United States v. Kearney

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0094p.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. 10-1532
v.
,
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Defendant-Appellant. -
JAMES M. KEARNEY,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-20143-001—Arthur J. Tarnow, District Judge.
Argued: November 18, 2011
Decided and Filed: April 5, 2012
Before: MERRITT, CLAY, and SUTTON, Circuit Judges.

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COUNSEL
ARGUED: Joseph A. Niskar, Southfield, Michigan, for Appellant. Graham L. Teall,
ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Joseph A. Niskar, Southfield, Michigan, for Appellant. Graham L. Teall,
ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
CLAY, J., delivered the opinion of the court, in which SUTTON, J., joined.
MERRITT, J. (pp. 11-13), delivered a separate dissenting opinion.
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OPINION
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CLAY, Circuit Judge. Defendant James M. Kearney pleaded guilty to one count
of possession with intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), and one count of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). On appeal, Kearney challenges the district court’s decision to

1
No. 10-1532 United States v. Kearney Page 2

enhance his sentence pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e). For the reasons set forth below, we AFFIRM.

BACKGROUND

A federal grand jury indicted Kearney on one count of possession with intent to
distribute crack cocaine and one count of being a felon in possession of a firearm. On
October 27, 2009, Kearney pleaded guilty to the firearm offense, pursuant to a written
plea agreement. The plea agreement provided for a sentencing range of 70 to 87 months
imprisonment under the Sentencing Guidelines (the “Guidelines” or USSG). However,
the parties also expressly acknowledged that this range could be altered if the sentencing
judge applied an enhancement pursuant to ACCA.

Shortly thereafter, Kearney obtained new representation, and he moved to set
aside his plea agreement. Kearney argued that his prior counsel should have preserved
the right to argue that he did not qualify as an armed career criminal. The district court
granted Kearney’s motion, set aside the written plea agreement, and left Kearney’s guilty
plea intact. The ruling allowed Kearney to argue against ACCA enhancement and
preserved Kearney’s right to appeal his sentence.

On March 29, 2010, the district court held another sentencing hearing. At the
second hearing, Kearney pleaded guilty to the narcotics offense. He also argued that he
was not an armed career criminal because two of his prior convictions for domestic
violence did not qualify as “violent felonies” under ACCA. He contended that his
domestic violence convictions were misdemeanors under Michigan law, with each
carrying a possible maximum sentence of 93 days imprisonment. However, Kearney
conceded that the Michigan courts had enhanced both convictions pursuant to a state
recidivism provision. As a result, Kearney actually faced a two year maximum sentence
on each charge.1 However, Kearney suggested that these enhancements ought to be

1
The PSR indicates that Kearney was previously convicted of two counts of domestic violence
in 1995, which provided the basis for the state enhancement.
No. 10-1532 United States v. Kearney Page 3

disregarded for ACCA’s purposes, and he suggested that the sentencing judge consider
these convictions as though he was sentenced only on his base offense conduct.

The district court rejected Kearney’s argument, applied an ACCA enhancement,
and sentenced Kearney to the statutory mandatory minimum of 180 months
imprisonment on the firearms offense, to be served concurrent to a one day sentence on
the narcotics offense.

Kearney timely appealed. Original jurisdiction exists pursuant to 18 U.S.C.
§ 3231. Appellate jurisdiction exists under 28 U.S.C. § 1291.

ANALYSIS

A. Statutory Framework

This Court reviews de novo a district court’s determination that an offense is a
“violent felony” under ACCA. United States v. Benton, 639 F.3d 723, 729 (6th Cir.
2011) (internal citations omitted).

Title 18, Section 922(g)(1) of the United States Code makes it a crime for a
convicted felon to possess a firearm. Although the maximum sentence for a felon-in-
possession charge is ten years imprisonment, ACCA enhances the applicable sentence
to a fifteen year mandatory minimum in the case of a defendant who has three or more
prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e).

ACCA further defines a “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year
. . . that (i) 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). Thus, there are three types of crimes that qualify as violent
felonies under ACCA: those having an element of physical force under subsection (i);
the enumerated offenses under subsection (ii); and conduct that otherwise presents a
“serious potential risk of physical injury to another” under the “residual clause” of
No. 10-1532 United States v. Kearney Page 4

subsection (ii). See United States v. Mansur, 375 F. App’x 458, 463 (6th Cir. 2010)
(citing United States v. Young, 580 F.3d 373, 377 (6th Cir. 2009)).

