United States v. Blomquist , 356 F. App'x 822 ( 2009 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 09a0788n.06
    No. 06-1111                                  FILED
    Dec 14, 2009
    UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                    ON APPEAL FROM THE UNITED
    STATES DISTRICT COURT FOR THE
    LEE EDWARD BLOMQUIST,                                 WESTERN DISTRICT OF MICHIGAN
    Defendant-Appellant.
    /                     OPINION
    BEFORE:        KENNEDY, MARTIN and CLAY, Circuit Judges.
    CLAY, Circuit Judge. Defendant Lee Edward Blomquist appeals the district court’s order,
    arguing that the district court erred in designating him a career offender because Michigan Compiled
    Laws (“M.C.L.”) § 750.479 does not categorically refer to a “crime of violence” for purposes of
    sentencing enhancement. We affirmed Blomquist’s designation as a career offender and the
    resulting sentence. The Supreme Court subsequently vacated and remanded the judgment for further
    consideration in light of Chambers v. United States, 555 U.S. ___, 
    129 S. Ct. 687
    (2009). For the
    reasons set forth herein, we REVERSE the district court’s determination that M.C.L. § 750.479
    categorically refers to a crime of violence and REMAND with instructions for the district court to
    conduct further proceedings in accordance with this opinion.
    BACKGROUND
    No. 06-1111
    On March 17, 2003, Defendant Lee Edward Blomquist pleaded guilty to manufacturing more
    than 100 marijuana plants, in violation of 18 U.S.C. § 2252(a)(1), and being a felon in possession
    of a firearm, in violation of 18 U.S.C. § 922(g). A Presentence Investigation Report (“PSR”) was
    prepared following acceptance of Blomquist’s guilty plea. The PSR determined that Defendant’s
    total offense level was 31 and his criminal history category was VI. Blomquist’s total offense level
    was calculated as 31 instead of 23 because he was deemed a career offender pursuant to U.S.
    Sentencing Guidelines (“USSG”) § 4B1.1. His criminal history category was calculated as VI
    because he had 13 criminal history points and because he was deemed a career offender.1
    Defendant’s designation in the PSR as a career offender was based upon two of his prior
    convictions in Michigan: (1) a 1993 conviction for escape from lawful custody and attempted
    resisting and obstructing an officer; and (2) a 1995 conviction for resisting and obstructing an officer.
    Both offenses were deemed “crime[s] of violence” pursuant to USSG §§ 4B1.1 and 4B1.2.
    Blomquist objected to the characterization of the 1993 offenses as crimes of violence because both
    offenses are misdemeanors in Michigan and not punishable by at least one year of imprisonment.
    He also objected to the classification of the 1995 offense as a crime of violence because it is a
    misdemeanor and does not usually by its nature qualify as a crime of violence.
    At the sentencing hearing on July 23, 2003, the district court found that Blomquist was a
    career offender based on the 1995 conviction for resisting and obstructing an officer and a 1999
    1
    Pursuant to the Guidelines, “[a] career offender’s criminal category . . . shall be Category
    VI,” unless “the defendant is convicted of 18 U.S.C. § 924(c) or § 929(a), and the defendant is
    determined to be a career offender,” in which case, another Guidelines provision governs. USSG
    § 4B1.1(b)-(c).
    2
    No. 06-1111
    conviction for third-degree felony fleeing and eluding an officer. Defendant’s sentencing range was
    calculated to be 188 to 235 months based on his criminal history category of VI and a base offense
    level of 31. However, the court granted the government’s motion for a downward departure of three
    points for substantial assistance.     The district court sentenced Blomquist to 140 months’
    imprisonment for the manufacturing charge and 120 months for the firearm charge, to be served
    concurrently. Had Blomquist’s total offense level been calculated as 23 instead of 31, with a
    criminal history category of VI, the guidelines range would have been 92-115 months.
    On appeal, we affirmed his conviction but vacated his sentence in light of United States v.
    Booker, 
    543 U.S. 220
    , 263-64 (2005), and remanded the case to the district court. On remand, the
    district court imposed the same sentence. Blomquist timely appealed, arguing that: (1) the district
    court improperly determined that he was a career offender because his state conviction for resisting
    and obstructing an officer does not constitute a “crime of violence;” and (2) his sentence is
    unreasonable because (a) the district court imposed the same sentence on remand, (b) his criminal
    history score overestimates his criminal past, (c) the district court failed to consider the sentencing
    factors under 18 U.S.C. § 3553(a), and (d) the supervised release conditions were improper. We
    affirmed Defendant’s conviction and sentence and Blomquist appealed to the Supreme Court. The
    Supreme Court granted Blomquist’s petition for a writ of certiorari, vacating the judgment and
    remanding to this Court for further consideration in light of Chambers.
