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August 26, 2017

Split en banc Eleventh Circuit concludes Florida felony battery is "crime of violence" under FSG

A remarkable amount of energy and (digital?) link has been spent assessing and reviewing what criminal history counts or does not count as a crime of violence under various provisions of federal sentencing law.  That amount grew that much more on Friday with the release of an 67-page en banc ruling by the Eleventh Circuit in US v. Vail-Bailon, No. 15-10351 (11th Cir. Aug. 25, 2017) (available here). This opening paragraph by the majority provides the basics:

This appeal requires us to decide whether Florida felony battery is a crime of violence under the Sentencing Guidelines. Defendant Eddy Wilmer Vail-Bailon was convicted in 2014 of illegally reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(1), after having been deported following a conviction for felony battery under Florida Statute § 784.041.  Based on Vail-Bailon’s felony battery conviction, the district court imposed a sentencing enhancement that applies when a defendant has been deported after committing a crime of violence as defined by the applicable Guidelines provision. Vail-Bailon appealed his sentence, arguing that a Florida felony battery conviction does not qualify as a crime of violence. A divided panel of this Court agreed with Vail-Bailon, and vacated his sentence. See United States v. Vail-Bailon, 838 F.3d 1091 (11th Cir. 2016), reh’g en banc granted, opinion vacated (11th Cir. Nov. 21, 2016). Our full Court granted the Government’s petition to rehear the case en banc, and we now hold that Florida felony battery does categorically qualify as a crime of violence under § 2L1.2 of the Guidelines. Thus, we affirm and reinstate Vail-Bailon’s sentence.

The majority thereafter needs 30 pages to explain its "crime of violence" conclusions, and the dissenters need more than 30 to explain why they think the majority got this wrong. The lead dissent gets started this way:

If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act?  Most would say no.  But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. 

August 26, 2017 at 05:22 PM | Permalink


In the dissent scenario, the force resulting in a concussion was from the unforeseen intervening causes of startle and of tripping. The tapping battery is not a crime, but a tort.

It is ironic. The tort may result in the loss of $millions for traumatic brain injury care. The crime, battery, of intentionally punching someone in the face, may result in a ticket. Since most violent criminals are judgement proof, the public has to pay for most of the cost of their crime.

This illustrates that the criminal law a sick joke, and a horrific prank on our nation.

Posted by: David Behar | Aug 26, 2017 6:04:03 PM

You can think I'm crazy but I've been come convinced that leaving it up to federal courts to determine whether a state crime falls within the definition of a federal crime violates the nondelgation principle laid down in J. W. Hampton, Jr., & Co. v. United States and Mistretta v. United States. The problem is that the definition of a crime of violence is not a policy choice at all, it is a definition. What state crimes fall under the federal definition of a crime of violence? Congress doesn't say. It delegates that authority to the judiciary. This is not the case like taxes where Congress decides what taxes are owed and the IRS determines who owns them, here the judiciary is being tasked with determining what the tax rates are in the first place and then determining who owns them. Congress can't delegate the definitions of words in a statute to the judiciary.

Posted by: Daniel | Aug 26, 2017 6:40:09 PM

Daniel. Does this help?

18 U.S. Code § 16 - Crime of violence defined

The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

In over 100 decisions, the US Supreme Court has ruled that the meaning of a word is its dictionary definition. So, if any of the words in the above seem confusing, check its meaning in the dictionary.

So, if you ask, what is this "substantial" you Americans say, substantial means, a lot, not a little.

Posted by: David Behar | Aug 27, 2017 12:43:13 AM


Your response proves my point. First, one cannot apply the ordinary meaning canon of construction because the term of "crime of violence" is a term of legal art that does not meet its ordinary meaning, otherwise Congress would not have gone to the trouble to "define" it in terms of the statute. So this leaves us with the question of what the term actually means if we cannot rely on its ordinary meaning. Second, Congress has defined a crime of violence to be any crime that involves physical force. But which state crimes involves physical force? Congress doesn't say. It delegates that determination to the courts. It is this delegation that I find problematic. Why? Because which state crimes are crimes of violence cannot an be determined by the "ordinary meaning" of the state statute, it requires an act of legal interpretation. It is my view that Congress cannot delegate an act of legal interpretation to the judiciary. Note that I am not saying that the judiciary cannot engage in legal interpretation, it can, it is simply that Congress itself cannot delegate that task by statute.

It is useful to take a step back look at the big picture. We think of Congress as the policy making body. But what is policy? And how does an act of policy making differ from the act of legal interpretation of that policy? One answer to that question has been that Congress defines the policy at a general level and then leaves it to the other branches to fill in the details. I'd argue, however, that when Congress defines a policy at too high a level of generality it amounts to a delegation of its policy making authority. Because if it didn't Congress could pass a law that said in totality, "the executive can do whatever it likes" and such a law would pass Constitutional muster. I don't think that right. I think Congress has to define policy at a level of specificity that people can tell what the policy is. And a policy that says a crime of violence is a crime that involves physical force is not a definition at all, it is an delegation of policy making authority to the courts under the guise of providing a definition.

Posted by: Daniel | Aug 27, 2017 12:13:21 PM

Are you asking Congress to put in a draft of the law, the two acts described in the dissent? Then, should Congress make a policy decision on every unwanted touching resulting in any harm whatsoever, ever recorded in history?

Tell me if I am understanding your point.

If I am, help is on the way.

I already discussed the Google super computer that beat the best Go player. Chess has 37 possible moves every move. Computers beat the best humans long ago. I thought that computing power would cover all professions. Now, Go has a billion possible moves. The human Go player said, the computer came up with a move no human could have.

That means an algorithm written by a legislature could cover all past acts, billions of them, get upgraded yearly with any unrecorded acts that year. So that the time of the Congress is not taken up deciding on every new act of battery that year, an algorithm could be written to judge every new battery, and to modify the algorithm of battery.

Hey, lawyers, get with it, you morons. Artificial intelligence. But, first try ditching the 13th Century, you morons.

Posted by: David Behar | Aug 27, 2017 10:28:57 PM

"Are you asking Congress to put in a draft of the law, the two acts described in the dissent?"

No. I'm saying that there is a level of generality that is too general. Where that line is I think reasonable people can disagree on but IMO a "crime of violence" meets my test and is therefore unconstitutional. Note that this level of generality test is a different argument than the "void for vagueness" argument recently rejected by SCOTUS in Beckles.

As for justice by computer algorithm that is not a new idea. However, in my view that would turn Congress from a policy making body into a rule making body, I recognize that some people think that would be a wonderful development but I would not.

Posted by: Daniel | Aug 28, 2017 11:17:39 AM

Daniel. Having trouble understanding. Draft a brief law that is clear policy, but not rule making about every specific situation that has ever happened. Make it easy for the cab driver on the jury to decide if an act was a violent one.

Posted by: David Behar | Aug 28, 2017 11:38:31 AM


If it were only "crime of violence" I might agree, but the operative definition is the language David Behar quoted:The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

If you are going to argue that something is too vague you need to argue against the provided definition, not the term employed in the statute to refer to that definition.

Posted by: Soronel Haetir | Aug 28, 2017 2:34:33 PM

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