U.S.A v. Wise

• Decision Date: 09 March 2010
• Docket Number: No. 08-4033.,08-4033.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Charles WISE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

597 F.3d 1141

UNITED STATES of America, Plaintiff-Appellee, v. Michael Charles WISE, Defendant-Appellant.

No. 08-4033.

United States Court of Appeals,

Tenth Circuit.

March 9, 2010.

Jeremy M. Delicino, Salt Lake City, UT for Defendant-Appellant.

Karin M. Fojtik, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

Having pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), Michael Charles Wise now appeals his sentence of forty-eight months' imprisonment. He challenges his sentence on two grounds. First, he argues that his 2006 Utah conviction for failure to stop at the command of a police officer was not a "crime of violence" for purposes of United States Sentencing Guidelines ("U.S.S.G.") § 2K2.1(a)(4)(A), and thus did not qualify him for a base offense level of twenty. Second, he argues that because the Presentence Investigation Report ("PSR") did not assign him criminal history points for his 2006 conviction, the district court could not use that conviction— under the application notes to § 2K2.1—to raise his base offense level. Exercising jurisdiction under 28 U.S.C. § 1291, we reject both arguments, and AFFIRM Wise's sentence.

Background

On August 22, 2007, Wise was charged in a one-count indictment with being a previously-convicted felon in possession of a nine millimeter Smith & Wesson handgun, in violation of 18 U.S.C. § 922(g)(1).¹On November 27, 2007, Wise pleaded guilty to the offense.

In the PSR, the Probation Office recommended that Wise be sentenced under USSG § 2K2.1(a)(4)(a), ² which prescribes a base offense level of twenty for defendants convicted of being felons unlawfully in possession of a firearm who have also been previously convicted of a felony crime of violence. According to the PSR, in April of 2006 Wise was convicted in Utah state court for failing to stop in response to a police officer's command to do so, which under Utah Code S 41-6A-210 is a thirddegree felony. Wise was sentenced to 180 days' imprisonment for this violation. The PSR did not assign Wise any criminal history points for this conviction; even so his criminal history score totaled fourteen one point more than the thirteen points required to qualify him for the highest criminal history category, VI.

At sentencing, Wise objected to the PSR in two respects: (1) that his 2006 conviction did not qualify as a crime of violence under USSG § 2K2.1(a)(4)(A); and (2) that, under application note 10 to § 2K2.1 the court should not have applied an enhancement to Wise's offense level based on a prior conviction for which he did not receive criminal history points.³ The district court denied Wise's objections, and after considering the sentencing factors set out in 18 U.S.C. 8 3553(a), sentenced Wise to forty-eight months' imprisonment. Wise appealed to this court, and here presses the same two issues regarding his 2006 Utah conviction that he argued to the district court at sentencing.

Discussion

I. Wise's Conviction Under Utah Law for Failure to Stop at the Command of a Police Officer Was for a "Crime of Violence"

At sentencing, the district court raised Wise's base offense level to twenty, per USSG § 2K2.1(a)(4)(A), which dictates such an elevation "if the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of... a crime of violence." To determine the meaning of "crime of violence, " the application notes to § 2K2.1 direct courts to § 4B 1.2(a), which states:

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

USSG § 4131.2(a).

Wise was convicted in 2006 for violating Utah Code § 41-6a-210, which states:

(l)(a) An operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not:

(i) operate the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person; or

(ii) attempt to flee or elude a peace officer by vehicle or other means.

Subsection (l)(b) of the statute establishes that a violation of (l)(a) is "a felony of the third degree." Id.⁴

In order for § 2K2. 1(a)(4)(A) to apply, Wise's 2006 conviction must have been for a "crime of violence" meeting the terms of § 4B 1.2(a). Utah law establishes that, unless a particular statute provides otherwise, third-degree felonies are punishable "for a term not to exceed five years." Utah Code § 76-3-203(3). Wise's failure-to-stop conviction thus meets the first element of the § 4B 1.2(a) test, in that it is "punishable by imprisonment for a term exceeding one year." The Utah statute on its face does not have "as an element the use, attempted use, or threatened use of physical force against the person of another, " nor is it "burglary of a dwelling, arson, or extortion, " and it does not "involve[ ] use of explosives." USSG § 4B1.2(a)(l), (2). Therefore, in order to be a crime of violence, the Utah statute must fall into § 4B1.2(a)'s residual clause which encompasses crimes "otherwise involving] conduct that presents a serious potential risk of physical injury to another." Id. § 4B1.2(a)(2). Whether a crime falls into the residual clause is a question of law that we review de novo. United States v. Charles, 576 F.3d 1060, 1066 (10th Cir.2009), cert, denied, -U.S.-, 130 S.Ct. 1027,-L.Ed.2d-(2009). [2] When determining whether a past conviction qualifies as a "crime of violence, " we employ a categorical approach that looks to the words of the statute and judicial decisions interpreting it, rather than to the conduct of any particular defendant convicted of the crime. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). However, if the statute encompasses both conduct that would qualify as a crime of violence and conduct that would not, we employ a modified categorical approach and look to the statutory elements, the defendant's charging documents, plea agreement and colloquy (if any), and uncontested facts found by the district judge to determine whether the particular defendant's conduct violated the portion of the statute that is a crime of violence. Charles, 576 F.3d at 1067; see also Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (enumerating the sources that may be consulted).

To determine whether the offense categorically falls within the residual clause, we conduct a two-step analysis. First, we ask whether the offense "presents a serious potential risk of physical injury to another, " as required by the text of § 4B 1.2. See Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1584, 170 L.Ed.2d 490 (2008). Second, as the Supreme Court held in Begay, we must determine whether the offense is "roughly similar, in kind as well as in degree of risk posed, " to the enumerated crimes in § 4B 1.2(a)(2), namely, burglary, arson, extortion, oi' crimes involving explosives. Id. at 1585. A crime is "roughly similar" to an enumerated crime if it "typically involve[s] purposeful, violent, and aggressive conduct." Id. at 1586 (quotation marks omitted).

In United States v. West, 550 F.3d 952, 960 (10th Cir.2008), we applied the Begay test to the same Utah criminal statute at issue here, and held unequivocally that "a prior conviction under Utah law for failing to stop at an officer's command qualifies as a violent felony" under the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The residual clause of the ACCA is worded almost identically to that of § 4131.2(a), and we have held that in interpreting "crime of violence" under § 4B1.2, we may look for guidance to cases construing the ACCA's parallel provision. See Charles, 576 F.3d at 1068 n. 2 (citing United States v. Tiger, 538 F.3d 1297, 1298 (10th Cir.2008)). If West remains the law of the Tenth Circuit, it thus is squarely on point and disposes of Wise's claims in the government's favor. Wise argues, however, that West is no longer good law, because of the Supreme Court's recent decision in Chambers v. United States, -U.S.-, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). In Chambers, the Supreme Court held that a conviction under Illinois law for failure to report to weekend confinement was not a "violent felony" for the purposes of the residual clause of the ACCA. Id. at 689. While that case did not address the criminal statute at issue here and in West, Wise argues that Chambers undermined our opinion in West in two ways. First, that it did so by making it clear that we should treat different sections of a single criminal statute as distinct crimes for the purpose of the residual clause. Second, that in by holding that some escapes are not crimes of violence, Chambers undercut West's reli ance on Tenth Circuit precedent that all escape crimes are crimes of violence, thus undermining West's precedential force.⁵

We find neither argument convincing, and thus hold that West remains the law of this circuit, and controls the outcome in this case.

A. Both Subsections of the Utah Statute Define a Crime of Violence

Before conducting the two-step Begay analysis, a court must first put a criminal statute in the proper category. "And sometimes the choice is not obvious." Chambers, 129 S.Ct. at 690. In Chambers the Court was faced with a conviction under an Illinois statute that contained multiple sections detailing seven different ways of committing the statutory offense. Id. at 691. Rather than consider the statute as...