United States v. Michael Young

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0327p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

-

-

-

No. 08-1394

v.

,

>

-

Defendant-Appellant. -

MICHAEL DANOTUS YOUNG,

-

N

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 07-00102-001—Paul Lewis Maloney, Chief District Judge.

Argued: June 11, 2009

Decided and Filed: September 4, 2009

*

Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.

_________________

COUNSEL

ARGUED: Richard Charles Gould, LAW OFFICES, Grand Rapids, Michigan, for

Appellant. Jennifer L. McManus, ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee. ON BRIEF: Richard Charles Gould, LAW OFFICES,

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

STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

LIOI, D. J., delivered the opinion of the court, in which GRIFFIN, J., joined.

SUTTON, J. (pp. 12-18), delivered a separate opinion concurring in part, dissenting in

part and concurring in the judgment.

*

The Honorable Sara Lioi, United States District Judge for the Northern District of Ohio, sitting

by designation.

1

No. 08-1394 United States v. Young Page 2

_________________

OPINION

_________________

SARA LIOI, District Judge. Defendant Michael Young (“Young”) appeals his

conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), as

well as his 15-year sentence under the Armed Career Criminal Act (ACCA). For the

reasons that follow, we affirm both the conviction and the sentence.

I.

On December 15, 2006, at approximately 1:15 a.m., police officers in Grand

Rapids, Michigan observed Young asleep in a car in a public parking lot known for

numerous shootings and other criminal activity. Based on the high-crime area, the hour

of the night, and Young’s unlawful loitering in a city parking lot, one of the officers

decided to approach the car to question Young.

When questioned, Young denied having anything illegal on his person, but his

repeated “furtive hand movements” over his jacket pocket suggested that he was hiding

contraband or a weapon; the officer asked Young to step out of the car. Young complied

and informed the officer that he had a gun. Around the same time, the officer’s partner

yelled that Young had an outstanding arrest warrant. The officer arrested Young and

discovered a gun on his person, which Young admitted was his.

Young was charged with being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). He filed a motion to suppress the gun as the fruit of an

unconstitutional search and seizure, which the district judge denied. On November 5,

2007, without a written plea agreement, Young changed his plea to guilty, and the

district judge sentenced him to the minimum 15-year sentence pursuant to ACCA.

No. 08-1394 United States v. Young Page 3

II.

Young argues that the district court erred in denying his motion to suppress the

gun. Sixth Circuit law is clear, however, that a guilty-pleading defendant may not

appeal an adverse pre-plea ruling on a motion to suppress evidence unless he has

preserved the right to do so in a written plea agreement under Criminal Rule 11(a)(2).

United States v. Herrera, 265 F.3d 349, 351 (6th Cir. 2001); Fed. R. Crim. P. 11(a)(2).

The writing requirement may only be excused if the defendant “made it clear that he

wished to preserve his right to appeal, the government acknowledged that he could

appeal, and the court accepted that.” United States v. Mastromatteo, 538 F.3d 535, 543

(6th Cir. 2008). The justification for the exception is that even if “the exact format of

Rule 11(a)(2)” is not followed, its “intent and purpose have been fulfilled” where the

defendant “ma[kes] it very clear that he intended to reserve his right to appeal the denial

of [a] suppression motion[].” Id.

In this case, it is undisputed that there was no written plea agreement. Further,

neither Young nor his counsel clearly expressed an intention to preserve the suppression

issue on appeal. Indeed, during sentencing, the district judge acknowledged on three

occasions that the only issue preserved for appeal was the ACCA enhancement, and

neither Young nor his counsel objected otherwise.1 Thus, Young is barred from raising

the suppression issue on appeal.

III.

Young also challenges his 15-year mandatory minimum sentence. ACCA

imposes a 15-year mandatory minimum sentence when a defendant convicted of

§ 922(g) has three or more prior convictions qualifying as “violent felonies” or “serious

1

As reported in the sentencing transcript, the district judge stated:

(1) “There is a reservation of appeal on the Court’s previous ruling regarding the application of fleeing and

eluding to the armed career criminal statute which is attendant to Mr. Young’s sentencing”;

(2) “There is a preservation of a legal issue for appeal in this case” (emphasis added); and

(3) “And indeed, you and your lawyer have preserved your right to appeal this Court’s ruling on the

application of your fleeing and eluding conviction to the armed career criminal statute.”

No. 08-1394 United States v. Young Page 4

drug offenses.” 18 U.S.C. § 924(e)(1). Young concedes that two of his prior offenses

qualify as serious drug offenses, but he argues that his 1997 conviction for fleeing and

eluding, second offense under Michigan law does not qualify as a violent felony under

ACCA.

