United States v. Oscar Harris , 2017 FED App. 0078P ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0078p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 16-2239
v. │
│
│
OSCAR HARRIS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cr-20461-1—Bernard A. Friedman, District Judge.
Decided and Filed: April 4, 2017
Before: COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Andrew N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for
Appellant. Shane N. Cralle, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee.
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OPINION
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SUTTON, Circuit Judge. A jury convicted Oscar Harris of being a felon in possession of
a firearm, and the district court sentenced him to 300 months’ imprisonment under the Armed
Career Criminal Act’s residual clause. After the Supreme Court invalidated the residual clause,
Harris received a new sentence of 115 months—the top of a range set in part by the district
court’s determination that Harris’s two prior convictions for Michigan felonious assault were
crimes of violence under the Guidelines. Harris challenged that determination, and appeals it
No. 16-2239 United States v. Harris Page 2
here, on the ground that Michigan felonious assault does not categorically involve the “use,
attempted use, or threatened use of physical force,” as the elements clause of the Guidelines
requires. U.S.S.G. § 4B1.2(a). But Michigan’s felonious assault statute obliges a jury to find at
least attempted or threatened offensive touching and use of a dangerous weapon. Because those
two elements together add up to violent force, and thus to a crime of violence, we affirm.
The Guidelines raise the base offense level for firearm offenses preceded by two felony
convictions for “crime[s] of violence.” Id. § 2K2.1(a)(2). One of the definitions of crimes of
violence covers “any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that . . . has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. § 4B1.2(a); see id. § 2K2.1 cmt. n.1. This
provision, often called the “elements clause,” mirrors the elements clause in the Armed Career
Criminal Act, and we typically interpret them the same way. See United States v. Rede-Mendez,
680 F.3d 552, 555 n.2 (6th Cir. 2012). Both clauses apply only to offenses that require a finding
of “violent force—that is, force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010).
A few ground rules inform whether an offense qualifies as a crime of violence under the
elements clause. When an offense of conviction does not list multiple elements in the
alternative, it is not “divisible.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). And
when the relevant statute is not divisible, as all agree is the case here, we apply the “categorical
approach” to determine what the state offense entails. Descamps v. United States, 133 S. Ct.
2276, 2284 (2013). That means we look only to the offense’s statutory definition along with
controlling judicial interpretations of it, rather than at the facts underlying the conviction, to
determine whether the offense is a crime of violence. See Taylor v. United States, 495 U.S. 575,
600 (1990).
In Michigan, any “person who assaults another person with a gun, revolver, pistol, knife,
iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or
to inflict great bodily harm less than murder is guilty of” felonious assault, also called assault
with a dangerous weapon. Mich. Comp. Laws § 750.82. That language, reframed as elements,
requires “(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place
No. 16-2239 United States v. Harris Page 3
the victim in reasonable apprehension of an immediate battery.” People v. Jackson, 790 N.W.2d
340, 343 n.2 (Mich. 2010) (emphasis and quotation omitted). The assault must consist of
attempted battery or “an act that would cause a reasonable person to fear or apprehend an
immediate battery,” and that the defendant must have intended to injure or cause fear of
immediate battery. People v. Micsak, No. 308317, 2013 WL 275906, at *2 (Mich. Ct. App. Jan.
24, 2013). A battery, in this context, is “a forceful or violent touching,” id.; see People v.
Datema, 533 N.W.2d 272, 275 n.8 (Mich. 1995), which Michigan defines as “any use of physical
force against another person so as to harm or embarrass” that person, People v. Chandler, 506
N.W.2d 882, 884 (Mich. Ct. App. 1993). And a dangerous weapon is “any object that is used in
a way that is likely to cause serious physical injury or death.” People v. Davis, No. 234898,
2002 WL 31117043, at *2 (Mich. Ct. App. Sept. 24, 2002); see People v. Goolsby, 279 N.W.
867, 869 (Mich. 1938).
