Escape as Crime of Violence? No!

Way to go, Mr. Geoff Upshaw!  Mr. Upshaw is a member of our WD Mich CJA Panel and got this great victory!

United States v. Covington, 738 F.3d 759 (6th Cir. 2014).

Panel of Judges Rogers, Stranch, and Donald. 

Is prison escape under MCL 750.193 a crime of violence?  No. 

The plea colloquy from the state escape conviction showed that the defendant had left the correction center with permission on a laundry pass and returned ten minutes late. Believing he would be sent back to prison for violating the center's rules, the defendant went out a window, jumped a fence, and ran through a wooded area to escape.

Court applied Descamps. 

Because the statute gives several ways in which it may be violated, including some escapes that involve the element of breaking and some that do not, the statute is divisible for Descamps purposes.  Modified categorical approach applies. 

Offense here was a breaking-and-escaping offense. 

COA reminds us that the powder-keg theory is no longer persuasive. 

Court found that breaking and escaping from prison and burglary of a dwelling share only one risk: the potential for discovery and capture.  The COA says this factor is not one to consider post-Anglin.  Even if the Court were to consider such a risk of confrontation, the risk posed by breaking into a home "is considerably greater than the risk posed by breaking out of a prison."  And even if the risks associated with breaking and escaping from prison could be comparable to those associated with burglary, the offense at issue "also criminalizes walking out of an unguarded area by pushing open a partially ajar door.  The statute thus covers a much 'broader swath of conduct' than what might arguably qualify as a crime of violence."

Not a crime of violent.

Judge Stranch concurred:

In Denson, the judge had put the "divisibility" issue under Descamps at the end of the analysis.  The judge now feels that this placement led "to a somewhat redundant analysis."  The proper order for the "analysis after Descamps is to put the 'divisibility' question first."  If a statute is divisible, a court may consider the Shepard documents briefly to determine the alternative offense of which the defendant was convicted.  From that point, the court should apply the same categorical test used for indivisible statutes.

Gunshot Residue

United States v. Stafford, No. 12-3238 (6th Cir. June 11, 2013) (for publication).  Panel of Judges Boggs, White, and McCalla (W.D. Tenn.).

Not a "new" case now, but worth noting.

Defendant (D) moved dist ct pre-trial to exclude gunshot-residue evidence, citing rules 702 and 403.  D asked for Daubert hrg.  Dist ct denied the motion. 

On appeal, the defendant made "four arguments regarding the inadmissibility of the gunshot-residue evidence. First, Stafford states that '[gunshot-residue] testing will not determine whether an individual fired a gun, was present when a gun was fired by someone else, or was merely in an environment in which [gunshot residue] existed.'  Stafford claims that because these three possible outcomes summarize the testimony of the Government's expert Robert Lewis—and because Lewis could not testify whether Stafford actually fired the weapon—Lewis 'could not reasonably make any conclusions as to the actual source of the six [gunshot-residue] particles found,' and therefore Lewis's testimony did not meet the standards of Daubert or Rule 702."  Dist ct allowed defense expert to testify regarding the evidence, but the defense did not call him. 

The defendant also argued that gunshot-residue evidence is imprecise.  COA said five particles on D's hand meant the conclusion that the D had residue on his hand was reliable. 

The argument that the particles could have been transferred inadvertantly was likewise unavailing.  COA found the evidence sufficiently reliable.  Defense cross-examined the gov expert on the point.  As to whether the police used proper techniques to gather the evidence, COA found these arguments do not go to reliability.  The arguments go to the weight of the evidence, not admissibility.  Cross-examination allowed jury to consider the weight of the evidence.    

Evidence not unfairly prejudicial under rule 403. 

Opinion also addresses ACCA.  Conviction for "aggravated riot" under Ohio law counts for ACCA purposes.  And it touches on 3C1.2, reckless endangerment.  3C1.2 applied: defendant threw loaded gun against a building near a crowded street and nightclub. 

