Wednesday, February 10, 2010

Beautiful Day for Us in Michigan

If you are in Michigan, be happy. Yes, we're covered in snow, but running from the police while handcuffed is NOT a crime of violence!!!
In United States v. Love, No. 08--2164 (6th Cir. Feb. 10, 2010), Judges Ryan, Cole, and Clay continued the Mosley reasoning from 2009. In Mosley, the 6th Cir. said that Resisting and Obstructing a Police Officer under Michigan law is not categorically a crime of violence. Left open the Shepard-documents door. In Love, the Court considered the Shepard documents and found that running from the police while handcuffed and evading arrest for two months is not a crime of violence. This behavior qualifies as failing to obey a lawful command, and so it's not a crime of violence under Section 4B1.2(a)(2).
The obliteration/alteration of the serial number analysis is not so good. Court looks to United States v. Carter, 421 F.3d 909 (9th Cir. 2005). Enhancement applies when number is materially changed such that accurate information is less accessible. Scratched digits satisfy this test.

Judge Cole concurred to note that:

1) The Court has not determined whether "the use or threatened use of physical interference or force" qualifies (or does not qualify) as a crime of violence under the R and O statute.

2) The Shepard inquiry applies in a broader context than just analysis under the "otherwise clause" of Section 4B1.2(a)(2).

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