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6,047,160
| 11,783,522
|
2006-06-26
|
United States Court of Appeals for the Fourth Circuit
|
Buckner v. Polk
|
Buckner v. Polk, 453 F.3d 195 (2006)
|
1998-10-27
|
United States Court of Appeals for the Ninth Circuit
|
Caro v. Calderon
|
Caro v. Calderon, 165 F.3d 1223 (1998)
|
11783522_19
|
fell below an objective standard of reasonableness
|
However, even assuming that the new evidence conclusively shows that Bivens planned the robbery and shot Dow, it does not show that no reasonable juror could have found that Buckner’s participation in the robbery rose to the level of reckless indifference to human life. The jury heard evidence, none of which the new evidence contradicts, that Buckner was aware of Bivens’ plan to rob Dow, that he was present at the robbery and murder, that he participated in the robbery, that he helped to conceal the crime by disposing of evidence, and that, despite having time and opportunity to do so, he did not report the crime to the police. This evidence is sufficient to support a jury finding that Buckner’s participation in Dow’s robbery constituted reckless indifference to human life. See, e.g., Tison, 481 U.S. at 151-52, 157-58, 107 S.Ct. 1676; (defendants who knew beforehand that their accomplices were likely to commit murder, who robbed the victims at their accomplices’ direction, and who stood by while the murders were committed were guilty of capital felony murder). We therefore find Buckner’s new evidence insufficient to demonstrate his actual innocence of capital felony murder.
IV.
Buckner next requests habeas relief based on his argument that he received ineffective assistance of counsel during the sentencing phase of his trial. The MAR court denied this claim after a hearing. The district court also denied relief, as do we. To demonstrate that he received ineffective assistance of counsel at his sentencing, Buckner must show that (1) his attorney’s performance “
|
6,047,160
| 11,783,522
|
2006-06-26
|
United States Court of Appeals for the Fourth Circuit
|
Buckner v. Polk
|
Buckner v. Polk, 453 F.3d 195 (2006)
|
1998-10-27
|
United States Court of Appeals for the Ninth Circuit
|
Caro v. Calderon
|
Caro v. Calderon, 165 F.3d 1223 (1998)
|
11783522_19
|
fell below an objective standard of reasonableness
|
To demonstrate that he received ineffective assistance of counsel at his sentencing, Buckner must show that (1) his attorney’s performance “fell below an objective standard of reasonableness” and (2) a reasonable probability exists that, but for the deficient performance, he would not have been sentenced to death. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
B.
Under the first prong of Strickland, Buckner must show that his counsel’s performance at sentencing “
|
6,047,160
| 11,783,522
|
2006-06-26
|
United States Court of Appeals for the Fourth Circuit
|
Buckner v. Polk
|
Buckner v. Polk, 453 F.3d 195 (2006)
|
1998-10-27
|
United States Court of Appeals for the Ninth Circuit
|
Caro v. Calderon
|
Caro v. Calderon, 165 F.3d 1223 (1998)
|
11783522_19
|
fell far below an objective standard of reasonableness,
|
Though Buckner's new evidence of actual innocence might also have affected the jury’s determination that the mitigating evidence did not out-weigh the aggravating factors, the addition of more persuasive mitigation evidence would not have made Buckner constitutionally ineligible for the death penalty. Albeit in the context of a gateway innocence claim, the Supreme Court has rejected an invitation to expand the actual innocence standard to include demonstrations that new mitigating evidence makes it unlikely that the jury would have opted for death. See Sawyer, 505 U.S. at 343-47, 112 S.Ct. 2514. Given the Court’s indication that free-standing actual innocence claims, if cognizable at all on federal habeas review, would be subject to even higher standards of proof than their gateway counterparts, see Herrera, 506 U.S. at 417, 113 S.Ct. 853, we cannot conclude that the new evidence's speculative effect on the jury’s sentencing recommendation provides a basis for habeas relief.
5
. We nevertheless recognize the constraints under which Childers was compelled to function. The record shows that he attempted to withdraw as Buckner’s counsel when it became clear that his partnership's financial difficulties would unacceptably interfere with his representation, but the state trial court denied his motion.
6
. Our conclusion with respect to the prejudice prong of the Strickland standard obviates the need to decide the reasonableness prong. In light of our respected colleague's expansive dissent, however, we feel compelled to point to other evidence of record, considered by the MAR court, that more fully reflects counsel’s efforts.
Moreover, while Childers certainly could have done more, the dissent’s assertion that his conduct “
|
3,262,493
| 11,783,522
|
2006-10-02
|
United States Court of Appeals for the Ninth Circuit
|
Correll v. Ryan
|
Correll v. Ryan, 465 F.3d 1006 (2006)
|
1998-10-27
|
United States Court of Appeals for the Ninth Circuit
|
Caro v. Calderon
|
Caro v. Calderon, 165 F.3d 1223 (1998)
|
11783522_15
|
[i]t is imperative that all relevant mitigating information be unearthed for consideration.
|
’ ” When it comes to the penalty phase of a capital trial, “
|
9,362,584
| 11,775,019
|
2003-02-25
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Copeland
|
United States v. Copeland, 321 F.3d 582 (2003)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_4
|
To determine whether evidence establishing probable cause is ‘stale,’ we consider the inherent nature of the suspected crime....
|
Id. (“In general, the basic criterion as to the duration of probable cause is the inherent nature of the crime[.]”) (quoting United States v. Haimowitz, 706 F.2d 1549, 1554-55 (11th Cir.1983)); see also United States v. Akram, 165 F.3d 452, 456 (6th Cir.1999) (“
|
3,803,718
| 11,775,019
|
2006-11-09
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Garrido
|
United States v. Garrido, 467 F.3d 971 (2006)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_2
|
primary responsibility for determining witness credibility,
|
The district court, which has the “
|
3,803,718
| 11,775,019
|
2006-11-09
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Garrido
|
United States v. Garrido, 467 F.3d 971 (2006)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_1
|
to conclude that [Officer] Newburn was lying not just about his motive for the stop but also about the historical fact of whether the truck failed to signal.
|
The district court here could have reasonably concluded that the consistency of the two officers’ accounts, as well as the fact that Chelf also mentioned the traffic violation at the state-court hearing held just days after the stop, lent credibility to their version of the events. Second, Garrido’s argument once again centers on the subjective motivations of the officers, which both this court and the Supreme Court have held are irrelevant in determining the legality of the stop. See Burton, 334 F.3d at 516 (citing Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)).
This court’s decision in Akram, 165 F.3d at 455-56, is instructive with regard to each of these two points. The two defendants in Akram were stopped for speeding by Officer Gooding while driving east on the Ohio Turnpike in a U-Haul truck. After inconsistent answers given by the defendants aroused Gooding’s suspicions, he contacted Officer Newburn, who operated a canine unit. The trained dog alerted, but no drugs were found in the U-Haul. Id. at 454. Instead, the officers found videotapes that they believed were counterfeit. Unsure how to proceed, the officers released the two defendants with a warning. The very next day, however, Officer Newburn saw the same U-Haul (although he said that he did not realize it was the same one), this time traveling westbound on the Ohio Turnpike, change lanes without signaling — a violation of Ohio law. Id. After contacting Gooding, Newburn brought the dog around the vehicle, and the dog again alerted. A subsequent search again uncovered no drugs, but revealed counterfeit tapes, leading to federal charges against the defendants. This court explained that, to “hold the stop unconstitutional,” it would have “
|
3,803,718
| 11,775,019
|
2006-11-09
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Garrido
|
United States v. Garrido, 467 F.3d 971 (2006)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_0
|
in response to a question from the court, rather than [as] part of the prosecution’s justification for the stop.
|
Id. at 455. The Akram majority noted that the district court, charged with the primary responsibility for determining witness credibility, had credited New-burn’s testimony. Id. at 455-56. Ultimately, the majority in Akram held that the officers’ alleged interest in uncovering drugs was insufficient to undermine the likelihood that the driver had committed a traffic violation. The majority also emphasized that the district court could have found Officer Newburn’s account of the traffic violation especially credible because it came “
|
3,803,718
| 11,775,019
|
2006-11-09
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Garrido
|
United States v. Garrido, 467 F.3d 971 (2006)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_1
|
were lying not just about [their] motive for the stop but also about the historical fact
|
In the present case, as in Akram, we cannot reject the district court’s basis for upholding the stop unless we conclude that Officers Chelf and Conn “
|
4,067,001
| 11,775,019
|
2011-05-03
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Sain
|
United States v. Sain, 421 F. App'x 591 (2011)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_3
|
probable cause to believe that the vehicle contains evidence of a crime.
|
The district court held that the officers had probable cause to believe that “the Mustang... contained] contraband in the form of a firearm,” and the search was therefore valid pursuant to the automobile exception to the Fourth Amendment’s warrant requirement. See United States v. Smith, 510 F.3d 641, 649-50 (6th Cir.2007). Sain pleaded guilty to the offense on November 16, 2009, expressly reserving the right to appeal the denial of his suppression motion. On February 12, 2010, the district court sentenced Sain to 34 months in prison, and Sain filed a timely notice of appeal.
