NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0557n.06
No. 12-1882
FILED
UNITED STATES COURT OF APPEALS Jun 07, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
) ON APPEAL FROM THE
JAMES MICHAEL COLE, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
Defendant-Appellant. ) DISTRICT OF MICHIGAN
)
BEFORE: MARTIN and COOK, Circuit Judges; GRAHAM, District Judge.*
GRAHAM, District Judge. James Michael Cole appeals a district court judgment sentencing
him to twenty-four months of imprisonment following the revocation of his supervised release. For
the reasons set forth below, we vacate Cole’s sentence and remand for resentencing.
Cole pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a) and received a
sentence of seventy-eight months of imprisonment and three years of supervised release. Shortly
after his supervision began on April 4, 2012, Cole entered his parents’ house, stole two of his
father’s credit cards along with approximately $100 in cash, and used the credit cards to obtain
money to buy cocaine. Cole’s probation officer subsequently petitioned the district court for an
*
The Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 12-1882
United States v. Cole
arrest warrant and recommended that Cole’s supervision be revoked. In an amended petition, the
probation officer alleged that Cole violated the conditions of his supervised release by committing
the following crimes: larceny from a building in violation of Michigan Compiled Laws § 750.360
(violation 1); stealing and using financial transaction devices in violation of Michigan Compiled
Laws § 750.157n (violation 2); possessing another’s financial transaction devices with the intent to
use the devices without the consent of the deviceholder in violation of Michigan Compiled Laws
§ 750.157p (violation 3); and possessing and using cocaine in violation of Michigan Compiled Laws
§ 333.7403 (violations 4-6). Cole pleaded guilty to the first four violations and the government
dismissed the remaining two violations.
Violations two through four were classified as Grade B violations. A Grade B violation is
conduct other than a Grade A violation constituting any federal, state, or local offense punishable
by a term of imprisonment exceeding one year. United States Sentencing Guidelines (“U.S.S.G”)
§ 7B1.1(a)(2). A Grade A supervised release violation includes “conduct constituting . . . a federal,
state, or local offense punishable by a term of imprisonment exceeding one year that . . . is a crime
of violence.” U.S.S.G. § 7B1.1(a)(1)(A)(i). The issue before the district court was whether the
conviction for larceny from a building was a “crime of violence.” If the larceny from a building
conviction was a crime of violence, then Cole’s violation conduct as a whole would be considered
a Grade A violation. See U.S.S.G. § 7B1.1(b) (in cases involving more than one violation, “the
grade of the violation is determined by the violation having the most serious grade”).
Defense counsel argued that Cole’s violations were all Grade B violations, which, together
with Cole’s criminal history category of IV, would result in an advisory sentencing guidelines range
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No. 12-1882
United States v. Cole
of twelve to eighteen months of imprisonment. See U.S.S.G. §§ 7B1.1(a)(2) and 7B1.4(a). The
district judge determined that larceny from a building constituted a crime of violence, which
established a Grade A violation advisory sentencing guidelines range of twenty-four to thirty months
of imprisonment. See U.S.S.G. §§ 7B1.1(a)(1)(A)(i) and 7B1.4(a)(1). After considering the relevant
sentencing factors under 18 U.S.C. § 3553(a), the district court revoked Cole’s supervised release
and sentenced him to twenty-four months of imprisonment followed by twelve months of supervised
release.
On appeal, Cole first contends that the district judge erred in finding that his conviction for
larceny from a building constituted a crime of violence and a Grade A violation. A “crime of
violence” includes, by definition, “any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . is burglary of a dwelling . . . or otherwise
involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2) (emphasis added). To satisfy the italicized “otherwise” clause, the offense must be
“‘roughly similar, in kind as well as in degree of risk posed,’ to the enumerated offenses.” United
States v. Taylor, 696 F.3d 628, 631 (6th Cir. 2012) (quoting Begay v. United States, 553 U.S. 137,
142–43 (2008)).
