U.S. v. Young, 08-1394.

• Decision Date: 04 September 2009
• Docket Number: No. 08-1394.,08-1394.
• Citation: 580 F.3d 373
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Danotus YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

580 F.3d 373

UNITED STATES of America, Plaintiff-Appellee, v. Michael Danotus YOUNG, Defendant-Appellant.

No. 08-1394.

United States Court of Appeals, Sixth Circuit.

Argued: June 11, 2009.

Decided and Filed: September 4, 2009.

ARGUED: Richard Charles Gould, Law Offices, Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard Charles Gould, Law Offices, Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.^*

LIOI, D.J., delivered the opinion of the court, in which GRIFFIN, J., joined. SUTTON, J. (pp. 381-85), delivered a separate opinion concurring in part, dissenting in part and concurring in the judgment.

OPINION

SARA LIOI, District Judge.

Defendant Michael Young ("Young") appeals his conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), as well as his 15-year sentence under the Armed Career Criminal Act (ACCA). For the reasons that follow, we affirm both the conviction and the sentence.

I.

On December 15, 2006, at approximately 1:15 a.m., police officers in Grand Rapids, Michigan observed Young asleep in a car in a public parking lot known for numerous shootings and other criminal activity. Based on the high-crime area, the hour of the night, and Young's unlawful loitering in a city parking lot, one of the officers decided to approach the car to question Young.

When questioned, Young denied having anything illegal on his person, but his repeated "furtive hand movements" over his jacket pocket suggested that he was hiding contraband or a weapon; the officer asked Young to step out of the car. Young complied and informed the officer that he had a gun. Around the same time, the officer's partner yelled that Young had an outstanding arrest warrant. The officer arrested Young and discovered a gun on his person, which Young admitted was his.

Young was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress the gun as the fruit of an unconstitutional search and seizure, which the district judge denied. On November 5, 2007, without a written plea agreement, Young changed his plea to guilty, and the district judge sentenced him to the minimum 15-year sentence pursuant to ACCA.

II.

Young argues that the district court erred in denying his motion to suppress the gun. Sixth Circuit law is clear, however, that a guilty-pleading defendant may not appeal an adverse pre-plea ruling on a motion to suppress evidence unless he has preserved the right to do so in a written plea agreement under Criminal Rule 11(a)(2). United States v. Herrera, 265 F.3d 349, 351 (6th Cir.2001); Fed. R.Crim.P. 11(a)(2). The writing requirement may only be excused if the defendant "made it clear that he wished to preserve his right to appeal, the government acknowledged that he could appeal, and the court accepted that." United States v. Mastromatteo, 538 F.3d 535, 543 (6th Cir. 2008). The justification for the exception is that even if "the exact format of Rule 11(a)(2)" is not followed, its "intent and purpose have been fulfilled" where the defendant "ma[kes] it very clear that he intended to reserve his right to appeal the denial of [a] suppression motion[]." Id.

In this case, it is undisputed that there was no written plea agreement. Further, neither Young nor his counsel clearly expressed an intention to preserve the suppression issue on appeal. Indeed, during sentencing, the district judge acknowledged on three occasions that the only issue preserved for appeal was the ACCA enhancement, and neither Young nor his counsel objected otherwise.¹ Thus, Young is barred from raising the suppression issue on appeal.

III.

Young also challenges his 15-year mandatory minimum sentence. ACCA imposes a 15-year mandatory minimum sentence when a defendant convicted of § 922(g) has three or more prior convictions qualifying as "violent felonies" or "serious drug offenses." 18 U.S.C. § 924(e)(1). Young concedes that two of his prior offenses qualify as serious drug offenses, but he argues that his 1997 conviction for fleeing and eluding, second offense under Michigan law does not qualify as a violent felony under ACCA.

The fleeing-and-eluding statute under which Young was convicted states, in relevant part, as follows:

A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop, and who willfully fails to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police or conservation officer, is guilty of a misdemeanor, and shall be punished by imprisonment for not less than 30 days nor more than 1 year....

