United States v. John Mekediak , 510 F. App'x 348 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0007n.06
No. 11-2572
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jan 03, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
JOHN ANDREW MEKEDIAK, ) THE WESTERN DISTRICT OF
) MICHIGAN
Defendant-Appellant. )
Before: KEITH, CLAY, and ROGERS, Circuit Judges.
DAMON J. KEITH, Circuit Judge. John Mekediak appeals his sentence following a guilty
plea to being a felon in possession of a firearm. He argues that the district court erred by: 1)
sentencing him as an armed career criminal, 2) setting his base offense level at 24, and 3) applying
a four-level enhancement to his sentence for using a firearm in connection with another felony. For
the reasons detailed below, we REVERSE and VACATE the sentence in part and AFFIRM in part.
BACKGROUND
On February 24, 2011, a federal grand jury in Grand Rapids, Michigan indicted John Andrew
Mekediak on three counts of being a felon in possession of a firearm. Mekediak allegedly stole and
transported ninety-six firearms across state lines and then sold them on the black market.
Mekediak agreed to a proffer interview with the United States Attorney’s Office for the
Western District of Michigan on the condition that if he was cooperative, then “nothing either said
No. 11-2572
United States v. John Mekediak
Page 2
or revealed by him” would be used against him.1 Appellant Br. at 18, R. 49 at 4. During the
interview, Mekediak informed the Government of an instance in which he traded two stolen firearms
for approximately 3.5 grams of cocaine base, referred to by the parties and the district court as “the
Minnesota transaction.” He also named the individuals who participated in the Minnesota
transaction, one of them being an Edwin Wolf. Wolf was one of Mekediak’s accomplices and was
being investigated himself . Wolf had already completed two proffer interviews with the
Government by the time Mekediak was interviewed, but it was Mekediak who first disclosed the
Minnesota transaction to the Government.
On August 19, 2011, Mekediak pleaded guilty to one count of being a felon in possession
of a firearm pursuant to a plea agreement. Prior to the sentencing hearing, a Presentence
Investigation Report (“PSIR”) was prepared and submitted to the district court, recommending a
sentencing range of 262–327 months.
The PSIR categorized Mekediak as an armed career criminal (“ACC”) based upon the
following prior convictions: a 2003 adult conviction in which Mekediak pleaded guilty to a drug
offense, specifically possession of a chemical or laboratory equipment that he knew or had reason
to know would be used to manufacture a controlled substance; a 1999 adult conviction in which
Mekediak pleaded guilty to unarmed robbery; and two 1995 juvenile delinquencies: one for
possession of a short-barreled rifle and one for felonious assault. The PSIR also set Mekediak’s base
offense level at 24, naming the aforementioned 1999 adult conviction for unarmed robbery and 2003
1
A proffer interview is an interview in which a defendant agrees to disclose information pertinent to the
investigation of other suspects.
No. 11-2572
United States v. John Mekediak
Page 3
adult drug offense as qualifying predicate felonies. Finally, the PSIR recommended a four-level
sentence enhancement for using or possessing a firearm in connection with another felony offense.
The PSIR cited “the Minnesota transaction” as a basis for applying the enhancement. The PSIR
noted that the information regarding the Minnesota transaction was offered by Edwin Wolf.
Mekediak’s total adjusted offense level was 37.
Mekediak objected to the PSIR. Three of those objections have been preserved for this
appeal: 1) his status as an armed career criminal, 2) his base offense level of 24, and 3) the
application of the four-level possession enhancement to his sentence. At sentencing, Mark Semear,
the special agent who interviewed both Mekediak and Wolf, testified that the interviews took place
months apart. He attested that when Wolf divulged the Minnesota transaction, he was asked open-
ended questions and that no one indicated that they had already heard about the Minnesota
transaction from Mekediak. He further testified that he did not have his notes from Mekediak’s
interview with him at Wolf’s interview, so he would not have been able to refer to the details from
Mekediak’s interview. The district court overruled Mekediak’s objections and imposed a sentence
below his guideline range, reasoning that his criminal history category of VI was inappropriately
high. Mekediak was sentenced to 240 months in prison. We address each of Mekediak’s objections
below.
ANALYSIS
I. Armed Career Criminal Status
Mekediak challenges his status as an ACC. The district court considered the following in
order to sentence Mekediak under the Armed Career Criminal Act (“ACCA”): a 2003 conviction for
No. 11-2572
United States v. John Mekediak
Page 4
possession of drug manufacturing materials, a 1999 conviction for unarmed robbery, and two
juvenile delinquencies from 1995—one for possession of a firearm and one for felonious assault.