The fleeing-and-eluding statute under which Young was convicted states, in

relevant part, as follows:

A driver of a motor vehicle who is given by hand, voice, emergency

light, or siren a visual or audible signal by a police or conservation

officer, acting in the lawful performance of his or her duty, directing the

driver to bring his or her motor vehicle to a stop, and who willfully fails

to obey that direction by increasing the speed of the vehicle,

extinguishing the lights of the vehicle, or otherwise attempting to flee or

elude the police or conservation officer, is guilty of a misdemeanor, and

shall be punished by imprisonment for not less than 30 days nor more

than 1 year . . . .

Mich. Comp. Laws § 257.602a3(1) (1996). If a person violates that provision within

five years of a prior fleeing-and-eluding conviction, the offense is punishable as a felony

by a term of imprisonment up to and including four years. Id. at § 257.602a3(4).

A “violent felony” under ACCA is an offense that is punishable by a term of

imprisonment exceeding one year and either (1) “has as an element the use, attempted

use, or threatened use of physical force against the person of another,” or (2) “is

burglary, arson, or extortion, involves the 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). Young’s offense was punishable by a term of imprisonment exceeding

one year, as he was convicted for a second fleeing and eluding offense within five years;

thus, Young’s fleeing-and-eluding conviction satisfies the threshold requirement of

ACCA. Young’s conviction, however, does not have as an element the use, attempted

use, or threatened use of force, nor is it a type of burglary, arson, extortion, or an offense

involving the use of explosives. Thus, the issue before the Court is whether Young’s

conviction falls under ACCA’s “residual clause”—that is, whether it “involves conduct

that presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii).

No. 08-1394 United States v. Young Page 5

An offense falls within ACCA’s residual clause if it (1) poses a serious potential

risk of physical injury to others; and (2) involves the same kind of purposeful, violent,

and aggressive conduct as the enumerated offenses of burglary, arson, extortion, or

offenses involving the use of explosives. Begay v. United States, -- U.S. --, 128 S. Ct.

1581, 1586 (2008); United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009). In

conducting that inquiry, we are to use the “categorical approach,” meaning that we

examine only “whether the elements of the offense are of the type that would justify its

inclusion within the residual provision.” James v. United States, 550 U.S. 192, 202

(2007) (emphasis in original). Further, we only consider the behavior underlying the

offense as it is generally or ordinarily committed, Chambers v. United States, -- U.S. --,

129 S. Ct. 687, 690 (2009); James, 550 U.S. at 208, “not in terms of how an individual

offender might have committed [the offense] on a particular occasion,” Begay, 128 S.

Ct. at 1584.

Under the categorical approach of James, Begay, and Chambers, we hold that

Young’s conviction qualifies as a violent felony under ACCA. Young’s conviction

clearly involved purposeful conduct, as Michigan’s fleeing-and-eluding statute applies

only to those “who willfully fail[] to obey [an officer’s] direction.” Mich. Comp. Laws

§ 257.602a3(1) (1996). See United States v. Roseboro, 551 F.3d 226, 236 & n.5 (4th

Cir. 2009) (noting that Michigan’s fleeing-and-eluding statute requires the violation to

be purposeful); compare United States v. Spells, 537 F.3d 743, 749 (7th Cir. 2008) (mens

rea element of “knowingly or intentionally” presumed purposeful conduct); United

States v. West, 550 F.3d 952, 960-61, 970 (10th Cir. 2008) (statute prohibiting operating

a vehicle “in willful or wanton disregard of [an officer’s] signal” involved purposeful

conduct).

Moreover, an ordinary violation of Michigan’s fleeing-and-eluding statute

involves aggressive conduct. A deliberate attempt to flee or elude a police officer in a

motor vehicle constitutes “a clear challenge to the officer’s authority,” United States v.

Harrimon, 568 F.3d 531, 535 (5th Cir. 2009), and it usually will “call[] the officer to

give chase,” Spells, 537 F.3d at 752; West, 550 F.3d at 969. This is especially true when

No. 08-1394 United States v. Young Page 6

an offender flees in the manner proscribed by the Michigan statute, i.e., “by increasing

the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting

to flee or elude . . . .” Mich. Comp. Laws § 257.602a3(1) (1996). Fleeing and eluding

also is generally aggressive because it “typically lead[s] to a confrontation” between the

offender and the officer. Harrimon, 568 F.3d at 535 (quoting West, 550 F.3d at 970);

see also Roseboro, 551 F.3d at 240 (“The intentional act of disobeying a law

enforcement officer by refusing to stop for his blue light signal, without justification, is

inherently an aggressive and violent act.” (citation omitted)).

