Florida Felony Battery Remains a Guidelines “Crime of Violence” After Borden: Borden Does Not Abrogate Vail-Bailon

1. Introduction

In United States v. Thomas Sheely, Jr. (11th Cir. Aug. 13, 2026), the Eleventh Circuit addressed whether a prior conviction for Florida felony battery, Fla. Stat. § 784.041, still qualifies as a “crime of violence” under the elements clause of the Sentencing Guidelines after the Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021). The defendant, Thomas James Sheely, Jr., appealed an 84-month sentence for being a felon in possession under 18 U.S.C. § 922(g)(1), arguing that Borden undermined the Eleventh Circuit’s en banc precedent United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc).

The central issue was not the facts of the firearm offense, but the legal characterization of the predicate offense: whether Fla. Stat. § 784.041 categorically requires the kind of intentional force the elements clause demands—or whether, in light of Borden, the statute can be satisfied by less culpable mental states (like recklessness), which would disqualify it.

The appeal arrived after an earlier remand in United States v. Sheely, 2024 WL 4003394 (11th Cir. Aug. 30, 2024), where the Eleventh Circuit vacated Sheely’s initial sentence because attempted robbery and manslaughter were deemed not to qualify as “crimes of violence” for the enhancement used at the time. On remand, the guideline range depended on whether felony battery still counted.

2. Summary of the Opinion

The Eleventh Circuit affirmed Sheely’s 84-month sentence. It held that:

  • Vail-Bailon remains binding circuit precedent that Florida felony battery, Fla. Stat. § 784.041, is a “crime of violence” under the Guidelines’ elements clause.
  • Borden did not abrogate Vail-Bailon because it was not “clearly on point” and “clearly contrary,” did not address § 784.041, and did not “demolish” the fundamental premises of Vail-Bailon.
  • The mens rea issue was not absent from Vail-Bailon; the en banc court considered and rejected mens rea-based hypotheticals, concluding felony battery requires an intentional use of force.

Judge Rosenbaum concurred to clarify that the four-Justice plurality in Borden is largely agnostic about Florida felony battery. In her view, only Justice Thomas’s separate reasoning (not adopted by the plurality) would directly support Sheely’s argument.

3. Analysis

A. Precedents Cited

1) Binding circuit precedent on Florida felony battery

  • United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc): The cornerstone precedent. It held Florida felony battery categorically qualifies as a “crime of violence” under the elements clause because it requires “physical force” (as defined in Curtis Johnson) and requires intentional conduct. The panel in Sheely treats Vail-Bailon as controlling unless abrogated.
  • United States v. Green, 873 F.3d 846 (11th Cir. 2017): Cited in the procedural history to show post-Vail-Bailon reliance treating felony battery as a qualifying predicate.

2) Supreme Court elements-clause decisions shaping “physical force” and mens rea

  • Curtis Johnson v. United States, 559 U.S. 133 (2010): Provided the definition of “physical force” as “violent force ... capable of causing physical pain or injury.” Vail-Bailon applied this definition to Florida felony battery.
  • Leocal v. Ashcroft, 543 U.S. 1, 125 (2004): Used in Vail-Bailon to distinguish crimes lacking intentional force “against another.” Vail-Bailon rejected the analogy because § 784.041 requires intentional use of force.
  • Borden v. United States, 593 U.S. 420 (2021): Held (under the narrowest reading) that offenses satisfiable by recklessness do not qualify under the ACCA elements clause. The panel emphasizes Borden is a plurality decision and applies it narrowly.

3) Plurality-opinion methodology

  • Marks v. United States, 430 U.S. 188 (1977) (quoting Gre v. Georgia, 428 U.S. 153 (1976)): The “narrowest grounds” rule for fractured Supreme Court decisions. The panel uses Marks to justify reading Borden narrowly—i.e., as establishing only that recklessness is excluded.
  • Greater Birmingham Ministries v. Sec'y of State for State of Ala., 992 F.3d 1299 (11th Cir. 2021): Cited for the Eleventh Circuit’s obligation to apply the narrowest grounds of a plurality decision.
  • Somers v. United States, 66 F.4th 890 (11th Cir. 2023): Interprets Borden narrowly as excluding reckless conduct from the elements clause—reinforcing the approach used in Sheely.

4) The Eleventh Circuit’s prior-panel precedent rule and abrogation standards

  • United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) (prior-panel precedent rule statement).
  • Edwards v. U.S. Att'y Gen., 97 F.4th 725 (11th Cir. 2024) and Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288 (11th Cir. 2003) (“clearly on point” and “clearly contrary” requirement).
  • United States v. Dubois, 139 F.4th 887 (11th Cir. 2025), United States v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008), and Del Castillo v. Sec'y, Fla. Dep't of Health, 26 F.4th 1214 (11th Cir. 2022) (abrogation requires “demolish”/“eviscerate” fundamental props).
  • United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009) (intervening Supreme Court decision must directly conflict, not merely weaken).

5) Circuit law on recklessness and “use of physical force” predating Borden

  • United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010): Held that a predicate offense with a mens rea of recklessness does not satisfy the “use of physical force” requirement for a “crime of violence.” The panel uses this to show Borden did not revolutionize Eleventh Circuit doctrine.
  • United States v. Carter, 7 F.4th 1039 (11th Cir. 2021) (same general proposition post-Borden).
  • United States v. Moss, 920 F.3d 752 (11th Cir. 2019), opinion rein- stated, 4 F.4th 1292 (11th Cir. 2021) (en banc): Cited via Borden as consistent with the rule that only purposeful/knowing conduct qualifies.

