United States v. Wise

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH March 9, 2010
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 08-4033
MICHAEL CHARLES WISE,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:07-cr-00556-DAK-1)

Jeremy M. Delicino, Salt Lake City, Utah, for Defendant-Appellant.

Karin M. Fojtik, Assistant United States Attorney (Brett L. Tolman, United States
Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.
 Having pleaded guilty to being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1), Michael Charles Wise now appeals his sentence of forty-eight

months’ imprisonment. He challenges his sentence on two grounds. First, he argues that

his 2006 Utah conviction for failure to stop at the command of a police officer was not a

“crime of violence” for purposes of United States Sentencing Guidelines (“U.S.S.G.”)

§ 2K2.1(a)(4)(A), and thus did not qualify him for a base offense level of twenty.

Second, he argues that because the Presentence Investigation Report (“PSR”) did not

assign him criminal history points for his 2006 conviction, the district court could not use

that conviction—under the application notes to § 2K2.1—to raise his base offense level.

Exercising jurisdiction under 28 U.S.C. § 1291, we reject both arguments, and AFFIRM

Wise’s sentence.

Background

On August 22, 2007, Wise was charged in a one-count indictment with being a

previously-convicted felon in possession of a nine millimeter Smith & Wesson handgun,

in violation of 18 U.S.C. § 922(g)(1). 1 On November 27, 2007, Wise pleaded guilty to

the offense.

1
The statute forbids “any person . . . who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year . . . [from] possess[ing] in or
affecting commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(1).

2
 In the PSR, the Probation Office recommended that Wise be sentenced under

USSG § 2K2.1(a)(4)(a),2 which prescribes a base offense level of twenty for defendants

convicted of being felons unlawfully in possession of a firearm who have also been

previously convicted of a felony crime of violence. According to the PSR, in April of

2006 Wise was convicted in Utah state court for failing to stop in response to a police

officer’s command to do so, which under Utah Code § 41-6A-210 is a third-degree

felony. Wise was sentenced to 180 days’ imprisonment for this violation. The PSR did

not assign Wise any criminal history points for this conviction; even so, his criminal

history score totaled fourteen, one point more than the thirteen points required to qualify

him for the highest criminal history category, VI.

At sentencing, Wise objected to the PSR in two respects: (1) that his 2006

conviction did not qualify as a crime of violence under USSG § 2K2.1(a)(4)(A); and (2)

that, under application note 10 to § 2K2.1, the court should not have applied an

enhancement to Wise’s offense level based on a prior conviction for which he did not

receive criminal history points.3 The district court denied Wise’s objections, and, after

2
Wise was sentenced under the 2006 version of the United States Sentencing
Commission Guidelines Manual; all citations herein are to that version of the guidelines.
3
As a threshold matter, we note that in his written objection to the PSR, Wise raised only
the “crime of violence” issue, and he did not raise the application note 10 issue until the
sentencing hearing. The Federal Rules of Criminal Procedure require defendants to state
any objections to the PSR in writing within fourteen days after receiving it. Fed. R.
Crim. P. 32(f)(1). Rule 32(i)(1)(D), however, establishes that the district court “may, for
good cause, allow a party to make a new objection at any time before sentence is
Continued . . .
3
considering the sentencing factors set out in 18 U.S.C. § 3553(a), sentenced Wise to

forty-eight months’ imprisonment. Wise appealed to this court, and here presses the

same two issues regarding his 2006 Utah conviction that he argued to the district court at

sentencing.

Discussion

I. Wise’s Conviction Under Utah Law for Failure to Stop at the Command of a
Police Officer Was for a “Crime of Violence”

At sentencing, the district court raised Wise’s base offense level to twenty, per

USSG § 2K2.1(a)(4)(A), which dictates such an elevation “if the defendant committed

any part of the instant offense subsequent to sustaining one felony conviction of . . . a

crime of violence.” To determine the meaning of “crime of violence,” the application

notes to § 2K2.1 direct courts to § 4B1.2(a), which states:

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) 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.

