Sixth Circuit again considers what is a "crime of violence" under the Guidelines

“This case returns us to the serial litigation over the meaning of the terms ‘physical force’ and ‘crime of violence.’” So begins the opinion in United States v. Morris in which the Sixth Circuit held that a felony conviction for domestic assault under Michigan law (M.C.L.) §750.81 is a crime of violence under the residual clause of the Guidelines. U.S.S.G §4B1.2(a)(2).

Melvin Morris was sentenced before Amendment 798 took effect and the Sentencing Commission removed the residual clause from §4B1.2 of the Guidelines. The district court determined that Mr. Morris was a career offender and on appeal he argued that his two prior felony convictions for domestic assault under M.C.L. §750.81 were not crimes of violence.

 

Since an offense under M.C.L. §750.81 is not an "enumerated offense" (§4B1.2(a)(2)), the Sixth Circuit considered whether the prior convictions were crimes of violence under the “elements clause” (§4B1.2(a)(1)), or the “residual clause.” (§4B1.2(a)(2)).The court concluded that Michigan’s domestic violence statute is not a crime of violence under the “elements clause” because “a person can commit a battery by mere offensive, but not harmful, touching of a victim’s person or of ‘something closely connected with’ the victim’s person.” Moreover, the “offensive touching can be accomplished without using force capable of causing physical pain or injury.”

In deciding whether the Michigan statute fell within the “elements clause,” the Sixth Circuit rejected the Government’s argument that the definition of “physical force” in §4B1.2(a)(1) should be given the meaning expressed in United States v. Castleman, 134 S.Ct. 1405 (2014). That case involved 18 U.S.C. §922(g)(9), which prohibits a person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. A “misdemeanor crime of domestic violence” is defined in part as a crime that “has, as an element, the use or attempted use of physical force.” 18 U.S.C. §921(a)(33)(A)(ii). The Supreme Court held in Castleman, 134 S.Ct. at 1410, that for the purposes of  §922(g)(9), “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—in [the statute’s] definition of a ‘misdemeanor crime of domestic violence.’”  With that in mind, the Government argued that same meaning should be used for “physical force” in Mr. Morris’ case.

The Sixth Circuit observed, however, that Castleman “directly addressed the propriety of different definitions of ‘physical force’” and the Supreme Court noted that domestic violence statutes are unique in the sense that “the word ‘violent’ or ‘violence’ standing alone ‘connotes a substantial degree of force’ but that is not true of domestic violence which “encompass[es] acts that one might not characterize as ‘violent’ in a nondomestic context.” For that reason, the definition of “physical force” in §4B1.2(a)(1) is not interpreted in the same way as it is for the purpose of defining a “misdemeanor crime of violence” in 18 U.S.C. §922(g)(9).

The government wanted the term “physical force in §4B1.2 to be given “a different definition depending on the prior conviction[.]” If the prior conviction is for domestic violence, then “physical force” should have “the broader common law meaning, which includes ‘offensive touching.’” However, that approach to construing §4B1.2 is “incongruent” with the Sixth Circuit’s consistent determination that the definition of a “crime of violence” in §4B1.2(a)  is applied in the same way as the definition of “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1). Thus, the court concluded that the Michigan statute under which Mr. Morris was convicted was not a “crime of violence” under the “elements clause” of §4B1.2(a)(1).

Turning to whether the Michigan statute is a “crime of violence” under the “residual clause” of the Guidelines (§4B1.2(a)(1)), the Sixth Circuit noted that the statute is not divisible and the categorical approach is used to determine if an offense presents “a serious potential risk of physical injury to another.” The Michigan statute meets that standard because “[i]n the context of a face-to-face incident of domestic violence, there is a serious risk of physical injury” and “domestic violence poses an unusual risk of escalation.” The offense is therefore a “crime of violence” under the “residual clause” of the Guidelines.