USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10925 Non-Argument Calendar ________________________
D.C. Docket No. 3:19-cr-00096-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS A. TOOMER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(February 22, 2021)
Before WILSON, ROSENBAUM, and EDMONDSON, Circuit Judges. USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 2 of 8
PER CURIAM:
Dennis Toomer appeals his 240-month sentence, imposed after he pleaded
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), 924(e). Toomer contends the district court erred in enhancing his
sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).
No reversible error has been shown; we affirm.
Before sentencing, the probation officer prepared a presentence investigation
report (“PSI”). In pertinent part, the probation officer determined that Toomer
qualified as an armed career criminal based on four prior Florida felony
convictions: (1) a 2001 conviction for the sale of cocaine; (2) a 2003 conviction for
felony battery; (3) a 2007 conviction for resisting an officer with violence; and (4)
a 2012 conviction for felony battery.
Toomer objected to the PSI’s determination that he qualified for an ACCA-
enhanced sentence. Pertinent to this appeal,* Toomer argued that his 2003 and
2012 convictions for felony battery, in violation of Fla. Stat. § 784.03, were not
“violent felonies” under the ACCA.
* That Toomer’s convictions for the sale of cocaine and for resisting an officer with violence constitute qualifying convictions under the ACCA is undisputed. 2 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 3 of 8
At the sentencing hearing, the district court overruled Toomer’s objections
to his ACCA classification. After calculating a guidelines range of 210 to 262
months’ imprisonment, the district court imposed a sentence of 240 months.
We review de novo whether a prior conviction qualifies as a violent felony
under the ACCA. United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019).
We review the district court’s factual findings for clear error. United States v.
Diaz-Calderone, 716 F.3d 1345, 1348 (11th Cir. 2013).
The ACCA provides that a defendant who violates 18 U.S.C. § 922(g) and
who has 3 prior convictions for a violent felony or a serious drug offense (crimes
committed at different times) is subject to a 15-year statutory minimum sentence.
18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as one of several
enumerated crimes or as “any crime punishable by imprisonment for a term
exceeding one year” that “has as an element the use, attempted use, or threatened
use of physical force against the person of another.” Id. § 924(e)(2)(B).
In determining whether a prior conviction qualifies as a violent felony under
the ACCA, courts generally apply a categorical approach, looking “only to the fact
of conviction and the statutory definition of the prior offense, instead of the actual
facts underlying the defendant’s prior conviction.” See United States v. Robinson,
583 F.3d 1292, 1295 (11th Cir. 2009) (quotations omitted). When -- as in this case
3 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 4 of 8
-- the statute of conviction lists alternative statutory phrases that define different
crimes, courts apply a modified categorical approach. See Descamps v. United
States, 570 U.S. 254, 257 (2013); Curtis Johnson v. United States, 559 U.S. 133,
136 (2010) (stating that Fla. Stat. § 784.03 is a divisible statute subject to the
modified categorical approach).
The modified categorical approach allows for a limited inquiry into the facts
underlying the prior conviction to determine which alternative statutory phrase
formed the basis for the defendant’s conviction. Descamps, 570 U.S. at 263. The
district court may consult a limited class of documents, including the charging
document, the written plea agreement, the transcript of the plea colloquy, or any
“record of comparable findings of fact adopted by the defendant upon entering the
plea.” Shepard v. United States, 544 U.S. 13, 20-21, 26 (2005). We have
concluded that a document that is incorporated by reference in a plea agreement --
as the factual basis for the defendant’s guilty plea -- is a “comparable finding of
fact” that may be considered properly under Shepard. See United States v. Gandy,
917 F.3d 1333, 1340-42 (11th Cir. 2019).
Florida law provides that “[t]he offense of battery occurs when a person: (1)
[a]ctually and intentionally touches or strikes another person against the will of the
other; or (2) [i]ntentionally causes bodily harm to another person.” Fla. Stat.
4 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 5 of 8
784.03(1)(a). A battery committed by intentionally causing bodily harm
constitutes a violent felony under the ACCA. See Gandy, 917 F.3d at 1339-40
(concluding that Florida bodily-harm battery constitutes a “crime of violence”
under the Guidelines); United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008) (stating that the definition of “crime of violence” under the Guidelines is
analogous to the definition of “violent felony” under the ACCA).