USSG § 4B1.2(a).

_______________________
Cont.
imposed.” Because the district court treated the defendant’s application note 10 objection
as timely, and because neither party argued to the contrary, we will consider the
argument.

4
 Wise was convicted in 2006 for violating Utah Code § 41-6a-210, which states:

(1)(a) An operator who receives a visual or audible signal from a peace
officer to bring the vehicle to a stop may not:

(i) operate the vehicle in willful or wanton disregard of the signal so
as to interfere with or endanger the operation of any vehicle or
person; or

(ii) attempt to flee or elude a peace officer by vehicle or other
means.

Subsection (1)(b) of the statute establishes that a violation of (1)(a) is “a felony of the

third degree.” Id.4

In order for § 2K2.1(a)(4)(A) to apply, Wise’s 2006 conviction must have been for

a “crime of violence” meeting the terms of § 4B1.2(a). Utah law establishes that, unless

a particular statute provides otherwise, third-degree felonies are punishable “for a term

not to exceed five years.” Utah Code § 76-3-203(3). Wise’s failure-to-stop conviction

thus meets the first element of the § 4B1.2(a) test, in that it is “punishable by

imprisonment for a term exceeding one year.” The Utah statute on its face does not have

“as an element the use, attempted use, or threatened use of physical force against the

person of another,” nor is it “burglary of a dwelling, arson, or extortion,” and it does not

“involve[] use of explosives.” USSG § 4B1.2(a)(1), (2). Therefore, in order to be a

crime of violence, the Utah statute must fall into § 4B1.2(a)’s residual clause, which

encompasses crimes “otherwise involv[ing] conduct that presents a serious potential risk

4
The record does not include any state-court documents that might indicate under which
of the two subsections Wise was charged.

5
of physical injury to another.” Id. § 4B1.2(a)(2). Whether a crime falls into the residual

clause is a question of law that we review de novo. United States v. Charles, 576 F.3d

1060, 1066 (10th Cir. 2009), cert. denied, No. 09-7467, 2009 WL 3780709 (U.S. Dec. 14,

2009).

When determining whether a past conviction qualifies as a “crime of violence,”

we employ a categorical approach that looks to the words of the statute and judicial

decisions interpreting it, rather than to the conduct of any particular defendant convicted

of the crime. See Taylor v. United States, 495 U.S. 575, 602 (1990). However, if the

statute encompasses both conduct that would qualify as a crime of violence and conduct

that would not, we employ a modified categorical approach and look to the statutory

elements, the defendant’s charging documents, plea agreement and colloquy (if any), and

uncontested facts found by the district judge to determine whether the particular

defendant’s conduct violated the portion of the statute that is a crime of violence.

Charles, 576 F.3d 1067; see also Shepard v. United States, 544 U.S. 13, 16 (2005)

(enumerating the sources that may be consulted).

To determine whether the offense categorically falls within the residual clause, we

conduct a two-step analysis. First, we ask whether the offense “presents a serious

potential risk of physical injury to another,” as required by the text of § 4B1.2. See

Begay v. United States, 128 S. Ct. 1581, 1584 (2008). Second, as the Supreme Court

held in Begay, we must determine whether the offense is “roughly similar, in kind as well

as in degree of risk posed,” to the enumerated crimes in § 4B1.2(a)(2), namely, burglary,
6
arson, extortion, or crimes involving explosives. Id. at 1585. A crime is “roughly

similar” to an enumerated crime if it “typically involve[s] purposeful, violent, and

aggressive conduct.” Id. at 1586 (quotation marks omitted).

In United States v. West, 550 F.3d 952, 960 (10th Cir. 2008), we applied the

Begay test to the same Utah criminal statute at issue here, and held unequivocally that “a

prior conviction under Utah law for failing to stop at an officer’s command qualifies as a

violent felony” under the residual clause of the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). The residual clause of the ACCA is worded almost identically to that

of § 4B1.2(a), and we have held that in interpreting “crime of violence” under § 4B1.2,

we may look for guidance to cases construing the ACCA’s parallel provision. See

Charles, 576 F.3d at 1068 n.2 (citing United States v. Tiger, 538 F.3d 1297, 1298 (10th

Cir. 2008)). If West remains the law of the Tenth Circuit, it thus is squarely on point and

disposes of Wise’s claims in the government’s favor.

