United States v. Fuller-Ragland

• Decision Date: 07 June 2019
• Docket Number: No. 18-1773,18-1773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anton Maurice FULLER-RAGLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

931 F.3d 456

UNITED STATES of America, Plaintiff-Appellee,

v.Anton Maurice FULLER-RAGLAND, Defendant-Appellant.

No. 18-1773

United States Court of Appeals, Sixth Circuit.

Decided and Filed June 7, 2019^*

ON BRIEF: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Mark V. Courtade, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

BEFORE: BOGGS, BATCHELDER, and BUSH, Circuit Judges.

BOGGS, Circuit Judge.

Anton Fuller-Ragland appeals from a sentence of 120 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Fuller-Ragland argues that the district court erred when it concluded that a violation of the Michigan offense of unarmed robbery, Mich. Comp. L. § 750.530, constituted a "crime of violence" within the meaning of USSG § § 2K2.1(a)(3). Fuller-Ragland also disputes the applicability of a sentencing enhancement for an altered or obliterated serial number on a firearm. Because we hold that a violation of Mich. Comp. L. § 750.530 is a "crime of violence," and because the district court did not commit plain error in applying the sentencing enhancement, we affirm the district court’s sentence.

I. FACTS AND PROCEDURAL HISTORY

On January 11, 2018, police officers in Portage, Michigan received a report of a suspicious vehicle without a license plate in a jewelry-store parking lot. Fuller-Ragland was sitting in the vehicle and admitted to officers that he was on probation, that he had a pistol on his person, and that he did not have a concealed-carry permit. The officers confiscated Fuller-Ragland’s pistol, arrested him, and recovered a second pistol, ammunition, and controlled substances from the vehicle. The pistol Fuller-Ragland had been carrying was a 9mm pistol with the serial number 158536. Fuller-Ragland’s presentence report ("PSR") described the serial number as "partially obliterated."¹ Fuller-Ragland was indicted and pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Applying the Sentencing Guidelines ("Guidelines"), the PSR calculated Fuller-Ragland’s base offense level under USSG § 2K2.1(a)(3) as 22, based in part on Fuller-Ragland’s prior conviction for unarmed robbery in Michigan, which the PSR identified as a crime of violence. The PSR also applied a four-level enhancement under USSG § 2K2.1(b)(4)(B), because the 9mm pistol had an "altered or obliterated serial number." The PSR established an advisory Guidelines range of 121 to 151 months of imprisonment, although the statutory maximum Fuller-Ragland could receive was 120 months. Fuller-Ragland did not object to the calculation of his base offense level or the imposition of the four-level enhancement for an altered or obliterated serial number. He did, however, object to the PSR’s recommendation that the district court should not grant him a reduction for acceptance of responsibility.

At sentencing, the district court sustained Fuller-Ragland’s objection and gave him a full acceptance-of-responsibility credit, reducing his Guidelines range to 87 to 108 months of imprisonment. The district court considered the 18 U.S.C. § 3553(a) factors and decided that an upward variance to the statutory maximum—120 months—was appropriate because the circumstances of Fuller-Ragland’s arrest and his prior record indicated that Fuller-Ragland was a "significant risk to the public and a significant risk to re-offend." The district court focused on the protection of the public, deterrence, and Fuller-Ragland’s criminal history in its decision to vary upward and impose the statutory maximum. Fuller-Ragland did not object. This appeal followed.

II. ANALYSIS

Fuller-Ragland alleges two errors in his sentence. First, he disputes that the Michigan offense of unarmed robbery, Mich. Comp. L. § 750.530, is a "crime of violence" under USSG § 2K2.1(a)(3), and asserts that his Guidelines range was incorrectly calculated. Second, Fuller-Ragland argues that because the serial number on the 9mm pistol was only "scratched through but still [was] clearly legible," the four-level enhancement under USSG § 2K2.1(b)(4)(B) is not applicable. He asks that this court vacate his sentence and remand for resentencing.

