[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-14293 APRIL 6, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 2:11-cr-14016-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JESUS ROSALES-BRUNO,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 6, 2012)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
MARTIN, Circuit Judge:
Jesus Rosales-Bruno appeals his sentence of eighty-seven months
imprisonment, imposed following his plea of guilty to one count of illegal reentry
following deportation, in violation of 8 U.S.C. § 1326(a). In this appeal, Rosales-
Bruno claims that the district court erred by enhancing his sentence based on its
finding that his prior conviction for false imprisonment under Florida law
qualified as a conviction for a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). See Fla. Stat. § 787.02 (defining “false imprisonment” as
“forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining
another person without lawful authority and against her or his will”).
Rosales-Bruno contends that, because Florida’s false imprisonment statute
creates criminal liability for detaining another person “secretly,” it is possible to
commit the offense without employing the “physical force” contemplated in the
Guidelines. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). From there, Rosales-Bruno argues
that the government failed to establish that he did, in fact, employ “physical force”
when he committed the offense of false imprisonment. Because the government
has not proven that Rosales-Bruno’s guilty plea for false imprisonment necessarily
supported a conviction for a violent felony, we vacate Rosales-Bruno’s sentence
and remand.
The Sentencing Guidelines impose a sixteen-level enhancement if an alien
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“was deported, or unlawfully remained in the United States, after . . . a conviction
for a felony that is . . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov.
1, 2011). “We review de novo whether a defendant’s prior conviction qualifies as
a ‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris,
586 F.3d 1283, 1284 (11th Cir. 2009).
We pursue a “modified categorical approach” in making the determination
about whether a prior conviction was for a “crime of violence.” United States v.
Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010); see also Johnson v.
United States,— U.S. —, 130 S. Ct. 1265, 1273 (2010). Under this approach, we
first look to the “fact of conviction and the statutory definition of the prior offense,
as well as any charging paper and jury instructions to ascertain whether,” as a
formal matter, committing the offense required committing a “crime of violence.”
Palomino Garcia, 606 F.3d at 1328 (quotation marks omitted); see also James v.
United States, 550 U.S. 192, 202, 127 S. Ct. 1586, 1594 (2007). However, where
the statutory definition of the prior offense encompasses both violent and
nonviolent conduct, we look beyond the fact of conviction and elements of the
offense to determine whether the prior conviction falls under a particular statutory
phrase that qualifies it as a “crime of violence.” See Johnson 130 S. Ct. at 1273.
In making this second inquiry, we limit our review to reliable materials that
3
allow us to determine whether the particular conviction “necessarily” rested on a
fact establishing the crime as a violent offense. Shepard v. United States, 544 U.S.
13, 21, 125 S. Ct. 1254, 1260 (2005). Where, as here, the prior conviction stems
from a guilty plea, the materials we review include “the terms of the charging
document, the terms of a 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.” Id. at 26,
125 S. Ct. at 1263. In that vein, we may also rely on facts contained in a
presentence investigation report (PSR), so long as those facts are undisputed.
United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009); see also Shepard,
544 U.S. at 24, 125 S. Ct. at 1261 (plurality opinion) (stating that, for a pleaded
conviction, “the only certainty . . . lies . . . in the defendant’s own admissions or
accepted findings of fact confirming the factual basis for a valid plea”). In
contrast, we do not “rely on police reports or other documents supporting the
criminal complaint because a defendant generally does not admit the conduct
described in those documents.” Palomino Garcia, 606 F.3d at 1328 (citing
Shepard, 544 U.S. at 22–23, 125 S. Ct. at 1260–61).
Addressing Rosales-Bruno’s appeal then, we first consider whether false
imprisonment under Florida law is categorically a “crime of violence.” Id. at
4
1326.1 While the Commentary of the Guidelines identifies several offenses as
crimes of violence, it does not specify false imprisonment as being among that
group. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Thus, we must decide whether a
conviction for false imprisonment under Florida law “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
Id.
The meaning of “physical force” is a question of federal law, not state law.
