United States v. Christian Rosado ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2567
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UNITED STATES OF AMERICA
v.
CHRISTIAN ROSADO,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 3-16-cr-00265-001)
District Judge: Honorable James M. Munley
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Argued: February 13, 2019
Before: HARDIMAN, SCIRICA, and COWEN, Circuit Judges
(Filed: August 19, 2019)
Quin M. Sorenson (Argued)
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Stephen R. Cerutti, II (Argued)
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Evan J. Gotlob
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
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OPINION *
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SCIRICA, Circuit Judge
After pleading guilty to federal felony charges, Christian Rosado was sentenced as
a “career offender” under § 4B1.1 of the United States Sentencing Guidelines. A “career
offender” is someone who, among other requirements, has twice previously been
convicted of a “crime of violence” or controlled substance offense. A “crime of
violence,” in turn, is either one of a number of specifically enumerated crimes generally
considered violent, or, alternatively, an offense for which physical force is a mandatory
element of any conviction under that offense. U.S.S.G. § 4B1.2. Rosado objected to his
designation as a career offender and now argues that one or both of his past offenses
should not have been considered “crimes of violence.” Because both offenses include
physical force as a mandatory element, we will affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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I.
Rosado pled guilty in January 2018 to possession and discharge of a firearm in
connection with a drug trafficking crime, 18 U.S.C. § 924(c), and possession of a firearm
by a prohibited person, 18 U.S.C. § 922(g). The Presentencing Report recommended that
Rosado be sentenced as a career offender on the basis of two prior Florida convictions,
both in 2010: one for aggravated battery with a deadly weapon, and the other for
domestic battery by strangulation. The Probation Office calculated a Guidelines
sentencing range of 262–327 months. In the absence of career offender status, Rosado’s
Guidelines sentencing range would have been 177–91 months.
Rosado objected to the career offender designation, arguing these two convictions
should not be considered “crimes of violence,” and the District Court considered his
objection at a sentencing hearing. The District Court evaluated Rosado’s aggravated
battery conviction using the enumerated offenses clause of § 4B1.1, finding that “the
offense is equal to if not more severe than aggravated assault, which is an enumerated
offense . . . .” App. 25. The District Court also evaluated Rosado’s domestic battery by
strangulation conviction using the elements clause of § 4B1.1, finding the Florida crime
necessarily included as an element the use, threatened use, or attempted use of physical
force, and was therefore a crime of violence. Id. Rosado’s ultimate sentence was 262
months. 1
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The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s
factual findings for clear error and exercise de novo review over its legal conclusions.
United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). The question whether
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II.
The U.S. Sentencing Guidelines designate sentencing enhancements for any
defendant who is a “career offender,” defined as an offender with two or more prior
convictions for a “crime of violence,” among other requirements. U.S.S.G. § 4B1.1(a). A
conviction can be classified as a crime of violence in either of two ways, if the offense:
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another [the “elements
clause”]; or
(2) is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm described in 26 U.S.C. §
5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [the
“enumerated offenses clause”].
Id. § 4B1.2(a).
Under either clause, the sentencing court must employ the “categorical approach,”
meaning the court may consider only the elements of the crime as defined by statute, and
may not consider the actual conduct of the defendant leading to the conviction. See, e.g.,
United States v. Graves, 877 F.3d 494, 501 (3d Cir. 2017); United States v. Chapman,
866 F.3d 129, 134 (3d Cir. 2017). A defendant’s prior conviction is a “crime of
violence,” then, only if every realistically plausible conviction of that offense would
necessarily meet the criteria to constitute a crime of violence. Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007). To demonstrate that hypothetical conduct could
realistically lead to a conviction of the offense, the defendant “must at least point to his
a prior state conviction is a crime of violence under the U.S. Sentencing Guidelines is a
question of law over which we exercise de novo review. United States v. Brown, 765 F.3d
185, 188 (3d Cir. 2014).
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own case or other cases in which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues.” Id. The elements clause of § 4B1.2 is
identical to the elements clause of the Armed Career Criminal Act (ACCA); for that
reason precedent discussing the application of either sentencing enhancement may inform
our analysis. 18 U.S.C. § 924(e)(2)(B)(i).
Neither aggravated battery with a deadly weapon nor domestic battery by
strangulation appears on the list of enumerated offenses in § 4B1.2(a)(ii). The
Government concedes the District Court was incorrect to classify aggravated battery with
a deadly weapon as a crime of violence on that basis.
