United States v. Covington

• Decision Date: 06 January 2014
• Docket Number: No. 12–2438.,12–2438.
• Citation: 738 F.3d 759
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. George Edward COVINGTON III, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

738 F.3d 759

UNITED STATES of America, Plaintiff–Appellee,

v.George Edward COVINGTON III, Defendant–Appellant.

No. 12–2438.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 3, 2013.

Decided and Filed: Jan. 6, 2014.

ARGUED:Geoffrey Upshaw, Law Office Of Geoffrey Upshaw, Kalamazoo, Michigan, for Appellant. Sally J. Berens, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Geoffrey Upshaw, Law Office Of Geoffrey Upshaw, Kalamazoo, Michigan, for Appellant. Sally J. Berens, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: ROGERS, STRANCH, and DONALD, Circuit Judges.

DONALD, J., delivered the opinion of the court, in which ROGERS and STRANCH, JJ., joined. STRANCH, J. (pg. 767), delivered a separate concurrence.

OPINION

BERNICE B. DONALD, Circuit Judge.

Defendant–Appellant, George Covington, III, appeals the district court's designation of his prior conviction for prison escape under Michigan Compiled Laws section 750.193 as a “crime of violence” for purposes of a career offender sentence enhancement under § 4B1.1 of the United States Sentencing Guidelines. Because an offense of breaking and escaping prison under section 750.193 does not present the same “serious potential risk of physical injury to another” as the offenses enumerated in § 4B1.2(a)(2) of the Sentencing Guidelines, we REVERSE the district court's determination and REMAND for resentencing.

I.

On May 25, 2012, George Covington, III (“Covington”) pled guilty to possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c) and possession of cocaine base with intent to distribute under 21 U.S.C. § 841(a). The United States Probation Department recommended sentencing Covington as a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) based on two prior felony convictions. Covington filed an objection to the presentence report (“PSR”), arguing that his prior felony conviction for prison escape under Michigan Compiled Laws section 750.193 did not qualify as a crime of violence under the Guidelines.

The district court heard arguments on Covington's objection to the PSR at sentencing and overruled the objection. Applying the Supreme Court's risk levels analysis from Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011), the district court then found that Covington's prior conviction for prison escape under section 750.193 presented risks similar enough to the offense of burglary, enumerated in § 4B1.2(a)(2), to qualify as a crime of violence because it is a “stealth crime” with a risk of discovery, likely to cause “an eruption of violence.”

Accordingly, the district court applied the career offender enhancement and sentenced Covington to 60 months on the firearm possession charge under 18 U.S.C. § 924(c), and 210 months on the drug charge under 21 U.S.C. § 841(a)(1), to run consecutively. Covington timely appealed his sentence on the firearm possession charge to this Court.

The Amended Information filed by the State of Michigan in the prison escape case charged Covington with breaking and escaping from prison contrary to Michigan Compiled Laws section 750.193. Covington was assigned to the Muskegon Community Correction Center. The plea colloquy from Covington's subsequent conviction on that charge reveals that, one day after Covington had left the Center with permission on a laundry pass, he returned ten minutes late. Appellant Br. at 46. Knowing that he would be sent back to prison for violating the Center's rules, Covington “went out the window ... jumped a fence and ran through the wooded area” to escape. Id.

II.

This Court reviews de novo a district court's legal conclusion that a defendant'sprior conviction constitutes a crime of violence. United States v. Bartee, 529 F.3d 357, 358 (6th Cir.2008).

U.S.S.G. § 4B1.1 provides significantly increased prison terms for a criminal defendant who qualifies as a “career offender.” Before a defendant can be classified as a career offender, a court must find that he meets three requirements: (1) he was at least eighteen years old when he committed the offense charged; (2) the offense charged is a felony that qualifies as a crime of violence or a controlled substance offense; and (3) he has at least two prior felony convictions for either crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a).

The Guidelines then define crime of violence in § 4B1.2(a):

The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The final portion of § 4B1.2(a)(2), beginning with “otherwise,” is known as the “residual clause.” See, e.g., United States v. Ford, 560 F.3d 420, 421 (6th Cir.2009).

When determining which crimes fall within § 4B1.2(a)'s definition of crime of violence, or the “violent felony” provision of Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), federal courts use the “categorical approach.” Id. at 421–22. The United States Supreme Court recently clarified the scope and application of the categorical approach in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283–87, 186 L.Ed.2d 438 (2013). The Descamps Court traced the development of the categorical approach from its first appearance in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to the present. Descamps, 133 S.Ct. at 2283–86. In Taylor, the Court adopted a “formal categorical approach” that precludes sentencing courts from looking “to the particular facts underlying [a defendant's prior] convictions” when determining whether a prior conviction counts as a predicate felony for purposes of the ACCA. Descamps, 133 S.Ct. at 2283 (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143) (internal quotation marks omitted). Instead, the focus of the categorical approach is on the elements of a defendant's prior convictions. Id. (“The key, [the Supreme Court] emphasized [in Taylor ], is elements, not facts.”).

The Descamps Court then discussed Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which created the “modified categorical approach.” 133 S.Ct. at 2284.Taylor had posited that there would be a “narrow range of cases” where the sentencing court would have to look beyond the statutory elements to effectuate the categorical approach because the statute includes “alternative elements.” Id. at 2283–84 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). In Shepard, the Court actually addressed such a case. Id. at 2284 (citing Shepard, 544 U.S. at 17, 125 S.Ct. 1254). The statute that served as the basis for the defendant's conviction in Shepard was “divisible,” meaning that the statute “comprise[d] multiple, alternative versions of the crime.” Id. The sentencing court had to look beyond the statutory elements to a restricted set of materials, including the charging documents, the terms of a plea agreement, or the plea colloquy transcript because “[n]o one could know, just from looking at the statute, which version of the offense Shepard was convicted of.” Id. Even Shepard recognized, however, that the purpose of the modified categorical approach is not to determine the factual basis of the prior plea, but rather the version of the crime to which the defendant pled guilty. Id. (citing Shepard, 544 U.S. at 25–26, 125 S.Ct. 1254). Accordingly, even the modified categorical approach is bounded by this principle. See Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“[T]he ‘modified categorical approach’ that we have approved permits a court to determine which statutory phrase was the basis for the conviction....”).

The Descamps Court went on to summarize the interplay between the categorical approach and the modified categorical approach as follows:

[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements.... All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates “several different ... crimes.”

133 S.Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)). Accordingly, Descamps instructed the lower federal courts to “use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant's conviction.” Id. at 2293. “The modified approach does not authorize a sentencing court to substitute ... a facts-based inquiry for an elements-based one.” Id. at 2293. Fact-based methods of inquiry outside of the “modified categorical” step thus have been foreclosed. See, e.g., United States v. Stout, 706 F.3d 704, 706–09 (6th Cir.2013) (using a fact-based inquiry to “hypothetically” divide a statute).

Because a violent felony under the ACCA and a crime of violence under the Guidelines “share essentially the same definitions,” Ford, 560 F.3d at 421, this Court applies the same analysis to determine whether a defendant's prior conviction constitutes a crime of violence under the Guidelines. Id. at 421–22.

III.

In light of Descamps, there are two steps in applying the categorical approach to determine whether a prior conviction constitutes a crime of violence under...