United States v. Shawn Dixon

874 F.3d 678
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 23, 2017
Docket17-10503 Non-Argument Calendar
StatusPublished
Cited by21 cases

This text of 874 F.3d 678 (United States v. Shawn Dixon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shawn Dixon, 874 F.3d 678 (11th Cir. 2017).

Opinion

MARCUS, Circuit Judge:

Shawn Dixon appeals his sentence at the bottom of the guideline range for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). On appeal; Dixon argues that the sentencing court erred in determining that his Florida conviction for domestic battery by strangulation qualified as a “crime of violence” because the statute criminalizes non-violent touching-that creates a de min-imis risk of great bodily harm. After-thorough review, we affirm.

The relevant facts are these. Dixon pleaded guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Dixon submitted a factual statement in support of his plea, and admitted that officers- had found crack cocaine, marijuana, a firearm, and ammunition in-his apartment; and that records indicated that Dixon was a convicted felon whose civil rights had not been restored. In the presentence investigation report (“PSI”) prepared for his sentencing hearing, the probation officer calculated Dixon’s base offense level using U.S.S.G. § 2K2.1(a)(2),.-because Dixon had committed the offense after sustaining at least two felony convictions for either a crime of violence or a controlled substance offense—namely, a Florida conviction for delivery of cocaine and a Florida conviction for felony domestic battery by strangulation. According to the PSI, the domestic-battery-by-strangulation offense occurred when Dixon and the victim, who had been in a consensual relationship, had a verbal altercation at their apartment. When the victim tried to leave, Dixon grabbed her by the neck, lifted her off the ground, and started to strangle her. At that point, Dixon said, “If I can’t have you no one will,” and threw the victim through a closed bedroom door, after, which she-fled the apartment.

In his objections to the PSI, Dixon argued that his Florida domestic-battery-by-strangulation conviction did not qualify as a “crime of violence,” because it did not require violent force, but only de minimis force. The district court overruled Dixon’s objection, concluding that Florida domestic battery by strangulation constituted a crime of violence because the actual, threatened, or attempted use of physical force was required to commit the crime, and one could not impede normal breath-' ing or circulation without creating a risk of great bodily harm. The district court ultimately sentenced Dixon to 70 months’ imprisonment, the lowest end of the advisory guidelines range, and 2 years” supervised release.

We review de novo whether a defendants prior conviction qualifies as a “crime of violence” under the Sentencing Guidelines. United States v. Garcia-Martinez, 845 F.3d 1126, 1129-30 (11th Cir. 2017).

A defendant’s base offense level for a violation of 18 U.S.C. § 922(g) increases if the defendant has at least two prior felony convictions for a “crime of violence” ór a “controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). A “crime of violence” under U.S.S.G. § 2K2.1 includes any offense 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.” U.S.S.G. § 2K2.1, comment. (n.l); U.S.S.G. § 4B1.2(a)(l). In determining whether a conviction is a “crime of violence” under this provision, known as the “elements clause,” we rely on cases interpreting the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”) because the definitions are substantially the same. United States v. Martin, 864 F.3d 1281, 1282-83 (11th Cir. 2017).

To determine whether a prior conviction qualifies as a “crime of violence,”- we apply a categorical approach, looking at the statutory definition of a prior offense rather than at the particular facts underlying a conviction. United States v. Vail-Bailon, 868 F.3d 1293, 1296 (11th Cir. 2017) (en banc). A prior conviction qualifies as a “crime of violence” under the elements clause of the Sentencing Guidelines only if the minimum conduct criminalized by the statute necessarily involves “the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. §§ 4B1.2(a)(1), 2K2.1; Vail-Bailon, 868 F.3d at 1297. The phrase “physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.” Curtis Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Force need not be “likely- to cause pain” to be “capable” of causing physical pain. Vail-Bailon, 868 F.3d at 1301-02.

While federal law determines the meaning of “physical force,” state law determines the elements of the underlying state statute. Id. at 1304. In Florida, a person commits the offense of domestic battery by strangulation if

the person knowingly and intentionally, against the will of another, impedes the normal breathing or circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person.

Fla. Stat. § 784.041(2)(a). Phrased differently, § 784.041(2)(a) requires proof that the defendant knowingly and intentionally impeded the normal breathing or blood circulation of a qualifying victim either by (a) “applying pressure”- on the victim’s throat or neck or- (b) “blocking” the victim’s nose or mouth. See In re Std. Jury Instructions in Crim. Cases—Report No. 2008-05, 994 So.2d 1038, 1042 (Fla. 2008). In engaging in this conduct, the defendant must create a risk of or cause great bodily harm. Id. Florida courts have said that “great bodily harm” does not include slight, trivial, minor, or moderate harm, such as mere bruising, but instead requires severe physical injury. Vail-Bailon, 868 F.3d at 1303.

In Curtis Johnson, the Supreme Court held that a Florida conviction for simple battery did not require violent force because it could result- from mere intentional contact, no matter how slight. 559 U.S. at 138-45, 130 S.Ct. 1265. Dixon argues that Curtis Johnson requires a find--ing that domestic battery by strangulation does not categorically require the use of force. We disagree.

The inquiry, into the minimum conduct criminalized by the state statute must remain within the bounds of plausibility. Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). That is, we must ask if the statute “plausibly covers any non-violent conduct.” United States v. McGuire, 706 F.3d 1333, 1337 (11th Cir. 2013); see Gonzales v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Justin B. Lane
Eleventh Circuit, 2023
United States v. Jerome Curtis Stancil
4 F.4th 1193 (Eleventh Circuit, 2021)
United States v. Marlon Eason
953 F.3d 1184 (Eleventh Circuit, 2020)
James Steiner v. United States
940 F.3d 1282 (Eleventh Circuit, 2019)
United States v. Stevie Cavazos
Eleventh Circuit, 2019
United States v. Jacoby Burns
Eleventh Circuit, 2018

Cite This Page — Counsel Stack

Bluebook (online)
874 F.3d 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shawn-dixon-ca11-2017.