Aggravated Battery Defined as Touching-Another-With-Deadly-Weapon Involves Threatened Use of Physical Force, Is Therefore 16-Level COV Under §2L1.2

United States v. Dominguez, No. 06-40292 (5th Cir. Feb. 12, 2007) (Davis, Stewart, Crone)

Dominguez once again finds the Fifth Circuit deciding whether a prior state conviction qualifies as a crime of violence under U.S.S.G. §2L1.2(b)(1)(A)(ii). This time the case involves a Florida conviction for aggravated battery. The documents from the prior conviction established that Dominguez had been convicted under Fla. Stat. Ann. §§ 784.03(1)(a)(1), 784.045(1)(a)(2) (1998). They provide that a person commits aggravated battery by "[u]s[ing] a deadly weapon" "in committing battery[,]" and define "battery" in relevant part as "[a]ctually and intentionally touch[ing] or strik[ing] another person against the will of the other[.]" Slip op. at 3-4 (first two alterations added).

The court didn't decide whether the Florida offense qualified as generic aggravated assault, an enumerated COV, because it held that the offense qualified under the force-element alternative of the COV defintion. The court acknowledged that the mere act of touching someone, even with a weapon, does not necessarily involve the use or attempted use of the type of violent, destructive force required by the COV definition. It held, however, that merely touching someone with a deadly weapon necessarily involves at a minimum the threatened use of violent physical force, which is sufficient to make it a COV:

Although an intentional touching with a deadly weapon under Florida law may not itself cause injury, it could lead to more violent conduct, or could at least put the victim on notice of the possibility that the weapon will be used more harshly in the future, thereby constituting a threatened use of force.

Slip op. at 9 (relying principally on United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. 2005)).