Stalking Is a Violent Felony

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. 

Career-Offender Discussion: Misdemeanors, Shepard Documents

Not a big week for decisions in the 6^th Cir. 

But here’s a little career-offender discussion. . . .

United States v. Apodaca, Nos. 11—4342 & 11—4378 (6^th Cir. Jan. 23, 2013) (unpublished).

The first defendant challenged the district court’s finding that he was a career offender.  He argued that his California conviction for assault with a deadly weapon other than a firearm was not a felony.

The sole question on appeal for this defendant was whether the California conviction for assault with a deadly weapon other than a firearm was a prior felony conviction for career-offender purposes.

The Court of Appeals concluded it was such a conviction.

The California conviction fell under California Penal Code section 245(a)(1): “[a]ny person who commits an assault upon the person of another with a deadly weapon other than a firearm . . . shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.”

When a sentencing court sentences a defendant in accordance with the last option, the offense is treated as a misdemeanor under California law.  Such convictions are termed “wobbler” offenses because sentencing judges have the option of making the offense a felony or a misdemeanor, depending on the sentence imposed.

The defendant argued that his conviction was only a misdemeanor because the court chose to impose a sentence of 365 days in county jail, which made the conviction a misdemeanor “for all purposes.”  But the Court of Appeals found otherwise. 

Under the Guidelines, a “prior felony conviction” is a prior adult conviction for an offense punishable by a term greater than one year, regardless of whether the offense is specifically designated as a felony and regardless of the actual sentence imposed.  The Court of Appeals looked to guideline section 4B1.2’s application note 1. So the designation of the offense under California law and the actual sentence imposed were irrelevant. The sole question was whether the California offense was punishable by a term exceeding one year.

The defendant tried arguing that the California statute effectively encompassed two offenses: one that was punishable by a longer term in state prison and one punishable by county jail for a term “not exceeding one year.”  But the Court of Appeals found that the statute encompassed a single offense: “assault with a deadly weapon . . . other than a firearm.” And that single offense “shall be punished by imprisonment . . . for two, three or four years or in a county jail for not exceeding one year.” The statute provided for multiple punishment options—not multiple offense options. The single offense was punishable by a term exceeding one year, so it counts for career-offender purposes.

Even if the Court were to look more closely at the intent of California law, the prior offense would not be considered a misdemeanor. The Court found that the defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365 days in county jail, suspended, credit for 144 days, and five years of probation. Under California law, when a court suspends a sentence and orders probation, there is a conviction, but no judgment has been rendered. The offense here would be regarded as a felony until judgment is entered.

The defendant did not argue that a judgment was actually rendered, so the prior conviction would not be considered a misdemeanor even in California. The district court did not err in finding that the defendant was a career offender.

For the second defendant, the issue was one of Shepard sources and the categorical approach. The government acknowledged that the sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to provide Shepard documents because the defendant did not challenge the fact of the prior conviction and the statutory definition was adequate to determine the nature of the offense.

This prior conviction was for a violation of a statute that provided that “every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished” in a “county jail for 16 months, or two or three years,” under the California Health and Safety Code sections 11359 and 1170(h).

There was no other way to violate the statute. A conviction under that provision is a controlled-substance offense under section 4B1.1, as it is an offense “punishable by imprisonment for a term exceeding one year” that prohibits “the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” Such a conviction for possession of marijuana for sale fits this definition.

The defendant did not challenge the fact of the offense or the specific convicting statute. He argued only that the government did not prove its case. The government presented a case summary from California, case “minutes” from California, a criminal history report from Los Angeles County, and an indictment to prove the nature of the prior conviction. These were the only documents regarding the offense and they showed that the defendant was charged with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals concluded that the district court did not err in relying on these documents to show the fact of the prior conviction.

As to the last challenge that the district court did not understand its sentencing discretion, the defendant waived his appellate rights.

I Demand Satisfaction: New Mexico Aggravated Assault (Deadly Weapon) Not Crime of Violence Under Guidelines

By this point, you might think that our Court had already determined every possible prior conviction that constitutes of a "crime of violence." You would, of course, be wrong. Until this week, the Sixth Circuit had not had opportunity to consider a New Mexico conviction for aggravated assault (deadly weapon).

In United States v. Rende-Mendez (10-2509), the Court decided that, notwithstanding its name and a dissent by Judge Griffin, New Mexico aggravated assault (deadly weapon) is not a crime of violence under U.S.S.G. Section 2L1.2. The court applied the familiar categorical approach and noted that the New Mexico statute defining the offense could be satisfied by "the use of insulting language toward another impugning his honor, delicacy or reputation." N.M. Stat. Section 30-3-1(C). Such actions, the Court reasoned, could not be considered a crime of violence.

