United States v. Kearney, 10–1532.

• Citation: 675 F.3d 571
• Decision Date: 05 April 2012
• Docket Number: No. 10–1532.,10–1532.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James M. KEARNEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

675 F.3d 571

UNITED STATES of America, Plaintiff–Appellee,

v.James M. KEARNEY, Defendant–Appellant.

No. 10–1532.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 18, 2011.Decided and Filed: April 5, 2012.

ARGUED: Joseph A. Niskar, Southfield, Michigan, for Appellant. Graham L. Teall, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Joseph A. Niskar, Southfield, Michigan, for Appellant. Graham L. Teall, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MERRITT, CLAY, and SUTTON, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which SUTTON, J., joined. MERRITT, J. (pp. 578–79), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Defendant James M. Kearney pleaded guilty to one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Kearney challenges the district court's decision to enhance his sentence pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). For the reasons set forth below, we AFFIRM.

BACKGROUND

A federal grand jury indicted Kearney on one count of possession with intent to distribute crack cocaine and one count of being a felon in possession of a firearm. On October 27, 2009, Kearney pleaded guilty to the firearm offense, pursuant to a written plea agreement. The plea agreement provided for a sentencing range of 70 to 87 months imprisonment under the Sentencing Guidelines (the “Guidelines” or USSG). However, the parties also expressly acknowledged that this range could be altered if the sentencing judge applied an enhancement pursuant to ACCA.

Shortly thereafter, Kearney obtained new representation, and he moved to set aside his plea agreement. Kearney argued that his prior counsel should have preserved the right to argue that he did not qualify as an armed career criminal. The district court granted Kearney's motion, set aside the written plea agreement, and left Kearney's guilty plea intact. The ruling allowed Kearney to argue against ACCA enhancement and preserved Kearney's right to appeal his sentence.

On March 29, 2010, the district court held another sentencing hearing. At the second hearing, Kearney pleaded guilty to the narcotics offense. He also argued that he was not an armed career criminal because two of his prior convictions for domestic violence did not qualify as “violent felonies” under ACCA. He contended that his domestic violence convictions were misdemeanors under Michigan law, with each carrying a possible maximum sentence of 93 days imprisonment. However, Kearney conceded that the Michigan courts had enhanced both convictions pursuant to a state recidivism provision. As a result, Kearney actually faced a two year maximum sentence on each charge.¹ However, Kearney suggested that these enhancements ought to be disregarded for ACCA's purposes, and he suggested that the sentencing judge consider these convictions as though he was sentenced only on his base offense conduct.

The district court rejected Kearney's argument, applied an ACCA enhancement, and sentenced Kearney to the statutory mandatory minimum of 180 months imprisonment on the firearms offense, to be served concurrent to a one day sentence on the narcotics offense.

Kearney timely appealed. Original jurisdiction exists pursuant to 18 U.S.C. § 3231. Appellate jurisdiction exists under 28 U.S.C. § 1291.

ANALYSIS

A. Statutory Framework

This Court reviews de novo a district court's determination that an offense is a “violent felony” under ACCA. United States v. Benton, 639 F.3d 723, 729 (6th Cir.2011) (internal citations omitted).

Title 18, Section 922(g)(1) of the United States Code makes it a crime for a convicted felon to possess a firearm. Although the maximum sentence for a felon-in-possession charge is ten years imprisonment, ACCA enhances the applicable sentence to a fifteen year mandatory minimum in the case of a defendant who has three or more prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e).

ACCA further defines a “violent felony” as:

[A]ny 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[.]

18 U.S.C. § 924(e)(2)(B). Thus, there are three types of crimes that qualify as violent felonies under ACCA: those having an element of physical force under subsection (i); the enumerated offenses under subsection (ii); and conduct that otherwise presents a “serious potential risk of physical injury to another” under the “residual clause” of subsection (ii). See United States v. Mansur, 375 Fed.Appx. 458, 463 (6th Cir.2010) (citing United States v. Young, 580 F.3d 373, 377 (6th Cir.2009)).

