United States v. Gibbs

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0361p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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-
-
No. 09-2031
v.
,
>
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Defendant-Appellant. -
TIMOTHY ALLEN GIBBS,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 06-00003-001—Robert Holmes Bell, District Judge.
Argued: October 22, 2010
Decided and Filed: November 24, 2010
Before: GUY and GRIFFIN, Circuit Judges; BARZILAY, Judge.*

_________________

COUNSEL

ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand
Rapids, Michigan, for Appellant. Jennifer L. McManus, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L.
Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for
Appellant. Russell A. Kavalhuna, ASSISTANT UNITED STATES ATTORNEY,
Grand Rapids, Michigan, for Appellee.

*
The Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting by
designation.

1
No. 09-2031 United States v. Gibbs Page 2

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OPINION
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RALPH B. GUY, JR., Circuit Judge. Defendant Timothy Allen Gibbs appeals
after resentencing on his conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Defendant argues that the district court erred on
remand by failing to impose sentence concurrently, or partially concurrently, to a
completed state sentence, or in a manner that would have that result. Defendant also
claims that the district court erred by not recalculating his advisory Guidelines range
where: (1) his criminal history score would have been lower under a subsequent
amendment to the Guidelines, and (2) his offense level had been determined under a now
incorrect understanding of what constitutes a “crime of violence.” Finding that
subsequent developments in the law with respect to the definition of a “crime of
violence” render the calculation of defendant’s advisory Guidelines range plain error,
we vacate defendant’s sentence and remand for resentencing consistent with this
opinion.

I.

Gibbs was a convicted felon on state parole when a search conducted on August
10, 2005, resulted in the seizure of a semiautomatic pistol, ammunition, and other items
from the basement bedroom he occupied in the house he shared with his mother.
Defendant was charged with violating several conditions of his parole, although those
charges were not resolved until after his initial federal sentencing. State criminal
charges also brought at the time of defendant’s arrest, including a felon-in-possession
charge, were dismissed after the federal indictment was returned on January 5, 2006.
Defendant was arrested on the federal charge on January 10, 2006, and was convicted
by a jury of being a felon in possession of a firearm on March 27, 2006.

At sentencing on June 26, 2006, the district court determined, without objection,
that defendant had a total offense level of 24 because he had two or more prior
No. 09-2031 United States v. Gibbs Page 3

convictions of a “crime of violence,” and a criminal history category of VI. As a result,
defendant’s Guidelines range was 100 to 125 months’ imprisonment. Defendant argued,
among other things, that his sentence should be ordered to run concurrently with the yet-
to-be imposed state parole violation sentence, relying explicitly upon the U.S.
Sentencing Guidelines Manual (USSG) § 5G1.3(c) (2006). The district court, addressing
this issue briefly, appeared to conclude that § 5G1.3(c) would require a consecutive
sentence. After considering the relevant sentencing factors under 18 U.S.C. § 3553(a),
the district court sentenced defendant at the low end of the Guidelines range to a 108-
month term of imprisonment and ordered that the sentence be served consecutively to
any state sentence yet-to-be imposed for violating the conditions of his parole.
Defendant appealed.

This court affirmed defendant’s conviction, but held—for the first time—that
treating the permissive language of § 5G1.3(c) “as leaving the district court without
discretion to impose a federal sentence concurrent or partially concurrent with an
undischarged term of state imprisonment [was] reversible error requiring a remand for
resentencing.” United States v. Gibbs, 506 F.3d 479, 488 (6th Cir. 2007). By that time,
defendant’s parole had been revoked based on his possession of the firearm, and he was
serving a 60-month sentence for the parole violation. Defendant was paroled again and
delivered to federal authorities in January 2009, but was not resentenced on the federal
conviction until July 2009.1

At resentencing on July 30, 2009, the district court first declined to recalculate
the Guidelines range on the grounds that the issue was outside the scope of the remand,
and then explained that it had “obviously misspoke[n]” at the original sentencing by
stating that § 5G1.3(c) required the imposition of a consecutive sentence. Defense
counsel urged the district court to exercise its discretion and either impose a concurrent