Mich. Comp. Laws § 257.602a(1) (1996). If a person violates that provision within five years of a prior fleeing-and-eluding conviction, the offense is punishable as a felony by a term of imprisonment up to and including four years. Id. at § 257.602a(4).

A "violent felony" under ACCA is an offense that is punishable by a term of imprisonment exceeding one year and either (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," or (2) "is burglary, arson, or extortion, involves the 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). Young's offense was punishable by a term of imprisonment exceeding one year, as he was convicted for a second fleeing and eluding offense within five years; thus, Young's fleeing-and-eluding conviction satisfies the threshold requirement of ACCA. Young's conviction, however, does not have as an element the use, attempted use, or threatened use of force, nor is it a type of burglary, arson, extortion, or an offense involving the use of explosives. Thus, the issue before the Court is whether Young's conviction falls under ACCA's "residual clause"—that is, whether it "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

An offense falls within ACCA's residual clause if it (1) poses a serious potential risk of physical injury to others; and (2) involves the same kind of purposeful, violent, and aggressive conduct as the enumerated offenses of burglary, arson, extortion, or offenses involving the use of explosives. Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008); United States v. Ford, 560 F.3d 420, 421 (6th Cir.2009). In conducting that inquiry, we are to use the "categorical approach," meaning that we examine only "whether the elements of the offense are of the type that would justify its inclusion within the residual provision." James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (emphasis in original). Further, we only consider the behavior underlying the offense as it is generally or ordinarily committed, Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (2009); James, 550 U.S. at 208, 127 S.Ct. 1586, "not in terms of how an individual offender might have committed [the offense] on a particular occasion," Begay, 128 S.Ct. at 1584.

Under the categorical approach of James, Begay, and Chambers, we hold that Young's conviction qualifies as a violent felony under ACCA. Young's conviction clearly involved purposeful conduct, as Michigan's fleeing-and-eluding statute applies only to those "who willfully fail[] to obey [an officer's] direction." Mich. Comp. Laws § 257.602a(1) (1996). See United States v. Roseboro, 551 F.3d 226, 236 & n. 5 (4th Cir.2009) (noting that Michigan's fleeing-and-eluding statute requires the violation to be purposeful); compare United States v. Spells, 537 F.3d 743, 749 (7th Cir.2008) (mens rea element of "knowingly or intentionally" presumed purposeful conduct); United States v. West, 550 F.3d 952, 960-61, 970 (10th Cir.2008) (statute prohibiting operating a vehicle "in willful or wanton disregard of [an officer's] signal" involved purposeful conduct).

Moreover, an ordinary violation of Michigan's fleeing-and-eluding statute involves aggressive conduct. A deliberate attempt to flee or elude a police officer in a motor vehicle constitutes "a clear challenge to the officer's authority," United States v. Harrimon, 568 F.3d 531, 535 (5th Cir.2009), and it usually will "call[] the officer to give chase," Spells, 537 F.3d at 752; West, 550 F.3d at 969. This is especially true when an offender flees in the manner proscribed by the Michigan statute, i.e., "by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude...." Mich. Comp. Laws § 257.602a(1) (1996). Fleeing and eluding also is generally aggressive because it "typically lead[s] to a confrontation" between the offender and the officer. Harrimon, 568 F.3d at 535 (quoting West, 550 F.3d at 970); see also Roseboro, 551 F.3d at 240 ("The intentional act of disobeying a law enforcement officer by refusing to stop for his blue light signal, without justification, is inherently an aggressive and violent act." (citation omitted)).

Finally, fleeing and eluding involves violent conduct that poses a serious potential risk of physical injury to others. The purpose of fleeing in a motor vehicle is to avoid detention or arrest by a police officer, and offenders typically attempt to flee by any means necessary, including speeding, extinguishing lights at nighttime, driving the wrong way, weaving, etc.² See West, 550 F.3d at 964 ("[U]nder the stress and urgency which...