United States v. Herrera

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 12, 2004
• Docket: 03-1654
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Herrera No. 03-1654 ELECTRONIC CITATION: 2004 FED App. 0222P (6th Cir.) File Name: 04a0222p.06 UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNED & PHELAN, Grand Rapids, Michigan, for Appellant. UNITED STATES COURT OF APPEALS Andrew B. Birge, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 03-1654 CLELAND, District Judge. Defendant Felix Herrera v. - appeals a sentencing determination that qualified him as a > career offender pursuant to § 4B1.1 of the United States , Sentencing Guidelines (U.S.S.G.). Defendant claims that the FELIX HERRERA , - Defendant-Appellant. - trial court erred in concluding that his previous state felony convictions for attempted taking of a firearm from a peace N officer, Mich. Comp. Laws § 750.479b(2), and for resisting Appeal from the United States District Court and obstructing a police officer, Mich. Comp. Laws for the Western District of Michigan at Grand Rapids. § 750.479(a), were “violent crimes” within the meaning of No. 02-00259—Richard A. Enslen, District Judge. U.S.S.G. § 4B1.2(a). For the reasons set forth below, we agree with the district judge’s decision as to the first of the Argued: June 16, 2004 two predicate convictions, find it unnecessary to reach the question of the second predicate conviction and AFFIRM the Decided and Filed: July 12, 2004 judgment of the district court.

Before: RYAN and COOK, Circuit Judges; CLELAND, I. FACTS AND PROCEDURAL HISTORY District Judge.* On July 22, 2002 in Lansing, Michigan, Defendant sold _________________ crack cocaine to an undercover officer and was confronted by a team of surveillance officers wearing jackets with the word COUNSEL “POLICE” emblazoned on them. According to the officers at the scene, Defendant initially did not comply with their ARGUED: Lawrence J. Phelan, HAEHNED & PHELAN, command to lie on the ground, but pulled a gun from his Grand Rapids, Michigan, for Appellant. Andrew B. Birge, waistband and swung it toward the officers. The officers dove for cover, and Defendant soon decided to lower his gun and obey the officers’ commands. On October 24, 2002, a * federal grand jury returned a three-count indictment against The Ho norable Robert H. Cleland, United States District Judge for Defendant, charging him with knowingly and intentionally the Eastern District of Michigan, sitting by designation.

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possessing cocaine base (crack) with the intent to distribute, On May 8, 2003, Defendant appeared before the district in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), being a court for sentencing and reasserted his objection to the convicted felon in possession of a firearm, in violation of presentence report. The court rejected his challenge, finding 18 U.S.C. § 922(g)(1), and carrying and brandishing a firearm that the conviction for attempt to disarm a police officer was in relation to a drug trafficking crime, in violation of a crime of violence as defined at U.S.S.G. § 4B1.2(a). The 18 U.S.C. § 924(c). Defendant entered a guilty plea to the court also went on to decide, “for the sake of completeness,” possession with intent to distribute charge (Count I) and the that Defendant’s conviction for resisting and obstructing a carrying and brandishing a firearm charge (Count III) on police officer also constituted a crime of violence. The effect January 6, 2003. Pursuant to the plea agreement, the final of this determination was to increase Defendant’s offense determination as to the length of Defendant’s sentence rested level from Level 13 to Level 29 and his guideline range from solely with the trial court, which would consider a 33-41 months to 151-188 months, accounting for a three-level presentence report and objections or suggestions from the reduction for acceptance of responsibility. Defendant’s government and Defendant. The government agreed to criminal history category, however, was unaffected because dismiss the felon in possession charge (Count II). Defendant was scored in Category VI based upon his prior record. About March 24, 2003, a presentence report was prepared, indicating that Defendant had been previously convicted in Defendant was sentenced to 160 months on Count I and 84 state court on numerous occasions. Among Defendant’s months on Count III, to be served consecutively for a total of myriad of past convictions were three convictions that the 244 months imprisonment. Defendant was ordered to pay a U.S. probation officer suggested were “crimes of violence” fine of $2,140.00 and $200.00 in special assessments, and under the U.S.S.G.: (1) a felonious assault which occurred on was required to remain on supervised release for a term of June 25, 1998; (2) an attempt to commit the crime of five years after his release from prison. On May 15, 2003, disarming a police officer which occurred on August 9, 2001; Defendant filed a timely notice of appeal. and (3) resisting and obstructing a police officer also on August 9, 2001. The last two offenses arose from the same II. STANDARD OF REVIEW occurrence in which Defendant fled on foot after police pulled him over for a traffic stop. When an officer caught and The district court’s interpretation of the Sentencing reached for Defendant, Defendant grabbed the officer’s gun Guidelines is a question of law, which we review de novo. and tried to pull it from its holster. The police officer was See United States v. Garza, 999 F.2d 1048, 1051 (6th Cir. able to subdue Defendant and place him into custody without 1993); see also United States v. Arnold, 58 F.3d 1117, 1120 further incident. Based upon these offenses, the probation (6th Cir. 1995) (applying de novo standard of review to the officer concluded that Defendant should be classified as a district court’s construction of the term “crime of violence” in career offender pursuant to U.S.S.G. § 4B1.1, under which a the Guidelines). defendant with two violent felony convictions or drug trafficking felony convictions is to be classified as a career offender. In a memorandum filed May 1, 2003, Defendant objected to the probation officer’s career offender recommendation. No. 03-1654 United States v. Herrera 5 6 United States v. Herrera No. 03-1654