Finally, fleeing and eluding involves violent conduct that poses a serious

potential risk of physical injury to others. The purpose of fleeing in a motor vehicle is

to avoid detention or arrest by a police officer, and offenders typically attempt to flee by

any means necessary, including speeding, extinguishing lights at nighttime, driving the

wrong way, weaving, etc.2 See West, 550 F.3d at 964 (“[U]nder the stress and urgency

which will naturally attend his situation, a person fleeing from law enforcement will

likely drive recklessly and turn any pursuit into a high-speed chase with potential for

serious harm to police or innocent bystanders.” (citations omitted)); Harrimon, 568 F.3d

at 536 (Given the “marked likelihood of pursuit and confrontation” in fleeing-and-

eluding offenses, “in the typical case, an offender fleeing from an attempted stop or

arrest will not hesitate to endanger others to make good his or her escape.”); see also

Roseboro, 551 F.3d at 240. Those actions nearly always pose a substantial danger to

pedestrians, other motorists, passengers, and pursuing officers. See Spells, 537 F.3d at

752; West, 550 F.3d at 964-65. Not only is such risk of violence intuitive, but it has been

borne out empirically. As the Fifth Circuit noted, in a study involving fifty-six law

enforcement agencies across the country, 314 injuries (including fatalities) resulted from

7,737 reported pursuits. Harrimon, 568 F.3d at 537 (citation omitted). That constitutes

2

Though it is theoretically possible to willfully fail to obey an officer’s command to stop a vehicle

by calmly driving the vehicle at or below the speed limit and following all traffic laws in the process, we

concern ourselves only with how an offense is ordinarily or generally committed, based upon the statute.

James, 550 U.S. at 208; Chambers, 129 S. Ct. at 690. As a general matter, one does not attempt to “flee

or elude” a police officer in such a manner.

No. 08-1394 United States v. Young Page 7

a rate of .04 injuries-per-pursuit and exceeds the rate of injuries-per-arson, an offense

specifically enumerated in ACCA.3 Id.

Indeed, classifying Young’s conviction as a violent felony accords with the

purpose of ACCA. As indicated by its title, “the Armed Career Criminal Act focuses

upon the special danger created when a particular type of offender . . . possesses a gun.”

Begay, 128 S. Ct. at 1587 (citations omitted). Begay held that ACCA only included as

violent felonies those “crimes involv[ing] . . . purposeful, ‘violent,’ and ‘aggressive’

conduct” because those offenses “[are] such that [they] make[] more likely that an

offender, later possessing a gun, will use that gun deliberately to harm a victim,” and are

themselves “potentially more dangerous when firearms are involved.” Id. at 1586

(citations omitted). With respect to fleeing and eluding, if an offender is willing to drive

recklessly to elude a police officer, without regard for the safety of bystanders or

pursuing officers, it is likely that the offender would not hesitate to use a gun

deliberately to harm a victim in another context. Moreover, fleeing and eluding itself

is potentially more dangerous when firearms are involved. Given that fleeing and

eluding, in the ordinary case, provokes a confrontation between the offender and an

officer, a firearm could quickly change the confrontation from a scuffle to a shootout.

Again, statistics support that conclusion—as the Seventh Circuit noted, one-fourth of all

state and federal inmates convicted for brandishing or displaying a firearm did so in an

effort to evade capture. Spells, 537 F.3d at 752 n.3 (citing U.S. Dep’t of Justice, Survey

of Inmates in State and Federal Correctional Facilities: Firearm Use by Offenders 11,

Table 14 (Nov. 2001)). Therefore, “[a]n individual’s purposeful decision to flee an

officer in a vehicle when told to stop, reflects that if the same individual were in

possession of a firearm and asked to stop by police, they [sic] would have a greater

propensity to use that firearm in an effort to evade arrest.” Id. at 752; see also West, 550

F.3d at 970.

3

In 2007, according to the U.S. Fire Administration, 2,475 injuries resulted from roughly 267,000

arsons—a rate of .009 injuries per arson. Harrimon, 568 F.3d at 537 (citing U.S. Fire Admin., Arson in

the United States, 1 Topical Fire Research Series (Issue 8) (2001)). Also, in 2005, according to the

National Fire Prevention Association, 9,593 civilian injuries resulted from approximately 323,900 reported

“intentional fires”—a rate of .03 injuries per intentional fire. Id. (citing U.S. Fire Admin., Arson for Profit:

National Arson Awareness Week Media Kit 2 (2009)).

