               Case: 12-12013       Date Filed: 05/23/2013       Page: 1 of 14


                                                                          [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                            ___________________________

                                    No. 12-12013
                            ___________________________

                        D. C. Docket No. 2:10-cr-14029-DLG-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff - Appellee,

                                            versus

PEDRO DIAZ-CALDERONE,
a.k.a. Pedro Calderone Diaz,
a.k.a. Calderon Pedro
a.k.a. Pedro Diaz,

                                                                  Defendant - Appellant.

                            ___________________________

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

                                       (May 23, 2013)

Before DUBINA, Chief Judge, BARKETT and KLEINFELD, * Circuit Judges.
*
  The Honorable Andrew J. Kleinfeld, Senior United States Circuit Judge for the Ninth Circuit,
sitting by designation.
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KLEINFELD, Circuit Judge:




          We address whether, in the circumstances of this case, facts alleged in

police officers’ affidavits established a sufficient basis for a “crime of violence”

sentencing enhancement.



                                              FACTS



          Diaz-Calderone’s conviction and sentence before us was for being a

deported alien found in or having reentered the United States without permission. 1

He received a sentence of 48 months’ imprisonment, towards the low end of his

guidelines range of 46-57 months. His guidelines range would have been

considerably lower had he not received a sixteen level enhancement for a prior

conviction for a “crime of violence.” 2 The question raised in this appeal is


1
    8 U.S.C. § 1326(a), (b)(2).
2
  U.S.S.G. § 2L1.2(b)(1) (“If the defendant previously was deported, or unlawfully remained in
the United States, after – (A) a conviction for a felony that is . . . (ii) a crime of violence . . .
increase by 16 levels if the conviction receives criminal history points . . . .”).

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whether the sentencing judge erred when he applied the modified categorical

approach and determined that Diaz-Calderone had committed a prior “crime of

violence” under U.S.S.G. § 2L1.2. 3



          Diaz-Calderone’s prior convictions were for a State of Florida crime,

“aggravated battery,” consisting of battery upon a pregnant victim whom the

perpetrator knew or should have known was pregnant. 4 The complication in this

case is that Florida battery, even aggravated battery upon a pregnant woman, need

not be violent. It can be accomplished merely by an intentional touching against

the victim’s will. Florida courts interpret the aggravated battery upon a pregnant

victim statute to mean that the defendant must 1) commit simple battery 2) upon a

pregnant victim that they knew or should have known was pregnant. 5 Florida

simple battery “occurs when a person: 1. Actually and intentionally touches or



3
  As relevant to this appeal, “crime of violence” means any “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 cmt. n.1(B)(iii).
4
  Fla. Stat. 784.045(1)(b) (“A person commits aggravated battery if the person who was the
victim of the battery was pregnant at the time of the offense and the offender knew or should
have known that the victim was pregnant.”).
5
    Small v. State, 889 So.2d 862, 863 (Fla. Dist. Ct. App. 2004).

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strikes another person against the will of the other; or 2. Intentionally causes

bodily harm to another person.” 6 Florida courts interpret simple battery to include

“any intentional touching, no matter how slight.” 7 Therefore, aggravated battery

upon a pregnant woman can be accomplished by 1) intentional touching, including

slight contact; 2) striking; or 3) intentionally causing bodily harm.



          Conceivably a grandmotherly stranger in a shopping mall or a lady at work

might see a pregnant woman, say “oh how adorable, may I feel?” and, without

waiting for an answer, touch the pregnant woman’s stomach, much to the

annoyance of the pregnant woman. That would be “aggravated battery” under the

Florida statute, but not a “crime of violence” under the federal sentencing

guidelines. Thus a Florida conviction for aggravated battery on a pregnant woman

is not a categorical crime of violence for sentencing guidelines purposes. The

district court correctly used the modified categorical approach instead.