II
A
When reviewing a denial of a motion to suppress, this court reviews the district court’s legal conclusions de novo. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.2006). However, the district court’s factual findings are reviewed only for clear error, and we consider the evidence in the light most favorable to the government. Ibid. Further, this court can affirm a district court’s denial of a motion to suppress if the district court’s conclusion can be justified for any reason supported by the record, including reasons not considered by the district court.
B
In general, a police officer may search an automobile without a warrant only if the officer has “
|
4,067,001
| 11,775,019
|
2011-05-03
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Sain
|
United States v. Sain, 421 F. App'x 591 (2011)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_6
|
In the absence of any contradictory testimony, we will abide by the district court’s findings of fact.
|
C
We affirm the district court’s denial of Sain’s motion to suppress on the ground that the search, which was conducted more than three months prior to the Supreme Court’s decision in Gant, was valid under Belton and this circuit’s pre-Gant caselaw and, accordingly, the good-faith exception to suppression applies. Buford, 632 F.3d at 276-77; Pino, 855 F.2d at 364. The district court found, and the record supports, that Beaver found the handgun in the hatchback area of the Mustang, which was reachable from inside the vehicle. Sain suggests that the district court’s finding is clearly erroneous because Beaver did not, in fact, access the hatchback from inside the vehicle, but rather used Sain’s keys to open the trunk. But the question is not how Beaver chose to access the area, but rather how an occupant of the vehicle could have accessed it. See Pino, 855 F.2d at 364. Here, Beaver testified that he could have accessed the hatchback area from inside the vehicle, but as a matter of convenience, he chose to open the hatch from outside. United States v. Akram, 165 F.3d 452, 456 (6th Cir.1999) (“
|
4,122,350
| 11,775,019
|
2014-02-20
|
United States District Court for the Eastern District of Kentucky
|
United States v. Clay
|
United States v. Clay, 1 F. Supp. 3d 688 (2014)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_4
|
inherent nature of the suspected crime and the objects sought.
|
In evaluating whether information establishing probable cause is stale, courts consider the "
|
11,401,109
| 11,775,019
|
2002-09-10
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Copeland
|
United States v. Copeland, 304 F.3d 533 (2002)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_4
|
To determine whether evidence establishing probable cause is ‘stale,’ we consider the inherent nature of the suspected crime....
|
Id. (“In general, the basic criterion as to the duration of probable cause is the inherent nature of the crime[.]”) (quoting United States v. Haimowitz, 706 F.2d 1549, 1554-55 (11th Cir.1983)); see also United States v. Akram, 165 F.3d 452, 456 (6th Cir.1999) (“
|
3,890,425
| 11,775,019
|
2012-06-19
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 682 F.3d 448 (2012)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_7
|
[The officer] had probable cause to stop the truck because it failed to signal before changing lanes, in violation of Ohio law.
|
”); United States v. Akram, 165 F.3d 452, 455 (6th Cir.1999) (“
|
4,064,196
| 11,775,019
|
2014-05-21
|
United States Court of Appeals for the Sixth Circuit
|
Kinlin v. Kline
|
Kinlin v. Kline, 749 F.3d 573 (2014)
|
1999-01-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Akram
|
United States v. Akram, 165 F.3d 452 (1999)
|
11775019_5
|
Section 4511.39 of the Ohio code requires the use of a turn signal when changing lanes, regardless of whether a driver complies with § 4511.33(A)’s general admonition to be safe.
|
This court concluded that “
|
9,201,256
| 11,784,213
|
2004-06-29
|
United States District Court for the Southern District of California
|
Noyes v. Grossmont Union High School District
|
Noyes v. Grossmont Union High School District, 331 F. Supp. 2d 1233 (2004)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_2
|
cannot charge, or receive attorney’s fees for such services under penalty of criminal law.
|
In particular, counsel charged: (1) 0.20 hours on September 16 to “[s]et up client file;” (2) a total of 1.23 hours on October 21 to prepare and assemble the exhibits and cover sheet for the due process hearing; and (3).80 hours on October 22, 2002 to assemble the exhibit packet. Id. at 1-2. Counsel billed this time at the post-bar intern rate of $85.00 per hour. Id. As described, these tasks appear to have been easily delegable to non-professional assistance and therefore legal service rates are not applicable. See Mogck v. Unum Life Ins. Co. of Am., 289 F.Supp.2d 1181, 1193 (S.D.Cal.2003) (holding that creating and reorganizing files, preparing tables of contents and tables of authorities, and preparing indexes were paralegal/secretarial tasks). The Court finds a paralegal rate of $50.00 per hour for these tasks is reasonable, and will reduce the fee amount requested to reflect that rate.
C. Dr. Kathleen Edward’s Fees
Plaintiff seeks to recover fees paid to Dr. Edwards. Defendant maintains Dr. Edwards’ consultation services are not compensable under Z.A. v. San Bruno Park School District, 165 F.3d 1273 (9th Cir.1999). The Court disagrees because Z.A. is inapposite. In Z.A., an attorney who was not licensed in California sought attorney’s fees for representing a student in a special education administrative proceeding. Z.A., 165 F.3d at 1274. The Ninth Circuit held counsel was not entitled to recover his attorney’s fees. The appellate court reasoned that if a person is not licensed to practice law in a particular forum, he “
|
9,237,978
| 11,784,213
|
2004-07-06
|
United States Court of Appeals for the Ninth Circuit
|
Shapiro ex rel. Shapiro v. Paradise Valley Unified School District No. 69
|
Shapiro ex rel. Shapiro v. Paradise Valley Unified School District No. 69, 374 F.3d 857 (2004)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_1
|
a party, represented by an attorney who is admitted to the United States District Court for the Northern District of California but is not admitted to the California State Bar, may be awarded attorneys’ fees for a state administrative proceeding under the IDEA.
|
” 20 U.S.C. § 1415(i)(3)(B). The Shapiros contend that the district court erred in disallowing attorney’s fees prior to the date that Walker was admitted to practice pro hac vice in Arizona. They argue that the administrative hearing officer had the authority to waive the pro hac vice requirements orally and that he did so by approving of Walker’s representation of the Shapiros. In Z.A., the issue was whether “
|
9,237,978
| 11,784,213
|
2004-07-06
|
United States Court of Appeals for the Ninth Circuit
|
Shapiro ex rel. Shapiro v. Paradise Valley Unified School District No. 69
|
Shapiro ex rel. Shapiro v. Paradise Valley Unified School District No. 69, 374 F.3d 857 (2004)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_4
|
no person may recover compensation for services as an attorney in California unless he or she was a member of the state bar at the time the services were rendered,
|
” Relying on California caselaw holding that “
|
9,237,978
| 11,784,213
|
2004-07-06
|
United States Court of Appeals for the Ninth Circuit
|
Shapiro ex rel. Shapiro v. Paradise Valley Unified School District No. 69
|
Shapiro ex rel. Shapiro v. Paradise Valley Unified School District No. 69, 374 F.3d 857 (2004)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_0
|
[a] person is or is not licensed to practice law in a particular forum. There is no halfway.
|
Relying on California caselaw holding that “no person may recover compensation for services as an attorney in California unless he or she was a member of the state bar at the time the services were rendered,” Z.A. reasoned that “[a] person is or is not licensed to practice law in a particular forum.
|
1,553,991
| 11,784,213
|
2005-11-15
|
United States Court of Appeals for the Federal Circuit
|
Augustine v. Department of Veterans Affairs
|
Augustine v. Department of Veterans Affairs, 429 F.3d 1334 (2005)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_4
|
recover compensation for services as an attorney at law in California ....
|
Concluding that “all services were evidently performed while counsel was in California,” the AJ then determined that, as part of the rules governing attorney conduct in California, “a non-member of the California State Bar... is [ ] forbidden to ‘practice law in California,’ ” and may not “recover compensation for services as an attorney at law in California.... ”
|
1,553,991
| 11,784,213
|
2005-11-15
|
United States Court of Appeals for the Federal Circuit
|
Augustine v. Department of Veterans Affairs
|
Augustine v. Department of Veterans Affairs, 429 F.3d 1334 (2005)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_4
|
[n]o one may recover compensation for services as an attorney at law in [California] unless the person was at the time the services were performed a member of The State Bar.
|
Accordingly, a violation of section 6125 is considered a misdemeanor, and “
|
3,899,668
| 11,784,213
|
2007-03-07
|
United States District Court for the District of Columbia
|
Agapito v. District of Columbia
|
Agapito v. District of Columbia, 477 F. Supp. 2d 103 (2007)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_3
|
whether a lawyer who prevails in a state administrative proceeding must be admitted to the California State Bar in order to collect attorney’s fees under the IDEA.
|
Id.
Defendants offer no evidence to controvert these assertions. Accordingly, the Court concludes that Mr. Lammers was in substantial compliance with Rule 49(c)(8)’s “direct supervision” requirement during the relevant time period.
% if: H* Hí #
The Court thus concludes that Mr. Hull, who was licensed to practice in the District of Columbia, and Mr. Lammers, who was in substantial compliance with Rule 49(c)(8), were not engaged in the unauthorized practice of law during the relevant time period. The Court will therefore deny Defendants’ motion for summary judgment as to these attorneys to the extent it relies on such a theory.
