[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________
No. 1 7

- 1 5 035

________________________
D.C. Docket No. 3 :1 6

- c r

- 0 0055

- MCR

- 1

UNITED STATES OF AMERICA
,
Plaintiff

- Appell ee , versus

CLIFFORD B. GANDY, JR.

Defendant

- Appell ant

.

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

_______________________ ( March 6, 2019 )

Before WILLIAM PRYOR
, and ROSENBAUM
, Circuit Judges
, and CONWAY, * District Judge.

WILLIAM PRYOR, Circuit Judge :

* Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by designation.

Case: 17-15035 Date Filed: 03/06/2019 Page: 1 of 382 Th is appeal requires us to decide whether Clifford Gandy Jr. ’s prior

conviction for battery of a jail detainee , Fla. Stat. § § 784.03, 784.082, qualifies as a

“ crime of violence ” under the Sentencing Guidelines. Gandy was convicted of
possession with intent to distribute cocaine and marijuana, 21 U.S.C. § 841(a)(1),

(b)(1)(C )

– ( D), possession of a firearm in furtherance of a drug

- trafficking offense,

18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm by a convicted felon, id.

§§ 922(g)(1), 924(a)(2)

. Based on Gandy’s prior convictions for battery and a

controlled

- substance offense
, the district court classified him as a career offender.
United States Sentencing Guidelines Manual § 4B1.1( a ) (Nov. 2016)

. T he district

court then calculated Gandy’s s entencing r ange as 360 months to life imprisonment

and varied downward to impos e a 300

- month sentence of imprisonment

. Gandy

contends that his prior conviction for battery is not a crime of violence under the

Guidelines. He argues that Florida battery is divisible only between “touching and
striking” and “intentionally causing bodily harm
, ” and that
, under the modified
categorical approach, we cannot determine that he was convicted of “ intentionally
causing bodily harm

. ” Because the record makes clear that Gandy ’s conviction for
battery necessarily was for “ intentionally causing bodily harm, ” we affirm.

I. BACKGROUND

In June 2016, a grand jury indicted Gandy for possession with intent to

distribute cocaine and marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C)

– (D) (Count 1) ;

Case: 17-15035 Date Filed: 03/06/2019 Page: 2 of 383 possession of a firearm in furtherance of a drug

- trafficking offense, 18 U.S.C.

924(c)(1)(A)(i) (Count 2) ; and possession of a firearm by a convicted felon, id.

§§ 922(g)(1), 924(a)(2) (Count 3). After a two

- day trial, the jury convicted Gandy

on all counts. The district court then scheduled a sentencing hearing, and the
probation officer prepared Gandy’s presentence investigation report.
The probation officer classified Gandy as a career offender based on three
prior felony convictions: a 2010 nolo contender e plea for battery upon a detainee,

Fla. Stat. §§ 784.03, 784.082; a 2012 nolo contendere plea for felony battery; and a

2013 nolo contendere plea for the sale, manufacture, delivery, or possession of a

controlled substance with intent to sell. See U.S.S.G . § 4B1.1(a). This
classification subjected Gandy to the increased sentencing ranges that apply to
career offenders with multiple counts of conviction one of which is possession of a
firearm in furtherance of a drug

- trafficking offense, 18 U.S.C. § 924(c). See

U.S.S.G. § 4B1.1(b)

– (c). The probation officer calculated that Gandy’s total
sentencing range was 360 months to life imprisonment.
Gandy objected to his classification as a career offender on the ground that

his battery convictions were not crimes of violence. He asserted that our decision

in United States v. Green (Green I) , 842 F.3d 1299 (11th Cir. 2016)
, opinion
vacated and superseded on denial of reh’g , 873 F.3d 846 (11th Cir. 2017), was
wrongly decided and that striking and touching for Florida battery, Fl a. Sta t

. §

Case: 17-15035 Date Filed: 03/06/2019 Page: 3 of 384 784.03
, are not divisible. And Gandy argued, based on Descamps v. United States
,
570 U.S. 254 (2013), that no documents could be used to determine whether his
battery convictions qualified as crimes of violence under the modified categorical
approach. See Shepard v. United States , 544 U.S. 13 (2005). Gandy calculated that
his total sentencing range should be 144 to 165 months’ imprisonment.

The government responded that Gandy’s battery convictions constituted

crimes of violence based on Green I

. In Green I
, we explained that the Florida
simple battery statute is divisible between “touching,” “striking,” and
“intentionally causing bodily harm” battery, and that a court should use the

modified categorical approach and consult Shepard

- approved documents to decide

which elements of battery a conviction was based on. 842 F.3d at 1322

. And w e

held that if Shepard documents establish that a defendant was convicted of the
“striking” element as opposed to the “touching” element of simple battery, then the

conviction qualifies as a predicate “violent felony” under the Armed Career

Criminal Act , 18 U.S.C. § 924(e)

. Id.

With respect to the 2010 conviction, the government submitted four Shepard

documents. First
, the government submitted a charging document that stated that
Gandy committed a battery upon a jail detainee “ by actually and intentionally
touching or striking [the victim]

. . . or by intentionally causing bodily harm to [the

Case: 17-15035 Date Filed: 03/06/2019 Page: 4 of 385 victim,] by hitting the victim in the face and head,” in vio lation of Fl a. Stat

. §§

784.03
, 784.08 2

. Second, t he government submitted Gandy’s sentenc e

- recommendation form
,
which is the equivalent of his plea agreement. The sentence recommendation

reflects that Gandy ple a d ed nolo contendere to “Battery Upon a Jail Visitor or

Other Detainee

. ” The sentence recommendation
, which Gandy and his state

- court

counsel signed, also includes the following factual basis :

FACTUAL BASIS: The arrest report

. . . 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 this plea and/or the factual basis is as follows:

. . .
On December 11, 2010, deputies responded to the Red Pod in the Escambia County Jail and observed victim Clunion Galloway laying

on the floor and bleeding. Victim Galloway stated that he was playing cards with other inmates when he was hit from behind. Victim Galloway did not see who the attacker was.

Video surveillance was reviewed and shows the defendant approached the victim and str [uck] him in the head multiple times causing the victim to fall to the ground. The video then shows the defendant continuing to strike the victim on the ground. The video does not show any provocation.

Gov. Ex. A at 5
, United States v. Gandy
, No. 3:16

- cr

- 00055

- MCR

- 1 (N.D. Fla.

Dec. 9, 2016)
, ECF No. 58

- 1 (emphasis altered )

.

Case: 17-15035 Date Filed: 03/06/2019 Page: 5 of 386 Third, the government submitted the arrest report that Gandy expressly
incorporated as the factual basis for his plea. The arrest report includes the
following statement of probable cause :
On 12/11/2010 . . . Clifford Gandy, Jr did knowingly and intentionally commit the offense of Battery Causing Bodily Harm , as follows.
On 12/12/10, I was dispatched to [the jail] in reference to a battery complaint. Upon arrival, I made contact with Serge ant Bullion . . . who stated that at approximately 2135 hours on 12/11/2010 an inmate attacked another inmate. Sergeant Bullion provided me with their incident report . . .