In order for an offense to be counted under § 924(e)(2)(B)(ii)’s residual clause,
the crime must be “roughly similar, in kind as well as in degree of risk posed,” to the
felonies enumerated under the statute. Begay v. United States, 553 U.S. 137, 143 (2008).
Most ACCA qualifying offenses thus involve “purposeful, violent, and aggressive
conduct.” See id. at 144–45. However, the Supreme Court recently clarified that an
offense may also qualify as a “violent felony” by reference to the risk of harm and the
mens rea involved. Sykes v. United States, 131 S. Ct. 2267, 2275 (2011); see also
Chambers v. United States, 555 U.S. 122, 127–28 (2009).

In determining whether a prior conviction meets these standards, we use a two
step analysis. First, we apply a “categorical approach,” looking to the statutory
definition of the prior offense and not to the particular facts underlying the defendant’s
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 “violent felony” and in a way that would not,
we apply a “modified categorical approach,” in which we consider whether the
indictment, guilty plea, or similar documents necessarily establish the nature of the prior
conviction. United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010) (citing Shepard
v. United States, 544 U.S. 13, 26 (2005)).

Michigan’s domestic violence statute criminalizes the assault or assault and
battery of a person with whom one has a domestic relationship. Mich. Comp. Laws
§ 750.81(2). An individual who commits domestic violence is guilty of a misdemeanor
punishable by imprisonment of not more than 93 days. Id. Section 750.81 is a specific
intent crime, proved by showing: (1) the commission of an assault or an assault and
battery; (2) one of the statute’s enumerated domestic relationships; and (3) the intent to
either batter the victim or to place the victim in reasonable apprehension of being
No. 10-1532 United States v. Kearney Page 5

battered. See People v. Cameron, 806 N.W.2d 371, 379 (Mich. Ct. App. 2011); People
v. Corbiere, 559 N.W.2d 666, 669 (Mich. Ct. App. 1996).2

Domestic violence recidivists receive an enhanced penalty for subsequent
§ 750.81 violations. An individual with one prior domestic violence conviction faces
imprisonment of not more than one year. Mich. Comp. Laws § 750.81(3) (“second
offense” provision). An individual with two or more domestic violence convictions
faces imprisonment of not more than two years. Mich. Comp. Laws § 750.81(4) (“third
or subsequent offense” provision).3

B. Kearney’s Prior Offenses

In this case, the district court relied on the uncontested Presentence Report (PSR)
to determine Kearney’s applicable sentencing range under the Guidelines.4 The
following Michigan convictions were used as the basis for ACCA enhancement: (1) a
1995 conviction for felonious assault; (2) a 2000 conviction for assault with a dangerous
weapon; (3) a 2000 conviction for domestic violence, third or subsequent offense; and
(4) another 2000 conviction for domestic violence, third or subsequent offense. In
contesting ACCA enhancement, Kearney only challenges the two domestic violence
convictions.5

2
Under Michigan law, a battery is defined as the “intentional, unconsented, and harmful or
offensive touching of the person of another, or of something closely connected with the person.”
Cameron, 806 N.W.2d at 379. It does not matter whether the touching actually caused an injury. Id. An
assault is “an attempt to commit a battery or an unlawful act that places another in reasonable apprehension
of receiving an immediate battery.” Id. (internal quotation omitted). “[E]very battery necessarily includes
an assault because a battery is the very consummation of the assault.” Id. (internal quotation omitted).
3
Additionally, the statute provides for increasing monetary fines for each domestic violence
conviction. See Mich. Comp. Laws. § 750.81.
4
Typically, it is improper for a district court to rely solely on a PSR, even if uncontested, to
determine whether an ACCA enhancement applies. See United States v. Wynn, 579 F.3d 567, 576–77 (6th
Cir. 2009). However, Kearney has not raised this claim, and therefore we do not address it.
5
Although each of the 2000 convictions were sentenced on the same day, they count separately
for purposes of calculating an ACCA enhancement because the conduct underlying the convictions was
committed on “occasions different from one another.” See, e.g. United States v.Thomson, 268 F. App’x
430, 435–36 n.1 (6th Cir. 2008); United States v. Paul, 156 F.3d 403, 404 (2d Cir. 1998) (applying USSG
§ 4B1.1).
No. 10-1532 United States v. Kearney Page 6

The PSR indicates that the domestic violence charges stemmed from two separate
incidents. In the first, Kearney punched, kicked, and stomped his victim. In the second,
Kearney struck his victim in the head with an unknown object. Kearney does not dispute
these allegations. The PSR also indicates the consolidated sentence Kearney received
on these charges. Although Kearney originally received two years probation, at some
point he violated the terms of his release. The state judge revoked probation and
sentenced Kearney to two years imprisonment. Kearney ultimately served the full two
year term.

