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defendanthearingpleafelonydeportationsentencing guidelines
defendanthearingpleadomestic violencefelonydeportationsentencing guidelines

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United States v. Llanos-Agostadero

Facts

On March 16, 2006, Llanos-Agostadero, a native and citizen of Mexico, was indicted for illegally re-entering the United States following his Florida conviction for aggravated battery on a pregnant woman and subsequent deportation, in violation of 8 U.S.C. 1326. At his plea hearing, he admitted the factual basis of the indictment and pleaded guilty without a written plea agreement. The presentence investigation report stated that he had been twice convicted for aggravated battery on a pregnant woman, detailing instances of physical violence against his pregnant wife.

On March 16, 2006, Llanos-Agostadero, a native and citizen of Mexico, was indicted for illegally re-entering the United States following his Florida conviction for aggravated battery on a pregnant woman and subsequent deportation, in violation of 8 U.S.C. 1326. At his plea hearing, Llanos-Agostadero admitted the factual basis of the indictment and pleaded guilty without a written plea agreement. The presentence investigation report ('PSI') stated that Llanos-Agostadero had been twice convicted for aggravated battery on a pregnant woman.

Issue

Whether the offense of aggravated battery on a pregnant woman, in violation of Fla. Stat. 784.045(1)(b), constitutes a 'crime of violence' under 2L1.2 of the U.S. Sentencing Guidelines.

The issue presented here is whether the offense of aggravated battery on a pregnant woman, in violation of Fla. Stat. 784.045(1)(b), constitutes a 'crime of violence' under 2L1.2 of the U.S. Sentencing Guidelines. We hold that it does.

Rule

The Sentencing Guidelines provide for a 16-level enhancement of a defendant's offense level if the defendant previously was deported after a conviction for a felony that is a 'crime of violence.' A 'crime of violence' is defined as any offense that has as an element the use, attempted use, or threatened use of physical force against the person of another.

The Sentencing Guidelines provide for a 16-level enhancement of a defendant's offense level if the defendant previously 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). The Application Notes for U.S.S.G. 2L1.2(b)(1) provide that a 'crime of violence' means, inter alia, 'any offense under . . . state . . . law that has as an element the use, attempted use, or threatened use of physical force against the person of another.'

Analysis

The court applied the categorical approach to determine whether Llanos-Agostadero's prior convictions for aggravated battery constituted crimes of violence. It found that the offense of aggravated battery on a pregnant woman under Florida law includes the essential element of simple battery, which involves the use of physical force. The court concluded that there was no meaningful distinction between this offense and other recognized crimes of violence, affirming that aggravated battery on a pregnant woman is indeed a crime of violence under the relevant guidelines.

In our view, the offenses at issue in Glover and Griffith cannot be meaningfully distinguished from the offense at issue in the instant case, at least with regards to determining whether the offense is a 'crime of violence' under U.S.S.G. 2L1.2(b)(1). First, there is no meaningful distinction between the definition of a 'crime of violence' under 2L1.2(b)(1) (at issue in the instant case), the definition of a 'crime of violence' under 4B1.2(a) (at issue in Glover), or the definition of a 'crime of domestic violence' under 18 U.S.C. 922(g)(9) (at issue in Griffith). Moreover, the offense of aggravated battery on a pregnant woman under Florida law has as an element that the defendant commit simple battery, Small, 889 So. 2d at 863, and there is no persuasive reason why simple battery on a law enforcement officer is a 'crime of violence,' as this court held in Glover, 431 F.3d at 749, while simple battery on a pregnant woman (which constitutes aggravated battery) is not.

Conclusion

The appellate court affirmed the district court's judgment, holding that the district court did not err in determining that Llanos-Agostadero's prior convictions for aggravated battery on a pregnant woman were crimes of violence for purposes of the 16-level enhancement under U.S. Sentencing Guidelines.

We therefore conclude that aggravated battery on a pregnant woman, in violation of Fla. Stat. 784.045(1)(b), is a crime of violence under U.S.S.G. 2L1.2(b)(1). Accordingly, the district court did not err in holding that Llanos-Agostadero's prior convictions for aggravated battery on a pregnant woman were crimes of violence for purposes of the 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii).

Who won?

The United States prevailed in the case, as the appellate court affirmed the district court's decision, agreeing that aggravated battery on a pregnant woman constituted a crime of violence.

The judgment of the district court was affirmed.

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