Stalking = Violent Felony for ACCA

Just posted on 6th Cir. blog. . . .

This case came out about a month ago, but I think it's worth noting.

United States v. Johnson, No. 11-5769 (6th Cir. Feb. 20, 2013) (for publication). Panel of Judges Boggs, White, and Black (S.D. Ohio).

Denial of suppression motion affirmed (traffic stop).

Use of Kentucky stalking conviction as violent felony for ACCA purposes affirmed.

I'm a little pressed for time, so I won't go into the suppression issue. Nothing earth shattering.

Prior Conviction:
* Kentucky first-degree stalking (Chapter 508 of Kentucky Penal Code, Ky. Rev. Stat. 508.104).
* Stalking---new issue for Sixth Cir., but COA looks to other circuits for guidance here.
* This statute does not necessarily require threatened use of violent force, so doesn't count for ACCA under force provision.
* But counts under serious-potential-risk provision. Potential for confrontation that could result in bodily injury. COA compares stalking to extortion.

Career-Offender Discussion: Misdemeanors and Shepard Documents

Not a big week for decisions in the 6^th Cir.

But here’s a little career-offender discussion. . . .

United States v. Apodaca, Nos. 11—4342 & 11—4378 (6^th Cir. Jan. 23, 2013) (unpublished).

The first defendant challenged the district court’s finding that he was a career offender. He argued that his California conviction for assault with a deadly weapon other than a firearm was not a felony.

The sole question on appeal for this defendant was whether the California conviction for assault with a deadly weapon other than a firearm was a prior felony conviction for career-offender purposes.

The Court of Appeals concluded it was such a conviction.

The California conviction fell under California Penal Code section 245(a)(1): “[a]ny person who commits an assault upon the person of another with a deadly weapon other than a firearm . . . shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.”

When a sentencing court sentences a defendant in accordance with the last option, the offense is treated as a misdemeanor under California law. Such convictions are termed “wobbler” offenses because sentencing judges have the option of making the offense a felony or a misdemeanor, depending on the sentence imposed.

The defendant argued that his conviction was only a misdemeanor because the court chose to impose a sentence of 365 days in county jail, which made the conviction a misdemeanor “for all purposes.” But the Court of Appeals found otherwise.

Under the Guidelines, a “prior felony conviction” is a prior adult conviction for an offense punishable by a term greater than one year, regardless of whether the offense is specifically designated as a felony and regardless of the actual sentence imposed. The Court of Appeals looked to guideline section 4B1.2’s application note 1. So the designation of the offense under California law and the actual sentence imposed were irrelevant. The sole question was whether the California offense was punishable by a term exceeding one year.

The defendant tried arguing that the California statute effectively encompassed two offenses: one that was punishable by a longer term in state prison and one punishable by county jail for a term “not exceeding one year.” But the Court of Appeals found that the statute encompassed a single offense: “assault with a deadly weapon . . . other than a firearm.” And that single offense “shall be punished by imprisonment . . . for two, three or four years or in a county jail for not exceeding one year.”The statute provided for multiple punishment options—not multiple offense options. The single offense was punishable by a term exceeding one year, so it counts for career-offender purposes.

Even if the Court were to look more closely at the intent of California law, the prior offense would not be considered a misdemeanor. The Court found that the defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365 days in county jail, suspended, credit for 144 days, and five years of probation. Under California law, when a court suspends a sentence and orders probation, there is a conviction, but no judgment has been rendered. The offense here would be regarded as a felony until judgment is entered.

The defendant did not argue that a judgment was actually rendered, so the prior conviction would not be considered a misdemeanor even in California. The district court did not err in finding that the defendant was a career offender.

For the second defendant, the issue was one of Shepardsources and the categorical approach. The government acknowledged that the sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to provide Sheparddocuments because the defendant did not challenge the fact of the prior conviction and the statutory definition was adequate to determine the nature of the offense.