1
The government argues for the first time that the initial imposition of a consecutive sentence was
erroneous for a different reason. That is, we have held that a district court may not order a sentence to be
served consecutively to a yet-to-be imposed sentence. United States v. Quintero, 157 F.3d 1038, 1039-40
(6th Cir. 1998); see also United States v. Setser, 607 F.3d 128, 131 n.1 (5th Cir.) (identifying split among
the circuits on the issue), petition for cert. filed, __ U.S.L.W. __ (U.S. Nov. 2, 2010) (No. 10-7387). The
government concedes, however, that this also would have required remand for resentencing.
No. 09-2031 United States v. Gibbs Page 4

or partially concurrent sentence, or, at least, take into account the time served on the
state sentence in considering the § 3553(a) factors. The colloquy that followed shifted
between the defendant’s argument for a concurrent sentence and a discussion of the
credit defendant might receive for time served on his then-completed state sentence. In
the end, the district court reimposed a sentence of 108 months, omitted the earlier order
of a consecutive sentence, and added a recommendation to the Bureau of Prisons (BOP)
that defendant receive credit for time served since his arrest on the federal charge on
January 10, 2006. This appeal followed.

II.

This court reviews challenges to the reasonableness of a defendant’s sentence for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). While there is both
a procedural and a substantive component to the reasonableness inquiry, defendant’s
claims of error have been framed in terms of procedural unreasonableness. Id. If
defense counsel does not object with a reasonable degree of specificity to a purported
procedural error, a plain error standard of review applies. United States v. Simmons, 587
F.3d 348, 353-54 (6th Cir. 2009), cert. denied, 130 S. Ct. 2116 (2010); United States v.
Bostic, 371 F.3d 865, 871 (6th Cir. 2004).

A. USSG § 5G1.3(c)

A district court has discretion to order a federal sentence to run either
concurrently or consecutively to an undischarged term of imprisonment. See, 18 U.S.C.
§ 3584(b); United States v. Johnson, 553 F.3d 990, 997 (6th Cir. 2009); United States
v. Watford, 468 F.3d 891, 915-16 (6th Cir. 2006). That determination is based, in part,
on the Guidelines and policy statements of the Sentencing Commission. Johnson, 553
F.3d at 997. In particular, the first appeal involved the application of USSG § 5G1.3(c),
which provides that “[i]n any other case involving an undischarged term of
imprisonment, the sentence for the instant offense may be imposed to run concurrently,
No. 09-2031 United States v. Gibbs Page 5

partially concurrently, or consecutively to the prior undischarged term of imprisonment
to achieve a reasonable punishment for the instant offense.”2

At resentencing, defendant continued to urge the district court to impose a
partially concurrent sentence under § 5G1.3(c), but also argued that the district court
could adjust the length of the sentence to take into account the time served for which the
BOP might not give him credit. The district court expressed the view that defendant
should receive credit for time served from the time of his arrest on the federal warrant
on January 10, 2006—rather than from his release to federal custody in January
2009—but recognized that the power to determine such credit would lie solely with the
Attorney General and the Bureau of Prisons. See 18 U.S.C. § 3585(b); United States v.
Wilson, 503 U.S. 329, 333 (1992). Rather than adopting either of defendant’s
suggestions, the district court imposed the same within-Guidelines sentence of 108
months’ imprisonment with credit for time served from January 10, 2006. The amended
judgment specifically recommended that defendant receive such credit.

Claiming error, defendant argues first that the amended judgment did not
accurately reflect the oral pronouncement of sentence in which the district judge stated
that he “want[ed] to give [defendant] credit” for time served from January 10, 2006. The
record does not support this claim, however. The district judge explained more than
once that although he could make a recommendation in the judgment, the BOP would
not necessarily accept his calculation of the credit for time served. The district judge not
only explicitly recognized that his recommendation would not be binding on the BOP,
but also dispelled any possible lingering confusion about whether he intended to make
just such a recommendation. Specifically, in response to the government’s request for
clarification, the district judge confirmed that the sentence was 108 months’
imprisonment with credit for time served from January 10, 2006, adding that there were
no guarantees as to what the BOP would decide to do. Moreover, when asked whether

2
The application notes also provide that when the offense was committed while on parole and that
parole has been revoked, “the Commission recommends that the sentence for the instant offense be
imposed consecutively to the sentence imposed for the revocation.” USSG § 5G1.3 cmt. n.3(C) (emphasis
added).
No. 09-2031 United States v. Gibbs Page 6

there were any further objections, defense counsel confined his objections to the district
court’s decision not to revisit the calculation of the Guidelines range.

