NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0788n.06
No. 06-1111 FILED
Dec 14, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
LEE EDWARD BLOMQUIST, WESTERN DISTRICT OF MICHIGAN
Defendant-Appellant.
/ OPINION
BEFORE: KENNEDY, MARTIN and CLAY, Circuit Judges.
CLAY, Circuit Judge. Defendant Lee Edward Blomquist appeals the district court’s order,
arguing that the district court erred in designating him a career offender because Michigan Compiled
Laws (“M.C.L.”) § 750.479 does not categorically refer to a “crime of violence” for purposes of
sentencing enhancement. We affirmed Blomquist’s designation as a career offender and the
resulting sentence. The Supreme Court subsequently vacated and remanded the judgment for further
consideration in light of Chambers v. United States, 555 U.S. ___, 129 S. Ct. 687 (2009). For the
reasons set forth herein, we REVERSE the district court’s determination that M.C.L. § 750.479
categorically refers to a crime of violence and REMAND with instructions for the district court to
conduct further proceedings in accordance with this opinion.
BACKGROUND
No. 06-1111
On March 17, 2003, Defendant Lee Edward Blomquist pleaded guilty to manufacturing more
than 100 marijuana plants, in violation of 18 U.S.C. § 2252(a)(1), and being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g). A Presentence Investigation Report (“PSR”) was
prepared following acceptance of Blomquist’s guilty plea. The PSR determined that Defendant’s
total offense level was 31 and his criminal history category was VI. Blomquist’s total offense level
was calculated as 31 instead of 23 because he was deemed a career offender pursuant to U.S.
Sentencing Guidelines (“USSG”) § 4B1.1. His criminal history category was calculated as VI
because he had 13 criminal history points and because he was deemed a career offender.1
Defendant’s designation in the PSR as a career offender was based upon two of his prior
convictions in Michigan: (1) a 1993 conviction for escape from lawful custody and attempted
resisting and obstructing an officer; and (2) a 1995 conviction for resisting and obstructing an officer.
Both offenses were deemed “crime[s] of violence” pursuant to USSG §§ 4B1.1 and 4B1.2.
Blomquist objected to the characterization of the 1993 offenses as crimes of violence because both
offenses are misdemeanors in Michigan and not punishable by at least one year of imprisonment.
He also objected to the classification of the 1995 offense as a crime of violence because it is a
misdemeanor and does not usually by its nature qualify as a crime of violence.
At the sentencing hearing on July 23, 2003, the district court found that Blomquist was a
career offender based on the 1995 conviction for resisting and obstructing an officer and a 1999
1
Pursuant to the Guidelines, “[a] career offender’s criminal category . . . shall be Category
VI,” unless “the defendant is convicted of 18 U.S.C. § 924(c) or § 929(a), and the defendant is
determined to be a career offender,” in which case, another Guidelines provision governs. USSG
§ 4B1.1(b)-(c).
2
No. 06-1111
conviction for third-degree felony fleeing and eluding an officer. Defendant’s sentencing range was
calculated to be 188 to 235 months based on his criminal history category of VI and a base offense
level of 31. However, the court granted the government’s motion for a downward departure of three
points for substantial assistance. The district court sentenced Blomquist to 140 months’
imprisonment for the manufacturing charge and 120 months for the firearm charge, to be served
concurrently. Had Blomquist’s total offense level been calculated as 23 instead of 31, with a
criminal history category of VI, the guidelines range would have been 92-115 months.
On appeal, we affirmed his conviction but vacated his sentence in light of United States v.
Booker, 543 U.S. 220, 263-64 (2005), and remanded the case to the district court. On remand, the
district court imposed the same sentence. Blomquist timely appealed, arguing that: (1) the district
court improperly determined that he was a career offender because his state conviction for resisting
and obstructing an officer does not constitute a “crime of violence;” and (2) his sentence is
unreasonable because (a) the district court imposed the same sentence on remand, (b) his criminal
history score overestimates his criminal past, (c) the district court failed to consider the sentencing
factors under 18 U.S.C. § 3553(a), and (d) the supervised release conditions were improper. We
affirmed Defendant’s conviction and sentence and Blomquist appealed to the Supreme Court. The
Supreme Court granted Blomquist’s petition for a writ of certiorari, vacating the judgment and
remanding to this Court for further consideration in light of Chambers.
