United States v. Martin

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Martin No. 03-1855 ELECTRONIC CITATION: 2004 FED App. 0249P (6th Cir.) File Name: 04a0249p.06 Appellant. Andrew Byerly Birge, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X SUTTON, Circuit Judge. A federal grand jury indicted Darrell Martin for possessing a firearm in violation of Plaintiff-Appellee, - 18 U.S.C. §§ 922(g) and 924(a)(2), and he pleaded guilty to - - No. 03-1855 the offense. Determining that the State of Michigan had v. - successfully prosecuted Martin for at least one prior “crime of > violence”—either third-degree fleeing and eluding or resisting , and obstructing a police officer—the district court gave DARRELL J. MART IN , - Defendant-Appellant. - Martin a base-offense level of 20 under § 2K2.1(a)(4)(A) of the Sentencing Guidelines. Martin appeals his sentence, N claiming that neither conviction constitutes a crime of Appeal from the United States District Court violence. Concluding that third-degree fleeing and eluding for the Western District of Michigan at Grand Rapids. under Michigan law is a crime of violence, we affirm. No. 03-00007—Gordon J. Quist, District Judge. I. Argued: June 16, 2004 On September 10, 2002, officers of the Muskegon, Decided and Filed: July 29, 2004 Michigan police department identified a stolen car and proceeded to follow it. As the car rounded a corner, it slowed Before: SILER, DAUGHTREY, and SUTTON, Circuit down and (before it had stopped) the two occupants of the car Judges. jumped out of the moving car and fled. Police chased the men but apprehended only one of them, whom they later _________________ identified as Darrell Martin. As the officers ordered Martin to the ground, they noticed a handgun lying on the ground COUNSEL five or six feet away. Martin acknowledged that he owned the weapon, and the officers arrested Martin and placed him ARGUED: Paul L. Nelson, FEDERAL PUBLIC in custody. DEFENDERS OFFICE, Grand Rapids, Michigan, for Appellant. Andrew Byerly Birge, UNITED STATES On January 9, 2003, a grand jury indicted Martin for being ATTORNEY, Grand Rapids, Michigan, for Appellee. a felon in possession of a firearm in violation of 18 U.S.C. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC §§ 922(g) and 924(a)(2). He pleaded guilty to the charge. DEFENDERS OFFICE, Grand Rapids, Michigan, for

1 No. 03-1855 United States v. Martin 3 4 United States v. Martin No. 03-1855

In its presentence report, the Government recommended a this instance, we need consider only whether Martin’s fleeing- base-offense level of 20 under § 2K2.1(a)(4)(A) of the and-eluding conviction qualifies. Sentencing Guidelines. That provision says defendants who violate certain firearms-related laws must receive a base- A. offense level of 20 if they committed the offense “subsequent to sustaining one felony conviction of [] a crime of violence,” Section 2K2.1(a)(4)(A) of the Sentencing Guidelines as defined by § 4B1.2(a) of the Guidelines and its application confers a base offense level of 20 on defendants convicted of note 1. In the Government’s view, Martin previously had offenses for “Unlawful Receipt, Possession, or Transportation been convicted of two qualifying offenses: (1) “Resisting and of Firearms or Ammunition; Prohibited Transactions Obstructing a Police Officer” under Mich. Comp. Laws Involving Firearms or Ammunition” if the defendant § 750.479 (as written prior to the 2002 amendments), and “committed any part of the [] offense subsequent to sustaining (2) “Fleeing and Eluding–3rd [degree]” under Mich. Comp. one felony conviction of either a crime of violence or a Laws § 750.479a(1) and (3). JA 68–69. Martin argued that controlled substance offense.” The application notes to the neither conviction constituted a “crime of violence” under the provision refer the reader to § 4B1.2(a) and its accompanying Guidelines and that his base-offense level should be 14, not application note 1 for a definition of a “crime of violence.” 20. U.S.S.G. § 2K2.1 cmt. n.5. Under the definition provided in § 4B1.2(a), “crimes of violence” encompass The district court adopted the Government’s recommendation. It then added a 2-level upward adjustment any offense under federal or state law, punishable by under U.S.S.G. § 2K2.1(b)(4) (possession of a stolen gun) and imprisonment for a term exceeding one year, that-- a 3-level downward adjustment under U.S.S.G. § 3E1.1 (1) has as an element the use, attempted use, or (acceptance of responsibility), all of which generated an threatened use of physical force against the person of offense level of 19. Combining this offense level with his another, or (2) is burglary of a dwelling, arson, or criminal history category (V), the Sentencing Guidelines gave extortion, involves use of explosives, or otherwise Martin a sentencing range of 57 to 71 months, and the district involves conduct that presents a serious potential risk of court sentenced him to a 57-month prison term. physical injury to another.