6
    Fla. Stat. 784.03(1)(a).
7
    State v. Hearns, 961 So.2d 211, 218-19 (Fla. 2007).

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         Diaz-Calderone’s Florida charge and conviction do not by themselves

establish just what he did. He pleaded nolo contendere to two informations, both

of which say that he committed aggravated battery, on March 14 and June 16,

2006, on the same pregnant woman. Both informations charged in the disjunctive

that he “did intentionally touch or strike [the victim] against that person’s will or

did intentionally cause bodily harm to said person . . . .” 8 He pleaded nolo

contendere and was convicted on his plea. By itself, those facts are consistent

with merely touching, which would not be a “crime of violence,” as well as

possibly striking or causing bodily harm, which would be a “crime of violence.”



         To support treating the batteries as crimes of violence, the prosecutor in this

federal case submitted as exhibits sworn affidavits from police officers describing

the events as violent, and not merely unwanted touching. 9 The complaint affidavit

by the investigating police officer for the March incident says that the pregnant

victim told him that her boyfriend Diaz-Calderone got angry at her because she


8
    Emphases added.
9
 These affidavits are apparently routinely used when a Florida police officer arrests someone
without a warrant, or makes a criminal complaint. Magistrates and judges look to them to
determine wether or not probable cause for prosecution exists. See United States v. Rosales-
Bruno, 676 F.3d 1017, 1022 (11th Cir. 2012); Fla. R. Crim. P. 3.133(a)(3).

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left the car window open when they went into the store, so he hit her in the arm,

she hit him back, she got out her cell phone to call the police, and he knocked it

out of her hand. He continued hitting her, she took off her shoes and used them to

hit him, and he left. The arrest affidavit for the June incident says that the

pregnant victim told the police officer that Diaz-Calderone struck her several

times in the arm and stomach, when they argued about a recent dance. The officer

observed that her stomach was badly bruised.



      The district court applied the modified categorical approach, but did not rely

on the affidavits themselves for his decision to add the guidelines enhancement for

a crime of violence. Instead, the court relied upon statements made in Diaz-

Calderone’s change of plea proceeding in state court for the two aggravated

battery on a pregnant woman cases. The government submitted an audio

recording of this plea as an exhibit, and the sentencing judge in this federal case

“listened very carefully to the recording.” The judge found that in the colloquy,

“the defendant assented to the facts which would make this a violent offense” and

that defense counsel affirmed that the arrest affidavit provided a factual basis for

Diaz-Calderone’s plea.

      Diaz-Calderone argues that the district court should have determined that

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Florida aggravated battery was not categorically a crime of violence, and stopped

there. He objects to the court’s use of the modified categorical approach, and says

that the court should not have made any findings based on the arrest affidavit. He

argues that since he pleaded nolo contendere to the Florida aggravated batteries,

he should be deemed to have admitted nothing, and the plea to have established

nothing, about whether they were violent.



                                       ANALYSIS



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

‘crime of violence’ under the Sentencing Guidelines.”10 We review the district

court’s findings of fact for clear error.11 As stated above, the Florida offense of

aggravated battery upon a pregnant woman is not categorically a crime of

violence. We had held otherwise in United States v. Llanos-Agostadero,12 but the




10
     Rosales-Bruno, 676 F.3d 1017 at 1020 (citation and quotation marks omitted).
11
  See United States v. Cruz, 11th Cir. 2013, __ F.3d__, (Nos. 11–12568, 11–12441, March 26,
2013) (“We review the district court’s legal conclusions regarding the Sentencing Guidelines de
novo, and its factual findings for clear error.”).
12
     United States v. Llanos-Agostadero, 486 F.3d 1194, 1198 (11th Cir. 2007).

