United States v. Taylor

• Decision Date: 22 October 2012
• Docket Number: Nos. 11–2438,11–2439.,s. 11–2438
• Citation: 696 F.3d 628
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James TAYLOR (11–2438) and Derrick Graves (11–2439), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

696 F.3d 628

UNITED STATES of America, Plaintiff–Appellee,

v.James TAYLOR (11–2438) and Derrick Graves (11–2439), Defendants–Appellants.

Nos. 11–2438, 11–2439.

United States Court of Appeals,Sixth Circuit.

Oct. 22, 2012.

ON BRIEF:Richard D. Stroba, Office of the Federal Public Defender, Grand Rapids, Michigan for Appellant in 11–2438. Michael R. Bartish, Springstead & Bartish Law, PLLC, Grand Rapids, Michigan, for Appellant in 11–2439. B. René Shekmer, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: SUTTON, GRIFFIN, and WHITE, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Defendants James Taylor and Derrick Graves pleaded guilty to charges of conspiracy to defraud the United States, food-stamp fraud, drug distribution, and unlawful possession of a firearm. Both appeal their sentences. We affirm.

I.

James Taylor owned and operated a small convenience store in Lansing, Michigan, where he, his wife, and several others worked. In August 2008, the store received authorization to redeem benefits through the Supplemental Nutrition Assistance Program (“SNAP”), a federally funded, national program that uses federal funds to provide nutritional assistance to needy individuals. From February 2010 through January 2011, the United States Department of Agriculture (“USDA”) conducted an undercover operation at Taylor's store. During that time, Taylor allowed undercover police officers and confidential informants working under the direction of USDA special agents to redeem SNAP benefits in exchange for cash that Taylor knew would be used to purchase illegal drugs. Taylor once exchanged a firearm for SNAP benefits.

Based on this conduct, the government charged Taylor with conspiracy to defraud the United States, SNAP fraud, drug distribution, and being a felon in possession of a firearm. He pleaded guilty to the charges. Based on the firearm conviction and Taylor's criminal history, the probation officer recommended that Taylor was subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), seeU.S.S.G. § 4B1.4(a), resulting in a Guidelines range of 188 to 235 months' imprisonment. Taylor objected and argued that he was not subject to an ACCA sentence. The district court disagreed and sentenced Taylor to 188 months.

Co-defendant Derrick Graves was a friend of Taylor's and worked as an employee in his convenience store. He assisted Taylor in redeeming SNAP benefits for cash and illegal drugs. Specifically, he would stand outside the store and either sell drugs to people who had just redeemed benefits for cash or tell them where they could find drugs. During the course of the investigation, a confidential informant asked Graves to provide him with a firearm. Graves eventually obtained a firearm from Taylor's wife, sold it to the informant for $1,000, and split the proceeds with Taylor's wife. The government charged Graves with conspiracy to defraud the United States, SNAP fraud, drug distribution, and being a felon in possession of a firearm. He pleaded guilty to all charges except for one the government later dismissed. Based upon the firearm conviction and his criminal history, Graves, too, was subject to an enhanced sentence under the ACCA, resulting in a Guidelines range of 188 to 235 months' imprisonment. He asked the district court to vary downward and sentence him to the statutory minimum of 180 months. The district court sentenced him to 200 months.

Taylor and Graves timely appealed.

II.

Taylor challenges the district court's decision to sentence him as an “armed career criminal.” The United States Sentencing Guidelines provide that a defendant is sentenced as an “armed career criminal” if he is subject to an enhanced sentence under the ACCA. U.S.S.G. § 4B1.4(a). Those, like Taylor, who are convicted under 18 U.S.C. § 922(g) ( e.g., felon possessing a firearm) and have three previous convictions for “violent felon[ies] or ... serious drug offense[s]” are subject to an enhanced sentence under the ACCA. 18 U.S.C. § 924(e)(1). A “violent felony” is “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[.]

Id. § 924(e)(2)(B) (emphasis added). The italicized portion is known as the “residual clause.” See Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011). To determine whether a given offense is a violent felony, we consider only the statutory definition of the offense and ignore the particular facts disclosed in the record of conviction. Id. at 2272.

