United States v. Flores

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0077p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant. -
UNITED STATES OF AMERICA,
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No. 06-1152
v.
,
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OSCAR FLORES, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-81122—Avern Cohn, District Judge.
Argued: January 24, 2007
Decided and Filed: February 23, 2007
Before: GUY, SUHRHEINRICH, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Janet L. Parker, ASSISTANT UNITED STATES ATTORNEY, Bay City, Michigan,
for Appellant. Douglas R. Mullkoff, Ann Arbor, Michigan, for Appellee. ON BRIEF: Janet L.
Parker, ASSISTANT UNITED STATES ATTORNEY, Bay City, Michigan, for Appellant. Douglas
R. Mullkoff, Ann Arbor, Michigan, for Appellee.
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OPINION
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GRIFFIN, Circuit Judge. Oscar Flores was convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The government appeals the district court’s
imposition of a sentence of 100 months of incarceration in connection with Flores’s conviction. The
government argues that the district court erred in concluding that Flores was ineligible to be
sentenced pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and in failing
to apply enhancements under the Sentencing Guidelines because the jury did not make findings on
those matters. For the reasons set forth below, we hold that the district court correctly ruled that
Flores’s prior conviction for carrying a concealed weapon was not a conviction for a “violent
felony” under the ACCA. However, we reverse the district court’s failure to make findings of fact
concerning possible sentence enhancements and remand for resentencing.

1
No. 06-1152 United States v. Flores Page 2

I.
On January 23, 2001, a federal grand jury returned a superseding indictment against Flores,
charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The indictment alleged that “at the time of this offense, the defendant had two previous convictions
by courts for serious drug felonies, and a conviction for a violent felony, committed on occasions
different from one another, in violation of Title 18, United States Code, sections 922(g)(1) and
924(e).”
On April 9, 2002, the government filed a Notice Specifying Oscar Flores as an Armed Career
Criminal. The notice alleged that Flores was subject to the sentence enhancement provision of 18
U.S.C. § 924(e), and identified the following four previous convictions that the government
contended are predicate offenses under § 924(e):
1. On or about November 2, 1970, Oscar Flores was adjudicated in Saginaw
County, State of Michigan, for Assault with a Knife, in violation of the laws
of the State of Michigan, and that adjudication constitutes a conviction under
Title 18, United States Code, section 924(e)(2)(B)(ii) and (C);
2. On or about January 12, 1977, Oscar Flores was convicted in Saginaw
County, State of Michigan, of Delivery of Heroin, in violation of the laws of
the State of Michigan, which is also a conviction under Title 18, United
States Code, section 924(e)(2)(A)(ii);
3. On or about December 9, 1987, Oscar Flores was convicted in Saginaw
County, State of Michigan, of Carrying a Concealed Weapon, in violation of
the laws of the State of Michigan, which is also a conviction under Title 18,
United States Code, section 924(e)(2)(B)(¥);
4. On or about December 28, 1987, Oscar Flores was convicted in U.S. District
Court, Eastern District of Michigan, Northern Division, of Distribution of
Heroin in violation of the laws of the United States, which is also a
conviction under Title 18, United States Code, section 924(e)(2)(A)(¥).
On May 23, 2002, a jury found Flores guilty of being a felon in possession of a firearm. The
Presentence Investigative Report (“PSR”) scored Flores under the Guidelines at offense level 33,
criminal history VI, and recommended an imprisonment range of 235 to 293 months. With regard
to the offense level, Flores received a base offense level of 24, a two-point enhancement because
the firearm involved in the underlying offense was stolen, a four-point enhancement because Flores
possessed the firearm in conjunction with the separate offense of “Fleeing and Eluding,” a two-point
enhancement for obstruction of justice, and a one-point enhancement as an armed career criminal
under the ACCA.
The district court initially held two sentencing hearings, as the parties disputed whether
Flores’s 1970 conviction as a juvenile for assault with a knife should properly be considered for
purposes of classification under the ACCA. The district court concluded that Flores’s 1970
conviction was a predicate offense under the ACCA, and sentenced Flores to a custody term of 235
months.
On appeal, we vacated Flores’s sentence on the ground that the district court erred in
including Flores’s juvenile conviction for assault with a knife as a predicate offense under the
ACCA. United States v. Flores, 118 F. App’x 49 (6th Cir. 2004) (per curiam) (unpublished). We
remanded Flores’s case to the district court for resentencing and further consideration of whether
Flores’s December 19, 1987, conviction for carrying a concealed weapon counts as a predicate
No. 06-1152 United States v. Flores Page 3