. The report stated that Deputy Frymire . . . responded to the Red Pod where he obs erved V/Clunion Galloway lying on the floor and bleeding. V/Galloway told Deputy Frymire that he was playing cards when someone hit him from behind. V/Gall o way stated that he did not see who hit him. V/Galloway was transported to the I nfirmary where he was treated by medical staff. Deputy Frymire stated that S/Clifford Gandy later admitted to hitting V/Galloway. S/Gandy was also escorted to the Infirmary where he was seen by medical staff.
I was advised by Sergeant Bullion that V/Galloway wished to purs ue criminal charges, and he also advised me that there was a video of the incident. Sergeant Buillion played the v i deo for me at which time I observed V/Galloway playing cards. I could then clearly see S/Gandy walk up behind V/Galloway and unprovokedly str [ike] V/Galloway in the face which caused V/Galloway to fall down to the ground. S/Gandy then continued to strike V/Galloway multiple times on the head. . . . Sergeant Bullio n took photographs of V/Galloway’s injur i es which he provided to me. . . . V/Gallo way had a cut below his right eye, a scratch below his right ear, a bruise on the top of his head, a minor cut on his nose and a cut above his left eye.
S/Gandy was charged with battery causing bodily harm

.
Id. at 11

– 12 (emphasis added) . The report also lists the charge as “Battery
Caus[ing] Bodily Harm
, ” and it refers exclusively to the subsection of the statute

Case: 17-15035 Date Filed: 03/06/2019 Page: 6 of 387 that Gandy violated as s ection 784.03(1)(a)(2), which addresses “intentionally
causing bodily harm.”

Fourth, the government submitted the state

- court judgment. The jud gment

states that Gandy pleaded nolo contendere to “battery upon a jail visitor or other

detainee,” in violation of s ections 784.03 and 784.08 2

.

In January 2017, the district court entered an order continuing Gandy’s
sentencing. The court was inclined to agree with Gandy that s ection 784.03 is not

divisible between “touching” and “striking ” elements, but it explained that it was
“clearly” bound by Green I

. T he court also mentioned that it hoped that the issue

of the divisibility of the Florida battery statute would be resolved in the then

pending appeal in United States v. Vail

- Bailon
, No. 15

- 10351 (11th Cir.). Gandy’s
sentencing was then rescheduled for after we decided that appeal. In August 2017,

we issued our opinion in Vail

- Bailon that felony battery under Fla

. Stat

. § 784.041
categorically qualifies as a crime of violence under the Sentencing Guidelines.

United States v. Vail

- Bailon
, 8 6 8 F.3d 1293 , 1308 (11 th Cir. 2017) (en banc)

. After

our ruling, the district court rescheduled Gandy’s sentencing hearing for September

2017.

At his sentencing hearing, Gandy renewed his objection to the career

offender designation. The district court explained that Green I remained binding
precedent even after Vail

- Bailon

. The district court then overruled the objection.

Case: 17-15035 Date Filed: 03/06/2019 Page: 7 of 388 After that ruling, the government requested and was granted the opportunity

to further explain its position. The government first conceded that Gandy’s 2012
battery conviction did not qualify as a crime of violence under the career

- offender
guideline. But the government maintained that Gandy was correctly designated a

career offender because the 2010 conviction of battery of a detainee qualified as a

crime of violence because it constituted “striking” battery under Green I

.
The government also advanced an alternative argument: even if Green I was

wrong about the divisibility of Florida battery, Gandy’s battery conviction would

still qualify as a crime of violence because battery would still be divisible between
“touching and striking” and “intentionally causing bodily harm,” and the Shepard

documents leave “no doubt” that Gandy pleaded to “intentionally causing bodily

harm. ” Gandy responded that a conviction for bodily

- harm battery does not require
proof of violent force, as required under Johnson v. United States (Curtis Johnson)
,
559 U.S. 133 (2010). According to Gandy, one could intentionally cause bodily

harm by, for examp le, “digging a hole and putting a blanket over it or loosening

someone’s tires,” and this would not meet the requirement of the use of violent

force. The court never addressed the government’s alternative argument

.
The court varied downward from the Guideline s range of 360 month s to life
imprisonment and impos ed a 300

- month sentence of imprisonment

. One week

later, we vacated Green I and issued a superseding opinion that did not address the

Case: 17-15035 Date Filed: 03/06/2019 Page: 8 of 389 divisibility of Florida simple battery

. See United States v. Green (Green II)
, 873

F.3d 846 (11th Cir. 2017). Gandy then filed his appeal.

II. STANDARD OF REVIEW

We review de novo whether a battery conviction qualifies as a crime of

violence under the Sentencing Guidelines. Vail

- Bailon
, 868 F.3d at 1296.

III. DISCUSSION
Gandy argues that the district court erred when it classified him as a career

offender on the ground that his 2010 conviction for battery of a detainee was a

crime of violence

. To be classified as a career offender, Gandy must have at least

two prior felony convictions for crime s of violence or controlled

- substance

offense s

. U.S.S.G § 4B1.1(a). A “crime of violence” is defined as a felony offense

that “has as an element the use, attempted use, or threatened use of physical force
against the person of another.” Id. § 4B1.2(a)(1). The Supreme Court has defined
physical force as “ violent force

— that is, force capable of causing physical pain or
injury to another person.” Curtis Johnson
, 559 U.S. at 140. Because there is no
dispute that, for purposes of Gandy’s career

- offender designation, his conviction

for a controlled

- substance offense is a predicate offense and that his 2012 battery

conviction is not, only the status of Gandy’s 2010 battery conviction is at issue.
Gandy was convicted in 2010 under two statutes, Fla

. Stat . §§ 784.03
,
784.082. Section 784.03 defines the offense of simple battery :

Case: 17-15035 Date Filed: 03/06/2019 Page: 9 of 3810 (1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally cause s bodily harm to another person.
Fla. Stat. § 784.03(1)(a). Although simple battery is ordinarily a misdemeanor,
battery of a jail detainee is classified as felony under another statute

. Fla. Stat. §

784.082(3).

Because section 784.03 does not define a crime of violence under the
categorical approach, see Curtis Johnson , 559 U.S. at 138

– 40
, we must decide
whether the modified categorical approach allows us to conclude that Gandy’s
conviction qualifies. We may apply the modified categorical approach when the

statute is divisible

— that is, it “define[s] multiple crimes ”

— and a limited class of

d ocuments, often called Shepard documents, are available to determine “what

crime, with what elements, a defendant was convicted of.” Mathis v. United States
,
136 S. Ct. 2243, 22 4 9 (2016)

. Shepard documents may include the charging

document, any plea agreement submitted to the court, the transcript of the plea
colloquy, or any “record of comparable findings of fact adopted by the defendant

upon entering the plea.” Shepard
, 544 U.S. at 20

– 21, 26.