Although defendant states in passing that the district court failed to expressly
address the application of § 5G1.3(c), it was acknowledged at resentencing that the
defendant no longer had an undischarged term of imprisonment. Because § 5G1.3(c)
only applies when a defendant has an undischarged term of imprisonment at the time of
sentencing, we find no error by the district court. United States v. Carpenter, 359 F.
App’x 553, 557-58 (6th Cir. 2009); United States v. Newby, 13 F. App’x 324, 325-26
(6th Cir. 2001) (citing cases).

Indeed, defendant has abandoned reliance on § 5G1.3(c) and argued that the
district court failed to recognize its discretion to take into account the already discharged
sentence in weighing the § 3553 factors. See United States v. Osborn, 318 F. App’x 371,
375 (6th Cir. 2009). The record is clear, however, that defense counsel urged the district
court to exercise its discretion to impose a lesser sentence in consideration of the
§ 3553(a) factors in order to avoid the uncertainty that would come with the non-binding
recommendation regarding credit for time served. The fact that the district court
declined to do so does not demonstrate a failure to recognize the discretion to do so. Nor
is there any indication in the record that the district court did not understand or recognize
its discretion in this regard.3

B. Guidelines Calculation

1. Scope of Review

Before considering the merits of defendant’s additional claims, we must address
the scope of the remand and the government’s assertion of waiver. “The basic tenet of

3
We note for completeness that shortly before oral argument defendant was granted
administrative relief in the form of a nunc pro tunc designation of the state facility where he was serving
his state sentence to be the institution for service of his federal sentence. This effectively made the federal
sentence concurrent to the state sentence commencing with the imposition of his federal sentence on June
26, 2006. This means that only the period between January 10, 2006, and June 26, 2006, is time for which
the defendant will not receive a concurrent sentence. Defense counsel insisted at oral argument that this
partial relief did not alter his position on appeal with respect to the recommendation that he receive credit
for time served.
No. 09-2031 United States v. Gibbs Page 7

the mandate rule is that a district court is bound to the scope of the remand issued by the
court of appeals.” United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). A
limited remand must “explicitly outline the issues to be addressed by the district court
and create a narrow framework within which the district court must operate,” while a
general remand gives the district court “authority to address all matters as long as
remaining consistent with the remand.” Id. Whether a remand is limited or general is
a legal question that we review de novo. United States v. Moore, 131 F.3d 595, 598 (6th
Cir. 1997).4

Generally, district courts can review sentencing matters de novo unless the
remand specifically limits the inquiry, but “[t]he language used to limit the remand
should be, in effect, unmistakeable.” Campbell, 168 F.3d at 268. Such language may
appear anywhere in the opinion, but must be viewed in the context of the entire opinion.
Id. at 266-68. In this case, although we identified a discrete sentencing issue that
required remand, our opinion did not articulate a framework for the proceedings on
remand or otherwise limit the district court’s inquiry to that issue in unmistakeable
terms. Rather, we vacated the sentence and remanded “for resentencing consistent with
this opinion.” Gibbs, 506 F.3d at 488. Thus, our remand was general and did not
preclude the district court from revisiting the Guidelines calculation. Cf. Moore, 131
F.3d at 597 (remanded for further proceedings for the parties to address the defendant’s
use and carrying of the firearm and adhering to the prior opinion in all other respects);
Campbell, 168 F.3d at 268 (holding that fine imposed was improper and remanding with
direction for the district court to change it); United States v. O’Dell, 320 F.3d 674, 680-
81 (6th Cir. 2003) (remanding for “resentenc[ing] without application of the safety
valve”).

