruno, 676

F.3d 1017, 1021 (11th Cir. 2012). But an arrest report that is incorporated by

reference in a plea agreement qualifies as a “record of comparable findings of fact

adopted by the defendant upon entering the plea” that we may consider. Shepard,

544 U.S. at 20; see United States v. Diaz-Calderone, 716 F.3d 1345, 1349–50

(11th Cir. 2013) (holding that a district court may rely on arrest reports if the

defendant acknowledges his guilt and implicitly affirms the truth of the arrest

report during a plea colloquy).

      The incorporated arrest report “speaks plainly” that Gandy’s offense was

bodily-harm battery. The report begins by listing the charge as “Battery Caus[ing]

Bodily Harm,” and it refers exclusively to the subsection of the Florida simple

battery that Gandy violated as section 784.03(1)(a)(2), the “bodily harm”

subsection. The report then alleges in its statement of probable cause that “[o]n

12/11/2010 . . . [Gandy] did knowingly and intentionally commit the offense of

Battery Causing Bodily Harm.” It next describes how Gandy attacked his fellow

inmate and caused him to suffer a variety of injuries, such as bruising and cuts

around the face and head. At the conclusion of the statement of probable cause, the

report again lists the charge as “battery causing bodily harm.” The arrest report



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never mentions “touching or striking” battery, nor does it cite the subsection for

that type of battery. So the arrest report unambiguously identifies Gandy’s offense

as bodily harm battery. Because Gandy agreed to this description of his offense, he

necessarily pleaded nolo contendere to bodily harm battery.

       At oral argument, Gandy argued that we cannot rely on the statements

identifying his offense as bodily harm battery because these statements are “legal

conclusions.” He argued that by agreeing to the police report as the factual basis of

his plea, he only agreed to the report’s “factual allegations.” We disagree.

       Florida law requires a factual basis for a plea to ensure “that the facts of the

case fit the offense with which the defendant is charged.” Allen v. State, 876 So. 2d

737, 740 (Fla. Dist. Ct. App. 2004) (citation omitted). Because a factual basis is

used to compare the factual allegations with the elements of the offense of

conviction, see Williams v. State, 316 So. 2d 267, 273 (Fla. 1975), a factual basis

often includes both legal and factual elements so that the comparison between the

two may be made explicit. Although we agree with Gandy that a factual basis

consists primarily of factual information, see Dydek v. State, 400 So. 2d 1255,

1257 (Fla. Dist. Ct. App. 1981) (explaining that “the trial court must receive in the

record factual information to establish the offense to which the defendant has

entered his plea” (emphasis added)), we do not agree that a factual basis excludes

all legal conclusions. Our review of Florida caselaw reveals that the factual bases



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for guilty or nolo pleas often include legal descriptions of the elements or offenses

that are established by the factual allegations. See, e.g., Johnson v. State, 22 So. 3d

840, 843 (Fla. Dist. Ct. App. 2009) (explaining that prosecutor’s statement of the

factual basis for a plea, to which the defendant did not object, included the

statement that at “some point between November 15, 2005, and November 27,

2005, Johnson knowingly conspired to sell, purchase, manufacture, deliver, or

traffic four grams or more of oxycodone”); Toson v. State, 864 So. 2d 552, 554

(Fla. Dist. Ct. App. 2004) (including in the factual basis a statement that “the

defendant did knowingly enter a dwelling . . . with the intent to commit an offense

therein”); Hayden v. State, 833 So. 2d 275, 276 (Fla. Dist. Ct. App. 2002)

(providing a factual basis for a defendant who pleaded nolo contendere to the

offense of robbery with a firearm and a mask that included the statement that “[o]n

December 22nd, Marcus Hayden and Dantrell Riley, with a gun and masks . . .

committed a robbery”). And Gandy cites no authority supporting his restrictive

view of what constitutes a factual basis under Florida law.

      We conclude that because Gandy agreed to the arrest report as the factual

basis of his plea without qualification, he agreed with the statements describing his

offense as bodily-harm battery and that he necessarily pleaded nolo contendere to

that offense. And our conclusion is consistent with that of the only other Circuit

that has addressed whether a defendant’s agreement to a police report as a factual



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basis includes his agreement to the report’s description of his offense. See United

States v. Almazan-Becerra, 537 F.3d 1094, 1096, 1099 (9th Cir. 2008) (explaining

that where police reports were incorporated as the factual basis of the defendant’s

plea and described the offense as “sales of marijuana,” it established that a

defendant who had pleaded guilty to a disjunctive indictment was necessarily

convicted of the sale of marijuana as opposed to mere transportation of marijuana).