Palomino Garcia, 606 F.3d at 1331. But, in determining whether a conviction for
false imprisonment under Fla. Stat. § 787.02 is a “crime of violence” for
sentencing enhancement purposes, we are bound by Florida courts’ determination
and construction of the substantive elements of that state offense. See Johnson,
130 S. Ct. at 1269; see also Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d
1330, 1348 (11th Cir. 2011) (affording Johnson deference to states’ intermediate
1
In Brooks v. Ashcroft, we stated in dicta that the defendant “was convicted under Fla.
Stat. § 787.02, False Imprisonment, which is a crime of violence.” 283 F.3d 1268, 1273 n.5
(11th Cir. 2002). But, since Brooks, the Supreme Court has clarified the “crime of violence”
analysis considerably. See Johnson, 130 S. Ct. at 1273; Shepard, 544 U.S. at 16, 125 S. Ct. at
1257. Indeed, in an implicit acknowledgment that we lack binding precedent on this question,
we have since Shepard explicitly eschewed holding that a Florida false imprisonment conviction
is categorically a crime of violence. See United States v. Flores-Navarro, 267 F. App’x 830, 833
n.2 (11th Cir. 2008) (“Nothing herein should be construed as holding that a Florida false
imprisonment conviction is always a crime of violence.”). We follow the Supreme Court’s
guidance in answering this question.
5
courts, where no state supreme court precedent exists).
The ordinary meaning of the phrase “physical force” “suggests a category of
violent, active crimes . . . .” Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S. Ct. 377,
383 (2004). Further, when interpreting “physical force” in defining the analogous
statutory category of “violent felon[ies],” the Supreme Court has confirmed that
“the phrase ‘physical force’ means violent force–that is, force capable of causing
physical pain or injury to another person.” Johnson, 130 S. Ct. at 1271; see also
id. at 1272 (“[T]he term ‘physical force’ itself normally connotes force strong
enough to constitute ‘power’—and all the more so when it is contained in a
definition of ‘violent felony.’”).
Against this backdrop, we look to Florida case law to determine whether a
conviction under § 787.02 necessarily involves the employment of “physical
force” as that term is defined by federal law. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
Section 787.02 requires that “some amount of force” be used. Proko v. State, 566
So. 2d 918, 920 (Fla. Dist. Ct. App. 1990); see also id. (noting that the state must
prove, among other things, that a “defendant forcibly restrained the victim against
her will”). However, the force need not be “substantial.” Id. And, though that
appears to be a fine distinction, case law since Proko makes clear that a § 787.02
offense can be committed without employing the type of “physical force”
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contemplated in the Guidelines.
Specifically, Florida jurisprudence indicates that “the statutory elements of
the offense of false imprisonment do not necessarily involve the use or threat of
physical force or violence against an individual.” Lamb v. State, 32 So. 3d 117,
119 (Fla. Dist. Ct. App. 2009); see also Kalogeras v. State, 58 So. 3d 889, 891
(Fla. Dist. Ct. App. 2011) (stating that false imprisonment does not “necessarily
involve[] an intentional, unlawful threat by word or act to do violence to
another”); Davis v. State, 20 So. 3d 1024, 1025 (Fla. Dist. Ct. App. 2009)
(construing § 787.02 to permit false imprisonment to “be accomplished by
physical force, but also in other ways” (emphasis added)); Mosquera v. State, 16
So. 3d 255, 256 (Fla. Dist. Ct. App. 2009) (suggesting that not all ways of
committing false imprisonment “involve the use or threat of physical force or
violence” (quotation marks omitted)). In light of this case law, we conclude that
false imprisonment under Florida law encompasses several distinct crimes, some
of which qualify as crimes of violence and others of which do not.2
2
We note as well that this interpretation of federal law is consistent with that of the other
Courts of Appeals to face the question. See United States v. Gonzalez-Perez, 472 F.3d 1158,
