U.S. v. O'Valle

• Citation: 9 F.3d 110
• Decision Date: 31 August 1993
• Docket Number: No. 92-2474,92-2474
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Joe O'VALLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 110

9 F.3d 110

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Joe O'VALLE, Defendant-Appellant.

No. 92-2474.

United States Court of Appeals, Sixth Circuit.

Aug. 31, 1993.

Before KENNEDY and RYAN, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.

PER CURIAM.

Defendant Joe O'Valle appeals the sentence imposed upon his plea of guilty to a single charge of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). On appeal, defendant contends that the District Court erred in sentencing him as a career offender pursuant to United States Sentencing Guidelines ("U.S.S.G."), Section 4B1.1, because his prior state conviction for attempted felonious assault is a non-existent crime under Michigan law. For the reasons set forth below, we affirm.

I.

On January 10, 1991, defendant was charged with three counts of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Pursuant to a plea agreement, defendant agreed to plead guilty to count one of the indictment in exchange for the government's dismissal of the remaining two counts against him. The plea agreement also provided that any sentence imposed "shall not exceed the mid-point of the sentence range that the court finds to be acceptable." Thereafter, a presentence report was prepared which indicated that defendant's prior state convictions for felonious assault and attempted felonious assault subjected him to sentencing as a career offender under U.S.S.G. Sec. 4B1.1. Defendant filed an objection to this report, contesting the validity of his prior conviction for attempted felonious assault. On November 19, 1992, the District Court conducted a sentencing hearing and determined that defendant was a career offender pursuant to U.S.S.G. Sec. 4B1.1. The court then sentenced defendant to 189 months imprisonment and three years supervised release. ¹ This timely appeal followed.

II.

Defendant challenges the District Court's classification of him as a career offender under U.S.S.G. Sec. 4B1.1. Section 4B1.1 provides that a defendant is a career offender if "(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." The term "crime of violence" is further defined as any offense under 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." U.S.S.G. Sec. 4B1.2(1)(i). The only question for this Court is whether, pursuant to Michigan law, attempted felonious assault constitutes a "crime of violence."

The Michigan Supreme Court has recently held that the crime of attempted felonious assault does exist under Michigan law. People v. Jones, No. 94307 (Mich. July 27, 1993). The Court explained that:

Felonious assault is defined as a simple assault aggravated by the use of a weapon. As such, it includes the element of present ability or apparent present ability to commit a battery.

An attempt consists of: "(1) an intent to do an act or to bring about certain consequences which would in law...