However, because Rule 49(c)(5) does not permit an attorney not licensed in the District of Columbia to practice law in administrative proceedings before DCPS, and because Plaintiffs rest on exception (c)(5) alone for Mr. Hill, Ms. McAllister, and Mr. West, the Court must conclude that those attorneys were engaged in the unauthorized practice of law during the relevant time period.
B. The Availability of Attorneys’ Fees for Unlicensed Lawyers
Having concluded that Mr. Hill, Ms. McAllister, and Mr. West were engaged in the unauthorized practice of law, the question remains: Are they necessarily barred from recovering attorneys’ fees under the IDEA? In the earlier one, arising out of California, that court considered “
|
3,899,668
| 11,784,213
|
2007-03-07
|
United States District Court for the District of Columbia
|
Agapito v. District of Columbia
|
Agapito v. District of Columbia, 477 F. Supp. 2d 103 (2007)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_4
|
no person may recover compensation for services as an attorney in California unless he or she was a member of the state bar at the time the services were rendered,
|
In California, practicing law without a license is a misdemeanor, id. (citing Cal. Bus. & Prof.Code §§ 6125, 6126(a)), and case law explicitly holds that “
|
3,911,344
| 11,784,213
|
2011-12-21
|
United States Court of Appeals for the Ninth Circuit
|
L.M. ex rel. Sam M. v. Capistrano Unified School District
|
L.M. ex rel. Sam M. v. Capistrano Unified School District, 462 F. App'x 745 (2011)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_5
|
in the discretion of the court.
|
” Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir.1987). The district court, affording the ALJ’s decision substantial weight, evaluated the ALJ’s finding and concluded that a preponderance of the evidence supported it. We agree. A preponderance of the evidence supported the district court and ALJ’s determination. The April IEP provided for an education plan uniquely tailored to address L.M.’s needs and was reasonably calculated to provide L.M. with a FAPE. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN GRANTING ATTORNEYS’ FEES TO THE PARENTS
The IDEA permits an award of attorneys’ fees to the prevailing party “
|
4,125,975
| 11,784,213
|
2009-07-01
|
United States Court of Appeals for the Fifth Circuit
|
Farve v. Potter
|
Farve v. Potter, 342 F. App'x 3 (2009)
|
1999-01-28
|
United States Court of Appeals for the Ninth Circuit
|
Z.A. v. San Bruno Park School District
|
Z.A. v. San Bruno Park School District, 165 F.3d 1273 (1999)
|
11784213_0
|
A person is or is not licensed to practice law in a particular forum. There is no halfway. If not licensed, one cannot practice in that forum, and cannot charge, or receive attorney’s fees for such services.
|
29 C.F.R. § 1614.403 (2009). The EEOC’s decision can only be reversed if its interpretation of the guidelines was "arbitrary or capricious.” Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402, 404 (5th Cir.1995). Farve has not even alleged much less presented evidence (1) that the EEOC's decision to dismiss her claim was arbitrary or capricious, or (2) that her untimely appeal was somehow justified. See id. Thus, because Farve failed to timely file her appeal to the EEOC, the Postmaster would have been entitled to summary judgment. See id.
3
. Although it is not necessary to our holding, we are compelled to note that this court does not condone the unauthorized practice of law. Farve has never been licensed to practice law in the state of Louisiana nor is she admitted to practice in this court or the United States District Court for the Eastern District of Louisiana. In the two forums where Farve is licensed (Texas and Washington D.C.), she is an inactive member of the bar associations. The fact that she is admitted to practice before the United States Supreme Court in no way gives her the right to practice law on a nationwide scale in the forum of her choosing. “A person is or is not licensed to practice law in a particular forum.
|
1,720,028
| 11,770,976
|
1999-04-13
|
United States Court of Appeals for the First Circuit
|
Hugel v. Milberg, Weiss, Bershad, Hynes & Lerach, LLP
|
Hugel v. Milberg, Weiss, Bershad, Hynes & Lerach, LLP, 175 F.3d 14 (1999)
|
1999-01-25
|
United States Court of Appeals for the First Circuit
|
Marbucco Corp. v. Suffolk Construction Co.
|
Marbucco Corp. v. Suffolk Construction Co., 165 F.3d 103 (1999)
|
11770976_0
|
It is inappropriate ... to use certification ‘when the course state courts would take is reasonably clear.’
|
See also Marbucco Corp. v. Suffolk Construction Co., 165 F.3d 103, 105 (1st Cir.1999) (“It is inappropriate... to use certification ‘when the course state courts would take is reasonably clear.
|
5,879,325
| 11,770,976
|
2008-10-06
|
United States Court of Appeals for the First Circuit
|
Ropes & Gray LLP v. Jalbert
|
Ropes & Gray LLP v. Jalbert, 544 F.3d 50 (2008)
|
1999-01-25
|
United States Court of Appeals for the First Circuit
|
Marbucco Corp. v. Suffolk Construction Co.
|
Marbucco Corp. v. Suffolk Construction Co., 165 F.3d 103 (1999)
|
11770976_0
|
the course [the] state court[ ] would take is reasonably clear.
|
In a case such as this, it is within our discretion either to “make our best guess on this de novo review issue” or to certify the question to the SJC. This is not a case in which “
|
3,936,875
| 11,770,976
|
2008-09-30
|
United States District Court for the Eastern District of Michigan
|
Grossman Tucker Perreault & Pfleger, LLC v. Collins & Aikman Corp. (In re Collins & Aikman Corp.)
|
Grossman Tucker Perreault & Pfleger, LLC v. Collins & Aikman Corp. (In re Collins & Aikman Corp.), 397 B.R. 820 (2008)
|
1999-01-25
|
United States Court of Appeals for the First Circuit
|
Marbucco Corp. v. Suffolk Construction Co.
|
Marbucco Corp. v. Suffolk Construction Co., 165 F.3d 103 (1999)
|
11770976_0
|
the course the state courts would take is reasonably clear.
|
CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that the Bankruptcy Court’s order granting the Debtors’ ninth omnibus objection to claims is AFFIRMED. IT IS FURTHER ORDERED that the motion to certify a question of law to the Supreme Court for the State of New Hampshire (docket # 4) is denied.
1
. In addition to its appeal from the Bankruptcy Court, Grossman Tucker moves for certification of the state law question to the Supreme Court of the State of New Hampshire. Specifically, the firm seeks to have the following question certified:
Whether New Hampshire Revised Statutes Annotated 311:13 grants an attorney a lien on a client’s intellectual property and patent rights that resulted from the legal services performed and expenses incurred by the attorney?
As discussed below, this issue can be resolved through application of statutory interpretation and analysis of analogous case law from both New Hampshire and other jurisdictions. Even if there is no clear guidance from the state court, certification is "neither mandated, nor always necessary.” Brown v. Argosy Gaming Co., L.P., 384 F.3d 413, 417 (7th Cir.2004). The decision is wholly within the discretion of the district Court. Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974).
Although there is no New Hampshire state court decision squarely addressing this issue, the New Hampshire courts have interpreted section 311:13 in other contexts. Although certification is generally appropriate where a federal court cannot, on available materials, make a confident guess as to how the stale’s highest court would construe the statute, Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960), it is not appropriate where "
|
3,937,639
| 11,770,976
|
2008-10-06
|
United States Court of Appeals for the First Circuit
|
Ropes & Gray LLP v. Jalbert (In re Engage, Inc.)
|
Ropes & Gray LLP v. Jalbert (In re Engage, Inc.), 544 F.3d 50 (2008)
|
1999-01-25
|
United States Court of Appeals for the First Circuit
|
Marbucco Corp. v. Suffolk Construction Co.
|
Marbucco Corp. v. Suffolk Construction Co., 165 F.3d 103 (1999)
|
11770976_0
|
the course [the] state court[ ] would take is reasonably clear.
|
In a case such as this, it is within our discretion either to “make our best guess on this de novo review issue” or to certify the question to the SJC. Boston Gas Co., 529 F. This is not a case in which “
|
155,619
| 11,785,706
|
2001-04-18
|
United States Court of Appeals for the Federal Circuit
|
Parker v. Office of Personnel Management
|
Parker v. Office of Personnel Management, 6 F. App'x 883 (2001)
|
1999-01-25
|
United States Court of Appeals for the Federal Circuit
|
Rosato v. Office of Personnel Management
|
Rosato v. Office of Personnel Management, 165 F.3d 1377 (1999)
|
11785706_0
|
authorizes [OPM] to comply with an appropriate court decree of divorce or property settlement of an employee who is entitled to payments pursuant to the Civil Service Retirement System.
|
Section 8345(j)(l) of 5 U.S.C. “
|
1,033,067
| 11,785,706
|
2002-09-24
|
United States Court of Appeals for the Federal Circuit
|
Bock v. Office of Personnel Management
|
Bock v. Office of Personnel Management, 47 F. App'x 576 (2002)
|
1999-01-25
|
United States Court of Appeals for the Federal Circuit
|
Rosato v. Office of Personnel Management
|
Rosato v. Office of Personnel Management, 165 F.3d 1377 (1999)
|
11785706_3
|
Under the regulations that govern this case, OPM is obligated to follow the dictates of the state appellate court decision (even when, as here, it knows that to do so contravenes the intent of the state court.)
|
For purposes of this subchapter, a modification in a decree, order, agreement, or election referred to in paragraph (1) of this subsection shall not be effective—
(A) if such modification is made after the retirement or death of the employee or Member concerned, and
(B) to the extent that such modification involves an annuity under this subsection.