III. DISCUSSION For purposes of this guideline--"Crime of violence" and "controlled substance offense" include the offenses of Pursuant to U.S.S.G. § 4B1.1: aiding and abetting, conspiring, and attempting to commit such offenses. A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant "Crime of violence" includes murder, manslaughter, committed the instant offense of conviction; (2) the kidnaping, aggravated assault, forcible sex offenses, instant offense of conviction is a felony that is either a robbery, arson, extortion, extortionate extension of crime of violence or a controlled substance offense; and credit, and burglary of a dwelling. Other offenses are (3) the defendant has at least two prior felony convictions included as "crimes of violence" if (A) that offense has of either a crime of violence or a controlled substance as an element the use, attempted use, or threatened use of offense. physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of U.S.S.G. § 4B1.1(a). which the defendant was convicted involved use of explosives (including any explosive material or Defendant does not dispute that the offense of conviction is destructive device) or, by its nature, presented a serious a felony committed after he attained the age of eighteen. He potential risk of physical injury to another. agrees also that his 1998 conviction for felonious assault qualifies as a violent crime. Defendant’s contention is that U.S.S.G. § 4B1.2 (application note 1) (emphasis added). neither his conviction for attempting to disarm a police officer nor his conviction for resisting and obstructing an officer A. Michigan Compiled Laws § 750.479b(2): Attempted qualify as a “crime of violence” for purposes of § 4B1.1(a). Taking of a Firearm from a Peace Officer The Guidelines define a “crime of violence” as: No panel of this Circuit has previously decided whether a conviction for attempting to disarm a police officer, Mich. any offense under federal or state law, punishable by Comp. Laws § 750.479b(2), is a “crime of violence” under imprisonment for a term exceeding one year, that-- the Guidelines. To examine this question, a “categorical approach” is used. See United States v. Harris, 165 F.3d (1) has as an element the use, attempted use, or 1062, 1068 (6th Cir. 1999); see also United States v. Arnold, threatened use of physical force against the person of 58 F.3d 1117, 1121 (6th Cir. 1995) (citing as analogous another, or Taylor v. United States, 495 U.S. 575 (1990)). Under this approach, the facts and circumstances underlying the (2) is burglary of a dwelling, arson, or extortion, involves defendant’s felony conviction are generally of no use of explosives, or otherwise involves conduct that consequence, and a court does no more than examine the presents a serious potential risk of physical injury to definition of the crime provided by the state legislature. See another. Arnold, 58 F.3d at 1121 (“[T]he categorical approach avoids U.S.S.G. § 4B1.2(a) (emphasis added). The application notes the impracticability and unfairness of allowing a sentencing further clarify the definition: court to engage in a broad factfinding inquiry relating to a defendant’s prior offenses.”). If the court were not convinced, No. 03-1654 United States v. Herrera 7 8 United States v. Herrera No. 03-1654

however, that the statutory formulation of the offense (d) The peace officer or corrections officer is authorized encompassed conduct that posed a serious potential of by his or her employer to carry the firearm in the line of physical injury, it could examine the indictment for the duty. specific conduct charged. See United States v. Arnold, 58 F.3d 1117, 1123 (6th Cir. 1995). Mich. Comp. Laws § 750.479b(2).

