Petition for Writ of Certiorari — Jamaile L. Huey, Petitioner v. United States

NO. __________________

In the

Supreme Court of the United States

JAMAILE HUEY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Wesley P. Page

Federal Public Defender

Jonathan D. Byrne

Appellate Counsel

Counsel of Record

Lex A. Coleman

Senior Litigator, Assistant Federal Public Defender

OFFICE OF THE FEDERAL PUBLIC DEFENDER

Southern District of West Virginia

300 Virginia Street, East, Room 3400

Charleston, West Virginia 25301

304/347-3350

jonathan_byrne@fd.org

Counsel for Petitioner

Dated: January 10, 2024

I. QUESTION PRESENTED FOR REVIEW

Whether a state robbery conviction, sustained under a statute without a

specified mens rea for the element of violence or threat of violence, but with a

specific mens rea for the theft element of the offense, is a “crime of violence” under

U.S.S.G. § 4B1.2(a), in light of this Court’s decision in Borden v. United States, 141

S. Ct. 1817 (2021).

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II. TABLE OF CONTENTS

I.

QUESTIONS PRESENTED FOR REVIEW ...................................................... 1

II.

TABLE OF CONTENTS ..................................................................................... 2

III.

TABLE OF AUTHORITIES ............................................................................... 4

IV.

LIST OF ALL DIRECTLY RELATED PROCEEDINGS ................................... 6

V.

OPINIONS BELOW............................................................................................ 6

VI.

JURISDICTION .................................................................................................. 6

VII.

STATUTES AND REGULATIONS INVOLVED ............................................... 6

VIII. STATEMENT OF THE CASE ............................................................................ 8

IX.

A.

Federal Jurisdiction ................................................................................. 8

B.

Facts Pertinent to the Issue Presented ................................................... 8

1.

Huey objects to the classification of his prior

Michigan robbery offenses as crimes of violence. ......................... 9

2.

The district court overrules Huey’s objection,

considers his prior convictions as crimes of violence,

and imposes sentence accordingly. ............................................. 10

3.

The Fourth Circuit affirms Huey’s sentence. ............................. 12

REASON FOR GRANTING THE PETITION ................................................. 13

The writ should be granted to determine whether a state robbery

conviction, sustained under a statute without a specified mens

rea for the element of violence or threat of violence, but with a

specific mens rea for the theft element of the offense, is a “crime

of violence” under U.S.S.G. § 4B1.2(a), in light of this Court’s

decision in Borden v. United States, 141 S. Ct. 1817 (2021) ........................... 13

A.

Huey’s offense level is increased based on two prior

unarmed robbery convictions. ................................................................ 14

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B.

X.

Huey’s prior unarmed robbery convictions did not require

any particular mens rea related to the use or threatened

use of force. ............................................................................................. 15

CONCLUSION .................................................................................................. 19

APPENDIX A: Opinion of the United States

Court of Appeals for the Fourth Circuit

decided October 12, 2023 ................................................................ A-1

APPENDIX B: Excerpt of Transcript of Sentencing Hearing

before The Honorable Robert C. Chambers

United States District Court

Southern District of West Virginia

on July 12, 2021 .............................................................................. B-1

APPENDIX C: Judgment of the

United States District Court for the

Southern District of West Virginia

entered July 14, 2021...................................................................... C-1

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III. TABLE OF AUTHORITIES

Cases

Borden v. United States, 141 S. Ct. 1817 (2021)....................1, 9, 10, 11, 12, 13, 16, 17

Chaney v. United States, 917 F.3d 895 (6th Cir. 2019) .............................................. 16

Descamps v. United States, 570 U.S. 254 (2013) .................................................. 14, 15

James v. United States, 550 U.S. 192 (2007) .............................................................. 13

Mathis v. United States, 579 U.S. 500 (2016) ............................................................. 19

People v. Crawford, 923 N.W.2d 296 (Mich. Ct. App. 2018) ...................................... 17

People v. Crawford, 924 N.W.2d 248 (Mich. 2019) ..................................................... 17

People v. Harverson, 804 N.W.2d 757 (Mich. Ct. App. 2010) ............................... 15, 17

People v. Himmelein, 442 N.W.2d 667 (Mich. Ct. App. 1989) .................................... 17

People v. Randolph, 648 N.W.2d 164 (Mich. 2002)............................................... 15, 18

People v. Sanders, 184 N.W.2d 269 (Mich. Ct. App. 1970)................................... 17, 18

People v. Williams, 814 N.W.2d 270, 273-274 (Mich. 2012) ....................................... 15

United States v. Gattis, 877 F.3d 150 (4th Cir. 2017) ................................................ 18

United States v. Hood, 628 F.3d 669 (4th Cir. 2010) .................................................. 13

