In U.S. v. Diaz Calderone, the defendant was convicted and sentenced for the federal crime of being found in the United States after having been deported. The issue here is whether a prior Florida aggravated battery conviction should be classified as a “crime of violence” under the sentencing guidelines to warrant a sentence enhancement. The 11th Circuit found it was, and in this appeal the defendant challenged the district court’s application of the “modified categorical” approach in determining that Diaz Calderone’s prior was a crime of violence.
The defendant’s aggravated battery conviction, he was specifically charged with the battery on a pregnant victim whom the perpetrator knew or should have known was pregnant. Under the Florida statute for battery, an aggravated battery upon a pregnant woman need not be violent and can be committed merely by intentional touching the pregnant victim against her will by committing a simple battery. Simple battery occurs when a person intentionally touches or strikes another person against their will, or intentionally causes bodily harm to another person. Therefore under Florida law, aggravated battery upon a pregnant woman can be accomplished by: 1) intentional touching, including slight contact; 2) striking; or 3) intentionally causing bodily harm. The 11th Circuit determined that a conviction for aggravated battery on a pregnant woman is not a categorical crime of violence because the slightest contact could be an aggravated felony under the Florida statute but not a crime of violence under the federal sentencing guidelines for sentencing guidelines purposes. The district court correctly applied the modified categorical approach.
The charges and conviction did not establish what Diaz-Calderone did because he pleaded nolo contendere to an information which charged him in the disjunctive with intentionally touching or striking the victim against the person’s will or intentionally causing bodily harm to the victim. Standing alone the charges are consistent with either mere touching, which would not be a crime of violence, or with causing bodily harm, which would be a crime of violence.
In deciding the conviction was a crime of violence, the district court did not rely on the sworn affidavits from police officers. Sworn affidavits containing statements of witnesses are not necessarily reliable or credible. Where the modified categorical approach is used, Florida arrest affidavits cannot be used because they do not establish with sufficient certainty the conduct involved in the state crime. A complaints or affidavits do not establish “with sufficient certainty for the enhancement.” Here the district judge did not rely on the affidavits nor did the judge treat the nolo contendere plea as an admission. Instead the court relied on Diaz-Calderone’s own statements made in his change of plea hearing in state court. The government submitted an audio recording of the plea in which he agreed with the factual statements that made his offense a violent felony. The district court and the 11th Circuit panel listened to the change of plea proceedings by the state court judge and confirmed the colloquy with the defendant contained an admission by the defendant that the affidavit supporting the complaint was correct, thus establishing a crime of violence.
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