This prior conviction was for a violation of a statute that provided that “every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished” in a “county jail for 16 months, or two or three years,”under the California Health and Safety Code sections 11359 and 1170(h).

There was no other way to violate the statute. A conviction under that provision is a controlled-substance offense under section 4B1.1, as it is an offense“punishable by imprisonment for a term exceeding one year” that prohibits “the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” Such a conviction for possession of marijuana for sale fits this definition.

The defendant did not challenge the fact of the offense or the specific convicting statute. He argued only that the government did not prove its case. The government presented a case summary from California, case “minutes” from California, a criminal history report from Los Angeles County, and an indictment to prove the nature of the prior conviction. These were the only documents regarding the offense and they showed that the defendant was charged with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals concluded that the district court did not err in relying on these documents to show the fact of the prior conviction.

As to the last challenge that the district court did not understand its sentencing discretion, the defendant waived his appellate rights.

ACCA and Shepard Documents

Sorry it's been so long without posts!

Today, we have United States v. Amos, No. 11-5367 (6th Cir. Aug. 23, 2012) (not for publication).  Panel of Judges Boggs, Gilman, and Donald. 

Issue:

Can dist ct consider probable-cause affidavit incorporated by reference during a prior sentencing?

Conclusion:

Yes, b/c defendant stipulated to the facts in the affidavit.

Procedural History:

* Felon-in-possession case. 
* There were a number of prior offenses.  PSR scored defendant under ACCA. 
* Defendant objected.  He argued that two of his prior convictions should not be counted as separate offenses.  He argued the dist ct could not conclude that that the priors had occurred on occasions different from one another, as required by the ACCA.  The dist ct had to turn to the probable-cause affidavit the state sentencing ct had used as the factual basis for the prior no-contest plea.
* Dist ct concluded the D did not qualify for ACCA treatment.
* Gov appealed.
* COA reversed the dist ct and remanded for resentencing.

COA Opinion:
* The D had stipulated to the facts in the probable-cause affidavit.
* The state judge who sentenced the D on the prior stated he was using the affidavit as the factual basis for the plea. 
* If a defendant stipulates to the accuracy of a document describing the facts of an offense, and that stipulation falls into a Shepard source (eg the defendant stipulates during the plea colloquy), then that document the defendant stipulated to is acceptable under Shepard. 

Additional Points of Interest:

* Footnote 4: SCOTUS and 6th Cir have left open the issue of whether Shepard even applies in the context of determining whether prior offenses occurred on separate occasions.  Does Shepard just apply to determine whether a prior qualifies as a violent felony?  COA does not decide here b/c probable-cause affidavit here "became a Shepard-approved document when incorporated by reference in the plea colloquy." 
* It appears from the discussion in Amos that a defense attorney's stipulation is enough---the defendant need not actually stipulate on the record.  But this issue may be one to challenge.  There's room for argument. 

There's been a lot of interesting case law recently!  I'm trying to keep up!  I'll try to post more soon!

(Just b/c it's pretty!)

ACCA Loss

United States v. Cottrell, No. 10-4573 (6th Cir. June 12, 2012) (unpublished).

Panel of Judges Moore, Sutton, and Stranch.

Sixth Circuit cites United States v. Coleman, 655 F.3d 480 (6th Cir. 2011), to decide that the defendant's prior Ohio burglaries count for ACCA purposes.  Coleman is discussed on this blog below (Aug. 25, 2011). 

The interesting catch to the case is that the district court had determined pre-plea that the priors did not count.  For those of you in Lexington at the Sixth Circuit Conference, you may remember the discussion of pre-plea determinations....

Great Crime-of-Violence and 2L1.2 Case

Kudos to one of our panel attorneys.  We now have United States v. Rede-Mendez, No. 10-2509 (6th Cir. May 21, 2012) (for publication).

Panel of Judges Moore, Griffin, and White.  Judge Griffin dissented.