    DISCUSSION
    A.      Standard of Review
    3
    No. 06-1111
    We review de novo “a district court’s conclusion that a crime qualifies as a predicate offense
    for the career-offender designation.” United States v. Baker, 
    559 F.3d 443
    , 450 (6th Cir. 2009)
    (quoting United States v. Skipper, 
    552 F.3d 489
    , 491 (6th Cir. 2009)).
    B.      Analysis
    Under the Sentencing Guidelines, a defendant is a career offender if he was at least 18 years
    old when he committed the instant offense, the offense is a felony “crime of violence” or controlled
    substance offense, and he has been convicted of at least two other “crime[s] of violence” or
    controlled substance offenses. USSG § 4B1.1(a). A “crime of violence” is any felony under state
    or federal law, punishable by imprisonment for more than 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
    burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct
    that presents a serious potential risk of injury to another.” 
    Id. § 4B1.2(a)
    (emphasis added).
    Application Note 1 of Section 4B1.2 clarifies this definition, enumerating several offenses, none of
    which are at issue in this case.2 In determining whether an offense constitutes a crime of violence,
    the inquiry focuses on “the offense of conviction.” 
    Id. § 4B1.2
    comment. (n.2). The Michigan
    Resisting and Obstructing statute in effect at the time Blomquist was convicted read as follows:
    2
    Specifically, a “crime of violence” includes “murder, manslaughter, kidnapping, aggravated
    assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary
    of a dwelling.” USSG, § 4B1.2 comment. (n.1).
    4
    No. 06-1111
    Sec. 479. Resisting, etc., officer in discharge of duty--Any person who shall
    knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township
    treasurer, constable or other officer or person duly authorized, in serving, or
    attempting to serve or execute any process, rule or order made or issued by lawful
    authority, or who shall resist any officer in the execution of any ordinance, by law,
    or any rule, order or resolution made, issued, or passed by the common council of any
    city board of trustees, or common council or village council of any incorporated
    village, or township board of any township or who shall assault, beat or wound any
    sheriff, coroner, township treasurer, constable or other officer duly authorized, while
    serving, or attempting to serve or execute any such process, rule or order, or for
    having served, or attempted to serve or execute the same, or who shall so obstruct,
    resist, oppose, assault, beat or wound any of the above named officers, or any other
    person or persons authorized by law to maintain and preserve the peace, in their
    lawful acts, attempts and efforts to maintain, preserve and keep the peace, shall be
    guilty of a misdemeanor, punishable by imprisonment in the state prison not more
    than 2 years, or by a fine of not more than 1,000 dollars.
    M.C.L. § 750.479 (2002).
    “A federal sentencing court considering an . . . enhancement . . . must take state law as it
    finds it, including state courts’ interpretations of state law.” United States v. Collier, 
    493 F.3d 731
    ,
    737 (6th Cir. 2007) (citing James v. United States, 
    550 U.S. 192
    , 205-06 (2007)). In People v.
    Vasquez, the Michigan Supreme Court held that “obstruct[ing]” as used in M.C.L. § 750.479
    included “threaten[ing], either expressly or impliedly, physical interference and actual physical
    interference with a police officer.” 
    465 Mich. 83
    , 100 (Mich. 2001). The court stated that “passive
    conduct may sometimes be sufficient to constitute obstruction under the ‘resisting and obstructing’
    statute” but only if that passive conduct “rises to the level of threatened physical interference.” 
    Id. at 97.
    Moreover, in finding that the conduct at issue was “not the type of conduct that Michigan’s
    ‘resisting and obstructing’ statute was intended to proscribe,” the court noted that “the police officer
    was not faced with a situation in which his next act would, more likely than not, involve physical
    confrontation.” 
    Id. at 98-99.
    5
    No. 06-1111
    In response to Vasquez, the Michigan legislature enacted § 750.81d(1) and amended §
    750.479, opting to define the term “obstruct” as including “the use or threatened use of physical
    interference or force or a knowing failure to comply with a lawful command.”                M.C.L. §
    750.479(8)(a) (emphasis added). Looking at the plain language of § 750.479, the offense does not
    require a use or threatened use of force. Rather, a person can violate the statute simply by
    “knowing[ly] fail[ing] to comply with a lawful command.” The offense also does not involve
    burgling a dwelling, arson, extortion, or the use of explosives. Thus, this discussion will focus on
    whether the offense is one that “otherwise involves conduct that presents a serious potential risk of
    injury to another.” USSG § 4B1.2(a).
