Chaney v. United States

• Decision Date: 11 March 2019
• Docket Number: No. 17-2024,17-2024
• Citation: 917 F.3d 895
• Parties: Duryane Lewis CHANEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

917 F.3d 895

Duryane Lewis CHANEY, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-2024

United States Court of Appeals, Sixth Circuit.

Argued: October 4, 2018

Decided and Filed: March 11, 2019

ARGUED: Joan E. Morgan, FEDERAL PUBLIC DEFENDER OFFICE, Flint, Michigan, for Appellant. Mark Chasteen, UNITED STATES ATTORNEYS OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Joan E. Morgan, FEDERAL PUBLIC DEFENDER OFFICE, Flint, Michigan, for Appellant. Mark Chasteen, UNITED STATES ATTORNEYS OFFICE, Detroit, Michigan, for Appellee.

Before: BATCHELDER, GIBBONS, and ROGERS, Circuit Judges

ROGERS, Circuit Judge.

Duryane Chaney pleaded guilty to one count each of felon in possession of a firearm and possession with intent to distribute cocaine. Because his criminal record included convictions for one "serious drug offense" and two "violent felon[ies]," Chaney was sentenced as an armed career criminal, subject to the Armed Career Criminal Act’s fifteen-year mandatory minimum. 18 U.S.C. § 924(e)(1). On collateral review, Chaney argues that one of his three predicate convictions—a 1981 Michigan conviction for attempted unarmed robbery—does not qualify as a "violent felony" after the Supreme Court’s invalidation of the ACCA’s residual clause in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) [hereinafter Johnson II ]. That claim fails, however, because Chaney’s conviction qualifies as an ACCA-enhancing violent felony under the elements clause, which continues to apply notwithstanding Johnson II . Michigan unarmed robbery (as it existed in 1981) counts as a violent felony under the ACCA’s elements clause even though the statute extends to "putting [a victim] in fear," because under Michigan law "putting in fear" means "putting in fear of bodily injury from physical force."

Chaney pleaded guilty to one count of felon in possession of a firearm, 18 U.S.C. § 922(g)(1).¹ Although the base maximum sentence for that crime is ten years’ imprisonment, a violator who has three prior convictions for a "violent felony" or "serious drug offense" is subject to a fifteen-year mandatory minimum and a maximum sentence of life under the ACCA. § 924(e)(1). For purposes of this ACCA enhancement, a "violent felony" means a crime punishable by more than one year in prison that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the "elements clause"]; or

(ii) is burglary, arson, or extortion, involves use of explosives [the "enumerated crimes clause"], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the "residual clause"].

18 U.S.C. § 924(e)(2)(B)(i)–(ii).

Chaney objected at sentencing to the ACCA enhancement on the grounds that his 1981 Michigan conviction for attempted unarmed robbery was not a "violent felony" because it resulted in less than one year of imprisonment and did not, in his particular case, involve the use of "physical force." The Government countered that a crime qualifies under the ACCA so long as it is punishable by more than one year in prison—regardless of the sentence handed down—and that Michigan unarmed robbery categorically qualifies as a violent felony, citing United States v. Mekediak to the sentencing court. Mekediak had held that Michigan "unarmed robbery categorically creates a sufficiently comparable risk of injury to another as the risk posed by burglary," and thus "is a crime of violence for the purposes of [the] ACCA." 510 F. App'x 348, 354 (6th Cir. 2013), abrogation recognized by Shuti v. Lynch , 828 F.3d 440, 448 (6th Cir. 2016). The district court concluded that the "government [was] absolutely right," adding, "and of course, a conviction for attempted unarmed robbery does involve the attempted use or threatened use of physical force. So it qualifies." Chaney was sentenced as an armed career criminal.

More than a year later, Chaney brought (and later amended) a § 2255 motion to vacate his sentence on the ground that he no longer qualified as an armed career criminal after the Supreme Court in Johnson II invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S.Ct. at 2563. With the residual clause effectively erased, Chaney argued that his 1981 Michigan conviction for attempted unarmed robbery is not a predicate violent felony because robbery is not an enumerated offense, 18 U.S.C. § 924(e)(2)(B)(ii), and does not "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another," § 924(e)(2)(B)(i), as required by the elements clause. The district court, however, read the statute differently. In 1981, Michigan unarmed robbery was defined as follows:

Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.

