United States v. Joseph Goodrich , 709 F. App'x 798 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0546n.06
Case No. 16-1795
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 02, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
JOSEPH GOODRICH, ) MICHIGAN
)
Defendant-Appellant. )
)
)
OPINION
BEFORE: SUTTON, DONALD, and THAPAR, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant Joseph Goodrich
appeals his sentence for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1).
Goodrich contends that his previous conviction for armed robbery, Mich. Comp. Laws §
750.529, or assault with intent to rob while armed, Mich. Comp. Laws § 750.89, are not “crimes
of violence” under the United States Sentencing Guidelines (“U.S.S.G.”), and that classifying
those convictions as such improperly increased his base offense level from 14 to 24 and his
advisory range from 41-51 months to 110-120 months. Because Goodrich’s robbery offenses
qualify as violent crimes under the residual clause of U.S.S.G. § 4B1.2(a), we AFFIRM the
judgment of the district court.
Case No. 16-1795
United States v. Goodrich
I.
On March 11, 2010, Defendant-Appellant Joseph Goodrich was indicted for being a felon
in possession of a firearm and for possession of marijuana with intent to distribute. In May
2010, Goodrich pleaded guilty to the felon in possession charge and was sentenced under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to 188 months in prison and three
years of supervised release.
After the Supreme Court issued Johnson v. United States, 135 S. Ct. 2551 (2015)—
holding that the residual clause in the ACCA’s definition of “violent felony” was
unconstitutionally vague—Goodrich moved to vacate his sentence under 28 U.S.C. § 2255.
Goodrich v. United States, No. 1:16-cv-00057-RHB (W.D. Mich. 2016). The government
conceded that Goodrich no longer qualified as an armed career criminal because, absent the
residual clause, one of the predicate convictions for the statutory enhancement—being a prisoner
in possession of a weapon, Mich. Comp. Laws § 800.283(4)—no longer qualified as a violent
felony. Id. The district court granted the motion to vacate Goodrich’s sentence and set the
matter for resentencing.
In scheduling the resentencing hearing, the district court ordered that a modified
presentence investigation report (“MPSR”) be prepared. The MPSR calculated Goodrich’s base
offense level at 24 under U.S.S.G. § 2K2.1(a)(2), relying on his previous convictions for assault
with intent to rob while armed and armed robbery as “crimes of violence,” as defined in
§ 4B1.2(a). Four levels were added to Goodrich’s range under § 2K2.1(b)(6) because he
possessed a firearm in connection with another felony offense, while three levels were subtracted
to reflect his acceptance of responsibility. With Goodrich’s criminal history category calculated
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at VI, the advisory guideline range rested at 110-120 months. Goodrich objected to the
classification of the robbery convictions while the government supported the calculations.
On June 9, 2016, the district court held a resentencing hearing and heard arguments on
whether the robbery convictions should be considered “crimes of violence.” Ultimately, the
district court overruled Goodrich’s objections, stating that “an armed robbery categorically
should qualify” as a violent crime because “by virtue of the arming and by virtue of the demands,
the victim relinquishes property. . . . Of course there’s force.” The district court imposed a
sentence of 120 months—the statutory maximum. This timely appeal followed.
II.
The dispositive portion of Goodrich’s appeal is his contention that the district court
improperly calculated his base offense level under § 2K2.1(a) by wrongly classifying his
previous convictions as “crimes of violence.” This Court reviews the district court’s
classification of Goodrich’s predicate offenses as “crimes of violence” de novo. United States v.
Goodman, 519 F.3d 310, 316 (6th Cir. 2008). At the time of Goodrich’s original sentencing1
§ 4B1.2(a) defined an offense as a “crime of violence” if it (1) had “as an element the use, or
attempted use, threatened use of physical force against the person of another”; (2) was “burglary
of a dwelling, arson, or extortion, [or] involve[d] use of explosives”; or (3) “otherwise involve[d]
conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
Goodrich claims that his predicate offenses fail to qualify under any of the three prongs.
However, Goodrich’s entire appeal is based on the premise that the third prong of
§ 4B1.2(a), the “residual clause,” is unconstitutionally vague. This proposition is informed by
1
See 18 U.S.C. § 3742(g)(1) (“A district court to which a case is remanded . . . shall apply the guidelines . . . that
were in effect on the date of the previous sentencing of the defendant prior to the appeal”); United States v. Hughes,
733 F.3d 642, 645 (6th Cir. 2013) (“the district court at resentencing [should] apply the Guidelines that were in
effect at the time of the defendant’s original sentencing”) (citing United States v. Taylor, 648 F.3d 417, 424 (6th Cir.
2011)).
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the Supreme Court’s decision in Johnson, which held that the identical language in the ACCA’s
residual clause—i.e., presenting a serious potential risk of physical injury—was
unconstitutionally vague. 135 S. Ct. at 2563. After Johnson, this Court extended that reasoning
and held that the residual clause in the Sentencing Guidelines was also unconstitutionally vague.
United States v. Pawlak, 822 F.3d 902, 907 (6th Cir. 2016).
