United States v. Mosley

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0080p.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. 09-2359
v.
,
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Defendant-Appellant. -
KYLE MOSLEY,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 08-00009-001—Robert Holmes Bell, District Judge.
Argued: January 18, 2011
Decided and Filed: March 29, 2011
Before: BOGGS, MOORE and SUTTON, Circuit Judges.

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COUNSEL
ARGUED: Richard D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Grand Rapids, Michigan, for Appellant. R. Clay Stiffler, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard
D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids,
Michigan, for Appellant. Christopher M. O’Connor, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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SUTTON, Circuit Judge. In 2004, the State of Michigan convicted Kyle Mosley
of shooting pepper spray at a person without justification. Mich. Comp. Laws
§ 750.224d(2). At issue in this case is whether that conviction amounts to a “crime of

1
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violence” under § 2K2.1(a) of the sentencing guidelines. We conclude that it does, and
for this reason (and three others) we affirm.

I.

In 2008, Mosley pleaded guilty to being a felon in possession of a firearm.
18 U.S.C. § 922(g)(1). At sentencing, the district court treated Mosley’s prior conviction
for resisting and obstructing arrest as a crime of violence, raising his offense level to 21.
That, together with his criminal history (VI), generated a 77–96 month guidelines range,
and the court sentenced him to 96 months. On appeal, we vacated the sentence, holding
that resisting and obstructing a police officer under Michigan law is not categorically a
crime of violence. United States v. Mosley, 575 F.3d 603, 608 (6th Cir. 2009).

At his re-sentencing hearing, the district court considered whether, in the
alternative, Mosley’s 2004 pepper-spray conviction amounted to a crime of violence.
After concluding that it did, the court re-sentenced Mosley to 96 months.

II.

The guidelines define a “crime of violence” as “any offense under federal law or
state law, punishable by imprisonment for a term exceeding one year” that either (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.” U.S.S.G. § 4B1.2(a) (emphasis added); see U.S.S.G.
§ 2K2.1(a). In considering whether a state conviction comes within the residual clause,
italicized above, “we look at the statutory definition of the crime of conviction, not the
facts underlying that conviction, to determine the nature of the crime.” United States v.
Ford, 560 F.3d 420, 421–22 (6th Cir. 2009). Not “every conceivable factual offense
covered” by the law must raise “a serious potential risk of injury.” James v. United
States, 550 U.S. 192, 208 (2007). It is enough that “the conduct encompassed by the
elements of the offense, in the ordinary case,” presents such a risk. Id.
No. 09-2359 United States v. Mosley Page 3

The Michigan pepper-spray law says that “a person who uses a self-defense spray
or foam device to eject, release, or emit orthochlorobenzalmalononitrile or oleoresin
capsicum at another person is guilty of a misdemeanor, punishable by imprisonment for
not more than 2 years,” M.C.L. § 750.224d(2), except “under circumstances that would
justify the person’s use of physical force,” id. § 750.224d(5)(b). In our view, this
offense amounts to a “crime of violence.”

In the first place, the Michigan law imposes a more-than-one-year punishment.
Mosley does not argue otherwise.

In the second place, the law satisfies (at a minimum) the residual clause of the
second prong of the crime-of-violence definition because it “otherwise involves conduct
that presents a serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2). (We express no view on whether the law also “has as an element the use
. . . of physical force,” id. § 4B1.2(a)(1).) Pepper spray not only has the potential to
cause physical injury, but that is the very point of the device: It is “designed to cause
intense pain.” Headwaters Forest Def. v. Cnty. of Humboldt, 240 F.3d 1185, 1199 (9th
Cir. 2000), vacated on other grounds by 534 U.S. 801 (2001). Why would something
that operates effectively as a self-defense shield by “caus[ing] extreme pain and
prolonged impairment of bodily organs,” United States v. Melton, 233 F. App’x 545, 547
(6th Cir. 2007), not amount to a crime of violence when used as a sword in the exact
same way?

Known as oleoresin capsicum or OC, the active ingredient of pepper spray is an
“oily extract” from pepper plants found primarily in Africa, India, Japan and Mexico.
C. Gregory Smith & Woodhall Stopford, Health Hazards of Pepper Spray, 60 N.C. Med.
J. 268, 268 (1999). When distilled to create a heavy dose of capsaicin, pepper spray
incapacitates its victims. Melton, 233 F. App’x at 547.