In order for an offense to be counted under § 924(e)(2)(B)(ii)'s residual clause, the crime must be “roughly similar, in kind as well as in degree of risk posed,” to the felonies enumerated under the statute. Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Most ACCA qualifying offenses thus involve “purposeful, violent, and aggressive conduct.” See id. at 144–45, 128 S.Ct. 1581. However, the Supreme Court recently clarified that an offense may also qualify as a “violent felony” by reference to the risk of harm and the mens rea involved. Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2275, 180 L.Ed.2d 60 (2011); see also Chambers v. United States, 555 U.S. 122, 127–28, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

In determining whether a prior conviction meets these standards, we use a two step analysis. First, we apply a “categorical approach,” looking to the statutory definition of the prior offense and not to the particular facts underlying the defendant's conviction. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If it is possible to violate the statute in a way that would constitute a “violent felony” and in a way that would not, we apply a “modified categorical approach,” in which we consider whether the indictment, guilty plea, or similar documents necessarily establish the nature of the prior conviction. United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010) (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

Michigan's domestic violence statute criminalizes the assault or assault and battery of a person with whom one has a domestic relationship. Mich. Comp. Laws § 750.81(2). An individual who commits domestic violence is guilty of a misdemeanor punishable by imprisonment of not more than 93 days. Id. Section 750.81 is a specific intent crime, proved by showing: (1) the commission of an assault or an assault and battery; (2) one of the statute's enumerated domestic relationships; and (3) the intent to either batter the victim or to place the victim in reasonable apprehension of being battered. See People v. Cameron, 291 Mich.App. 599, 806 N.W.2d 371, 379 (2011); People v. Corbiere, 220 Mich.App. 260, 559 N.W.2d 666, 669 (1996). ²

Domestic violence recidivists receive an enhanced penalty for subsequent § 750.81 violations. An individual with one prior domestic violence conviction faces imprisonment of not more than one year. Mich. Comp. Laws § 750.81(3) (“second offense” provision). An individual with two or more domestic violence convictions faces imprisonment of not more than two years. Mich. Comp. Laws § 750.81(4) (“third or subsequent offense” provision).³

B. Kearney's Prior Offenses

In this case, the district court relied on the uncontested Presentence Report (PSR) to determine Kearney's applicable sentencing range under the Guidelines.⁴ The following Michigan convictions were used as the basis for ACCA enhancement: (1) a 1995 conviction for felonious assault; (2) a 2000 conviction for assault with a dangerous weapon; (3) a 2000 conviction for domestic violence, third or subsequent offense; and (4) another 2000 conviction for domestic violence, third or subsequent offense. In contesting ACCA enhancement, Kearney only challenges the two domestic violence convictions.⁵

The PSR indicates that the domestic violence charges stemmed from two separate incidents. In the first, Kearney punched, kicked, and stomped his victim. In the second, Kearney struck his victim in the head with an unknown object. Kearney does not dispute these allegations. The PSR also indicates the consolidated sentence Kearney received on these charges. Although Kearney originally received two years probation, at some point he violated the terms of his release. The state judge revoked probation and sentenced Kearney to two years imprisonment. Kearney ultimately served the full two year term.

C. Application

Kearney presents a question of first impression for this Court: whether a prior state conviction can qualify as a predicate “violent felony” under ACCA if the offense was enhanced pursuant to a state recidivism provision.

The government contends that, although this issue is a novel one, the Supreme Court's decision in United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008), nevertheless controls. In Rodriquez, the Supreme Court addressed this issue in the context of ACCA's serious drug offense provision. The defendant had several prior drug convictions, which if considered only by their base offense conduct, would not have met ACCA's definition of a “serious drug offense” as one punishable by “a maximum term of imprisonment of ten years or more.” See id. at 380–81, 128 S.Ct. 1783 (citing § 924(e)(2)(A)). However, the defendant's prior convictions had been enhanced by the state court on the basis of...