U.S. v. Martin

• Decision Date: 29 July 2004
• Docket Number: No. 03-1855.,03-1855.
• Citation: 378 F.3d 578
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darrell J. MARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

378 F.3d 578

UNITED STATES of America, Plaintiff-Appellee, v. Darrell J. MARTIN, Defendant-Appellant.

No. 03-1855.

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2004.

Decided and Filed: July 29, 2004.

Appeal from the United States District Court for the Western District of Michigan, Gordon J. Quist, J Andrew Byerly Birge (argued and briefed), U.S. Attorney's Office for the Western District of Michigan, Grand Rapids, MI, for Plaintiff-Appellee.

Paul L. Nelson (argued and briefed), Federal Public Defenders Office Western District of Michigan, Grand Rapids, for Defendant-Appellant.

Before: SILER, DAUGHTREY, and SUTTON, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

A federal grand jury indicted Darrell Martin for possessing a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and he pleaded guilty to the offense. Determining that the State of Michigan had successfully prosecuted Martin for at least one prior "crime of violence" — either third-degree fleeing and eluding or resisting and obstructing a police officer — the district court gave Martin a base-offense level of 20 under § 2K2.1(a)(4)(A) of the Sentencing Guidelines. Martin appeals his sentence, claiming that neither conviction constitutes a crime of violence. Concluding that third-degree fleeing and eluding under Michigan law is a crime of violence, we affirm.

I.

On September 10, 2002, officers of the Muskegon, Michigan police department identified a stolen car and proceeded to follow it. As the car rounded a corner, it slowed down and (before it had stopped) the two occupants of the car jumped out of the moving car and fled. Police chased the men but apprehended only one of them, whom they later identified as Darrell Martin. As the officers ordered Martin to the ground, they noticed a handgun lying on the ground five or six feet away. Martin acknowledged that he owned the weapon, and the officers arrested Martin and placed him in custody.

On January 9, 2003, a grand jury indicted Martin for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). He pleaded guilty to the charge.

In its presentence report, the Government recommended a base-offense level of 20 under § 2K2.1(a)(4)(A) of the Sentencing Guidelines. That provision says defendants who violate certain firearms-related laws must receive a base-offense level of 20 if they committed the offense "subsequent to sustaining one felony conviction of [ ] a crime of violence," as defined by § 4B1.2(a) of the Guidelines and its application note 1. In the Government's view, Martin previously had been convicted of two qualifying offenses: (1) "Resisting and Obstructing a Police Officer" under Mich. Comp. Laws § 750.479 (as written prior to the 2002 amendments), and (2) "Fleeing and Eluding — 3rd [degree]" under Mich. Comp. Laws § 750.479a(1) and (3). JA 68-69. Martin argued that neither conviction constituted a "crime of violence" under the Guidelines and that his base-offense level should be 14, not 20.

The district court adopted the Government's recommendation. It then added a 2-level upward adjustment under U.S.S.G. § 2K2.1(b)(4) (possession of a stolen gun) and a 3-level downward adjustment under U.S.S.G. § 3E1.1 (acceptance of responsibility), all of which generated an offense level of 19. Combining this offense level with his criminal history category (V), the Sentencing Guidelines gave Martin a sentencing range of 57 to 71 months, and the district court sentenced him to a 57-month prison term.

II.

Martin challenges his sentence on appeal, arguing that § 2K2.1(a)(4)(A) does not apply because he had not been convicted of any "crimes of violence" at the time he committed the § 922(g) offense. As the parties agree, we give fresh review to the legal question whether either of Martin's convictions constitutes a "crime of violence." See United States v. Bass, 315 F.3d 561, 564-65 (6th Cir.2002). And as the parties also agree, Martin's sentence may be affirmed if either the fleeing-and-eluding conviction or the resisting-and-obstructing conviction amounts to a "crime of violence." In this instance, we need consider only whether Martin's fleeing-and-eluding conviction qualifies.

A.

Section 2K2.1(a)(4)(A) of the Sentencing Guidelines confers a base offense level of 20 on defendants convicted of offenses for "Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition" if the defendant "committed any part of the [] offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." The application notes to the provision refer the reader to § 4B1.2(a) and its accompanying application note 1 for a definition of a "crime of violence." U.S.S.G. § 2K2.1 cmt. n. 5. Under the definition provided in § 4B1.2(a), "crimes of violence" encompass

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.

The accompanying application note expands the list of enumerated offenses to include "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling" as "crimes of violence," and reiterates that other offenses also count as "crimes of violence" if

(A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2 cmt. n. 1. Because neither the Guideline nor its application note names fleeing and eluding as a crime of violence, that offense must either (1) have "as an element the use, attempted use, or threatened use of physical force against the person of another" or (2) "present[ ] a serious potential risk of physical injury to another" to qualify. U.S.S.G. § 4B1.2(a) & cmt. n. 1.

In deciding whether an offense amounts to a "crime of violence" under these two tests, we have applied a "categorical approach," which is to say we have looked at "the fact of conviction and the statutory definition of the predicate offense," not the "underlying facts regarding the offense," to determine whether either test is satisfied. United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995); see United States v. Champion, 248 F.3d 502, 505 (6th Cir.2001) (applying categorical approach in determining whether an offense has as an element "the use, attempted use, or threatened use of physical force"); United States v. Payne, 163 F.3d 371, 374 (6th Cir.1998) (applying categorical approach in determining whether an offense entails "serious potential risk of physical injury"); cf. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (applying the same approach in determining whether an offense is a "violent felony" under the armed career criminal statute). If the relevant statute of conviction does not supply a clear answer to these inquiries, as Martin concedes, Appellant's Br. at 16, the sentencing court may consult the indictment and either the jury instructions or plea agreement for the specific conduct with which the defendant was charged in order appropriately to characterize the offense. See United States v. Kaplansky, 42 F.3d 320, 322 (6th Cir.1994) (en banc); see also Bass, 315 F.3d at 565 ("[W]hen it is not clear from the elements of the offense alone whether the crime involved a serious risk of potential injury to another, the sentencing court may review the indictment for the specific conduct charged.") (quotation omitted).

B.

Martin's presentence report indicates, and the parties agree, that Martin pleaded guilty to fleeing and eluding in the third degree in violation of Michigan Compiled Laws § 750.479a(1) and (3). That statute says that "[a] driver of a motor vehicle who is given ... [a] signal by a[n] officer ... directing the driver to ... stop shall not willfully fail to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the ... officer." Mich. Comp. Laws § 750.479a(1). A person commits the offense in the third-degree if the violation "results in a collision or accident," if the violation "occurred in an area where the speed limit is 35 miles an hour or less" or if the defendant has a previous conviction for actual or attempted fourth-degree fleeing and eluding or similar misconduct. Id. § 750.479a(3). The charging document — which is described in the presentence report (in language to which the defendant did not object) — says that Martin committed the third-degree offense by causing "a collision or an accident" or by failing to stop while in a 35-mile-per-hour zone, or both. JA 69.

Because fleeing and eluding does not have as an element "the use, attempted use, or threatened use of physical force against the person of another," the pertinent question is whether the offense "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). We believe that it does.

When a motorist disobeys an officer and flees in his car, whether by "increasing [his] speed," "extinguishing the [car's] lights" or by "otherwise attempting to flee," that person creates a conspicuous potential risk of injury to pedestrians, vehicles sharing the road, passengers in the fleeing car and the...