Filed: Feb. 08, 2010
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 10a0027p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 08-6181 v. , > - Defendant-Appellant. - JAMES ROGERS, - N Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 07-20364-001—Jon Phipps McCalla, Chief District Judge. Argued: December 3, 2009 Decided and Filed: February 8, 2010 * Before: GRIFFI
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 10a0027p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 08-6181 v. , > - Defendant-Appellant. - JAMES ROGERS, - N Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 07-20364-001—Jon Phipps McCalla, Chief District Judge. Argued: December 3, 2009 Decided and Filed: February 8, 2010 * Before: GRIFFIN..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 08-6181
v.
,
>
-
Defendant-Appellant. -
JAMES ROGERS,
-
N
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 07-20364-001—Jon Phipps McCalla, Chief District Judge.
Argued: December 3, 2009
Decided and Filed: February 8, 2010
*
Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.
_________________
COUNSEL
ARGUED: Mary Catherine Jermann-Robinson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. G. Kirby May, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF:
Mary Catherine Jermann-Robinson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. G. Kirby May, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
KETHLEDGE, Circuit Judge. James Rogers pled guilty to being a felon in
possession of a firearm, 18 U.S.C. § 922(g), and now challenges his sentence. Because
*
The Honorable James G. Carr, Chief United States District Judge for the Northern District of
Ohio, sitting by designation.
1
No. 08-6181 United States v. Rogers Page 2
the district court correctly calculated Rogers’s advisory range under the Sentencing
Guidelines, we affirm.
I.
In May 2007, Memphis police received reports that stolen vehicles were stored
outside Rogers’s home. They responded by sending a confidential informant to the
property. Upon returning, the informant said he had seen a stolen Chevrolet Corvette
there. He added that Rogers had a pistol with him and was about to leave the residence
as a passenger in a white pickup truck.
The officers stopped the vehicle as it pulled away from Rogers’s home, and
arrested him pursuant to an outstanding warrant from Mississippi. Upon searching the
vehicle, they found a loaded .22-caliber pistol. Rogers admitted the gun was his.
Soon thereafter, Rogers’s live-in girlfriend consented to a search of Rogers’s
home. Officers found the stolen Corvette in a shed at the rear of Rogers’s property, and
also found parts from a stolen Chevrolet Blazer in Rogers’s garage. They later found the
Blazer’s hull, with its vehicle identification number removed, at another residence on the
same street.
Rogers had a long criminal record, including several convictions for state felony
offenses. Federal prosecutors therefore charged him with being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g). He pled guilty to the charge.
Using the 2007 version of the Sentencing Guidelines, the district court assigned
Rogers a base-offense level of 20 because he had committed a prior “crime of violence.”
See U.S.S.G. § 2K2.1(a)(4)(A). The court added a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6), finding that Rogers had possessed the firearm “in connection
with another felony offense.” The court then applied a three-level downward adjustment
for acceptance of responsibility. The resulting total offense level of 21 and Rogers’s
criminal history category of VI yielded an advisory range under the Guidelines of 77 to
96 months’ imprisonment. The district court overruled Rogers’s objections to the
No. 08-6181 United States v. Rogers Page 3
calculation of his base-offense level and the § 2K2.1(b)(6) enhancement, and sentenced
him to 86 months’ imprisonment.
This appeal followed.
II.
A.
Rogers first argues that the district court erred in assigning him a base-offense
level of 20 because he committed his felon-in-possession offense after “sustaining one
felony conviction of . . . a crime of violence.” U.S.S.G. § 2K2.1(a)(4)(A). We review
de novo the district court’s conclusion that a particular offense qualifies as a crime of
violence. See United States v. Bass, 315 F.3d 561, 564-65 (6th Cir. 2002).
The Guidelines define “crime of violence” to include any felony that “has as an
element the use, attempted use, or threatened use of physical force against the person of
another” or “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.” U.S.S.G. § 4B1.2(a). An offense qualifies as a crime of violence under the
residual clause—i.e., as one that “otherwise involves conduct that presents a serious
potential risk of physical injury to another”—if it is “roughly similar, in kind as well as
in degree of risk posed,” to the enumerated offenses. Begay v. United States, 553 U.S.
