U.S. v. Flores

• Citation: 477 F.3d 431
• Decision Date: 23 February 2007
• Docket Number: No. 06-1152.,06-1152.
• Parties: UNITED STATES of America, Plaintiff-Appellant. v. Oscar FLORES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

477 F.3d 431

UNITED STATES of America, Plaintiff-Appellant. v. Oscar FLORES, Defendant-Appellee.

No. 06-1152.

United States Court of Appeals, Sixth Circuit.

Argued: January 24, 2007.

Decided and Filed: February 23, 2007.

ARGUED: Janet L. Parker, Assistant United States Attorney, Bay City, Michigan, for Appellant. Douglas R. Mullkoff, Ann Arbor, Michigan, for Appellee. ON BRIEF: Janet L. Parker, Assistant United States Attorney, Bay City, Michigan, for Appellant. Douglas R. Mullkoff, Ann Arbor, Michigan, for Appellee.

Before GUY, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Oscar Flores was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The government appeals the district court's imposition of a sentence of 100 months of incarceration in connection with Flores's conviction. The government argues that the district court erred in concluding that Flores was ineligible to be sentenced pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and in failing to apply enhancements under the Sentencing Guidelines because the jury did not make findings on those matters. For the reasons set forth below, we hold that the district court correctly ruled that Flores's prior conviction for carrying a concealed weapon was not a conviction for a "violent felony" under the ACCA. However, we reverse the district court's failure to make findings of fact concerning possible sentence enhancements and remand for resentencing.

I.

On January 23, 2001, a federal grand jury returned a superseding indictment against Flores, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The indictment alleged that "at the time of this offense, the defendant had two previous convictions by courts for serious drug felonies, and a conviction for a violent felony, committed on occasions different from one another, in violation of Title 18, United States Code, sections 922(g)(1) and 924(e)."

On April 9, 2002, the government filed a Notice Specifying Oscar Flores as an Armed Career Criminal. The notice alleged that Flores was subject to the sentence enhancement provision of 18 U.S.C. § 924(e), and identified the following four previous convictions that the government contended are predicate offenses under § 924(e):

1. On or about November 2, 1970, Oscar Flores was adjudicated in Saginaw County, State of Michigan, for Assault with a Knife, in violation of the laws of the State of Michigan, and that adjudication constitutes a conviction under Title 18, United States Code, section 924(e)(2)(B)(ii) and (C);

2. On or about January 12, 1977, Oscar Flores was convicted in Saginaw County, State of Michigan, of Delivery of Heroin, in violation of the laws of the State of Michigan, which is also a conviction under Title 18, United States Code, section 924(e)(2)(A)(ii);

3. On or about December 9, 1987, Oscar Flores was convicted in Saginaw County, State of Michigan, of Carrying a Concealed Weapon, in violation of the laws of the State of Michigan, which is also a conviction under Title 18, United States Code, section 924(e)(2)(B)(i);

4. On or about December 28, 1987, Oscar Flores was convicted in U.S. District Court, Eastern District of Michigan, Northern Division, of Distribution of Heroin in violation of the laws of the United States, which is also a conviction under Title 18, United States Code, section 924(e)(2)(A)(i).

On May 23, 2002, a jury found Flores guilty of being a felon in possession of a firearm. The Presentence Investigative Report ("PSR") scored Flores under the Guidelines at offense level 33, criminal history VI, and recommended an imprisonment range of 235 to 293 months. With regard to the offense level, Flores received a base offense level of 24, a two-point enhancement because the firearm involved in the underlying offense was stolen, a four-point enhancement because Flores possessed the firearm in conjunction with the separate offense of "Fleeing and Eluding," a two-point enhancement for obstruction of justice, and a one-point enhancement as an armed career criminal under the ACCA.

The district court initially held two sentencing hearings, as the parties disputed whether Flores's 1970 conviction as a juvenile for assault with a knife should properly be considered for purposes of classification under the ACCA. The district court concluded that Flores's 1970 conviction was a predicate offense under the ACCA, and sentenced Flores to a custody term of 235 months.

On appeal, we vacated Flores's sentence on the ground that the district court erred in including Flores's juvenile conviction for assault with a knife as a predicate offense under the ACCA. United States v. Flores, 118 Fed.Appx. 49 (6th Cir.2004) (per curiam) (unpublished). We remanded Flores's case to the district court for resentencing and further consideration of whether Flores's December 19, 1987, conviction for carrying a concealed weapon counts as a predicate offense under the ACCA. Id. at 53-54. We noted that, although a prior panel of this court had affirmed an Eastern District of Michigan opinion which held that carrying a concealed weapon is not a violent felony under the ACCA, the panel's decision was unpublished and, therefore, not binding. Id. at 54 n. 5 (citing United States v. Johnson, 704 F.Supp. 1403, 1407 (E.D.Mich.1989) aff'd per curiam, 900 F.2d 260 (6th Cir. 1990)).

On remand, the district court held two hearings on April 1, 2005, and October 11, 2005, respectively, to determine whether Flores's conviction for carrying a concealed weapon should count as a predicate offense under the ACCA. Before ruling on that issue, the district court decided, over the government's objection, that the offense level enhancements included in the PSR should not apply in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). With the enhancements no longer applied, Flores's offense level was recalculated to 24, with a resulting sentencing range of 100 to 125 months.

At the October 11 hearing, the district court held that Flores's prior conviction for carrying a concealed weapon was not a predicate offense under the ACCA and sentenced Flores to a term of 100 months of incarceration. The district court issued a memorandum on November 17, 2005, which clarified the grounds for its sentencing determination and purported to supersede the court's comments at the sentencing hearings. The court explained its reasoning as follows:

Carrying a concealed weapon does not involve any actual, attempted, or threatened use of violence. It merely describes a status of a person that the law forbids. If being a felon in possession of a firearm is not a predicate offense for establishing Armed Career Criminal status, a non-felon concealing possession of a weapon should not be either. Carrying a concealed weapon does not come with the same type or degree of serious potential risk as burglary and arson, and the Court hesitates to greatly expand the list of offenses establishing an Armed Career Criminal to any offense that creates a public risk. Rather than adopt such an incongruous result, the Court adopted the position taken by the Eighth Circuit and the Sixth Circuit's unpublished opinion in Johnson, and did not consider Flores an Armed Career Criminal when deciding his sentence.

This timely appeal followed.

II.

We review de novo the district court's determination that Flores does not qualify as an armed career criminal under the ACCA. United States v. Hill, 440 F.3d 292, 295 (6th Cir.2006). In determining whether Flores's conviction for carrying a concealed weapon is a predicate offense under the ACCA, we take a categorical approach, looking "only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions" to determine whether a sentence should be enhanced. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006).

The ACCA provides, in pertinent part:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.S.C. § 924(e)(1). The government challenges the district court's determination that Flores's December 9, 1987, conviction for carrying a concealed weapon was not a conviction for a "violent felony" under the ACCA, and that Flores was therefore ineligible for the fifteen-year minimum sentence that the ACCA requires.

The ACCA defines "violent felony" as follows:

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. . . .

18 U.S.C. § 924(e)(2)(B). Both parties have focused their arguments on § 924(e)(2)(B)(ii), debating whether carrying a concealed weapon "involves conduct that presents a serious potential risk of physical injury to another . . . ."

As the district court noted, there is a circuit split on the issue whether a...