offense under the ACCA. Id. at 53-54. We noted that, although a prior panel of this court had
affirmed an Eastern District of Michigan opinion which held that carrying a concealed weapon is
not a violent felony under the ACCA, the panel’s decision was unpublished and, therefore, not
binding. Id. at 54 n.5 (citing United States v. Johnson, 704 F. Supp. 1403, 1407 (E.D. Mich. 1989),
aff’d per curiam, 900 F.2d 260 (6th Cir. 1990)).
On remand, the district court held two hearings on April 1, 2005, and October 11, 2005,
respectively, to determine whether Flores’s conviction for carrying a concealed weapon should count
as a predicate offense under the ACCA. Before ruling on that issue, the district court decided, over
the government’s objection, that the offense level enhancements included in the PSR should not
apply in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005).
With the enhancements no longer applied, Flores’s offense level was recalculated to 24, with a
resulting sentencing range of 100 to 125 months.
At the October 11 hearing, the district court held that Flores’s prior conviction for carrying
a concealed weapon was not a predicate offense under the ACCA and sentenced Flores to a term of
100 months of incarceration. The district court issued a memorandum on November 17, 2005,
which clarified the grounds for its sentencing determination and purported to supersede the court’s
comments at the sentencing hearings. The court explained its reasoning as follows:
Carrying a concealed weapon does not involve any actual, attempted, or threatened
use of violence. It merely describes a status of a person that the law forbids. If being
a felon in possession of a firearm is not a predicate offense for establishing Armed
Career Criminal status, a non-felon concealing possession of a weapon should not
be either. Carrying a concealed weapon does not come with the same type or degree
of serious potential risk as burglary and arson, and the Court hesitates to greatly
expand the list of offenses establishing an Armed Career Criminal to any offense that
creates a public risk. Rather than adopt such an incongruous result, the Court
adopted the position taken by the Eighth Circuit and the Sixth Circuit’s unpublished
opinion in Johnson, and did not consider Flores an Armed Career Criminal when
deciding his sentence.
This timely appeal followed.
II.
We review de novo the district court’s determination that Flores does not qualify as an armed
career criminal under the ACCA. United States v. Hill, 440 F.3d 292, 295 (6th Cir. 2006). In
determining whether Flores’s conviction for carrying a concealed weapon is a predicate offense
under the ACCA, we take a categorical approach, looking “only to the statutory definitions of the
prior offenses, and not to the particular facts underlying those convictions” to determine whether
a sentence should be enhanced. Taylor v. United States, 495 U.S. 575, 600 (1990); United States
v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006).
The ACCA provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on occasions different from one
another, such person shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to, such person with
respect to the conviction under section 922(g).
No. 06-1152 United States v. Flores Page 4

18 U.S.C. § 924(e)(1). The government challenges the district court’s determination that Flores’s
December 9, 1987, conviction for carrying a concealed weapon was not a conviction for a “violent
felony” under the ACCA, and that Flores was therefore ineligible for the fifteen-year minimum
sentence that the ACCA requires.
The ACCA defines “violent felony” as follows:
[T]he term “violent felony” means any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be punishable by imprisonment
for such term if committed by an adult, that –
(¥) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B). Both parties have focused their arguments on § 924(e)(2)(B)(ii), debating
whether carrying a concealed weapon “involves conduct that presents a serious potential risk of
physical injury to another . . . .”
As the district court noted, there is a circuit split on the issue whether a conviction for
carrying a concealed weapon “involves conduct that presents a serious potential risk of physical
injury to another” such that it should count as a violent felony under the ACCA. In United States
v. Whitfield, 907 F.2d 1798 (8th Cir. 1990), the Eighth Circuit became the first federal appeals court
to address this issue. The Whitfield court’s discussion of this topic, however, was short and
conclusory:
Whitfield also claims his conviction of carrying a concealed weapon under MO. REV.
STAT. § 571.030(1) (1985) is not a violent felony. We agree. Although carrying an
illegal weapon may involve a continuing risk to others, the harm is not so immediate
as to “present[] a serious risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii); see also United States v. Johnson, 704 F. Supp. 1403, 1407 (E.D.
Mich. 1989) (carrying a concealed weapon is not a violent felony), aff’d per curiam,
900 F.2d 260 (6th Cir. 1990).
Whitfield, 907 F.2d at 800.
In United States v. Hall, 77 F.3d 398 (11th Cir. 1996), the Eleventh Circuit reached the
opposite conclusion. The Hall court distinguished the crime of carrying a concealed weapon from
the crime of possession of a firearm by a felon, which it had previously held was not a violent felony
under the ACCA. Id. at 401-02 (citing United States v. Oliver, 20 F.3d 415, 418 (11th Cir. 1994)).
The court reasoned that the crime of carrying a concealed weapon entails a greater risk of immediate
harm than the crime of being a felon in possession of a firearm; to violate Florida’s concealed
weapon statute, the weapon must be immediately accessible to the defendant, while a felon may
violate the felon in possession statute by possessing a firearm constructively. Id. at 401-02 n.4.
After careful review of these conflicting cases, and of the parties’ briefs, we conclude that
the Eighth Circuit’s approach in Whitfield is the better-reasoned position, as it is consistent with the

