Sixth Circuit addresses crimes of violence under U.S.S.G § 2K2.1(a)(2)

In United States v. Harris, the Sixth Circuit addressed the issue of whether the Michigan offense of Felonious Assault is a “crime of violence” under U.S.S.G § 2K2.1(a)(2).

          Oscar Harris was convicted of being a felon in possession of a firearm. The Guidelines provide that the base offense level for a firearm offense is increased if that offense is preceded by two felony convictions for a “crime of violence” which is defined in U.S.S.G § 4B1.2(a) and Application Note 1 thereto. See U.S.S.G § 2K2.1(a)(2) and § 2K2.1 cmt. n.1. The district court determined that Mr. Harris’s two prior convictions for felonious assault were crimes of violence under the Guidelines.

          On appeal, Mr. Harris contended that felonious assault was not a “crime of violence” because it could be committed by an offensive touching which would not amount to “violent force” under Johnson v. United States, 559 U.S. 133, 140 (2010). Thus, a felonious assault did not fit within the “elements clause” of § 4B1.2(a)(1) because it did not categorically involve the “use, attempted use, or threatened use of physical force against the person of another.”

          In response to Mr. Harris’s argument, the Sixth Circuit examined Michigan law and found that the felonious assault statute required a finding of “at least attempted or threatened offensive touching and use of a dangerous weapon.” The court determined that a battery is “a forceful or violent touching” and when coupled with the use of a dangerous weapon those two elements involve “the use, attempted use, or threatened use of physical force” under § 4B1.2(a)(1). Taken together, the two elements amounted to violent force and thus constituted a crime of violence under § 2K2.1(a)(2).