Mekediak argues that the district court improperly combined his individual juvenile delinquencies
in order to make them into one “violent felony” as defined by the ACCA. Mekediak was not an
ACC because his juvenile delinquencies were not predicate felonies for ACCA purposes.
A. The Armed Career Criminal Act
Federal law prohibits a previously convicted felon from possessing a firearm, imposing a
maximum sentence of ten years’ imprisonment. 18 U.S.C. § 922(g)(1). The ACCA imposes a
fifteen-year mandatory minimum sentence on any offender categorized as an ACC. 18 U.S.C. §
924(e)(1). Any combination of three previous convictions constituting either a “violent felony” or
a “serious drug offense” will lead to a classification as an ACC. Id.; United States v. Goodman, 519
F.3d 310, 316 (6th Cir. 2008). The Government bears the burden of proving that a conviction
qualifies as a predicate felony. Goodman, 519 F.3d at 316. We review de novo a district court’s
determination that a defendant is eligible to be sentenced as an ACC under the ACCA. Id.
1. Violent Felony
The district court combined Mekediak’s 1995 juvenile delinquencies into one act of juvenile
delinquency that met the ACCA’s definition of “violent felony.” A crime can meet the definition
of “violent felony” in one of three ways: 1) the crime has the requisite element of actual, attempted,
or threatened use of physical force against the person of another; 2) the crime is one of the statute’s
specifically identified offenses–burglary, arson, extortion, or a crime involving the use of explosives;
or 3) the crime “otherwise involves” conduct that creates a high risk of physical harm to others. 18
No. 11-2572
United States v. John Mekediak
Page 5
U.S.C. § 924(e)(2)(B). This last category is often referred to as “the residual clause.” See United
States v. Jones, 673 F.3d 497, 504–05 (6th Cir. 2012). Offenses that typically qualify under the
residual clause are “roughly similar, in kind as well as in degree of risk posed” to the enumerated
felonies. Begay v. United States, 553 U.S. 137, 143 (2008). The statute’s specifically identified
offenses involve “purposeful, violent, and aggressive conduct.” Id. at 144–45. Thus, crimes with
“a stringent mens rea requirement” typically qualify if, “as a categorical matter, [they present] a
serious potential risk of physical injury to another” in a way “comparable to that posed by its closest
analog among the [ACCA’s] enumerated offenses.” Sykes v. United States, 131 S. Ct. 2267, 2273,
2275 (2011) (quoting James v. United States, 550 U.S. 192, 203 (2009)). A crime committed by a
juvenile (an act of juvenile delinquency) can also constitute a violent felony, but only if, in addition
to meeting the qualifications for an adult predicate offense, it also “involv[es] the use or carrying of
a firearm, knife, or destructive device.” 18 U.S.C. § 924(e)(2)(B).
B. The Categorical and Modified Categorical Approaches
To determine whether a prior conviction constitutes a qualifying crime—in this case, a
“violent felony,” we use a two-step analysis. First, we employ a “categorical approach.” Taylor v.
United States, 495 U.S. 575, 600, 602 (1990); United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.
2010). To do this, we look only to the “statutory definition of the prior offense and not to the
particular facts underlying the defendant’s conviction.” United States v. Kearney, 675 F.3d 571, 574
(6th Cir. 2012). In other words, “we consider the offense generically . . . in terms of how the law
defines the offense and not in terms of how an individual offender might have committed it on a
particular occasion.” Begay, 553 U.S. at 141. If the offense requires proof of facts that meet the
No. 11-2572
United States v. John Mekediak
Page 6
ACCA’s definition of a qualifying offense, then the conviction automatically counts as a predicate
felony. See Taylor, 495 U.S. at 600.
However, if it is possible to violate a statute in a way that would constitute a qualifying crime
and in a way that would not, a second inquiry is necessary. See Shepard v. United States, 544 U.S.
13, 17 (2005). In such a case, we use a “modified categorical approach” to determine whether there
was a finding that the ultimate crime of conviction “‘necessarily’ involved (and a prior plea
necessarily admitted) facts equating” to a qualifying crime. Id. at 24. Such a finding must be
contained within the “Shepard documents.” Id. at 26; United States v. Armstead, 467 F.3d 943, 948
(6th Cir. 2006). Shepard documents only include “the terms of the charging document, . . . [the] plea
agreement, . . . or . . . some comparable judicial record.” Shepard, 544 U.S. at 26.