A. Standard of Review

A district court’s failure to properly calculate the advisory Guidelines range is a "significant procedural error." Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Fuller-Ragland did not object to the PSR nor did he raise these issues in the district court. Therefore, we review his challenge to the procedural reasonableness² of his sentence for plain error. See United States v. Vonner , 516 F.3d 382, 385 (6th Cir. 2008) (en banc); United States v. Bostic , 371 F.3d 865, 872–73 (6th Cir. 2004). Fuller-Ragland must show an error that was "obvious or clear," that affected his substantial rights and that this adverse impact seriously "affected the fairness, integrity, or public reputation of the judicial proceedings." Vonner , 516 F.3d at 386 (quoting United States v. Gardiner , 463 F.3d 445, 459 (6th Cir. 2006) ). Plain error warrants reversal "only in exceptional circumstances and only where the error is so plain that the trial judge ... [was] derelict in countenancing it." United States v. Carroll , 26 F.3d 1380, 1383 (6th Cir. 1994).

This court has not previously addressed whether a violation of the current version of Mich. Comp. L. § 750.530 constitutes a "crime of violence" within the meaning of the Guidelines. See USSG §§ 2K2.1(a)(3) ; 4B1.2(a). We have held that a violation of an earlier version of this statute³ is a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA"). See Chaney v. United States , 917 F.3d 895, 897 (6th Cir. 2019) ; United States v. Matthews , 689 F. App'x 840, 846 (6th Cir. 2017). Two of our sister circuits agree. See United States v. Lamb , 638 F. App'x 575, 577 (8th Cir. 2016), vacated on other grounds , ––– U.S. ––––, 137 S. Ct. 494, 196 L.Ed.2d 397 (2016) ; United States v. Tirrell , 120 F.3d 670, 680 (7th Cir. 1997). We routinely use authority that interprets the elements clause in the ACCA, 18 U.S.C. § 924(e)(2)(B)(i), to interpret the same phrase that appears in the Guidelines: "has as an element the use, attempted use, or threatened use of physical force against the person of another." See United States v. Maynard , 894 F.3d 773, 774 (6th Cir. 2018).

Before the 2004 amendment, Mich. Comp. L. § 750.530 provided that:

Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence; any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in state prison not more than 15 years.

Mich. Comp. L. § 750.530 ( P.A. 1931, No. 328 § 530) (amended by P.A. 2004, No. 128 ). After the amendment, the statute now reads:

(1) A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of a felony punishable by imprisonment for not more than 15 years.

(2) As used in this section, "in the course of committing a larceny" includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.

Mich. Comp. L. § 570.530. Fuller-Ragland was convicted under the amended statute. It does not appear that this circuit, or any of our sister circuits, have examined the amended statute.⁴ Our analysis of whether Michigan’s unarmed-robbery statute constitutes a "crime of violence" within the meaning of the Guidelines is confined to the statute under which Fuller-Ragland was sentenced. Chaney , 917 F.3d at 900 n.2.

The term "crime of violence" in USSG § 2K2.1(a)(3) has "the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2." USSG § 2K2.1, comment. (n.1). USSG § 4B1.2(a) provides that:

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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

Fuller-Ragland argues that Michigan’s unarmed-robbery statute is not a "crime of violence" within the meaning of USSG § 4B1.2(a)(1) because it does not have the use, attempted use, or threatened use of physical force against the person of another as an element. He also contends that, as amended, the Michigan offense is "broader" than generic robbery and therefore does not fall within the enumerated-offense clause.

The United States, relying in large part on analyses of the statute before it was amended, argues that Michigan unarmed robbery is a crime of violence under both the "elements" and "enumerated" clauses. The United States maintains that Michigan courts construe the statute consistently with the degree of force required for "physical force" under Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The United States also contends that, even if we agree with Fuller-Ragland that Michigan unarmed robbery is not a crime of violence, the district court did not commit plain error.

We begin with the "elements" clause of USSG § 4B1.2(a)(1). In this inquiry, we consider whether Michigan unarmed robbery has as an element "the use, attempted use, or threatened use of physical force...