United States v. Ball, No. 14–5048.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtSILER, Circuit Judge.
Citation771 F.3d 964
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Derrick Montez BALL, Defendant–Appellant.
Decision Date17 November 2014
Docket NumberNo. 14–5048.

771 F.3d 964

UNITED STATES of America, Plaintiff–Appellee
v.
Derrick Montez BALL, Defendant–Appellant.

No. 14–5048.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 3, 2014.
Decided and Filed: Nov. 17, 2014.


771 F.3d 965

ARGUED:Jeffrey C. Rager, Rager Law Firm, PLLC, Lexington, Kentucky, for Appellant. Kate K. Smith, United States Attorney's Office, Lexington, Kentucky, for Appellee. ON BRIEF:Jeffrey C. Rager, Rager Law Firm, PLLC, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Ron L. Walker, Jr., United States Attorney's Office, Lexington, Kentucky, for Appellee.

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

OPINION

SILER, Circuit Judge.

This case concerns whether a Kentucky conviction for fleeing in a motor vehicle from the police qualifies as a violent felony under the Armed Career Criminal Act

771 F.3d 966

(ACCA). In 2013, Derrick Ball pleaded guilty to being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). The district court enhanced his sentence under the ACCA on account of three previous Kentucky state convictions: (1) 1st degree trafficking in a controlled substance in Boyle County; (2) 1st degree fleeing or evading police in Boyle County; and (3) 1st degree fleeing or evading police in Mercer County. Ball's primary argument is that his Mercer County conviction does not qualify as a crime of violence under the ACCA. We AFFIRM.

I.

Ball's Presentence Report identified three prior state convictions that rendered him eligible for a 15–year minimum sentence as an “armed career criminal.” His sentencing range under the Guidelines was 188–235 months; the court sentenced him to 211 months.

Concerning his three Kentucky predicate convictions, Ball does not contest that his cocaine trafficking conviction qualifies as a “serious drug offense” under the ACCA. He waived his challenge to the designation of his Boyle County fleeing and evading conviction as a violent felony, but he claims his 2008 conviction for fleeing and evading in Mercer County does not qualify as a violent felony.

The background for Ball's 2008 conviction was that he was arrested in Mercer County at the end of an automobile police chase. He was charged with, among other crimes, fleeing or evading. At the time, Ball was subject to an arrest warrant from Boyle County for cocaine trafficking and another incident of fleeing and evading. As part of his plea deal to these three charges, the other charges were dismissed. His three convictions were consolidated into a single sentence.

At his federal plea hearing, Ball made no specific admissions, and the court made no specific findings of fact regarding the circumstances underlying Ball's Mercer County fleeing and evading conviction. The crime, “Fleeing or evading police in the first degree,” is defined in Ky.Rev.Stat. § 520.095 as follows (emphases added):

(1) A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
1. The person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720 ;
2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010 ;
3. The person is driving while his or her driver's license is suspended for violating KRS 189A.010 ; or
4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property; or
(b) When, as a pedestrian, and with intent to elude or flee, the person knowingly or wantonly disobeys an order to stop, given by a person recognized to be a peace officer, and at least one (1) of the following conditions exists:
1. The person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720 ; or
2. By fleeing or eluding, the person is the cause of, or creates a substantial risk of, serious physical injury or death to any person or property.

The indictment for the Mercer County offense reads as follows (emphasis added):

771 F.3d 967
That on or about the 24th day of October, 2008 in Mercer County, Kentucky the above named defendant, Derrick Ball, committed the offense of Fleeing or Evading in the First Degree when he knowingly disobeyed a police officer's order to stop his vehicle in an attempt to elude the police and by fleeing or eluding, the defendant creates a substantial risk of serious physical injury to another person.

Ball argues we should look to the facts of his “fleeing or evading” arrest (or lack thereof in the record) and find that it was not a violent felony. The government argues we should look to the indictment, which specifies that Ball pleaded to “fleeing or evading” under Ky.Rev.Stat. § 520.095(1)(a)(4), which necessarily involved a “substantial risk” of “serious physical injury” to others. Under the ACCA's “residual clause,” 18 U.S.C. § 924(e)(2)(B)(ii), the government argues, this conviction qualifies as a felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Ball's conviction qualifies as a violent felony for two reasons. First, we have previously indicated that the act of fleeing police in a motor vehicle is so inherently risky that felony convictions for this behavior will always qualify as “violent” under the ACCA's residual clause. See, e.g., v. United States v. Martin, 378 F.3d 578, 582–83 (6th Cir.2004). Second, even if this were not the case, one element of Ball's conviction was that his vehicle flight created “a substantial risk of serious physical injury to another person.” This element tracks the language of the residual clause and renders his conviction a violent felony.

II.

The relevant issues are all legal questions subject to de novo review. These include the interpretation and application of the ACCA and the narrower question of whether a prior conviction qualifies as a violent felony. United States v. Stafford, 721 F.3d 380, 395–96 (6th Cir.2013). While we are bound by a state court's interpretation of its own criminal statutes, whether a state crime is a violent felony under the ACCA is a question of federal law. United States v. Rede–Mendez, 680 F.3d 552, 555–56 (6th Cir.2012) ; see also Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). We also review challenges to the constitutionality of a statute de novo. United States v. Bowers, 594 F.3d 522, 527 (6th Cir.2010).

III.

Ball claims his sentence enhancement was unwarranted because his 2008 conviction for fleeing in a motor vehicle from the police was not a violent felony. Under the ACCA, specifically 18 U.S.C. § 924(e)(1), when a person is convicted of being a felon in possession of a firearm and also has three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” the defendant “shall be fined under this title and imprisoned not less than fifteen years....” The ACCA then defines “violent felony” in § 924(e)(2)(B) :

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Ball does not contest that his Mercer County conviction was “punishable by imprisonment for a term exceeding one year.”

We have adopted an analytical process for determining whether a predicate conviction qualifies as a violent felony under

771 F.3d 968

the ACCA. We take a “categorical approach,” which means we only consider the statutory elements of the predicate crime. The specific facts underlying the conviction are irrelevant. United States v. Davis, 751 F.3d 769, 774–75 (6th Cir.2014).

However, some statutory crimes are “divisible,” meaning they encompass different crimes embedded in one statute. If a divisible statute contains multiple crimes, and if at least one of the crimes is categorically a violent felony and at least one of the crimes is not, then we employ a “modified categorical approach.” See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281–85, 186 L.Ed.2d 438 (2013). Under this approach, we...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT