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.
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.