Mich. Comp. Laws § 750.530 (1981). Relying on our unpublished opinion in United States v. Matthews , 689 F. App'x 840 (6th Cir. 2017), the district court held that the Michigan statute (even as applied to attempt) required the use, attempted use, or threatened use of "physical force," so as to qualify as an ACCA-enhancing "violent felony" under the elements clause. Accordingly, the court denied Chaney’s motion to vacate his sentence.

As a threshold matter, the Government argues that Chaney’s claim is procedurally improper because—despite its masquerading as a Johnson II residual-clause claim—it actually turns on the Court’s earlier decision in Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) [hereinafter Johnson I ], interpreting the degree of force required by the "elements clause." But a petitioner may bring a Johnson II claim challenging his status as an armed career criminal in a first § 2255 motion, like this one, so long as the sentencing court might have relied on the residual clause to enhance the sentence under the ACCA. See Raines v. United States , 898 F.3d 680, 685–86 (6th Cir. 2018) (per curiam).

Although it is true that Johnson II "does not reopen all sentences increased by [the ACCA]," see Potter v. United States , 887 F.3d 785, 787 (6th Cir. 2018), we have rejected the Government’s implied premise that a first-time § 2255 movant must show that the sentencing court relied only on the residual clause in order for the movant to bring a Johnson II claim, see Raines , 898 F.3d at 684–86. Where it is unclear which ACCA clause a court relied on to enhance a sentence, a first-time § 2255 movant may use Johnson II to collaterally attack his ACCA enhancement by showing that the sentencing court might have relied on the residual clause. See Raines , 898 F.3d at 685–86.

Here, Chaney has shown just that. As in many pre- Johnson II cases, the sentencing judge did not specify which ACCA clause it relied on in deeming Michigan attempted unarmed robbery a violent felony. The Government’s own arguments at sentencing, however, suggest that it and the court were looking to the residual clause. At sentencing, the Government cited only Mekediak , 510 F. App'x at 354, in support of the enhancement—a case expressly relying on the residual clause. That the only enhancement-supporting authority before the district court relied on the residual clause strongly suggests that the district court did too. On the other hand, the court did state that the conviction "involve[s] the attempted use or threatened use of physical force," which tracks the language of the elements clause. But it is difficult to read too much into that off-the-cuff statement without any indication that the court conducted a statutory analysis. What’s more, the district court below—the same to sentence Chaney—gave no indication that it relied on anything but the residual clause in sentencing Chaney. This record shows that Chaney at least might have been sentenced under the residual clause. Compare Raines , 898 F.3d at 686, with Potter , 887 F.3d at 787–88.

Having cleared that procedural hurdle, Chaney must survive another. For the first time on appeal the Government argues that Chaney procedurally defaulted his claim by failing to argue on direct review that his conviction did not satisfy the elements clause. In other words, the Government would have us fault Chaney for not making an argument that would have had no practical effect whatsoever given the then-viable residual clause. That would be a harsh outcome under any circumstances, and only more so here because the Government concedes that it has forfeited its own argument by failing to raise it before the district court. The Government asks us to look past its oversight because it was busy litigating other Johnson II claims at the time. But even if the Government’s excuse of practical burden might fly in another context, we will not excuse the Government’s forfeiture on that basis here only to hold Chaney’s claim procedurally defaulted for his failure to raise a claim that would have had no practical effect. The Government has, therefore, forfeited any defense of procedural default.

On the merits, Chaney’s 1981 Michigan conviction for attempted unarmed robbery is categorically a violent felony under the ACCA’s elements clause. The operative Michigan statute punishes theft committed "by force and violence, or by assault, or putting in fear." Mich. Comp. Laws § 750.530 (1981). Each of these alternatives meets the requirements of the elements clause, notwithstanding Chaney’s arguments that "putting in fear" or "force and violence" permits conviction without necessarily requiring the "use, attempted use, or threatened use of physical force" as required by that clause. See 18 U.S.C. § 924(e)(2)(B)(i). As defined in Johnson I , ...