[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 13708 Non

- Argument Calendar

________________________ D.C. Docket No. 5:19

- cr - 00034

- JDW

- PRL

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus WINYONTIS QUAVARI GORDON, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ ( October 15, 2020 )

Before MART IN , ROSENBAUM and BLACK , Circuit Judges.
PER CURIAM:

USCA11 Case: 19-13708 Date Filed: 10/15/2020 Page: 1 of 82 Winyontis Gordon appeals his 192

- month sentence imposed after pleading 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). Gordon ass erts (1) his conviction and sentence violate the Commerce Clause because the G overnment did not have to prove his possession of a firearm had a substantial effect on interstate commerce ; and (2) the district court erred in finding a Florida criminal punishment code sentencing scoresheet was a Shepard 1 document and then relying on that scoresheet to sentence him under the Armed Career Criminal Act (ACCA). After review, we affirm Gordon’s conviction, but vacat e and remand for resentencing.
I. DISCUSSION
A . Constitutionality of § 922(g) (1) It is unlawful for a convicted felon to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1). The Supreme Court has held that, under the predecessor statute to § 922(g), proof the firearm had previously traveled in interst ate commerce was sufficient to satisfy the required “minimal nexus” between possession and commerce. Scarborough v. United States , 431 U.S. 563, 575

- 77 (1977). We have “repeatedly held” § 922(g)(1) “is not a facially unconstitutional exercise of Congress ’s power under the Commerce Clause because it contains an express jurisdictional requirement.” United States v.

1 Shepard v. United States , 544 U.S. 13 (2005). USCA11 Case: 19-13708 Date Filed: 10/15/2020 Page: 2 of 83 Jordan , 635 F.3d 1181, 1189 (11th Cir. 2011). W e ha ve also held § 922(g)(1) is not unconstitutional as applied to a defendant where the government demonstrated that the firearm had traveled in interstate commerce. Id. A showing the firearm was manufactured in one state and traveled in interstate commerce to anot her state satisfies the “minimal nexus” test. United States v. Wright , 607 F.3d 708, 715

- 16 (11th Cir. 2010) (concluding the government satisfied the nexus requirement by showing the firearms were manufactured outside the state in which the offense took p lace, thereby necessarily traveling in interstate commerce)

. Plain error review applies because Gordon did not challenge § 922(g)’s constitutionality in the district court. United States v. Wright , 607 F.3d 708, 715 (11th Cir. 2010) (reviewing a constitut ional challenge raised for the first time on appeal for plain error )

. The district court did not plainly err because Gordon admitted to knowingly possessing a firearm and ammunition as a felon and did not dispute that those items were manufactured out of state. See Wright , 607 F.3d at 715

- 16. And our precedent forecloses Gordon’s facial and as

- applied constitutional challenges to § 922(g)(1). See id.; Jordan , 635 F.3d at 1189. Accordingly, we affirm Gordon’s conviction

. B

. ACCA The ACCA mandates a minimum sentence of 15 years’ imprisonment for any defendant convicted of being a felon in possession of a firearm who has 3

USCA11 Case: 19-13708 Date Filed: 10/15/2020 Page: 3 of 84 previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The “elements clause” of the ACCA defines “violent felony” as any crime punishable by a term of imprisonment 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) ; United States v. Owens , 672 F.3d 966, 968 (11th Cir. 2012)

. Under the elements clause, “the phrase ‘physical force’ means violent force

— that is, force capable of causing physical pain or injury to anoth er person.” Johnson v. United States , 559 U.S. 133, 140 (2010) . And “use” requires “active employment” of physical force. Leocal v. Ashcroft , 543 U.S. 1, 9 (2004). To determine whether a predicate offense qualifies as a violent felony under the elements clause, courts apply either the categorical or the modified categorical approach. Mathis v. United States , 136 S. Ct. 2243, 2248

- 49 (2016). The modified categorical approach, which applies when a statute is divisible into multiple crimes, allows courts to look to a “limited class of documents” to determine the defendant’s crime of conviction

. Id. at 2249. Those documents are “the charging document, the . . . plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [] some comparable judicial record of this information.” Shepard v. United
States , 544 U.S. 13, 26 (2005) . The documents must speak plainly in establishing

USCA11 Case: 19-13708 Date Filed: 10/15/2020 Page: 4 of 85 whether the defendant necessarily committed the qualifying crime because “ [t]he Supreme Court has repeatedly stressed that there is a ‘demand for certainty’ in determining whether a defendant was convicte d of a qualifying offense.” United States v. Gandy , 917 F.3d 1333, 1340 (11th Cir. 2019). At issue in this case is Gordon’s prior conviction under Florida Statute § 784.03. In Florida, a person commits a third