However, the Supreme Court has since issued Beckles v. United States, 137 S. Ct. 886
(2017), which held that the “advisory Sentencing Guidelines are not subject to a vagueness
challenge under the Due Process Clause and that § 4B1.2(a)’s residual clause is not void for
vagueness.” Id. at 895. As a result, we are bound to consider Goodrich’s earlier convictions on
the basis of the revived (though no longer extant, having been removed by the Sentencing
Commission)2 residual clause.
At resentencing, the district court determined Goodrich’s base offense level based on the
following convictions: (1) armed robbery, Mich. Comp. Laws § 750.529, and (2) assault with
intent to rob while armed, Mich. Comp. Laws § 750.89. Goodrich argues that the district court
improperly calculated his sentence because neither of those convictions would count as a “crime
of violence” without the residual clause. Indeed, the government conceded that the residual
clause was void in the wake of Pawlak, while still arguing that Goodrich’s convictions were
violent crimes under the enumerated and elements clauses.
Beckles has altered that landscape. Because the Sentencing Guidelines do not require a
mandatory minimum sentence and instead “merely guide the exercise of a court’s discretion in
choosing an appropriate sentence within the statutory range,” the residual clause therein is not
2
See U.S.S.G. Supp. App. C., amendment 798, 81 Fed. Reg. 4741-02 (Jan. 27, 2016) (defining a “crime of
violence” as an offense that “has as an element the use, attempted use, or threatened use of physical force against the
person of another,” or is one of the following: “murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use of unlawful possession of a firearm . . . or explosive
material . . .”); see also U.S.S.G. § 4B1.2(a) (2016).
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subject to a vagueness challenge. Beckles, 137 S. Ct. at 892. Thus, we need not address whether
Goodrich’s convictions meet either the elements or enumerated clauses if they still qualify as
violent crimes under the residual clause in place at the time of his sentencing and resentencing.
Though neither the MPSR, the parties, and the district court did not consider the residual clause
at resentencing—due to Pawlak—the Court may nonetheless “affirm the district court on any
ground supported by the record.” United States v. Phillips, 752 F.3d 1047, 1049 (6th Cir. 2014).
This Court has already determined that armed robbery under Mich. Comp. Laws
§ 750.529 qualifies as a crime of violence under the residual clause of the Guidelines. United
States v. Tibbs, 685 F. App’x 456, 461 (6th Cir. 2017) (“[T]he armed robbery statute at issue has
as an element the taking of property from the victim’s person or presence . . . [and] requires that
the offender be armed with an actual or perceived weapon, which only increases the risk of
violence. Michigan armed robbery therefore fits within the residual clause of the Guidelines.”).
As in Tibbs, Goodrich makes various arguments regarding whether the statutory elements of his
conviction require physical force or threatened use of force that are not necessary to our analysis,
given § 4B1.2(a)’s residual clause. See id. (“[I]n light of Beckles, we need not parse the
Michigan armed robbery statute to determine whether it satisfies the force-as-an-element clause
because it qualifies as a crime of violence under the residual clause . . . .”). Thus, Goodrich’s
armed robbery conviction properly qualifies as a crime of violence under § 4B1.2(a).
Though this Court has not directly addressed whether assault with intent to commit
armed robbery under Michigan law qualifies as a crime of violence under the Sentencing
Guidelines’ residual clause, it is equally clear. Mich. Comp. Laws § 750.89 criminalizes “[a]ny
person, being armed with a dangerous weapon, or any article used or fashioned in a manner to
lead a person assaulted reasonably to believe it to be a dangerous weapon, who shall assault
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another with intent to rob and steal . . . .” This Court has elsewhere explained that the offense
requires: (1) an assault with force and violence; (2) intent to rob or steal; and (3) while armed.
See Alexander v. Robinson, 11 F. App’x 456, 459 (6th Cir. 2001) (citing People v. Cotton, 478
N.W.2d 681, 688 (Mich. Ct. App. 1991)). Given that the necessary elements to the offense
include assault with force or violence—while armed, no less—Michigan’s definition of the crime
categorically presents a serious risk of potential physical injury to another. Like armed robbery,
it has an element of force with intent to deprive the victim of his or her property. It also requires
that the offender be armed—“which only increases the risk of violence.” Tibbs, 685 F. App’x at
461. Moreover, this Court has previously stated that assault with intent to rob while armed was
properly designated a “crime of violence” under § 4B1.1. See United States v. King, 172 F.3d 50
(table) (6th Cir. 1998) (defendant “had previously been convicted as an adult of a crime of
violence (assault with intent to rob while armed)”); United States v. Maddalena, 893 F.2d 815,
819 (6th Cir. 1989) (upholding sentence under § 4B1.1 in which one of the prior convictions was
assault with intent to rob while unarmed). Michigan’s assault with intent to rob while armed
therefore, at a minimum, fits within the residual clause of the Guidelines.
Because we conclude—based on prior decisions of this Court and independent analysis—
that Goodrich’s convictions under Mich. Comp. Laws §§ 750.529 and 750.89 qualify as “crimes
of violence” under the residual clause in place at the time of Goodrich’s sentencing, we do not
consider the government’s alternative arguments that both crimes satisfy the elements or
enumerated clauses definitions. Accordingly, the district court did not err in calculating
Goodrich’s base offense level or advisory range and we affirm Goodrich’s sentence of 120
months.
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III.
For the reasons stated above, we AFFIRM Goodrich’s sentence.
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