In examining the criminal statute, the court should not think Defendant first focuses on the word “serious” in the phrase only of the hypothetically possible but unusual conduct that “presents a serious potential risk of physical injury to might constitute an offense thereunder, but rather should another,” U.S.S.G. § 4B1.2(a)(1), and argues that there is not, focus on the ordinary way that conduct would violate the inherent in the disarming statute, a risk of serious injury. We statute. See United States v. Campbell, 256 F.3d 381, 396 (6th note, however, that the adjectives “serious” and “potential” Cir. 2001) (“In deciding whether the statutory crime both modify the word “risk,” not “injury.” Actual physical constitutes a ‘crime of violence,’ we examine ‘the typical run injury need not be certain upon the commission of the of conduct,’ for this sort of offense.”). offense. There need only be a risk of injury for which there is a serious potential in order to satisfy the Guideline. We The parties do not dispute that the offense of attempting to find that an affront to a police officer’s authority in the way disarm a police officer is not enumerated as a crime of contemplated in the statute presents not only a potential, but violence under the Guidelines and does not include the use, also a serious risk. attempted use, or threatened use of physical force as a necessary element. Rather, their argument centers on the The statute quite unmistakably contemplates a scenario in third method for identifying a crime of violence--whether the which the firearm is taken from a police officer. Before offense involves a “serious potential risk of physical injury to setting out the elements of the offense, the opening sentence another.” U.S.S.G. 4B1.2(a)(2). of the statute states that the statute is designed to punish “[a]n individual who takes a firearm from the lawful possession of The elements of Michigan Compiled Laws § 750.479b(2), a peace officer or a corrections officer.” Mich. Comp. Laws disarming a police officer, are: § 750.479b(2). Further, the elements require the firearm be taken while the officer is performing his duties by a person (a) The individual knows or has reason to believe the who “believe[s] the person from whom the firearm is taken is person from whom the firearm is taken is a peace officer a peace officer.” Id. (emphasis added); see also People v. or a corrections officer. Cooks, No. 210025, 2000 WL 33521057, *2 (Mich. Ct. App. Mar. 24, 2000) (“[T]he disarming an officer statute is (b) The peace officer or corrections officer is performing intended to prevent someone from attempting to and/or his or her duties as a peace officer or a corrections gaining access to an officer's firearm, thereby causing injury officer. to the officer.”). (c) The individual takes the firearm without consent of In almost all circumstances, an officer will have his firearm the peace officer or corrections officer. on his person or in the close vicinity when performing his official duties. It is obvious that a perpetrator’s attempt to gain possession of an officer’s weapon creates a situation No. 03-1654 United States v. Herrera 9 10 United States v. Herrera No. 03-1654

