U.S. v. Rogers, No. 08-6181.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtKethledge
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James ROGERS, Defendant-Appellant.
Decision Date08 February 2010
Docket NumberNo. 08-6181.
594 F.3d 517
UNITED STATES of America, Plaintiff-Appellee,
v.
James ROGERS, Defendant-Appellant.
No. 08-6181.
United States Court of Appeals, Sixth Circuit.
Argued: December 3, 2009.
Decided and Filed: February 8, 2010.

[594 F.3d 519]

ARGUED: Mary Catherine Jermann-Robinson, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. G. Kirby May, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: Mary Catherine Jermann-Robinson, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. G. Kirby May, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.*

OPINION

KETHLEDGE, Circuit Judge.


James Rogers pled guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), and now challenges his sentence. Because the district court correctly calculated Rogers's advisory range under the Sentencing Guidelines, we affirm.

I.

In May 2007, Memphis police received reports that stolen vehicles were stored outside Rogers's home. They responded by sending a confidential informant to the property. Upon returning, the informant said he had seen a stolen Chevrolet Corvette there. He added that Rogers had a pistol with him and was about to leave the residence as a passenger in a white pickup truck.

The officers stopped the vehicle as it pulled away from Rogers's home, and arrested him pursuant to an outstanding warrant from Mississippi. Upon searching the vehicle, they found a loaded .22-caliber pistol. Rogers admitted the gun was his.

Soon thereafter, Rogers's live-in girlfriend consented to a search of Rogers's home. Officers found the stolen Corvette in a shed at the rear of Rogers's property, and also found parts from a stolen Chevrolet Blazer in Rogers's garage. They later found the Blazer's hull, with its vehicle identification number removed, at another residence on the same street.

Rogers had a long criminal record, including several convictions for state felony offenses. Federal prosecutors therefore charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He pled guilty to the charge.

Using the 2007 version of the Sentencing Guidelines, the district court assigned Rogers a base-offense level of 20 because he had committed a prior "crime of violence." See U.S.S.G. § 2K2.1(a)(4)(A). The court added a four-level enhancement under U.S.S.G. § 2K2.1(b)(6), finding that Rogers had possessed the firearm "in connection with another felony offense." The court then applied a three-level downward adjustment for acceptance of responsibility. The resulting total offense level of 21 and Rogers's criminal history category of VI yielded an advisory range under the Guidelines of 77 to 96 months' imprisonment. The district court overruled Rogers's objections to the calculation of his base-offense level and the § 2K2.1(b)(6) enhancement, and sentenced him to 86 months' imprisonment.

This appeal followed.

II.
A.

Rogers first argues that the district court erred in assigning him a base-offense

594 F.3d 520

level of 20 because he committed his felon-in-possession offense after "sustaining one felony conviction of ... a crime of violence." U.S.S.G. § 2K2.1(a)(4)(A). We review de novo the district court's conclusion that a particular offense qualifies as a crime of violence. See United States v. Bass, 315 F.3d 561, 564-65 (6th Cir.2002).

The Guidelines define "crime of violence" to include any felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another" or "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). An offense qualifies as a crime of violence under the residual clause—i.e., as one that "otherwise involves conduct that presents a serious potential risk of physical injury to another"— if it is "roughly similar, in kind as well as in degree of risk posed," to the enumerated offenses. Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008) (construing the definition of "violent felony" contained in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)); see also United States v. Bartee, 529 F.3d 357, 363 (6th Cir.2008) (observing that the Armed Career Criminal Act's definition of "violent felony" and the Guidelines' definition of "crime of violence" are construed in a consistent manner, and applying Begay to the latter). Thus, the crime must be similar to the listed offenses not only in the degree of risk posed but also in the sense that it involves "purposeful, violent, and aggressive conduct." Begay, 128 S.Ct. at 1586.

In determining whether a particular offense meets this standard, we begin with a "categorical approach," which "look[s] only to the fact of conviction and the statutory definition—not the facts underlying the offense." Bartee, 529 F.3d at 359. When the prior conviction was entered via a guilty plea, we may also look 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...

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35 practice notes
  • United States v. Doyle, No. 10–5075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 25, 2012
    ...evading arrest is a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”). This court held in United States v. Rogers, 594 F.3d 517 (6th Cir.2010), that it was,1 but the Supreme Court vacated our judgment and remanded the case for further consideration in light of its rece......
  • Feliciano v. Colvin, No. 3:14-1449
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • September 1, 2015
    ...expert's testimony in making the step five decision that Plaintiff was capable of making a successful adjustment to other work. Ealy, 594 F.3d at 517. Generally, such error causes the ALJ's conclusion that the claimant can perform other work and is thus not disabled to lack substantial supp......
  • United States v. Barela, No. CR 13–3515 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 6, 2015
    ...call the police if a customer or associate turned violent or decided to steal the goods.” Response at 2 (citing United States v. Rogers,594 F.3d 517, 522 (6th Cir.2010), cert. granted, judgment vacated,––– U.S. ––––, 131 S.Ct. 3018, 180 L.Ed.2d 842 (2011)).The USPO disclosed two addendums t......
  • U.S. v. Taylor, No. 09–1961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 7, 2011
    ...decision) (de novo), and United States v. Bullock, 526 F.3d 312, 315–16 (6th Cir.2008) (de novo), with United States v. Rogers, 594 F.3d 517, 522 (6th Cir.2010) (clear error), and United States v. Richardson, 510 F.3d 622, 628 (6th Cir.2007) (clear error), cert. denied, 553 U.S. 1013, 128 S......
  • Request a trial to view additional results
35 cases
  • United States v. Doyle, No. 10–5075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 25, 2012
    ...evading arrest is a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”). This court held in United States v. Rogers, 594 F.3d 517 (6th Cir.2010), that it was,1 but the Supreme Court vacated our judgment and remanded the case for further consideration in light of its rece......
  • Feliciano v. Colvin, No. 3:14-1449
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • September 1, 2015
    ...expert's testimony in making the step five decision that Plaintiff was capable of making a successful adjustment to other work. Ealy, 594 F.3d at 517. Generally, such error causes the ALJ's conclusion that the claimant can perform other work and is thus not disabled to lack substantial supp......
  • United States v. Barela, No. CR 13–3515 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 6, 2015
    ...call the police if a customer or associate turned violent or decided to steal the goods.” Response at 2 (citing United States v. Rogers,594 F.3d 517, 522 (6th Cir.2010), cert. granted, judgment vacated,––– U.S. ––––, 131 S.Ct. 3018, 180 L.Ed.2d 842 (2011)).The USPO disclosed two addendums t......
  • U.S. v. Taylor, No. 09–1961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 7, 2011
    ...decision) (de novo), and United States v. Bullock, 526 F.3d 312, 315–16 (6th Cir.2008) (de novo), with United States v. Rogers, 594 F.3d 517, 522 (6th Cir.2010) (clear error), and United States v. Richardson, 510 F.3d 622, 628 (6th Cir.2007) (clear error), cert. denied, 553 U.S. 1013, 128 S......
  • Request a trial to view additional results

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