(Shooting pepper spray into the air while running = bad idea.)
In United States v. Mosley, 09-2359 (Mar. 29, 2011), the Sixth Circuit found that a misdemeanor conviction for shooting pepper spray at a person without justification in violation of Mich. Comp. Laws § 750.224d(2) necessarily constitutes a "crime of violence" under U.S.S.G. §§ 4B1.2(a) and 2K2.1(a).
The defendant argued that the Michigan pepper spray statute would appear to encompass conduct involving only "a low concentration of chemicals," and thus might not "involve conduct that presents a serious risk of physical injury." Focusing on "the ordinary case," however, the court concluded that "it is hard to imagine" a case in which pepper spray would be only mildly annoying, since "[t]he idea . . . is not to produce a slight irritant to a mugger or a bear; it is to stop them both in their tracks by incapacitating them." Because the statute "involves conduct that presents a serious potential risk of physical injury to another," it falls within the "residual clause" of U.S.S.G. § 4B1.2(a) and meets the definition of a "crime of violence."
The court further declined to apply the "carve out for misdemeanor convictions" found in 18 U.S.C. § 921. While Section 921 expressly excludes crimes defined under state law as misdemeanors, 18 U.S.C. § 921(a)(20)(B), this exemption applies by its terms only "as used in" the statute, and the Guidelines contain no comparable language. Thus, "while there are many parallels between 'violent felon[ies]' under the statute and 'crimes of violence' under the guideline, this is not one of them."
Lastly, the court found that the district court's failure to invite the defendant to speak at his re-sentencing after remand was not prejudicial because the defendant had previously spoken at his initial sentencing hearing and because "[a]llocution is not designed to allow defendants to re-argue their lawyers' legal positions, and, . . . that is all Mosley wished to do here . . . ."