      Gandy argues that we cannot conclude that he was convicted of bodily harm

battery in the absence of an amendment to the charging document that narrows the

elements of his conviction, but we disagree. What matters under the modified

categorical approach is not the offense charged, but what elements the government

proved or the defendant admitted committing. Although a charging document is

one possible Shepard document that we may consult, it is not the only document.

When a charging document contains multiple alternative elements from the same

divisible statute and the judgment does not specify which elements were proved or

admitted, we may still determine the elements by consulting other Shepard

documents. For example, in Diaz-Calderon, the defendant pleaded nolo contendere

to an information charging that he “did intentionally touch or strike the victim

against that person’s will or did intentionally cause bodily harm to said person.”

716 F.3d at 1348 (alteration adopted) (emphasis added). We determined the basis

for the conviction by looking to the factual basis for the plea, which included arrest



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affidavits, and the plea colloquy. Id. at 1349–50. Because the Shepard documents

establish that Gandy admitted committing bodily-harm battery, we reject his

argument.

      Gandy also contends that we may not rely on the factual basis included in

his sentence recommendation because, in entering his nolo contendere plea, he

only “acknowledged that the evidence would be sufficient to support a judgment of

conviction under Fla. Stat. § 784.03.” But we have repeatedly explained that we

treat Florida nolo convictions no differently than convictions based on guilty pleas

or verdicts of guilt for purposes of the Sentencing Guidelines. See Green II, 873

F.3d at 860 (collecting decisions); see also United States v. Drayton, 113 F.3d

1191, 1193 (11th Cir. 1997) (holding that a Florida nolo conviction constitutes a

prior conviction for purposes of the Armed Career Criminal Act). Gandy’s

argument that we may not consult the factual basis of his nolo plea has no merit.

      Gandy also argues that we cannot rely on the factual basis in the arrest report

because, absent a plea colloquy, we cannot determine either that the state court

found a factual basis to support the nolo contendere plea or that it specifically

relied on the factual basis as stated in the arrest report. As we understand it,

Gandy’s argument suggests that we cannot apply the modified categorical

approach unless we have a plea colloquy, as there could always be some question

about whether the elements of the conviction stated in a particular Shepard



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document were actually relied upon by the court in accepting the plea. But a plea

colloquy is only one of several Shepard-approved documents, and we are aware of

no authority suggesting that the absence of a plea colloquy bars consideration of

other Shepard documents.

      Gandy also renews his argument from the district court that bodily-harm

battery does not satisfy the definition of a crime of violence because one may

cause bodily injury indirectly, such as by “digging a hole and putting a blanket

over it or loosening someone’s tires.” This argument fails because we have held

that “[w]hen a statute requires the use of force ‘capable of causing physical pain or

injury to another person,’ whether that use of force ‘occurs indirectly, rather than

directly (as with a kick or punch), does not matter.’” United States v. Deshazior,

882 F.3d 1352, 1357 (11th Cir. 2018) (citation omitted) (quoting United States v.

Castleman, 572 U.S. 157, 171 (2014)).

      Gandy was convicted of battery of a jail detainee by intentionally causing

bodily harm. His prior conviction constitutes a crime of violence under the

Sentencing Guidelines. U.S.S.G. § 4B1.2(a)(1). So he has two qualifying predicate

offenses for purposes of his career-offender designation. U.S.S.G. § 4B1.1(a).

                                IV. CONCLUSION

      We AFFIRM Gandy’s sentence.




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ROSENBAUM, Circuit Judge, dissenting:

       I agree with the panel that Fla. Stat § 784.03 is divisible into two separate

offenses—one of which qualifies as a violent felony for purposes of the sentencing

guidelines (the “bodily-harm” provision) 1 and one of which does not (the “touch-

or-strike” provision)2. I also agree that the fact that Clifford Gandy Jr.’s plea was

one of nolo contendere does not change the analysis in this case and that the district

court was entitled to look to the arrest report to determine the offense of conviction