To implement this statutory provision, OPM promulgated 5 C.F.R. § 838.806(b) (Amended court orders):
For purposes of awarding, increasing, reducing, or eliminating a former spouse survivor annuity, or explaining, interpreting, or clarifying a court order that awards, increases, reduces or eliminates a former spouse survivor annuity, the court order must be—
(1) Issued on a day prior to the date of retirement or date of death of the employee; or
(2) The first order dividing the marital property of the retiree and the former spouse.
Thus the statute and its implementing regulation clearly prohibit OPM from accepting the amended QDRO because it modified the survivor annuity provision of the original QDRO and was submitted after Bock’s date of retirement. See Vaccaro v. Office of Pers. Mgmt., 262 F.3d 1280 (2001) (rejecting a court order adding a survivor annuity to the original order dividing prop erty); cf. Newman v. Love, 962 F.2d 1008 (Fed.Cir.1992) (finding that a second court order awarding a former spouse survivor annuity was not a prohibited modification because the original order reserved ruling on division of property). See Hokanson v. Office of Pers. Mgmt, 122 F.3d 1043 (Fed.Cir.1997) (rejecting a “clarifying” court order issued after former husband’s death); Rosato v. Office of Pers. Mgmt., 165 F.3d 1377, 1381 (Fed.Cir.1999) (“
|
11,127,006
| 11,785,706
|
2001-03-20
|
United States Court of Appeals for the Federal Circuit
|
Perry v. Office of Personnel Management
|
Perry v. Office of Personnel Management, 243 F.3d 1337 (2001)
|
1999-01-25
|
United States Court of Appeals for the Federal Circuit
|
Rosato v. Office of Personnel Management
|
Rosato v. Office of Personnel Management, 165 F.3d 1377 (1999)
|
11785706_0
|
authorizes [OPM] to comply with an appropriate court decree of divorce or property settlement of an employee who is entitled to payments pursuant to the Civil Service Retirement System.
|
Perry v. Office of Pers. Mgmt., No. AT-0831-99-0006-I-1, slip op. at 4-5 (M.S.P.B. Mar.12, 1999) (Initial Decision). He held that the Florida judge’s oral statements and order at the hearing on the decree did not support Perry’s contrary interpretation of the decree. Under 5 U.S.C. § 8345(j)(l), annuity payments otherwise payable to a retired employee shall be paid to the employee’s former spouse
[i]f and to the extent expressly provided for in the terms of—
(A) any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation[.]
This provision “
|
11,127,006
| 11,785,706
|
2001-03-20
|
United States Court of Appeals for the Federal Circuit
|
Perry v. Office of Personnel Management
|
Perry v. Office of Personnel Management, 243 F.3d 1337 (2001)
|
1999-01-25
|
United States Court of Appeals for the Federal Circuit
|
Rosato v. Office of Personnel Management
|
Rosato v. Office of Personnel Management, 165 F.3d 1377 (1999)
|
11785706_1
|
To implement this statute, OPM has promulgated regulations that define when an order of divorce or property settlement is a ‘court order acceptable for processing.’ See 5 C.F.R. §§ 838.101(b)(1); 838.103; 838.301-838.306 (1997). The pertinent regulations specify that, to qualify for pro cessing by OPM, the court order must identify the retirement system under which the annuity exists and expressly state the portion to which the former spouse is entitled under the court order. See 5 C.F.R. § 838.303; see also 5 C .F.R. § 838.305 (portion must be stated as a fixed amount, percentage, or fraction, or formula calculable solely from face of court order). In the event OPM receives an application from a former spouse for benefits pursuant to a divorce decree, and the application fails to comply with the regulations defining an order acceptable for processing, OPM notifies the applicant of the specific reasons for disapproving the application. See 5 C.F.R. § 838.424 (1997). The applicant then has an opportunity to cure any error in the application and to reapply for benefits.
|
“To implement this statute, OPM has promulgated regulations that define when an order of divorce or property settlement is a ‘court order acceptable for processing.
|
1,113,108
| 11,785,706
|
2005-04-26
|
United States Court of Appeals for the Federal Circuit
|
Couvillion v. Office of Personnel Management
|
Couvillion v. Office of Personnel Management, 129 F. App'x 613 (2005)
|
1999-01-25
|
United States Court of Appeals for the Federal Circuit
|
Rosato v. Office of Personnel Management
|
Rosato v. Office of Personnel Management, 165 F.3d 1377 (1999)
|
11785706_0
|
authorizes [OPM] to comply with an appropriate court decree of divorce or property settlement of an employee who is entitled to payments pursuant to the Civil Service Retirement System.
|
If OPM determines that a decree is “acceptable for processing,” OPM notifies both the potential retiree and the former spouse that the order is “acceptable for processing” and that OPM must comply with the order. Id. OPM regulations also provide a method for challenging OPM’s determination pursuant to that provision. Id.; see also 5 C.F.R. § 838.1009 (2005). OPM notified Couvillion that it would honor the QDRO. Couvillion requested that OPM reconsider its decision, but was informed that OPM considered the QDRO “acceptable for processing.” Couvillion then appealed OPM’s decision to the Board, which affirmed. The initial decision of the Board became final on August 12, 2004, when the Board denied Couvillion’s petition for review. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of the Board is limited. The Board’s decision must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998).
OPM has promulgated regulations regarding the division of annuities between an employee and former spouse, including situations where the former spouse predeceases the employee:
(b) Except as otherwise provided in this subpart, OPM will honor a court order acceptable for processing or an amended court order acceptable for processing that directs OPM to pay, after the death of the former spouse, the former spouse’s share of the employee annuity to —...
(3) the estate of the former spouse.
5 C.F.R. § 838.237(b) (2005); see 5 C.F.R. § 838.1012(b) (2005).
Couvillion first argues that there is no statutory basis for 5 C.F.R. §§ 838.237(b) and 838.1012(b). 5 U.S.C. § 8345(j)(l) provides for the division of federal benefits between former spouses.
We have previously held that this section “
|
1,113,108
| 11,785,706
|
2005-04-26
|
United States Court of Appeals for the Federal Circuit
|
Couvillion v. Office of Personnel Management
|
Couvillion v. Office of Personnel Management, 129 F. App'x 613 (2005)
|
1999-01-25
|
United States Court of Appeals for the Federal Circuit
|
Rosato v. Office of Personnel Management
|
Rosato v. Office of Personnel Management, 165 F.3d 1377 (1999)
|
11785706_2
|
[p]ayments ... which would otherwise be made to an employee ... shall be paid ... to another person if ... expressly provided for in the terms of ... any court decree of divorce ..., or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce....
|
Vaccaro, 262 F.3d at 1287. Rather, this case involves 5 U.S.C. § 8345<j)(l), which provides that “[p]ayments... which would otherwise be made to an employee... shall be paid... to another person if... expressly provided for in the terms of... any court decree of divorce..., or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce....”
|
4,048,734
| 11,785,706
|
2009-08-24
|
United States Court of Appeals for the Federal Circuit
|
Hayward v. Office of Personnel Management
|
Hayward v. Office of Personnel Management, 578 F.3d 1337 (2009)
|
1999-01-25
|
United States Court of Appeals for the Federal Circuit
|
Rosato v. Office of Personnel Management
|
Rosato v. Office of Personnel Management, 165 F.3d 1377 (1999)
|
11785706_4
|
OPM will not look behind a state court divorce decree or property settlement order to ascertain the intent of the parties,
|
“If the evidence only dictates that the ‘clause refers to a CSRS survivor annuity — then it is legal error to conclude that the document has not “expressly provided for” the award of a survivor annuity’ as required by 5 U.S.C. § 8341(h)(1).” While we are mindful that “
|
11,582,807
| 11,781,059
|
1999-08-16
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Houston
|
United States v. Houston, 187 F.3d 593 (1999)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involve! ] conduct that presents a serious potential risk of physical injury to another,
|
If Houston’s escape is to be deemed a violent felony, it must “
|
11,582,807
| 11,781,059
|
1999-08-16
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Houston
|
United States v. Houston, 187 F.3d 593 (1999)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
If Houston’s escape is to be deemed a violent felony, it must “otherwise involve! ] conduct that presents a serious potential risk of physical injury to another,” as it fits under none of the other possible categories of crimes in the ACCA. The Fourth and Tenth Circuits are the only two circuits which have ruled on the issue, and both held that escape is a “violent felony” for purposes of the ACCA because it “
|
11,582,807
| 11,781,059
|
1999-08-16
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Houston
|
United States v. Houston, 187 F.3d 593 (1999)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
Id. at 323 (finding that although the Ohio kidnapping statute encompassed conduct which did not necessarily present a risk of injury to others, kidnapping was still a type of offense where the risk of physical injury to the victim is invariably present). Kaplansky also emphasized the import of the word “potential” in § 924(e)(2)(B)(ii).
