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Florida Battery a Violent Crime for Immigration Sentencing

By Kelly Cheung on May 29, 2013 | Last updated on March 21, 2019

The Eleventh Circuit ruled that a district court judge did not err in sentencing a defendant by applying the modified categorical approach in determining his prior crime committed was violent. By finding his crime violent, the court upheld the district court using a higher sentencing guideline under the federal statutory scheme for an illegal reentry of a deported alien.

Pedro Diaz-Calderone was sentenced to 48 months imprisonment according to the guidelines, but he argues that the guidelines should have been much lower. He argued that the crime set out by the Florida statute can be committed in a non-violent way, so his prior crime should not be considered violent either.

Diaz-Calederone's prior convictions were for committing aggravated battery against a pregnant woman in Florida. The complication in this case is that the Florida crime for aggravated battery upon a pregnant woman does not need to be violent.

The statute detailing Florida's aggravated battery upon a pregnant woman requires (1) intentional touching, including slight contact, (2) striking, or (3) intentionally causing bodily harm. Since the crime can be committed with a mere touching, the statute is not a categorical crime of violence.

The Eleventh Circuit found that the district court properly applied the modified categorical approach in this circumstance. Supporting the defendant's crimes as violent, sworn affidavits were submitted and the district court also listened to the plea proceedings to find a crime of violence. The affidavits showed that the defendant struck the victim. The police officers described the events as violent rather than just unwanted touching. The police noticed significant bruising in the woman's stomach area. Then the defendant later admitted to it in his plea.

Considering all that the district court had to consider, the Eleventh Circuit found that the court did not err in imposing the sixteen-level sentencing enhancement in Diaz-Calderone's case.

The court agreed with Diaz-Calderone that when a court is using a modified categorical approach, the court cannot use a Florida arrest affidavit by itself to establish that a crime is violent. However, the court finds that the district court judge did not take the affidavits or the plea alone. It properly found that, in whole, the offense was committed violently.

The court's decision clarifies that committing a violent crime that on its face does not have to be violent will not be enough to escape a harsher sentencing guideline.

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