T he parties agree that the battery conviction cannot be classified as a crime

of violence for “striking” battery because s ection 784.03 is only divisible between
“touching or striking” battery and “intentionally causing bodily harm” battery

. The

Case: 17-15035 Date Filed: 03/06/2019 Page: 10 of 3811 parties also agree that “touching or striking” battery does not constitute a crime of

violence. But the government argues that because Gandy necessarily pleaded to
“bodily harm” battery , his conviction still qualif ies as a crime of violence

.
Because we agree with the government that we can determine t hat Gandy

was necessarily convicted of “ intentionally causing bodily harm
, ” which qualifies

as a crime of violence
, we need not decide whether “ touching ” and “ striking ” are

divisible or whether Gandy’s conviction would qualif y as “striking” battery

. The
parties do not dispute, and we agree, that the Florida statute is divisible and that
battery by “intentionally causing bodily harm” is a separate element of the offense.
Battery by “intentionall y causing bodily harm” categorically constitute s a

crime of violence. Bodily

- harm battery is proved by establishing two elements: the

defendant caused bodily harm to another person , and he did so intentionally. See

Fla. Stat. § 784.03(1)(a)(2). Although, under Florida law, b odily harm is broadly

defined to encompass any “slight, trivial, or moderate harm” to a victim
, s ee

Brown v. State
, 86 So. 3d 569, 571

– 72 (Fla. Dist

. Ct. App. 2012) , and Florida

courts have appl ied the term to a wide range of physical injuries, s ee, e.g. , Gordon

v. State
, 126 So. 3d 292, 295

– 9 6, 296 n.4 (Fla. Dist

. Ct. App. 2011) (bruises ) ;

C.A.C. v. State
, 771 So. 2d 1261, 1262 (Fla. Dist

. Ct. App. 2000) (scratches,
swelling
, and puncture marks) , all of these injuries satisfy Curtis Johnson ’s

definition of violent force. See Curtis Johnson , 559 U.S. at 143 (explaining that

Case: 17-15035 Date Filed: 03/06/2019 Page: 11 of 3812 violent force “might consist

. . . of only that degree of force necessary to inflict
pain

— a slap in the face, for example”) . A defendant convicted of bodily

- harm
battery must have intentionally used “force capable of causing physical pain or
injury to another person,” id. at 140, so bodily

- harm battery necessarily constitutes

a crime of violence.

We next look to the Shepard documents for Gandy’s battery conviction to

determine whether he was necessarily convicted of intentionally causing bodily

harm

. See Shepard
, 5 44 U.S. at 21 (explaining that the question is “whether the
plea had ‘necessarily’ rested on the fact identifying the [offense]” as a predicate).

The Supreme Court has repeatedly stressed th at there is a “demand for certainty” in
determining whether a defendant was convicted of a qualifying offense. See

Mathis
, 136 S. Ct. at 2257; see Descamps
, 570 U.S. at 272 (asking whether the

defendant “necessarily” committed the qualifying crime); Shepard
, 544 U.S. at 21
(referring to “ Taylor ’ s demand for certainty”); Taylor v. United States
, 495 U.S.

575, 602 (1990)

. As a result, we may conclude that Gandy was convicted of a
qualifying offense only if the Shepard documents “speak plainly” in establishing

the elements of his conviction. Mathis
, 136 S. Ct. at 2257.
Although the charging document, the judgment, and Gandy’s sentence
recommendation do not identify which crime within section 784.03 he was
convicted of committing, the incorporated arrest report clearly identifies his

Case: 17-15035 Date Filed: 03/06/2019 Page: 12 of 3813 offense as bodily harm battery. To be sure, we ordinarily do not rely on police

reports under the modified categorical approach because a defendant ordinarily

does not admit the conduct described in them

. United States v. Rosales

- Bruno , 676

F.3d 1017, 1021 (11th Cir. 2012)

. But an arrest report that is incorporated by

reference in a plea agreement qualifies as a “record of comparable findings of fact
adopted by the defendant upon entering the plea” that we may consider. Shepard
,
544 U.S. at 2 0 ; see United States v. Diaz

- Calderone
, 716 F.3d 1345, 1349

– 50

(11th Cir. 2013) (holding that a district court may rely on arrest reports if the

defendant acknowledges his guilt and implicitly affirms the truth of the arrest

report during a plea colloquy)

.
The incorporated arrest report “speaks plainly” that Gandy ’s offense was
bodily

- harm battery. The report begins by listing the charge as “Battery Caus[ing]
Bodily Harm,” and it refers exclusively to the subsection of the Florida simple
battery that Gandy violated as s ection 784.03(1)(a)(2), the “bodily harm”

sub section. The report then alleges in its statement of probable cause that “ [o] n

12/11/2010

. . . [Gandy] did knowingly and intentionally commit the offense of

Battery Causing Bodily Harm .” It next describes how Gandy attack ed his fellow

inmate and caused him to suffer a variety of injuries, such as bruising and cuts

around the face and head. At the conclusion of the statement of probable cause , the

report again lists the charge as “battery causing bodily harm.” T he arrest report

Case: 17-15035 Date Filed: 03/06/2019 Page: 13 of 3814 never mentions “touching or striking” battery, nor does it cite the subsection for

that type of battery. So the arrest report unambiguously identifies Gandy’s offense
as bodily harm battery

. Because Gandy agreed to th is description of his offe nse , he
necessarily ple a d ed nolo contendere to bodily harm battery

. At oral argument, Gandy argue d that we c annot rely on the statements
identifying his offense as bodily harm battery because these statements are “legal

conclusions

. ” H e argued that by agreeing to the police report as the factual basis of
his plea
, he only agreed to the report’s “factual allegations

. ” We disagree.

Florida law requires a factual basis for a plea to ensure “that the facts of the
case fit the offense with which the defendant is charged.” Allen v. State , 876 So. 2d
737, 740 (Fla. Dist. Ct. App. 2004) (citation omitted). Because a factual basis is
used to compare the fact ual allegations with the elements of the offense of

conviction, see Williams v. State , 316 So. 2d 267, 273 (Fla. 1975)
, a factual basis

often include s both legal and factual elements so that the comparison between the

two may be made explicit. Although we agree with Gandy that a factual basis

consists primarily of factual information
, s ee Dydek v. State
, 400 So. 2d 1255,

1257 (Fla. Dist. Ct. App. 1981) (explaining that “the trial court must receive in the

record factual information to establish the offense to which the defendant has
entered his plea” (emphasis added) ) , we do not agree that a factual basis exclude s
all legal conclusio ns

. Our review of Florida caselaw reveals that the factual bases

Case: 17-15035 Date Filed: 03/06/2019 Page: 14 of 3815 for guilty or nolo pleas often include legal descriptions of the elements or offenses
that are established by the factual allegations. See, e.g.
, Johnson v. State , 22 So. 3d
840, 843 (Fla. Dist. Ct. App. 2009) (explaining that prosecutor’s statement of the

factual basis for a plea, to which the defendant did not object, included the

statement that at “ some point between November 15, 2005, and November 27,

2005, Johnson knowingly conspired to sell, purchase, manufacture, deliver, or
traffic four grams or more of oxycodone ”); T oson v. State , 864 So. 2d 552, 554
(Fla. Dist. Ct. App. 2004) (including in the factual basis a statement that “the
defendant did knowingly enter a dwelling . . . with the intent to commit an offense

therein”); Hayden v. State , 833 So. 2d 275, 276 (Fla. Dist. Ct. App. 2002)
(providing a factual basis for a defendant who ple a d ed nolo contendere to the
offense of robbery with a firearm and a mask that included the statement that “ [o] n
December 22nd, Marcus Ha yd en and Dantrell Riley, with a gun and mas ks . . .
committed a robbery”). And Gandy cite s no authority supporting his restrictive

view of what constitutes a factual basis under Florida law

.
W e conclude that because Gandy agreed to the arrest report as the factual
basis of his plea without qualification , h e agreed with the statements describing his
offense as bodily