DISCUSSION
A. Standard of Review
3
No. 06-1111
We review de novo “a district court’s conclusion that a crime qualifies as a predicate offense
for the career-offender designation.” United States v. Baker, 559 F.3d 443, 450 (6th Cir. 2009)
(quoting United States v. Skipper, 552 F.3d 489, 491 (6th Cir. 2009)).
B. Analysis
Under the Sentencing Guidelines, a defendant is a career offender if he was at least 18 years
old when he committed the instant offense, the offense is a felony “crime of violence” or controlled
substance offense, and he has been convicted of at least two other “crime[s] of violence” or
controlled substance offenses. USSG § 4B1.1(a). A “crime of violence” is any felony under state
or federal law, punishable by imprisonment for more than 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 injury to another.” Id. § 4B1.2(a) (emphasis added).
Application Note 1 of Section 4B1.2 clarifies this definition, enumerating several offenses, none of
which are at issue in this case.2 In determining whether an offense constitutes a crime of violence,
the inquiry focuses on “the offense of conviction.” Id. § 4B1.2 comment. (n.2). The Michigan
Resisting and Obstructing statute in effect at the time Blomquist was convicted read as follows:
2
Specifically, a “crime of violence” includes “murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary
of a dwelling.” USSG, § 4B1.2 comment. (n.1).
4
No. 06-1111
Sec. 479. Resisting, etc., officer in discharge of duty--Any person who shall
knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township
treasurer, constable 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 by the common council of any
city board of trustees, or common council or village council of any incorporated
village, or township board of any township or who shall assault, beat or wound any
sheriff, coroner, township treasurer, constable 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, shall be
guilty of a misdemeanor, punishable by imprisonment in the state prison not more
than 2 years, or by a fine of not more than 1,000 dollars.
M.C.L. § 750.479 (2002).
“A federal sentencing court considering an . . . enhancement . . . must take state law as it
finds it, including state courts’ interpretations of state law.” United States v. Collier, 493 F.3d 731,
737 (6th Cir. 2007) (citing James v. United States, 550 U.S. 192, 205-06 (2007)). In People v.
Vasquez, the Michigan Supreme Court held that “obstruct[ing]” as used in M.C.L. § 750.479
included “threaten[ing], either expressly or impliedly, physical interference and actual physical
interference with a police officer.” 465 Mich. 83, 100 (Mich. 2001). The court stated that “passive
conduct may sometimes be sufficient to constitute obstruction under the ‘resisting and obstructing’
statute” but only if that passive conduct “rises to the level of threatened physical interference.” Id.
at 97. Moreover, in finding that the conduct at issue was “not the type of conduct that Michigan’s
‘resisting and obstructing’ statute was intended to proscribe,” the court noted that “the police officer
was not faced with a situation in which his next act would, more likely than not, involve physical
confrontation.” Id. at 98-99.
5
No. 06-1111
In response to Vasquez, the Michigan legislature enacted § 750.81d(1) and amended §
750.479, opting to define the term “obstruct” as including “the use or threatened use of physical
interference or force or a knowing failure to comply with a lawful command.” M.C.L. §
750.479(8)(a) (emphasis added). Looking at the plain language of § 750.479, the offense does not
require a use or threatened use of force. Rather, a person can violate the statute simply by
“knowing[ly] fail[ing] to comply with a lawful command.” The offense also does not involve
burgling a dwelling, arson, extortion, or the use of explosives. Thus, this discussion will focus on
whether the offense is one that “otherwise involves conduct that presents a serious potential risk of
injury to another.” USSG § 4B1.2(a).