United States v. Huey, 2023 WL 6638076 (4th Cir. 2023) ................................... 12, 18

United States v. Huey, Appeal No. 21-4374 (4th Cir.) ................................................ 12

United States v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013) ................................... 14

United States v. Royal, 731 F.3d 333 (4th Cir. 2013) ........................................... 14, 15

United States v. Simmons, 917 F.3d 312 (4th Cir. 2019) ........................................... 12

United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) ................................... 15

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Federal Statutes

18 U.S.C. § 841(c) ........................................................................................................... 7

18 U.S.C. § 3231 ............................................................................................................. 8

18 U.S.C. § 3742 ............................................................................................................. 8

18 U.S.C. § 922(g)(1) ...................................................................................................... 8

18 U.S.C. § 924(a)(2) ...................................................................................................... 8

18 U.S.C. § 924(e)......................................................................................................... 10

26 U.S.C. § 5845(a) ........................................................................................................ 7

28 U.S.C. § 1254 ............................................................................................................. 6

28 U.S.C. § 1291 ............................................................................................................. 8

Rules

Sup. Ct. R. 10(c) ........................................................................................................... 13

Sup. Ct. R. 13.1 .............................................................................................................. 6

Sup. Ct. R. 13.3 .............................................................................................................. 6

Guidelines

U.S.S.G. § 2K2.1, Application Note 13(A) ..................................................................... 7

U.S.S.G. § 2K2.1(a) .................................................................................................. 6, 14

U.S.S.G. § 2K2.1(a)(1) .............................................................................................. 9, 14

U.S.S.G. § 2K2.1(a)(4)(B) ............................................................................................. 14

U.S.S.G. § 4B1.2....................................................................................................... 7, 14

U.S.S.G. § 4B1.2(a) ...................................................................................... 1, 13, 14, 18

U.S.S.G. § 4B1.2(a)(2) ............................................................................................ 12, 18

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IV. LIST OF ALL DIRECTLY RELATED PROCEEDINGS

•

United States v. Huey, No. 3:21-cr-00030, U.S. District Court for the

Southern District of West Virginia. Judgment entered July 14, 2021.

•

United States v. Huey, Appeal No. 21-4374, U.S. Court of Appeals for the

Fourth Circuit. Judgment entered on October 12, 2023.

V. OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit

affirming Huey’s sentence is unpublished and is attached to this Petition as Appendix

A. The portion of the sentencing transcript containing the district court’s oral ruling

regarding Huey’s prior conviction is attached to this Petition as Appendix B. The

judgment order is unpublished and is attached to this Petition as Exhibit C.

VI. JURISDICTION

This Petition seeks review of a judgment of the United States Court of Appeals

for the Fourth Circuit entered on October 12, 2023. No petition for rehearing was

filed. This Petition is filed within 90 days of the date the court’s entry of its judgment.

Jurisdiction is conferred upon this Court by 28 U.S.C. § 1254 and Rules 13.1 and 13.3

of this Court.

VII. STATUTES AND REGULATIONS INVOLVED

The issue in this Petition requires interpretation and application of several

related provisions of the 2018 edition of the United States Sentencing Guidelines,

including U.S.S.G. § 2K2.1(a), which provides, in pertinent part:

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Base Offense Level (Apply the Greatest):

(1) 26, if (A) the offense involved a (i) semiautomatic

firearm that is capable of accepting a large capacity

magazine; or (ii) firearm that is described in 26 U.S.C.

§ 5845(a); and (B) 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

Along with U.S.S.G. § 2K2.1, Application Note 13(A), which provides, in

pertinent part:

“Crime of violence” and “controlled substance offense” have

the meaning given those terms in § 4B1.2

And U.S.S.G. § 4B1.2, which provides, in pertinent part:

(a) The term “crime of violence” means any offense under

federal or state law, punishable by imprisonment for a

term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened

use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping,

aggravated assault, a forcible sex offense, robbery, arson,

extortion, or the use or unlawful possession of a firearm

described in 26 U.S.C. § 5845(a) or explosive material as

defined in 18 U.S.C. § 841(c).

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VIII. STATEMENT OF THE CASE

A.

Federal Jurisdiction

On January 11, 2021, a criminal complaint was filed in the Southern District

of West Virginia charging Jamaile Huey with being a felon in possession of a firearm,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). J.A. 6-12. 1 On February 23, 2021,

a grand jury returned an indictment charging the same offense. J.A. 13-14. Because

that charge constitutes an offense against the United States, the district court had

original jurisdiction pursuant to 18 U.S.C. § 3231. This is an appeal from the final

judgment and sentence imposed after Huey pleaded guilty to the indictment. J.A. 69.

A Judgment and Commitment Order was entered on entered on July 14, 2021. J.A.

59-65. Huey filed a timely notice of appeal on July 28, 2021. J.A. 66. The United

States Court of Appeals for the Fourth Circuit had jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291.