C. Application

Kearney presents a question of first impression for this Court: whether a prior
state conviction can qualify as a predicate “violent felony” under ACCA if the offense
was enhanced pursuant to a state recidivism provision.

The government contends that, although this issue is a novel one, the Supreme
Court’s decision in United States v. Rodriquez, 553 U.S. 377 (2008), nevertheless
controls. In Rodriquez, the Supreme Court addressed this issue in the context of
ACCA’s serious drug offense provision. The defendant had several prior drug
convictions, which if considered only by their base offense conduct, would not have met
ACCA’s definition of a “serious drug offense” as one punishable by “a maximum term
of imprisonment of ten years or more.” See id. at 380–81 (citing § 924(e)(2)(A)).
However, the defendant’s prior convictions had been enhanced by the state court on the
basis of recidivism. If the state enhancements were considered, the convictions qualified
towards an ACCA enhancement. Id. at 381.

In resolving this issue, the Supreme Court emphasized ACCA’s plain text, the
statute’s legislative intent, and the importance of interpreting ACCA consistently with
our broader sentencing regime. The Supreme Court held that evaluating a predicate
conviction under the serious drug offense provision requires a sentencing court to take
into account prior recidivism enhancements. Id. at 393.
No. 10-1532 United States v. Kearney Page 7

First, the Court found that a natural reading of ACCA’s language compelled its
holding. The Court found that “the maximum term of imprisonment” was defined not
only by the base offense conduct, but also as the sentence was applied to the habitual
offender. Id. at 383–84. To define ACCA’s text otherwise, the Court reasoned, would
divorce the statute’s definition of a “maximum term of imprisonment” from how that
phrase was “customarily understood by participants in the criminal justice process.” Id.
at 383.

Additionally, Rodriquez looked to ACCA’s “manifest purpose.” Id. at 385. The
Court found that ACCA is itself a recidivism statute reflecting the notion that repeat
offenses are generally more serious than first offenses. Id. at 385–86. The Court
decided that Congress deliberately chose to bootstrap ACCA’s enhancement onto our
preexisting patchwork of state and federal sentencing structures in the pursuit of
discouraging recidivists, and the Court found it unlikely that Congress did not take
preexisting sentencing schemes into consideration when drafting ACCA. Id.

The Court dismissed the defendant’s suggestion that compounding an ACCA
enhancement on top of a preexisting enhancement would overemphasize a predicate
offense. Id. at 386. Instead, the Court suggested that prior enhancements might actually
shed light on the “seriousness” of a predicate drug offense. See id. at 388.

Lastly, the Court noted that the “maximum term” language is not unique to
ACCA. In other sentencing contexts, the Court found that the common interpretation
of such phrasing includes underlying enhancements. See id. at 392. Thus, the Court
saw no reason to interpret ACCA’s language differently.

Rodriquez’s rationales apply with equal force in this context. The structure of
ACCA’s violent felony provision closely tracks that of its provision for serious drug
offenses, and there is no reason to believe that the text is any less plain in this context.
We agree that Congress’ intent to define a predicate offense with reference to underlying
enhancements is clear and that there is no compelling justification to interpret ACCA out
of step with other sentencing enhancements.
No. 10-1532 United States v. Kearney Page 8

Kearney argues, however, that the Supreme Court’s subsequent decision in.
Johnson v. United States, 130 S. Ct. 1265 (2010), casts doubt on Rodriquez’s continued
force. Johnson involved a defendant with a prior conviction for simple battery under
Florida law, ordinarily a first-degree misdemeanor, but enhanced to a third-degree felony
by the state’s recidivism statute. Although the case was ultimately decided on a different
basis, the Court touched upon the dangers of compounding an ACCA enhancement onto
a common-law misdemeanor when defining a predicate violent felony. In rejecting the
government’s argument that Florida’s simple battery statute was a violent felony under
the categorical approach, the Court stated, in pertinent part:

It is significant, moreover, that the meaning of “physical force” the
Government would seek to import into this definition of “violent felony”
is a meaning derived from a common-law misdemeanor. At common
law, battery—all battery, and not merely battery by the merest
touching—was a misdemeanor, not a felony . . . . [T]he dividing line
between misdemeanors and felonies has shifted over time. But even
today a simple battery—whether of the mere-touching or bodily-injury
variety—generally is punishable as a misdemeanor. . . . It is unlikely that
Congress would select as a term of art defining “violent felony” a phrase
that the common law gave peculiar meaning only in its definition of a
misdemeanor. Of course, “physical force” can be given its common-law
misdemeanor meaning by artful language, but here the only text that can
be claimed to accomplish that is the phrase “physical force” itself. Since,
as we have seen, that is readily (indeed, much more readily) taken to
describe violent force, there is no reason to define “violent felony” by
reference to a nonviolent misdemeanor.