Michigan law defines larceny from a building as “stealing in any dwelling house, house
trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn,
granary, ship, boat, vessel, church, house of worship, locker room or any building used by the
public.” Mich. Comp. Laws § 750.360. The elements of larceny from a building under Michigan
law are: “(1) an actual or constructive taking of goods or property, (2) a carrying away or
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No. 12-1882
United States v. Cole
asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the
goods or the personal property of another, (5) the taking must be without the consent and against the
will of the owner[, and] . . . (6) the taking must be done within the confines of the building.” People
v. Wilbourne, 205 N.W.2d 250, 251–52 (Mich. Ct. App. 1973). Larceny from a building, like
burglary, may involve a serious potential risk of physical injury arising “from the possibility of a
face-to-face confrontation between the [offender] and a third party – whether an occupant, a police
officer, or a bystander – who comes to investigate.” James v. United States, 550 U.S. 192, 203
(2007).
In determining whether the offense of larceny from a building constituted a crime of violence
for purposes of Cole’s supervised release revocation proceeding, the district judge was not confined
to the statutory definition of larceny from a building. “Rather, the grade of the violation is to be
based on the defendant’s actual conduct.” U.S.S.G. § 7B1.1 cmt. n.1 (emphasis added); United
States v. Bowman, 290 F. App’x 863, 866 (6th Cir. 2008). In this case, the district judge was
required to determine whether Cole’s actual conduct presented a serious potential risk of physical
injury to another. It is not clear whether the district judge was aware of or applied this standard, as
the commentary note was not cited by the court or the parties during the revocation hearing.
At the hearing, defense counsel stated that Cole had a key to his parents’ house and
permission to reside there. Cole answered questions under oath, stating that he was “living at home
paying rent.” Cole further stated:
I watched my father go to bed as I’m pulling in the driveway, so I figured they’d be
up there. So I walked in the door, I looked figuring my mother would be sitting there
asking me what the – what I was doing, and it wasn’t the case, so I sat down at our
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No. 12-1882
United States v. Cole
– I mean, one of those little islands in the kitchen. I just turned on the lights and sat
there and looked up and there’s the old man’s money clip[.]”
Cole then removed cash and credit cards from the clip and left the house. Cole used the credit cards
to obtain additional cash, then purchased cocaine with the goal of using enough cocaine to commit
suicide. Cole’s mother discovered the theft the next morning upon arising at approximately 6:30
a.m. The government presented no testimony or evidence to contradict Cole’s version of the events
underlying the offense.
Cole had his parents’ permission to stay in the house. He had a key and did not break into
the house. Cole stated that he was paying rent, and it appears that the house was his residence. He
committed the theft in an illuminated kitchen. Even if his parents had come downstairs to
investigate, nothing in the record suggests that they would have been surprised to see him there. In
fact, Cole stated that he expected to find his mother waiting up for him. There is no evidence that
Cole or his parents had a weapon of any kind. The record also suggests that Cole’s physical
condition made any other type of physical confrontation unlikely. Cole stated that he was receiving
social security disability benefits due to severe head trauma and a crippling shoulder injury sustained
in 1998. Cole further informed the court that on March 7, 2012, a little over a month before the
larceny offense, he had hernia surgery which resulted in complications necessitating a blood
transfusion and a four-day hospital stay. This scenario does not suggest a serious potential risk of
physical injury arising from the possibility of a face-to-face confrontation between Cole and his
parents or any other person. The information in the record fails to support the district court’s finding
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No. 12-1882
United States v. Cole
that the offense of larceny from a building committed by Cole was a “crime of violence” and a Grade
A violation.
For the same reasons, we agree with Cole’s argument that his sentence was procedurally
unreasonable. In considering whether to revoke supervised release, the district court must consider
several of the sentencing factors included in 18 U.S.C. § 3553(a), including the applicable advisory
sentencing guidelines range. See 18 U.S.C. §§ 3553(a)(4) and 3583(e)(3). One aspect of procedural
unreasonableness is the improper calculation of the advisory guidelines sentencing range. See Gall
v. United States, 552 U.S. 38, 51 (2007). The district court erroneously concluded that Cole’s
larceny from a building conviction was a crime of violence and a Grade A violation rather than a
Grade B violation. As a result, the court considered the wrong advisory sentencing guideline range
in determining Cole’s sentence. This was an abuse of discretion. Because the case must be
remanded to the district court for resentencing due to procedural unreasonableness, we do not reach
Cole’s argument that the district court’s sentence was substantively unreasonable.
For the foregoing reasons, we vacate Cole’s sentence and remand for resentencing consistent
with this opinion. We grant the government’s motion to take judicial notice of the probation
violation worksheet, which shall be sealed.
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