B.

Facts Pertinent to the Issue Presented

In October 2019 investigators in Huntington, West Virginia, received a tip with

a photograph of Huey in possession of a “black pistol that appeared to have a highcapacity magazine.” J.A. 69. Fifteen months later, investigators learned that Huey

had an active arrest warrant for a parole violation in Michigan and obtained a

warrant to search his home. As a result of that search, investigators seized a 9

1 “JA” refers to the Joint Appendix filed in this appeal before the Fourth Circuit.

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millimeter pistol. J.A. 70. They also seized a “loaded high-capacity magazine.”

J.A. 71.

In light of Huey’s prior convictions, he was charged with being a felon in

possession of a firearm and pleaded guilty to that offense. J.A. 13-14, 69. Following

his guilty plea, a Presentence Investigation Report (“PSR”) was prepared to assist the

district court at sentencing. J.A. 67-93.

1.

Huey objects to the classification of his prior

Michigan robbery offenses as crimes of

violence.

The probation officer recommended Huey’s base offense level be 26, because

the pistol was “capable of accepting a large-capacity magazine” and Huey had two

prior convictions in Michigan for unarmed robbery that “appear to meet the definition

of a crime of violence.” J.A. 72; U.S.S.G. § 2K2.1(a)(1). The only recommended

adjustment was a three-level reduction for acceptance of responsibility. J.A. 73. With

a final offense level of 23 and a Criminal History Category V, Huey’s recommended

advisory Guideline range was 84 to 105 months in prison. J.A. 79, 84.

Huey objected to those calculations, particularly to the classification of his

prior Michigan robbery convictions as crimes of violence. In his letter to the probation

officer, Huey explained that this was “a place holder objection, only because of

Borden, 2 and how fast the COV case law is changing” and promising additional

research and argument. J.A. 91. That argument came as part of a memorandum filed

2 Borden v. United States, 141 S. Ct. 1817 (2021).

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prior to sentencing. J.A. 15-24. Huey identified the issue with his prior convictions as

the mens rea required to commit them, noting that while the “Sixth Circuit has been

consistent” in finding the offense to be a violent felony under 18 U.S.C. § 924(e), “none

of the leading case law discuss the mental state required to sustain an unarmed

robbery conviction, and in particular whether or not ‘recklessness’ is sufficient to

establish the elements of ‘felonious taking’ or the use of force and violence.” J.A. 1920. After Borden, “this is now very important – and a completely separate inquiry

going beyond whether ‘violence’ under” the statute “is the same as ‘violence’ defined

by” this Court. J.A. 20. He argued that the “use of force and violence, assault, or

putting someone in fear element . . . may be committed recklessly, even if the

felonious taking of property element ends up being intentional.” J.A. 21. As a result,

his two prior Michigan convictions were not crimes of violence and his base offense

level should be 20, not 27. J.A. 21-22. The Government did not file a written

memorandum prior to sentencing.

2.

The district court overrules Huey’s objection,

considers his prior convictions as crimes of

violence, and imposes sentence accordingly.

A sentencing hearing for Huey was held on July 12, 2021. J.A. 25-58. Huey

renewed his argument that the Michigan unarmed robbery convictions should not

count as crimes of violence, arguing that “in the absence of controlling authority

saying explicitly that recklessness is not a mens rea” and “knowing the three

elements the state of Michigan requires,” after Borden “it would not be a crime of

violence.” J.A. 29. The Government responded that in Borden this Court “does say an

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offense qualifies as a violent felony . . . if it has an element of use or attempted use or

threatened use of physical force against the person of another, which is exactly what

the Michigan Penal Code specifies.” Ibid. Huey responded that the Government’s

argument “miss[es] the point about mens rea” and that “[w]e’re not talking about the

level of force here.” J.A. 31. He disputed the Government’s interpretation of Borden

,arguing that it “didn’t say if it was reckless, even if you use force, it would be a crime

of violence” but that “if the mens rea is recklessness, then it’s not a crime of violence

even if force was involved.” Ibid.

The district court overruled Huey’s objection. It concluded that Borden

“explicitly deals with a case where the charge in front of the court was a charge

explicitly based on recklessness,” whereas “even at common law when an offense like

robbery is charged, it involves a mens rea of [an] intentional act directed at a specific

person.” J.A. 32. The district court did not see Borden “as opening up a door for every

offense to then be determined and reviewed whether or not it . . . might include a

recklessness element.” Ibid. The district court also concluded that Huey’s offenses

were “one of the enumerated offenses of robbery.” Ibid.