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Supreme Court’s decision in Johnson v. United States13 overruled Llanos-

Agostadero on this point.14 The court in Llanos-Agostadero based its decision on

the understanding that the Florida offense of simple battery was a categorical

crime of violence under U.S.S.G. § 2L1.2(b), as it had as an element “the use of

physical force.”15 But in Johnson, the Supreme Court held that even a slight

touching, such as an unwanted tap on the shoulder, could satisfy the elements of

Florida simple battery, and that therefore Florida simple battery did not require the

use of physical force.16 Johnson dealt with the Armed Career Criminal Act’s

definition of a violent felony, not the sentencing guidelines’ definition of a crime

of violence. However, United States v. Williams17 makes clear that this distinction

makes no difference.18

13
     Johnson v. United States, 130 S. Ct. 1265 (2010).
14
  The 10th and 5th Circuits have held that Florida aggravated battery on a pregnant woman is
not a categorical crime of violence. United States v. Barraza-Ramos, 550 F.3d 1246, 1249-51
(10th Cir. 2008); United States v. Gonzalez-Chavez, 432 F.3d 334, 338 (5th Cir. 2005).
15
     Llanos-Agostadero, 486 F.3d at 1196-98.
16
     Johnson, 130 S.Ct. at 1269-71.
17
     United States v. Williams, 609 F.3d 1168 (11th Cir. 2010).
18
  Id. at 1169-70 (“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 that present in Johnson, we have no reason to believe that the words
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          But Diaz-Calderone is mistaken in arguing that that should be the end of the

inquiry, and that the district court should not have used the modified categorical

approach in this case. Diaz-Calderone argues that Florida’s aggravated battery

statute is not ambiguous, and does not have “as an element the use . . . of physical

force.”19 He argues that the phrase “different statutory phrases” in United States v.

Palomino Garcia,20 implies a negative pregnant, that in the absence of such

“different statutory phrases” there can be no ambiguity justifying application of

the modified categorical approach. But because the word “battery” in Florida’s

aggravated battery upon a pregnant woman statute encompasses a mix of forceful

and non-forceful conduct, the statute is ambiguous. The district court was correct

to use the modified categorical approach.21




present in the ACCA have a different meaning than the same words used in the sentencing
guidelines.”).
19
     U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
20
   United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010) (“[W]hen the law
under which a defendant has been convicted contains different statutory phrases – some of which
require the use of force and some of which do not – the judgment is amgibuous and we apply a
‘modified categorical approach.’”) (citing Johnson, 130 S. Ct. at 1273).
21
     See Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1339-40 (11th Cir. 2013).

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           United States v. Rosales-Bruno22 holds that, like police reports, Florida

arrest affidavits cannot be used in the modified categorical inquiry because they do

not establish with sufficient certainty the conduct involved in the state crime for

the modied categorical approach.23 Florida complaint affidavits are not

distinguishable from arrest affidavits for this purpose. Thus the two affidavits

about what the victim told investigating police officers cannot, by themselves,

establish a predicate for the crime of violence sentencing enhancement. Such

affidavits serve useful purposes, such as determining whether there is probable

cause for an arrest or charges, and guiding investigation by prosecutors and

defense attorneys, but they do not establish what the convicted defendant did with

sufficient certainty for the enhancement. “We will not rely on the arrest affidavit

in making this determination. Evidence used to determine whether a prior guilty

plea supported a conviction for a violent felony must ‘be confined to records of

the convicting court approaching the certainty of the record of conviction.’”24

Witnesses may be mistaken or may lie to the police, police may misunderstand

what upset people are trying to tell them, and police reports may tell only part of

22
     Rosales-Bruno, 676 F.3d 1017.
23
     Id. at 1022.
24
     Id. (quoting Shepard v. United States, 544 U.S. 13, 23, 125 S. Ct. 1254, 1261 (2005)).

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the story.



          But the district judge in this case did not make the mistake of treating the

two affidavits as establishing how Diaz-Calderone committed the two batteries on

a pregnant woman. Nor did the judge treat the nolo contendere plea as though it

had been an admission, by itself, of anything at all. Instead he listened carefully

to the change of plea proceedings. Shepard v. United States25 and the cases

following it allow a sentencing judge engaging in the modified categorical

approach to consult a “transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by the defendant, or . . . some

comparable judicial record of this information.”26 The cases generally refer to the

“transcript” of the plea colloquy, and there was no transcript here, but listening to

the actual proceedings is even better than reading a transcript.