       1
           The panel opinion concludes that bodily-harm battery is “necessarily” a crime of violence,
though it notes that “under Florida law, bodily harm is broadly defined to encompass any ‘slight,
trivial, or moderate harm’ to a victim.” Maj. Op. at 11. I agree that the injuries described in the
two panel-opinion-cited Florida cases interpreting this definition—bruises in one and scratches,
swelling, and puncture marks in the other—required the “use . . . of physical force” as anticipated
by the Supreme Court’s interpretation of the elements clause. What is not clear to me after
reviewing Florida law is the bottom end of the spectrum of “bodily injury”—that is, what is the
most “trivial” or “slight” impact that still counts as “harm” so that it satisfies the definition of
“bodily injury”? But because I conclude that we cannot “necessarily” determine that the Florida
court convicted Gandy of bodily-harm battery, anyway, I do not opine on whether bodily-harm
battery is categorically a crime of violence. My dissent therefore assumes without deciding that it
is.
         2
           The panel opinion does not decide whether touch-or-strike battery is itself divisible.
Under the methodology of Mathis v. United States, 136 S. Ct. 2243, 2256-57 (2016), however,
touch-or-strike battery is not divisible. Touching and striking constitute alternative means—not
alternative elements—of the crime. Under Mathis, we may ascertain whether striking and touching
are alternative elements or alternative means by looking to Florida law identifying the elements of
Fla. Stat. § 784.03(1)(a)(1). See Mathis, 136 S. Ct. at 2256. In Khianthalat v. State, 974 So. 2d
359, 361 (Fla. 2008), the Florida Supreme Court set forth the elements of simple battery under §
784.03(a)(1)(a) as “(1) actually and intentionally touching or striking another person; and (2)
[doing so] against the will of the other person.” Florida’s jury instructions for this crime likewise
require the jury to determine whether each of these elements has been satisfied. See Fla. Jury
Instruction 8.3 Battery. Because “touching” and “striking” are listed in the alternative as part of a
single element of the crime, they constitute alternative means—not alternative elements—under
Mathis. See Mathis, 136 S. Ct. at 2256-57. As a result, touch-or-strike battery is not divisible.


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because the report was incorporated by reference into Gandy’s sentence

recommendation “as a factual basis.”

      But I dissent from the panel’s application of the modified categorical

approach. The panel incorrectly applies the modified categorical approach, creating

a circuit split in the process. As a result, the panel mistakenly concludes that

Gandy’s prior conviction for violating § 784.03 was “necessarily” for bodily-harm

battery. Since a correct application of the modified categorical approach does not

allow us to identify which offense defined in § 784.03 Gandy was “necessarily”

convicted of committing, I would vacate the sentence and remand for resentencing.

                                          I.

      I begin by reviewing the categorical and modified categorical analyses.

      As the “first step” of determining whether a defendant’s prior conviction

qualifies as a “crime of violence” under the Sentencing Guidelines, we apply the

categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990).

United States v. Estrella, 758 F.3d 1239, 1244 (11th Cir. 2014). Using that method,

we “look no further than the statute and judgment of conviction” and ask whether,

“on its face,” the statute of conviction “requires the government to establish, beyond

a reasonable doubt and without exception, an element involving the use, attempted

use, or threatened use of physical force against a person for every charge brought

under the statute.” Estrella, 758 F.3d at 1244; accord United States v. Howard, 742



                                         20
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F.3d 1334, 1345 (11th Cir. 2014); Donawa v. United States Attorney General, 735

F.3d 1275, 1281 (11th Cir. 2013). If so, then the conviction “necessarily,” Estrella,

758 F.3d at 1245 (citation and quotation marks omitted), indicates that the defendant

committed an element that involves the “use, attempted use, or threatened use of

physical force against the person of another,” U.S.S.G. § 4B1.2(a).

      Here, the categorical approach does not reveal whether Gandy was

“necessarily” convicted of a crime that includes as an element the “use, attempted

use, or threatened use of physical force against the person of another.” As the panel

accurately points out, Gandy’s judgment reveals only that he was convicted of

violating Fla. Stat. § 784.03, which is not categorically a crime of violence. Rather,

§ 784.03 has two subsections possibly applicable here—one that is not categorically

a crime of violence (§ 784.03(1)(a)(1), which makes it a crime to “[a]ctually and

intentionally touch[] or strike[] another person against the will of the other”), Curtis

Johnson v. United States, 599 U.S. 133, 139 (2010), and one that is (§

784.03(1)(a)(2), which makes it a crime to “[i]ntentionally cause[] bodily harm to

another person”). Because § 784.03 is divisible into one crime that qualifies as a

crime of violence and another that does not, the categorical approach cannot help us

deduce whether Gandy’s conviction under § 784.03 was necessarily for a crime of

violence.




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      We therefore must turn to the modified categorical approach to help us

identify, if possible, whether Gandy was convicted of the touch-or-strike provision

or the bodily-harm provision. Estrella, 758 F.3d at 1245. Under the modified

categorical approach, we “look to the fact of conviction and the statutory definition

of the prior offense, as well as any charging paper and jury instructions” to shed light

on what specific offense of a divisible statute the defendant was convicted of. Id.

(citation and quotation marks omitted). The documents we use for this purpose are

often referred to as “Shepard” documents. See Shepard v. United States, 544 U.S.

13 (2005).