6) Additional cited authorities framing the case

  • United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc), United States v. Wilson, 392 F.3d 1243 (11th Cir. 2004), and United States v. Fuentes-Rivera, 323 F.3d 869 (11th Cir. 2003) (standard of review for guideline interpretation and crime-of-violence determinations).
  • Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc) (ACCA “violent felony” and Guidelines “crime of violence” treated as virtually identical for elements-clause analysis).
  • Shepard v. United States, 544 U.S. 13 (2005) (raised in the PSI objections about permissible documents, though not decisive to the panel’s holding here).
  • Concurrence-only Florida authority: T.S. v. State, 965 So. 2d 1288 (Fla. Dist. Ct. App. 2007) (Florida felony battery does not require intent to cause “great bodily harm,” relevant to the concurrence’s discussion of Justice Thomas’s theory in Borden).

B. Legal Reasoning

1) The controlling rule: prior-panel precedent and abrogation

The panel’s analysis is driven by a hierarchical constraint: Vail-Bailon is en banc Eleventh Circuit precedent, so it binds later panels unless the Supreme Court or the Eleventh Circuit en banc overrules it, or the Supreme Court undermines it to the point of abrogation. The panel applies the circuit’s strict abrogation standard: a Supreme Court decision must be “clearly on point” and “clearly contrary,” and must “demolish” the “fundamental props” of the earlier decision.

2) Why Borden does not abrogate Vail-Bailon

The panel gives several independent reasons:

  • Plurality limits under Marks: Because Borden is fragmented, the court treats its binding holding narrowly—the exclusion of reckless conduct from the elements clause.
  • Not the same statute; not “on point”: Borden involved reckless aggravated assault under Tennessee law; Vail-Bailon involved Fla. Stat. § 784.041. The Supreme Court did not discuss Vail-Bailon or directly address Florida felony battery.
  • No demolition of Vail-Bailon’s foundations: The Eleventh Circuit already had a pre-Borden rule that reckless offenses do not qualify as crimes of violence (e.g., United States v. Palomino Garcia), so Borden did not upend the circuit’s relevant doctrinal framework.
  • Mens rea was not ignored in Vail-Bailon: The panel rejects Sheely’s argument that Vail-Bailon failed to consider mens rea; it states the issue was briefed and tested via hypotheticals, and Vail-Bailon held § 784.041 requires an intentional act using force “against the victim.”

3) The concurrence’s refinement: Borden’s plurality is “agnostic” here

Judge Rosenbaum adds an important interpretive nuance: Sheely’s preferred reading would depend on Justice Thomas’s conception of “use of physical force” as requiring “intentional acts designed to cause harm.” Under Florida law, felony battery requires an intentional touch/strike but does not require intent to cause the resulting great bodily harm (citing T.S. v. State). If Justice Thomas’s rationale had controlled, that mismatch could have supported reclassification.

But the four-Justice Borden plurality anchored its reasoning in the phrase “against the person of another”, focusing on targeted/volitional action. Because Florida felony battery requires an intentional touch or strike against the will of another, the plurality’s reasoning does not affirmatively help Sheely. The concurrence therefore reinforces (in a different register) the panel’s bottom line: Borden does not displace Vail-Bailon.

C. Impact

  • Sentencing continuity in the Eleventh Circuit: The decision cements that Fla. Stat. § 784.041 remains a qualifying “crime of violence” for Guidelines enhancements that incorporate the elements clause, including U.S.S.G. § 2K2.1(a)(3), notwithstanding post-Borden litigation strategies.
  • Constrained use of Borden in Guidelines litigation: The opinion signals that defendants cannot leverage Borden to reopen settled circuit classifications unless the predicate statute can be committed with recklessness (under the narrow Marks holding) or unless the Supreme Court squarely addresses the same predicate offense or directly conflicts with the circuit’s precedent.
  • Institutional emphasis on stare decisis mechanisms: The opinion is as much about the mechanics of precedent (panel rule, abrogation threshold, plurality interpretation) as about felony battery itself—providing a template for future disputes where litigants claim Supreme Court “undermining” rather than direct overruling.

4. Complex Concepts Simplified

  • “Elements clause”: A definition that looks to what a crime’s legal elements require—typically whether the crime has, as an element, the “use, attempted use, or threatened use” of force.
  • “Crime of violence” vs. “violent felony”: Different statutes/guidelines use different labels, but the Eleventh Circuit often treats their elements-clause analyses as interchangeable (see Gilbert v. United States).
  • Mens rea (mental state): The level of intent required (purposeful, knowing, reckless, negligent). Borden (narrowly) excludes crimes that can be committed with recklessness.
  • Plurality opinions and the Marks rule: When no single Supreme Court rationale has five votes, lower courts apply the position supporting the judgment on the “narrowest grounds” (Marks v. United States). Here, that is read as: “recklessness is not enough.”
  • Prior-panel precedent rule / abrogation: A later panel cannot disregard earlier binding circuit decisions unless a higher authority clearly overrules them or directly conflicts with them. Mere tension is not enough.

5. Conclusion

United States v. Thomas Sheely, Jr. reaffirms that Florida felony battery (Fla. Stat. § 784.041) remains a “crime of violence” under the Sentencing Guidelines’ elements clause in the Eleventh Circuit. The court holds that Borden v. United States—properly read under Marks v. United States—does not abrogate United States v. Vail-Bailon, because Borden is not squarely on point, does not directly conflict, and does not dismantle the foundation of the en banc holding that felony battery requires intentional force capable of causing pain or injury.

The concurrence underscores a practical lesson for post-Borden challenges: unless the Supreme Court’s controlling rationale directly addresses the mismatch at issue, a plurality decision will rarely suffice to dislodge entrenched circuit precedent—especially where the circuit can characterize the Supreme Court holding narrowly and harmonize it with existing doctrine.