          We have listened to the recording carefully ourselves, on the CD that was

admitted as an exhibit. The state judge, following the Florida rule on acceptance



25
     Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254.
26
     Rosales-Bruno, 676 F.3d at 1020 (quoting Shepard, 544 U.S. at 26, 125 S. Ct. at 1263).

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of a nolo contendere plea,27 asked Diaz-Calderone whether he was acknowledging

his guilt, or choosing to plead nolo contendere because he felt it was in his best

interest. After a lengthy discussion with his attorney, Diaz-Calderone said he was

guilty. The judge then asked whether the arrest affidavit established a factual

basis for the plea, and Diaz-Calderone’s attorney said that it did. In the context in

which the affidavit was discussed, Diaz-Calderone’s answer apparently meant “I

did what the affidavit says I did.” The district court made a finding of fact, not

clearly erroneous, that during his plea colloquy Diaz-Calderone “assented to the

facts which would make this a violent offense.” A Florida court finding that the

offense was committed violently is not needed where the Shepard materials enable

the district court to make findings.



       True, were the statement “I’m guilty” taken in isolation, it would not

necessarily admit violence.28 And were the concession that the arrest affidavit

27
   Fla. R. Crim. P. 3.172(e) (“Before the trial judge accepts a guilty or nolo contendere plea, the
judge must determine that the defendant either (1) acknowledges his or her guilt or (2)
acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his
or her innocence.”).
28
  See Rosales-Bruno, 676 F.3d at 1020 (Stating that under the modified categorical approach,
“we limit our review to reliable material that allow us to determine whether the particular
conviction ‘necessarily’ rested on a fact establishing the crime as a violent offense.”) (quoting
Shepard, 544 U.S. at 21, 125 S. Ct. at 1260).

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established a factual basis taken in isolation, that too might not necessarily admit

violence. Sometimes the defense concedes that the prosecution’s offer of proof

would establish a factual basis for the plea even though not admitting anything.

The Florida Supreme Court in Williams v. State29 explained that the “sole

purpose” of requiring a factual basis for a plea is

          to determine the accuracy of the plea, thereby avoiding a mistake.

          The trial judge, under this provision, is to ensure that the facts of the

          case fit the offense with which the defendant is charged. The purpose

          has been more fully expressed in the committee notes to Federal Rule

          11 . . . . “Such inquiry should, e.g., protect a defendant who is in the

          position of pleading voluntarily with an understanding of the nature

          of the charge but without realizing that his conduct does not actually

          fall within the charge[.]” . . . Clearly, the purpose is to avoid a

          defendant’s mistakenly entering a plea of guilty to the wrong

          offense.30

And Florida expressly provides, as stated above, that a defendant may plead nolo

contendere because he feels it to be in his best interest even though he does not

29
     Williams v. State, 316 So.2d 267 (Fla. 1975).
30
     Id. at 271-72.

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admit guilt.31 But combining Diaz-Calderone’s admission of guilt with counsel’s

statement that the affidavit established a factual basis for his plea established a

sufficient basis for the district court’s finding of fact that Diaz-Calderone was

indeed admitting that he did what the affidavit said.



       Once it is established, as it is, that Diaz-Calderone admitted that the way he

committed aggravated battery on a pregnant victim was by striking the victim, as

his arrest affidavit says, the case is over. He committed a prior crime of violence,

and the district court properly imposed a sixteen-level sentencing enhancement.


       AFFIRMED.




31
  Fla. R. Crim. P. 3.172(e); Vinson v. State, 345 So.2d 711, 715 (Fla. 1977) (“A plea of nolo
contendere does not admit the allegations of the charge in a technical sense but only says that the
defendant does not choose to defend. It is merely a formal declaration that the accused will not
contest the charges with the prosecutor and is in the nature of a compromise between the state
and the accused.”) (citations omitted).

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