United States v. Harris, 165 F.3d 1062, 1067 (6th Cir.1999), considered a statute making it a felony for:
any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony to escape or attempt to escape therefrom.
Harris held that a conviction for escape under the statute was a “crime of violence” for purposes of “career offender” sentencing under USSG § 4B1.1. See Harris, 165 F.3d at 1067-68. The portion of the § 4B1.2 definition used in Harris includes as a crime of violence one that “
|
11,665,092
| 11,781,059
|
1999-07-13
|
United States Court of Appeals for the Fifth Circuit
|
United States v. Ruiz
|
United States v. Ruiz, 180 F.3d 675 (1999)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
presenting] a serious potential risk of physical injury to another
|
” We rejected an identical argument in United States v. Shaw. Ruiz does not attempt to distinguish Shaw, rather, he urges that Shaw was wrongly decided. Even if we accepted this assertion, which we do not, this panel may not overrule or ignore a prior panel decision.
Next, Ruiz contends that the trial court erred in concluding that his escape constitutes a “crime of violence” “
|
11,123,976
| 11,781,059
|
2001-03-16
|
United States Court of Appeals for the Eighth Circuit
|
United States v. Nation
|
United States v. Nation, 243 F.3d 467 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_5
|
if the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense,
|
” United States v. Lee, 232 F.3d 653, 655 (8th Cir.2000). We view the evidence in the light most favorable to the verdict, accepting as established all reasonable inferences the evidence tends to prove. Id.
The only issue before the jury in this case was whether Nation knowingly possessed the firearm. Viewed in the fight most favorable to the verdict, the evidence introduced at trial proved that police located the firearm in an open armoire in Nation’s bedroom. The gun itself was in an open case, and numerous letters addressed to Nation were located in the room. This evidence, in addition to testimony suggesting that Nation initially asked Wright to obtain the gun, is sufficient to establish either actual or constructive possession of the firearm. To the extent that Nation urges us to reassess the credibility of witnesses at trial, we emphasize that credibility determinations are the province of the jury. United States v. Ireland, 62 F.3d 227, 230 (8th Cir.1995).
III. The court sentenced Nation pursuant to U.S.S.G. § 2K1.3, which provides for a base level of 20 “
|
11,123,976
| 11,781,059
|
2001-03-16
|
United States Court of Appeals for the Eighth Circuit
|
United States v. Nation
|
United States v. Nation, 243 F.3d 467 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_5
|
if the defendant has had at least two prior felony convictions of either a crime of violence or a controlled substance offense,
|
The court sentenced Nation pursuant to U.S.S.G. § 2K1.3, which provides for a base level of 20 “if the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense,” U.S.S.G. § 2K1.3(a)(2), and a base offense level of 24 “
|
11,123,976
| 11,781,059
|
2001-03-16
|
United States Court of Appeals for the Eighth Circuit
|
United States v. Nation
|
United States v. Nation, 243 F.3d 467 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
The court sentenced Nation pursuant to U.S.S.G. § 2K1.3, which provides for a base level of 20 “if the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense,” U.S.S.G. § 2K1.3(a)(2), and a base offense level of 24 “if the defendant has had at least two prior felony convictions of either a crime of violence or a controlled substance offense,” U.S.S.G. § 2K1.3(a)(1). In 1995, Nation was convicted in Arkansas state court of second degree escape. After examining the circumstances of the escape and determining that the only individual at risk was Nation himself, the district court concluded that it was not a crime of violence. Accordingly, the court assigned Nation a base offense level of 20, resulting in a sentencing range of 63 to 78 months’ imprisonment. The United States contends that under the guidelines escape is, categorically, a crime of violence and that Nation should have been assigned a base offense level of 24.
We review the district court’s interpretation and construction of the sentencing guidelines de novo. United States v. Snoddy, 139 F.3d 1224, 1227 (8th Cir.1998). The guidelines define a “crime of violence” as:
[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The only question here is whether the offense “
|
11,123,976
| 11,781,059
|
2001-03-16
|
United States Court of Appeals for the Eighth Circuit
|
United States v. Nation
|
United States v. Nation, 243 F.3d 467 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_2
|
variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees.
|
The issue before us, then, is whether the crime of escape, by its nature, involves a serious potential risk of physical injury to another. We conclude that it does, and accordingly we hold that escape is categorically a crime of violence as defined in U.S.S.G. § 4B1.2. As the Tenth Circuit observed, an escapee is likely to possess a “
|
11,123,976
| 11,781,059
|
2001-03-16
|
United States Court of Appeals for the Eighth Circuit
|
United States v. Nation
|
United States v. Nation, 243 F.3d 467 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.
|
Every escape, therefore, “
|
1,307,625
| 11,781,059
|
2001-08-28
|
United States Court of Appeals for the Tenth Circuit
|
United States v. Roybal
|
United States v. Roybal, 17 F. App'x 920 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_6
|
even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.
|
Integral to this holding is our reasoning that “
|
645,569
| 11,781,059
|
2004-03-16
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 361 F.3d 653 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
as an element the use, attempted use, or threatened use of physical force against the person of another.
|
Hill, 131 F.3d at 1062 (quoting Mathis, 963 F.2d at 408). In this case, because Smith’s and Cook’s escape indictments are devoid of detail, and Thomas’ indictments were never proffered to the court, the parties agree that we should look no further than the statutory language. See Taylor, 495 U.S. at 600, 110 S.Ct. at 2159; United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Pierce, 278 F.3d 282, 287 (4th Cir.2002). That is, the offenses defined by those statutes do not have “
|
645,569
| 11,781,059
|
2004-03-16
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 361 F.3d 653 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
U.S.S.G. § 4B1.2(a)(l) (emphasis added). Thus, the only remaining question is whether escape falls within the “otherwise” clause of § 4B1.2(a)(2): a crime that “
|
645,569
| 11,781,059
|
2004-03-16
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 361 F.3d 653 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
a serious potential risk of physical injury to another,
|
”) (emphasis added). Many concededly violent offenses can be hypothesized to take place in a manner that eliminates risk of injury: attempted murder, for example, becomes riskless if we assume that the sniper’s gun has no bullets. In so doing, they circumvent the definitional question posed by the guideline: whether, as a category (i.e., “by its nature”), escape involves conduct that presents “
|
9,374,329
| 11,781,059
|
2004-07-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Herrera
|
United States v. Herrera, 375 F.3d 399 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury to another.
|
”). Rather, their argument centers on the third method for identifying a crime of violence — whether the offense involves a “
|
9,374,329
| 11,781,059
|
2004-07-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Herrera
|
United States v. Herrera, 375 F.3d 399 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
presents a serious potential risk of physical injury to another,
|
” U.S.S.G. 4B1.2(a)(2).
The elements of Michigan Compiled Laws § 750.479b(2), disarming a police officer, are:
(a) The individual knows or has reason to believe the person from whom the firearm is taken is a peace officer or a corrections officer.
(b) The peace officer or corrections officer is performing his or her duties as a peace officer or a corrections officer.
(c) The individual takes the firearm without consent of the peace officer or corrections officer.
(d) The peace officer or corrections officer is authorized by his or her employer
to carry the firearm in the line of duty.
Defendant first focuses on the word “serious” in the phrase “
|
9,375,005
| 11,781,059
|
2004-07-20
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Moore
|
United States v. Moore, 376 F.3d 570 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
the remark was isolated and the district court gave an immediate curative instruction
|
The prior relationship between Moore and Pennington was relevant in proving that the two had a common plan to rob the bank. The explanation that Moore had Jewell purchase the gun because he was a convicted felon explained to the jury why Moore did not purchase the gun himself.
The situation in the present case is similar to that in United States v. Harris, where this court refused to reverse a conviction because a prosecution witness made a passing reference to the defendant’s pri- or arrest. 165 F.3d 1062 (6th Cir.1999). The witness, a law enforcement officer, testified that he had located the defendant by finding his address on a previous arrest record. Id. at 1065.
Id. at 1066; see also United States v. Stotts, 176 F.3d 880, 886-87 (6th Cir.1999) (holding that a district court properly denied the defendant’s request for a mistrial following a witness’s statement that the defendant had a “ ‘an extensive criminal record’ ” because “
|
1,003,136
| 11,781,059
|
2003-02-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Roberts
|
United States v. Roberts, 59 F. App'x 86 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_12
|
any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom ....
|
”); Salemo, 81 F.3d at 1464 (“The inability of a party to appeal from an adverse determination in the prior proceeding is a major factor to be considered [in determining whether there was full and fair opportunity].”) (citing Standefer, 447 U.S. at 22-24). We conclude that the district court was not collaterally estopped from making a legal finding contrary to its prior finding.
II. Whether Simple Escape is a “Crime of Violence”
We review de novo a district court’s determination that a defendant is a career offender for sentencing purposes. United States v. Wood, 209 F.3d 847, 849 (6th Cir.2000). The district court could find that Roberts was a career offender only if it first found that his Louisiana simple escape was a “crime of violence”:
The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding 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)... otherwise involves conduct that presents a serious potential risk of physical injury to another.