Id. at 1271–72. (internal citations and quotations omitted, italicized emphasis in
original, underlined emphasis added).

Kearney argues that this language reveals a thematic tension between ACCA’s
serious drug offense provision and its violent felony provision. He contends Johnson
justifies treating ACCA’s triggering offenses differently, because while Rodriquez
suggested that prior enhancements might clarify the seriousness of a drug offense,
Johnson implies that the opposite is true when evaluating the violent felony provision.
No. 10-1532 United States v. Kearney Page 9

Kearney’s point is not without merit. Undoubtedly, the violent felony provision
embraces a far wider class of conduct than does the serious drug offense provision, and
the provisions’ different phrasings suggest that ACCA’s triggering provisions are
somewhat distinguishable, both as defined and by their statutory intent. Moreover, we
note that Rodriquez predates Begay, Sykes, and the flurry of cases spawned by our
continued efforts to grapple with ACCA’s violent felony provision.6 These
considerations advise against impetuously applying Rodriquez without further reflection.

Despite these distinctions, however, we now hold that a sentencing court should
reference underlying enhancements when evaluating whether a predicate offense meets
ACCA’s violent felony definition. Textualism, legislative intent, and statutory
consistency all drive our decision. For the reasons explained in Rodriquez, our holding
best expresses the plain language of the ACCA and comports with our understanding of
the statute’s legislative intent. Additionally, our decision promotes consistency with the
serious drug offense provision. From a broader sentencing perspective, our decision
interprets ACCA in line with the many other provisions of the Guidelines that turn on
whether prior conduct was punishable by a sentence exceeding one year. In such cases,
we “routinely” take prior convictions into account. See United States v. Trotter, 270
F.3d 1150, 1154–55 (7th Cir. 2001).

According to Kearney, our holding creates the possibility that a defendant will
be sentenced under ACCA too severely for prior conduct that would have carried a
penalty of no more than a year at common law. Kearney overstates that risk. His
concern is fully answered by careful application of the modified categorical approach,
a resolution that Johnson itself suggests for difficult cases such as these. See Johnson,

6
We are aware of the chorus of criticisms swelling around the violent felony provision. See, e.g.,
Sykes, 131 S.Ct. at 2288 (Scalia, J., dissenting) (asserting that ACCA’s violent felony provision should
be limited to its enumerated crimes until Congress tightens the statutory language); United States v. Vann,
660 F.3d 771, 801 (4th Cir. 2011) (Wilkinson, J., concurring in the judgment) (highlighting the difficulties
the Fourth Circuit has experienced in applying ACCA’s residual clause); id. at 787 (Agee, J., concurring)
(same).
The dissent misconstrues our recognition of these criticisms as an admission that the Act should
not apply to this case. However, our point is not that ACCA fails to apply here. Rather, we simply note
these criticisms to highlight that, whatever latent problems may exist with the Act, the responsibility for
correcting them continues to lie with the legislature, and not with this Court.
No. 10-1532 United States v. Kearney Page 10

130 S. Ct. at 1273. An offense that has been subject to prior enhancement may, indeed,
be less likely to meet Begay and Sykes’ standards. However, close adherence to the
approach outlined in Taylor, Chambers, Shepard, and their progeny should ensure that
convictions which do not meet the violent felony definition will not be counted towards
an ACCA enhancement.

Applying our holding to the case before us, we find that the district court did not
err in counting Kearney’s domestic violence convictions as predicate violent felonies
under ACCA. On both domestic violence convictions, Kearney was charged and
convicted under Michigan’s recidivism statute, which provided for imprisonment for a
term exceeding one year. Kearney in fact served a full two year term of imprisonment
on the state charges.7 Moreover, applying Taylor’s modified categorical approach to
these convictions demonstrates that Kearney’s conduct was indeed purposeful, violent,
and aggressive. Therefore, these convictions qualified as predicate violent felonies, and
the district court did not err in enhancing Kearney’s conviction pursuant to ACCA.