II. The accompanying application note expands the list of enumerated offenses to include “murder, manslaughter, Martin challenges his sentence on appeal, arguing that kidnapping, aggravated assault, forcible sex offenses, § 2K2.1(a)(4)(A) does not apply because he had not been robbery, arson, extortion, extortionate extension of credit, and convicted of any “crimes of violence” at the time he burglary of a dwelling” as “crimes of violence,” and reiterates committed the § 922(g) offense. As the parties agree, we give that other offenses also count as “crimes of violence” if fresh review to the legal question whether either of Martin’s convictions constitutes a “crime of violence.” See United (A) that offense has as an element the use, attempted use, States v. Bass, 315 F.3d 561, 564–65 (6th Cir. 2002). And as or threatened use of physical force against the person of the parties also agree, Martin’s sentence may be affirmed if another, or (B) the conduct set forth (i.e., expressly either the fleeing-and-eluding conviction or the resisting-and- charged) in the count of which the defendant was obstructing conviction amounts to a “crime of violence.” In convicted involved use of explosives (including any No. 03-1855 United States v. Martin 5 6 United States v. Martin No. 03-1855

explosive material or destructive device) or, by its nature, the indictment for the specific conduct charged.”) (quotation presented a serious potential risk of physical injury to omitted). another. B. U.S.S.G. § 4B1.2 cmt. n.1. Because neither the Guideline nor its application note names fleeing and eluding as a crime of Martin’s presentence report indicates, and the parties agree, violence, that offense must either (1) have “as an element the that Martin pleaded guilty to fleeing and eluding in the third use, attempted use, or threatened use of physical force against degree in violation of Michigan Compiled Laws the person of another” or (2) “present[] a serious potential risk § 750.479a(1) and (3). That statute says that “[a] driver of a of physical injury to another” to qualify. U.S.S.G. § 4B1.2(a) motor vehicle who is given . . . [a] signal by a[n] officer . . . & cmt. n.1. directing the driver to . . . stop shall not willfully fail to obey that direction by increasing the speed of the vehicle, In deciding whether an offense amounts to a “crime of extinguishing the lights of the vehicle, or otherwise violence” under these two tests, we have applied a attempting to flee or elude the . . . officer.” Mich. Comp. “categorical approach,” which is to say we have looked at Laws § 750.479a(1). A person commits the offense in the “the fact of conviction and the statutory definition of the third-degree if the violation “results in a collision or predicate offense,” not the “underlying facts regarding the accident,” if the violation “occurred in an area where the offense,” to determine whether either test is satisfied. United speed limit is 35 miles an hour or less” or if the defendant has States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995); see a previous conviction for actual or attempted fourth-degree United States v. Champion, 248 F.3d 502, 505 (6th Cir. 2001) fleeing and eluding or similar misconduct. Id. § 750.479a(3). (applying categorical approach in determining whether an The charging document—which is described in the offense has as an element “the use, attempted use, or presentence report (in language to which the defendant did threatened use of physical force”); United States v. Payne, not object)—says that Martin committed the third-degree 163 F.3d 371, 374 (6th Cir. 1998) (applying categorical offense by causing “a collision or an accident” or by failing approach in determining whether an offense entails “serious to stop while in a 35-mile-per-hour zone, or both. JA 69. potential risk of physical injury”); cf. Taylor v. United States, 495 U.S. 575, 602 (1990) (applying the same approach in Because fleeing and eluding does not have as an element determining whether an offense is a “violent felony” under “the use, attempted use, or threatened use of physical force the armed career criminal statute). If the relevant statute of against the person of another,” the pertinent question is conviction does not supply a clear answer to these inquiries, whether the offense “otherwise involves conduct that presents as Martin concedes, Appellant’s Br. at 16, the sentencing a serious potential risk of physical injury to another.” court may consult the indictment and either the jury U.S.S.G. § 4B1.2(a)(2). We believe that it does. instructions or plea agreement for the specific conduct with which the defendant was charged in order appropriately to When a motorist disobeys an officer and flees in his car, characterize the offense. See United States v. Kaplansky, 42 whether by “increasing [his] speed,” “extinguishing the F.3d 320, 322 (6th Cir. 1994) (en banc); see also Bass, 315 [car’s] lights” or by “otherwise attempting to flee,” that F.3d at 565 (“[W]hen it is not clear from the elements of the person creates a conspicuous potential risk of injury to offense alone whether the crime involved a serious risk of pedestrians, vehicles sharing the road, passengers in the potential injury to another, the sentencing court may review fleeing car and the pursuing officer. See United States v. No. 03-1855 United States v. Martin 7 8 United States v. Martin No. 03-1855