No. 08-1394 United States v. Young Page 8

Young argues that this Court already determined in United States v. Foreman,

436 F.3d 638 (6th Cir. 2006), that fleeing and eluding simpliciter does not pose a serious

potential risk of physical injury to others, and that we must therefore remand for

resentencing.4 “Although a panel of this Court cannot overrule the decision of another

panel, [it] may modify . . . prior holdings when an intervening opinion of the United

States Supreme Court requires [it] to do so.” Caswell v. City of Detroit Housing

Comm’n, 418 F.3d 615, 618 n.1 (6th Cir. 2005); United States v. Smith, 73 F.3d 1414,

1418 (6th Cir. 1996). We find Foreman’s analysis to be inconsistent with James—as

well as Begay and Chambers, which reaffirmed James—and therefore hold that Foreman

does not govern this case.

Prior to James, we twice considered whether fleeing and eluding under an

amended version of Michigan’s fleeing-and-eluding statute qualified as a “crime of

violence” under the career-offender provision of the sentencing guidelines, U.S.S.G.

§ 4B1.1(a).5 Mich. Comp. Laws § 750.479a (1997). Under the amended statute,

“fourth-degree fleeing and eluding” required proof of the same elements as the statute

under which Young was convicted: (1) use of a motor vehicle, (2) an order to stop the

vehicle by an officer in the lawful performance of his duty, and (3) willful disobedience

of that order by speeding, extinguishing the vehicle’s lights, or otherwise attempting to

flee or elude the officer. Id. at § 950.479a(1). An offender who caused a collision, fled

in a 35 mile-per-hour zone, or had a prior conviction for fourth-degree fleeing and

4

Young is correct that if Foreman remains good law, his sentence should be reversed. So far as

the statute is concerned, it takes exactly the same conduct to flee and elude the first time as it does the

second (or fifth) time:

(1) use of a motor vehicle, (2) an order to stop the vehicle by an officer in the lawful performance of his

duty, (3) willful disobedience of that order by speeding, extinguishing the vehicle’s lights, or otherwise

attempting to flee or elude the officer. Mich. Comp. Laws § 257.602a3(1) (1996). Neither the concurrence

nor the government explains why having a prior fleeing-and-eluding conviction “significantly” changes

the “behavior underlying” a subsequent fleeing-and-eluding offense, Chambers, 129 S. Ct. at 690, nor does

either cite evidence suggesting that a second fleeing-and-eluding offense is inherently more dangerous than

the first offense, compare Ford, 560 F.3d at 424 (“No one in this case has offered any empirical evidence

suggesting that walkaway escapes, in contrast to traditional escapes, are apt to lead to serious risks of

physical injury.”). Moreover, it more appropriately falls to the legislature, not the judiciary, to render

recidivist conduct relevant to the “violent felony” inquiry under the ACCA.

5

A “crime of violence” under the career-offender provision is interpreted identically to a “violent

felony” under ACCA. United States v. Houston, 187 F.3d 593, 594-95 (6th Cir. 1999); United States v.

Hargrove, 416 F.3d 486, 494 (6th Cir. 2005).

No. 08-1394 United States v. Young Page 9

eluding, meanwhile, was liable for “third-degree fleeing and eluding.” Id. at

§ 950.479a(3).

In United States v. Martin, 378 F.3d 578 (6th Cir. 2004), we held that convictions

with either of two additional circumstances—causing a collision and/or fleeing in a 35

mile-per-hour zone—qualified third-degree fleeing and eluding as a crime of violence.

Id. at 583. We recently reaffirmed Martin in United States v. LaCasse, 567 F.3d 763

(6th Cir. 2009), which also concerned third-degree fleeing and eluding with the

additional circumstances of causing a collision and/or fleeing in a 35 mile-per-hour

zone.6 Two years later, we decided in Foreman that, because fourth-degree fleeing and

eluding did not involve either of the additional circumstances at issue in Martin, “the

categorical approach is not determinative of whether fourth degree fleeing and eluding

is a ‘crime of violence.’” Foreman, 436 F.3d at 643. Foreman remanded the case to

determine whether “the facts [underlying the defendant’s offense] demonstrate a serious

potential risk of physical injury to another.” Id. (emphasis in original).

In 2007, after we decided Foreman, the Supreme Court announced for the first

time that, when applying the categorical approach to an unenumerated offense, courts

must determine “whether the conduct encompassed by the elements of the offense, in the

ordinary case, presents a serious potential risk of injury to another.”7 James, 550 U.S.

at 208 (emphasis added). The Court reaffirmed that approach in Begay and Chambers.

Begay, 128 S. Ct. at 1584; Chambers, 129 S. Ct. at 690. Foreman, however, did not

engage in the analysis prescribed by James; indeed, the panel in Foreman could not have

known to do so because Foreman pre-dated James. Rather, Foreman simply reasoned

6

LaCasse did not explicitly state that it concerned those particular additional circumstances. The

government brief to the Sixth Circuit in LaCasse noted, however, that the district court determined, based

upon the criminal history, the charging document, and the plea colloquy, that defendant’s conviction

resulted either from causing a collision or speeding in a 35 mile-per-hour zone. 2007 WL 2477944, at *9.