The clinical explanation for this effect adds little to the discussion. Pepper spray,
one medical journal tells us,
No. 09-2359 United States v. Mosley Page 4

alters the neurophysiology of sensory neurons in the airway mucosa by
inducing the release of tachykinins or neuropeptides like substance P and
neurokinin A. These induce neurogenic inflammation in airway blood
vessels, epithelium, glands, and smooth muscle, leading to vasodilation,
increased vascular permeability, neutrophil chemotaxis, mucus secretion,
and bronchoconstriction.

Smith & Stopford, supra, at 269. Try this, however: pepper spray may range
from 400 to 1,000 times hotter than a jalapeno. People measure the “hotness”
of peppers in Scoville units. Id. at 268. A jalapeno comes in at around
5,000 Scoville units, and a habanero can reach up to 200,000. Id.
According to the Guinness Book of World Records, the world’s hottest
pepper is the “Naga Viper,” grown in the United Kingdom, which reached
1,382,118 Scoville units. “Hottest Chili,” Guinness World Records,
http://www.guinnessworldrecords.com/Search/Details/Hottest-chili/49118.htm (last
visited Mar. 25, 2011). The capsaicin found in pepper spray routinely reaches 2 million
Scoville units, and at least one commercially available brand boasts a 5.3 million
Scoville unit resin. Fabrice Czarnecki, Chemical Hazards in Law Enforcement, 3
Clinics in Occupational & Envtl. Med. 443 (2003). Even when diluted, these resins can
lead to “[s]erious adverse health effects, even death.” Smith & Stopford, supra, at 272.

This helps to explain why pepper spray can “cause extreme pain and prolonged
impairment of bodily organs. The spray burns the face [and] nostrils, restricts breathing
passages, and causes blindness.” Melton, 233 F. App’x at 547. It causes “a burning
sensation that causes mucus to come out of the nose, an involuntary closing of the eyes,
a gagging reflex, and temporary paralysis of the larynx.” Headwaters Forest Def., 240
F.3d at 1199–200; see also McCracken v. Freed, 243 F. App’x 702, 710 (3d Cir. 2007)
(“[P]epper spray is a dangerous chemical which causes severe pain and can, in some
cases, lead to serious injury.”).

Unjustified use of pepper spray in other contexts confirms that it poses a serious
risk of physical injury. Its use may constitute excessive force in violation of the Fourth
and Fourteenth Amendments. See Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009);
Bultema v. Benzie Cnty., 146 F. App’x 28, 34–35 (6th Cir. 2005); Champion v. Outlook
No. 09-2359 United States v. Mosley Page 5

Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004); Greene v. Barber, 310 F.3d 889, 898
(6th Cir. 2002); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994); see also, e.g., Tracy
v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010); Headwaters Forest Def., 240 F.3d at
1200. And courts have held that it “satisfies the requirements of a dangerous weapon,”
see U.S.S.G. § 2B3.1(b)(2)(D), because it “is ‘capable of inflicting death or serious
bodily injury.”’ United States v. Neill, 166 F.3d 943, 949 (9th Cir. 1999); see also
Melton, 233 F. App’x at 547; United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir.
1998).

Mosley responds that the law covers spray devices with a range of chemical-
irritant concentrations. Because it remains possible to violate the statute even with a
low concentration of chemicals, he argues that the offense does not involve conduct that
presents a serious risk of physical injury. But our duty is to focus on “the conduct
encompassed by the elements of the offense, in the ordinary case,” James, 550 U.S. at
208, not every case and assuredly not the exceptional case. Mosley identifies no “self-
defense spray or foam device,” M.C.L. § 750.224d, that contains so little irritant that it
poses little risk of physical injury. In view of the customary purpose of pepper spray,
it is hard to imagine why someone would produce a spray that has so few active
ingredients that it will do little damage and harder still to imagine how such a product
would be marketed. The idea behind the device is not to produce a slight irritant to a
mugger or a bear; it is to stop them both in their tracks by incapacitating them.