Illegal-reentry case.  Below GLs sentence of 36 months (GLs were 57 to 71 months).  D had gotten the 16-level bump for a prior crime of violence.  He had a New Mexico aggravated assault (deadly weapon).  COA found this prior was not categorically a crime of violence, and the Shepard docs did not reveal the details of the conviction.  Case remanded for resentencing. 

To Note:
* The application notes to 2L1.2 give aggravated assault as a crime of violence. 
* Categorical approach applies.  And the name of a prior offense does not govern.  Just b/c it's called aggravated assault does not mean it is!  Must fall w/i generic definition. 
* COA looks to Model Penal Code for guidance.
* Reiterates need to "feign agnosticism" if Shepard docs don't reveal nature of prior offense.  "The likelihood that a defendant's conviction was based on a particular version of the offense is not a factor in the crime of violence analysis."  What matters is what the gov can show. 
* A statement of probable cause is NOT a Shepard document.

New Mexico Aggravated Assault:
* Includes using insulting language to impugn honor, delicacy, or reputation.  Even if a prosecution under this subsection might be rare, or even unconstitutional, it's still available to prosecutors. . . .
* Does not require specific intent to injure or frighten.
* A deadly weapon alone does not necessarily make it a crime of violence.

J. Griffin's Dissent:
* The 10th and 5th Circuits have held that New Mexico agg assault w/deadly weapon has as an element the use of force.  So they have found it to be a crime of violence. 
* Suggests that "common and legal sense" dictate that New Mexico courts do not recognize agg assault with a deadly weapon arising from insulting language.

Another ACCA Disappointment

There must be some disturbance in the force causing bad things, or a cloaked Klingon Bird of Prey taking pot shots at us.  :(

United States v. Johnson, Nos. 10-5691/5778 (6th Cir. Apr. 11, 2012) (for publication).

Panel of Judges Keith, Griffin, and Stranch.

Gov cross-appealed when dist ct did not sentence D under ACCA (18 USC 924(e)).  COA agreed with gov, vacated the sentence, and remanded for resentencing.   

Prior at issue: Missouri third-degree assault.  Can involve reckless conduct---not just intentional.  Normally a misdemeanor, but there was a recidivist enhancement here.   

The D was not charged with reckless conduct; the criminal information clarified that the D was charged with intentionally attempting to cause physical injury. 

COA clarified that the residual clause is not meant to be a "catch-all provision."  Also stated that "we must consider whether the prior offense 'conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.'" 

COA classifies Begay's similar-in-kind test as "of secondary importance under Sykes."  It did, however, still address the test.  The Court also found that the assault offense is exactly the type of conduct that makes it more likely that the offender would use a gun to harm someone.  It shows a capacity for violence. 

While the gov raised the issue, the COA did not address the force clause and the question of whether the assault offense could qualify under that clause. 

The fact that this prior offense involved an attempt was inconsequantial.  Attempts can qualify as violent felonies. 

The D had also appealed, arguing the dist ct, without proper reasoning, ordered his fed and state sentences to be consecutive.  The issue became moot given the ACCA ruling, but the COA did note in footnote one that the dist ct "should expressly consider" the 3553(a) factors and USSG 5G1.3(c) and the relevant commentary in imposing a consecutive sentence. 

ACCA Disappointment: DVs Qualify

United States v. Kearney, No. 10-1532 (6th Cir. Apr. 5, 2012) (published).

Panel of Judges Merritt, Clay, and Sutton.  J. Merritt dissented.

ACCA issue.

Priors were for domestic violence: 93-day misdemeanors under Mich law.  But the max penalty increased for D b/c of a recidivism enhancement.  Statute is the familiar MCL 750.81(2).  Assault or assault and battery. 

COA recognized that touching was enough to sustain a conviction under Mich law.

PSR showed that the offenses involved punching, kicking, and stomping the victim for the first conviction and striking the victim with an unknown object for the second conviciton.  The D did not dispute these allegations. 