7

Shepard v. United States, 544 U.S. 13 (2005), the last relevant Supreme Court case decided

before Foreman, reiterated the holding from Taylor v. United States, 495 U.S. 575 (1990), that, in

determining whether a prior conviction qualifies as a violent felony under ACCA, courts generally may

“look only to the fact of conviction and the statutory definition of the prior offense.” Shepard, 544 U.S.

at 17 (quoting Taylor, 495 U.S. at 602). Both Taylor and Shepard, however, involved burglary offenses,

and thus provided little guidance on how to apply the “categorical approach” to offenses not specifically

enumerated in ACCA.

No. 08-1394 United States v. Young Page 10

that, because fourth-degree fleeing and eluding can conceivably be committed without

causing a serious potential risk of injury to others, “the categorical approach is not

determinative.” Foreman, 436 F.3d at 643. That Foreman relied upon such reasoning

is especially significant upon examination of its remedy: remand to the district court to

determine whether “the facts demonstrate a serious potential risk of physical injury to

another.”8 Id. (emphasis in original). As the Supreme Court clarified subsequent to

Foreman, however, such a fact-based remedy is impermissible because courts may not

examine “how an individual offender might have committed [the offense] on a particular

occasion,” but only how an offense is ordinarily committed based upon its elements.

James, 550 U.S. at 208; Begay, 128 S. Ct. at 1584; Chambers, 129 S. Ct. at 690. Under

the guidance given in James, Begay, and Chambers, the mere fact that an offense can

be committed without posing a serious potential risk of injury does not mean that the

offense as ordinarily committed does not pose such a risk. See James, 550 U.S. at 207-

08 (rejecting the argument that a state attempted burglary offense qualified as a violent

felony only if all cases presented a serious potential risk of physical harm). Indeed, even

“prototypically violent crime[s],” such as burglary, extortion, and attempted murder, can

be committed in such a way as to pose no genuine risk of injury. Id.

For the foregoing reasons, we find that Foreman is no longer controlling

precedent in light of James, Begay, and Chambers. Further, we hold that Young’s

conviction under Michigan’s fleeing-and-eluding statute qualifies as a violent felony

8

The Foreman opinion itself does not indicate that it ever considered the behavior underlying the

typical case of fleeing and eluding. And indeed, the fact that Foreman remanded the case to the district

court to determine whether the facts underlying the defendant’s conviction posed a serious potential risk

of physical injury, Foreman, 436 F.3d at 643, undermines the notion that Foreman examined how fourth-

degree fleeing and eluding is typically committed. Shepard documents may only be examined where a

statutory provision can be divided into two or more criminal categories, at least one of which is a violent

felony and at least one of which is not. See Chambers, 129 S. Ct. at 691. Foreman, however, remanded

for examination of Shepard documents even though fourth-degree fleeing and eluding constitutes a single

criminal category for purposes of the categorical approach under James, Begay, and Chambers. This

panel is unanimous in concluding that a Shepard remand in Foreman was inappropriate. See post at 6-8.

The Fourth Circuit’s decision in Roseboro provides a helpful contrast. There, the Fourth Circuit

determined that South Carolina’s fleeing-and-eluding statute “unquestionably covers both intentional and

unintentional conduct” because the statute does not require the state to prove that a defendant acted with

criminal intent, i.e., willfully or purposefully. Roseboro, 551 F.3d at 235. Thus, because South Carolina’s

statute constitutes multiple criminal categories, the Fourth Circuit remanded for consultation of Shepard

documents to “determine . . . whether [defendant’s] convictions involved intentional violations” of the

statute. Id. at 240. If the district court found that defendant purposefully violated the statute, the Fourth

Circuit concluded, defendant’s convictions would have involved purposeful, violent, and aggressive

conduct, and thus would qualify as violent felonies under ACCA. Id.

No. 08-1394 United States v. Young Page 11

under ACCA. Accordingly, the district court did not err in applying ACCA’s

enhancement.

IV.

For these reasons, we affirm Young’s conviction and sentence.

No. 08-1394 United States v. Young Page 12

____________________________________________________________________

CONCURRING IN PART, DISSENTING IN PART, CONCURRING IN THE

JUDGMENT

____________________________________________________________________

SUTTON, Circuit Judge, concurring in part, dissenting in part and concurring in

the judgment. Sometimes hard cases make bad law. And sometimes easy cases make

bad law. Only rarely, however, do easy cases make bad law by overruling good law.