where there is not only a serious potential risk of physical serious potential risk that injury will result when officers injury, but most likely an extremely heightened risk of serious find the defendant and attempt to place him in custody. or even deadly injury. An officer will try to repel the attempt, which would create a risk of injury to the suspect and could United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994) also endanger anyone in the area. Further, the officer may be (internal citations omitted). Similarly, in the typical case, a injured in the scuffle that ensues, especially if the suspect person attempting to disarm an officer is fueled by adrenaline actually dispossesses the officer of his gun. The rather than reason and may act with further violence when the government’s review of Michigan case law involving attacks officer steps up his effort to maintain control of the situation against officers amply demonstrates the kind of risks and his firearm. involved. See, e.g., People v. Williams, No. 228730, 2002 WL 31424779, *2 (Mich. Ct. App. Oct. 29, 2002) (“violent, Analogous holdings of this and our sister circuits support violent, lengthy struggle” between two officers and suspect); a finding that the offense of attempting to disarm a police People v. Pope, No. 204645, 1999 WL 33453383, *1 (Mich. officer qualifies as a crime of violence. In United States v. Ct. App. Mar. 23, 1999) (“During the execution of the Payne, 163 F.3d 371 (6th Cir. 1998), we held that the offense warrant, defendant attempted to flee. When caught by an of larceny from the person, Mich. Comp. Laws § 750.357, officer, defendant struggled. He managed to disarm the was a crime of violence. We concluded that because the officer and shoot the officer before being shot himself.”). offense required the property be taken from the possession of the victim or from within the immediate presence or area of The district court noted that a police officer “is going to control of the victim, larceny from the person “clearly fiercely resist any effort” to seize the weapon. The court said [presented] the type of situation that could result in violence.” further that “[t]his creates a scenario rife with opportunity for Payne, 163 F.3d at 375. We stated, injury and death to people involved and anyone around, which makes the potential for violence an inherent aspect of Any person falling victim to a crime involving such an the offense.” We agree. invasion of personal space would likely resist or defend in a manner that could lead to immediate violence. The Tenth Circuit, examining a statute governing jail Whether or not violence or harm actually results in any escapes, said that given instance is not relevant. We agree with the First Circuit that “although larceny from the person 'typically every escape scenario is a powder keg, which may or involves no threat of violence,' the risk of ensuing may not explode into violence and result in physical struggle is omnipresent." injury to someone at any given time, but which always has the serious potential to do so . . . . A defendant who Id. (citing United States v. De Jesus, 984 F.2d 21, 24 (1st Cir. escapes from a jail is likely to possess a variety of 1993)). supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, Defendant argues that, because officers are trained to ordinary citizens, or even fellow escapees. handle dangerous situations, the offense of disarming an Consequently, violence could erupt at any time. Indeed, officer is less dangerous than larceny from the person. We even in a case where a defendant escapes from a jail by emphatically disagree and note that attempted disarming stealth and injures no one in the process, there is still a situations are in fact more fraught with danger because they No. 03-1654 United States v. Herrera 11 12 United States v. Herrera No. 03-1654

always involve inherently dangerous instrumentalities. The reasoning of United States v. Kaplansky, 42 F.3d 320 Further, the typical motive of a person who attempts to (6th Cir. 1994), further supports our finding that an attempt to disarm a police officer is markedly different from the likely disarm an officer is a crime of violence. In Kaplansky, we motive of a person who commits larceny from the person. held that even kidnaping by deception constituted a crime of The perpetrator who tries to gain possession of an officer’s violence, in part because the victim might realize what was gun is not ordinarily a mere thief, trying to make off with the happening and resist. Id. at 324. Similarly, even if a suspect firearm, but more often is trying to gain a tactical advantage merely takes a firearm from an officer’s constructive over the officer in a confrontational situation. The potential possession without contact (i.e., not from the officer’s risk of physical injury is plainly greater than a larceny from physical person), the officer may notice such threatening the person scenario. behavior and respond with force. Although it is true that the elements of the offense do not require physical violence or In another analogous case, the First Circuit held that assault force, as a practical matter force and a consequential serious and battery upon a police officer, even the non-violent variety risk of physical injury is typically likely to accompany such as proscribed by Massachusetts law, constituted a crime of an offense. violence. See United States v. Fernandez, 121 F.3d 777 (1st Cir. 1997). The court stated: We also reject Defendant’s argument that an attempt to disarm a police officer involves a less serious potential risk of It would seem self-evident that assault and battery upon injury than a completed crime of the same. Once a person a police officer usually involves force against another, endeavors to take an officer’s firearm without consent while and so meets that standard. At a minimum, assault and that officer is performing his or her duties, any risk of injury battery upon a police officer requires purposeful and that arises remains present whether the assailant is successful unwelcomed contact with a person the defendant knows in obtaining the gun or not. We understand that if the person to be a law enforcement officer actually engaged in the does succeed in gaining possession of the officer’s gun, performance of official duties. While it is true that especially in the presence of the officer or directly from the neither violence, nor the use of force, is an essential person of the officer, there is a greater likelihood that the risk element of the crime as statutorily defined, still, violence, of harm will materialize in actual harm. Moreover, we the use of force, and a serious risk of physical harm are understand that the officer would be placed in greater danger all likely to accompany an assault and battery upon a because he would be more vulnerable without his firearm. police officer. These facts are nonetheless irrelevant to the court’s inquiry because a significant risk of such injury still exists even Id. at 780. The court noted that the offense nearly always during an uncompleted attempt to commit the offense. See involves the intentional striking of an on-duty officer and thus United States v. Roberts, 59 Fed.Appx. 86, No. 01-5230, 2003 “nearly always poses a serious risk of actual or potential WL 343237, *4 (6th Cir. Feb. 12, 2003) (“First, we note that physical force and the likelihood of physical injury--to the § 4B1.2(a)(2), on its face, requires that the seriousness must police officer initially, and to the perpetrator (and even the reside in the risk, and not necessarily in the injury.”). We public) subsequently, when the officer reacts or attempts to believe that, more often than not, attempts to disarm officers subdue the offender.” Id. do not materialize into completed offenses because officers generally respond with some level of force (sometimes lethal) to repel their assailants. We reject the suggestion that the No. 03-1654 United States v. Herrera 13 14 United States v. Herrera No. 03-1654