1
In Johnson, 900 F.2d at 260, we did not discuss the district court’s ruling that the defendant’s prior conviction
for carrying a concealed weapon was not a conviction for a “violent felony” under the ACCA.
No. 06-1152 United States v. Flores Page 5

text of 18 U.S.C. § 924(e)(2)(B) and our prior interpretations of the ACCA. We, therefore, hold that
the crime of carrying a concealed weapon does not involve such “conduct that presents a serious
potential risk of physical injury to another” that a conviction under MICH. COMP. LAWS § 750.227
should properly be considered a conviction for a violent felony under the ACCA.2
First, the text of 18 U.S.C. § 924(e)(2)(B) suggests that the term “violent felony” does not
include a conviction for carrying a concealed weapon. Section 924(e)(2)(B)(ii) identifies “burglary,
arson, or extortion, [or] use of explosives” as illustrative examples of conduct that presents “serious
potential risk of physical injury” and are properly considered violent felonies. Each of these crimes
involves affirmative and active conduct that is not inherent in the crime of carrying a concealed
weapon. More tellingly, the statute provides that the use – rather than the possession – of explosives
is conduct that rises to the level of a violent felony. 18 U.S.C. § 924(e)(2)(B)(ii); see also United
States v. Oliver, 20 F.3d 415, 418 (11th Cir. 1994).
Second, we also observe that our prior decision in Orr v. Hawk, 156 F.3d 651, 652 (6th Cir.
1998), provides some guidance. Orr involved a habeas petition by a federal prisoner who sought
to receive a reduction in his sentence pursuant to 18 U.S.C. § 3621(e)(1)(C) for participating
successfully in a substance abuse program. The Bureau of Prisons (“BOP”) denied Orr’s petition,
reasoning that 18 U.S.C. § 3621(e)(2)(B) provides only that inmates convicted of a “nonviolent
offense” may receive a sentence reduction and that Orr was precluded from taking advantage of the
sentence reduction because his felon-in-possession conviction was for a crime of violence within
the meaning of 18 U.S.C. § 924. Id. The BOP pointed to an internal rule that listed all offenses the
BOP deemed to be crimes of violence, and which included the felon-in-possession statute. Id. Orr
filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in federal court, alleging that the
BOP had deprived him of his right to early release without due process of law and that the BOP’s
definition of “crime of violence” conflicted with the United States Sentencing Commission’s
definition set forth at U.S.S.G. § 4B1.2.
On appeal, we first noted that, because 18 U.S.C. § 3621 does not define “nonviolent
offense,” we must look to the definition of the term “crime of violence” as set forth in 18 U.S.C.
§ 924(c)(3) to delineate the meaning of “nonviolent offense.” Id. at 653.3 Under the definition set
forth in § 924(c)(3), a prisoner was expressly ineligible for early release if his offense was a felony
that “had as an element the use, attempted use, or threatened use of physical force against the person