The “otherwise” clause “covers only similar crimes, rather than every crime that ‘presents
a serious potential risk of physical injury to another.’” Begay v. United States, 128 S. Ct. 1581, 1585
(2008). An offense is a crime of violence under this clause if it is “similar, in kind as well as in
degree of risk posed,” to the enumerated offenses. United States v. Mosley, 575 F.3d 603, 606 (6th
Cir. 2009) (quoting Begay, 128 S. Ct. at 1585). This determination is made using the categorical
approach set forth in Taylor v. United States, 495 U.S. 575, 601 (1990).
The categorical approach articulated in Taylor . . . and extended to plea-based
convictions in Shepard v. United States . . . for determining whether a prior
conviction constitutes a “violent felony” under the Armed Career Criminal Act
(ACCA) . . . has been applied by [the Sixth Circuit] to . . . determine] . . . whether a
prior conviction constitutes a “crime of violence” under USSG § 4B1.2(a).
United States v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008). This approach requires that we look only
to the fact of conviction and the statutory definition in determining whether that statutory definition
supports the conclusion that the defendant was convicted for a crime of violence. Id. (citing United
6
No. 06-1111
States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)). Therefore, “to determine, for example,
whether attempted burglary is a ‘violent felony,’ we [must] examine, not the unsuccessful burglary
the defendant attempted on a particular occasion, but the generic crime of attempted burglary.”
United States v. Chambers, 129 S. Ct. 687, 690 (2009) (citing James, 550 U.S. at 204–06). This
approach “avoid[s] ‘the practical difficulties and potential unfairness’ of permitting a sentencing
court to relitigate the facts and delve into the details of a prior conviction.” Bartee, 529 F.3d at 359
(quoting Armstead, 467 F.3d at 947).
In United States v. Mosley, we determined that under United States v. Chambers, a “knowing
failure to comply with a lawful command” conviction is a distinct offense and “is not a crime of
violence under the ‘otherwise’ clause [of USSG § 4B1.2(a)(2)].” 575 F.3d at 607.
The offense . . . does not involve comparable “purposeful, violent, and aggressive”
conduct. Begay, 128 S.Ct. at 1586. Even though the offense involves conduct that
often will be “purposeful,” “nothing in the statute . . . requires the offense to involve
. . . violence or . . . aggressiveness.” Ford, 560 F.3d at 423. All the individual must
do is know about an officer’s lawful order and fail to obey it, no matter the nature of
the order, no matter the circumstances. A knowing failure to comply with a lawful
command–say, by refusing to produce information, by ignoring an officer's command
not to cross the street or by failing to stay put at an accident scene–is no more
aggressive and violent than walking away from custody, id., drunk driving, Begay,
128 S.Ct. at 1588, or a failure to report to prison, Chambers, 129 S.Ct. at 691-93. If
these offenses are not crimes of violence, neither is this one . . . Nor, for similar
reasons, does the offense entail the same degree of risk of physical injury to other
individuals as the enumerated offenses.
Id. Although there may be instances where a person’s failure to follow an officer’s lawful command
poses more risk, there is “no basis . . . for concluding that the typical violation would create such a
danger.” Id.
7
No. 06-1111
Defendant argues that the Michigan Supreme Court’s interpretation of § 750.479 in Vasquez
leads to the conclusion that the statute embodies two distinct types of behavior—expressed
aggressive conduct and passive non-violent conduct—and therefore, the Mosley analysis applies.
The government counters that Mosley concerned M.C.L. § 750.81d, the sister statute to § 750.479,
and § 750.479 did not define “obstruct” to include a “knowing failure to comply with a lawful
command” until 2002. Thus, the government asserts, Mosley’s interpretation of that portion of the
statute as not categorically being a crime of violence is not controlling in this case.
The government’s argument is unconvincing. Under the categorical approach, this Court
must choose the correct category, which may require “draw[ing] distinctions that the state law on
its face does not draw.” Mosley, 575 F.3d at 606 (citing Chambers, 129 S. Ct. at 690). “[B]efore
[the Court] examine[s] the ordinary behavior underlying a conviction . . . [the Court] must decide
at the outset how to classify violations, and most significantly . . . whether the statute should be
treated as involving more than one category of offense for federal crimes-of-violence purposes.” Id.