      Critically, and as the Supreme Court has repeatedly emphasized, courts may

use the modified categorical approach to determine only “‘which statutory phrase

was the basis for the conviction.’” Descamps v. United States, 570 U.S. 254, 263

(2013) (emphasis added) (quoting Curtis Johnson, 599 U.S. at 144); see also Taylor,

495 U.S. at 602; Shepard, 544 U.S. at 26. We have previously followed this directive

when holding that courts may use Shepard documents for only the limited purpose

of determining “‘what crime, with what elements, a defendant was convicted of.’”

United States v. Gundy, 842 F.3d 1156, 1168 (11th Cir. 2016) (emphasis added)

(quoting Mathis v. United States, 136 S. Ct. 2243, 2245 (2016)). It naturally follows

that a court “must not . . . consult those documents ‘to discover what the defendant

actually did.’” Howard, 742 F.3d at 1347 (quoting Descamps, 570 U.S. at 268).



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      Significantly, the modified categorical approach “preserves the categorical

approach’s basic method,” Descamps, 570 U.S. at 263, since the sentencing court

ultimately asks whether the records of the defendant’s prior case show that, though

convicted of a divisible statute, he was “necessarily convicted” of a particular

provision within that divisible statute that is a crime of violence. Choizilme v. United

States Attorney General, 886 F.3d 1016, 1023 (11th Cir. 2018) (emphasis added)

(citing Mathis, 136 S. Ct. at 2249). So we have held that the modified categorical

approach requires us to first determine “‘which statutory phrase the defendant was

necessarily convicted under,’” and if we can do so, to then ask whether that statutory

provision defined a crime of violence, using the categorical approach. United States

v. Davis, 875 F.3d 592, 598 (11th Cir. 2017) (emphasis added) (quoting Howard,

742 F.3d at 1345).

      On the record here, as shown in the next section, the Shepard documents do

not allow us to conclude that Gandy was “necessarily convicted under” a particular

statutory phrase within § 784.03. For that reason, the panel opinion’s determination

that Gandy was “necessarily convicted” of bodily-harm battery is incorrect.

                                          II.

      In concluding Gandy was “necessarily convicted” of bodily-harm battery and

affirming Gandy’s sentence, the panel relies on the arrest report in two ways that the

modified categorical approach does not permit, even though the report was



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incorporated “as a factual basis” for the plea. First, the panel opinion appears to

contend that where, as here, the factual basis for an offense satisfies the elements of

both a qualifying offense and a non-qualifying offense, the district court is entitled

to conclude that the defendant was “necessarily” convicted of the qualifying offense.

Maj Op. at 14. And second, the panel opinion seems to conclude that the officer’s

legal conclusion that Gandy committed bodily-harm battery, which appears in the

arrest report, means that Gandy was “necessarily” convicted of that offense. 3 Maj

Op. at 13–14.

       The panel opinion’s first apparent contention contravenes the Supreme

Court’s “demand for certainty” in determining a defendant’s prior offense of

conviction. Shepard, 544 U.S. at 21. It also conflicts with the Eighth Circuit’s well-

reasoned decision in United States v. Horse Looking, 828 F.3d 744 (8th Cir. 2016),

creating a circuit split on that issue.          And its second apparent contention is

inconsistent with fundamental principles of criminal procedure.

                                               A.

       I begin with the panel opinion’s apparent contention that, since the factual

basis for Gandy’s plea would have satisfied the elements of both bodily-harm battery

and touch-or-strike battery, the district court was entitled to conclude that Gandy’s


       3
         The officer’s actual statement was “Gandy . . . did knowingly and intentionally commit
the offense of Battery Causing Bodily Harm, as follows,” which preceded a description of the
particular facts demonstrating that Gandy’s actions, in fact, satisfied the element of that crime.


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conviction must have been for bodily-harm battery.           We have not previously

considered whether a factual basis that satisfies the elements of two crimes—one

that qualifies as a crime of violence and one that does not—suffices to show that a

defendant charged in the alternative with both crimes was “necessarily” convicted

of the qualifying crime. But the Eighth Circuit has. And in United States v. Horse

Looking, 828 F.3d 744 (8th Cir. 2016), a well-reasoned opinion in a case materially

indistinguishable from the one here, that court found that such a factual basis does

not—the opposite of today’s panel opinion’s conclusion.

      In Horse Looking, the defendant was charged with possessing a firearm after

having been previously convicted of a “misdemeanor crime of domestic violence.”

The applicable statute, in turn, defines that term as a crime that, as relevant here, has

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

deadly weapon.” 828 F.3d at 746; see 18 U.S.C. §§ 921(a)(33)(A)(ii), 922(g)(9).

On appeal to the Eighth Circuit, Horse Looking argued that the court should vacate

his conviction and dismiss the indictment because the predicate conviction in his

case, which was for South Dakota simple assault domestic violence, was not a

“misdemeanor crime of domestic violence” as defined by federal law. Horse

Looking, 828 F.3d at 746.