This is an easy case, and it is one that we readily can resolve without overruling

one of our precedents—United States v. Foreman, 436 F.3d 638 (6th Cir. 2006). Since

Foreman, the Supreme Court has decided three crime-of-violence cases, and none of

them compels us to give the last rites to Foreman. One applies the same approach as

Foreman. See James v. United States, 550 U.S. 192, 207–09 (2007). And the other two

bolster the result in Foreman by making it more difficult to establish that a defendant’s

prior conviction is a crime of violence. See United States v. Chambers, __ U.S. __, 129

S. Ct. 687, 690–92 (2009); Begay v. United States, 553 U.S. __, 128 S. Ct. 1581, 1586

(2008). Why the majority must overrule Foreman, as opposed to registering

disagreement with it, is a mystery.

This premature overruling of one of our precedents stands in stark contrast to a

recent decision of the court. In resolving a difficult death-penalty case, Getsy v.

Strickland, all three members of the panel registered their disagreement with the leading

precedent on point, Cooey v. Strickland, 479 F.3d 412, 422 (6th Cir. 2007) (Cooey II).

See No. 08-4199, __ F.3d __, 2009 WL 2475165, at *4 (6th Cir. Aug. 13, 2009); id. at

*4–5 (Moore, J., concurring); id. at *7–11 (Merritt, J., dissenting). Yet, to its credit, the

panel stood by Cooey II, allowing that precedent to survive, even when it meant that Mr.

Getsy might not. See Getsy v. Strickland, No. 09-5935, __ U.S. __, 2009 WL 2490098

(Aug. 17, 2009). Perhaps I am missing something, but I fail to understand why we

cannot take the same path here. This, indeed, is the easier case: There is less at stake,

and a faithful adherence to Foreman does not even alter the result.

No. 08-1394 United States v. Young Page 13

Consider this straightforward way to resolve the case, one that does not require

us to overrule Foreman and one that still allows the majority to conclude that Young’s

fleeing-and-eluding conviction was a crime of violence. As the majority correctly notes,

everything in this case depends on whether fleeing and eluding under Michigan law falls

within ACCA’s catchall clause for crimes that “otherwise involve[] conduct that presents

a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).

And, as the majority correctly adds, a crime falls within that clause if (1) it presents a

serious potential risk of injury akin in degree to the enumerated offenses—burglary,

arson, extortion or the use of explosives, see 18 U.S.C. § 924 (e)(2)(B)(ii)—see James

550 U.S. at 202–09, and (2) it involves the same kind of “purposeful, violent, and

aggressive” conduct as the enumerated crimes, Begay, 128 S. Ct. at 1586; see also

Chambers, 129 S. Ct. at 692.

In three cases, we have applied this framework to Michigan’s fleeing-and-eluding

statute. In the first, United States v. Martin, we held that convictions involving either

of two aggravators—that the “violation results in a collision or accident,” Mich. Comp.

Laws. § 257.602a(3)(a), or “a portion of the violation occurred in an area where the

speed limit is 35 miles an hour or less,” id. § 257.602a(3)(b)—present a serious potential

risk of injury. See 378 F.3d 578, 582–84 (6th Cir. 2004). We reasoned that both the

flight itself and the eventual apprehension “create[] a conspicuous potential risk of

injury” and committing the offense through either enhancement “confirms the palpable

risk.” Id. at 582. We also analogized fleeing and eluding to escape—which we

previously recognized as a “crime of violence” under the Sentencing Guidelines, see

United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999), modification recognized

in United States v. Ford, 560 F.3d 420, 423 (6th Cir. 2009)—as both involve heightened

emotions and usually end with a confrontation between the officer and the suspect.

Martin, 378 F.3d at 582–83. In the end, we concluded that fleeing and eluding poses a

greater risk than escape because fleeing and eluding always involves “flight [from

officers] and the inherent third-party risks that such conduct entails.” Id. at 583.

No. 08-1394 United States v. Young Page 14

In the second, Foreman, we addressed whether a fleeing-and-eluding violation

amounted to a crime of violence if it did not involve any aggravating circumstances. We

acknowledged that such conduct, like the conduct in Martin, creates a potential risk of

physical injury to another. 436 F.3d at 642–43. But we decided it was only “the

presence of . . . fleeing in a low speed zone or causing an accident” that enabled us

categorically to characterize the fleeing-and-eluding violation in Martin as ordinarily

posing “a serious potential risk.” Id. at 643 (emphasis in original). We therefore held

that the risk of injury was not “serious” enough to amount to a crime of violence.

