Florida Felony Battery Is Still a Crime of Violence: What the Eleventh Circuit's August 2026 Ruling Means for Federal Gun Sentences

If you carry a Florida felony battery conviction and you are now looking at a federal felon in possession charge, the base offense level the probation officer just wrote into your presentence report is not going away. On August 13, 2026, the Eleventh Circuit published a decision holding that Florida felony battery still qualifies as a crime of violence under the Sentencing Guidelines, and that the Supreme Court's 2021 ruling in Borden did not change that. The appeal came out of the Southern District of Florida on West Palm Beach facts.

A published Eleventh Circuit decision now binds every district court in Florida, Georgia, and Alabama on whether Florida felony battery is a crime of violence under the Sentencing Guidelines.

Key Takeaways

• The Eleventh Circuit held on August 13, 2026 that Florida felony battery under Fla. Stat. 784.041 is still a crime of violence under the Guidelines elements clause.
• Borden did not abrogate United States v. Vail-Bailon, because Borden is a plurality decision read on its narrowest ground under Marks v. United States.
• One qualifying prior raises the base offense level under U.S.S.G. 2K2.1(a)(3) for a conviction under 18 U.S.C. 922(g)(1). Two priors raise it further.
• Felon in possession now carries a fifteen year statutory maximum under 18 U.S.C. 924(a)(8), so guideline caps no longer flatten high offense levels.
• These predicate fights are won at the plea and PSI stage in the Southern District of Florida, not on appeal.

What the Eleventh Circuit Actually Decided

The defendant pleaded guilty to possession of a firearm and ammunition by a convicted felon under 18 U.S.C. 922(g)(1). His Florida priors included felony battery, attempted robbery, and manslaughter. Probation used attempted robbery and manslaughter to set a base offense level of 26 under U.S.S.G. 2K2.1(a)(1), then added four levels for possessing the firearm in connection with another felony, shooting into a dwelling under Fla. Stat. 790.19.

On the first appeal the court held that attempted robbery and manslaughter were not crimes of violence, vacated the sentence, and declined to decide whether felony battery qualified. On remand the district court used felony battery alone, dropping the base offense level to 22 under U.S.S.G. 2K2.1(a)(3) and producing a range of 84 to 105 months.

The second appeal put the felony battery question squarely in front of the panel. The argument was that Borden v. United States, 593 U.S. 420 (2021), which held that an offense satisfied by recklessness cannot be a violent felony under the Armed Career Criminal Act elements clause, undercut United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc). The panel affirmed. Vail-Bailon still controls.

Two of three predicates fell on the first appeal. The third carried the case. Removing attempted robbery and manslaughter moved the base offense level from 26 to 22 and the range from a truncated 120 months to 84 to 105 months.

Why the Plurality Problem Sank the Argument

Borden split four to one to four. Four justices read the phrase against the person of another as requiring targeted, volitional conduct. Justice Thomas reached the same result on different reasoning, holding that use of physical force means intentional acts designed to cause harm.

That difference decides everything. Florida felony battery requires an intentional touch or strike, so it satisfies the plurality's test. What it does not require is that the defendant intended the great bodily harm that resulted. Under Justice Thomas's reasoning that gap would take felony battery out of the elements clause. Under the plurality's, it does not.

The panel then applied the prior panel precedent rule. Borden never cited Vail-Bailon, never addressed the Florida statute, and left the circuit's pre-Borden recklessness law intact.

The concurring opinion is the part defense counsel should read twice. It says plainly that if Justice Thomas's reasoning had carried the day, Vail-Bailon would be abrogated. The argument is not frivolous. It is waiting for a majority.

"The concurring opinion is the part defense counsel should read twice. If Justice Thomas's reasoning had carried the day, Vail-Bailon would be abrogated. The argument is not frivolous. It is waiting for a majority."— Aaron M. Cohen, AMC Defense Law

The Exposure This Creates in a Federal Gun Case

Felon in possession now carries a fifteen year statutory maximum under 18 U.S.C. 924(a)(8), raised from ten. Under the old cap the guideline range was often truncated by the statutory maximum, which erased the difference between a high offense level and a very high one. That ceiling is gone.

