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.

Drug GLs and Prior "Similar Offense"

United States v. Johnson, No. 12--1277 (6th Cir. Feb. 7, 2013) (for publication).

Panel of Judges Martin, Boggs, and Collier (E.D. Tenn.).

GL section 2D1.1(a)(1) for distribution of drugs resulting in death.

Defendant argued that prior conviction for delivery of heroin was not a "similar offense."

Ct of Appeals rejected this position and affirmed.

Base offense level 43 applied under 2D1.1(a)(1) b/c of prior conviction for delivery/manufacture of a controlled substance, less than 50 grams (involved 3.5 grams of heroin).  This prior conviction did NOT involve death or serious bodily injury.  So defendant argued it was not a qualifying offense for enhancement purposes to produce the BOL of 43.  Government countered that "similar offense" just means "felony drug offense," as used in 21 U.S.C. 841(b)(1)(C), so enhancement applied.

* The GLs do not define "similar offense" in this context.

* 4A1.2, note 12 provides a list of factors to consider when determining the similarity of offenses.  The COA said Chapter 4 is completely different from Chapter 2. 

* Amendment 123 of the GLs (from 1989), the COA said, provides guidance.  Originally, 2D1.1(a)(1) said "similar drug offense" meant one given in 21 U.S.C. 841(b) or 962(b).  Amendment 123 removed this definition, and replaced it with the current language.  The Sentencing Commission said the amendment was so the enhancement would apply only in the case of a conviction under circumstances given in the "statutes cited," namely 21 U.S.C. 841(b)(1)(C).  Latter section uses the term "felony drug offense." 

* COA found that 2D1.1(a)(1) and 21 U.S.C. 841(b)(1)(C) "mirror one another in several respects."  The COA found that "2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute."  The "Commission intended the term 'similar offense' to be synonymous with the term 'felony drug offense.'" 

* The fact the prior was of a lesser magnitude did not sway the COA.  Nor did the provisions of 21 U.S.C. 851, which requires the gov to file an information if it intends to seek an enhanced mand min for drug offenders with priors.

* Disproportionate-result argument did not win favor either.  No 8th Am violation.   

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.

Jury Finding on Drug Quantity

United States v. Jones, No. 08-5009 (6th Cir. Sept. 6, 2011) (unpublished). Panel of Judges Gibbons, Rogers, and Cook.

Defendant appealed mandatory life sentence for possession with intent to distribute 108 grams of meth. Jury made no findings of fact regarding quantity. Also argued that the dist ct erred in making findings regarding prior convictions necessary for the mandatory life sentence under 21 U.S.C. 841(b)(1)(A). The government conceded the error regarding the jury's lack of a quantity finding. The Court found that the argument on the prior convictions was foreclosed by S Ct precedent.

The Court vacated the sentence and remanded.

The only evidence presented at trial on the issue of quantity was the testimony of the government's drug-chemistry expert. This expert testified that she had calculated the weight of the meth as 99 grams. She calculated the purity as 73%: so the "pure" meth quantity was 72 grams.

The dist ct instructed the jury that while the indictment alleged certain quantities the evidence need not establish those quantities. The instruction was that the evidence only needed to establish that a measurable amount of meth was the subject of the acts charged. The jury was not asked to make a quantity determination.

At sentencing, the government presented testimony to prove the defendant's prior convictions for purposes of the mandatory life sentence. The dist ct found that there were valid prior convictions and sentenced the defendant to life.

The Court of Appeals found that the dist ct plainly erred in applying 841(b)(1)(A) w/o a jury finding of quantity. Gov conceded the plain error. Jury must find beyond a reasonable doubt any fact that increases the statutory maximum sentence (other than a prior conviction). Section 841(b)(1)(A) provides for mandatory life when a defendant has two prior, qualifying convictions, and the amount of meth was 50 grams or more or the the mixture containing a detectable amount of meth exceeded 500 grams. W/o this quantity determination, the max sentence is 30 years. The life sentence was clear error.

The Court did affirm the dist ct's findings re the priors. Following Apprendi, the Court found that prior convictions need not be found by a jury. Sentencing judges may find prior convictions based on a preponderance of the evidence.