137,
128 S. Ct. 1581, 1585 (2008) (construing the definition of “violent felony”
contained in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)); see also
United States v. Bartee,
529 F.3d 357, 363 (6th Cir. 2008) (observing that the Armed
Career Criminal Act’s definition of “violent felony” and the Guidelines’ definition of
“crime of violence” are construed in a consistent manner, and applying Begay to the
latter). Thus, the crime must be similar to the listed offenses not only in the degree of
risk posed but also in the sense that it involves “purposeful, violent, and aggressive
conduct.”
Begay, 128 S. Ct. at 1586.
In determining whether a particular offense meets this standard, we begin with
a “categorical approach,” which “look[s] only to the fact of conviction and the statutory
No. 08-6181 United States v. Rogers Page 4
definition—not the facts underlying the offense.” Bartee, 529 F.3d at 359. When the
prior conviction was entered via a guilty plea, we may also look to “the terms of the
charging document, the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information.” Shepard v.
United States,
544 U.S. 13, 26 (2005); see also
Bartee, 529 F.3d at 359.
Based on the record before us, Rogers’s criminal history contains two candidate
offenses: a conviction for reckless endangerment with a deadly weapon, see Tenn. Code.
Ann. § 39-13-103, and a conviction for evading arrest in a motor vehicle. See id. § 39-
16-603(b)(1). Both convictions were entered via guilty pleas and arose out of a single
incident in which Rogers sped away from a traffic stop, nearly hitting a police officer
with his vehicle.
The district court held that the reckless-endangerment conviction fit into the
residual clause of § 4B1.2(a). That conclusion was correct under this court’s case law
at the time of Rogers’s sentencing hearing, see United States v. Rutledge, 33 F.3d 671,
674 (6th Cir. 1994), but was rendered incorrect by our subsequent decision in United
States v. Baker,
559 F.3d 443, 453 (6th Cir. 2009). The government does not dispute the
point. Accordingly, we hold that Rogers’s reckless-endangerment conviction was not
a crime of violence.
That leaves Rogers’s conviction for evading arrest. The statute under which
Rogers was convicted makes it a felony “for any person, while operating a motor vehicle
on any street, road, alley or highway[,] . . . to intentionally flee or attempt to elude any
law enforcement officer, after having received any signal from the officer to bring the
vehicle to a stop.” Tenn. Code Ann. § 39-16-603(b)(1). Although this court has not
specifically addressed whether § 39-16-603 describes a crime of violence, we recently
held in United States v. Young, 580 F.3d 373 (6th Cir. 2009), that a similarly worded
Michigan statute does. See
id. at 381. The statute there made it a crime for a driver,
when directed to stop by a police officer, to “willfully fail to obey” by “attempting to
flee or elude[,]” among other things. Mich. Comp. Laws § 257.602a(1). We reasoned
No. 08-6181 United States v. Rogers Page 5
that a conviction under this statute involves purposeful, aggressive, and violent conduct,
and “poses a serious potential risk of physical injury to others.”
Young, 580 F.3d at 377-
78.
Young governs here. The Tennessee offense’s requirement of intentional conduct
is, for our purposes, no different than the Michigan statute’s requirement of willful
conduct. And the Tennessee offense’s actus reus—“flee[ing] or attempt[ing] to
elude”—is indistinguishable from that of the Michigan statute, which criminalizes
“attempting to flee or elude.” Rogers’s evading-arrest offense was therefore a crime of
violence.
That conclusion holds regardless of whether Rogers’s evading-arrest offense was
a Class E or a more serious Class D felony under Tennessee law. The record is
ambiguous on this point, and Rogers is correct that only the Class D felony requires a
showing that the defendant’s conduct “create[d] a risk of death or injury to innocent
bystanders or other third parties.” Tenn. Code Ann. § 39-16-603(b)(3). But whether or
not a defendant’s flight poses a risk to third parties, it will “nearly always pose a
substantial danger to . . . pursuing officers.” Young, 580 F.3d at 378; see also United
States v. Harrimon,
568 F.3d 531, 536 (5th Cir. 2009) (noting the “marked likelihood
of pursuit and confrontation” associated with fleeing from the police in a motor vehicle).