In the third, United States v. LaCasse, we considered whether the Supreme

Court’s intervening decisions in Begay and Chambers altered these analyses. See 567

F.3d 763, 764 (6th Cir. 2009). At issue was whether a typical third-degree fleeing-and-

eluding conviction involves the type of purposeful, violent or aggressive conduct

targeted by ACCA. Id. at 765–67. As laid out in the current statute, a third-degree

offense involves the same conduct as a fourth-degree offense plus the presence of one

of three aggravators: the two present in Martin or a prior conviction for fleeing and

eluding. See Mich. Comp. Laws. § 257.602a(3) (2008). Michigan’s third-degree

fleeing-and-eluding statute, we reasoned, requires affirmative, aggressive conduct

distinguishable from the strict liability drunk-driving offense in Begay. LaCasse, 567

F.3d at 766. And Chambers, which held that a “failure to report” to prison was “a

separate crime, different from escape” and not a “violent felony” under ACCA, 129 S.

Ct. at 691–93, gave “added force” to this conclusion. LaCasse, 567 F.3d at 766–67.

Chambers’ distinction between a prison breakout and a failure to report suggested that

a traditional escape remained a “violent felony” involving the same type of purposeful,

violent, or aggressive conduct targeted by ACCA. Id. at 767. And since “fleeing and

eluding [is] but an attempt to escape,” we reaffirmed that a third-degree fleeing-and-

eluding conviction remained categorically a “violent felony” under ACCA. Id. at 764,

767.

Taken together, these three decisions create the following line: A fourth-degree

offense (e.g., a first-time offender) is not a crime of violence (Foreman); and at least two

No. 08-1394 United States v. Young Page 15

types of third-degree offenses (e.g., one that causes physical injury or occurs in a thirty-

five-mph zone) are crimes of violence (Martin and LaCasse). That leaves today’s

question: Is the last type of third-degree offense, in which a defendant has committed

fourth-degree fleeing and eluding more than once in five years, a crime of violence?

Yes, I say, and the basis for saying so is straightforward and respectful of all three

precedents: simply draw a line between run-of-the-mine violations of the statute (treated

as non-violent crimes) and aggravated violations of the statute (treated as violent

crimes). That is precisely what LaCasse seemed to do with the issue. And that, it seems

to me, should end this case, particularly since it leads to the same result that the

majority’s approach does. If the majority also wishes to register its disagreement with

Foreman, it is free to do so and later panels (or the en banc court) can take that criticism

into consideration. But nothing in this case presents a basis for overruling the decision,

much less compels us to do so.

In maintaining that Foreman must be overruled, the majority notes that

“Young”—the losing appellant in this case—“is correct that if Foreman remains good

law, his sentence should be reversed.” Maj. Op. at 8 n.4. That is not a recognized

exception to stare decisis. A litigant’s position in a case, least of all the position of the

losing litigant, does not require us to overrule this precedent, particularly since Young

would lose whether Foreman remains good law or not.

Nor is Foreman inconsistent with Martin or with intervening Supreme Court

precedent. Foreman’s holding does not contradict Martin’s holding. Third-degree and

fourth-degree fleeing and eluding are separate offenses, and Martin addressed the only

offense before it: third-degree fleeing and eluding. See 378 F.3d at 582.

The Supreme Court’s recent decisions also do not require the overruling of

Foreman. Begay and Chambers both make it harder, not easier, to classify an offense

as a crime of violence, because they both held (as Foreman held) that the offenses before

them were not crimes of violence. See Begay, 128 S. Ct. at 1586, 1588; Chambers, 129

S. Ct. at 692–93. And Foreman applied the categorical approach, including the

requirement that courts look to the ordinary manner in which an offense is committed,

No. 08-1394 United States v. Young Page 16

adhered to in James and required by Taylor v. United States, 495 U.S. 575 (1990), which

predates Foreman. Nothing, in short, justifies abandoning our custom of respecting the

holdings of the panels that come before us. See Blair v. Henry Filters, Inc., 505 F.3d

517, 526 (6th Cir. 2007).

If there was a time to overrule Foreman (and I don’t think there was), it was in

LaCasse, not this case. LaCasse itself suggests, if not explicitly adopts, the same line

I propose. If we now have the right to overrule Foreman, so did the LaCasse panel. But

it left the decision as is. We instead should leave all three decisions (Foreman, Martin

and LaCasse) where we found them, standing by the sensible line they draw: between

fleeing-and-eluding offenses that involve an aggravating circumstance and those that do

not.

I also see no cognizable reason to treat Young’s recidivist offense differently

from the other aggravating circumstances. On the contrary: there is good reason to

think that it poses more risk of physical injury and is more violent than at least one of the

others: the thirty-five-mph-zone aggravator. Many people, I suspect, would prefer to

take their chances in the vicinity of a first-time thirty-five-mph violator than in the

vicinity of someone who has already been arrested for fleeing and eluding before and

thus knows that what they are doing is wrong and has embraced the risks nonetheless.

