Tuesday, December 28, 2010

Shooting into Occupied Structure

United States v. Ruvalcaba, No. 09–3782 (6th Cir. Dec. 22, 2010) (recommended for publication). Panel of Judges Martin, Siler, and Bell (W.D. Mich.).

Crime of Violence:

Issue was whether the defendant’s two prior convictions for discharging a firearm at or into a habitation (in violation of Ohio Revised Code § 2923.161(A)(1)) were crimes of violence for career-offender purposes.

The Ohio statute does not require the use of physical force against another and does not cover any of the specifically enumerated offenses in 4B1.2(a)(2). The issue then revolved around whether the offense captured by the statute "presents a serious potential risk of physical injury to another."

Ohio’s section 2923.161 provides that no person, without the privilege to do so, shall knowingly discharge a firearm at or into an "occupied structure" that is a "permanent or temporary habitation of any individual" and defines "occupied structure" broadly. This term covers houses, buildings, outbuildings, water- and aircraft, railroad cars, trucks, trailers, tents, vehicles, shelters, and other structures that are maintained as permanent or temporary dwellings. The definition covers temporarily unoccupied structures and it does not matter whether a person is actually present.

The statute, the Court concluded, covers behavior that "inherently presents a serious potential risk of injury to another." Firing a gun can "have unintended, dangerous consequences." This conclusion holds even if the structure was unoccupied.

The offense is also sufficiently similar to the enumerated offenses. While section 2923.161 does not require the intent to do harm, one must necessarily make a conscious decision to fire a gun when one discharges it at an occupied structure. Firing a gun in this manner presents a risk to others and is aggressive. The Court distinguishes walkaway escapes. Even though a walkaway-escape offender engages in purposeful conduct, such conduct is qualitatively different from the purposeful conduct required by the enumerated offenses. While walkaway escape is not a crime of violence, the Ohio offense at issue is far more similar to the enumerated offenses. Because a walkaway escapist does not overcome any barriers, their intentional conduct is attenuated from the risk of harm. With the Ohio offense, however, the intentional conduct is discharging a firearm. Such intentional conduct directly relates to the potential risk of harm from being struck by a bullet.

Potential Voiding of Prior Convictions:

After the district court sentenced the defendant, the Ohio Supreme Court concluded that sentences for offenders who did not receive appropriate post-release control notice are void. Because of this state decision, the defendant argued that his prior convictions were void and should not have been considered in determining career-offender status, as he did not receive proper post-release control notice. The Sixth Circuit, however, recently rejected the identical argument. So while a defendant may be able to challenge his or her prior convictions as void under state-court conclusions through state channels for seeking post conviction relief, they may not do so during sentencing for unrelated crimes in federal court—such challenges are impermissible collateral attacks.

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