Mosley points out that the residual clause does not “cover[] every offense that
involve[s] a substantial risk of” physical injury; it covers only those crimes that, like the
enumerated offenses, involve “purposeful, violent, and aggressive conduct.” Begay v.
United States, 553 U.S. 137, 144–45 (2008). Claiming that the Michigan law amounts
to “a strict-liability offense,” Mosley Br. at 27, he argues that it would cover an
accidental spraying, which necessarily would not be “purposeful, violent, and aggressive
conduct,” Begay, 553 U.S. at 145. Yet what matters, as shown, is “the ordinary case,”
James, 550 U.S. at 208, not the theoretical one, and the ordinary case implicates the
requisite conduct. Cf. United States v. Young, 580 F.3d 373, 378 n.2 (6th Cir. 2009).
No. 09-2359 United States v. Mosley Page 6

The possibility that an accidental spraying would lead to a conviction not only
presents a remote risk, but it also appears to present a non-existent one. We know of no
such conviction under the law, and Mosley for his part does not identify one either. That
presumably is because, under Michigan law, “[c]riminal intent is ordinarily an element
of a crime,” even where “the Legislature did not expressly state that a defendant must
have a criminal intent to commit [the] crime,” People v. Jensen, 586 N.W.2d 748, 753
(Mich. Ct. App. 1998) (citing People v. Rice, 126 N.W. 981 (Mich. 1910)), and because
“[s]tatutes creating strict liability regarding all their elements are not favored,” People
v. Quinn, 487 N.W.2d 194, 199 (Mich. 1992).

But what if the assailant, Mosley warns, misses his target? The triggering of the
spray would still be covered by the law, he says, but how would it amount to purposeful,
violent and aggressive conduct? Yet the same thing could be said about pulling a trigger
on a gun (without hitting anyone), see United States v. Ruvalcaba, 627 F.3d 218, 225
(6th Cir. 2010), or many other attempted (but unsuccessful) intentional assaults.
Whether in the one setting or the others, the attempt still contains the requisite risk of
physical injury.

Mosley adds that Michigan’s characterization of the law as a “misdemeanor,” as
opposed to a felony, shows that it does not present a serious potential risk of injury. Yet
“whether a prior conviction is a crime of violence is a matter of federal law,” not state
law. United States v. Anglin, 601 F.3d 523, 527 (6th Cir. 2010); see also Ford, 560 F.3d
at 423. The federal guidelines target “any offense,” not just a felony, that is “punishable
by imprisonment for a term exceeding one year” and that presents a serious risk of
injury. U.S.S.G. § 4B1.2(a); see id. § 2K2.1(a). Nothing in the guidelines limits the
enhancement to felonies, nor does anything in them permit a State’s label on the crime
to control the federal inquiry.

Mosley adds one other thing—that a carve out for misdemeanor convictions in
§ 921 of Title 18 applies to § 2K2.1(a)(3). Yet while there are many parallels between
“violent felon[ies]” under the statute and “crimes of violence” under the guideline, this
is not one of them. “[F]elony conviction,” as used in § 2K2.1, is defined as “a prior
No. 09-2359 United States v. Mosley Page 7

adult federal or state conviction for an offense punishable by . . . imprisonment for a
term exceeding one year, regardless of whether such offense is specifically designated
as a felony.” U.S.S.G. § 2K2.1 cmt. 1. Section 4B1.2(a) says that “any offense under
federal law or state law, punishable by imprisonment for a term exceeding one year,”
may be a crime of violence if it otherwise qualifies. These are the provisions under
which Mosley was sentenced, and they cover M.C.L. § 750.224d(2) by their terms.

The same is not so for the federal statutes. True, the definition of “violent
felony” in 18 U.S.C. § 924(e)(2)(B) is similar, covering “any crime punishable by
imprisonment for a term exceeding one year.” True also, it contains an exception that
otherwise would apply to the pepper spray statute: “The term ‘crime punishable by
imprisonment for a term exceeding one year’ does not include . . . any State offense
classified by the laws of the State as a misdemeanor and punishable by a term of
imprisonment of two years or less.” Id. § 921(a)(20)(B). But § 921(a)(20)(B) applies
only to the words “[a]s used in . . . chapter [44 of Title 18],” id. § 921(a), not to the
guidelines in general or to § 2K2.1 in particular. No similar language in the relevant
guidelines offers a handhold for limiting the enhancement to felonies or to certain types
of misdemeanors. Other courts of appeals have reached the same conclusion. See
United States v. Damon, 595 F.3d 395, 399–400 (1st Cir. 2010) (holding that the
definition of “felony conviction” in U.S.S.G. § 2K2.1 does not incorporate 18 U.S.C.
§ 921(a)(20)(B)); United States v. Shelton, 91 F. App’x 247, 249 (3d Cir. 2004) (same);
United States v. Morris, 139 F.3d 582, 583–84 (8th Cir. 1998) (same). In the final
analysis, the use of pepper spray, a device chosen for self-defense precisely because it
injures and incapacitates attackers, “presents a serious potential risk of physical injury
to another” when used offensively. U.S.S.G. § 4B1.2(a)(2).