likelihood of physical injury meaningfully diminishes (i.e., In this case, there are no due process implications for enough to conclude that a “serious” potential risk no longer Defendant’s guilty plea or eventual sentence. At the time he exists) when a person merely attempts to disarm an officer but entered his plea, Defendant acknowledged that he understood fails to complete the task. The commentary to the Guidelines the statutory maximum sentence and knew that the court supports such a view. It states that crimes of violence would use the Guidelines to make the final sentencing “include the offenses of aiding and abetting, conspiring, and determination. Moreover, the plea agreement states, “The attempting to commit such offenses. U.S.S.G. 4B1.2 defendant understands that, based on his criminal record, he (application note 1) (emphasis added). may qualify as a ‘Career Offender’ under § 4B1.1 of the Guidelines and receive a higher sentence under the Guidelines Accordingly, we agree with the district court’s than if he did not have the same criminal record.” It is determination that the offense as set forth in the disarming apparent from the signed plea agreement that Defendant’s statute inherently involves a serious potential risk of physical plea was knowingly and intelligently offered. The notice in injury, that it therefore constitutes a “crime of violence” under the agreement gave Defendant “sufficient awareness of the U.S.S.G. § 4B1.2 and that Defendant is a career offender. relevant circumstances and likely consequences” of his plea. Brady v. United States, 397 U.S. 742, 748 (1970); see also The district court made clear in its holding that Defendant’s United States v. Spires, 946 F.2d 896, No. 90-1864, 1991 WL felonious assault conviction coupled with his attempt to 211281, *2 (6th Cir. Oct. 21, 1991) (“As long as a defendant disarm an officer conviction was sufficient to satisfy the knows, before he enters his plea, the maximum sentence he career offender requirements in the guidelines. It was only can receive, due process does not require the court to inform “for the sake of completeness” that the district court analyzed the defendant of the specific sentencing guideline range that the resisting and obstructing conviction under Michigan will be applied.”). Compiled Laws § 750.479(a). We need not reach the issue of whether this additional predicate crime also constitutes a Further, Defendant was not denied due process at crime of violence. We choose to avoid the question because, sentencing because the district court provided him with given the findings we have already made, any possible reasonable notice that it was considering the enhancement and disagreement with the district court’s conclusion on this point provided Defendant with an opportunity to be heard on the would be of no consequence. issue. Oyler v. Boles, 368 U.S. 448, 452 (1962). Defendant received the presentence report, recommending that he be B. Due Process sentenced as a career offender, almost six weeks prior to his sentencing hearing and he was able to fully litigate the issue Defendant finally argues that “there are Due Process at his hearing. See United States v. Wilhite, 929 F.2d 702, concerns” with his sentence because, if affirmed, it No. 90-5931, 1991 WL 46512, *1 (6th Cir. Apr. 4, 1991) retroactively expands the punishment that he faces without (“Concerns for due process do not require that a criminal notice prior to his plea. Further, he claims he would have defendant be placed on advance notice of the application of a sought a more favorable plea (e.g., the negotiation of a career offender sentence under guideline 4B1.1, so long as the statutory cap) if he had known he faced such a severe defendant has, as he was in the instant case, been afforded an sentence. We review this constitutional challenge de novo. adequate opportunity to challenge the factual basis for See United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir. applying the enhancement.”). 1993). No. 03-1654 United States v. Herrera 15

CONCLUSION Defendant’s prior conviction for attempting to disarm a police officer, Michigan Compiled Laws § 750.479b(2), constitutes a crime of violence under U.S.S.G. § 4B1.2(a)(2). Defendant’s constitutional rights were not violated when he was classified as a career offender. The judgment of the district court is AFFIRMED.