A sentencing enhancement for a prior battery under Florida law stands despite a Supreme Court decision finding the Florida statute is not a crime of violence, but not without a dissent

When Rozier was sentenced in 2001 Rozier distributing crack cocaine, the sentencing court in the southern district of Florida enhanced the sentencing guideline applying the career offender provision because it found he had two prior felony convictions for a violent crime. One of the two predicate prior was a Florida felony for battery on a law enforcement officer in violation of Fla. Stat. §784.07(2)(b). Rozier appealed the enhancement on the grounds that the felony was not a crime of violence under §4B1.2(a) of the guidelines. The Eleventh Circuit affirmed the sentence in U.S. v. Rozier (Rozier I) reasoning that the crime of battery qualified as a crime of violence under the residual clause of guideline §4B1.2(a)(2) because in committing the unlawful touching “the offender creates the potential for violence to the officer, a violent response on the officer’s part and the risk of harm to bystanders.”

Following the decision in Rozier I, the Supreme Court decided Johnson v. U.S., 130 S.Ct. 1265 (2010), that Florida’s battery offense is not a “violent felony” under the Armed Career Criminal Act (ACCA) elements clause of 18 U.S.C. 924. In U.S. v Rozier, the defendant filed a 2255 motion to set aside his sentence relying on the Johnson case and the district court in Ft. Lauderdale denied the motion and issued a certificate of appealability on the issue of whether Johnson should be given retroactive application so that Rozier’s career offender status should be eliminated and he should be resentenced. But the Eleventh Circuit phrased the issue in this case as follows: “Whether the Supreme Court’s Johnson decision is a change in the controlling law that was applicable at the time of Rozier’s sentencing and at the time we affirmed his sentence.”

The Eleventh Circuit ruled that Johnson was not a change in the law. While the Johnson decision did find that the Florida felony of battery is not a violent felony under the elements clause of the ACCA, the Supreme Court did not reach the issue of whether the crime of battery is a crime of violence under the residual clause of the statute. Because there was no change in the controlling law since the Eleventh Circuit affirmed Rozier’s conviction in the first appeal, 2255 relief cannot be given. Even applying a modified categorical approach, which permits the court to determine which statutory phrase was the basis for the conviction by consulting the trial record, charging documents, plea agreements, transcripts of plea agreements, etc., there was a factual basis for the sentencing court to find that Rozier’s battery conviction was a crime of violence. The original panel affirmed the finding the prior conviction fit within the residual clause, and the Eleventh Circuit would not reverse the original panel’s decision based on Johnson.

The dissent expressed a different view. In this strongly worded opinion, the dissent said the Supreme Court made it clear in Johnson that the Eleventh Circuit was wrong when it decided that the battery on a law enforcement officer statute was not a crime of violence and for that reason Rozier’s prior conviction can not serve as an enhancement. In ruling on the §2255, the district court agreed that Johnson held the Florida battery statute was not a valid predicate offense for the enhancement, but the district court did not want to be the first court to hold that Johnson should be applied retroactively. For that reason it certified the question. The dissent is critical of the majority for deciding the case on the issue of whether Rozier’s enhancement had been affirmed under the residual clause when that had not been certified by the district court, nor had it been argued by the parties. It further criticized the majority’s decision that there is no conflict between Johnson and Rozier I. The dissent finds that Rozier I does not survive Johnson and the 2255 should have been granted.

In case you missed it, kindly read my previous post:
More than just voting rights must be restored for a person to be eligible to possess a firearm under federal law prohibiting possession by felons, December 22, 2012