- harm battery and that he necessarily pleaded nolo contendere to

that offense

. And our conclusion is consistent with that of the only other Circuit

that has addressed whether a defendant’s agreement to a police report as a factual

Case: 17-15035 Date Filed: 03/06/2019 Page: 15 of 3816 basis includes his agreement to the report’s description of his offense. See United

States v. Almazan

- Becerra , 537 F.3d 1094, 1096, 1099 (9th Cir. 2008 ) ( explaining

that where police report s were incorporated as the factual basis of the defendant’s
plea and described the offense as “sale s of marijuana ,” it established that a

defendant who had ple a d ed guilty to a disjunctive indictment was n ecessarily

convicted of the sale of marijuana as opposed to mere transportation of marijuana).
Gandy argues that we cannot conclude that he was convicted of bodily harm
battery in the absence of an amendment to the charging document that narrows the

eleme nts of his conviction, but we disagree. W hat matters under the modified
categorical approach is not the offense charged, but what elements the government
proved or the defendant admitted committing. Although a charging document is
one possible Shepard document that we may consult, it is not the only document.

When a charging document contains multiple alternative elements from the same
divisible statute and the judgment does not specify w hich elements were proved or

admitted , we may still determine the elements by consulting other Shepard
documents. For example, in Diaz

- Calderon , the defendant pleaded nolo contendere
to an information charging that he “did intentionally touch or strike the victim
against that person’s will or did intentionally cause bodily harm to said person.”

716 F.3d at 134 8 (alteration adopted) (emphasis added) . We determined the basis
for the conviction by looking to the factual basis for the plea
, which included arres t

Case: 17-15035 Date Filed: 03/06/2019 Page: 16 of 3817 affidavits
, and the plea colloquy. Id. at 1349

– 50. Because the Shepard documents

establish that Gandy admitted committing bodily

- harm battery, we reject his

argument.
Gandy also conten ds that we may not rely on the factual basis included in
his sentence recommendation because, in entering his nolo contendere plea, he
only “acknowledged that the evidence would be sufficient to support a judgment of

conviction under Fla. Stat. § 784.03.” Bu t we have repeatedly explained that we

treat Florida nolo convictions no differently than convictions based on guilty plea s

or verdict s of guilt for purposes of the Sentencing Guidelines. See Green II
, 873

F.3d at 860 (collecting decisions ); see also Unite d States v. Drayton , 113 F.3d

1191 , 1193 (11th Cir. 1997) (holding that a Florida nolo conviction constitutes a
prior conviction for purposes of the Armed Career Criminal Act). Gandy’s
argument that we may not consult the factual basis of his nolo plea has no merit.
Gandy also argues that we cannot rely on the factual basis in the arrest report
because, absent a plea colloquy, we cann ot determine either that the state court
found a factual basis to support the nolo contendere plea or that it specifically
relied on the factual basis as stated in the arrest report

. As we understand it
, Gandy ’s argument suggest s that we cannot apply the modified categorical
approach unless we have a plea colloquy
, as there could always be some question

about whether the elements of the conviction stated in a particular Shepard

Case: 17-15035 Date Filed: 03/06/2019 Page: 17 of 3818 document were actually rel ied upon by the court in accepting the plea

. But a plea
colloquy is only one of several Shepard

- approved documents
, and we are aware of
no authority suggesting that the absence of a plea colloquy bars consideration of

other Shepard documents.
Gandy also renews his argument from the district court that bodily

- harm
battery does not satisfy the definition of a crime of violence because one may
cause bodily injury indirectly, such as by “digging a hole and putting a blanket
over it or loosening someone’s tires.” T his argument fails because we have held

that “[w ] hen a statute requires the use of force ‘capable of causing physical pain or
injury to another person,’ whether that use of force ‘occurs indirectly, rather than
directly (as with a kick or punch), does not matter. ’ ” United States v. Deshazior
, 882 F.3d 1352, 1357 (11th Cir. 2018) (citation omitted) (quoting United States v.

Castleman , 572 U.S. 157, 171 (2014)).
Gandy was convicted of battery of a jail detainee by intentionally causing
bodily harm . His prior conviction constitutes a crime of violence under the
Sentencing Guidelines. U.S.S.G. § 4B1.2(a)(1)

. So he has two qualifying predicate
offenses for purposes of his career

- offender designation. U.S.S.G. § 4B1 .1( a )

.
IV. CONCLUSION

We AFFIRM Gandy’s sentence. Case: 17-15035 Date Filed: 03/06/2019 Page: 18 of 3819 ROSENBAUM, Circuit Judge, dissenting:
I agree with the panel that Fla. Stat § 784.03 is divisible into two separate

offenses

— one of which qualifies as a violent felony for purposes of the sentencing
guidelines (the “bodily

- harm” provision) 1 and one of which does not (the “touch

or

- strike” provision) 2 . I also agree that the fact that Clifford Gandy Jr.’s plea was

one of nolo contendere does not change the analysis in this case and that the district
court was entitled to look to the arrest report to determine the offense of conviction

1 The panel opinion concludes that bodily

- harm battery is “necessarily” a crime of violence, though it notes that “under Florida law, bodily harm is broadly defined to encompass any ‘slight, trivial, or moderate harm’ to a victim.” Maj. Op. at 11. I agree that the injuries described in the two panel

- opinion

- cit ed Florida cases interpreting this definition

— bruises in one and scratches, swelling, and puncture marks in the other

— required the “use . . . of physical force” as anticipated by the Supreme Court’s interpretation of the elements clause. What is not clear to me after reviewing Florida law is the bottom end of the spectrum of “bodily injury”

— that is, what is the most “trivial” or “slight” impact that still counts as “harm” so that it satisfies the definition of “bodily injury”? But because I conclude that we cannot “necessarily” determine that the Florida court convicted Gandy of bodily

- harm battery, anyway, I do not opine on whether bodily

- harm battery is categorically a crime of violence. My dissent therefore assumes without deciding that it is.
2 The pa nel opinion does not decide whether touch

- or

- strike battery is itself divisible. Under the methodology of Mathis v. United States , 136 S. Ct. 2243, 2256

- 57 (2016), however, touch

- or

- strike battery is not divisible. Touching and striking constitute altern ative means

— not alternative elements

— of the crime. Under Mathis , we may ascertain whether striking and touching are alternative elements or alternative means by looking to Florida law identifying the elements of Fla. Stat. § 784.03(1)(a)(1). See Mathis
, 136 S. Ct. at 2256. In Khianthalat v. State , 974 So. 2d 359, 361 (Fla. 2008), the Florida Supreme Court set forth the elements of simple battery under § 784.03(a)(1)(a) as “(1) actually and intentionally touching or striking another person; and (2) [doing so] against the will of the other person.” Florida’s jury instructions for this crime likewise require the jury to determine whether each of these elements has been satisfied. See Fla. Jury Instruction 8.3 Battery. Because “touching” and “striking” are listed in the alternative as part of a single element of the crime, they constitute alternative means

— not alternative elements

— under Mathis

. See Mathis , 136 S. Ct. at 2256

- 57. As a result, touch

- or

- strike battery is not divisible.