Wise argues, however, that West is no longer good law, because of the Supreme

Court’s recent decision in Chambers v. United States, 129 S. Ct. 687 (2009). In

Chambers, the Supreme Court held that a conviction under Illinois law for failure to

report to weekend confinement was not a “violent felony” for the purposes of the residual

clause of the ACCA. Id. at 689. While that case did not address the criminal statute at

issue here and in West, Wise argues that Chambers undermined our opinion in West in

two ways. First, that it did so by making it clear that we should treat different sections of

a single criminal statute as distinct crimes for the purpose of the residual clause. Second,
7
that in by holding that some escapes are not crimes of violence, Chambers undercut

West’s reliance on Tenth Circuit precedent that all escape crimes are crimes of violence,

thus undermining West’s precedential force. 5

We find neither argument convincing, and thus hold that West remains the law of

this circuit, and controls the outcome in this case.

A. Both Subsections of the Utah Statute Define a Crime of Violence

Before conducting the two-step Begay analysis, a court must first put a criminal

statute in the proper category. “And sometimes the choice is not obvious.” Chambers,

129 S. Ct. at 690. In Chambers, the Court was faced with a conviction under an Illinois

statute that contained multiple sections detailing seven different ways of committing the

statutory offense. Id. at 691. Rather than consider the statute as setting forth a single

crime, the Chambers Court drew distinctions between the seven types of violation:

[W]e believe that a failure to report (as described in the statutory
provision’s third, fourth, fifth, and sixth phrases) is a separate crime,
different from escape (the subject matter of the statute’s first and second
phrases), and from the potentially less serious failure to abide by the terms
of home confinement (the subject of the final phrase).

5
Wise also advances arguments that this court’s conclusion in West was wrong. We
disagree, but we also note that “[a]bsent an intervening Supreme Court or en banc
decision justifying such action, we lack the power to overrule our own precedent.”
United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1333 (10th Cir. 2003) (internal
quotation marks omitted). Therefore, unless Chambers effectively overrules West, we
are not free to reconsider the conclusions we reached in our earlier case, even if we were
disposed to do so, which we are not.

8
Id. at 691. The Court thus construed the statute as creating three distinct “crimes” for the

purposes of the ACCA residual clause analysis, and it ultimately concluded that the

“failure to report” violations did not constitute crimes of violence.

The Utah statute before us has two subsections, and Wise asserts that we must

consider the two subsections separately for the purpose of determining whether each

constitutes a crime of violence under § 4B1.2. This argument fails to clear the gate,

however, because in West we determined that both subsections of the Utah failure-to-stop

statute are crimes of violence. See West, 550 F.3d at 969-71. In West, we walked

through both prongs of the statute, and found that each one defines a crime that is violent,

aggressive, and purposeful. Id. Therefore, even if we were now to categorize the two

subsections of the Utah statute as composing separate crimes, we would still be bound by

the West panel’s conclusion that each subsection is a crime of violence. We could not

second-guess that conclusion even if we were inclined to doubt it, which we are not.

Each of the two subsections of Utah Code § 41-6a-210 sets out a crime of violence, and

so in that respect, West remains good law notwithstanding Chambers.

B. The Utah Statute Criminalizes Conduct Akin to Violent Escapes,
Rather Than the Failure-to-Report Escapes Addressed in Chambers

Wise argues that Chambers undermined West because Chambers concluded that

not all escape crimes are crimes of violence. In holding that the failure-to-report type of

escape crimes are not crimes of violence, Chambers implicitly overruled precedents in

many circuits—including this one—that had deemed all escape crimes categorically

9
crimes of violence. See Charles, 576 F.3d at 1069 (“Chambers compels a modification of

our circuit precedent.”) (quotation marks omitted). The West panel relied in part upon

that now-overruled line of precedent, and Wise argues that West thus has now been

undermined by Chambers. We disagree.