III.

Mosley’s remaining challenges to the results of this re-sentencing hearing also
come up short. He says that the district court should not have enhanced the guidelines
range based on two juvenile adjudications, see U.S.S.G. § 4A1.2(a), claiming that these
earlier adjudications would have been treated as one sentence “but for” an intervening
No. 09-2359 United States v. Mosley Page 8

arrest. Yet this “but for” occurrence—an intervening arrest—is one of the dividing lines
between offenses counted separately and those counted as a group. “Prior sentences are
always counted separately if the sentences were imposed for offenses that were separated
by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). An “arrest” exists for this purpose
even if the defendant “was taken into custody as a minor.” United States v. Curb, 625
F.3d 968, 972 (6th Cir. 2010). Once the court determines that an intervening arrest
separates two offenses, the “analysis ends [t]here.” Id. at 971.

Mosley argues that his 96-month sentence is substantively unreasonable.
Because the sentence falls within the guidelines range, a presumption of reasonableness
applies, United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc), and
Mosley has not overcome it. Factoring in the nature and circumstances of Mosley’s
conduct, the court found that he had committed an “extremely, extremely dangerous
offense,” carrying a “sawed-off [20-]gauge shotgun . . . stuck in [his] pants . . .
apparently [with] the safety off.” R.23 at 22. The court found that Mosley had shown
“no respect for the law,” and it believed the 96-month sentence would provide “adequate
deterrence.” Id. It also determined that the sentence imposed would “protect the public
from Mr. Mosley until he gets himself squared around.” Id. This sentence was not
unreasonably long. See United States v. Poynter, 495 F.3d 349, 351–52 (6th Cir. 2007).

Mosley adds that he wanted to speak at his re-sentencing hearing, something that
the district court did not invite him to do but something that neither he nor his attorney
asked to do. District court judges, as an initial matter, would be wise to make this
invitation in all sentencing hearings—“regardless of the timing,” regardless of whether
the hearing arises from a general or specific remand and regardless of whether an
allocution invitation is required. United States v. Jeross, 521 F.3d 562, 586 (6th Cir.
2008); see Fed. R. Crim. P. 32(i)(4)(A)(ii). The cost of the invitation is minimal, and the
potential price of neglecting to make it—further appeals—is not inconsiderable.

The government argues that there is no right to allocution in the context of a re-
sentencing hearing when the hearing arises from a limited remand. See Jeross, 521 F.3d
at 585; Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir. 1997); United States
No. 09-2359 United States v. Mosley Page 9

v. Coffey, 871 F.2d 39, 40–41 (6th Cir. 1989). We need not rely on that ground here,
however. Any such obligation does not suspend the rules of harmless error, see Fed. R.
Crim. P. 52(a), and any conceivable error here was harmless.

At Mosley’s initial sentencing hearing, the district court offered him an
opportunity to speak, and he made a brief statement apologizing for his past and present
conduct. Neither Mosley nor his counsel requested allocution at re-sentencing, where
all that the court and parties revisited was the crime-of-violence question, something that
had nothing to do with his prior allocution statement. In the context of an initial
sentencing hearing, it makes sense to presume prejudice when a court fails to offer
allocution to a defendant. See United States v. Haygood, 549 F.3d 1049, 1054 (6th Cir.
2008). But the same is not true in a re-sentencing hearing prompted by a successful
appeal that has nothing to do with, and in no way implicates, the right to allocution.

Mosley, indeed, has no cognizable theory of prejudice. He was not
“affirmatively denied an opportunity to speak during the hearing.” Hill v. United States,
368 U.S. 424, 472 (1962). He was not provided an invitation. In arguing that he would
have accepted that invitation, however, all he claims he would have addressed were the
“varied and complex” “legal issues” raised at re-sentencing, Mosley Reply Br. at 10–11,
namely the legal issues surrounding the question whether his other prior convictions
amounted to crimes of violence. But by the end of this hearing, which is when the
allocution invitation normally occurs, the judge had already made up his mind about
these “legal issues.” Allocution is not designed to allow defendants to re-argue their
lawyers’ legal positions, and, because that is all Mosley wished to do here, he cannot
show prejudice.

IV.

For these reasons, we affirm.