Next, the government argues that the defendant waived these issues by failing
to raise them in the first appeal. Generally, the “law-of-the-case doctrine bars challenges

4
Even when a remand is limited, exceptions to the mandate rule arise “where there is substantially
different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling
authority; or a clearly erroneous decision which would work a manifest injustice.” Campbell, 168 F.3d
at 269 (citation and internal quotation marks omitted).
No. 09-2031 United States v. Gibbs Page 8

to a decision made at a previous stage of the litigation which could have been challenged
in a prior appeal, but were not.” United States v. Adesida, 129 F.3d 846, 850 (6th Cir.
1997); see also United States v. McKinley, 227 F.3d 716, 718-19 (6th Cir. 2000)
(holding government waived argument for additional firearm enhancement by not raising
it during the first appeal); United States v. Sedore, 512 F.3d 819, 827 (6th Cir. 2008)
(holding defendant waived opportunity to dispute admission as to number of victims by
failing to raise it in the first appeal).

Defendant responds that the subsequent amendment to the Guidelines and recent
developments in the controlling law concerning what constitutes a “crime of violence”
were not issues that should have been raised in the first appeal. We need not decide this,
however, because the government waived its “waiver” argument by affirmatively taking
the position on remand that the district court could revisit the Guidelines calculations.
See United States v. Boudreau, 564 F.3d 431, 435 (6th Cir.) (finding government waived
waiver argument by proceeding on remand without asserting the issue had been waived
by not raising it on appeal), cert. denied, 130 S. Ct. 776 (2009). This brings us to the
merits of these claims.

2. Criminal History

Defendant argued at resentencing for application of the intervening amendment
to USSG § 4A1.2(A)(2), which altered the way in which prior sentences are counted.
See USSG App. C, amend. 709 (eff. Nov. 1, 2007). However, as defendant
acknowledges on appeal, the district court properly applied the Guidelines in effect at
the time of the original sentencing. See 18 U.S.C. § 3742(g)(1); United States v.
Williams, 411 F.3d 675, 678 (6th Cir. 2005). Further, this and other courts have held
that Amendment 709 is not a clarifying amendment and may not be applied retroactively.
United States v. Vassar, 346 F. App’x 17, 28 (6th Cir. 2009), cert. denied, 130 S. Ct.
3343 (2010); United States v. Wood, 526 F.3d 82, 88 (3d Cir. 2008); United States v.
Marler, 527 F.3d 874, 877 n.1 (9th Cir. 2008).

Even if the amended Guidelines did apply, however, defendant’s criminal history
category would not have been different. Defendant argues that under the amended
No. 09-2031 United States v. Gibbs Page 9

Guidelines, four prior sentences that were counted separately would instead be counted
as two prior sentences for a criminal history score of 12 and a criminal history category
of V. The government concedes that the two prior sentences referenced in paragraphs
30 and 31 of the Presentence Report (PSR) would be counted as one under the amended
Guidelines because there was no intervening arrest and the sentences were imposed on
the same day. However, because the other two sentences—referenced in paragraphs 27
and 29 of the PSR—were separated by an intervening arrest, they would still be counted
separately. Since defendant’s criminal history score would have been 15 and defendant
would still have had a criminal history category of VI, the amended Guidelines would
not have affected the calculation of defendant’s Guidelines range.5

3. Offense Level

Defendant’s offense level was determined under USSG § 2K2.1(a)(2), which
provides for a base offense level of “24, if the defendant committed any part of the
instant offense subsequent to sustaining at least two felony convictions of either a crime
of violence or a controlled substance offense.” Defendant was found, without objection,
to have at least two prior felony convictions for a “crime of violence.” Defendant’s
failure to object at sentencing limits our review to plain error.

A “crime of violence” is defined as a felony 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); see also USSG § 2K2.1 cmt. n.1. The last of these, referred
to at times as the “residual” or “otherwise” clause, has been limited to crimes that “are
roughly similar, in kind as well as in degree of risk posed,” to the enumerated examples.
Begay v. United States, 553 U.S. 137, 143 (2008); see also United States v. Bartee, 529
F.3d 357, 363 (6th Cir. 2008).