2
We note that a panel of our court considered this issue recently in United States v. Alexander, Nos. 05-1542,
05-1632, 2007 WL 419796, at *3 (6th Cir. Feb. 9, 2007) (unpublished), and concluded that “a concealed-weapon
conviction [does not] rise[] to the level of a ‘violent felony.’” Because Alexander was reviewed under the plain error
standard, the panel’s conclusion on the issue was technically dicta; due to the conflicting precedents in our sister circuits
and the lack of a leading case on the issue from this court, the district court’s error in labeling a prior conviction for
carrying a concealed weapon a “violent felony” under the ACCA was not “plain.” Asmo v. Keane, Inc., 471 F.3d 588,
599-600 (6th Cir. 2006) (observing that “[a] judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case” is not precedentially binding) (citation omitted). Moreover, Alexander was
unpublished and, hence, not precedentially binding under the doctrine of stare decisis. FDIC v. Dover, 453 F.3d 710,
715 (6th Cir. 2006). Although we are not bound by Alexander, we agree with its well-reasoned analysis and join in its
conclusion that a conviction for carrying a concealed weapon does not “involve[] conduct that presents a serious
potential risk of physical injury to another” such that it should count as a violent felony under the ACCA.
3
Although “crime of violence” and “violent felony” are terms of art whose definitions are not interchangeable,
the operative language under § 4B1.2’s definition of “crime of violence” is identical to the language used to define
“violent felony” under 18 U.S.C. § 924. See Oliver, 20 F.3d at 417 (“The only language in either § 4B1.2 or § 924(e)
that might implicate the level of violence involved in the possession of a firearm is that which proscribes ‘conduct that
presents a serious potential risk of physical injury to another.’”). Thus, although we have not yet considered whether
the crime of being a felon in possession of a firearm is a “violent felony” as defined in 18 U.S.C. § 924, we find it
instructive that this court has concluded that being a felon in possession of a firearm does not involve “conduct that
presents a serious potential risk of physical injury to another.”
No. 06-1152 United States v. Flores Page 6

or property of another,” or that, “by its nature, involved a substantial risk that physical force may
be used in the course of committing the offense.” Id. (quoting 18 U.S.C. § 924(c)(3)). The BOP
later amended its regulation to preclude inmates from receiving a sentence reduction “whose current
offense is a felony . . . that involved the carrying, possession, or use of a firearm or other dangerous
weapon or explosives.” Id.
We held that the BOP’s exclusion of possessory offenders from consideration of early release
was improper. Id. at 655. After noting that “every section of Title 18 relies on a virtually identical
definition of crime of violence,” we observed that “[n]o section of the United States Code defines
crimes of violence . . . to include 18 U.S.C. § 922(g) as a violent crime.” Id. at 655-56.4 We noted
further that this court, “as well as a number of our sister courts of appeals,” has held that the
common definition of “crime of violence” does not include § 922(g) offenses. Id. at 656 (citing,
e.g., United States v. Hardon, 1998 U.S. App. LEXIS 12180 (6th Cir. June 4, 1998) (unpublished);
Royce v. Hahn, 1998 U.S. App. LEXIS 10891 (3d Cir. May 29, 1998) (unpublished); United States
v. Doe, 960 F.2d 221, 224 (1st Cir. 1992).
We also find a district court opinion arising from the Eastern District of Michigan, United
States v. Johnson, 704 F. Supp. 1403 (E.D. Mich. 1989), aff’d per curiam, 900 F.2d 260 (6th Cir.
1990), instructive. In Johnson, the court considered the same issue that we are faced with today –
whether the offense of carrying a concealed weapon is a violent felony under the ACCA. The court
began its analysis by acknowledging its prior holding in United States v. Jones, 651 F. Supp. 1309,
1310 (E.D. Mich. 1987), where it had concluded previously that the offense of being a felon in
possession of a firearm is a crime of violence.5 In so doing, the Jones court identified the following
factors which suggested that the possession of a firearm by a felon posed a “substantial risk that the
felon will commit a violent act during the entire period of time that the felon possesses the firearm”:
(1) Congress considered convicted felons to be more likely to use firearms in an irresponsible
manner than the general public; (2) due to their experience in the criminal justice system and to
educational efforts by probation and parole officers, most convicted felons are aware that they are
forbidden from possessing firearms and therefore have demonstrated little regard for the law when
they impermissibly possess guns; (3) the illegal possession of a firearm is a continuing act that poses
a continuing risk; and (4) convicted felons are more likely to commit additional felonies than are
other members of the general public. Id. at 1310.
The Johnson court reasoned that “a closer analysis of Jones demonstrates that the concealed
weapon offense . . . is not a ‘violent felony’ under the ACCA.” Johnson, 704 F. Supp. at 1407. The
court noted that of the four reasons for classifying the unlawful possession of a firearm by a felon
as a predicate offense under the ACCA, three were based on the knowledge that the illegal actor was
a convicted felon. Id. “When the generic crime of carrying a concealed weapon is placed under the
same analytical microscope, the three arguments limited to activity by felons are inapposite. Only
the third of the four Jones arguments speaks to the potentially violent nature of illicit gun possession
by citizens in general, as opposed to felons.” Id. Although Johnson is a district court opinion and,
therefore, not binding on this court, we find it persuasive and concur in its analysis and holding.
Finally, we observe that in 2001, Michigan became a “right to carry” state, allowing qualified
citizens to carry concealed weapons after receiving a license to do so from a county concealed
weapon licensing board. Mich. Pub. Acts 2000, No. 381 (codified at MICH. COMP. LAWS § 28.425a-
w). We hesitate to conclude that the act of carrying a concealed weapon poses such a serious