    The “otherwise” clause “covers only similar crimes, rather than every crime that ‘presents
    a serious potential risk of physical injury to another.’” Begay v. United States, 
    128 S. Ct. 1581
    , 1585
    (2008). An offense is a crime of violence under this clause if it is “similar, in kind as well as in
    degree of risk posed,” to the enumerated offenses. United States v. Mosley, 
    575 F.3d 603
    , 606 (6th
    Cir. 2009) (quoting 
    Begay, 128 S. Ct. at 1585
    ). This determination is made using the categorical
    approach set forth in Taylor v. United States, 
    495 U.S. 575
    , 601 (1990).
    The categorical approach articulated in Taylor . . . and extended to plea-based
    convictions in Shepard v. United States . . . for determining whether a prior
    conviction constitutes a “violent felony” under the Armed Career Criminal Act
    (ACCA) . . . has been applied by [the Sixth Circuit] to . . . determine] . . . whether a
    prior conviction constitutes a “crime of violence” under USSG § 4B1.2(a).
    United States v. Bartee, 
    529 F.3d 357
    , 359 (6th Cir. 2008). This approach requires that we look only
    to the fact of conviction and the statutory definition in determining whether that statutory definition
    supports the conclusion that the defendant was convicted for a crime of violence. 
    Id. (citing United
    6
    No. 06-1111
    States v. Armstead, 
    467 F.3d 943
    , 947 (6th Cir. 2006)). Therefore, “to determine, for example,
    whether attempted burglary is a ‘violent felony,’ we [must] examine, not the unsuccessful burglary
    the defendant attempted on a particular occasion, but the generic crime of attempted burglary.”
    United States v. Chambers, 
    129 S. Ct. 687
    , 690 (2009) (citing 
    James, 550 U.S. at 204
    –06). This
    approach “avoid[s] ‘the practical difficulties and potential unfairness’ of permitting a sentencing
    court to relitigate the facts and delve into the details of a prior conviction.” 
    Bartee, 529 F.3d at 359
    (quoting 
    Armstead, 467 F.3d at 947
    ).
    In United States v. Mosley, we determined that under United States v. Chambers, a “knowing
    failure to comply with a lawful command” conviction is a distinct offense and “is not a crime of
    violence under the ‘otherwise’ clause [of USSG § 
    4B1.2(a)(2)].” 575 F.3d at 607
    .
    The offense . . . does not involve comparable “purposeful, violent, and aggressive”
    conduct. 
    Begay, 128 S. Ct. at 1586
    . Even though the offense involves conduct that
    often will be “purposeful,” “nothing in the statute . . . requires the offense to involve
    . . . violence or . . . aggressiveness.” 
    Ford, 560 F.3d at 423
    . All the individual must
    do is know about an officer’s lawful order and fail to obey it, no matter the nature of
    the order, no matter the circumstances. A knowing failure to comply with a lawful
    command–say, by refusing to produce information, by ignoring an officer's command
    not to cross the street or by failing to stay put at an accident scene–is no more
    aggressive and violent than walking away from custody, 
    id., drunk driving,
    Begay,
    128 S. Ct. at 1588
    , or a failure to report to prison, 
    Chambers, 129 S. Ct. at 691-93
    . If
    these offenses are not crimes of violence, neither is this one . . . Nor, for similar
    reasons, does the offense entail the same degree of risk of physical injury to other
    individuals as the enumerated offenses.
    
    Id. Although there
    may be instances where a person’s failure to follow an officer’s lawful command
    poses more risk, there is “no basis . . . for concluding that the typical violation would create such a
    danger.” 
    Id. 7 No.
    06-1111
    Defendant argues that the Michigan Supreme Court’s interpretation of § 750.479 in Vasquez
    leads to the conclusion that the statute embodies two distinct types of behavior—expressed
    aggressive conduct and passive non-violent conduct—and therefore, the Mosley analysis applies.
    The government counters that Mosley concerned M.C.L. § 750.81d, the sister statute to § 750.479,
    and § 750.479 did not define “obstruct” to include a “knowing failure to comply with a lawful
    command” until 2002. Thus, the government asserts, Mosley’s interpretation of that portion of the
    statute as not categorically being a crime of violence is not controlling in this case.
    The government’s argument is unconvincing. Under the categorical approach, this Court
    must choose the correct category, which may require “draw[ing] distinctions that the state law on
    its face does not draw.” 