As we stated in Mosley, under Chambers, a “knowing failure to comply with a lawful command”
conviction is a distinct offense and “is not a crime of violence.” Id. at 607.
Moreover, the Michigan legislature’s amendment of M.C.L. § 750.479 suggests that it
intended to clarify the meaning of “obstruct” in the wake of Vasquez. The Michigan Supreme Court
has stated that it “must pay particular attention to statutory amendments, because a change in
statutory language is presumed to reflect either a legislative change in the meaning of the statute
itself or a desire to clarify the correct interpretation of the original statute.” Bush v. Shabahang, Nos.
136617, 136653, 136983, 2009 WL 2259819, at *4 (Mich. July 29, 2009). The amendment at issue
8
No. 06-1111
does not reflect a legislative change in meaning but rather, clarifies the correct interpretation of the
statute. The amended statute defines the term “obstruct” as including “the use or threatened use of
physical interference or force or a knowing failure to comply with a lawful command.” M.C.L. §
750.479(8)(a) (emphasis added). Thus, it incorporates both the Vasquez interpretation and the
“knowing failure to comply” language, suggesting a desire by the Michigan legislature to clarify that
“obstruct[ing]” is not limited to the interpretation set forth in Vasquez.
The government argues that even if M.C.L. § 750.479 is not categorically a crime of violence,
that Blomquist’s resisting and obstructing offense nonetheless qualifies as a crime of violence.
Specifically, the government asserts that since the felony complaint states that “Defendant struck the
officer repeatedly and attempted to flee the scene after this officer had identified himself and had
attempted to place the Defendant under arrest,” Defendant’s conduct would still constitute a crime
of violence. (Supplemental Br. of Appellee at 8-9.) Blomquist does not address this issue, but rather
confines his argument to the fact that M.C.L. § 750.479 is not categorically a “crime of violence”
and thus, the case should be remanded to the district court for resentencing.
Both arguments have merit. Although the Mosley court was unable to classify the
defendant’s prior conviction and thus, could not deem it a crime of violence at the categorical stage,
that did not end the inquiry. As we stated in United States v. Ford, “the first question . . . [is] the
Taylor question . . . [t]he second question [is] the Shepard question.” 560 F.3d 420, 426 (6th Cir.
2009). If a defendant can violate the state law in a manner that amounts to a crime of violence and
in a manner that does not, the court can “consider the indictment, the plea agreement, the plea
colloquy or ‘comparable judicial record[s]’ to determine whether the individual’s actual conduct
9
No. 06-1111
‘necessarily’ establishes the nature of the offense.” Mosley, 575 F.3d at 606 (quoting Shepard v.
United States, 544 U.S. 13, 26 (2005)). Blomquist is correct that M.C.L. § 750.479 is not
categorically a crime of violence. However, if upon examining the appropriate Shepard documents,
the government’s assertions about Blomquist’s offense are true, then that offense would constitute
a crime of violence and Blomquist’s career offender enhancement would be proper. Thus,
resentencing would be unnecessary. We, therefore, remand the case to the district court for
reconsideration of Defendant’s sentence based on the appropriate Shepard documents.
CONCLUSION
For the reasons set forth above, we REVERSE the district court’s determination that M.C.L.
§ 750.479 is categorically a crime of violence for purposes of the career offender enhancement and
REMAND for further proceedings consistent with this opinion.
10
No. 06-1111
Kennedy, Circuit Judge, concurring.
I concur in the panel’s order but have one additional reason to order remand. On remand,
the government may choose to bolster its claim that Blomquist was convicted for a crime of violence
by introducing the “transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant.” Shepard v. United States, 544 U.S. 13, 26 (2005).
Before a court in Michigan can accept a guilty plea to a felony, it must “by questioning the
defendant, . . . establish support for a finding that the defendant is guilty of the offense charged or
the offense to which the defendant is pleading.” Mich. Ct. R. 6.302(D). Although considerable time
has elapsed since the defendant pleaded guilty, the government may be able to obtain these judicial
records and provide them to the district court in support of the enhancement.
11