704 Fed.Appx. 583 (6th Cir. 2017), 17-1088, United States v. Clark

• Citation: 704 Fed.Appx. 583
• Opinion Judge: PER CURIAM.
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Kedrick Deshawn CLARK, Defendant-Appellant.
• Attorney: Sally Berens, Office of the U.S. Attorney, Grand Rapids, MI, for Plaintiff-Appellee Paul L. Nelson, Assistant Federal Public Defender, Pedro Celis, Federal Public Defender’s Office, Western District of Michigan, Grand Rapids, MI, for Defendant-Appellant
• Judge Panel: BEFORE: CLAY, COOK, and WHITE, Circuit Judges.
• Case Date: November 22, 2017
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

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704 Fed.Appx. 583 (6th Cir. 2017)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kedrick Deshawn CLARK, Defendant-Appellant.

No. 17-1088

United States Court of Appeals, Sixth Circuit

November 22, 2017

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

Sally Berens, Office of the U.S. Attorney, Grand Rapids, MI, for Plaintiff-Appellee

Paul L. Nelson, Assistant Federal Public Defender, Pedro Celis, Federal Public Defender’s Office, Western District of Michigan, Grand Rapids, MI, for Defendant-Appellant

BEFORE: CLAY, COOK, and WHITE, Circuit Judges.

OPINION

PER CURIAM.

Kedrick Clark pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1), 921(a), and 924(a)(2). PSR at 3. At sentencing, Clark objected to the PSR’s base offense-level calculation on the ground that his prior conviction under Michigan’s felonious assault statute, Mich. Comp. Laws Ann. § 750.82, was not a conviction of a " crime of violence" under USSG § 4B1.2(a)(1). PID 235/Sentencing Hr’g. Clark also objected to the PSR’s adding a criminal-history point for a marijuana-related civil infraction under Grand Rapids City Charter,

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tit. XVIII, § 292. PID 235, 237-39. The Government agreed with Clark that his admission of responsibility for a civil infraction is not a " prior sentence imposed upon an adjudication of guilt by guilty plea, trial, or plea of nolo contendere" as required by USSG § 4A1.2(a)(1) and should not be scored a criminal-history point. PID 241-44. The district court overruled Clark’s objections and imposed a bottom-of-the-guidelines 57-month sentence. The court stated that had it not scored the point, the Guidelines range and sentence would have been different. PID 254. We AFFIRM the district court’s base offense-level calculation, VACATE the district court’s criminal-history scoring, and REMAND for resentencing.

Clark acknowledges that United States v. Harris, 853 F.3d 318, 321 (6th Cir. 2017), decided during the pendency of this appeal, held that Michigan felonious assault, Mich. Comp. Laws § 750.82,¹ has as an element the use, attempted use, or threatened use of physical force against another, and thus constitutes a crime of violence. Applying Harris,...