Moreover, for an offense to qualify as a crime of violence, it need only create a “serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (emphasis added).
“[O]ffenders typically attempt to flee by any means necessary,”
Young, 580 F.3d at 378,
and in the ordinary case, “an offender fleeing from an attempted stop or arrest will not
hesitate to endanger others” in order to escape.
Harrimon, 568 F.3d at 536. As a
categorical matter, the decision to flee thus carries with it the requisite potential risk,
even if the resulting chase does not escalate so far as to create the actual risk of death or
injury that would make it a Class D felony under Tennessee law. Contrary to Rogers’s
suggestion, therefore, we need not remand the case to sort out this issue.
Finally, Rogers appears to argue that, since both of his candidate offenses arose
from the same conduct, we ought to consider their elements in pari materia for purposes
No. 08-6181 United States v. Rogers Page 6
of determining whether they are crimes of violence. Thus, Rogers says, evading arrest
cannot be a crime of violence because the dangerousness of his conduct was already an
element of his reckless-endangerment conviction. The short answer to this argument is
that we reject its premise: That one offense posed a serious potential risk of injury does
not mean that another offense based on the same conduct cannot. Moreover, the
required risk need not itself be an element of the offense; instead, the elements must only
describe conduct that in turn creates that risk. For the reasons already stated, Rogers’s
evading-arrest conviction meets that test.
B.
Rogers separately argues that the district court erred in applying a four-level
enhancement under § 2K2.1(b)(6) of the Guidelines. That enhancement is appropriate
if the district court finds by a preponderance of the evidence that the defendant “used or
possessed [a] firearm . . . in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6); United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006). In this context,
we review the district court’s factual findings for clear error. See United States v. Burke,
345 F.3d 416, 426-27 (6th Cir. 2003).
Here, the district court concluded that Rogers operated a motor-vehicle chop
shop at his residence, specifically finding that Rogers had stored parts from the stolen
Chevrolet Blazer there in order to resell them later. The record amply supports those
findings; and they were in turn sufficient to establish a violation of Tennessee’s Motor
Vehicle Chop Shop Act, which makes it a felony to “knowingly own, operate or conduct
a chop shop.” Tenn. Code Ann. § 55-5-203(a)(1); see also id. § 55-5-202(1) (defining
“[c]hop shop” to include any “premises where one . . . or more persons knew, or should
have known, that they were engaged in . . . storing any motor vehicle or motor vehicle
component part that was obtained by theft, or any other unlawful means to . . . [s]ell or
dispose of the motor vehicle or motor vehicle component part”). Indeed, Rogers does
not seriously dispute that his conduct fell within the terms of the Tennessee statute.
The issue, then, is whether Rogers possessed the gun in connection with his
felony chop-shop offense. A firearm is possessed in connection with another offense if
No. 08-6181 United States v. Rogers Page 7
it “facilitated, or had the potential of facilitating” the other offense. U.S.S.G. § 2K2.1,
Application Note 14(A). To justify a § 2K2.1(b)(6) enhancement, therefore, the
government need only “establish that there was a nexus between the firearm and the
other felony offense that is more than coincidental.” United States v. Huffman, 461 F.3d
777, 788 (6th Cir. 2006).
Rogers contends that the government failed to meet this burden, emphasizing that
he was arrested with the gun as he traveled away from his home. But the record shows
that Rogers had possessed the gun at home, since he had just left there when he was
arrested with it and the confidential informant said that Rogers had the gun with him
when he left. Rogers’s residence, of course, is where the chop shop was; and the district
court found that the gun had the potential to facilitate Rogers’s offense when he
possessed it there. The court reasoned that chop-shop customers are by definition not
law-abiding; that Rogers could not call the police if a transaction turned violent, or if a
customer decided to steal his parts rather than pay for them; and that Rogers’s gun
helped protect against those dangers, thereby facilitating his illegal operation. One
might agree with those findings, or not—but in our judgment they were not clearly
erroneous.
The district court’s judgment is affirmed.
