U.S. v. Armstead

• Decision Date: 06 November 2006
• Docket Number: No. 05-6480.,05-6480.
• Citation: 467 F.3d 943
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clyde ARMSTEAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

467 F.3d 943

UNITED STATES of America, Plaintiff-Appellee, v. Clyde ARMSTEAD, Defendant-Appellant.

No. 05-6480.

United States Court of Appeals, Sixth Circuit.

Argued: September 20, 2006.

Decided and Filed: November 6, 2006.

ARGUED: Mary C. Jermann-Robinson, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Katrina U. Earley, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: Mary C. Jermann-Robinson, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Katrina U. Earley, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before ROGERS and GRIFFIN, Circuit

Judges; OBERDORFER, District Judge.^*

OPINION

OBERDORFER, District Judge.

After a jury trial, the United States District Court for the Western District of Tennessee, on September 14, 2005, convicted defendant-appellant Clyde Armstead as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Finding that Armstead had a prior conviction for a "crime of violence" within the meaning of § 4B1.2 of the United States Sentencing Guidelines (U.S.S.G. or Guidelines), the district court imposed a sentence of sixty-six months imprisonment, two years supervised release, and a $100 fine. Defendant appeals the conviction and the sentence. We affirm the conviction, but vacate the sentence, and remand for further proceedings and resentencing because the present record does not justify the district court's conclusion that Armstead's prior conviction was for a crime of violence.

I. BACKGROUND

There was substantial evidence before the jury that:

Early on the morning of November 22, 2003, Kelvin and Toni Butler were awakened by a disturbance at their Memphis, Tennessee, apartment building. Standing outside their window was Armstead, drunk and yelling that someone in the Butlers' apartment owed him ten dollars. He was referring to the Butlers' neighbor, a woman known only as Carla, who had once lived in the Butlers' apartment after being evicted from her own. The Butlers told Armstead that Carla no longer lived with them, and indeed she had moved out of their apartment the day before.

Undeterred, Armstead later that afternoon returned to the Butlers' apartment. He demanded that the Butlers pay him the ten dollars, threatening harm if they did not. As Armstead proceeded to walk up the steps toward the Butlers' unit, they noticed a gun sticking out of his pocket. When he reached the top of the steps, they observed him pull out an old, rusty gun and point it at them.

Mrs. Butler, hysterical and upset, called the police. As the police were arriving, Armstead ran into a neighboring apartment complex. One of the officers noticed him there bending down near an apartment balcony. Searching that area, the police discovered an old, rusty gun in one of the trash cans. The Butlers identified the gun as the one Armstead had pointed at them. The officers arrested Armstead.

In time, a federal grand jury returned a one-count indictment charging Armstead with being a previously convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At the ensuing trial, several witnesses, including the Butlers and the police officers, testified to the foregoing facts concerning the November 22 incident. On May 16, 2005, the jury, advised that Armstead was a convicted felon, returned a verdict of guilty.

The presentence report concluded that Armstead's offense level should be increased pursuant to § 4B1.2 of the Guidelines because he had been previously convicted of a "crime of violence." See U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a). Two Tennessee indictments alleged that in 1994 Armstead

did unlawfully and knowingly, other than by accidental means, neglect ... a child under eighteen (18) years of age, so as to adversely affect the health and welfare of the said [child], resulting in serious bodily injury, to wit: burns to the body, to the said [child], in violation of [Tennessee Code §] 39-15-402.

Sentencing Hr'g Exs. 1 & 2 (Sept. 8, 2005) (emphasis added). At the subsequent sentencing hearing defense counsel argued that Armstead's 1994 guilty plea in, and conviction by, the Shelby County court for "attempted child abuse," a lesser-included offense of the crime charged in the indictments, was not a conviction for a crime of violence within the meaning of § 4B1.2.

At the sentencing hearing, the district court had before it the two Tennessee indictments and the presentence report. The court ruled as follows:

[L]ooking at the [Shelby County] indictments, the applicable law, and considering the Sixth Circuit approach, the court finds that in this case all of the underlying facts support the notion that this was a crime of violence.

Sentencing Hr'g Tr. at 25 (September 8, 2005).

This appeal followed.

II. DISCUSSION

A. Sufficiency of the Evidence

We review a criminal judgment for sufficiency of the evidence under a familiar standard. Reversal is appropriate "only if this judgment is not supported by substantial and competent evidence upon the record as a whole." United States v. Blood, 435 F.3d 612, 618 (6th Cir.2006). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); Blood, 435 F.3d at 618.

Here, there was ample evidence that defendant (1) had a prior felony conviction and (2) was in possession of a firearm that (3) had traveled in or affected interstate commerce, in violation of 18 U.S.C. § 922(g). United States v. Smith, 320 F.3d 647, 655 (6th Cir.2003); United States v. Walker, 160 F.3d 1078, 1087 (6th Cir.1998). Elements (1) and (3) were stipulated to at trial; the testimony of the police officers and the Butlers was more than sufficient to establish the element of possession. See United States v. Caraway, 411 F.3d 679, 682 (6th Cir.2005). Whether that testimony was credible is for the jury to determine, not this court. See United States v. Carter, 355 F.3d 920, 925 (6th Cir.2004).

B. The "Crime of Violence" Determination

We review de novo the district court's legal conclusion that Armstead's prior conviction was for a crime of violence within the meaning of § 4B1.2 of the Guidelines. See United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005). That section, in relevant part, defines a crime of violence as

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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a); see also id. §§ 2K2.1 & cmt. n. 1 and 4B1.2 cmt. n. 1.

The district court looked at the state court indictments charging "aggravated child abuse" as evidence that Armstead's conviction of the lesser-included offense of "attempted child abuse" on his plea of guilty was a conviction for a crime of violence. The question presented is whether such reliance was appropriate.

1. The Categorical Approach

In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court adopted a "categorical approach" to sentencing courts' appraisals of prior convictions in circumstances resembling those before us here. Under this approach, a sentencing court generally may look "only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions" to determine whether a sentence should be enhanced. See id. at 600, 110 S.Ct. 2143. One of the policies animating the Court's adoption of this approach was to avoid "the practical difficulties and potential unfairness" of permitting a sentencing court to relitigate the facts and delve into the details of a prior conviction. See id. at 601, 110 S.Ct. 2143. Nonetheless, the Court in Taylor also permitted, in cases where the statutory definition is ambiguous, a court to "go beyond the mere fact of conviction" and examine the charging papers or jury instructions to determine whether the convicting jury necessarily found all the requisite elements of an offense that would qualify for a federal sentencing enhancement. Id. at 602, 110 S.Ct. 2143; see, e.g., United States v. Kaplansky, 42 F.3d 320, 325 (6th Cir.1994) (en banc).

The Court in Taylor also noted, without directly addressing the issue, that in cases where the guilty plea is to a lesser-included offense of the one charged in the original indictment, it might be "unfair" to base a sentence enhancement on the crime alleged in the original indictment. See Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143. After Taylor, the courts of appeals took a variety of approaches in pleaded cases, and eventually the issue arose in the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Shepard involved a guilty plea to a statutory burglary offense that embraced both generic burglary (burglary into buildings) which is subject to a federal sentence enhancement and non-generic burglary (burglary into other structures, e.g., boats or vehicles) which is not. Id. at 16-17, 125 S.Ct. 1254. The Supreme Court, casting its decision as adherence to the "heart" of Taylor, id. at 23, 125 S.Ct. 1254, confirmed that Taylor applied to convictions based on guilty pleas. Id. at 19, 125 S.Ct. 1254. It further held that in such cases, a court's inquiry is

limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed...