United States v. Gibbs

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0361p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

-

-

-

No. 09-2031

v.

,

>

-

Defendant-Appellant. -

TIMOTHY ALLEN GIBBS,

-

N

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 06-00003-001—Robert Holmes Bell, District Judge.

Argued: October 22, 2010

Decided and Filed: November 24, 2010

Before: GUY and GRIFFIN, Circuit Judges; BARZILAY, Judge.*

_________________

COUNSEL

ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand

Rapids, Michigan, for Appellant. Jennifer L. McManus, ASSISTANT UNITED

STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L.

Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for

Appellant. Russell A. Kavalhuna, ASSISTANT UNITED STATES ATTORNEY,

Grand Rapids, Michigan, for Appellee.

*

The Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting by

designation.

1

No. 09-2031 United States v. Gibbs Page 2

_________________

OPINION

_________________

RALPH B. GUY, JR., Circuit Judge. Defendant Timothy Allen Gibbs appeals

after resentencing on his conviction for being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Defendant argues that the district court erred on

remand by failing to impose sentence concurrently, or partially concurrently, to a

completed state sentence, or in a manner that would have that result. Defendant also

claims that the district court erred by not recalculating his advisory Guidelines range

where: (1) his criminal history score would have been lower under a subsequent

amendment to the Guidelines, and (2) his offense level had been determined under a now

incorrect understanding of what constitutes a “crime of violence.” Finding that

subsequent developments in the law with respect to the definition of a “crime of

violence” render the calculation of defendant’s advisory Guidelines range plain error,

we vacate defendant’s sentence and remand for resentencing consistent with this

opinion.

I.

Gibbs was a convicted felon on state parole when a search conducted on August

10, 2005, resulted in the seizure of a semiautomatic pistol, ammunition, and other items

from the basement bedroom he occupied in the house he shared with his mother.

Defendant was charged with violating several conditions of his parole, although those

charges were not resolved until after his initial federal sentencing. State criminal

charges also brought at the time of defendant’s arrest, including a felon-in-possession

charge, were dismissed after the federal indictment was returned on January 5, 2006.

Defendant was arrested on the federal charge on January 10, 2006, and was convicted

by a jury of being a felon in possession of a firearm on March 27, 2006.

At sentencing on June 26, 2006, the district court determined, without objection,

that defendant had a total offense level of 24 because he had two or more prior

No. 09-2031 United States v. Gibbs Page 3

convictions of a “crime of violence,” and a criminal history category of VI. As a result,

defendant’s Guidelines range was 100 to 125 months’ imprisonment. Defendant argued,

among other things, that his sentence should be ordered to run concurrently with the yet-

to-be imposed state parole violation sentence, relying explicitly upon the U.S.

Sentencing Guidelines Manual (USSG) § 5G1.3(c) (2006). The district court, addressing

this issue briefly, appeared to conclude that § 5G1.3(c) would require a consecutive

sentence. After considering the relevant sentencing factors under 18 U.S.C. § 3553(a),

the district court sentenced defendant at the low end of the Guidelines range to a 108-

month term of imprisonment and ordered that the sentence be served consecutively to

any state sentence yet-to-be imposed for violating the conditions of his parole.

Defendant appealed.

This court affirmed defendant’s conviction, but held—for the first time—that

treating the permissive language of § 5G1.3(c) “as leaving the district court without

discretion to impose a federal sentence concurrent or partially concurrent with an

undischarged term of state imprisonment [was] reversible error requiring a remand for

resentencing.” United States v. Gibbs, 506 F.3d 479, 488 (6th Cir. 2007). By that time,

defendant’s parole had been revoked based on his possession of the firearm, and he was

serving a 60-month sentence for the parole violation. Defendant was paroled again and

delivered to federal authorities in January 2009, but was not resentenced on the federal

conviction until July 2009.1

At resentencing on July 30, 2009, the district court first declined to recalculate

the Guidelines range on the grounds that the issue was outside the scope of the remand,

and then explained that it had “obviously misspoke[n]” at the original sentencing by

stating that § 5G1.3(c) required the imposition of a consecutive sentence. Defense

counsel urged the district court to exercise its discretion and either impose a concurrent

1

The government argues for the first time that the initial imposition of a consecutive sentence was

erroneous for a different reason. That is, we have held that a district court may not order a sentence to be

served consecutively to a yet-to-be imposed sentence. United States v. Quintero, 157 F.3d 1038, 1039-40

(6th Cir. 1998); see also United States v. Setser, 607 F.3d 128, 131 n.1 (5th Cir.) (identifying split among

the circuits on the issue), petition for cert. filed, __ U.S.L.W. __ (U.S. Nov. 2, 2010) (No. 10-7387). The

government concedes, however, that this also would have required remand for resentencing.

No. 09-2031 United States v. Gibbs Page 4

or partially concurrent sentence, or, at least, take into account the time served on the

state sentence in considering the § 3553(a) factors. The colloquy that followed shifted

between the defendant’s argument for a concurrent sentence and a discussion of the

credit defendant might receive for time served on his then-completed state sentence. In

the end, the district court reimposed a sentence of 108 months, omitted the earlier order

of a consecutive sentence, and added a recommendation to the Bureau of Prisons (BOP)

that defendant receive credit for time served since his arrest on the federal charge on

January 10, 2006. This appeal followed.

II.

This court reviews challenges to the reasonableness of a defendant’s sentence for

abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). While there is both

a procedural and a substantive component to the reasonableness inquiry, defendant’s

claims of error have been framed in terms of procedural unreasonableness. Id. If

defense counsel does not object with a reasonable degree of specificity to a purported

procedural error, a plain error standard of review applies. United States v. Simmons, 587

F.3d 348, 353-54 (6th Cir. 2009), cert. denied, 130 S. Ct. 2116 (2010); United States v.

Bostic, 371 F.3d 865, 871 (6th Cir. 2004).

A. USSG § 5G1.3(c)

A district court has discretion to order a federal sentence to run either

concurrently or consecutively to an undischarged term of imprisonment. See, 18 U.S.C.

§ 3584(b); United States v. Johnson, 553 F.3d 990, 997 (6th Cir. 2009); United States

v. Watford, 468 F.3d 891, 915-16 (6th Cir. 2006). That determination is based, in part,

on the Guidelines and policy statements of the Sentencing Commission. Johnson, 553

F.3d at 997. In particular, the first appeal involved the application of USSG § 5G1.3(c),

which provides that “[i]n any other case involving an undischarged term of

imprisonment, the sentence for the instant offense may be imposed to run concurrently,

No. 09-2031 United States v. Gibbs Page 5

partially concurrently, or consecutively to the prior undischarged term of imprisonment

to achieve a reasonable punishment for the instant offense.”2

At resentencing, defendant continued to urge the district court to impose a

partially concurrent sentence under § 5G1.3(c), but also argued that the district court

could adjust the length of the sentence to take into account the time served for which the

BOP might not give him credit. The district court expressed the view that defendant

should receive credit for time served from the time of his arrest on the federal warrant

on January 10, 2006—rather than from his release to federal custody in January

2009—but recognized that the power to determine such credit would lie solely with the

Attorney General and the Bureau of Prisons. See 18 U.S.C. § 3585(b); United States v.

Wilson, 503 U.S. 329, 333 (1992). Rather than adopting either of defendant’s

suggestions, the district court imposed the same within-Guidelines sentence of 108

months’ imprisonment with credit for time served from January 10, 2006. The amended

judgment specifically recommended that defendant receive such credit.

Claiming error, defendant argues first that the amended judgment did not

accurately reflect the oral pronouncement of sentence in which the district judge stated

that he “want[ed] to give [defendant] credit” for time served from January 10, 2006. The

record does not support this claim, however. The district judge explained more than

once that although he could make a recommendation in the judgment, the BOP would

not necessarily accept his calculation of the credit for time served. The district judge not

only explicitly recognized that his recommendation would not be binding on the BOP,

but also dispelled any possible lingering confusion about whether he intended to make

just such a recommendation. Specifically, in response to the government’s request for

clarification, the district judge confirmed that the sentence was 108 months’

imprisonment with credit for time served from January 10, 2006, adding that there were

no guarantees as to what the BOP would decide to do. Moreover, when asked whether

2

The application notes also provide that when the offense was committed while on parole and that

parole has been revoked, “the Commission recommends that the sentence for the instant offense be

imposed consecutively to the sentence imposed for the revocation.” USSG § 5G1.3 cmt. n.3(C) (emphasis

added).

No. 09-2031 United States v. Gibbs Page 6

there were any further objections, defense counsel confined his objections to the district

court’s decision not to revisit the calculation of the Guidelines range.

Although defendant states in passing that the district court failed to expressly

address the application of § 5G1.3(c), it was acknowledged at resentencing that the

defendant no longer had an undischarged term of imprisonment. Because § 5G1.3(c)

only applies when a defendant has an undischarged term of imprisonment at the time of

sentencing, we find no error by the district court. United States v. Carpenter, 359 F.

App’x 553, 557-58 (6th Cir. 2009); United States v. Newby, 13 F. App’x 324, 325-26

(6th Cir. 2001) (citing cases).

Indeed, defendant has abandoned reliance on § 5G1.3(c) and argued that the

district court failed to recognize its discretion to take into account the already discharged

sentence in weighing the § 3553 factors. See United States v. Osborn, 318 F. App’x 371,

375 (6th Cir. 2009). The record is clear, however, that defense counsel urged the district

court to exercise its discretion to impose a lesser sentence in consideration of the

§ 3553(a) factors in order to avoid the uncertainty that would come with the non-binding

recommendation regarding credit for time served. The fact that the district court

declined to do so does not demonstrate a failure to recognize the discretion to do so. Nor

is there any indication in the record that the district court did not understand or recognize

its discretion in this regard.3

B. Guidelines Calculation

1. Scope of Review

Before considering the merits of defendant’s additional claims, we must address

the scope of the remand and the government’s assertion of waiver. “The basic tenet of

3

We note for completeness that shortly before oral argument defendant was granted

administrative relief in the form of a nunc pro tunc designation of the state facility where he was serving

his state sentence to be the institution for service of his federal sentence. This effectively made the federal

sentence concurrent to the state sentence commencing with the imposition of his federal sentence on June

26, 2006. This means that only the period between January 10, 2006, and June 26, 2006, is time for which

the defendant will not receive a concurrent sentence. Defense counsel insisted at oral argument that this

partial relief did not alter his position on appeal with respect to the recommendation that he receive credit

for time served.

No. 09-2031 United States v. Gibbs Page 7

the mandate rule is that a district court is bound to the scope of the remand issued by the

court of appeals.” United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). A

limited remand must “explicitly outline the issues to be addressed by the district court

and create a narrow framework within which the district court must operate,” while a

general remand gives the district court “authority to address all matters as long as

remaining consistent with the remand.” Id. Whether a remand is limited or general is

a legal question that we review de novo. United States v. Moore, 131 F.3d 595, 598 (6th

Cir. 1997).4

Generally, district courts can review sentencing matters de novo unless the

remand specifically limits the inquiry, but “[t]he language used to limit the remand

should be, in effect, unmistakeable.” Campbell, 168 F.3d at 268. Such language may

appear anywhere in the opinion, but must be viewed in the context of the entire opinion.

Id. at 266-68. In this case, although we identified a discrete sentencing issue that

required remand, our opinion did not articulate a framework for the proceedings on

remand or otherwise limit the district court’s inquiry to that issue in unmistakeable

terms. Rather, we vacated the sentence and remanded “for resentencing consistent with

this opinion.” Gibbs, 506 F.3d at 488. Thus, our remand was general and did not

preclude the district court from revisiting the Guidelines calculation. Cf. Moore, 131

F.3d at 597 (remanded for further proceedings for the parties to address the defendant’s

use and carrying of the firearm and adhering to the prior opinion in all other respects);

Campbell, 168 F.3d at 268 (holding that fine imposed was improper and remanding with

direction for the district court to change it); United States v. O’Dell, 320 F.3d 674, 680-

81 (6th Cir. 2003) (remanding for “resentenc[ing] without application of the safety

valve”).

Next, the government argues that the defendant waived these issues by failing

to raise them in the first appeal. Generally, the “law-of-the-case doctrine bars challenges

4

Even when a remand is limited, exceptions to the mandate rule arise “where there is substantially

different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling

authority; or a clearly erroneous decision which would work a manifest injustice.” Campbell, 168 F.3d

at 269 (citation and internal quotation marks omitted).

No. 09-2031 United States v. Gibbs Page 8

to a decision made at a previous stage of the litigation which could have been challenged

in a prior appeal, but were not.” United States v. Adesida, 129 F.3d 846, 850 (6th Cir.

1997); see also United States v. McKinley, 227 F.3d 716, 718-19 (6th Cir. 2000)

(holding government waived argument for additional firearm enhancement by not raising

it during the first appeal); United States v. Sedore, 512 F.3d 819, 827 (6th Cir. 2008)

(holding defendant waived opportunity to dispute admission as to number of victims by

failing to raise it in the first appeal).

Defendant responds that the subsequent amendment to the Guidelines and recent

developments in the controlling law concerning what constitutes a “crime of violence”

were not issues that should have been raised in the first appeal. We need not decide this,

however, because the government waived its “waiver” argument by affirmatively taking

the position on remand that the district court could revisit the Guidelines calculations.

See United States v. Boudreau, 564 F.3d 431, 435 (6th Cir.) (finding government waived

waiver argument by proceeding on remand without asserting the issue had been waived

by not raising it on appeal), cert. denied, 130 S. Ct. 776 (2009). This brings us to the

merits of these claims.

2. Criminal History

Defendant argued at resentencing for application of the intervening amendment

to USSG § 4A1.2(A)(2), which altered the way in which prior sentences are counted.

See USSG App. C, amend. 709 (eff. Nov. 1, 2007). However, as defendant

acknowledges on appeal, the district court properly applied the Guidelines in effect at

the time of the original sentencing. See 18 U.S.C. § 3742(g)(1); United States v.

Williams, 411 F.3d 675, 678 (6th Cir. 2005). Further, this and other courts have held

that Amendment 709 is not a clarifying amendment and may not be applied retroactively.

United States v. Vassar, 346 F. App’x 17, 28 (6th Cir. 2009), cert. denied, 130 S. Ct.

3343 (2010); United States v. Wood, 526 F.3d 82, 88 (3d Cir. 2008); United States v.

Marler, 527 F.3d 874, 877 n.1 (9th Cir. 2008).

Even if the amended Guidelines did apply, however, defendant’s criminal history

category would not have been different. Defendant argues that under the amended

No. 09-2031 United States v. Gibbs Page 9

Guidelines, four prior sentences that were counted separately would instead be counted

as two prior sentences for a criminal history score of 12 and a criminal history category

of V. The government concedes that the two prior sentences referenced in paragraphs

30 and 31 of the Presentence Report (PSR) would be counted as one under the amended

Guidelines because there was no intervening arrest and the sentences were imposed on

the same day. However, because the other two sentences—referenced in paragraphs 27

and 29 of the PSR—were separated by an intervening arrest, they would still be counted

separately. Since defendant’s criminal history score would have been 15 and defendant

would still have had a criminal history category of VI, the amended Guidelines would

not have affected the calculation of defendant’s Guidelines range.5

3. Offense Level

Defendant’s offense level was determined under USSG § 2K2.1(a)(2), which

provides for a base offense level of “24, if the defendant committed any part of the

instant offense subsequent to sustaining at least two felony convictions of either a crime

of violence or a controlled substance offense.” Defendant was found, without objection,

to have at least two prior felony convictions for a “crime of violence.” Defendant’s

failure to object at sentencing limits our review to plain error.

A “crime of violence” is defined as a felony 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 physical injury to

another.” USSG § 4B1.2(a); see also USSG § 2K2.1 cmt. n.1. The last of these, referred

to at times as the “residual” or “otherwise” clause, has been limited to crimes that “are

roughly similar, in kind as well as in degree of risk posed,” to the enumerated examples.

Begay v. United States, 553 U.S. 137, 143 (2008); see also United States v. Bartee, 529

F.3d 357, 363 (6th Cir. 2008).

5

For this reason, we need not address defendant’s further suggestion that we remand for

resentencing to allow the district court to take the amendment into consideration in imposing sentence.

See United States v. Godin, 522 F.3d 133, 136 (1st Cir. 2008) (remanding for resentencing); but see United

States v. Matos, 611 F.3d 31, 39 (1st Cir. 2010) (distinguishing Godin and denying request for remand).

No. 09-2031 United States v. Gibbs Page 10

In determining the nature of a prior conviction, we are to apply a “categorical”

approach, looking to the statutory definition of the offense and not the particular facts

underlying the 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 crime of violence and in

a way that would not, the court may consider the indictment, guilty plea, or similar

documents to determine whether they necessarily establish the nature of the prior

conviction. Shepard v. United States, 544 U.S. 13, 26 (2005). At issue in this case are

three potentially qualifying prior convictions—one each for second-degree home

invasion, “walkaway” prison escape, and resisting and obstructing an officer.6

a. Second-Degree Home Invasion

Defendant conceded at his initial sentencing that his plea-based conviction for

second-degree home invasion was properly counted as a “crime of violence.” On

remand, defendant argued for the first time that, in fact, the house could not have been

an “occupied dwelling” under Michigan law because the residents had died and the

house was vacant. See People v. Hider, 351 N.W.2d 905, 907-08 (Mich. Ct. App. 1984).

In essence, however, this is a challenge to the factual basis of the underlying conviction;

not to whether the conviction was for a “crime of violence.”

Second-degree home invasion is defined under Michigan law as committed by

one who “breaks and enters a dwelling with intent to commit a felony, larceny, or assault

in the dwelling,” or “enters a dwelling without permission with intent to commit a

felony, larceny, or assault in the dwelling,” or “enters a dwelling without permission

and, at any time while he or she is entering, present in, or exiting the dwelling, commits

a felony, larceny, or assault.” MICH. COMP. LAWS § 750.110a(3). As this court has

previously recognized, a conviction for second-degree home invasion under Michigan

law is the equivalent of the enumerated offense of burglary of a dwelling and therefore

constitutes a “crime of violence.” See United States v. Hart, 104 F. App’x 469, 470 (6th

6

We determine a “crime of violence” under the Guidelines in the same way as a “violent felony”

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because both share essentially the

same definitions. Bartee, 529 F.3d at 359 (citing United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.

1995)).

No. 09-2031 United States v. Gibbs Page 11

Cir. 2004); United States v. Horton, 163 F. App’x 378, 382 (6th Cir. 2006); United

States v. Howard, 327 F. App’x 573, 575-76 (6th Cir. 2009).

b. “Walkaway” Prison Escape

Michigan defines prison escape, in pertinent part, as occurring when a person

imprisoned by the state, “breaks prison and escapes, breaks prison though an escape is

not actually made, escapes, leaves the prison without being discharged by due process

of law, attempts to break prison, or attempts to escape from prison.” MICH. COMP. LAWS

§ 750.193(1). Defendant’s prior plea-based conviction for prison escape was counted

as a “crime of violence,” although he asked the district court to consider that it was

essentially a “walkaway” escape from a community correction center. In fact, defendant

explained during the plea colloquy that he had left the facility where he was assigned

without permission. The government concedes, as it did even on remand, that this

conviction for “walkaway” prison escape does not constitute a “crime of violence” in

light of the decisions in Chambers v. United States, 555 U.S. __, 129 S. Ct. 687, 690-92

(2009), and United States v. Ford, 560 F.3d 420, 423-25 (6th Cir. 2009). We agree.7

Before the decision in Chambers, this court had largely “taken the view that all

escape offenses—from a failure to report at one end of the spectrum to a breakout at the

other—constitute crimes of violence.” Ford, 560 F.3d at 423 (citing cases). The Court

in Chambers held that one type of escape under the Illinois statute—a failure-to-report

escape—was not a “violent felony” under the ACCA. 129 S. Ct. at 691-92. This, we

concluded in Ford, also established that a failure-to-report escape is not a “crime of

violence.” 560 F. 3d at 423. We did not stop there, however, and applied the same

reasoning to conclude that a “walkaway” escape conviction under Kentucky law was not

unambiguously a “crime of violence.” Id. at 425.

To recap: the first question in this case—the Taylor question—is

whether the definition of the state-law offense by itself establishes that

7

Defendant attempted to raise this issue in a Rule 28(j) letter filed during the pendency of the first

appeal in reliance on this court’s pre-Chambers decision holding that a “failure to report” escape

conviction under the Michigan statute was not a “violent felony” for purposes of the ACCA. United States

v. Collier, 493 F.3d 731, 737 (6th Cir. 2007).

No. 09-2031 United States v. Gibbs Page 12

it is a “crime of violence.” A conviction for second-degree escape does

not show that Ford committed a crime of violence because the offense

covers a variety of escapes, some of which (a failure to report and to

return, at least) are not crimes of violence. The second question—the

Shepard question—is whether the government nonetheless can show that

the state-law conviction was a crime of violence by bringing forward

reliable documents from the underlying conviction that “necessarily”

establish that the defendant committed a crime of violence. Here, the

parties agree, reliable documents show that Ford committed a

“walkaway” escape, which no doubt may create a greater risk of physical

injury than a failure to report, but which remains different from a

jailbreak and other crimes of violence both in kind and in its risk of

physical injury to others. For these reasons and those elaborated above,

a walkaway is not a crime of violence.

Id. at 426. The parallel between the Kentucky “walkaway” escape and defendant’s

Michigan conviction for “walkaway” escape is self-evident. The Michigan statute

covers a variety of escapes, including at least one which is not a crime of violence. We

recognized in Ford that, “in the aftermath of Chambers, a ‘walkaway’ is a meaningfully

distinct and meaningfully distinguishable category of escape as a matter of federal law.”

Id. at 424. We also concluded that a “walkaway” escape does not present the same risk

of physical injury to others, or the same type of “purposeful, violent, and aggressive”

conduct, as do the listed crimes of violence. Id. at 424-25 (quoting Chambers, 129 S.

Ct. at 692 (internal quotation marks omitted)). Defendant’s “walkaway” escape

conviction may not be counted as a “crime of violence.”

c. Resisting and Obstructing an Officer

On remand, the government argued that defendant’s conviction for resisting and

obstructing an officer may be counted as a second “crime of violence.” Defendant

pleaded guilty to resisting and obstructing an officer in violation of former Mich. Comp.

Laws § 750.479 (2001), which made it unlawful to:

knowingly and willfully obstruct, resist or oppose any sheriff, . . . 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 . . . or who shall

No. 09-2031 United States v. Gibbs Page 13

assault, beat or wound any sheriff, . . . 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[.]

This court has concluded, in reliance on Chambers, that a conviction for resisting and

obstructing an officer under Mich. Comp. Laws § 750.81(d), a related Michigan statute,

is not categorically a crime of violence. United States v. Mosley, 575 F.3d 603, 606-07

(6th Cir. 2009).

As we explained in Mosley, the first and often “key” analytical step is

determining whether “the state-law definition of the offense involves just one category

or two or more categories of crimes” and that “sometimes that choice requires the federal

courts to draw distinctions that the state law on its face does not draw.” Id. at 606 (citing

Chambers, 129 S. Ct. at 690). Identifying “at least one obvious fault line,” we found that

the Michigan resisting-and-obstructing statute contained “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.’” Id. at 607 (citations omitted). Moreover, we quickly

concluded that a typical failure-to-comply obstruction offense would not qualify as a

“crime of violence” because it “does not involve comparable ‘purposeful, violent, and

aggressive’ conduct” or create the same degree of risk of physical injury as the

enumerated offenses. Id. (quoting Begay, 553 U.S. at 144).

The analysis in Mosley applies equally to defendant’s conviction because the

resisting and obstructing statute at issue likewise involves at least two categories of

crimes, one of which is not categorically a “crime of violence.” See United States v.

Blomquist, 356 F. App’x 822, 827 (6th Cir. 2009) (applying Mosley to conviction under

Mich. Comp. Laws § 750.479). Mosley dictates the answer to the Taylor question in this

case—that the conviction does not categorically qualify as a “crime of violence”—but

No. 09-2031 United States v. Gibbs Page 14

does not resolve the Shepard question. That is, in Mosley, we remanded for the

government to have an opportunity to make a showing from reliable documents that the

conviction necessarily constituted a “crime of violence.” 575 F.3d at 608.8

Here, in contrast, the record already includes the charging document, the

judgment of conviction, and the plea colloquy from which we may determine the nature

of the offense. Shepard, 544 U.S. at 26. In particular, during the plea colloquy,

defendant explained that he had been a passenger in a car that was the subject of a traffic

stop and had run away from the officer to avoid being arrested on outstanding warrants.

These records show, and the government does not dispute, that defendant’s conviction

was for violation of the knowing-failure-to-comply portion of the resisting and

obstructing statute. Accord United States v. Love, 364 F. App’x 955, 958-59 (6th Cir.

2010) (holding that defendant who ran away from police in handcuffs committed the

offense of obstruction through a knowing failure to comply with a lawful command).

Thus, defendant’s conviction for resisting and obstructing an officer does not qualify as

a “crime of violence.”

8

Although the Michigan legislature amended these statutes to expressly define “obstruct” to

include both “the use or threatened use of physical interference or force or a knowing failure to comply

with a lawful demand,” see Mich. Comp. Laws §§ 750.81(d)(7)(a) and 750.479(8)(a), it was not a change

in meaning but a clarification of the correct interpretation of the term. Blomquist, 356 F. App’x at 827.

No. 09-2031 United States v. Gibbs Page 15

C. Plain Error

“In reviewing for plain error, we must consider whether there was plain error that

affects substantial rights and that, in our discretionary view, seriously affects the

fundamental fairness, integrity, or public reputation of judicial proceedings.” United

States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (citing Johnson v. United States, 520

U.S. 461, 466 (1997)). It is sufficient that the error be plain at the time of appellate

consideration. Johnson, 520 U.S. at 466.

Having concluded that the defendant’s prior convictions for “walkaway” prison

escape and failure-to-comply obstruction no longer qualify as a “crime of violence” for

purposes of the Guidelines, there was error under current law. That error is also plain

because Begay and Chambers clearly altered the analysis applicable to the question of

whether a prior conviction constitutes a “crime of violence.” This error affected the

defendant’s substantial rights because with only one prior conviction for a “crime of

violence”—rather than two or more—the defendant’s offense level would have been 20

instead of 24. See USSG § 2K2.1(a)(4)(A). A total offense level of 20 and a criminal

history category of VI would have resulted in an advisory Guidelines range of 70 to 87

months’ imprisonment, which is substantially lower than the range of 100 to 125 months

found to apply initially and on remand. Finally, although clearly the result of subsequent

changes in the law, this error seriously affects the fairness, integrity, or public reputation

of the judicial proceedings. See United States v. Baker, 559 F.3d 443, 453-55 (6th Cir.

2009).

Accordingly, we VACATE defendant’s sentence and REMAND for

resentencing in light of the determination that the prior convictions for escape and

resisting and obstructing an officer do not constitute crimes of violence for purposes of

computing the defendant’s offense level.