Escape from a courtroom is not a "violent felony"

Is an escape from custody a violent offense?  The  courts continue to grapple with this issue, seemingly deciding on a case by case basis whether particular acts constitute aggravating enhancements for sentencing purposes.  In the latest case, United States v. Oaks, 11a0312p.06 , the Court remanded for resentencing (for a second time) based upon an Armed Career Criminal Act enhancement.  Oaks had a prior conviction for escape, based upon his escape from a courtroom.  Oaks had been in custody, and, during a court appearance, ran from the courtroom.  The Court held that this Tennessee state offense was not a violent felony for purposes of the ACCA.

Interestingly, the Court seized on suggestion, espoused by the Supreme Court in Chambers v. United States, 555 U.S. 122 (2009), that in analyzing whether an offense is a violent felony, the Court should make a statistical analysis of the offenses, to see how often the offense actually results in violence.  The Court noted that historical data showed that where an escape is from "nonsecure custody", such as the courtroom in question, injury only occurs in 1.7% of cases.  On this basis, the Court concluded that the prior offense was not a violent felony, and remanded for resentencing.

Facilitation of Burglary NOT a Violent Felony

Just a quick note on a good opinion.

United States v. Vanhook, No. 09–5778, 2011 U.S. App. LEXIS 7884 (6^th Cir. Apr. 18, 2011). The court considered Tennessee’s offense of facilitating a burglary. The court found that "there remains little question that the act of facilitating the burglary of a building creates a serious risk of violence." The offense may have presented such a risk, but the court found it is not a violent felony for Armed Career Criminal Act purposes because "This is one of the rare cases in which a statute criminalizing ‘knowing’ conduct does not describe conduct sufficiently purposeful to qualify as a violent felony." The court went on to find that its decision was "further buttressed by the fact that facilitation of burglary is not necessarily the type of violent or aggressive crime generally characterized as a violent felony."

Shooting Pepper Spray at a Person Without Justification, Mich. Comp. Laws § 750.224d(2) = "Crime of Violence"

(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 . . . ."

Shooting into Occupied Structure

United States v. Ruvalcaba, No. 09–3782 (6^th 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.

Crime-of-Violence and Scope-of-Remand Analysis

United States v. Gibbs, 09-2031 (6th Cir. Nov. 24, 2010) (to be published). Panel of Judges Guy, Griffin, and Barzilay (U.S. Ct. Int'l Trade).

D convicted of being a felon in possession. Originally sentenced in June 2006 to 108 months. D appealed, arguing his sentence should have been concurrent with state prison term. Ct of Appeals concluded that 5G1.3(c) could not be treated as robbing the dist ct of discretion to impose a concurrent sentence. Case remanded. D resentenced in July 2009.

At resentencing, dist ct declined to recalculate GLs. Said recalculation outside scope of remand. Ct reimposed 108-month sentence and recommended that BOP give D credit for time served on state sentence. D appealed again.

5G1.3 and Concurrent Sentence:

* Whether sentence is concurrent or consecutive is within sentencing ct's discretion.

* Power to determine credit for time served belongs to BOP.

Scope of Remand and Review:

* Dist ct is bound by scope of appellate ct's remand.

* Limited remands explicitly outline the issues to be addressed by the dist ct and create narrow frameworks within which a dist ct must operate. General remands give a dist ct the authority to address all matters as long as there is consistency with the remand. Whether a remand is limited or general is a legal question that appellate courts review de novo.

* When the Ct of Appeals vacated the original sentence and remanded for resentencing "consistent with this opinion," the remand was general and did not bar the dist ct from revisiting the GL calculations.

* Gov argued that D waived GL arguments by not bringing them in initial appeal.

* D said that new amendments to GLs and developments in crime-of-violence analysis were not available at time of original appeal. Could not have brought arguments at that time.

* Ct of appeals does not address these issues, but finds that gov waived its waiver argument by not bringing it in the dist ct. Gov had taken position that dist ct could revisit GL calculations.

4A1.2(a)(2) and Crim Hist:

* D argued for application of amended version of 4A1.2(a)(2) (count sentences imposed on same day as single sentence).

* But GLs in effect at time of original sentencing apply per 18 U.S.C. 3742(g)(1). And amendment not clarifying, so not retroactive.

* Even if amended GLs did apply, D would be in same crim hist category. Intervening arrest barred counting certain sentences as a single sentence.

Offense Level and Prior Crime of Violence:

* Plain-error review applied b/c D did not object.

* 2nd Degree Home Invasion is a C of V (Michigan offense). It is C of V even if the residents had died and the house was vacant at the time of the offense.

* Walkaway prison escape (under Michigan law) is not a C of V (following Chambers and Ford).

* Resisting and Obstructing an Officer (under Michigan law) is not a C of V. Shepard docs revealed D failed to obey a lawful command by running away from a traffic stop when he had been a passenger in a car that officers pulled over.

* Errors plain, so remand necessary.