Howze, 343 F.3d 919, 922 (7th Cir. 2003) (noting that with Indeed, fleeing and eluding in most settings will pose a the offense of flight, “[b]ystanders are in particular jeopardy” greater risk of injury than escape. Howze, 343 F.3d at 922. and “[c]ollisions between fleeing vehicles and pedestrians or While an escape and fleeing alike involve the potential for others who get in the way are common”). That Martin dangerous confrontation between the suspect and police committed this offense either by causing a “collision or officers, not all escapes involve flight and the inherent third- accident,” Mich. Comp. Laws § 750.479a(3)(a), or by fleeing party risks that such conduct entails. Id. Because fleeing and in a 35-mile-per-hour zone (presumably a residential or eluding an officer while in a car generally will present serious school area), id. § 750.479a(3)(b), confirms the palpable risk potential risks of physical injury to third parties—the only of physical injury to others caused by flight under the statute. relevant inquiry—it necessarily qualifies as a “crime of violence” under the Guidelines. At the same time that flight itself creates a risk of injury to others, so too does the suspect’s eventual apprehension. By To date, two courts of appeals have reached a comparable making a deliberate choice to disobey a police officer, the conclusion. See Howze, 343 F.3d at 921–22 (determining that motorist provokes an inevitable, escalated confrontation with the offense of fleeing from an officer under Wisconsin law the officer. In this regard, fleeing and eluding resembles presents a “serious potential risk of physical injury to escape, see Howze, 343 F.3d at 921–22; United States v. another,” relying in large part on the offense’s similarity to, James, 337 F.3d 387, 391 n.4 (4th Cir. 2003), which nine and even greater potential for danger than, an escape); James, courts of appeals (including this one) have agreed constitutes 337 F.3d at 390–92 (same, South Carolina law). While a “crime of violence” under the Guidelines, regardless of Howze and James concluded that fleeing from an officer in a whether the defendant forcefully escaped from a maximum car “presents a serious potential risk of physical injury to security prison or walked away from a halfway house. See another” in the course of concluding that the offense is a United States v. Thomas, 361 F.3d 653, 656 & n.4 (D.C. Cir. “violent felony” under the armed career criminal statute, 2004) (citing cases); United States v. Harris, 165 F.3d 1062, 18 U.S.C. § 924(e), rather than a “crime of violence” under 1068 (6th Cir. 1999). Both escape and fleeing from a police the Sentencing Guidelines, this difference in the predicate officer represent “continuing offense[s],” Thomas, 361 F.3d provisions does not alter our analysis. The relevant language at 660, which heighten the emotions and adrenaline levels of of the two provisions—“serious potential risk of physical the parties involved, see United States v. Gosling, 39 F.3d injury to another”—is the same. And this Court has held that 1140, 1142 (10th Cir. 1994) (attributing the risk of injury the two provisions entail the same basic inquiry. See, e.g., inherent in escape at least partially to the “supercharged Arnold, 58 F.3d at 1121. emotions” involved in “evading those trying to recapture” the suspect), and which generally end with a confrontation That the Michigan fleeing-and-eluding statute may “be between the officer and the escapee or fleeing driver, Thomas, violated by conduct that is passive, non-violent, and non- 361 F.3d at 660. Such a confrontation “inherently presents threatening,” Appellant Br. at 17, does not demand a different the serious potential risk of physical injury” because the conclusion. The Guideline defines offenses presenting a fleeing driver “intent on his goal” of eluding the officer “faces “serious potential risk of physical injury” as crimes of the decision of whether to dispel the [officer’s] interference violence; it does not require that actual injury or violence or yield to it.” United States v. Dickerson, 77 F.3d 774, 777 occur or even that the risk of injury materialize in a given (4th Cir. 1996). case. See United States v. Winn, 364 F.3d 7, 11 (1st Cir. 2004) (“It is irrelevant whether the [crime of violence] No. 03-1855 United States v. Martin 9 10 United States v. Martin No. 03-1855