1161 (9th Cir. 2007) (holding that the district court erred in applying a sixteen-level enhancement
because “Florida’s false imprisonment statute . . . does not constitute a categorical crime of
violence for the purposes of applying U.S.S.G. § 2L1.2(b)(1)(A)(ii)”); see also Kerr v. Holder,
352 F. App’x 958 (5th Cir. 2009) (holding that “[t]he Florida false imprisonment offense is not
categorically a ‘crime of violence’ under [18 U.S.C. § 16(b)] because, in addition to forcible
imprisonments, the statute also punishes ‘confinement’ of a child without the consent of his or
7
We now move to the second part of the modified categorical approach,
inquiring whether the particular statutory phrase underlying Rosales-Bruno’s prior
false imprisonment conviction qualifies it as a “crime of violence.” See Johnson
130 S. Ct. at 1273. To prove that the conduct underlying Rosales-Bruno’s
conviction involved the use of “physical force” and was therefore a “crime of
violence,” the government introduced three documents: (1) the information, a
barebones document closely tracking the language of the three statutes that there
was probable cause to believe Rosales-Bruno had violated; (2) the judgment,
providing a record of conviction for two offenses to which Rosales-Bruno pleaded
nolo contendere; and (3) an arrest affidavit, a sworn document outlining the
arresting officer’s on-the-scene understanding of the details of the crimes.
We will not rely on the arrest affidavit in making this determination.
Evidence used to determine whether a prior guilty plea supported a conviction for
a violent felony must “be confined to records of the convicting court approaching
the certainty of the record of conviction.” Shepard, 544 U.S. at 23, 126 S. Ct. at
1261. Like the Massachusetts police reports and complaint applications at issue in
Shepard, the Florida arrest affidavit here was originally intended to be used to
her legal guardian, even if the child acquiesces or consents in fact to the confinement”).
8
assess probable cause for a prosecution, and departs from the certainty of the
record of conviction. Compare Mass. R. Crim. P. 3 & 4, with Fla. R. Crim. P.
3.140 (limiting charging instruments to either information or indictment); see
Burgess v. State, 831 So. 2d 137, 141 (Fla. 2002) (regarding such reports as
inadmissible “based on the belief that observations by officers at the scene of a
crime or when a defendant is arrested are not as reliable as observations by public
officials in other cases because of the adversarial nature of the confrontation
between the police and the defendant” (quotation marks omitted)). Thus, the
arrest affidavit did not have indicia of reliability sufficient to meet Shepard’s
requirements. See Shepard, 544 U.S. at 16, 126 S. Ct. at 1257.
We will not rely on Paragraph 30 of the PSR either. Rosales-Bruno
objected to the paragraph, which contains information from the arrest affidavit.
See Beckles, 565 F.3d at 843 (permitting the district court to rely on undisputed
statements in the PSR). The government claims that Rosales-Bruno’s objection to
the facts contained in Paragraph 30 of the PSR “was not made with the specificity
and clarity required to raise a genuine dispute with those facts.” It is true that
“vague assertions of inaccuracies” in the PSR are not enough to raise a factual
dispute; and that “instead the defendant must make clear and focused objections to
specific factual allegations made in the report.” United States v. Owen, 858 F.2d
9
1514, 1517 (11th Cir. 1988) (per curiam).
We find, however, that Rosales-Bruno clearly objected to specific parts of
Paragraph 30 of the PSR, disputing the factual accuracy of that paragraph’s
description of the conduct underlying his false imprisonment conviction. See PSR
Addendum (“The defendant also objects to paragraph 30 which contains the
circumstances of the false imprisonment case.”). This objection gave the notice
that the objection requirements are designed to ensure. See United States v.
Aleman, 832 F.2d 142, 145 (11th Cir. 1987) (noting, pre-Shepard, that the
objection requirements protect the district court from having “to guess whether a
challenge is being mounted as well as what [the] defendant wishes to contest.”).