Case: 17-15035 Date Filed: 03/06/2019 Page: 19 of 3820 because the report was incorporated by reference into Gandy’s sentence

recommendation “as a factual basis.”
But I dissent from the panel’s application of the m odified categorical
approach. The panel incorrectly applies the modified categorical approach, creating
a circuit split in the process. As a result, the panel mistakenly concludes that
Gandy’s prior conviction for violating § 784.03 was “necessarily” for bodily

- harm
battery. Since a correct application of the modified categorical approach does not
allow us to identify which offense defined in § 784.03 Gandy was “necessarily”
convicted of committing, I would vacate the sentence and remand for resentencing

.
I.
I begin by reviewing the categorical and modified categorical analyses.
As the “first step” of determining whether a defendant’s prior conviction
qualifies as a “crime of violence” under the Sentencing Guidelines, we apply the
categorical approach set forth in Taylor v. United States , 495 U.S. 575 (1990).

United States v. Estrella , 758 F.3d 1239, 1244 (11th Cir. 2014). Using that method,
we “look no further than the statute and judgment of conviction” and ask whether,

“on its face,” the statute of co nviction “requires the government to establish, beyond
a reasonable doubt and without exception, an element involving the use, attempted
use, or threatened use of physical force against a person for every charge brought

under the statute.” Estrella , 758 F .3d at 1244; accord United States v. Howard , 742

Case: 17-15035 Date Filed: 03/06/2019 Page: 20 of 3821 F.3d 1334, 1345 (11th Cir. 2014); Donawa v. United States Attorney General , 735

F.3d 1275, 1281 (11th Cir. 2013). If so, then the conviction “ necessarily ,” Estrella
, 758 F.3d at 1245 (citation and quotation marks omitted), indicates that the defendant
committed an element that involves the “use, attempted use, or threatened use of
physical force against the person of another,” U.S.S.G. § 4B1.2(a).
Here, the categorical approach does not reveal whether Gandy was
“necessarily” convicted of a crime that includes as an element the “use, attempted
use, or threatened use of physical force against the person of another.” As the panel
accurately points out, Gandy’s judgment reveals only that he was convicted of

viol ating Fla. Stat. § 784.03, which is not categorically a crime of violence. Rather,
§ 784.03 has two subsections possibly applicable here

— one that is not categorically
a crime of violence (§ 784.03(1)(a)(1), which makes it a crime to “[a]ctually and

intent ionally touch[] or strike[] another person against the will of the other”), Curtis

Johnson v. United States , 599 U.S. 133, 139 (2010), and one that is (§
784.03(1)(a)(2), which makes it a crime to “[i]ntentionally cause[] bodily harm to
another person”). Because § 784.03 is divisible into one crime that qualifies as a
crime of violence and another that does not, the categorical approach cannot help us
deduce whether Gandy’s conviction under § 784.03 was necessarily for a crime of

violence. Case: 17-15035 Date Filed: 03/06/2019 Page: 21 of 3822 We therefore mus t turn to the modified categorical approach to help us
identify, if possible, whether Gandy was convicted of the touch

- or

- strike provision
or the bodily

- harm provision. Estrella , 758 F.3d at 1245 . Under the modified
categorical approach, we “look to the fact of conviction and the statutory definition
of the prior offense, as well as any charging paper and jury instructions” to shed light
on what specific offense of a divisible statute the defendant was convicted of. Id.
(citation and quotation marks omitted). The documents we use for this purpose are

often referred to as “ Shepard ” documents. See Shepard v. United States , 544 U.S.

13 (2005).
Critically, and as the Supreme Court has repeatedly emphasized, courts may
use the modified categorical approach to determine only “‘which statutory phrase

was the basis for the conviction .’” Descamps v. United States , 570 U.S. 254, 263
(2013) (emphasis a dded) (quoting Curtis Johnson , 599 U.S. at 144); see also Taylor
, 495 U.S. at 602; Shepard , 544 U.S. at 26. We have previously followed this directive
when holding that courts may use Shepard documents for only the limited purpose
of determining “‘what cr ime, with what elements, a defendant was convicted of.’”
United States v. Gundy , 842 F.3d 1156, 1168 (11th Cir. 2016) (emphasis added)
(quoting Mathis v. United States , 136 S. Ct. 2243, 2245 (2016)). It naturally follows

that a court “ must not . . . cons ult those documents ‘to discover what the defendant
actually did.’” Howard , 742 F.3d at 1347 (quoting Descamps , 570 U.S. at 268).

Case: 17-15035 Date Filed: 03/06/2019 Page: 22 of 3823 Significantly, the modified categorical approach “preserves the categorical
approach’s basic method,” Descamps , 570 U.S. at 2 63, since the sentencing court
ultimately asks whether the records of the defendant’s prior case show that, though

convicted of a divisible statute, he was “ necessarily convicted ” of a particular
provision within that divisible statute that is a crime of v iolence. Choizilme v. United
States Attorney General , 886 F.3d 1016, 1023 (11th Cir. 2018) (emphasis added)
(citing Mathis , 136 S. Ct. at 2249). So we have held that the modified categorical
approach requires us to first determine “‘which statutory phras e the defendant was
necessarily convicted under,’” and if we can do so, to then ask whether that statutory
provision defined a crime of violence, using the categorical approach. United States

v. Davis , 875 F.3d 592, 598 (11th Cir. 2017) (emphasis added) ( quoting Howard
, 742 F.3d at 1345).

On the record here, as shown in the next section, the Shepard documents do
not allow us to conclude that Gandy was “necessarily convicted under” a particular
statutory phrase within § 784.03. For that reason, the panel o pinion’s determination
that Gandy was “necessarily convicted” of bodily

- harm battery is incorrect.

II.
In concluding Gandy was “necessarily convicted” of bodily

- harm battery and
affirming Gandy’s sentence, the panel relies on the arrest report in two ways that the
modified categorical approach does not permit, even though the report was

Case: 17-15035 Date Filed: 03/06/2019 Page: 23 of 3824 incorporated “as a factual basis” for the plea. First, the panel opinion appears to

contend that where, as here, the factual basis for an offense satisfies the elements of
both a qualifying offense and a non

- qualifying offense, the district court is entitled
to conclude that the defendant was “necessarily” convicted of the qualifying offense.
Maj Op. at 14. And second, the panel opinion seems to conclude that the officer’s
legal conclusion that Gandy committed bodily

- harm battery, which appears in the
arrest report, means that Gandy was “necessarily” convicted of that offense. 3 Maj
Op. at 13

– 14

. The panel opinion’s first apparent contention contravenes the Supreme

Court’s “demand for certainty” in determining a defendant’s prior offense of

conviction. Shepard , 544 U.S. at 21. It also conflicts with the Eighth Circuit’s well

reasoned decision in United States v. Horse Looking , 828 F.3d 744 (8th Cir. 2016),
creating a circu it split on that issue. And its second apparent contention is
inconsistent with fundamental principles of criminal procedure.