On appeal, Toomer asserts that the government cannot prove that his 2003
and 2012 felony battery convictions involved the intentional causing of bodily
harm and, thus, the government failed to prove that Toomer had three qualifying
felonies under the ACCA. In particular, Toomer contends the district court erred
in relying on non-Shepard-approved documents to determine the nature of his
felony battery convictions.
About his 2003 felony battery conviction, Toomer challenges the district
court’s reliance on a document titled “Adult Probable Cause Affidavit.” The
second page of the document consists of an arrest warrant -- signed by a judge and
by the arresting officer -- and a probable cause statement describing an altercation
between Toomer and his 7.5-month pregnant girlfriend during which Toomer “did
push to the ground, pull along the floor and spit on the victim,” causing minor
injuries to the victim’s face and neck.
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USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10925 Non-Argument Calendar ________________________
D.C. Docket No. 3:19-cr-00096-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS A. TOOMER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(February 22, 2021)
Before WILSON, ROSENBAUM, and EDMONDSON, Circuit Judges. USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 2 of 8
PER CURIAM:
Dennis Toomer appeals his 240-month sentence, imposed after he pleaded
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), 924(e). Toomer contends the district court erred in enhancing his
sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).
No reversible error has been shown; we affirm.
Before sentencing, the probation officer prepared a presentence investigation
report (“PSI”). In pertinent part, the probation officer determined that Toomer
qualified as an armed career criminal based on four prior Florida felony
convictions: (1) a 2001 conviction for the sale of cocaine; (2) a 2003 conviction for
felony battery; (3) a 2007 conviction for resisting an officer with violence; and (4)
a 2012 conviction for felony battery.
Toomer objected to the PSI’s determination that he qualified for an ACCA-
enhanced sentence. Pertinent to this appeal,* Toomer argued that his 2003 and
2012 convictions for felony battery, in violation of Fla. Stat. § 784.03, were not
“violent felonies” under the ACCA.
* That Toomer’s convictions for the sale of cocaine and for resisting an officer with violence constitute qualifying convictions under the ACCA is undisputed. 2 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 3 of 8
At the sentencing hearing, the district court overruled Toomer’s objections
to his ACCA classification. After calculating a guidelines range of 210 to 262
months’ imprisonment, the district court imposed a sentence of 240 months.
We review de novo whether a prior conviction qualifies as a violent felony
under the ACCA. United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019).
We review the district court’s factual findings for clear error. United States v.
Diaz-Calderone, 716 F.3d 1345, 1348 (11th Cir. 2013).
The ACCA provides that a defendant who violates 18 U.S.C. § 922(g) and
who has 3 prior convictions for a violent felony or a serious drug offense (crimes
committed at different times) is subject to a 15-year statutory minimum sentence.
18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as one of several
enumerated crimes or as “any crime punishable by imprisonment for a term
exceeding one year” that “has as an element the use, attempted use, or threatened
use of physical force against the person of another.” Id. § 924(e)(2)(B).
In determining whether a prior conviction qualifies as a violent felony under
the ACCA, courts generally apply a categorical approach, looking “only to the fact
of conviction and the statutory definition of the prior offense, instead of the actual
facts underlying the defendant’s prior conviction.” See United States v. Robinson,
583 F.3d 1292, 1295 (11th Cir. 2009) (quotations omitted). When -- as in this case
3 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 4 of 8
-- the statute of conviction lists alternative statutory phrases that define different
crimes, courts apply a modified categorical approach. See Descamps v. United
States, 570 U.S. 254, 257 (2013); Curtis Johnson v. United States, 559 U.S. 133,
136 (2010) (stating that Fla. Stat. § 784.03 is a divisible statute subject to the
modified categorical approach).