5
For this reason, we need not address defendant’s further suggestion that we remand for
resentencing to allow the district court to take the amendment into consideration in imposing sentence.
See United States v. Godin, 522 F.3d 133, 136 (1st Cir. 2008) (remanding for resentencing); but see United
States v. Matos, 611 F.3d 31, 39 (1st Cir. 2010) (distinguishing Godin and denying request for remand).
No. 09-2031 United States v. Gibbs Page 10

In determining the nature of a prior conviction, we are to apply a “categorical”
approach, looking to the statutory definition of the offense and not the particular facts
underlying the conviction. Taylor v. United States, 495 U.S. 575, 600 (1990). If it is
possible to violate the statute in a way that would constitute a crime of violence and in
a way that would not, the court may consider the indictment, guilty plea, or similar
documents to determine whether they necessarily establish the nature of the prior
conviction. Shepard v. United States, 544 U.S. 13, 26 (2005). At issue in this case are
three potentially qualifying prior convictions—one each for second-degree home
invasion, “walkaway” prison escape, and resisting and obstructing an officer.6

a. Second-Degree Home Invasion

Defendant conceded at his initial sentencing that his plea-based conviction for
second-degree home invasion was properly counted as a “crime of violence.” On
remand, defendant argued for the first time that, in fact, the house could not have been
an “occupied dwelling” under Michigan law because the residents had died and the
house was vacant. See People v. Hider, 351 N.W.2d 905, 907-08 (Mich. Ct. App. 1984).
In essence, however, this is a challenge to the factual basis of the underlying conviction;
not to whether the conviction was for a “crime of violence.”

Second-degree home invasion is defined under Michigan law as committed by
one who “breaks and enters a dwelling with intent to commit a felony, larceny, or assault
in the dwelling,” or “enters a dwelling without permission with intent to commit a
felony, larceny, or assault in the dwelling,” or “enters a dwelling without permission
and, at any time while he or she is entering, present in, or exiting the dwelling, commits
a felony, larceny, or assault.” MICH. COMP. LAWS § 750.110a(3). As this court has
previously recognized, a conviction for second-degree home invasion under Michigan
law is the equivalent of the enumerated offense of burglary of a dwelling and therefore
constitutes a “crime of violence.” See United States v. Hart, 104 F. App’x 469, 470 (6th

6
We determine a “crime of violence” under the Guidelines in the same way as a “violent felony”
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because both share essentially the
same definitions. Bartee, 529 F.3d at 359 (citing United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.
1995)).
No. 09-2031 United States v. Gibbs Page 11

Cir. 2004); United States v. Horton, 163 F. App’x 378, 382 (6th Cir. 2006); United
States v. Howard, 327 F. App’x 573, 575-76 (6th Cir. 2009).

b. “Walkaway” Prison Escape

Michigan defines prison escape, in pertinent part, as occurring when a person
imprisoned by the state, “breaks prison and escapes, breaks prison though an escape is
not actually made, escapes, leaves the prison without being discharged by due process
of law, attempts to break prison, or attempts to escape from prison.” MICH. COMP. LAWS
§ 750.193(1). Defendant’s prior plea-based conviction for prison escape was counted
as a “crime of violence,” although he asked the district court to consider that it was
essentially a “walkaway” escape from a community correction center. In fact, defendant
explained during the plea colloquy that he had left the facility where he was assigned
without permission. The government concedes, as it did even on remand, that this
conviction for “walkaway” prison escape does not constitute a “crime of violence” in
light of the decisions in Chambers v. United States, 555 U.S. __, 129 S. Ct. 687, 690-92
(2009), and United States v. Ford, 560 F.3d 420, 423-25 (6th Cir. 2009). We agree.7

Before the decision in Chambers, this court had largely “taken the view that all
escape offenses—from a failure to report at one end of the spectrum to a breakout at the
other—constitute crimes of violence.” Ford, 560 F.3d at 423 (citing cases). The Court
in Chambers held that one type of escape under the Illinois statute—a failure-to-report
escape—was not a “violent felony” under the ACCA. 129 S. Ct. at 691-92. This, we
concluded in Ford, also established that a failure-to-report escape is not a “crime of
violence.” 560 F. 3d at 423. We did not stop there, however, and applied the same
reasoning to conclude that a “walkaway” escape conviction under Kentucky law was not
unambiguously a “crime of violence.” Id. at 425.

