United States v. Clifford B. Gandy, Jr.

917 F.3d 1333
Court of Appeals for the Eleventh Circuit·Decided March 6, 2019·No. 17-15035·Published·Cited by 18 cases

Opinions

WILLIAM PRYOR, Circuit Judge:

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, *133621 U.S.C. § 841(a)(1), (b)(1)(C)-(D) (Count 1); 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. § 784.03, are not divisible. And Gandy argued, based on Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (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, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Gandy calculated that his total sentencing range should be 144 to 165 months' imprisonment.

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United States v. Clifford B. Gandy, Jr., 917 F.3d 1333 (11th Cir. 2019).

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