The distinction upon which the Supreme Court in Chambers ultimately based its

decision is the distinction between crimes of inaction, such as a passive failure to report,

and crimes requiring action, such as an escape from custody. West did, to be sure, cite to

our circuit precedent that all escape crimes were categorically crimes of violence. See

West, 550 F.3d at 963. And Chambers undeniably held that not all escape crimes are

crimes of violence. See 129 S. Ct. at 692. But it does not follow that Chambers

undermines West, because it is clear that in West, the kinds of escape crimes we were

talking about and drawing support from were the active, violent escape crimes not at

issue in Chambers.

The failure-to-report crime addressed by the Supreme Court in Chambers is

wholly unlike the Utah failure-to-stop crime at issue here. First, as the Court noted in

Chambers, the Illinois failure-to-report crime “amounts to a form of inaction, a far cry

from the purposeful, violent, and aggressive conduct potentially at issue” in the

enumerated crimes in the ACCA. Id. (quotation marks omitted.) To violate the Utah

statute, on the other hand, an individual must “operate [a] vehicle in willful or wanton

disregard of the [police officer’s] signal” or “attempt to flee or elude” a police officer.

Utah Code § 41-6a-210(1)(a)(i)-(ii). Either prong of the statute requires deliberate
10
action—a far cry from a mere failure to appear at a prison. Second, as we noted in West,

a violation of either prong of the Utah statute by definition will occur in the physical

presence of a police officer, see 550 F.3d at 964-65, while a failure to report to a penal

institution will inherently not involve the physical presence of police officers, see

Chambers, 129 S. Ct. at 692.

Third, violation of the Utah statute is far more likely to endanger third parties.

The Illinois statute in Chambers could be violated outside the presence of third parties

altogether. The Utah statute, on the other hand, requires that a police officer be present

and that the violator drive “so as to interfere with or endanger the operation of any

vehicle or person” or “attempt to flee or elude . . . by vehicle or other means.” Utah Code

§ 41-6a-210(1)(a)(i)-(ii). In the latter situation, third parties are both far more likely to be

present, and far more likely to be endangered, than in the former. Fourth and finally, as

the Supreme court noted, “[w]hile an offender who fails to report must of course be doing

something at the relevant time, there is no reason to believe that the something poses a

serious potential risk of physical injury.” Chambers, 129 S. Ct. at 692 (emphasis in

original). As we noted in West, however, the requirement that a violation of the Utah

statute occur in the presence of a police officer “poses the threat of a direct confrontation

between the police officer and the occupants of the vehicle, which, in turn, creates a

potential for serious physical injury to the officer, other occupants of the vehicle, and

even bystanders.” 550 F.3d at 964-65 (quotation marks omitted).

11
 In sum, then, the Illinois failure-to-report statute at issue in Chambers was

markedly different from the Utah crime considered in West. Therefore, the Supreme

Court’s holding that failure-to-report escape crimes are not crimes of violence does not

undermine this court’s conclusion in West that violation of the Utah failure-to-stop

statute is a crime of violence.

Notably, the West panel anticipated the possibility that the Supreme Court might

overrule the Tenth Circuit’s blanket all-escapes-are-violent-crimes rule, and insulated its

decision accordingly. In the words of the panel:

Even if the Supreme Court concludes that an escape conviction does not
categorically present a serious potential risk of physical injury to another,
we would conclude that a Utah conviction for failing to obey an officer’s
command would categorically present a serious potential risk of physical
injury to another. Such a conviction under Utah law will always involve
the use of a motor vehicle. It will always involve an overt, rather than
covert, disobedience of an officer’s command and will occur directly in the
officer’s presence. And it will likely occur in the presence of innocent and
unsuspecting bystanders.

Id. at 964 n.9. We agree today with the West panel’s assertion; the Supreme Court’s

decision in Chambers does not overrule or undermine West, and it remains the law of the

Tenth Circuit.