To recap: the first question in this case—the Taylor question—is
whether the definition of the state-law offense by itself establishes that

7
Defendant attempted to raise this issue in a Rule 28(j) letter filed during the pendency of the first
appeal in reliance on this court’s pre-Chambers decision holding that a “failure to report” escape
conviction under the Michigan statute was not a “violent felony” for purposes of the ACCA. United States
v. Collier, 493 F.3d 731, 737 (6th Cir. 2007).
No. 09-2031 United States v. Gibbs Page 12

it is a “crime of violence.” A conviction for second-degree escape does
not show that Ford committed a crime of violence because the offense
covers a variety of escapes, some of which (a failure to report and to
return, at least) are not crimes of violence. The second question—the
Shepard question—is whether the government nonetheless can show that
the state-law conviction was a crime of violence by bringing forward
reliable documents from the underlying conviction that “necessarily”
establish that the defendant committed a crime of violence. Here, the
parties agree, reliable documents show that Ford committed a
“walkaway” escape, which no doubt may create a greater risk of physical
injury than a failure to report, but which remains different from a
jailbreak and other crimes of violence both in kind and in its risk of
physical injury to others. For these reasons and those elaborated above,
a walkaway is not a crime of violence.

Id. at 426. The parallel between the Kentucky “walkaway” escape and defendant’s
Michigan conviction for “walkaway” escape is self-evident. The Michigan statute
covers a variety of escapes, including at least one which is not a crime of violence. We
recognized in Ford that, “in the aftermath of Chambers, a ‘walkaway’ is a meaningfully
distinct and meaningfully distinguishable category of escape as a matter of federal law.”
Id. at 424. We also concluded that a “walkaway” escape does not present the same risk
of physical injury to others, or the same type of “purposeful, violent, and aggressive”
conduct, as do the listed crimes of violence. Id. at 424-25 (quoting Chambers, 129 S.
Ct. at 692 (internal quotation marks omitted)). Defendant’s “walkaway” escape
conviction may not be counted as a “crime of violence.”

c. Resisting and Obstructing an Officer

On remand, the government argued that defendant’s conviction for resisting and
obstructing an officer may be counted as a second “crime of violence.” Defendant
pleaded guilty to resisting and obstructing an officer in violation of former Mich. Comp.
Laws § 750.479 (2001), which made it unlawful to:

knowingly and willfully obstruct, resist or oppose any sheriff, . . . or
other officer or person duly authorized, in serving, or attempting to serve
or execute any process, rule or order made or issued by lawful authority,
or who shall resist any officer in the execution of any ordinance, by law,
or any rule, order or resolution made, issued, or passed . . . or who shall
No. 09-2031 United States v. Gibbs Page 13

assault, beat or wound any sheriff, . . . or other officer duly authorized,
while serving, or attempting to serve or execute any such process, rule or
order, or for having served, or attempted to serve or execute the same, or
who shall so obstruct, resist, oppose, assault, beat or wound any of the
above named officers, or any other person or persons authorized by law
to maintain and preserve the peace, in their lawful acts, attempts and
efforts to maintain, preserve and keep the peace[.]

This court has concluded, in reliance on Chambers, that a conviction for resisting and
obstructing an officer under Mich. Comp. Laws § 750.81(d), a related Michigan statute,
is not categorically a crime of violence. United States v. Mosley, 575 F.3d 603, 606-07
(6th Cir. 2009).