Both offenses, though, satisfy the elements clause. To determine whether, under
the elements clause, an offense is a “crime of violence,” we check whether the offense
“has as an element the use, attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 4B1.2. In Johnson v. United States, the Supreme Court
found that the “force” requisite to constitute a “violent felony” must be “violent force,”
meaning “force capable of causing physical pain or injury to another.” 599 U.S. 133, 140
(2010). Specifically, the Court held that Florida battery is not a crime of violence because
it includes conduct as mild as “mere unwanted touching.” Id. at 142. In Stokeling v.
United States, evaluating a robbery offense that included as an element the use of “force
necessary to overcome a victim’s physical resistance,” the Supreme Court added that “the
force necessary to overcome a victim’s physical resistance is inherently ‘violent.’” 139 S.
Ct. 544, 553 (2019). The Court explained that a crime of violence “does not require any
particular degree of likelihood or probability that the force used will cause physical pain
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or injury; only potentiality.” Id. at 554. Florida’s crime of aggravated battery with a
deadly weapon is a crime of violence because it is not possible for a defendant to “use” a
deadly weapon to commit a battery without at minimum threatening to use physical force.
Florida’s crime of domestic battery by strangulation is, similarly, a crime of violence
because there is no realistic scenario in which this crime could be committed without
physical force.
A.
Aggravated battery with a deadly weapon is defined under Florida law as follows.
“A person commits aggravated battery who, in committing battery . . . . (2) [u]ses a
deadly weapon.” Fla. Stat. § 784.045(1)(a). Battery, in turn, is defined, “[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.” Id. § 784.03(1)(a).
Under Johnson, Florida battery alone is not a crime of violence. 599 U.S. at 136–
37, 145. The question, then, is whether the use of a deadly weapon necessarily renders
even mere unwanted touching “violent.” “Deadly weapon” is not defined by Florida
statute. In Florida common law, it has two related definitions. Under the first definition,
included in Florida’s pattern jury instructions, battery with a deadly weapon is a crime of
violence. “A weapon is a ‘deadly weapon’ if it is used or threatened to be used in a way
likely to produce death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) § 8.4. This
definition references the weapon and the defendant’s conduct: it requires that the
defendant used or threatened to use the deadly weapon in a way that would likely
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produce great bodily harm, necessarily satisfying the element of actual or threatened
physical force. U.S.S.G. § 4B1.2.
Although it is not part of standard jury instructions, Florida courts also employ a
second definition of deadly weapon: “any instrument which, when it is used in the
ordinary manner contemplated by its design and construction will or is likely to cause
great bodily harm.” Nguyen v. State, 858 So. 2d 1259, 1260 (Fla. Dist. Ct. App. 2003)
(quoting D.C. v. State, 567 So. 2d 998, 1000 (Fla. Dist. Ct. App. 1990)). This definition
does not require any specific action by the defendant, except that the defendant must,
under the statute “use[]” the deadly weapon in committing the battery. Fla. Stat.
§ 784.045(1)(a)(2). Merely carrying a weapon during a crime is not sufficient to
constitute “use” in the crime. Owens v. State, 475 So. 2d 1238, 1239 (Fla. 1985). But it is
also not required that the deadly weapon itself do the touching that constitutes the battery.
Severance v. State, 972 So. 2d 931, 933–34 (Fla. Dist. Ct. App. 2007). The defendant may
use the weapon in furtherance of the crime in some other way.
In Severance, relied on by Rosado, a Florida appellate court addressed a case in
which the defendant battered the victim with his hands and put a knife near the victim’s
throat. Id. at 932. He was convicted of aggravated battery with a deadly weapon. Id. The
defendant argued the trial court had erred by failing to instruct the jury that aggravated
assault required the deadly weapon to touch the victim. Id. The court disagreed, in a
plurality opinion holding “use” of a deadly weapon “includes holding a deadly weapon
without actually touching the victim with the weapon.” Id. at 934. Severance and Owens,
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together, hold that “use” of a deadly weapon requires more than carrying, but does not
require touching.