Indeed, we have found similar objections to be sufficient. See, e.g., United States
v. Sneed, 600 F.3d 1326, 1328, 1333 (11th Cir. 2010) (finding erroneous, under
Shepard, the district court’s use of police reports to substantiate facts after
defendant “objected to the details of” a paragraph of the PSR). Thus, we conclude
that Rosales-Bruno’s objection was sufficiently clear and specific.
Relatedly, the government suggests that “in the face of a general denial of
PS[R] facts, without more, courts may rely on such facts in calculating the
guidelines without requiring the production of further evidence.” The cases the
government cites for that proposition are non-binding because they are out-of-
10
circuit. Equally significantly, none of the published cases the government cites
was decided after Shepard.
The government is correct that, pre-Shepard, there was some “slight”
burden for a defendant to substantiate his objection to a PSR. United States v.
Restrepo, 832 F.2d 146, 149 (11th Cir. 1987). It seems probable that Rosales-
Bruno would have met this pre-Shepard burden, since he would “not . . . be
required to prove” the negative proposition that he was not violent, and his narrow
objection to one paragraph of his PSR does not appear to be “just an attempt to
harass the government.” Id.
But, regardless, we have recognized that Shepard significantly impacted
how we analyze objections to the PSR. See Sneed, 600 F.3d at 1332–33
(concluding that Shepard abrograted prior panel precedent, and required the
holding that “courts may not use police reports to determine whether predicate
offenses . . . were committed on” different occasions). And we conclude that
Rosales-Bruno’s clear, specific objection to certain facts contained in Paragraph
30 of the PSR was enough to place on the government the burden of proving those
facts. See United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (“Where a
defendant objects to the factual basis of his sentence, the government has the
burden of establishing the disputed fact.”).
11
The remaining documents introduced by the government—the information
and judgment—were insufficient by themselves to support a finding that Rosales-
Bruno’s conviction for false imprisonment was a “crime of violence.” Essentially,
both documents recited the elements of § 787.02, an offense which we have
already concluded is not categorically a “crime of violence.”
The government urges us to read together all of the charges contained in the
information and judgment to infer a “crime of violence.” We find no support in
our precedents for reading charges collectively to infer the nature of a defendant’s
conduct. If anything, this approach is of dubious merit. See Shepard, 544 U.S. at
25 (plurality opinion) (counseling that principles of constitutional avoidance “limit
the scope of judicial factfinding on the disputed generic character of a prior plea”).
In any event, we decline to decide whether that course of action can at times
be appropriate because, in this case, we need not reach the question. The
information levied charges for three offenses: aggravated stalking, battery, and
false imprisonment. The aggravated stalking charge was nolle prossed, while
Rosales-Bruno ultimately pleaded nolo contendere to the battery and false
imprisonment charges. Like false imprisonment, a conviction for the other
charges contained in Rosales-Bruno’s information can be secured without the
“physical force” necessary to commit a crime of violence. See Johnson, 130 S. Ct.
12
at 1270–73 (deciding that battery, as defined under Florida law, is not
categorically a “violent felony”); United States v. Insaulgarat, 378 F.3d 456, 466
(5th Cir. 2004) (holding that aggravated stalking, as defined under Florida law, is
not categorically a “crime of violence”). Simply put, no conclusive implication of
violence can be drawn from the inclusion of three non-“crimes of violence” in the
judgment or information. So without some further evidence, even if we did read
the charges in the documents together, we would still lack assurance that Rosales-
Bruno “necessarily” committed a “crime of violence” by pleading guilty to false
imprisonment under Florida law. See Shepard, 544 U.S. at 21, 125 S. Ct. at 1260.
As a result of our conclusion that it was error to find Rosales-Bruno’s prior
conviction under § 787.02 was a “crime of violence” under U.S.S.G.
2L1.2(b)(1)(A), we vacate Rosales-Bruno’s sentence. We express no opinion,
however, as to what sentence would now be appropriate for Rosales-Bruno.
Instead, we remand so that the district court can resentence Rosales-Bruno on this
record, in light of the 18 U.S.C. § 3553(a) factors and this opinion.
VACATED and REMANDED.
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