The modified categorical approach allows for a limited inquiry into the facts
underlying the prior conviction to determine which alternative statutory phrase
formed the basis for the defendant’s conviction. Descamps, 570 U.S. at 263. The
district court may consult a limited class of documents, including the charging
document, the written plea agreement, the transcript of the plea colloquy, or any
“record of comparable findings of fact adopted by the defendant upon entering the
plea.” Shepard v. United States, 544 U.S. 13, 20-21, 26 (2005). We have
concluded that a document that is incorporated by reference in a plea agreement --
as the factual basis for the defendant’s guilty plea -- is a “comparable finding of
fact” that may be considered properly under Shepard. See United States v. Gandy,
917 F.3d 1333, 1340-42 (11th Cir. 2019).
Florida law provides that “[t]he offense of battery occurs when a person: (1)
[a]ctually and intentionally touches or strikes another person against the will of the
other; or (2) [i]ntentionally causes bodily harm to another person.” Fla. Stat.
4 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 5 of 8
784.03(1)(a). A battery committed by intentionally causing bodily harm
constitutes a violent felony under the ACCA. See Gandy, 917 F.3d at 1339-40
(concluding that Florida bodily-harm battery constitutes a “crime of violence”
under the Guidelines); United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008) (stating that the definition of “crime of violence” under the Guidelines is
analogous to the definition of “violent felony” under the ACCA).
On appeal, Toomer asserts that the government cannot prove that his 2003
and 2012 felony battery convictions involved the intentional causing of bodily
harm and, thus, the government failed to prove that Toomer had three qualifying
felonies under the ACCA. In particular, Toomer contends the district court erred
in relying on non-Shepard-approved documents to determine the nature of his
felony battery convictions.
About his 2003 felony battery conviction, Toomer challenges the district
court’s reliance on a document titled “Adult Probable Cause Affidavit.” The
second page of the document consists of an arrest warrant -- signed by a judge and
by the arresting officer -- and a probable cause statement describing an altercation
between Toomer and his 7.5-month pregnant girlfriend during which Toomer “did
push to the ground, pull along the floor and spit on the victim,” causing minor
injuries to the victim’s face and neck.
5 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 6 of 8
The district court determined that the “Adult Probable Cause Affidavit” was
incorporated by reference in Toomer’s 2003 plea agreement and, thus, was a
document that could be considered properly under Shepard. We see no clear error
in the district court’s determination.
Toomer’s 2003 plea agreement consisted of a pre-printed form titled “Plea
and Sentencing Agreement.” The form required a factual basis for the plea, which
could be met by incorporating a document by reference or by writing in the factual
basis. The incorporation-by-reference option -- the option circled on Toomer’s
plea agreement -- provided that “[t]he arrest report which is 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 the plea.” Although Toomer’s pre-printed
plea agreement form used a generic term “arrest report,” the state court docket
contained no document by that name; the “Adult Probable Cause Affidavit” was
the only document in the state court record that provided the factual basis for
Toomer’s plea.
Toomer next challenges the district court’s reliance on a document titled
“Warrant/OTTIC Affidavit”: a document that included a probable cause statement
for Toomer’s 2012 felony battery conviction. The document described an incident
during which Toomer grasped his mother around the neck and applied pressure,
6 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 7 of 8
causing a partial obstruction of her airway. As a result, Toomer’s mother nearly
lost consciousness and suffered scratches and abrasions on her neck and face.
The district court determined that the “Warrant/OTTIC Affidavit” was
incorporated into Toomer’s 2012 plea agreement. As with Toomer’s 2003 felony
battery conviction, his plea agreement for his 2012 felony battery conviction was
on a pre-printed “Plea and Sentencing Agreement” form. The “Factual Basis for
Plea” section of the form, however, read this way: “The arrest report or offense
report or probable cause affidavit 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 the plea.” Given this broad language, the district
court committed no clear error in determining that the “Warrant/OTTIC Affidavit”
provided the factual basis for the plea and was incorporated into the 2012 plea
agreement.
Because the district court determined reasonably that both the “Adult
Probable Cause Affidavit” and the “Warrant/OTTIC Affidavit” constituted
documents incorporated by reference as the factual bases for Toomer’s guilty
pleas, those documents were reviewable under Shepard. See Gandy, 917 F.3d at
1340-42. The factual allegations in these two incorporated documents are
sufficient to show that each of Toomer’s felony battery convictions were for
7 USCA11 Case: 20-10925 Date Filed: 02/22/2021 Page: 8 of 8
bodily-harm battery: a violent felony under the ACCA. The district court thus
concluded properly that Toomer had at least three qualifying felony convictions
under the ACCA and was subject to an enhanced sentence.
AFFIRMED.