Taylor concedes that two of his previous convictions—armed robbery and the delivery or manufacture of cocaine—were properly counted under the ACCA. He challengesthe district court's decision to count as his third predicate offense his Michigan conviction for attempted larceny from the person. Michigan defines the offense as “stealing from the person of another [.]” Mich. Comp. Laws § 750.357. Attempt under Michigan law requires that a defendant take “any act towards the commission of [the intended] offense,” id. § 750.92, excluding acts of “mere preparation,” People v. Jones, 443 Mich. 88, 504 N.W.2d 158, 164 (1993). It requires “some direct movement toward commission of the crime that would lead immediately to the completion of the crime.” Id.

In United States v. Payne, 163 F.3d 371 (6th Cir.1998), we held that the completed offense of larceny from the person is a “crime of violence” under the Sentencing Guidelines, id. at 374, which also makes it a “violent felony” under the ACCA, see United States v. Johnson, 675 F.3d 1013, 1016 n. 3 (6th Cir.2012). Even though Payne did not address attempted larceny from the person, Taylor concedes that the decision forecloses his present challenge so long as no intervening decision from the Supreme Court “requires modification of the decision.” Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985); see 6 Cir. R. 32.1(b). Seeking refuge in this exception to our prohibition on panel reconsideration, Taylor argues that Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), ushered in a new residual-clause analysis under which larceny from the person (and attempted larceny) is no longer a “violent felony.” While we agree that Begay has substantially modified residual-clause analysis, cf. Jones v. United States, 689 F.3d 621, 624–25 (6th Cir.2012), we disagree that these changes help Taylor here. For the following reasons, we hold that attempted larceny from the person under Michigan law is a “violent felony” under the ACCA.

In Begay, the Supreme Court considered whether a state conviction for driving under the influence of alcohol, a strict-liability offense, fell within the residual clause. 553 U.S. at 142–48, 128 S.Ct. 1581. Even though the offense plainly “presents a serious potential risk of physical injury to another,” it did not satisfy the residual clause, the Court held, because it was too dissimilar to the enumerated offenses of burglary, arson, extortion, and those involving explosives, all of which tend to involve “purposeful, violent, and aggressive conduct.” Id. at 144–45, 148, 128 S.Ct. 1581.Begay thus added a second layer of inquiry: even where an offense involves conduct that presents a substantial risk of physical injury to another, courts must consider also whether the offense is “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses. Id. at 142–43, 128 S.Ct. 1581. Although Begay itself was less concerned that a candidate offense be similar to the listed offenses in terms of the “degree of risk posed” (as opposed to “the way or manner” in which it produces risk, id. at 144, 128 S.Ct. 1581), the Supreme Court recently emphasized the importance of risk-comparison in the analysis. See Sykes, 131 S.Ct. at 2273, 2276, 2277;see also United States v. Jones, 673 F.3d 497, 506–07 (6th Cir.2012).

Payne sufficiently addressed the first layer of inquiry and determined that larceny from the person involves conduct presenting a serious potential risk of physical injury to another. To reiterate: Michigan courts have interpreted the statute to require that property be taken “from the possession of the victim or be taken from within the immediate presence or area of control of the victim,” which is “clearly the type of situation that could result in violence”; victims of “such an invasion of personal space would likely resist or defend in a manner that could lead to immediate violence”; the absence of a requirement that violence or harm actually result from the theft is irrelevant because the residual clause requires only “a serious potential risk of physical injury,” and we can fathom “no situation in which larceny from the person could occur without presenting” such a risk. Payne, 163 F.3d at 375. We conclude, and Taylor implicitly agrees, that this analysis applies equally to the inchoate version of the offense, given that an attempt in Michigan requires the defendant to take some “direct movement” toward commission of the offense that “would lead immediately to ... completion,” Jones, 504 N.W.2d at 164.

Turning to Begay's added layer of inquiry, we ask whether attempted larceny from the person is “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses. As for similarity in respect to the degree of risk posed, the offense compares favorably with generic burglary. The Supreme Court in Sykes explained that burglary is risky for the reason that it can end in confrontation leading to violence. 131 S.Ct. at 2273;see also Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“The fact that an...