      As it turned out, the South Dakota simple-assault-domestic-violence statute

contained five divisible provisions, and Horse Looking was charged with three of



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them. Id. As relevant here, Horse Looking’s underlying South Dakota indictment

alleged that Horse Looking “(4) [a]ttempt[ed] by physical menace or credible threat

to put another in fear of imminent bodily harm, with or without the actual ability to

harm the other person,” or “(5) [i]ntentionally cause[d] bodily injury to another

which does not result in serious bodily injury.” Id.; see S.D. Codified Laws § 22-

18-1. Before the Eighth Circuit, the parties agreed that a conviction under subsection

(5) of the South Dakota statute met the federal definition of a “misdemeanor crime

of domestic violence” and that a conviction under subsection (4) did not. Id. at 747.

      Applying the modified categorical approach, the court looked to the South

Dakota charging and sentencing documents to determine whether Horse Looking

had been convicted of subsection (4) or (5), or both. Id. at 747. But those documents

revealed only a conviction for violating the statute as a whole, without identifying

any particular subsection of conviction. Id.

      Continuing with the modified categorical approach, the Eighth Circuit next

examined the plea colloquy in Horse Looking’s South Dakota case. In that colloquy,

Horse Looking had said that he and his wife “got into an argument and she became

physical and she cut me and I pushed her.” Id. at 748. Horse Looking further

explained that when he “pushed” his wife, “she fell down.” Id. Finally, Horse

Looking’s attorney volunteered that Horse Looking’s wife had “testified that she had

some abrasions on her ankle or knee.” Id.



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      Based on this factual recitation, the Eighth Circuit concluded that the colloquy

“establishe[d] that Horse Looking could have been convicted under subsection (5),”

which was a misdemeanor crime of domestic violence. Id. at 748 (emphasis in

original). “But,” the court continued, “the colloquy does not exclude the possibility

that Horse Looking was convicted under subsection (4),” which was not a

misdemeanor crime of violence. Id. at 748. And since the court also could not “say

that convictions under the two alternatives are mutually exclusive,” it acknowledged

it could not determine that the factual basis for Horse Looking’s plea necessarily

excluded one of the subsections of the statute as the offense of his conviction. Id.

      So the court concluded that “the judicial record d[id] not establish that Horse

Looking necessarily was convicted of” the qualifying part of the South Dakota

statute. Id. at 749. Ultimately, then, because “the state court did not specify which

alternative was the basis for conviction,” the Eighth Circuit determined that the

government could not establish that Horse Looking had been convicted of a

“misdemeanor crime of domestic violence.” Id. (emphasis added). That Horse

Looking “could have” been convicted of a qualifying offense, the court said, did not

meet the Supreme Court’s repeated “‘demand for certainty’” when it came to

determining whether a defendant had, in fact, been previously convicted of a

qualifying predicate offense. Id. at 748-49 (quoting Mathis, 136 S. Ct. at 2256-57;

citing Descamps, 570 U.S. at 272; Shepard, 544 U.S. at 21; Taylor, 495 U.S. at 602).



                                         27
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      Gandy’s case presents the same problem, and we should have resolved it in

the same way. Here, as in Horse Looking, the judgment and sentencing documents

indicate that Gandy was convicted of a general offense, without specifying which

particular subsection of that general offense is the offense of conviction. And like

Horse Looking, Gandy pled guilty to a charging instrument that contained both

qualifying and non-qualifying offenses. Also like Horse Looking, Gandy admitted

to conduct that satisfied the elements of both the qualifying offense and the non-

qualifying offense. Neither the South Dakota court in Horse Looking’s case nor the

Florida court in Gandy’s case specified whether the defendant’s case was for the

qualifying subsection or the non-qualifying subsection. And finally, just as was the

case with the factual recitation in Horse Looking, the statement of Gandy’s actions

contained in the arrest report does not exclude the possibility that Gandy committed

one of the two crimes ultimately charged in the alternative. So like the Eighth

Circuit, we should have concluded that Gandy’s past conviction was not

“necessarily” for a qualifying offense.

      Indeed, the Eighth Circuit did exactly what Supreme Court precedent requires

in applying the modified categorical approach. Unfortunately, though, today we do




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not. 4 And as a result, we arrive at the incorrect answer and create a circuit split in

the process.

                                                 B.