In Harris we considered a Tennessee statute that made it a felony for “any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom.... ”
|
1,003,136
| 11,781,059
|
2003-02-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Roberts
|
United States v. Roberts, 59 F. App'x 86 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_3
|
the crime of escape, by its nature, presents a serious potential risk of physical injury and thus constitutes a crime of violence,
|
We held that “
|
1,003,136
| 11,781,059
|
2003-02-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Roberts
|
United States v. Roberts, 59 F. App'x 86 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_8
|
involve[ ] conduct that presented] a serious potential risk of physical injury to another.
|
A separate provision in the same Louisiana statute forbids aggravated escape, “the intentional departure of a person... under circumstances wherein human life is endangered,” id. § 14:110(C)(1), and the penalty here is five to ten years at hard labor. Id. § 14:110(C)(2). This latter offense requires a finding, beyond a reasonable doubt, that the defendant’s conduct endangered human life.
Roberts argues that we should distinguish Harris, because in the present case the statute itself excludes situations where human life is in danger, and hence by looking only to the statute we can categorically find that the offense did not “
|
151,802
| 11,781,059
|
2001-03-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Watts
|
United States v. Watts, 7 F. App'x 526 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
(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 physical injury to another.
|
The supervising probation officer deemed both of Watts’s prior felony convictions to be “crime[s] of violence” for purposes of § 4B1.1, the career offender provision. With the application of the career offender provision, Watts’s effective guideline imprisonment range jumped from 220-245 months to 308-355 months. The district court sentenced Watts to a total term of 308 months. Watts’s appeal to this court followed.
II. ANALYSIS
A. Standard of Review
The district court’s factual findings for purposes of sentencing under the Guidelines are reviewed by this court for clear error. United States v. Jones, 159 F.3d 969, 980 (6th Cir.1998). Issues involving the interpretation of Guidelines provisions, however, are legal questions which this court reviews de novo. Id.
B. Is Escape a Crime of Violence?
The sole issue in Watts’s appeal is whether an escape from state-ordered confinement should be treated as a felony that is a crime of violence for purposes of § 4B1.1. As this circuit explained in Harris, a defendant must meet the following three requirements to be considered a career offender under § 4B1.1:
[T]he defendant must have been at least 18 years old when he committed the offense for which he is to be sentenced, that offense must have been a felony constituting either a “crime of violence” or a “controlled substance offense,” and the defendant must have had at least two prior felony convictions falling in one or the other of those categories.
Harris, 165 F.3d at 1067. Watts does not dispute that he has satisfied the first two criteria of the career offender provision, nor does he deny that the first of his two previous felonies was a “crime of violence,” as defined by § 4B1.2.
Under § 4B1.2, a felony conviction qualifies as a crime of violence if it “
|
151,802
| 11,781,059
|
2001-03-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Watts
|
United States v. Watts, 7 F. App'x 526 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
This case hinges upon whether an escape from confinement should be considered a crime that “
|
151,802
| 11,781,059
|
2001-03-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Watts
|
United States v. Watts, 7 F. App'x 526 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
that presents a serious potential risk of physical injury to another.
|
”
Watts argues that, because his escape from confinement was not violent in that he simply walked away from the Honor Camp, his escape should not be considered a crime “
|
151,802
| 11,781,059
|
2001-03-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Watts
|
United States v. Watts, 7 F. App'x 526 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_3
|
that the crime of escape, by its nature, presents a serious potential risk of physical injury and thus constitutes a crime of violence under § 4B1.2[(a)(2)].
|
” Id. This court has held, however, that a district court is not to engage in “a broad factual inquiry into” the defendant’s conduct in the course of the escape. Harris, 165 F.3d at 1068 (quotation omitted). Instead, this court has directed sentencing courts to take a categorical approach to determining whether the crime is violent in nature by focusing on the “statutory definition of the crime. Id.
Using the categorical approach, this circuit has held “
|
151,802
| 11,781,059
|
2001-03-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Watts
|
United States v. Watts, 7 F. App'x 526 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_6
|
‘Indeed, even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.’
|
Id.
Using the categorical approach, this circuit has held “that the crime of escape, by its nature, presents a serious potential risk of physical injury and thus constitutes a crime of violence under § 4B1.2[(a)(2)].” Id. In so doing, this court adopted the rationale of the Tenth and Fourth Circuit Courts of Appeals, which reasoned that all escape situations create a substantial risk of violence due to both the escapees’ “supercharged emotions” and their desire to avoid recapture. Id. (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994) and citing United States v. Dickerson, 77 F.3d 774, 776-77 (4th Cir.), cert. denied, 519 U.S. 843, 117 S.Ct. 126, 136 L.Ed.2d 76 (1996)). ‘Indeed, even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.
|
151,802
| 11,781,059
|
2001-03-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Watts
|
United States v. Watts, 7 F. App'x 526 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_12
|
any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom[.]
|
The defendant in Harris violated a Tennessee statute which made it a felony for "
|
160,551
| 11,781,059
|
2001-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 4 F. App'x 287 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
has as an element the use, attempted use, or threatened use of physical force against the person of another,
|
He was later apprehended without incident; charged with felony escape, in violation of California Code § 4532(b)(1); and sentenced to three years’ imprisonment, to be served concurrently with the manslaughter sentence.
It is undisputed that Defendant’s manslaughter conviction is a “crime of violence” within the meaning of U.S.S.G. § 4B1.2. Before us on appeal is whether the district court properly concluded that Defendant’s felony escape conviction is also a crime of violence. We find that the crime of escape is a qualifying conviction, and that Defendant’s conviction in the instant case — his third conviction for a crime of violence or a controlled substance offense — properly triggered application of U.S.S.G. § 4B1.1, the career offender provision of the Guidelines. The district court’s sentence of 202 months (reflecting a 60-month downward departure) was therefore appropriate.
II. DISCUSSION
We review de novo both a district court’s determination that a defendant is a career offender within the meaning of U.S.S.G. § 4B1.1, see United States v. Dolt, 27 F.3d 235, 237 (6th Cir.1994), and its determination that an offense is a “crime of violence,” as defined in U.S.S.G. § 4B1.2, see United States v. Arnold, 58 F.3d 1117, 1120 (6th Cir.1995). A defendant is a career offender if: (1) the defendant was at least eighteen years old at the time he committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. A prior felony conviction qualifies as a crime of violence if it is one of the offenses specifically enumerated in § 4B1.2; or it “
|
160,551
| 11,781,059
|
2001-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 4 F. App'x 287 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another,
|
A prior felony conviction qualifies as a crime of violence if it is one of the offenses specifically enumerated in § 4B1.2; or it “has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(l); or it “is burglary of a dwelling... or otherwise involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2).
|
160,551
| 11,781,059
|
2001-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 4 F. App'x 287 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
presents a serious potential risk of physical injury.
|
The crime of escape falls within the third subset of offenses, as it “
|
160,551
| 11,781,059
|
2001-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 4 F. App'x 287 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_6
|
even in a case where a defendant escapes from jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.
|
In reaching this conclusion, we expressly adopted the reasoning of the Tenth Circuit and noted that “
|
160,551
| 11,781,059
|
2001-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 4 F. App'x 287 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_11
|
we do not exclude the possibility that a limited inquiry into his actual conduct at the time of his escape ..., coupled with other relevant facts, might appropriately lead the sentencing court to conclude that a downward departure is warranted here.
|
Arnold, 58 F.3d at 1121. It is of no consequence for purposes of determining whether Defendant is a career offender that his escape conviction involved neither force nor violence, although, as we noted in Harris, “we do not exclude the possibility that a limited inquiry into his actual conduct at the time of his escape..., coupled with other relevant facts, might appropriately lead the sentencing court to conclude that a downward departure is warranted here.
|
160,551
| 11,781,059
|
2001-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 4 F. App'x 287 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_13
|
there might be cases in which some other type of limited factual inquiry would be appropriate,
|
165 F.3d at 1068. The district court, therefore, properly concluded that Defendant’s prior felony escape conviction was a “crime of violence” •within the meaning of U.S.S.G. § 4B1.2.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence of the district court in its entirety. We noted that "
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
as an element the use, attempted use, or threatened use of physical force against the person of another
|
The accompanying application note expands the list of enumerated offenses to include “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling” as “crimes of violence,” and reiterates that other offenses also count as “crimes of violence” if
(A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Because neither the Guideline nor its application note names fleeing and eluding as a crime of violence, that offense must either (1) have “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
present[ ] a serious potential risk of physical injury to another
|
Because neither the Guideline nor its application note names fleeing and eluding as a crime of violence, that offense must either (1) have “as an element the use, attempted use, or threatened use of physical force against the person of another” or (2) “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
the use, attempted use, or threatened use of physical force
|
In deciding whether an offense amounts to a “crime of violence” under these two tests, we have applied a “categorical approach,” which is to say we have looked at “the fact of conviction and the statutory definition of the predicate offense,” not the “underlying facts regarding the offense,” to determine whether either test is satisfied.3d 1117, 1121 (6th Cir.1995); see United States v. Champion, 248 F.3d 502, 505 (6th Cir.2001) (applying categorical approach in determining whether an offense has as an element “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury
|
3d 1117, 1121 (6th Cir.1995); see United States v. Champion, 248 F.3d 502, 505 (6th Cir.2001) (applying categorical approach in determining whether an offense has as an element “the use, attempted use, or threatened use of physical force”); United States v. Payne, 163 F.3d 371, 374 (6th Cir.1998) (applying categorical approach in determining whether an offense entails “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
the use, attempted use, or threatened use of physical force against the person of another,
|
A person commits the offense in the third-degree if the violation “results in a collision or accident,” if the violation “occurred in an area where the speed limit is 35 miles an hour or less” or if the defendant has a previous conviction for actual or attempted fourth-degree fleeing and eluding or similar misconduct. Id. § 750.479a(3). The charging document— which is described in the presentence report (in language to which the defendant did not object) — says that Martin committed the third-degree offense by causing “a collision or an accident” or by failing to stop while in a 35-mile-per-hour zone, or both.