As we explained in Mosley, the first and often “key” analytical step is
determining whether “the state-law definition of the offense involves just one category
or two or more categories of crimes” and that “sometimes that choice requires the federal
courts to draw distinctions that the state law on its face does not draw.” Id. at 606 (citing
Chambers, 129 S. Ct. at 690). Identifying “at least one obvious fault line,” we found that
the Michigan resisting-and-obstructing statute contained “at least two categories—those
violations, on the one hand, involving an individual who physically injures an officer
because he ‘assaults, batters, [or] wounds’ the officer, and those, on the other hand,
involving an individual who ‘obstructs’ an officer through a ‘knowing failure to comply
with a lawful command.’” Id. at 607 (citations omitted). Moreover, we quickly
concluded that a typical failure-to-comply obstruction offense would not qualify as a
“crime of violence” because it “does not involve comparable ‘purposeful, violent, and
aggressive’ conduct” or create the same degree of risk of physical injury as the
enumerated offenses. Id. (quoting Begay, 553 U.S. at 144).

The analysis in Mosley applies equally to defendant’s conviction because the
resisting and obstructing statute at issue likewise involves at least two categories of
crimes, one of which is not categorically a “crime of violence.” See United States v.
Blomquist, 356 F. App’x 822, 827 (6th Cir. 2009) (applying Mosley to conviction under
Mich. Comp. Laws § 750.479). Mosley dictates the answer to the Taylor question in this
case—that the conviction does not categorically qualify as a “crime of violence”—but
No. 09-2031 United States v. Gibbs Page 14

does not resolve the Shepard question. That is, in Mosley, we remanded for the
government to have an opportunity to make a showing from reliable documents that the
conviction necessarily constituted a “crime of violence.” 575 F.3d at 608.8

Here, in contrast, the record already includes the charging document, the
judgment of conviction, and the plea colloquy from which we may determine the nature
of the offense. Shepard, 544 U.S. at 26. In particular, during the plea colloquy,
defendant explained that he had been a passenger in a car that was the subject of a traffic
stop and had run away from the officer to avoid being arrested on outstanding warrants.
These records show, and the government does not dispute, that defendant’s conviction
was for violation of the knowing-failure-to-comply portion of the resisting and
obstructing statute. Accord United States v. Love, 364 F. App’x 955, 958-59 (6th Cir.
2010) (holding that defendant who ran away from police in handcuffs committed the
offense of obstruction through a knowing failure to comply with a lawful command).
Thus, defendant’s conviction for resisting and obstructing an officer does not qualify as
a “crime of violence.”

8
Although the Michigan legislature amended these statutes to expressly define “obstruct” to
include both “the use or threatened use of physical interference or force or a knowing failure to comply
with a lawful demand,” see Mich. Comp. Laws §§ 750.81(d)(7)(a) and 750.479(8)(a), it was not a change
in meaning but a clarification of the correct interpretation of the term. Blomquist, 356 F. App’x at 827.
No. 09-2031 United States v. Gibbs Page 15

C. Plain Error

“In reviewing for plain error, we must consider whether there was plain error that
affects substantial rights and that, in our discretionary view, seriously affects the
fundamental fairness, integrity, or public reputation of judicial proceedings.” United
States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (citing Johnson v. United States, 520
U.S. 461, 466 (1997)). It is sufficient that the error be plain at the time of appellate
consideration. Johnson, 520 U.S. at 466.

Having concluded that the defendant’s prior convictions for “walkaway” prison
escape and failure-to-comply obstruction no longer qualify as a “crime of violence” for
purposes of the Guidelines, there was error under current law. That error is also plain
because Begay and Chambers clearly altered the analysis applicable to the question of
whether a prior conviction constitutes a “crime of violence.” This error affected the
defendant’s substantial rights because with only one prior conviction for a “crime of
violence”—rather than two or more—the defendant’s offense level would have been 20
instead of 24. See USSG § 2K2.1(a)(4)(A). A total offense level of 20 and a criminal
history category of VI would have resulted in an advisory Guidelines range of 70 to 87
months’ imprisonment, which is substantially lower than the range of 100 to 125 months
found to apply initially and on remand. Finally, although clearly the result of subsequent
changes in the law, this error seriously affects the fairness, integrity, or public reputation
of the judicial proceedings. See United States v. Baker, 559 F.3d 443, 453-55 (6th Cir.
2009).

Accordingly, we VACATE defendant’s sentence and REMAND for
resentencing in light of the determination that the prior convictions for escape and
resisting and obstructing an officer do not constitute crimes of violence for purposes of
computing the defendant’s offense level.