       Nor, as the panel opinion seems to suggest, can we find the answer to our

dilemma by relying on the officer’s arrest-report legal conclusion that Gandy

committed bodily-harm battery, which he offered to identify his legal authority to

make the arrest. It’s not that we can’t consult the arrest report to help us ascertain

the factual basis for Gandy’s crime of conviction; we can, since Gandy agreed that

the arrest report provided a “factual basis” for his plea. But to paraphrase Inigo

Montoya in The Princess Bride, I do not think the presence of the officer’s statement

in the arrest report means what the panel opinion thinks it means.5 See Mandy

Patinkin: Inigo Montoya, IMDb.com, https://www.imdb.com/title/tt0093779/

characters/nm0001597 (last visited Mar. 5, 2019). This is so for two independent

reasons: (1) an officer’s statement in his arrest report providing a legal conclusion

of the offense for which he is arresting a person is not a part of the “factual basis”



       4
          I can appreciate the Eighth Circuit’s concern that the “absence of definitive records
frustrates the application of the modified categorical approach.” Id. at 749. But as the Eighth
Circuit nonetheless correctly observed, “the Supreme Court has made clear that the vagaries of
state court recordkeeping do not justify a different analysis.” Id. (citing Johnson, 559 U.S. at 145;
Shepard, 544 U.S. at 22-23).
        5
          Montoya’s actual quotation, which he offers in response to the character Vizzini’s
repeated invocation of the word “inconceivable,” is “You keep using that word. I do not think it
means what you think it means.”                 Mandy Patinkin: Inigo Montoya, IMDb.com,
https://www.imdb.com/title/tt0093779/characters/nm0001597 (last visited Mar. 5, 2019).


                                                 29
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demonstrating that the defendant, in fact, pled guilty to that particular crime, even

when the arrest report is adopted “as a factual basis” for the guilty plea; and (2) only

the court, not the arresting officer, has the power to adjudicate a defendant convicted

of a crime.

      To explain why, I review the purpose of the arresting officer’s report in the

context of the plea proceeding in Gandy’s Florida case. The arresting officer’s report

was incorporated by reference to the sentence recommendation only “as a factual

basis” for Gandy’s plea. And the report contained both statements of fact—reporting

the actions Gandy took that resulted in his arrest—and the officer’s statement of the

crime he decided to arrest Gandy for—bodily-harm battery. But the arresting

officer’s statement of the crime he arrested Gandy for was not a part of the “factual

basis” for Gandy’s plea. Rather, it served only the purpose of identifying the crime

for which the officer arrested Gandy.

      To understand the impact of the arrest report’s limited purpose, we must

consider the role of the “factual basis.” Florida Rule of Criminal Procedure 3.170

requires a court to determine that, among other things, a “factual basis for the plea”

exists before the court may accept a plea. Satisfying this requirement demands the

court “ensure that the facts of the case fit the offense with which the defendant is

charged.” Williams v. State, 316 So. 2d 267, 271 (Fla. 1975). So merely repeating

that the defendant committed a particular crime or saying that the defendant



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committed a specific element of a given crime does not accomplish this task. Rather,

the “factual basis” must provide the “factual information necessary to establish the

elements of the offense.” Id. at 273.

      In applying these concepts, we start with “the offense with which [Gandy]

[was] charged.” Id. at 271. Here, Gandy was charged in the alternative with having

committed bodily-harm battery or touch-or-strike battery.

      Two elements compose touch-or-strike battery:              “(1) actually and

intentionally touching or striking another person; and (2) [doing so] against the will

of the other person.” Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2008). Among

others, the following facts from the arrest report established the two elements of

touch-or-strike battery: a video recording showed that Gandy “walk[ed] up behind

[the victim] and unprovokedly struck [the victim] in the face which caused [the

victim] to fall down to the ground. [Gandy] then continued to strike [the victim]

multiple times in the head.” The report further memorialized the victim’s statement

that he “wished to pursue criminal charges” against Gandy.

      As for bodily-harm battery, a single element—that the defendant

“intentionally caused bodily harm” to the victim—comprises that crime. See Fla.

Jury Instruction 8.3 Battery. And along with the arrest report’s recounting of the

specific injuries the victim incurred as a result of Gandy’s actions, the same facts

from the arrest report that showed Gandy undertook actions that meet the elements



                                         31
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of touch-or-strike battery likewise demonstrated that Gandy engaged in actions that

check off bodily-harm battery’s single element.

      So the facts in the arrest report establishing that Gandy undertook actions that

specifically satisfied the elements of each charged crime comprise the “factual basis”

for Gandy’s plea;     they showed the particular actions Gandy committed that

supported the conclusions that he “actually and intentionally touch[ed] or str[uck]

another person,” “against the will of the other person” and that he “intentionally

caused bodily harm” to the victim. They did not simply restate an element of a

particular crime or the crime for which Gandy was arrested.

      By contrast, the officer’s legal conclusion that Gandy intentionally caused

bodily harm to another did no more than restate a crime. It did not “provide the

factual information necessary to establish the elements of the offense.” Williams,

316 So. 2d at 273. And since it did not do so, it did not serve as part of the factual

basis for Gandy’s plea.