4
Moreover, as the Oliver court pointed out, the application notes to U.S.S.G. § 4B1.2 specify that the term
“crime of violence” does not include the offense of unlawful possession of a firearm by a felon.
5
Jones predated our opinion in Orr by 11 years.
No. 06-1152 United States v. Flores Page 7

potential risk of physical injury to others when the Michigan Legislature now permits its citizens
to carry concealed weapons, provided that they follow certain licensing requirements. We therefore
affirm the district court’s determination that Flores’s December 19, 1987, conviction for carrying
a concealed weapon was not a conviction for a “violent felony,” and that Flores is not eligible to be
sentenced as an armed career criminal under the ACCA.
III.
The government next argues that the district court erred during resentencing on April 1,
2005, when it declined to make findings of fact concerning the sentence enhancements
recommended by the PSR. In the original sentencing hearing, held on April 3, 2003, the district
court applied the sentence enhancements and concluded that Flores’s offense level was 32, subject
to a sentencing range of 210 to 262 months. On remand, however, the district court stated that the
Supreme Court’s decision in Booker required the underlying facts supporting the sentence
enhancements to be determined by the jury, and that Flores’s offense level – without the
enhancements – was 24, resulting in a sentencing range of 100 to 125 months. We agree with the
government that the district court erred in so concluding.
We have held repeatedly that Booker and its precursor, Apprendi v. New Jersey, 530 U.S.
466 (2000), did not eliminate judicial fact-finding during sentencing. Rather, district courts must
“calculate the Guideline range as they would have done prior to Booker, but then sentence
defendants by taking into account all of the relevant factors of 18 U.S.C. § 3553, as well as the
Guidelines range.” United States v. Stone, 432 F.3d 651, 655 (6th Cir. 2005); see also United States
v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006). Moreover, Apprendi is not triggered so long as the
judicial findings of fact do not result in the defendant receiving a sentence that exceeds the statutory
maximum. United States v. Hough, 276 F.3d 884, 890 (6th Cir. 2002); United States v. Schulte, 264
F.3d 656, 660 (6th Cir. 2001); see also United States v. Woods, 39 F. App’x 72, 75 (6th Cir. 2002)
(unpublished) (“This court has declined to require that enhancements imposed pursuant to the
Guidelines be found by a jury beyond a reasonable doubt as long as the sentence imposed does not
exceed the statutory maximum.”).
Here, the district court was within its right to make findings of fact with regard to the
sentence enhancements recommended by the PSR. The district court concluded properly that
because Flores was not eligible to be sentenced as an armed career criminal pursuant to the ACCA,
he was subject to the statutory maximum sentence of ten years as provided in 18 U.S.C. § 924(a)(2).
Thus, had the district court made the findings of fact urged by the government and applied the
sentence enhancements recommended by the PSR, no violation of Apprendi would have occurred
so long as the district court sentenced Flores within the statutory maximum of ten years. We
therefore remand this case back to the district court to make findings of fact and resentence Flores
consistent with this opinion.
IV.
Finally, in its brief, the government briefly and summarily argues that the district court’s
sentence was procedurally unreasonable for its failure to adequately consider all of the factors
enumerated in 18 U.S.C. § 3553(a). Because the government has not developed this argument in
its brief, it has been forfeited. Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 448 (6th Cir. 2006)
(“Plaintiff’s one sentence argument to this effect is therefore insufficient to preserve this argument
on appeal.”). Although we do not remand this case for resentencing on this ground, but rather for
the reasons articulated in section III, supra, we remind the district court that “district courts
imposing sentences . . . are to be guided by the factors set forth in 18 U.S.C. § 3553(a),” United
States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005), and that this court “may conclude that a
sentence is unreasonable when the district judge fails to consider the applicable Guidelines range
No. 06-1152 United States v. Flores Page 8

or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects
what the judge deems an appropriate sentence without such required consideration.” United States
v. Webb, 403 F.3d 373, 383 (6th Cir. 2005) (internal quotations omitted).
V.
For the foregoing reasons, we affirm the district court’s ruling that Flores is ineligible to be
sentenced as an armed career criminal under the ACCA. We reverse the district court’s failure to
make findings of fact with regard to the sentence enhancements recommended by the PSR and
remand for resentencing consistent with this opinion.