Interesting footnote (#4): it's improper to rely on a PSR to determine whether a prior offense counts for ACCA purposes, but COA wouldn't address that issue b/c defense had not objected in dist ct.  COA does cite United States v. Wynn, 579 F.3d 567 (6th Cir. 2009).

Will a prior conviciton enhanced b/c of a recidivism enhancement count for ACCA purposes?  Yes.  COA cites United States v. Rodriquez, 553 U.S. 377 (2008).


The COA cites Johnson v. United States, 130 S. Ct. 1265 (2010).  But it does so in the context of considering recidivism enhancements.  Perhaps it is b/c the nature of the conduct was known, but there is no argument on the level of force required to be an ACCA predicate conviction or any Begay argument regarding the conviction's failure to fit under the residual clause. 

So those avenues remain open. 

(Hey, it's hard to find free pics.  But take it as a pirate exhortation to keep raising these issues!)
J Merritt reads Johnson broadly in his dissent: state misdemeanors enhanced into felonies b/c of a similar prior misdemeanor are not the type of predicate offenses the ACCA contemplates. 

He finds: "Turning misdemeanor domestic abuse statutes into predicate offenses under the federal 15-year statute when the wife or husband violates the local statute twice seems a far cry from the type of recidivism Congress had in mind when it decided to take the sentencing process away from the federal sentencing judge and impose a long mandatory sentence."

He also cites the rule of lenity. 

More Crime-of-Violence News

United States v. Meeks, No. 10-5336 (6th Cir. Jan. 5, 2012) (to be published).

Panel of Judges Rogers, Cook, and McKeague. 

Defendant sentenced as career offender based, in part, on prior conviction for Kentucky first-degree wanton endangerment.

Defendant went to trial.  Convicted of being a felon in possession and of possessing, with the intent to distribute, oxycodone.  Two prior convictions for first-degree wanton endangerment; one prior for first-degree complicity to traffic in a controlled substance.  Sentenced as a career offender. 

Is first-degree wanton endangerment a crime of violence?

Under Kentucky law, a person is guilty of this offense when he or she, under circumstances manifesting an extreme indifference to human life, wantonly engages in conduct creating a substantial danger of death/serious physical injury to another.  One acts wantonly when one is aware of and yet consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist.  The risk must be such that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation.  A person creating such a risk who is unaware of it solely b/c of voluntary intoxication also acts wantonly.  (The statute at issue was Kentucky Revised Statute 501.020(3).)

* Court notes the offense does not include force as an element.

* It is not an enumerated offense.

* Wanton endangerment involves conduct that creates a serious substantial risk of violence akin to the risk associated with the enumerated offenses. 

* Not based on strict liability, negligence, or recklessness.  Wantonness involves criminal intent.  So Sykes suggests that the Court need not "engage in Begay's 'purposeful, violent, and aggressive conduct' inquiry." 

Discussion of Sykes that does not break new ground, but cites the case and its treatment of Begay.  Begay's "purposeful, violent, and aggressive" test may be limited to strict-liability, negligent, and reckless offenses b/c this inquiry is not based on statutory language and may be redundant.  Level of risk may divide the offenses that qualify as crimes of violence and those that do not.

Wanton endangerment is categorically a crime of violence. 

The offense was so classified pre-Begay and the Court stands by that conclusion. 

Even if the Court were to use the Begay purposeful/violent/aggressive inquiry, the offense would still qualify.  Such an inquiry would require use of the modified-categorical approach (Shepard documents).  Charging docs revealed defendant was charged with operating a motor vehicle under the influence of alcohol, causing a collision.   

The conviction necessarily involved an admission that the defendant was aware of and consciously disregarded the substantial risk that his conduct created a substantial danger of death. 

Sentence affirmed.

Escape from Courtroom NOT ACCA Violent Felony

United States v. Oaks, No. 06-6056 (6th Cir. Dec. 15, 2011) (published). Panel of Judges Kennedy, Martin, and Hood (E.D. Ky.). Judge Hood dissented. Judge Martin wrote the majority opinion.