    Mosley, 575 F.3d at 606
    (citing 
    Chambers, 129 S. Ct. at 690
    ). “[B]efore
    [the Court] examine[s] the ordinary behavior underlying a conviction . . . [the Court] must decide
    at the outset how to classify violations, and most significantly . . . whether the statute should be
    treated as involving more than one category of offense for federal crimes-of-violence purposes.” 
    Id. As we
    stated in Mosley, under Chambers, a “knowing failure to comply with a lawful command”
    conviction is a distinct offense and “is not a crime of violence.” 
    Id. at 607.
    Moreover, the Michigan legislature’s amendment of M.C.L. § 750.479 suggests that it
    intended to clarify the meaning of “obstruct” in the wake of Vasquez. The Michigan Supreme Court
    has stated that it “must pay particular attention to statutory amendments, because a change in
    statutory language is presumed to reflect either a legislative change in the meaning of the statute
    itself or a desire to clarify the correct interpretation of the original statute.” Bush v. Shabahang, Nos.
    136617, 136653, 136983, 
    2009 WL 2259819
    , at *4 (Mich. July 29, 2009). The amendment at issue
    8
    No. 06-1111
    does not reflect a legislative change in meaning but rather, clarifies the correct interpretation of the
    statute. The amended statute defines the term “obstruct” as including “the use or threatened use of
    physical interference or force or a knowing failure to comply with a lawful command.” M.C.L. §
    750.479(8)(a) (emphasis added). Thus, it incorporates both the Vasquez interpretation and the
    “knowing failure to comply” language, suggesting a desire by the Michigan legislature to clarify that
    “obstruct[ing]” is not limited to the interpretation set forth in Vasquez.
    The government argues that even if M.C.L. § 750.479 is not categorically a crime of violence,
    that Blomquist’s resisting and obstructing offense nonetheless qualifies as a crime of violence.
    Specifically, the government asserts that since the felony complaint states that “Defendant struck the
    officer repeatedly and attempted to flee the scene after this officer had identified himself and had
    attempted to place the Defendant under arrest,” Defendant’s conduct would still constitute a crime
    of violence. (Supplemental Br. of Appellee at 8-9.) Blomquist does not address this issue, but rather
    confines his argument to the fact that M.C.L. § 750.479 is not categorically a “crime of violence”
    and thus, the case should be remanded to the district court for resentencing.
    Both arguments have merit.         Although the Mosley court was unable to classify the
    defendant’s prior conviction and thus, could not deem it a crime of violence at the categorical stage,
    that did not end the inquiry. As we stated in United States v. Ford, “the first question . . . [is] the
    Taylor question . . . [t]he second question [is] the Shepard question.” 
    560 F.3d 420
    , 426 (6th Cir.
    2009). If a defendant can violate the state law in a manner that amounts to a crime of violence and
    in a manner that does not, the court can “consider the indictment, the plea agreement, the plea
    colloquy or ‘comparable judicial record[s]’ to determine whether the individual’s actual conduct
    9
    No. 06-1111
    ‘necessarily’ establishes the nature of the offense.” 
    Mosley, 575 F.3d at 606
    (quoting Shepard v.
    United States, 
    544 U.S. 13
    , 26 (2005)). Blomquist is correct that M.C.L. § 750.479 is not
    categorically a crime of violence. However, if upon examining the appropriate Shepard documents,
    the government’s assertions about Blomquist’s offense are true, then that offense would constitute
    a crime of violence and Blomquist’s career offender enhancement would be proper. Thus,
    resentencing would be unnecessary. We, therefore, remand the case to the district court for
    reconsideration of Defendant’s sentence based on the appropriate Shepard documents.
    CONCLUSION
    For the reasons set forth above, we REVERSE the district court’s determination that M.C.L.
    § 750.479 is categorically a crime of violence for purposes of the career offender enhancement and
    REMAND for further proceedings consistent with this opinion.
    10
    No. 06-1111
    Kennedy, Circuit Judge, concurring.
    I concur in the panel’s order but have one additional reason to order remand. On remand,
    the government may choose to bolster its claim that Blomquist was convicted for a crime of violence
    by introducing the “transcript of colloquy between judge and defendant in which the factual basis
    for the plea was confirmed by the defendant.” Shepard v. United States, 
    544 U.S. 13
    , 26 (2005).
    Before a court in Michigan can accept a guilty plea to a felony, it must “by questioning the
    defendant, . . . establish support for a finding that the defendant is guilty of the offense charged or
    the offense to which the defendant is pleading.” Mich. Ct. R. 6.302(D). Although considerable time
    has elapsed since the defendant pleaded guilty, the government may be able to obtain these judicial
    records and provide them to the district court in support of the enhancement.
    11