Because fleeing and eluding does not have as an element “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
Because fleeing and eluding does not have as an element “the use, attempted use, or threatened use of physical force against the person of another,” the pertinent question is whether the offense “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
inherently presents the serious potential risk of physical injury
|
That Martin committed this offense either by causing a “collision or accident,” Mich. Comp. Laws § 750.479a(3)(a), or by fleeing in a 35-mile-per-hour zone (presumably a residential or school area), id. § 750.479a(3)(b), confirms the palpable risk of physical injury to others caused by flight under the statute.
At the same time that flight itself creates a risk of injury to others, so too does the suspect’s eventual apprehension. By making a deliberate choice to disobey a police officer, the motorist provokes an inevitable, escalated confrontation with the officer. In this regard, fleeing and eluding resembles escape, see Howze, 343 F.3d at 921-22; United States v. James, 337 F.3d 387, 391 n. 4 (4th Cir.2003), which nine courts of appeals (including this one) have agreed constitutes a “crime of violence” under the Guidelines, regardless of whether the defendant forcefully escaped from a maximum security prison or walked away from a halfway house. See United States v. Thomas, 361 F.3d 653, 656 & n. 4 (D.C.Cir.2004) (citing cases); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999). Such a confrontation “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury to another,
|
United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996).
Indeed, fleeing and eluding in most settings will pose a greater risk of injury than escape. Howze, 343 F.3d at 922. While an escape and fleeing alike involve the potential for dangerous confrontation between the suspect and police officers, not all escapes involve flight and the inherent third-party risks that such conduct entails. Id. Because fleeing and eluding an officer while in a car generally will present serious potential risks of physical injury to third parties- — the only relevant inquiry— it necessarily qualifies as a “crime of violence” under the Guidelines. See Howze, 343 F.3d at 921-22 (determining that the offense of fleeing from an officer under Wisconsin law presents a “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
presents a serious potential risk of physical injury to another
|
While Howze and James concluded that fleeing from an officer in a car “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury to another
|
The relevant language of the two provisions — “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury
|
The Guideline defines offenses presenting a “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
may or may not explode into violence and result in physical injury
|
”) (quotation omitted); Payne, 163 F.3d at 375 (noting that “under the categorical approach” it is not relevant whether a “physical injury actually occurred in the case at bar”); Gosling, 39 F.3d at 1142 (acknowledging that escape “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
always has the serious potential to do so
|
”) (quotation omitted); Payne, 163 F.3d at 375 (noting that “under the categorical approach” it is not relevant whether a “physical injury actually occurred in the case at bar”); Gosling, 39 F.3d at 1142 (acknowledging that escape “may or may not explode into violence and result in physical injury” but “
|
9,214,427
| 11,781,059
|
2004-07-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Martin
|
United States v. Martin, 378 F.3d 578 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury
|
To require crimes of violence in all fact patterns to lead to a violent or harmful end not only would ignore our categorical approach to this inquiry, but it also would read the “
|
9,269,638
| 11,781,059
|
2004-04-09
|
United States Court of Appeals for the First Circuit
|
United States v. Winn
|
United States v. Winn, 364 F.3d 7 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
as an element the use, attempted use, or threatened use of physical force against the person of another,
|
Id. at 23 n. 5.
The New Hampshire escape statute under which Winn was charged provides as follows:
I. A person is guilty of an offense if he escapes from official custody.
II. “Official custody” means arrest, custody in a penal institution, an institution for confinement of juvenile offenders or other confinement pursuant to an order of a court.
III. The offense is a class A felony if the actor employs force against any person or threatens any person with a deadly weapon to effect the escape, except that if the deadly weapon is a firearm, he shall be sentenced in accordance with RSA 651:2, Il-g. Otherwise it is a class B felony.
N.H.Rev.Stat. Ann. § 642:6. The statute thus distinguishes between Class A and Class B felony escapes based on the use of force or of a deadly weapon. The government concedes that the Class B felony of which Winn was charged does not have “
|
9,269,638
| 11,781,059
|
2004-04-09
|
United States Court of Appeals for the First Circuit
|
United States v. Winn
|
United States v. Winn, 364 F.3d 7 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury • to another.
|
The government concedes that the Class B felony of which Winn was charged does not have “as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(l), but argues that the charged offense “
|
9,269,638
| 11,781,059
|
2004-04-09
|
United States Court of Appeals for the First Circuit
|
United States v. Winn
|
United States v. Winn, 364 F.3d 7 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another
|
Our sister circuits have uniformly held that, as a categorical matter, any escape, however effected, “
|
9,269,638
| 11,781,059
|
2004-04-09
|
United States Court of Appeals for the First Circuit
|
United States v. Winn
|
United States v. Winn, 364 F.3d 7 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
every escape involves a serious potential risk of physical injury to another
|
United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002)(failure to report back to halfway house constitutes a crime of violence because “
|
9,269,638
| 11,781,059
|
2004-04-09
|
United States Court of Appeals for the First Circuit
|
United States v. Winn
|
United States v. Winn, 364 F.3d 7 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential risk of physical injury to another.
|
Circuit courts that have addressed the analogous question of whether an escape conviction qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”) have similarly applied the categorical Taylor analysis to conclude that escape, by its nature, involves “
|
9,269,638
| 11,781,059
|
2004-04-09
|
United States Court of Appeals for the First Circuit
|
United States v. Winn
|
United States v. Winn, 364 F.3d 7 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_6
|
even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.
|
Indeed, the Supreme Court of New Hampshire has noted that “[t]he all-encompassing definition of ‘official custody’ in RSA 642:6 strongly supports an inference that the statute... was intended to govern escapes of all kinds,” regardless of the institution or type of confinement. We agree with our sister circuits that “
|
9,269,638
| 11,781,059
|
2004-04-09
|
United States Court of Appeals for the First Circuit
|
United States v. Winn
|
United States v. Winn, 364 F.3d 7 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another,
|
Thus, as a categorical matter, a Class B felony escape under N.H.Rev.Stat. Ann. 642:6 “
|
2,223,816
| 11,781,059
|
2004-08-24
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Hughes
|
United States v. Hughes, 107 F. App'x 610 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_1
|
escape is a crime of violence,
|
” U.S.S.G. § 2K2.1(a)(4)(A). The PSR added 2 levels because the firearm was stolen and then subtracted 3 levels for acceptance of responsibility. Hughes’ total offense level, according to the PSR, was 19 and his Criminal History Category was VI based on Hughes’ prior adult criminal convictions. Given these calculations, the PSR concluded that Hughes faced a Sentencing Guideline range of 63 to 78 months.
Hughes objected to the PSR, arguing that his prior escape conviction did not constitute a crime of violence. In an addendum to Hughes’ objection, the Probation Office disagreed, citing United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999), in which this Court said that, under a “categorical” approach, an escape conviction is a conviction for a “crime of violence” for purposes of the Sentencing Guidelines. The Probation Office also noted that, contrary to Hughes’ contention, he was not entitled to have his offense level computed pursuant to the “lawful sporting purposes” provision because he had previously committed a crime of violence.
At the September 5, 2003 sentencing, the district court agreed with the PSR that under Harris, “
|
252,269
| 11,781,059
|
2003-12-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Medley
|
United States v. Medley, 85 F. App'x 410 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
it has as an element the use, attempted use, or threatened use of physical force against the person of another
|
He also notes that the statute defining the offense does not contain as an element the use or threatened use of violence.
Medley’s argument lacks merit. While this court gives due deference to a district court’s application of the Sentencing Guidelines to the facts, it reviews de novo a district court’s legal conclusion as to whether the facts warrant application of a particular guideline. See United States v. Comer, 93 F.3d 1271, 1278 (6th Cir.1996). A defendant is subject to enhanced penalties as a career offender under the guidelines if: 1) he was at least 18 years old at the time of the instant offense; 2) the instant offense is a felony that is either a crime of violence or one involving a controlled substance; and 3) the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. See USSG § 4B1.1; United States v. Coleman, 964 F.2d 564, 565-66 (6th Cir.1992). A crime of violence is any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that involves conduct that presents a serious potential risk of physical injury to anothei*. See USSG § 4B1.2.