Felon in possession.

Prior conviction for escape qualified as a prior conviction for ACCA purposes. Defendant appealed. Sixth Circuit affirmed. Supreme Court granted application for writ of certiorari and vacated. Remanded for reconsideration in light of Chambers v. United States, 555 U.S. 122 (2009).

Sixth Circuit then remanded to the district court for a determination of the type of facility and level of security at issue in the prior escape: custody of a county sheriff's department. The district court found that the defendant was in the county jail on felony charges (evading arrest, reckless endangerment, attempted agg. robbery, theft, agg. burglary), but had been taken to court for an appearance. He ran from the courtroom. The district court found that while the jail was a secure facility the courtroom was not.

So, appellate court found that the escape was from non-secure custody.

The question was whether the offense makes the defendant"significantly more likely than others to attack, or physically to resist, an apprenhender" such that there was a serious potential risk of physical injury. The appellate court looked to the U.S. Sentencing Commission report from Chambers to find statistics. The court found that escape from nonsecure custody is seldom violent.

The court held "that escape from 'nonsecure custody' is not a violent felony for sentencing purposes." The court does note that there may be situations in which a courtroom is a secure facility. . . . But the courtroom here was not a secure facility.

Remanded for resentencing.

Judge Hood (E.D. Ky.) dissented. He concluded that the defendant was in law-enforcement custody, so he was more likely to attack or physically resist, producing a serious potential risk of physical injury. He would have found that the offense was a violent felony.

ACCA Decision on Burglary

United States v. Coleman, No. 10-3205 (6th Cir. Aug. 24, 2011) (to be published). Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio).

Defendant sentenced under the ACCA. Had three prior third-degree burglary convictions out of Ohio (one was an attempt).

Court found that "Because the burglary or attempted burglary of an 'occupied structure' creates a risk of physical injury that is similar to the risk posed by generic burglary, the offense is categorically violent under the residual 'otherwise' clause of § 924(e)(2)(B)(ii)." This decision is disappointing for a number of reasons.

1) The Court even says the sentence was "harsh on the facts of this case." After the defendant was arrested b/c of a domestic dispute, police found an unloaded, dilapidated firearm frame in the defendant's pocket. There was no trigger assembly and the frame could not be made readily operable. Unfortunately, it was still a firearm under 921(a)(3)(B).

2) The Ohio statute proscribes non-generic burglary. And the Shepard documents did not shed light on the nature of the burglaries at issue. But the Court found that these prior convictions fit under the "otherwise clause" of the ACCA. The Court looked to a Tenth Circuit case considering the same statute: United States v. Scoville, 561 F.3d 1174, 1180-81 (10th Cir. 2009). (Begay was 2008.)

3) The Court looked to pre-Begay cases to support its conclusions, including United States v. Lane, 909 F.2d 895, 902 (6th Cir. 1990), and United States v. Fish, 928 F.2d 185, 188 (6th Cir. 1991). I once had entertained the naive hope that these cases could be reconsidered after Begay. But the Court closed that door here. (The door has been closing for a while. See United States v. Skipper, 552 F.3d 489, 493 (6th Cir. 2009).)

4) The Court conducted the Begay similar-in-kind-and-degree-of-risk analysis and found the requirements met.

5) The Court also rejected the idea that attempted burglary should not qualify, citing James.

6) The Court cited Sykes to find that purposeful, violent and aggressive conduct need not be a statutory element of the offense in question for the latter to qualify as an ACCA predicate conviction.

7) The Court also reiterated that defendants cannot collaterally attack state convictions at their federal sentencings.

Crime-of-Violence/Violent-Felony Analysis: Ag Assault NOT Categorically a VF! And Use of Plea Transcript. . . .

United States v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (to be published). Panel of Judges Moore, Gibbons, and McKeague. Judge Moore wrote the majority opinion; Judge McKeague dissented.