C. Analysis
In 1995, Mekediak was adjudicated as a juvenile on two counts—possession of a short-
barreled rifle and felonious assault. R. 42-1. Mekediak argues that the district court improperly
applied the modified categorical approach when it combined his individual juvenile offenses together
in order to make them into one “violent felony” for the purposes of the ACCA. We agree.2
a. Possession of a Short-Barreled Rifle
One of Mekediak’s juvenile delinquencies was for “possession of a short-barreled rifle” in
violation of Michigan Compiled Laws § 750.224b. Categorically, possession is not considered a
“violent felony” under the ACCA. See United States v. Amos, 501 F.3d 524, 530 (6th Cir. 2007)
2
A defendant must have three qualifying convictions in order to be sentenced as an ACC. 18 U.S.C. §
924(e)(1). Mekediak argues that none of the prior offenses qualified for consideration under the ACCA. Because his
juvenile delinquencies cannot qualify as a predicate offense, we decline to address Mekediak’s other arguments.
No. 11-2572
United States v. John Mekediak
Page 7
(“[T]he plain language of the [ACCA] evinces an intent to include only offenses with more assertive,
violent conduct than mere possession.”). Therefore, Mekediak’s delinquency for possession of a
short-barreled rifle is not a qualifying act of juvenile delinquency.
b. Felonious Assault
Mekediak’s other delinquency was for “felonious assault” in violation of Michigan Compiled
Laws § 750.82. This law is ambiguous under a categorical approach because the statutory definition
includes assault with a variety of items—not only guns and knives, but also iron bars, clubs, and
brass knuckles—articles that we have commented are not included in the ACCA’s definition of a
firearm, knife, or “destructive device.”3 Mich. Comp. Laws § 750.82; see United States v. Eubanks,
617 F.3d 364, 369 (6th Cir. 2010). Therefore, the felonious assault count requires a modified
categorical analysis to determine whether the terms of the Shepard documents narrow it to a point
that it “‘necessarily involved’ (and a prior plea necessarily admitted) facts equating” to a felonious
assault that involved the use or carrying of a firearm, knife, or destructive device. Shepard, 544 U.S.
at 24.
Here, the Shepard documents consist of the petition and the order of disposition. The
petition, dated January 30, 1995, recites the count as follows “[O]n or about January 22, 1995, in the
County of Calhoun, said juvenile did make an assault upon Louise W. Mekediak with intent to
3
18 U.S.C. § 921(a)(4) defines “destructive device” as “any explosive, incendiary, or poison gas,” “any type
of weapon . . . which will, or which may be readily converted to, expel a projectile by the action of an explosive or other
propellant,” and “any combination of parts either designed or intended for use in converting any device into any
destructive device.” Id. The statute also states that “‘destructive device’ shall not include any device which is neither
designed nor redesigned for use as a weapon.” Id. Since this definition appears in the same chapter of the United States
Code that defines a violent felony under the ACCA, it follows that § 921(a)(4) defines “destructive device” for the
ACCA. Because iron bars and clubs do not meet § 921(a)(4)’s definition, such items are not “destructive devices” for
the purposes of the ACCA.
No. 11-2572
United States v. John Mekediak
Page 8
commit the crime of murder; Contrary to MCL 750.83.” R. 42-1. The order of disposition states
that “the court found that the following material allegations of the petition dated January 30, 1995
were sustained” and lists the allegation as “Count 1, Felonious Assault M.C.L. § 750.82.” Id.
Neither document narrows the felonious assault to the point that Mekediak’s admitted
criminal activity “necessarily or allegedly involved use of a ‘firearm, knife, or destructive device[.]’”
United States v. Wells, 473 F.3d 640, 649 (6th Cir. 2007) (quoting 18 U.S.C. § 924(e)(2)(B)). In
Wells, we held that a juvenile delinquency did not satisfy the modified categorical approach where
the petition noted the use of a firearm but the pleaded offense did not. Wells, 473 F.3d at 649. Here,
the petition does not even mention a firearm. Although the admitted crime could have involved a
firearm, “we have no way of knowing whether a firearm was indeed involved in the crime.” Id.
The district court applied the modified categorical approach to the firearm possession count
and the felonious assault count collectively so that, together, the separate offenses blended to satisfy
the ACCA’s requirements. The district court reasoned that because “the two [counts] came in
together as guilty findings on . . . [the] same date, same location,” they could be combined. R. 49
at 56. In support of this position, the Government advances a case from the Third Circuit which
concluded that “a sentencing court may consider all the statutory elements underlying the juvenile
adjudication collectively.” United States v. Jones, 332 F.3d 688, 694 (3d Cir. 2003). This ignores
the fact that Mekediak’s firearm possession count should not be analyzed under the modified
categorical approach at all. According to its statutory definition, it categorically is not a violent
felony, as demonstrated above.