The district court properly sentenced Medley as a career offender. It is undisputed that Medley meets the first two criteria for sentencing as a career offender, as he was at least eighteen years of age at the time of the instant offense, and his current offense is a felony crime of violence. A prior felony conviction qualifies as a crime of violence if the crime meets any of the following three criteria: it is one of the crimes specifically enumerated in § 4B1.2, or “
|
252,269
| 11,781,059
|
2003-12-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Medley
|
United States v. Medley, 85 F. App'x 410 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another
|
A prior felony conviction qualifies as a crime of violence if the crime meets any of the following three criteria: it is one of the crimes specifically enumerated in § 4B1.2, or “it has as an element the use, attempted use, or threatened use of physical force against the person of another” (§ 4B1.2(a)(1)), or it “is burglary of a dwelling... or otherwise involves conduct that presents a serious potential risk of physical injury to another” (§ 4B1.2(a)(2)).
|
2,539,557
| 11,781,059
|
2007-01-09
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Chambers
|
United States v. Chambers, 473 F.3d 724 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
POSNER, Circuit Judge.
The defendant pleaded guilty to being a felon in possession of a firearm. The judge, finding that the defendant had committed three crimes of violence previously, sentenced him to 188 months as an armed career criminal. 18 U.S.C. § 924(e). The answer depends on whether escape “
|
2,539,557
| 11,781,059
|
2007-01-09
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Chambers
|
United States v. Chambers, 473 F.3d 724 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
” 720 ILCS 5/31-6(a). The defendant’s escape was in the latter category — failing to report to a penal institution.
As an original matter, one might have doubted whether failing to report to prison, as distinct from escaping from a jail, prison, or other form of custody, was a crime that typically or often “
|
2,539,557
| 11,781,059
|
2007-01-09
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Chambers
|
United States v. Chambers, 473 F.3d 724 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_2
|
every escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.... A defendant who escapes from a jail is likely to possess a variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees---- [E]ven in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious risk that injury will result when officers find the defendant and attempt to place him in custody.
|
The sentencing judge would not have to dig beneath the charging document or the other, limited evidence on which a judge is permitted by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), to decide which bin a conviction for escape belonged in.
But we shrink from trying to overrule a decision that is only a few months old (Golden was decided on October 25, 2006), that tracked an earlier and materially identical decision of this court (Bryant), and that has overwhelming support in the decisions of the other circuits. The defendant has not presented us with arguments or evidence that were overlooked or unavailable in the previous cases. He cites us to United States v. Hagenow, 423 F.3d 638, 644-45 (7th Cir.2005), which held that because the offense of “confinement” in Indiana can be committed without endangering the person confined, the sentencing judge has to look behind the label of the defendant’s conviction to see whether his conduct endangered anyone. But the defendant in this case is not asking for a deeper investigation into the circumstances of his failure to report. He is asking us to carve out noncustodial from custodial escape, and that is the move rejected in Bryant and Golden, as well as in the cases we cited from other circuits.
We shall adhere to the precedents for now. The head of the line of cases that lump all escapes together, United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994), states in colorful language quoted in many of the subsequent cases that “every escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so....
|
3,553,045
| 11,781,059
|
2008-03-17
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Goodman
|
United States v. Goodman, 519 F.3d 310 (2008)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
[e]very escape scenario is a powder keg, which may or may not ex plode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so,
|
Tenn.Code Ann. § 39-16-601(4).
We have previously considered Tennessee’s escape statute within the context of the categorical approach. In that case, we stated that “
|
3,972,493
| 11,781,059
|
2007-01-24
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Howard
|
United States v. Howard, 216 F. App'x 463 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
has as an element the use, attempted use, or threatened use of physical force against the person of another
|
Here, defendant admitted that the firearm and ammunition traveled in interstate commerce and that he had previously been convicted of a felony. Contrary to defendant’s argument, the fact that the firearms and ammunition were found in his home was not the only evidence of possession. The government also presented testimony from Lila Howard that she and defendant fired the rifle on September 5, 2001. Although defendant argues that Lila Howard was not credible, it is not for us to assess credibility. Viewing the evidence in the light most favorable to the government, it was sufficient to establish possession.
C. Sentencing and Appellate Issues
1. Armed Career Criminal
Defendant argues that the district court erred in sentencing him as an armed career criminal because his three Kentucky state convictions for escape were not of a violent nature, were too remote in time from the instant offense, and were not separate in time from each other. We review this issue de novo. United States v. Maness, 23 F.3d 1006, 1008 (6th Cir.1994).
The Armed Career Criminal Act (ACCA) provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). The term “violent felony” is statutorily defined as any crime that “
|
6,047,208
| 11,781,059
|
2007-12-13
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Bailey
|
United States v. Bailey, 510 F.3d 562 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
every escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.
|
If, however, the categorical approach fails to be determinative, a sentencing court may look to the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,” Shepard, 125 S.Ct. at 1257, in order to determine whether the prior crime qualifies as a controlled substance offense. See also Galloway, 439 F.3d 320, at 323 (noting that although Shepard applied to review under the Armed Career Criminal Act, it “[b]y extension” applies to review under Guideline section 4B1.1).
In the present case, the categorical approach is determinative, and the appellate record does not include the charging documents or other court records pertaining to the escape conviction. In doing so, we explicitly adopted the Tenth Circuit’s rationale from United States v. Gosling, 39 F.3d 1140 (10th Cir.1994), which emphasized that “
|
3,666,650
| 11,781,059
|
2006-08-02
|
United States District Court for the Northern District of Ohio
|
Rhodes v. United States
|
Rhodes v. United States, 443 F. Supp. 2d 893 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_5
|
either a crime of violence or a controlled substance offense.
|
” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).
III. ANALYSIS
The Petitioner challenges his sentence on two basic grounds. First, the Petitioner argues that the Court incorrectly calculated the offense level and criminal history points. Second, the Petitioner claims that his counsel’s failure to object to these calculations at the Petitioner’s sentencing and to raise these issues on appeal amounts to ineffective assistance of counsel in violation of the Sixth Amendment. With his report and recommendation, Magistrate Judge Limbert found that the Court correctly calculated the offense level and criminal history points for the purpose of sentencing. Accordingly, the Magistrate also found that the Petitioner’s counsel was not ineffective for failing to object to the Court’s calculations. The Court reviews the Petitioner’s motion for relief de novo.
A. Offense Level
At sentencing, the Court set the total offense level at twenty-two, after calculating a base offense level of twenty and adding a two level increase for obstruction of justice. The Petitioner challenges both the base offense level and the two-point enhancement.
1. Base Offense Level
Relying on the presentence investigation report (“PSR”) prepared by United States Probation Office, this Court set the Petitioner’s base offense level at twenty pursuant to U.S. Sentencing Guideline § 2K2. 1(a)(4)(A). According to § 2K2. 1(a)(4)(A), the Court must impose a base offense level of twenty for such a violation, where the defendant has a prior felony conviction for “
|
3,666,650
| 11,781,059
|
2006-08-02
|
United States District Court for the Northern District of Ohio
|
Rhodes v. United States
|
Rhodes v. United States, 443 F. Supp. 2d 893 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_3
|
serious potential risk of physical injury and thus constitutes a crime of violence under § 4B1.2.
|
” U.S. Sentencing Guidelines Manual § 2K2. 1(a)(4)(A) (2002).
In the instant case, the Petitioner claims that he does not have any prior convictions that would qualify him for a base offense level of twenty. In response, the government argues that the Petitioner’s past conviction for escape qualifies as a crime of violence. The federal sentencing guidelines define “crime of violence” as:
any offense under federal or state law, punishable by imprisonment for a term exceeding 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 physical injury to another. While § 4B1.2(a) does not include escape as one of the enumerated examples, the Sixth Circuit has held that escape carries a “
|
3,666,650
| 11,781,059
|
2006-08-02
|
United States District Court for the Northern District of Ohio
|
Rhodes v. United States
|
Rhodes v. United States, 443 F. Supp. 2d 893 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
[e]very escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so
|
” United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999).
In November 2001, a Summit County, Ohio Grand Jury issued an indictment charging Petitioner Rhodes with one count of escape, a felony of the third degree, in violation of Ohio Rev.Code § 2921.34(A). On February 14, 2002, Rhodes pled guilty to a lesser included fourth degree felony offense of escape and the Summit County Court of Common Pleas sentenced him to a sixth-month term of imprisonment.
The Petitioner now argues that this conviction should not qualify as a violent crime because it was a mere “walk-away” escape and the incident did not involve a violent altercation or result in injury to anyone. According to the Petitioner, Harris commands this Court to examine a defendant’s actual conduct at the time of his escape to determine whether or not his escape conviction qualified a crime of violence.
To the contrary, the Sixth Circuit in Harris, 165 F.3d at 1068, held that the crime of escape is categorically a crime of violence, stating as follows:
the district court was not free to conduct a “broad factual inquiry” into what Mr. Virges actually did in the course of his escape.... The approach to be followed by a sentencing court, rather, is “categorical” in nature; it requires the court to base its determination on the statutory definition of the crime. In holding as such, the Sixth Circuit adopted the Tenth Circuit’s reasoning that “
|
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