A.
I begin with the panel opinion’s apparent contention that, since the factual
basis for Gandy’s plea would have satisfied the elements of both bodily

- harm battery

and touch

- or

- strike battery, the district court was entitled to conclude that Gandy’s

3 The officer’s actua l statement was “Gandy . . . did knowingly and intentionally commit the offense of Battery Causing Bodily Harm, as follows,” which preceded a description of the particular facts demonstrating that Gandy’s actions, in fact, satisfied the element of that cri me.

Case: 17-15035 Date Filed: 03/06/2019 Page: 24 of 3825 convicti on must have been for bodily

- harm battery. We have not previously

considered whether a factual basis that satisfies the elements of two crimes

— one
that qualifies as a crime of violence and one that does not

— suffices to show that a
defendant charged in the alternative with both crimes was “necessarily” convicted
of the qualifying crime. But the Eighth Circuit has. And in United States v. Horse
Looking , 828 F.3d 744 (8th Cir. 2016), a well

- reasoned opinion in a case materially
indistinguishable from the on e here, that court found that such a factual basis does

not

— the opposite of today’s panel opinion’s conclusion.

In Horse Looking , the defendant was charged with possessing a firearm after
having been previously convicted of a “misdemeanor crime of domest ic violence.”
The applicable statute, in turn, defines that term as a crime that, as relevant here, has
as an element “the use or attempted use of physical force, or the threatened use of a
deadly weapon.” 828 F.3d at 746; see 18 U.S.C. §§ 921(a)(33)(A)( ii), 922(g)(9).
On appeal to the Eighth Circuit, Horse Looking argued that the court should vacate
his conviction and dismiss the indictment because the predicate conviction in his
case, which was for South Dakota simple assault domestic violence, was not a
“misdemeanor crime of domestic violence” as defined by federal law. Horse
Looking , 828 F.3d at 746.
As it turned out, the South Dakota simple

- assault

- domestic

- violence statute
contained five divisible provisions, and Horse Looking was charged with thre e of

Case: 17-15035 Date Filed: 03/06/2019 Page: 25 of 3826 them. Id . As relevant here, Horse Looking’s underlying South Dakota indictment
alleged that Horse Looking “(4) [a]ttempt[ed] by physical menace or credible threat
to put another in fear of imminent bodily harm, with or without the actual ability to
harm the other person,” or “(5) [i]ntentionally cause[d] bodily injury to another
which does not result in serious bodily injury.” Id. ; see S.D. Codified Laws § 22

-

18

- 1. Before the Eighth Circuit, the parties agreed that a conviction under subsection

(5) of the South Dakota statute met the federal definition of a “misdemeanor crime

of domestic violence” and that a conviction under subsection (4) did not. Id. at 747.
Applying the modified categorical approach, the court looked to the South
Dakota chargin g and sentencing documents to determine whether Horse Looking

had been convicted of subsection (4) or (5), or both. Id. at 747. But those documents
revealed only a conviction for violating the statute as a whole, without identifying
any particular subsec tion of conviction. Id.
Continuing with the modified categorical approach, the Eighth Circuit next
examined the plea colloquy in Horse Looking’s South Dakota case. In that colloquy,
Horse Looking had said that he and his wife “got into an argument and sh e became
physical and she cut me and I pushed her.” Id. at 748. Horse Looking further
explained that when he “pushed” his wife, “she fell down.” Id. Finally, Horse
Looking’s attorney volunteered that Horse Looking’s wife had “testified that she had

som e abrasions on her ankle or knee.” Id.

Case: 17-15035 Date Filed: 03/06/2019 Page: 26 of 3827 Based on this factual recitation, the Eighth Circuit concluded that the colloquy
“establishe[d] that Horse Looking could have been convicted under subsection (5),”

which was a misdemeanor crime of domestic violence. Id. at 748 (emphasis in
original). “But,” the court continued, “the colloquy does not exclude the possibility
that Horse Looking was convicted under subsection (4),” which was not a

misdemeanor crime of violence. Id. at 748. And since the court also co uld not “say
that convictions under the two alternatives are mutually exclusive,” it acknowledged
it could not determine that the factual basis for Horse Looking’s plea necessarily

excluded one of the subsections of the statute as the offense of his convic tion. Id.
So the court concluded that “the judicial record d[id] not establish that Horse
Looking necessarily was convicted of” the qualifying part of the South Dakota

statute. Id. at 749. Ultimately, then, because “ the state court did not specify which

alternative was the basis for conviction ,” the Eighth Circuit determined that the
government could not establish that Horse Looking had been convicted of a

“misdemeanor crime of domestic violence.” Id. (emphasis added). That Horse
Looking “ could have ” b een convicted of a qualifying offense, the court said, did not
meet the Supreme Court’s repeated “‘demand for certainty’” when it came to
determining whether a defendant had, in fact, been previously convicted of a
qualifying predicate offense. Id. at 748

- 49 (quoting Mathis , 136 S. Ct. at 2256

- 57;
citing Descamps , 570 U.S. at 272; Shepard , 544 U.S. at 21; Taylor , 495 U.S. at 602).

Case: 17-15035 Date Filed: 03/06/2019 Page: 27 of 3828 Gandy’s case presents the same problem, and we should have resolved it in
the same way. Here, as in Horse Looking , the judgmen t and sentencing documents
indicate that Gandy was convicted of a general offense, without specifying which
particular subsection of that general offense is the offense of conviction. And like
Horse Looking, Gandy pled guilty to a charging instrument that contained both
qualifying and non

- qualifying offenses. Also like Horse Looking, Gandy admitted
to conduct that satisfied the elements of both the qualifying offense and the non

qualifying offense. Neither the South Dakota court in Horse Looking’s case n or the
Florida court in Gandy’s case specified whether the defendant’s case was for the
qualifying subsection or the non

- qualifying subsection. And finally, just as was the

case with the factual recitation in Horse Looking
, the statement of Gandy’s action s
contained in the arrest report does not exclude the possibility that Gandy committed
one of the two crimes ultimately charged in the alternative. So like the Eighth
Circuit, we should have concluded that Gandy’s past conviction was not
“necessarily” for a qualifying offense.
Indeed, the Eighth Circuit did exactly what Supreme Court precedent requires
in applying the modified categorical approach. Unfortunately, though, today we do

Case: 17-15035 Date Filed: 03/06/2019 Page: 28 of 3829 not. 4 And as a result, we arrive at the incorrect answer and create a ci rcuit split in
the process.