Taken together, these elements entail “the use, attempted use, or threatened use of
physical force” under the federal Sentencing Guidelines. U.S.S.G. § 4B1.2(a). We said so
before the Supreme Court’s 2010 Johnson decision. See United States v. Mosley, 339 F. App’x
568, 575 (6th Cir. 2009) (finding Michigan felonious assault a violent felony under
ACCA); United States v. O’Valle, 9 F.3d 110, 110 (6th Cir. 1993) (table) (same under
Guidelines). And our cases since Johnson show why that conclusion remains sound. When a
felony must be committed with a deadly weapon and involves some degree or threat of physical
force, it is a crime of violence under the elements clause. Rede-Mendez, 680 F.3d at 558; see
United States v. Rafidi, 829 F.3d 437, 446 (6th Cir. 2016). Michigan felonious assault meets that
threshold because there is no way to commit it without intentionally attempting or threatening
physical force against another with a dangerous weapon.
Our sister circuits take the same approach. In applying Johnson to New Mexico
aggravated assault, the Tenth Circuit held that “engaging in menacing conduct toward a victim,
with a weapon capable of causing death or great bodily harm, threatens the use of ‘force capable
of causing physical pain or injury.’” United States v. Ramon Silva, 608 F.3d 663, 672 (10th Cir.
2010). The Seventh Circuit adopted the reasoning of Ramon Silva and applied it to Indiana
aggravated battery. See United States v. Taylor, 630 F.3d 629, 634–35 (7th Cir. 2010). As did
No. 16-2239 United States v. Harris Page 4
the First Circuit, which held that a comparable Massachusetts assault with a dangerous weapon
statute was a crime of violence because “the harm threatened by an assault is far more violent
than offensive touching when committed with a weapon that is designed to produce or used in a
way that is capable of producing serious bodily harm or death.” United States v. Whindleton,
797 F.3d 105, 114 (1st Cir. 2015). We agree with all of that, and with the similar reasoning that
yet more circuits used in applying the elements clause to assault-with-a-dangerous-weapon
statutes before Johnson. See United States v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007);
United States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009).
In resisting this conclusion, Harris points out that someone can commit Michigan battery
with offensive touching and that offensive touching does not amount to sufficient force under
Johnson. But this argument asks us to look at just one element, the assault, to determine
whether the offense includes sufficient force. The categorical approach doesn’t require that each
element of an offense involve use of force; it requires that the offense overall include use of
violent force. Michigan felonious assault involves violent force because it proscribes not
common law assault but common law assault with a dangerous weapon. And “if a statute ha[s]
as an element some degree of, or the threat of, physical force in the more general sense, then the
use of a deadly weapon may transform this more general force into the necessary ‘violent force’
to constitute a crime of violence within the meaning of Johnson.” Rafidi, 829 F.3d at 446
(quotations omitted). That’s just what we have here.
Even Harris’s two case citations show that the felonious assault statute requires a
dangerous weapon and a threatened, attempted, or successful battery. Take People v. Davis, 549
N.W.2d 1, 5 (Mich. Ct. App. 1996), which upheld a conviction for the “mere pressing” of a gun,
as Harris puts it, to the victim’s back. Appellant’s Br. 11. The “mere” is easy for Harris to say,
while the “pressing” of the gun against the victim’s back confirms that the threat of serious
injury through use of a dangerous weapon is critical to the offense. Harris’s other case, People v.
Jones, likewise confirms that “[f]elonious assault” is not just simple assault but is “defined as a
simple assault aggravated by the use of a weapon.” 504 N.W.2d 158, 164 (Mich. 1993).
“[O]ur focus on the minimum conduct criminalized by the state statute is not an invitation
to apply ‘legal imagination’ to the state offense; there must be a realistic probability, not a
No. 16-2239 United States v. Harris Page 5
theoretical possibility, that the State would apply its statute to conduct that falls outside” the
limitations of the elements clause. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013)
(quotation omitted); United States v. Patterson, __ F.3d __, No. 15-4112, 2017 WL 1208425, at
*2 (6th Cir. Apr. 3, 2017). We see no possibility, much less a realistic probability, of Michigan
convicting someone of felonious assault who had not used, attempted, or threatened “force
capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140. Harris
indeed points to no such case. All of this means that Harris’s two convictions for Michigan
felonious assault amount to crimes of violence under the Guidelines and that the district court
properly calculated his offense level and Guidelines range.
For these reasons, we affirm.