853 F.3d 318 (6th Cir. 2017), 16-2239, United States v. Harris

Docket Nº:16-2239
Citation:853 F.3d 318
Opinion Judge:SUTTON, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OSCAR HARRIS, Defendant-Appellant
Attorney:Andrew N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant. Shane N. Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.
Judge Panel:Before: COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.
Case Date:April 04, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

Convicted as a felon in possession of a firearm, Harris was sentenced to 300 months’ imprisonment under the Armed Career Criminal Act’s residual clause. After the Supreme Court invalidated the residual clause, Harris received a new sentence of 115 months—the top of a range set in part by the district court’s determination that Harris’s two prior convictions for Michigan felonious assault were... (see full summary)

 
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Page 318

853 F.3d 318 (6th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

OSCAR HARRIS, Defendant-Appellant

No. 16-2239

United States Court of Appeals, Sixth Circuit

April 4, 2017

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:10-cr-20461-1--Bernard A. Friedman, District Judge.

ON BRIEF:

Andrew N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant.

Shane N. Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

A jury convicted Oscar Harris of being a felon in possession of a firearm, and the district court sentenced him to 300 months' imprisonment under the Armed Career Criminal Act's residual clause. After the Supreme Court invalidated the residual clause, Harris received a new sentence of 115 months--the top of a range set in part by the district court's determination that Harris's two prior convictions for Michigan felonious assault were crimes of violence under the Guidelines. Harris challenged that determination, and appeals it here, on the ground that Michigan felonious assault does not categorically involve the " use, attempted use, or threatened use of physical force," as the elements clause of the Guidelines requires. U.S.S.G. § 4B1.2(a). But Michigan's felonious assault statute obliges a jury to find at least attempted or threatened offensive touching and use of a dangerous weapon. Because those two elements together add up to violent force, and thus to a crime of violence, we affirm.

The Guidelines raise the base offense level for firearm offenses preceded by two felony convictions for " crime[s] of violence." Id. § 2K2.1(a)(2). One of the definitions of crimes of violence covers " any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 4B1.2(a); see id. § 2K2.1 cmt. n.1. This provision, often called the " elements clause," mirrors the elements clause in the Armed Career Criminal Act, and we typically interpret them the same way. See

United States v. Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012). Both clauses apply only to offenses that require a finding of " violent force--that is, force capable of causing physical pain or injury to another...

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