      Nor do the Florida cases cited in the panel’s decision support its position that

legal conclusions may properly be part of the factual basis for a Florida guilty plea.

See Maj. Op. at 14–15 (citing Johnson v. State, 22 So. 3d 840 (Fla. Dist. Ct. App.

2009); Toson v. State, 864 So. 2d 552 (Fla. Dist. Ct. App. 2004); Hayden v. State,

833 So. 2d 275 (Fla. Dist. Ct. App. 2002)). Critically, the sufficiency of the factual




                                         32
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bases for the guilty pleas of the defendants in those cases was not at issue. 6 So those

cases can shed no light on whether legal conclusions constitute part of the “factual

basis” for a defendant’s guilty plea. Cf. United States v. L. A. Tucker Truck Lines,

Inc., 344 U.S. 33, 37-38 (1952) (noting that where a particular issue was neither

raised in the briefs or argument nor discussed in the opinion of the Court, the case

could not serve as binding precedent on the particular point).

       United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008) (“Almazan-

Becerra II”), similarly does not help the panel opinion, as the panel’s reliance on it

rests on another Inigo Montoya type of misunderstanding. The panel cites Almazan-

Becerra for the notion that “a defendant’s agreement to a police report as a factual

basis includes his agreement to the report’s description of the offense,” by which the

panel opinion means the arresting officer’s statement of the offense for which the

defendant is arrested. Maj. Op. at 16. But Almazan-Becerra did not use the word


       6
          Rather, in Johnson, the appellant sought to withdraw her guilty plea because she claimed
that she did not understand the consequences of the plea agreement and that she was coerced into
pleading guilty. See 22 So. 3d at 843. And in Toson, the appellant raised the legal argument that
it was fundamental error for him to have been convicted of both dealing in stolen property and
grand theft where the conduct involved the stealing of the same property during the same scheme
or course of conduct, since Fla. Stat. § 812.025 “expressly prohibits a trial court from adjudicating
a defendant guilty of theft and dealing in stolen property in connection with one scheme or course
of conduct.” 864 So. 2d at 555. Finally, in Hayden, the appellant asserted that the state trial court
erred in sentencing him to a ten-year minimum mandatory term under Fla. Stat. § 775.087(2)(a)(i)
because the State’s charging document failed to allege that he personally possessed a firearm
during the commission of the felony, and Florida courts have held that the State must plead and
prove that the defendant had actual physical possession of the firearm during the commission of
the felony before the court can impose the § 775.087(2) minimum mandatory sentence. 833 So.
2d at 277. In short, none of these appeals in any way challenged the sufficiency of the factual
bases supporting the underlying guilty pleas.


                                                 33
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“describe” in the way that the panel opinion seems to think it did. Rather, it used

that word to refer collectively to the specific facts concerning Almazan-Becerra’s

actions that the reports at issue in that case documented.

      In Almazan-Becerra, the federal court had to determine whether Almazan-

Becerra had previously been convicted of a drug-trafficking crime to ascertain

whether a sentencing enhancement applied to him. See Almazan-Becerra, 537 F.3d

at 1095. The state complaint to which Almazan-Becerra had pled guilty, as relevant

here, charged in the alternative sale or transport of marijuana, under the same general

statute. See United States v. Almazan-Becerra, 482 F.3d 1085, 1089 (9th Cir. 2007)

(“Almazan-Becerra I”). Sale of marijuana was a drug-trafficking offense, while

transport was not. See Almazan-Becerra II, 537 F.3d at 1099.

      But since Almazan-Becerra stipulated as a factual basis for his plea to the

police reports concerning his arrest, the court considered the contents of the reports

to see whether they could resolve whether Almazan-Becerra had been convicted of

sale or transport of marijuana. Id. at 1099 & 1099 n.2. In so doing, it said that “the

police reports unequivocally describe Almazan-Becerra’s offensive conduct as

selling marijuana . . . .” Id. at 1099. But the court simultaneously expressly

“reject[ed]” Almazan-Becerra’s contention that the police reports also “describe[d]

the offense of transporting marijuana . . . because the reports state that the police

found a bindle of marijuana on the ground where Almazan-Becerra had previously



                                          34
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been walking.” Id. at 1099 n.2 (emphasis added). Rather, the court explained,

“[W]hen read as a whole, [the reports] describe only one type of offense—selling

marijuana. The bindle found on the ground was simply one of several pieces of

evidence of that offense.” Id. (emphasis added).

