Where a divisible offense may be committed two ways, one of which satisfies the 'crime of violence' element of physical force, and one of which does not, and where the factual basis for the plea could establish either offense, may the federal sentencing court find the defendant was necessarily convicted of the qualifying offense, or must the federal court presume the defendant was convicted of the non-qualifying offense?

QUESTIONS PRESENTED I Where a divisible offense may be committed two ways, one of which satisfies the “crime of violence” element of physical force, and one of which does not, and where the factual basis for the plea could establish either offense, may the federal sentencing court find the defendant was necessarily convicted of the qualifying offense, as in the case below, or must the federal court presume the defendant was convicted of the non-qualifying offense, as in United States v. Horse Looking, 828 F.3d 744 (8th Cir. 2016)? II Whether convictions based upon pleas of nolo contendere support the application of the modified categorical approach to establish a Guidelines “crime of violence” where the Florida convictions do not incorporate admissions of guilt, like the guilty pleas in Shepard v. United States, 544 U.S. 13 (2005), and whether the district court violated the Full Faith & Credit statute because Florida courts would not construe the prior judgments to encompass findings of battery by “intentionally causing bodily harm” necessary to establish the “physical force” element of a crime of violence? [NOTE: This petition presents the same issues presented in the petition for writ of certiorari filed to review United States v. Lee, 2019 WL 2448250 (11th Cir. June 11, 2019), filed contemporaneously herewith.] i PARTIES INVOLVED All parties appear in the caption of the case on the cover page. ii