Surely, as a general matter, it also makes sense to treat repeat offenders

differently from first-time offenders. A central premise of the “career offender”

component of ACCA—the law we interpret today—is that recalcitrant law-breakers pose

risks to the public that are different in kind and blameworthiness from initial law-

breakers. In the absence of that policy judgment, ACCA would not exist.

Stare decisis provides one reason for the approach I recommend. The reality that

the outcome of this case would be the same, whether Foreman is good law or bad,

provides another. But it makes the least sense to overrule a precedent gratuitously in

such an evolving area of federal law. “[T]he mire into which ACCA’s draftmanship and

Taylor’s ‘categorical approach’ have pushed us,” Chambers, 129 S. Ct. at 694 (Alito, J.,

concurring), is consuming an increasing portion of our docket. This is the fourth case

No. 08-1394 United States v. Young Page 17

in five years dealing with one statute from one State, with each case asking us to slice

the statute into thinner analytical pieces. Outside our circuit, a deep split has arisen over

whether similar fleeing-and-eluding offenses present the requisite risk of injury,

compare United States v. Kendrick, 423 F.3d 803, 809 (8th Cir. 2005), and United States

v. Howze, 343 F.3d 919, 921–22 (7th Cir. 2003), with United States v. Kelly, 422 F.3d

889, 893–95 (9th Cir. 2005), or the requisite type of aggressive conduct, compare United

States v. West, 550 F.3d 952, 968–71 (10th Cir. 2008), and United States v. Spells, 537

F.3d 743, 752–53 (7th Cir. 2008), with United States v. Harrison, 558 F.3d 1280,

1295–96 (11th Cir. 2009). It is one thing to enter this quagmire because a case requires

it; it is quite another to re-shift the shifting sand when nothing demands it.

There is one nuance about Foreman that deserves mention, but it does not require

its overruling. When we hold that an offense is not categorically a crime of violence, we

often remand the case to the district court so that the Government may establish through

Shepard sources that the defendant’s conduct was a crime of violence, as we did in

Foreman, 436 F.3d at 643, and as we have done in other cases, see, e.g., United States

v. Mosley, No. 08-1783, __ F.3d __, 2009 WL 2176634, at *4 (6th Cir. July 23, 2009);

United States v. Baker, 559 F.3d 443, 455 (6th Cir. 2009); United States v. Armstead,

467 F.3d 943, 948–50 (6th Cir. 2006). This type of remand should not be done

reflexively, however, for it does not always make sense, and in some settings it may

even suggest that the court is embracing a non-categorical approach to the issue. If, say,

the state law offense has just one category, or two categories that both amount to crimes

of violence, nothing productive can come from a Shepard inquiry. By contrast, when

an offense is divisible into two or more categories, and at least one category is a “crime

of violence” and at least one is not, there is something the Shepard sources can reveal:

that the defendant committed a type of offense that is a crime of violence. See Shepard

v. United States, 544 U.S. 13, 19–21 (2005); Chambers, 129 S. Ct. at 690–91.

The Shepard remand in Foreman illustrates the point. There are three ways to

commit fourth-degree fleeing and eluding: “increasing the speed of the vehicle,

extinguishing the lights of the vehicle, or otherwise attempting to flee or elude.” See

No. 08-1394 United States v. Young Page 18

Mich. Comp. Laws § 257.602a(1). Nothing in Foreman suggests that any one of these

categories is a crime of violence. The point of the opinion was to say that all three

offenses were not crimes of violence. Only confusion, I submit, comes from a Shepard

remand in these circumstances. For in this setting, a remand suggests that we are asking

the district court to do something that Taylor prohibits: engaging in a fact-specific

inquiry about how this defendant committed this offense. Taylor, 495 U.S. at 600–02.

It also inadvertently suggests to district courts that we ourselves will ignore the

categorical approach—and, worse, that we may reverse them for not doing so. As I see

it, a Shepard remand should be issued only when the crime at issue contains at least two

categories, at least one way of committing the offense is a crime of violence, and at least

one way of committing the offense is not. But none of this justifies overruling Foreman,

which at worst made a mistake that many of our precedents in this area have made. All

we should do is sound a word of caution about Shepard remands and leave Foreman as

we found it.

One final note. A court of this size cannot function if it does not stand by its

prior decisions—if each panel is a court unto itself in deciding whether to adhere to a

prior decision. Respect for our precedents, respect for each other and respect for the

district court judges and litigants who must live with our decisions demands that each

panel treat the overruling of precedents as a measure of last resort—an unavoidable act

that intervening Supreme Court precedent (or something similar) compels. By any

measure, that did not happen here. The majority seeing things differently, I respectfully

dissent from this aspect of its decision and otherwise join the rest of it.