actually involved any violence.”) (quotation omitted); Payne, and non-violent crime, courts may look to the “nature and 163 F.3d at 375 (noting that “under the categorical approach” object of the [] activity as described in the indictment and it is not relevant whether a “physical injury actually occurred fleshed out in the jury instructions”). In this instance, in the case at bar”); Gosling, 39 F.3d at 1142 (acknowledging Martin’s indictment under the statute charged him with that escape “may or may not explode into violence and result fleeing that caused an accident, or fleeing in a 35-mile-per- in physical injury” but “always has the serious potential to do hour zone, or both. so”). To require crimes of violence in all fact patterns to lead to a violent or harmful end not only would ignore our Because the language of the Guideline is clear—that categorical approach to this inquiry, but it also would read the “potential” risk of injury rather than actual violence or injury “serious potential risk of physical injury” language out of the is the touchstone of a violent crime—Martin’s appeal to the Guideline. See U.S.S.G. § 4B1.2(a)(2); Thomas, 361 F.3d at rule of lenity does not add traction to his argument. See 658–59. United States v. Boucha, 236 F.3d 768, 774 (6th Cir. 2001) (noting that lenity applies if ambiguity remains after Nor does it make a difference that Martin could have considering the plain language and structure of the statute). violated the statute by committing a prior violation of fourth- Nor, at all events, is the rule of lenity the only safety valve degree fleeing and eluding instead of causing an accident or available. Had the district court believed that the calculation fleeing in a 35-mile-per-hour zone. See Mich. Comp. Laws of Martin’s criminal history category under the Guidelines § 750.479a(3) (stating that a defendant commits third-degree resulted in an inequitable sentence, § 4A1.3 would have fleeing and eluding if (1) “[t]he violation results in a collision permitted a downward adjustment. The court, however, or accident,” (2) “[a] portion of the violation occurred in an considered and rejected that option. area where the speed limit is 35 miles an hour or less” or (3) “[t]he individual has a prior conviction for fourth-degree III. fleeing and eluding, attempted fourth-degree fleeing and eluding, or fleeing and eluding under [another provision] For the foregoing reasons, we affirm the defendant’s prohibiting substantially similar conduct”). Even if it were sentence. true that the fourth-degree offense—which entails the same conduct as third-degree fleeing and eluding, but without the additional factor of an accident, a 35-mile-per-hour zone or a prior fleeing-and-eluding conviction, id. § 750.479a(2)—does not pose a serious potential risk of physical injury, as Martin alleges, case law makes clear that we must look at the conduct charged in the indictment when the statutory offense potentially covers violent and non-violent crimes. See Bass, 315 F.3d at 565–66 (noting that the indictment charged the defendant with “aggravated” child abuse while the statute under which the defendant was convicted encompassed a broader range of conduct); United States v. Winter, 22 F.3d 15, 18–19 (1st Cir. 1994) (determining that where the statutory definition of an offense encompasses both violent