No. 11-2572
United States v. John Mekediak
Page 9
Supreme Court precedent decided after Jones warns us to reserve the modified categorical
approach only when the categorical approach fails. See Taylor, 495 U.S. at 602 (limiting modified
categorical approach to a “narrow range of cases”); Shepard, 544 U.S. at 17 (explaining the modified
categorical approach as “an exception to [the] categorical approach”) (internal citation and quotation
marks omitted). Precedent from this circuit compels us to do the same. See United States v.
Armstead, 467 F.3d 943, 948 (6th Cir. 2006); Jones, 673 F.3d at 504 n.2. What is more, we have
already rejected the argument that juvenile adjudications merit being treated any differently. See
Wells, 473 F.3d at 649 (“[W]e opt to [apply the categorical approach] to consideration of prior
juvenile adjudications in the context of sentencing pursuant to the Armed Career Criminal Act.”).
Juvenile offenses may not be combined to meet the ACCA’s definition of a predicate felony
and Mekediak’s juvenile delinquencies were not a “violent felony.” After striking these offenses
Mekediak does not have the three qualifying felonies required to be sentenced under the ACCA. See
18 U.S.C. § 924(e)(1). Accordingly, Mekediak’s sentence with regard to his status as an ACC is
vacated.4
II. Base Offense Level of 24
Of the two convictions used to set his base offense level at 24, Mekediak only disputes the
use of his 1999 conviction for unarmed robbery as a “crime of violence” under the United States
Sentencing Guidelines (“USSG”). However, under the categorical approach, unarmed robbery fits
comfortably within the residual clause of “crime of violence.”
4
Due to the nature of M ekediak’s specific offense, his ACC status did not affect his adjusted offense level of
37. However, it did affect his criminal history category by changing it from a category IV to a category VI.
No. 11-2572
United States v. John Mekediak
Page 10
A. The United States Sentencing Guidelines
We review legal conclusions regarding the application of the USSG de novo. United States
v. Jackson, 635 F.3d 205, 207 (6th Cir. 2011). Pursuant to Section 2K2.1(a)(2) of the USSG, a
defendant’s initial base offense level is set at 24 if the defendant has at least two prior felony
convictions that constitute either a “crime of violence” or a “controlled substance offense.” U.S.
Sentencing Guidelines Manual § 2K2.1(a)(2). “Crime of violence” under the USSG is defined in
the exact same terms as “violent felony” under the ACCA. See U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(2) cmt. n.1 & 4B1.2(a); 18 U.S.C. § 924(e)(2)(B). In addressing USSG claims, we use
the same two-step process used to analyze ACCA claims. United States v. Montanez, 442 F.3d 485,
489 (6th Cir. 2006) (citing United States v. Galloway, 439 F.3d 320, 323 (6th Cir. 2006).
B. Analysis
The PSIR cited Mekediak’s 1999 adult conviction for unarmed robbery and his 2003 adult
conviction for possession of drug manufacturing materials in order to set his base offense level at
24. However, as conceded at oral argument, Mekediak only challenges the use of the 1999
conviction. In 1999, unarmed robbery in violation of Michigan Compiled Laws § 750.530 was a
felony accomplished without a dangerous weapon and in one of three ways: “by force and violence,
or by assault or putting in fear.” Mich. Comp. Laws § 750.530 (1999) (amended 2004).
Michigan’s unarmed robbery offense is a specific intent crime. See Michigan v. Haverson,
804 N.W.2d 757, 761 (Mich. Ct. App. 2010). Thus, we may analyze whether the risk of harm posed
by unarmed robbery is categorically comparable to that posed by the ACCA’s enumerated offenses.
See Sykes, 131 S. Ct. at 2275. The Supreme Court has explained that the enumerated offense of
No. 11-2572
United States v. John Mekediak
Page 11
burglary “is dangerous because it can end in confrontation leading to violence.” Id. at 2273 (citing
James v. United States, 550 U.S. 192, 200 (2007)). Likewise, the Court of Appeals for the Seventh
Circuit held that unarmed robbery in violation of Michigan Compiled Laws § 750.530 “in some
ways presents a greater risk of violent confrontation” than burglary because it “always occurs in the
victim’s presence,” and the offender may be “prepared to use violence if necessary to carry out his
plans.” United States v. Tirrell, 120 F.3d 670, 681 (7th Cir. 1997) (internal citation and quotation
marks omitted). This analysis is consistent with precedent from this Court holding that larceny from
the person, a lesser included crime of robbery, is a crime of violence for the purposes of the USSG.