We finally note that, although there is a division of authority on the issue, our

decision is in accord with three other circuits to have considered vehicular fleeing crimes

post-Chambers. See United States v. Young, 580 F.3d 373, 381 (6th Cir. 2009) (holding

conviction under Michigan’s fleeing-and-eluding statute is a crime of violence); United

States v. Hudson, 577 F.3d 883, 886 (8th Cir. 2009) (holding that resisting arrest by
12
fleeing in a vehicle under Missouri law is a crime of violence); United States v.

Harrimon, 568 F.3d 531, 537 (5th Cir. 2009) cert. denied, No. 09-6395, 2009 WL

2920814 (U.S. Dec.14, 2009) (holding that Texas conviction for fleeing by vehicle is a

crime of violence). But see United States v. Tyler, 580 F.3d 722, 725 (8th Cir. 2009)

(holding that fleeing a peace officer in a vehicle under Minnesota law is not a crime of

violence); United States v. Harrison, 558 F.3d 1280, 1301 (11th Cir. 2009) (holding that

willful fleeing under Florida law is not a crime of violence).

C. Under West, Wise’s Utah Conviction Was for a Crime of Violence

With West’s precedential force reaffirmed, it becomes a simple matter to dispose

of Wise’s first claimed error in his sentencing. Under West, Wise’s 2006 Utah

conviction for failure to stop at the command of a police officer was categorically a

conviction for a crime of violence. See West, 550 F.3d at 971. Therefore, the district

court was correct to elevate Wise’s base offense level to twenty under USSG

§ 2K2.1(a)(4).

II. The District Court Erred in Not Assigning Criminal History Points for Wise’s
2006 Conviction, but This Error Does Not Invalidate Wise’s Sentence

As noted above, the district court, adopting the PSR, did not assign any criminal

history points to Wise for his 2006 conviction for violation of Utah Code § 41-6a-210.

According to application note 10 to § 2K2.1, “for purposes of applying subsection (a)(1),

(2), (3), or (4)(A), use only those felony convictions that receive criminal history points

13
under § 4A1.1(a), (b), or (c).” USSG § 2K2.1 cmt. n. 10 (emphasis added).6 Wise

should have received two criminal history points for the 2006 conviction, as his sentence

for that offense was greater than sixty days but less than thirteen months, but the PSR did

not assign him any points for the conviction. USSG § 4A1.1(b) (“Add 2 points for each

prior sentence of imprisonment of at least sixty days . . . .”). Because he did not receive

any criminal history points, however, Wise argues that the district court erred by using

the 2006 conviction to enhance his base offense level to twenty under § 2K2.1(a)(4)(A).

The question thus presented is: when a defendant’s prior conviction merits criminal

history points, but the defendant does not receive those points, and the district court

nevertheless imposes a sentence taking into account that prior conviction to set the

offense level, has the district court committed reversible error? We review this issue de

novo. See Charles, 576 F.3d at 1066.

While a question of first impression in this circuit, the Fourth Circuit faced a very

similar question in United States v. Battle, 499 F.3d 315 (4th Cir. 2007), and answered it

in the negative. In that case, the district court had not assigned the defendant criminal

history points for an offense that it believed fell outside the allowable timeframe under

6
While this instruction is in the notes to the guideline, rather than the text itself, we have
held that “[c]ommentary interpreting the sentencing guidelines is binding on the federal
courts unless it violates the Constitution or a federal statute, or is inconsistent with the
guideline it interprets.” United States v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir.
1996). In Farnsworth, we held the predecessor note to application note 10 consistent with
§ 2K2.1, and thus binding. See id.

14
§ 4A1.2(e)(2).7 Id. at 325. Despite not assigning the defendant any criminal history

points for the offense, the district court apparently used it as a qualifying “controlled

substance offense” justifying elevating the defendant’s base offense level to twenty-four

under § 2K2.1(a)(2). Id. at 326. The defendant thus argued on appeal that the district

court erred in using the conviction to elevate his base offense level.