B.
Nor, as the panel opinion seems to suggest, can we find the answer to our
dilemma by relying on the officer’s arrest

- report legal conclusion that Gandy
committed bodily

- harm battery, which he offered to identify his legal aut hority to
make the arrest. It’s not that we can’t consult the arrest report to help us ascertain
the factual basis for Gandy’s crime of conviction; we can, since Gandy agreed that
the arrest report provided a “factual basis” for his plea. But to paraphr ase Inigo
Montoya in The Princess Bride , I do not think the presence of the officer’s statement
in the arrest report means what the panel opinion thinks it means. 5 See Mandy
Patinkin: Inigo Montoya , IMDb.com, https://www.imdb.com/title/tt0093779/

characters/nm0001597 (last visited Mar. 5, 2019). This is so for two independent
reasons: (1) an officer’s statement in his arrest report providing a legal conclusion
of the offense for which he is arresting a person is not a part of the “factual basis”

4 I can appreciate the Eighth Circuit’s concern that the “absence of definitive records frustrates the application of the modified categorical approach.” Id. at 749. But as the Eighth Circuit nonetheless correctly observed, “the Supreme Court has mad e clear that the vagaries of state court recordkeeping do not justify a different analysis.” Id. (citing Johnson , 559 U.S. at 145; Shepard , 544 U.S. at 22

- 23). 5 Montoya’s actual quotation, which he offers in response to the character Vizzini’s repeated i nvocation of the word “inconceivable,” is “You keep using that word. I do not think it means what you think it means.” Mandy Patinkin: Inigo Montoya , IMDb.com, https://www.imdb.com /title/tt0093779/characters/nm0001597 (last visited Mar. 5, 2019). Case: 17-15035 Date Filed: 03/06/2019 Page: 29 of 3830 demonstrating that the defendant, in fact, pled guilty to that particular crime, even
when the arrest report is adopted “as a factual basis” for the guilty plea; and (2) only
the court, not the arresting officer, has the power to adjudicate a defendant convicted

of a crime.

To explain why, I review the purpose of the arresting officer’s report in the
context of the plea proceeding in Gandy’s Florida case

. The arresting officer’s report
was incorporated by reference to the sentence recommendation only “as a factual
basis” for Gandy’s plea. And the report contained both statements of fact

— reporting
the actions Gandy took that resulted in his arrest

— and the officer’s statement of the
crime he decided to arrest Gandy for

— bodily

- harm battery. But the arresting
officer’s statement of the crime he arrested Gandy for was not a part of the “ factual

basis ” for Gandy’s plea. Rather, it served only the purpose of identifying the crime
for which the officer arrested Gandy.

To und erstand the impact of the arrest report’s limited purpose, we must

consider the role of the “factual basis.” Florida Rule of Criminal Procedure 3.170
requires a court to determine that, among other things, a “factual basis for the plea”

exists before the court may accept a plea. Satisfying this requirement demands the

court “ensure that the facts of the case fit the offense with which the defendant is
charged.” Williams v. State , 316 So. 2d 267, 271 (Fla. 1975). So merely repeating

that the defendant co mmitted a particular crime or saying that the defendant

Case: 17-15035 Date Filed: 03/06/2019 Page: 30 of 3831 committed a specific element of a given crime does not accomplish this task. Rather,
the “factual basis” must provide the “factual information necessary to establish the

elements of the offense.” Id

. at 273.
In applying these concepts, we start with “the offense with which [Gandy]
[was] charged.” Id. at 271. Here, Gandy was charged in the alternative with having
committed bodily

- harm battery or touch

- or

- strike battery.
Two elements compose touch

- or

- strike battery: “(1) actually and
intentionally touching or striking another person; and (2) [doing so] against the will
of the other person.” Khianthalat v. State , 974 So. 2d 359, 361 (Fla. 2008). Among
others, the following facts from the arrest re port established the two elements of

touch

- or

- strike battery: a video recording showed that Gandy “walk[ed] up behind
[the victim] and unprovokedly struck [the victim] in the face which caused [the
victim] to fall down to the ground. [Gandy] then continu ed to strike [the victim]
multiple times in the head.” The report further memorialized the victim’s statement
that he “wished to pursue criminal charges” against Gandy.
As for bodily

- harm battery, a single element

— that the defendant
“intentionally caused bodily harm” to the victim

— comprises that crime. See Fla.
Jury Instruction 8.3 Battery. And along with the arrest report’s recounting of the
specific injuries the victim incurred as a result of Gandy’s actions, the same facts
from the arrest report that showed Gandy undertook actions that meet the elements

Case: 17-15035 Date Filed: 03/06/2019 Page: 31 of 3832 of touch

- or

- strike battery likewise demonstrated that Gandy engaged in actions that
check off bodily

- harm battery’s single element.
So the facts in the arrest report establishing that Gandy undertook ac tions that
specifically satisfied the elements of each charged crime comprise the “factual basis”
for Gandy’s plea; they showed the particular actions Gandy committed that
supported the conclusions that he “actually and intentionally touch[ed] or str[uck]
another person,” “against the will of the other person” and that he “intentionally
caused bodily harm” to the victim. They did not simply restate an element of a
particular crime or the crime for which Gandy was arrested.
By contrast, the officer’s legal conclusion that Gandy intentionally caused
bodily harm to another did no more than restate a crime. It did not “provide the
factual information necessary to establish the elements of the offense.” Williams
,
316 So. 2d at 273. And since it did not do so , it did not serve as part of the factual
basis for Gandy’s plea.
Nor do the Florida cases cited in the panel’s decision support its position that
legal conclusions may properly be part of the factual basis for a Florida guilty plea.

See Maj. Op. at 14

– 15 (citing Johnson v. State , 22 So. 3d 840 (Fla. Dist. Ct. App.

2009); Toson v. State , 864 So. 2d 552 (Fla. Dist. Ct. App. 2004); Hayden v. State
, 833 So. 2d 275 (Fla. Dist. Ct. App. 2002)). Critically, the sufficiency of the factual

Case: 17-15035 Date Filed: 03/06/2019 Page: 32 of 3833 bases for the guilty pl eas of the defendants in those cases was not at issue. 6 So those
cases can shed no light on whether legal conclusions constitute part of the “factual
basis” for a defendant’s guilty plea. Cf. United States v. L. A. Tucker Truck Lines,

Inc. , 344 U.S. 33, 37

- 38 (1952) (noting that where a particular issue was neither
raised in the briefs or argument nor discussed in the opinion of the Court, the case
could not serve as binding precedent on the particular point).

United States v. Almazan

- Becerra , 537 F.3d 1094 (9th Cir. 2008) (“ Almazan

Becerra II ”)
, similarly does not help the panel opinion, as the panel’s reliance on it
rests on another Inigo Montoya type of misunderstanding. The panel cites Almazan

Becerra for the notion that “a defendant’s agreement to a police report as a factual
basis includes his agreement to the report’s description of the offense
, ” by which the
panel opinion means the arresting officer’s statement of the offense for which the

defendant is arrested. Maj. Op. at 16. But Almazan

- Becerra did not use the word

6 Rather, in Johnson , the appellant sought to withdraw her guilty plea because she claimed that she did not understand the consequences of the plea agreement and that she was coerced into pleading guilty. See 22 So. 3d at 843. And in Toson , the appellant raised the legal ar gument that it was fundamental error for him to have been convicted of both dealing in stolen property and grand theft where the conduct involved the stealing of the same property during the same scheme or course of conduct, since Fla. Stat. § 812.025 “exp ressly prohibits a trial court from adjudicating a defendant guilty of theft and dealing in stolen property in connection with one scheme or course of conduct.” 864 So. 2d at 555. Finally, in Hayden , the appellant asserted that the state trial court

erre d in sentencing him to a ten

- year minimum mandatory term under Fla. Stat. § 775.087(2)(a)(i) because the State’s charging document failed to allege that he personally possessed a firearm during the commission of the felony, and Florida courts have held tha t the State must plead and prove that the defendant had actual physical possession of the firearm during the commission of the felony before the court can impose the § 775.087(2) minimum mandatory sentence. 833 So. 2d at 277. In short, none of these appe als in any way challenged the sufficiency of the factual bases supporting the underlying guilty pleas.