      So contrary to the panel opinion’s suggestion, the Ninth Circuit’s explanation

for why the reports could not also “describe the offense of transporting marijuana”

shows that it did not employ that phrase to refer to an officer’s statement of the

offense for which he arrested the defendant, but rather to the defendant’s specific

actions documented in the reports. See id. at 1099 n.2. Put another way, the Ninth

Circuit effectively determined that the particular actions memorialized in the police

reports could, in good faith, support only the charge of sale.

      But even not considering the principle that an officer’s statement identifying

the crime for which he arrests a person cannot constitute a part of the “factual basis,”

a second reason also compels the determination that we cannot view the arresting

officer’s legal conclusion as dispositive. While the arresting officer may have

accurately stated the crime for which he arrested Gandy, the officer was not

responsible for Gandy’s prosecution. That was up to the State Attorney. See Fla.

Stat. § 932.47. It was the State Attorney who selected the charge against him. See

id. And once the State Attorney charged Gandy, only the court could adjudicate

Gandy guilty of that charge. Fla. R. Crim. P. 3.170.



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       The following hypothetical illustrates this point more bluntly:

       Suppose that the victim in Gandy’s case tragically suffered permanent brain

damage when Gandy hit him. Florida courts have held such an injury constitutes

“great bodily harm,” an element of aggravated battery. Fla. Stat. § 784.045; see

Montero v. State, 225 So. 3d 340, 343 (Fla. Dist. Ct. App. 2017). Under our

hypothetical, suppose the officer arrested Gandy for aggravated battery, opining in

his arrest report that Gandy “did commit the offense of Aggravated Battery Causing

Great Bodily Harm, as follows,” before setting forth the specific facts supporting

Gandy’s arrest for that crime. Then suppose that the prosecutor decided to charge

only touch-or-strike battery or bodily-harm battery under Fla. Stat. § 784.03—just

like here—and she did not charge aggravated battery, in violation of Fla. Stat. §

784.045. Finally, suppose that, just like here, Gandy pled guilty to the charged crime

and that the court adjudicated him guilty of it.

       Under the circumstances of that hypothetical, could a later sentencing court

correctly surmise that Gandy’s conviction was “necessarily” for aggravated battery?

       Inconceivable!7

       The officer’s statement that Gandy committed the crime for which he was

arrested could not define the offense of conviction. Only the court could do that


       7
         To be clear, “inconceivable” means exactly what I think it means: “Impossible to
comprehend or grasp fully,” or, “[s]o unlikely or surprising as to have been thought impossible;
unbelievable.” Inconceivable, The American Heritage Dictionary (5th ed. 2011).


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because only the court had the power to adjudicate Gandy guilty and enter a

judgment of conviction on the charge. Under this hypothetical scenario, the court

identified Fla. Stat. § 784.03—not Fla. Stat. § 784.045—as the statute of conviction.

And the factual basis for Gandy’s plea, with its limited purpose, could not alter the

court’s judgment and somehow render Gandy convicted of § 784.045, even though

the court relied on the arresting officer’s report as a factual basis for Gandy’s plea.

So even assuming that the officer’s opinion were a part of the factual basis for

Gandy’s plea, it could not have shed any light on which offense the Florida court

convicted Gandy of.

      That principle—that the court, not the arresting officer, adjudicates guilt—

applies equally to the case before us. The officer’s conclusion that Gandy committed

bodily-harm battery, and his decision to arrest him on that basis, cannot demonstrate

that the Florida court convicted Gandy of that particular offense. Only the Florida

court had the authority to determine the crime of Gandy’s conviction. And here, we

cannot ascertain the crime for which the Florida court convicted Gandy, since the

information charged two crimes in the alternative, the factual basis for the plea

satisfied the elements of both offenses, and the Florida court’s judgment reflected

only that Gandy was convicted of the general crime of battery under § 784.03.

      To find otherwise would undermine the role of the Florida courts in

adjudicating defendants guilty of Florida crimes.        Only the Florida court can



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determine the offense of conviction. But the panel opinion’s reliance, for the

purpose of identifying Gandy’s crime of conviction, on the arresting officer’s legal

conclusion that Gandy committed the offense of bodily-harm battery steals that role

from the Florida court and gives it to the arresting officer. That is not something we

should be doing.

      We are concerned only with what the Florida court convicted Gandy of. And

on this record, we are bound to conclude that the Florida court did not “necessarily”

convict him of a crime of violence. While it may be tempting to jump to the

conclusion that Gandy was convicted of bodily-harm battery based on the officer’s

legal conclusion in his report, we are not authorized to modify a Florida court’s

judgment of conviction.

                                         III.

      For these reasons, I respectfully dissent. In my view, when we apply the

modified categorical approach, Gandy’s prior conviction for violating Fla. Stat. §

784.03 does not qualify as a crime of violence, so the district court incorrectly

sentenced him as a career offender.




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