Felon-in-possession case. Defendant sentenced as an armed career criminal. Conclusion: Tennessee's aggravated-assault statute is not categorically a violent felony. And in this case, the Shepard docs did not establish the nature of the prior conviction.

The Court found that the "use of physical force" clause of the ACCA requires more than reckless conduct. The decision rests on the potential for just reckless conduct falling under the statute. But the Court also notes (in footnote 6) that causing serious bodily injury may not necessarily require the use of physical force. The prior conviction was not a violent felony under the physical-force clause.

In terms of the "otherwise" clause, after Begay, reckless aggravated assault is not a violent felony.

Looking at the Shepard documents, there is no showing that the defendant necessarily had pleaded guilty to an offense qualifying as a violent felony. The government asked the Court to consider the state's proffer of a factual basis during the plea colloquy. While the plea colloquy is a Shepard document, the defendant here had entered an Alford plea (avoid acknowledgment of guilt). In considering this issue, the Court noted it has declined to consider preliminary-exam transcripts because the defendant did not admit the conduct; Shepard requires a judicial record in which the defendant necessarily admitted certain conduct to enter a plea. The state's factual basis does not qualify.

The Court is clear: "We must consider only the facts necessarily admitted by the defendant in pleading guilty even if we are forced 'to feign agnosticism about clearly knowable facts.'" There are Sixth Amendment concerns as well.

Judge McKeague dissented. He finds that United States v. Matthews, 278 F.3d 560 (6th Cir. 2002), answered the question and makes Tennessee's aggravated-assault offense a violent felony. He finds that Begay did not overrule Matthews and he cites United States v. Benton, 639 F.3d 723 (6th Cir. 2011). (The majority found that case's statements to be dicta.) The dissent also disagrees on the issue of considering the state's factual basis at a plea, but he does agree that reading that factual basis (without obtaining the defendant's confirmation of it) was insufficient. He would allow consideration of those facts if other Shepard documents confirmed them.

Crime-of-Violence Definitions

In Evans v. Zych, No. 09--1094 (6th Cir. July 12, 2011) (published), the panel of Judges Martin, Suhrheinrich, and Kethledge provides a broad overview of the various definitions of "crime of violence" (with a little "violent felony" thrown in for good measure).

Issue and Holding:

Petitioner challenged the classification of his convictions for violating 26 U.S.C. § 5861(d) and 26 U.S.C. § 5861(e) as “crimes of violence” under 18 U.S.C. § 924(c)(3) for purposes of 18 U.S.C. § 4042(b), which requires BOP to notify state, tribal, and local law enforcement prior to the release of a person with a crime-of-violence conviction. Issue of first impression. Court concluded that offenses of unlawful possession and transfer of a firearm, under 5861, are not crimes of violence under 924(c)(3).

Mootness:

Petitioner's claim was not moot, even though he had been released, because the petitioner would remain subject to the notification provision of 4042(b) for the duration of his supervised release. And BOP is the entity that classified the offenses as crimes of violence and BOP retains the power to reclassify the offenses.

Crime-of-Violence Definitions:

Court looks at definitions of "crime of violence" for sections 4042(b), 924(c)(3), 16, 924(e)(2)(B), and USSG 4B1.2(a). Also looks at circuit split on issue. Concludes that convictions under 26 U.S.C. 5861(d) and (e) are not crimes of violence for purposes of 924(c)(3) and do not require notification under 4042(b).

Interesting points include the Court's discussion of United States v. Hawkins, 554 F.3d 615 (6th Cir. 2009): possession of a sawed-off shotgun is a crime of violence for guideline purposes, but not a violent felony for ACCA purposes (see United States v. Amos, 501 F.3d 524 (6th Cir. 2007)). Court also recognizes that 924(c)(3) is "essentially identical" to 16. (Similar recognition of parallel nature of 4B1.2 and ACCA in United States v. Bartee.)