CONCLUSION

For the foregoing reasons, we AFFIRM.

7
Regardless of what the state judge intended by applying the recidivism enhancement—an
argument regarding the state judge’s intent that the dissent makes without any apparent support—it
remains the case that Kearney was convicted pursuant to the enhancement and that he actually served a
two year prison term on the charges.
No. 10-1532 United States v. Kearney Page 11

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DISSENT
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MERRITT, Circuit Judge, dissenting. In Johnson v. United States, 130 S. Ct.
1265 (2010), the question was whether a defendant was subject to the mandatory 15-year
sentence required by the Armed Career Criminal Act when the defendant’s predicate
state offense under the federal Act was described by the Supreme Court as follows:

That conviction was for simple battery under Florida law, which
ordinarily is a first- degree misdemeanor, Fla. Stat. § 784.03(1)(b), but
is a third-degree felony for a defendant who (like Johnson) has been
convicted of battery (even simple battery) before, § 784.03(2).

Id. at 1268-69. In the instant case, we have a similar situation of conversion of a simple,
state battery misdemeanor statute into a felony for the second offense. The Armed
Career Criminal Act requires that the predicate offense be “a violent felony.” The Court
held that such a state misdemeanor offense enhanced into a felony offense because of a
previous similar misdemeanor is not the type of predicate offense contemplated by the
federal Act in question. Relying on the common law background of the battery offense,
the Supreme Court rejected the government’s effort to mandate a 15-year sentence and
reversed the mandatory sentence imposed by the lower federal courts for reasons that
apply to the instant case, as well:

It is significant, moreover, that the meaning of “physical force”
the Government would seek to import into this definition of “violent
felony” is a meaning derived from a common-law misdemeanor. At
common law, battery—all battery, and not merely battery by the merest
touching—was a misdemeanor, not a felony.
....
It is unlikely that Congress would select as a term of art defining “violent
felony” a phrase that the common law gave peculiar meaning only in its
definition of a misdemeanor.

Id. at 1271-72.
No. 10-1532 United States v. Kearney Page 12

Likewise, here we have a Michigan misdemeanor domestic abuse statute that can
be violated in many ways, including psychological abuse, unwanted touching and
pushing, as well as more forceful conduct. My colleagues go along with reclassifying
or shifting a state misdemeanor domestic abuse statute into a violent felony statute
because a Michigan trial judge simply enhanced the domestic relations violation in order
to give the prisoner two years of parole supervision rather than one year. The state judge
did not think that this crime deserved any time in prison at all but wanted to keep the
defendant under supervision for longer than one year. Like the majority in the Johnson
case, I do not believe that Congress intended for the Armed Career Criminal Act to be
triggered under a state misdemeanor statute that simply authorizes a state judge to make
this kind of enhancement. Turning misdemeanor domestic abuse statutes into predicate
offenses under the federal 15-year statute when the wife or husband violates the local
statute twice seems a far cry from the type of recidivism Congress had in mind when it
decided to take the sentencing process away from the federal sentencing judge and
impose a long mandatory sentence.

The instant case is, if anything, better for the defendant, Kearney, than in the
Supreme Court’s Johnson case. Two things are clear in the instant case. First, the state
trial judge enhanced the common law misdemeanor statute from a one year to a two year
sentencing statute only in order to give Kearney a two year probationary sentence with
no jail time. The judge thought that it would be better for the prisoner to be under
supervision for longer than one year. Second, because the prisoner received a second
year of probationary supervision in the state court, our court approves the sentence of
the district court automatically adding almost 10 more years to his federal sentence.

If the Supreme Court’s holding and reasoning in Johnson is not sufficient to
convince my colleagues that a contrary result is required, what about the Rule of Lenity?
My colleagues seem to agree in footnote 6 that the federal Act is by no means clear in
requiring the imposition of an extra 10 years’ incarceration in this case. I think we
should reverse and remand and leave the sentence in the hands of the district judge to
exercise his normal sentencing discretion. Otherwise, the Armed Career Criminal Act
No. 10-1532 United States v. Kearney Page 13

is vastly over inclusive and automatically makes domestic abuse a predicate offense
whenever it is repeated a second time. This kind of formalistic reasoning has nothing
to do with meting out fair retributive punishment because it does not allow the
sentencing judge to impose a punishment that fits the crime or fits the overarching
principle of the Sentencing Reform Act: the imposition of a sentence “not greater than
necessary,” 18 U.S.C. § 5335(a).