Case: 17-15035 Date Filed: 03/06/2019 Page: 33 of 3834 “describe” in the way that the panel opinion seems to think it did. Rather, it used
that word to refer collectively to the specific facts concerning Almazan

- Becerra’s
actions that the reports at issue in t hat case documented.

In Almazan

- Becerra , the federal court had to determine whether Almazan

Becerra had previously been convicted of a drug

- trafficking crime to ascertain
whether a sentencing enhancement applied to him. See Almazan

- Becerra , 537 F.3d

at 1095. The state complaint to which Almazan

- Becerra had pled guilty, as relevant
here, charged in the alternative sale or transport of marijuana, under the same general

statute. See United States v. Almazan

- Becerra , 482 F.3d 1085, 1089 (9th Cir. 2007)

(“

Almazan

- Becerra I ”). Sale of marijuana was a drug

- trafficking offense, while

transport was not. See Almazan

- Becerra II , 537 F.3d at 1099.

But since Almazan

- Becerra stipulated as a factual basis for his plea to the
police reports concerning his arrest, the court considered the contents of the reports
to see whether they could resolve whether Almazan

- Becerra had been convicted of
sale or transport of marijuana. Id. at 1099 & 1099 n.2. In so doing, it said that “the
police reports unequivocally describe Almazan

- Becerra’s offensive conduct as
selling marijuana . . . .” Id. at 1099. But the court simultaneously expressly
“reject[ed]” Almazan

- Becerra’s contention that the police reports also “ describe[d]

the offense of transporting marijuana . . . because the reports state that the police
found a bindle of marijuana on the ground where Almazan

- Becerra had previously

Case: 17-15035 Date Filed: 03/06/2019 Page: 34 of 3835 been walking.” Id. at 1099 n.2 (emphasis added). Rather, the court explained,
“[W]hen read as a whole, [the reports] describe only one type of offense

— selling
marijuana. The bindle found on the ground was simply one of several pieces of

evidence of that offense.” Id. (emphasis added).
So contrary to the panel opinion’s suggestion, the Ninth Circuit’s explanation
for why the reports could no t also “describe the offense of transporting marijuana”
shows that it did not employ that phrase to refer to an officer’s statement of the
offense for which he arrested the defendant, but rather to the defendant’s specific
actions documented in the reports

. See id. at 1099 n.2. Put another way, the Ninth
Circuit effectively determined that the particular actions memorialized in the police
reports could, in good faith, support only the charge of sale.
But even not considering the principle that an officer’ s statement identifying
the crime for which he arrests a person cannot constitute a part of the “factual basis,”
a second reason also compels the determination that we cannot view the arresting
officer’s legal conclusion as dispositive. While the arrestin g officer may have
accurately stated the crime for which he arrested Gandy, the officer was not
responsible for Gandy’s prosecution. That was up to the State Attorney. See Fla.
Stat. § 932.47. It was the State Attorney who selected the charge against hi m. See

id. And once the State Attorney charged Gandy, only the court could adjudicate
Gandy guilty of that charge. Fla. R. Crim. P. 3.170.

Case: 17-15035 Date Filed: 03/06/2019 Page: 35 of 3836 The following hypothetical illustrates this point more bluntly:
Suppose that the victim in Gandy’s case tragicall y suffered permanent brain
damage when Gandy hit him. Florida courts have held such an injury constitutes
“great bodily harm,” an element of aggravated battery. Fla. Stat. § 784.045; see

Montero v. State , 225 So. 3d 340, 343 (Fla. Dist. Ct. App. 2017). Under our
hypothetical, suppose the officer arrested Gandy for aggravated battery, opining in
his arrest report that Gandy “did commit the offense of Aggravated Battery Causing
Great Bodily Harm, as follows,” before setting forth the specific facts support ing
Gandy’s arrest for that crime. Then suppose that the prosecutor decided to charge
only touch

- or

- strike battery or bodily

- harm battery under Fla. Stat. § 784.03

— just

like here

— and she did not charge aggravated battery , in violation of Fla. Stat. §

784.0 45

. Finally, suppose that, just like here, Gandy pled guilty to the charged crime
and that the court adjudicated him guilty of it.
Under the circumstances of that hypothetical, could a later sentencing court
correctly surmise that Gandy’s conviction was “necessarily” for aggravated battery?

I nconceivable ! 7

The officer’s statement that Gandy committed the crime for which he was

arrested could not define the offense of conviction . Only the court could do that

7 To be clear, “inconceivable” means exactly what I think it means: “Impossible to comprehend or grasp fully,” or, “[s]o unlikely or surprising as to h ave been thought impossible; unbelievable.” Inconceivable
, The American Heritage Dictionary (5th ed. 2011).

Case: 17-15035 Date Filed: 03/06/2019 Page: 36 of 3837 because only the court had the power to adj udicate Gandy guilty and enter a
judgment of conviction on the charge. Under this hypothetical scenario, the court

identified Fla. Stat. § 784.03

— not Fla. Stat. § 784.045

— as the statute of conviction.
And the factual basis for Gandy’s plea, with its limi ted purpose, could not alter the
court’s judgment and somehow render Gandy convicted of § 784.045, even though
the court relied on the arresting officer’s report as a factual basis for Gandy’s plea.
So even assuming that the officer’s opinion were a part of the factual basis for
Gandy’s plea, it could not have shed any light on which offense the Florida court
convicted Gandy of.
That principle

— that the court, not the arresting officer, adjudicates guilt

— applies equally to the case before us. The officer’s conclusion that Gandy committed
bodily

- harm battery, and his decision to arrest him on that basis, cannot demonstrate

that the Florida court convicted Gandy of that particular offense. Only the Florida
court had the authority to determine the crime of Ga ndy’s conviction. And here, we
cannot ascertain the crime for which the Florida court convicted Gandy, since the
information charged two crimes in the alternative, the factual basis for the plea

satisfied the elements of both offenses, and the Florida cou rt’s judgment reflected
only that Gandy was convicted of the general crime of battery under § 784.03.

To find otherwise would undermine the role of the Florida courts in
adjudicating defendants guilty of Florida crimes. Only the Florida court can

Case: 17-15035 Date Filed: 03/06/2019 Page: 37 of 3838 determin e the offense of conviction. But the panel opinion’s reliance, for the
purpose of identifying Gandy’s crime of conviction, on the arresting officer’s legal
conclusion that Gandy committed the offense of bodily

- harm battery steals that role

from the Florid a court and gives it to the arresting officer. That is not something we
should be doing.
We are concerned only with what the Florida court convicted Gandy of. And
on this record, we are bound to conclude that the Florida court did not “necessarily”

convi ct him of a crime of violence. While it may be tempting to jump to the
conclusion that Gandy was convicted of bodily

- harm battery based on the officer’s
legal conclusion in his report, we are not authorized to modify a Florida court’s
judgment of convicti on.

III.
For these reasons, I respectfully dissent. In my view, when we apply the
modified categorical approach, Gandy’s prior conviction for violating Fla. Stat. §
784.03 does not qualify as a crime of violence, so the district court incorrectly

sentence d him as a career offender.

Case: 17-15035 Date Filed: 03/06/2019 Page: 38 of 38