U.S. v. Bartee, 07-1522.

• Decision Date: 10 June 2008
• Docket Number: No. 07-1522.,07-1522.
• Citation: 529 F.3d 357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Quincy Donell BARTEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

529 F.3d 357

UNITED STATES of America, Plaintiff-Appellee, v. Quincy Donell BARTEE, Defendant-Appellant.

No. 07-1522.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2008.

Decided and Filed: June 10, 2008.

ARGUED: Richard D. Stroba, Federal Public Defender Office, Grand Rapids, Michigan, for Appellant. Elisa Castrolugo, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard D. Stroba, Federal Public Defender Office, Grand Rapids, Michigan, for Appellant. Elisa Castrolugo, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: GUY, SUHRHEINRICH, and COLE, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant Quincy Donell Bartee pleaded guilty to one count of being a felon in possession of a firearm and was sentenced to a 43-month term of imprisonment. The only issue on appeal is whether it was error to find that defendant's prior felony conviction for attempted criminal sexual conduct in the second degree (CSC-2) constituted a "crime of violence" that would justify a base offense level of 22 rather than 20. UNITED STATES SENTENCING GUIDELINES MANUAL (USSG) § 2K2.1(a)(3) and (4) (2006). After review of the record, and in light of the recent decision in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we vacate defendant's sentence and remand for resentencing consistent with this opinion.

I.

On July 6, 2006, police officers were called to 435 Amity Avenue, Muskegon, Michigan, a house in which defendant was renting a room. Police responded to a complaint by one of defendant's housemates against two others who were trying to evict her. The officers secured an agreement allowing the complainant to store her belongings at the house and left, only to be called back when the complainant reported being threatened with a shotgun. A search of the premises resulted in the discovery of a sawed-off Mossberg .12 gauge shotgun in a bedroom closet. One resident explained that the shotgun belonged to the defendant, who was in jail at the time. When questioned, defendant said he found the shotgun and took it back to his room. Defendant, then 23 years of age, had not completed high school. Defendant had one prior felony conviction — attempted CSC-2 — that served both as the predicate for the felon-in-possession charge and as the "crime of violence" for guideline purposes.

Charged in a two-count indictment, defendant pleaded guilty to being a felon in possession of a firearm. There is no dispute that since the shotgun was one having a barrel of less than 18 inches as described in 26 U.S.C. § 5845(a), the applicable base offense level would be 22 if the prior conviction qualified as a "crime of violence." USSG § 2K2.1(a)(3). Over defendant's written objections to the higher base offense level, the district court agreed with the government that the prior conviction qualified as a "crime of violence." An additional two-level increase in the offense level for the shotgun having been reported stolen was offset by a three-level decrease for acceptance of responsibility. USSG § 2K2.1(b)(4) and § 3E1.1(a) and (b). Defendant was assessed five criminal history points: two points for the attempted CSC-2 conviction, two points because the instant offense was committed while on probation from that conviction, and one point because the instant offense was committed within two years of release from custody on that conviction. USSG § 4A1.1(b), (d), and (e). With a total offense level of 21 and criminal history category III, the guideline range was 46 to 57 months.¹ After considering the relevant sentencing factors under 18 U.S.C. § 3553(a), the district court selected a sentence at the bottom of the guideline range, gave defendant credit for the three months he was held in state custody in connection with this offense, and sentenced defendant to a term of 43 months of imprisonment to be followed by three years of supervised release. This appeal followed.

II.

Sentences imposed post-Booker are reviewed for reasonableness — including for procedural error in the calculation of the guideline range such as defendant asserts in this case. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007); United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We review de novo the district court's conclusion that the defendant's prior conviction constituted a "crime of violence." United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005) ("This Court reviews a district court's conclusion that a crime constitutes a violent felony under the ACCA or a crime of violence under the ACCA's parallel provision in the Guidelines de novo.").

The term "crime of violence" in USSG § 2K2.1 is defined by cross-reference to USSG § 4B1.2(a), which provides as follows:

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.

In making this determination, "the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of inquiry." § 4B1.2, comment n. 2. It is clear as well that the term "crime of violence" encompasses aiding and abetting, conspiring, and attempting to commit such offenses. USSG § 4B1.2, comment n. 1. Defendant contends on appeal that the district court erred both in its application of the categorical approach in determining the nature of his prior conviction and in its conclusion that the offense was one that qualified as a "crime of violence."

The categorical approach articulated in Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and extended to plea-based convictions in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), for determining whether a prior conviction constitutes a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2), has been applied by this court to the parallel determination of whether a prior conviction constitutes a "crime of violence" under USSG § 4B1.2(a). See, e.g., United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995); United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). Under this categorical approach, the court must look only to the fact of conviction and the statutory definition — not the facts underlying the offense — to determine whether that definition supports a conclusion that the conviction was for a crime of violence. United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006) (discussing Taylor and Shepard). "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." Id. (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143).

Taylor recognized a "narrow exception" when the statutory definition is ambiguous, under which the court may 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 as a "violent felony" under the ACCA. Id. at 947. In addressing plea-based convictions in Shepard, the Court limited examination under this exception 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 by the defendant, or to some comparable judicial record of this information." Shepard, 544 U.S. at 26, 125 S.Ct. 1254. In doing so, the Court specifically rejected the government's call to permit consideration of police reports and criminal complaint applications to support a finding that the guilty plea could only have been based on facts that would qualify the conviction as a "violent felony." Id. at 21, 125 S.Ct. 1254. With these principles in mind, we turn first to the statutory definition of CSC-2.

A. Categorical Approach

In Michigan, CSC-2 may be committed in one of several ways. As noted, however, defendant's conviction was specifically for violation of Mich. Comp. Laws Ann. § 750.520c(1)(c), which defines the offense as follows:

(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exist:

....

(c) Sexual contact occurs under circumstances involving the commission of any other felony.

It is at least ambiguous whether the statutory definition of the offense — sexual contact with another person under circumstances involving the commission of any other felony — constitutes a "crime of violence." Looking beyond the statutory definition, the government relied solely on the amended information, which identified the "other felony" as solicitation of a minor for immoral purposes. Specifically, the amended information charged defendant with having "sexual contact with another person, to-wit: Angela ... during the commission of another felony, to-wit: solicit[ing] minor for immoral purposes." Michigan makes it a felony to accost, entice, or solicit "a child less than 16 years of age ... with the intent to induce or force that child ... to commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or to any other act of depravity or delinquency," or to encourage the child to engage in any of those acts. MICH. COMP. LAWS ANN. § 750.145a.

It is clear, as the government concedes, that defendant's prior conviction does not have as an element "the use, attempted use, or threatened use...