As the defendant’s conduct in Severance exemplifies, though, a defendant who has
“used” a deadly weapon to commit an unwanted touching has necessarily threatened use
of force, even if the “use” involved holding the weapon without touching the victim with
it. A defendant who holds and “uses” a deadly weapon in a battery does so by, at
minimum, threatening the victim, as the defendant did in Severance. Rosado does not
point to any case in which a defendant was convicted of this offense absent threatened
physical force. We find his hypotheticals either would not realistically constitute
aggravated assault with a deadly weapon, or do indeed include actual or threatened
physical force. See Duenas-Alvarez, 549 U.S. at 193. Owens forecloses Rosado’s
argument that a defendant who secretly carries a weapon has “used” the weapon because
he is emboldened by it. See 475 So. 2d at 1239. Conversely, a defendant who uses a
deadly weapon by displaying it during an unwanted touching necessarily threatens the
victim in doing so.
The Eleventh Circuit has held that Florida’s offense of aggravated battery with a
deadly weapon satisfies the elements clause. Turner v. Warden Coleman FCI (Medium),
709 F.3d 1328, 1341 (11th Cir. 2013), abrogated on other grounds by United States v.
Hill, 799 F.3d 1318, 1321 n.1 (11th Cir. 2015). A number of other courts have also
addressed whether, under relevant state law, the use of a weapon creates a crime of
violence when accompanying otherwise nonviolent criminal conduct. All have come to
the conclusion that it does. A Ninth Circuit case evaluated an offense essentially identical
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to this one, consisting of, at minimum, “unlawful touching using a deadly weapon.”
United States v. Perez-Silvan, 861 F.3d 935, 943 (9th Cir. 2017). The court found that,
although “merely being in possession of a deadly weapon does not amount to a threat to
use force,” “regardless of whether the deadly weapon itself touches the victim’s body, we
cannot imagine one using or displaying a deadly weapon in the course of an offensive
touching without threatening the use of violent force.” Id; see also United States v.
Redrick, 841 F.3d 478, 483, 484 (D.C. Cir. 2016) (evaluating a Maryland offense of
robbery “with the use of a deadly or dangerous weapon”) (internal citations omitted);
Braden v. United States, 817 F.3d 926, 933 (6th Cir. 2016) (evaluating a Tennessee
offense of assault “while us[ing] or display[ing] a deadly weapon”). We find this
reasoning persuasive and conclude Florida’s aggravated assault with a deadly weapon is a
crime of violence.
B.
Rosado’s second conviction, domestic battery by strangulation, criminalizes
conduct in which the defendant, at minimum, “knowingly and intentionally, against the
will of another, impedes the normal breathing or circulation of [the victim], so as to
create a risk of . . . great bodily harm by applying pressure on the threat or neck of the
other person or by blocking the nose or mouth of the other person.” Fla. Stat. §
784.041(2)(a). The Eleventh Circuit has held this offense is a crime of violence, because
there is no way to commit it “without using ‘violent force’—that is, force capable of
causing physical pain or injury to another person.” United States v. Dixon, 874 F.3d 678,
681–82 (11th Cir. 2017). To demonstrate domestic battery by strangulation could occur
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without physical force, Rosado must identify a “realistic” example, generally by pointing
to an actual conviction resembling the hypothetical, in Florida or in a state criminalizing
similar conduct. Duenas-Alvarez, 549 U.S. at 193. Rosado points to no cases at all,
instead presenting a series of increasingly fanciful hypotheticals.
Moreover, all of the hypotheticals Rosado offers in fact require physical force on
the part of the defendant. Rosado suggests a defendant could use a mask, poisonous gas,
or drowning to “block” the victim’s breathing, without directly applying force to the
victim. Appellant’s Br. 18–19. But United States v. Castleman held, in a similar statutory
context, that use of an object like poison would qualify as “force” because physical force
is “force exerted by and through concrete bodies,” including force that causes harm
“indirectly.” 572 U.S. 157, 170 (2014) (quoting Johnson, 559 U.S. at 138). A defendant
who uses a mask, poisonous gas, or water as an instrument still exerts physical force
through those objects under this definition. Rosado’s argument is also foreclosed by
Stokeling, which held that physical force includes the force necessary to overcome a
victim’s resistance. 139 S. Ct. at 552–53. Here, the offense includes a requirement that
the act occur against the victim’s will, and, as the Government points out, any victim
whose breath or circulation is blocked unwillingly to the point of risking bodily harm
would have some physiological response requiring the defendant to overcome it. We
agree with the District Court, and with the Eleventh Circuit, that domestic battery by
strangulation is a crime of violence.
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
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