- degree felony where he “ has one prior convic tion for battery, aggravated battery, or felony battery” and “commits any second or subsequent battery.” Fla. Stat. § 784.03(2). Battery, in turn, occurs when someone : “1. [a]ctually and intentionally touches or strikes another person against the will of the other [( touching or striking battery)] ; or 2. [i]ntentionally causes bodily harm to another person [(bodily harm battery)] .” Id. § 784.03(1)(a). Bodily harm encompasses “slight, trivial, or moderate harm” to a victim, all of which satisfy the ACCA’s definition of violent force. Gandy , 917 F.3d at 1340 (quotation s omitted). We have treated Florida Statute § 784.03(1)(a) as divisible and, therefore, applied the modified categorical approach and allowed review of Shepard documents regarding convictions under that statute. Id. at 1339

- 40

. Section 784.03(1)(a)1

— touching and striking ba ttery

— does not categorically qualify as a violent felony, and § 784.03(2)(a)2

— bodily harm battery

— does categorically qualify as a violent felony. See Johnson , 559 U.S. at 136

- 40 ( concluding offenses

USCA11 Case: 19-13708 Date Filed: 10/15/2020 Page: 5 of 86 under § 784.03(1)(a) do not categorically qualify as ACCA violent felonies because battery by touching does not have the requisite physical

- force element) ; Gandy , 917 F.3d at 1339

- 40 (“Battery by ‘intentionally causing bodily harm’ categorically constitutes a crime of violence.”). In Florida, the prosecution prepares a scoresheet for each defendant and presents it to defense counsel for review before sentencing. Fla. R. Crim. P. 3.704(d)(1). A defendant receives points for his criminal history, the victim’s injury, and other relevant factors, which are then totaled. See Fla. Stat. § 921.0024. A victim injury is “scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.” Fla. R. Crim. P. 3.704(d)(9). A defendant can receive points for a victim’s injury where victim injury is not an element of the offense. Rogers v. State , 963 So. 2d 328, 330

- 32 (Fla. 2d DCA 2007) (explaining the Florida Rules of Criminal Procedure were revised to remove a requirement the victim injury be an element of the crime for scoresheet purposes). In finding Gordon’s conviction under Florida Statute § 784.03 was a violent felony, the district court both (1) determined the Florida criminal punishm ent code sentencing scoresheet qualified as a Shepard document, and (2) relied on the scoresheet to conclude Gordon’s battery conviction under Florida Statute § 784.03 was a violent felony. We need not de cide whether the scoresheet is a Shepard

USCA11 Case: 19-13708 Date Filed: 10/15/2020 Page: 6 of 87 document because the document lacks sufficient information to determine whether Gordon’s conviction qualifies as a violent felony. 2 While the scoresheet states that Gordon ’s victim’s injury was “slight” which satisfie s the “violent force” definition,

see Gandy , 917 F.3d at 1340 , the scoresheet does not specify under which subsection of § 784. 03 Gordon’s conviction was obtained

. T hat the victim injury

was s co red as “slight” does not provide the requisite certainty Gordon was convicted of the “bodily harm” subsection of the battery statute , however, because Florida law does not require that victim injury be an element of the offense in order to score the victim injury on the scoresheet. See Rogers , 963 So. 2d at 330

- 32

. Gordon’s scoresheet does not “speak[] plainly” in establishing the elements of Gordon’s conviction and thus does not satisfy the demand for certainty in determining whether Gordon was convicted of a qualifying ACCA offense. See Gandy , 917 F.2d at 1340 (“[W]e may conclude that Gandy was convicted of a qualifying offense only if the Shepard documents ‘speak plainly’ in establishing the elements of his conviction.”).
T he district court erred in concluding Gordon’s con viction for battery under Florida Statute § 784.03 was a violent felony. See Owens , 672 F.3d at 968 (reviewing de novo whether a conviction is a violent felony for purposes of the

2 We offer no opinion regarding whether a scoresheet could be used as a Shepard document in another case . We hold only that , under these facts, the document lacks the requisite specificity required.

USCA11 Case: 19-13708 Date Filed: 10/15/2020 Page: 7 of 88 ACCA )

. B ecause Gordon’s § 784.03 conviction does not qualify as a violent felony, we v acate Gordon’s ACCA enhancement and remand for resentencing.
II. CONCLUSION We affirm Gordon’s § 922(g) conviction, but vacate his ACCA enhancement and remand for resentencing. CONVICTION AFFIRMED, SENTENCE VACATED AND REMANDED FOR RESENTENCING .

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