See United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998) (“[A]lthough larceny from the person
typically involves no threat of violence, the risk of ensuing struggle is omnipresent.”) (internal
quotation marks omitted). For these reasons, unarmed robbery categorically creates a sufficiently
comparable risk of injury to another as the risk posed by burglary. Consequently, it is a crime of
violence for the purposes of the ACCA.
III. Four-Level Enhancement
Mekediak argues that the district court improperly applied a four-level enhancement to his
sentence for using or possessing a firearm in connection with another felony offense. Specifically,
Mekediak objects to the use of the “Minnesota transaction”—the incident in which he traded stolen
firearms for cocaine base—as a basis for applying the enhancement. He claims that the use of the
Minnesota transaction violated his proffer agreement. Not so. The district court had sufficient
independent evidence to use the Minnesota transaction as a basis to support the enhancement.
No. 11-2572
United States v. John Mekediak
Page 12
A. Sentence Enhancements Under the USSG
Once a defendant’s base offense level is calculated, that level may be enhanced if certain
aggravating factors are present. A four-level increase applies if the defendant “used or possessed
any firearm or ammunition in connection with another felony offense.” U.S. Sentencing Guidelines
Manual § 2K2.1(b)(6)(B) (2011). The Government must establish a nexus between the firearm and
the independent felony by a preponderance of the evidence. United States v. Angel, 576 F.3d 318,
321 (6th Cir. 2009). There are restrictions, however, on how the government may argue for an
enhancement. Information gained from cooperation agreements “shall not be used in determining
the applicable guideline range, except to the extent provided in the agreement.” U.S. Sentencing
Guidelines Manual § 1B1.8(a) (2011). This USSG provision “unquestionably forbids the
government to influence the sentencing range by disclosing revelations made by a defendant in the
course of cooperation as required by a plea agreement.” United States v. Miller, 910 F.2d 1321,
1325 (6th Cir. 1990). We review legal conclusions regarding the application of the USSG de novo,
while factual findings are reviewed for clear error. Jackson, 635 F.3d at 207.
B. Analysis
Mekediak does not dispute that the Minnesota transaction—the incident in which he traded
stolen firearms for cocaine base—qualifies him for a four-level enhancement. Instead, he argues that
the PSIR’s details regarding the Minnesota transaction were obtained in violation of his proffer
agreement because it was he who first disclosed the Minnesota transaction to the Government and
he who identified Wolf as a participant. He contends that the interviewing officers led Wolf to detail
the Minnesota transaction by indicating that they already knew about it, and thereby violated one
No. 11-2572
United States v. John Mekediak
Page 13
proffer agreement clause forbidding the Government to use anything “said or revealed” by
Mekediak.
While the circumstances could be suspicious, in this case the Government met their
evidentiary burden—a preponderance of the evidence—with proof independent of Mekediak’s
interview. Mark Semear, the special agent who interviewed both Mekediak and Wolf, testified at
the sentencing hearing that the interviews took place months apart, that he did not refer to his notes
from Mekediak’s interview during his interview with Wolf, and that when Wolf divulged the
Minnesota transaction, he was asked open-ended questions and no one indicated that they had
already heard about the Minnesota transaction from Mekediak. The district court found that while
Mekediak’s testimony may have been in the officers’ minds, they did not confront Wolf with the
information to elicit more details. Furthermore, the district court ultimately concluded that Semear’s
testimony was sufficient in itself to support the enhancement by a preponderance of the evidence.
Being mindful that we review a district court’s findings of fact for clear error, we are not
firmly convinced that the Government used privileged information against Mekediak. See United
States v. Davis, 912 F.2d 1210, 1213 (10th Cir. 1990) (holding that there was no violation of an
immunity agreement where there was “no indication that the co-defendants’ statements were elicited
as a result of [the defendant’s plea agreement] and [the defendant] provided no evidence that, had
he refused to cooperate, his co-defendants likewise would not have offered the information.”);
accord United States v. Gibson, 48 F.3d 876, 879 (5th Cir. 1995) (per curiam). For these reasons,
we cannot conclude that it was improper to apply the four-level enhancement.
No. 11-2572
United States v. John Mekediak
Page 14
CONCLUSION
For the foregoing reasons, we VACATE the sentence and REMAND for the limited purpose
of considering the application of the ACCA to Mekediak’s sentence. We AFFIRM the remainder
of the district court’s judgment.