With no qualifying prior the base offense level under U.S.S.G. 2K2.1 starts low. One prior crime of violence or controlled substance offense moves it to 20 or 22. Two move it to 24 or 26. On top sit the enhancements common to South Florida cases: a stolen firearm, an obliterated serial number, and the four level bump for another felony.

The distance is not academic. Removing two of three predicates here moved the range from a truncated 120 months down to 84 to 105 months. Roughly three years turned on the categorical status of a decade old state conviction.

If the priors also reach the Armed Career Criminal Act under 18 U.S.C. 924(e), the dispute stops being guideline math and becomes a fifteen year mandatory minimum. The circuit treats violent felony under the ACCA and crime of violence under the Guidelines as functionally identical.

The categorical status of a decade old state conviction is worth more time than most of the facts of the new case. That is the part clients never see coming.

The Mistakes That Cost Clients Years

The first is treating the plea agreement as separate from sentencing exposure. Here the defendant stipulated to facts that included his prior convictions. Those stipulations follow a client into the presentence report and make it harder to argue later that the government cannot prove which subsection of a divisible statute produced the conviction.

The second is failing to demand Shepard documents. Probation officers often build the predicate analysis from arrest affidavits and police narratives. Those are not the categorical record. Charging documents, plea colloquies, and judgments are.

The third is silence during the objection window. The government here raised an untimely objection after the final PSI to add a predicate the report missed, and the court entertained it.

The fourth is waiting for the indictment. By the time a 922(g) case is charged the criminal history is already run and the predicate theory is formed. Pre-indictment representation is where the charging decision is still in play, including whether the case stays in state court. Anyone holding a target letter should treat federal investigation defense as urgent.

How to Litigate a Predicate Fight After This Ruling

Attack the record first. Confirm from Shepard approved documents which Florida statute and which subsection produced the conviction. The panel limited its holding to Fla. Stat. 784.041 and declined to address battery under 784.03(2) or 784.07(2)(b). Priors that look like felony battery on a rap sheet frequently are not.

Preserve the Borden argument in writing at every stage. Circuit precedent falls when the Supreme Court revisits an issue, and the concurrence has now mapped exactly which reasoning would abrogate Vail-Bailon. A client sentenced today with a preserved objection is in a different position than one who conceded the point.

Then litigate the sentence rather than only the range. Where the calculation is locked in by binding precedent, leverage moves to 18 U.S.C. 3553(a). The age of a predicate and the distance between the conduct and the enhancement that captures it are arguments a district judge can act on. A federal sentencing attorney who prepares only the guideline objection has done half the job.

Why the Timing Matters Right Now

The decision is published, so it binds every district court in Florida, Georgia, and Alabama immediately. Any client between plea and sentencing with a Florida felony battery prior is affected today.

The window closes fast. Predicate stipulations are negotiated before the plea. Once the range is adopted the argument shifts to variance, and variance requires months of mitigation work. The clients who do best bring counsel in while the government is still deciding what to charge.

This is the same categorical analysis that decides whether a Florida assault prior becomes an aggravated felony for immigration purposes, and it turns on the same Shepard record.

Common Questions

Facing a Federal Gun Charge in Florida?

AMC Defense Law represents clients in federal firearms and violent crime prosecutions in the Southern, Middle, and Northern Districts of Florida and in federal courts nationwide. If you have a Florida battery or violent felony prior and you are under federal investigation, have received a target letter, or have been indicted, the predicate analysis should be done now rather than after the presentence report is written. Consultations are confidential.

The predicate analysis belongs at the plea and PSI stage, where the base offense level is still in play, not on appeal after the range has been adopted.

If you or your loved ones have been arrested or are under federal investigation for a firearms offense in Florida, call Aaron M. Cohen for a confidential consultation, 24 hours a day to get help.

This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney client relationship. Outcomes depend on the specific facts and procedural posture of each case. If you are facing a federal criminal investigation or charge, consult a qualified attorney about your situation.

About the author: Aaron M. Cohen is the founder of AMC Defense Law, a federal and state criminal defense firm based in Boca Raton, Florida. The firm represents clients in federal investigations and prosecutions involving firearms offenses, healthcare fraud, white collar crime, financial crimes, and complex federal sentencing litigation, in Florida and nationwide.