Pre-2004 Version of Michigan Unarmed Robbery Qualifies as a “Violent Felony”

In Chaney v. United States, decided last week, the Sixth Circuit considered whether Duryane Chaney was entitled to post-conviction relief from his ACCA-enhanced sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015).  Before reaching the merits, the court first had to decide whether Chaney met his burden of showing that the sentencing court relied on the now-void residual clause when it deemed him an armed career criminal at his original sentencing.  

The record was equivocal.  The government’s arguments at sentencing pointed to the residual clause, while the sentencing court made an “off-the-cuff statement” that used language from the elements clause.  Relying on Raines v. United States, 898 F.3d 680 (6th Cir. 2018) (per curiam), the Sixth Circuit held that it was enough for Chaney—a first-time § 2255 movant—to show that the sentencing judge “might have” relied on the residual clause to apply the ACCA.  The court also summarily dispatched the government’s argument that Chaney had procedurally defaulted his claim, declining “to fault Chaney for not making an argument that would have had no practical effect whatsoever given the then-viable residual clause”—an outcome the court said would be “harsh.”  

Unfortunately for Chaney, getting past these procedural hurdles (and avoiding that harsh outcome) did not result in relief.  

On the merits, the question was whether his 1981 conviction for Michigan unarmed robbery still qualifies as a “violent felony” under the ACCA’s elements clause. 18 U.S.C. § 924(e)(2)(B)(i).  Before 2004, a person could be convicted of unarmed robbery in Michigan upon proof that he stole or took property from the person of another, in his presence and not being armed by a dangerous weapon, “by force and violence, or by assault or putting in fear.”   Mich. Comp. Laws § 750.530 (1981).  

Chaney argued that neither the “putting in fear” version nor the “force and violence” version of the Michigan statute qualifies as a “violent felony” under the elements clause because neither version has as an element the use, attempted use, or threatened use of “violent force—that is, force capable of causing physical pain or injury to another person.”  Johnson v. United States, 559 U.S. 133, 140 (2010).       

The Sixth Circuit rejected his arguments.  Relying on a Michigan Supreme Court decision, the court held that the “putting in fear” version satisfies the “violent force” test because it is derived from the common law, and the Michigan court equates common-law “putting in fear” with putting the victim “in fear of immediate personal injury.”  (Emphasis added.)   As with Tennessee robbery, because Michigan unarmed robbery requires “fear of bodily injury from physical force offered or impending,” it satisfies the elements clause of the ACCA. 

The court encountered a bit more headwind when it turned to the “force and violence” version of the Michigan statute.  Chaney pointed to two Michigan decisions and a Michigan pattern jury instruction indicating that the words “force and violence” under Michigan law mean “any use of physical force against another person so as to harm or embarrass him.”  This unusual meaning has been used in the context of assault statutes (as opposed to the unarmed robbery statute), but the Sixth Circuit assumed that “if Michigan unarmed robbery could be accomplished by using physical force to embarrass the victim, then it would fall outside of the ACCA.” 

One might think this assumption would end the matter in Chaney’s favor, since the Michigan unarmed robbery statute by its terms criminalizes taking “by assault,” and a person in Michigan can be convicted of assault by spitting on another person with no physical harm resulting.  E.g., People v. Terry, 553 N.W.2d 23 (Mich. Ct. App. 1996); People v. Cheatum, 2005 WL 1652221 (Mich. Ct. App. 2005).  But the Sixth Circuit could not imagine how theft-by-embarrassing-touch could occur.  And even if one could creatively imagine how it might occur, Chaney did not cite any Michigan case in which the “force and violence” clause in the unarmed robbery statute was applied where the defendant stole property and the “force and violence” was accomplished through an “embarrassing touch alone.”  The court therefore held, in the absence of a realistic probability that the statute was applied in that non-qualifying way, that the “force and violence” clause meets the ACCA’s requirement of violent force.

The court bolstered its conclusion by highlighting the ACCA’s original common-law-derived definition of “robbery,” recently operative in Stokeling v. United States, 139 S. Ct. 544 (2019), as well as decisions of other circuits reaching the same conclusion about Michigan unarmed robbery, and this and other circuits’ decisions interpreting state robbery statutes likewise derived from the common law. 

Chaney’s final argument was that Michigan attempt sweeps more broadly than generic attempt, thereby disqualifying his attempted unarmed robbery conviction.  But the court was unmoved.  It held that Michigan’s “substantial step” requirement for attempt matches generic attempt, and in any event, the attempt factor applies only to the felonious taking, not the force element.  The level of force required was thus not altered by the fact that Chaney was convicted of an attempt.

On the bright side, the court noted that Michigan amended the statute in 2004 to require either “force or violence.”  Several district courts have recognized that the amended statute requires less force than the pre-2004 version (which required force and violence), holding that a post-2004 conviction for Michigan unarmed robbery is not a crime of violence under the Guidelines’ identical elements clause.  E.g., United States v. Harris, 323 F. Supp. 3d 944, 948 (E.D. Mich. 2018).  Those decisions were left undisturbed.