Florida Attempted Aggravated Battery on LEO with LEO’s Firearm is § 2L1.2 Crime of Violence; Alien Smuggling and Illegal Reentry Grouped Together for § 3D1.2
He challenged the 12-level enhancement for a crime of violence (“COV”) and the sentencing court’s failure to group all counts together for § 3D1.2.
Garcia-Figueroa’s prior judgment used for the COV enhancement indicates he was convicted in 1991 for attempted aggravated battery on a law enforcement officer (“LEO”) with a LEO’s firearm in violation of Florida Statute §§ 784.07 (aggravated battery), 777.04 (attempt), and 775.0875 (third degree felony to take a firearm from a LEO lawfully engaged in law enforcement duties). Garcia-Figueroa’s argument focuses on the divisible Florida aggravated battery statute, 784.045(1)(a), arguing that the Shepard documents do not specify that Garcia-Figueroa committed aggravated battery with a deadly weapon. The panel disagrees and finds that the judgment establishes that Garcia-Figueroa used a deadly weapon, which would render the conviction a COV pursuant to United States v. Dominguez, 479 F.3d 345 (5th Cir. 2007). The panel also analyzes the elements of taking a firearm from a LEO lawfully engaged in law enforcement duties and finds that such an offense creates a sufficient threatened use of force to qualify as a § 2L1.2 COV under the elements clause.
Garcia-Figueroa also argues that Florida attempt is broader than the generic definition of attempt and that his conviction therefore does not qualify as a § 2L1.2 COV. Generic attempt follows the Model Penal Code’s substantial step test, which requires the substantial step to be “strongly corroborative of the actor’s criminal purpose.” MPC § 5.01(2). In contrast, Florida attempt includes “any act toward the commission” of an offense. Fla. Stat. §77.04(1) (1991). Nevertheless, the panel finds that Garcia-Figueroa failed to point to specific instances where Florida attempt was applied to conduct outside the ordinary meaning of attempt. He cited two Florida cases, but the panel finds that they would be covered by generic attempt. Thus, the panel affirms the 12-level enhancement.
However, the panel finds that the district court erred in its grouping calculations. Since the “victim” of both the alien smuggling and illegal reentry offenses is the societal interest protected by immigration laws, the immigration offenses should have been grouped together. See U.S.S.G. § 3D1.2 cmt. n.2. By grouping the alien smuggling counts together separate from the illegal reentry offense, the court applied an erroneous 2-level increase that resulted in a higher guideline range. Garcia-Figueroa was sentenced within the higher, incorrect range, and the transcript revealed that the sentence “was strongly grounded in the erroneously calculated Guidelines range.” The panel vacates Garcia-Figueroa’s sentence and remands for resentencing.