NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0342n.06
No. 08-2438 FILED
Jun 07, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
MINION CARTER, )
)
Defendant-Appellant. )
)
BEFORE: MARTIN and GRIFFIN, Circuit Judges; and DUGGAN, District Judge.*
GRIFFIN, Circuit Judge.
Defendant Minion Carter appeals the district court’s application of the Sentencing
Guidelines’s career offender enhancement to his sentence following his plea of guilty to distribution
of cocaine base. Because the government concedes that assaulting, battering, wounding, resisting,
obstructing, or endangering a police officer under Mich. Comp. Laws § 750.81d(1) is not
categorically a crime of violence, see United States v. Mosley, 575 F.3d 603 (6th Cir. 2009), we
vacate Carter’s sentence and remand for resentencing.
I.
In 2008, Carter pleaded guilty to distributing cocaine base. See 21 U.S.C. § 841(a)(1). After
*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 08-2438
United States v. Carter
finding that Carter was a career offender, see U.S.S.G. § 4B1.1, the district court calculated an initial
Guidelines range of 188 to 235 months, which it amended to 140 to 175 months after granting the
government’s motion for substantial assistance under U.S.S.G. § 5K1.1. The district court sentenced
Carter to 140 months in prison.
In explaining its career-offender determination, the district court held, over Carter’s
objections, that Carter’s two prior state court convictions for assaulting, battering, wounding,
resisting, obstructing, or endangering a police officer under Mich. Comp. Laws § 750.81d(1) were
crimes of violence. Carter did not object to the district court’s additional conclusion that his
previous conviction of breaking and entering an occupied dwelling with intent to commit larceny in
violation of Mich. Comp. Laws § 750.110(1) was a crime of violence. Based upon these rulings, the
district court ruled that Carter was eligible for the career offender enhancement under U.S.S.G. §
4B1.1, which applies when “(1) the defendant was at least eighteen years old at the time [he]
committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled substance offense.” § 4B1.1(a).
Carter timely appealed.
II.
The single issue raised in this appeal is whether Carter’s convictions under Mich. Comp.
Laws § 750.81d(1) are crimes of violence for purposes of the career offender enhancement.
Following briefing, the government filed a July 23, 2009, letter of supplemental authority advising
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No. 08-2438
United States v. Carter
of this court’s decision in United States v. Mosley. Mosley held that a violation of § 750.81d(1) was
not categorically a crime of violence, but rather, “contain[ed] 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[.]’” 575 F.3d
at 607 (citations omitted). Because we concluded in Mosley that the latter subcategory is not a crime
of violence, id. at 607-08, we vacated Mosley’s sentence and remanded the case to the district court
to allow the government “to show whether the indictment, the plea agreement, the plea colloquy or
‘comparable judicial record[s]’ show that Mosley ‘necessarily admitted’ committing a crime of
violence.” Id. at 608 (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)). We explained that
“[i]t may . . . turn out that [Mosley] was convicted for ‘assault[ing]’ an officer, not for failing to
comply with an officer’s lawful command.” Mosley, 575 F.3d at 608.
Like Mosley, the district court in the present case erroneously resolved the crime of violence
issue at the categorical stage under Taylor v. United States, 495 U.S. 575, 602 (1990), consistent
with the position advocated by the government. The government admits that “[t]he record does not
contain information from the types of documents that may be consulted under Shepard to determine
what subcategory of crime was involved in [Carter’s] prior resisting and obstructing conviction(s)”
and “concedes that [Carter’s] sentence . . . should be vacated and . . . remanded to the district court
for resentencing in light of Mosley.” (Citation omitted.) As in Mosley, the government on remand
will have the opportunity to argue that the relevant Shepard documents demonstrate that one or both
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No. 08-2438
United States v. Carter
of Carter’s convictions under Mich. Comp. Laws § 750.81d(1) constitute a crime of violence.
III.
For these reasons, we vacate Carter’s sentence and remand for resentencing.
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