The Fourth Circuit agreed that “if the district court correctly assigned no criminal

history points for the [earlier] offense, then the district court erred in applying

§ 2K2.1(a)(2).” Id. at 326 (emphasis omitted, emphasis added). But it was the district

court’s decision not to assign criminal history points that was in error. While the

defendant’s arrest for the earlier crime had occurred outside the ten-year window, the

date his sentence was imposed—the operative date under § 4A1.2(e)(2)—was within that

window. Id. Therefore, while the district court erred in failing to assign criminal history

points for the offense, its application of § 2K2.1(a)(2) was correct. Id. (“Appellant had

two prior felony controlled substance offense convictions . . . , both of which received or

should have received criminal history points.”) (emphasis added). Therefore the court

affirmed the district court’s calculation of the defendant’s base offense level. Id.

This case is analogous to Battle. In Battle, the district court failed to assign

criminal history points because it erroneously believed doing so was barred by lapse of

7
“Any other prior sentence that was imposed within ten years of the defendant’s
commencement of the instant offense is counted.” U.S.S.G. § 4A1.2(e)(2) (emphasis
added).

15
time. Here, while the record reveals no affirmative reason why Wise did not receive

criminal history points for his 2006 conviction, we can make an educated guess based on

the PSR. Alongside each prior crime in the PSR is a notation of which provision of the

guidelines the probation office applied to the conviction. In reference to the 2006

conviction, the PSR points to § 4A1.2. Subsection (c) of § 4A1.2 lists several categories

of offenses that should not receive criminal history points, including “[c]areless or

reckless driving” and “[h]indering or failure to obey a police officer.” USSG

§ 4A1.2(c)(1). As Wise’s 2006 conviction was for failure to stop at the direction of a

police officer, the probation office likely considered this an offense that fell into

§ 4A1.2(c).

A closer reading of § 4A1.2(c), however, shows that that guideline should not

have been applied to exclude Wise’s 2006 conviction. The subsection begins

“[s]entences for all felony offenses are counted.” Id. (emphasis added). It goes on to

instruct that “[s]entences for misdemeanor and petty offenses are counted, except as

follows,” and lists a number of exceptions, including those mentioned above. Id. The

guideline also indicates that even misdemeanor convictions for the excepted crimes

should be counted, if “the sentence was a term of probation of at least one year or a term

of imprisonment of at least thirty days.” § 4A1.2(c)(1)(A).

Because Wise’s 2006 conviction was for a third-degree felony, and because it

carried a jail sentence of 180 days, § 4A1.2(c)’s exclusion for misdemeanors and petty

offenses should not have been applied to this conviction at all. Rather, two criminal
16
history points should have been assigned to Wise for the conviction under § 4A1.1(b), as

his sentence exceeded sixty days, but was less than one year and one month. See USSG

§ 4A1.1. The language of § 4A1.1(b) is mandatory (“Add 2 points”), and the district

court did not have discretion to decline to assign Wise two criminal history points for his

2006 conviction. Thus, as in Battle, the district court’s error was in failing to assign

criminal history points for the offense, rather than in calculating the relevant offense

guidelines range.

Further, the failure to assign Wise criminal history points for his 2006 conviction

did not change his criminal history category, and thus had no effect on his overall

sentence. Even without the two points he should have received for the 2006 conviction,

Wise’s final criminal history score was fourteen, which is one more than necessary to put

him in the highest criminal history category of VI. Two more criminal history points,

therefore, would not have changed his criminal history category, or his final guideline

range.

In sum, then, we hold that while the district court erred by not assigning criminal

history points to Wise for his 2006 Utah felony conviction, that error did not affect either

Wise’s proper base offense level or his criminal history category. Therefore, we affirm

the district court’s calculation of Wise’s offense level under § 2K2.1(a)(4),

notwithstanding its failure to assign him criminal history points for the 2006 offense.

17
 Conclusion

For the reasons set out above, we AFFIRM the district court’s determination of

Wise’s sentence.

18