In light of its overruling of that objection, the district court adopted the

Guideline calculations from the PSR. J.A. 34. However, the district court did vary

downward from Criminal History Category V to IV to take account of the fact that

Huey faced a state parole revocation due to this offense. J.A. 45-46. The district court

imposed a sentence of 80 months in prison, within the newly calculated Guideline

range, followed by a three-year term of supervised release. J.A. 46.

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3.

The Fourth Circuit affirms Huey’s sentence.

Huey appealed to the Fourth Circuit, renewing his argument that after Borden

his Michigan robbery convictions were not crimes of violence. United States v. Huey,

Appeal No. 21-4374, Dkt. No. 12 at 8-13. Specifically, Huey noted that under Borden

the result was the same under a force clause analysis or enumerated offense analysis.

Id. at 13, n.4. The court affirmed Huey’s sentence in an unpublished opinion. United

States v. Huey, 2023 WL 6638076 (4th Cir. 2023). Defining robbery as “the

misappropriation of property under circumstances involving [immediate] danger to

the person,” Id. at *1, quoting United States v. Simmons, 917 F.3d 312, 316 (4th Cir.

2019), the court concluded that “Michigan’s unarmed robbery statute, as it existed”

at the time of Huey’s prior convictions, “is a categorial match for this definition of

robbery.” Ibid. Because “Michigan unarmed robbery, just as generic robbery, requires

the perpetrator to use force or put the victim in fear of immediate danger to induce

the victim to part with his or her property,” it therefore “qualifies as a crime of

violence under the enumerated offenses clause in U.S.S.G. § 4B1.2(a)(2).” Ibid.

Nowhere in its opinion did the Fourth Circuit mention Borden.

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IX. REASON FOR GRANTING THE WRIT

The writ should be granted to determine whether a state

robbery conviction, sustained under a statute without a

specified mens rea for the element of violence or threat of

violence, but with a specific mens rea for the theft element of the

offense, is a “crime of violence” under U.S.S.G. § 4B1.2(a), in light

of this Court’s decision in Borden v. United States, 141 S. Ct. 1817

(2021)

In Borden v. United States, 141 S. Ct. 1817 (2021), this Court held that an

offense that required “only a mens rea of recklessness” could not qualify as a “violent

felony” under the Armed Career Criminal Act. Id. at 1821. Courts use the same

analysis to determine whether an offense qualifies as a “crime of violence” in other

contexts, including under the Sentencing Guidelines. See James v. United States, 550

U.S. 192, 205 (2007)(Guidelines’ “definition of a predicate ‘crime of violence’ closely

tracks ACCA’s definition of ‘violent felony’”); United States v. Hood, 628 F.3d 669, 671

(4th Cir. 2010)(the two analyses are “substantially similar”). Borden presented a clear

example of an offense with a recklessness mens rea because that was the specific

language of the statute. Borden, 141 S. Ct. at 1822.

This case presents a related question – what is the status of a prior state

conviction sustained under a statute that does not require a particular mens rea as

to the element of force in the offense, but does with regard to the element of theft or

taking? The Michigan robbery statute under which Huey sustained his prior

convictions was such a statute. Whether such an offense qualifies as a crime of

violence is an important question of federal law that this Court should resolve. See

Rules of the Supreme Court 10(c).

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A.

Huey’s offense level is increased based on two prior

unarmed robbery convictions.

The base offense level for a defendant convicted of illegally possessing a

firearm is based on a combination of the type of weapon possessed and his prior

criminal history. U.S.S.G. § 2K2.1(a). In Huey’s case, the firearm he possessed was

“capable of accepting a large capacity magazine,” subjecting him to a base offense

level of at least 20. U.S.S.G. § 2K2.1(a)(4)(B). However, the probation officer

recommended a base offense level of 26 because Huey “committed any part of the

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

of violence.” U.S.S.G. § 2K2.1(a)(1). The definition of “crime of violence” is the same

as that used in determining whether someone qualifies as a career offender under

U.S.S.G. § 4B1.2.

An offense qualifies as a crime of violence if it is “punishable by imprisonment

for a term exceeding one year” and it either “has as an element the use, attempted

use, or threatened use of physical force against the person of another” or one of a

number of listed offenses not relevant here. U.S.S.G. § 4B1.2(a). In determining

whether prior conviction qualifies as a crime of violence, courts must employ the

categorical approach. See Descamps v. United States, 570 U.S. 254, 260-261 (2013);

United States v. Royal, 731 F.3d 333, 341-41 (4th Cir. 2013). 3 This approach requires

3 As noted above, although Descamps is an Armed Career Criminal Act case, courts

have routinely used the same analysis for those and career offender predicates, given

the similarity between the two provisions. United States v. Montes-Flores, 736 F.3d

357, 363 (4th Cir. 2013).

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that courts “look only to the statutory definitions – i.e., the elements – of a defendant’s

[prior conviction] and not to the particular facts underlying [it]” in whether the

offense qualifies as a crime of violence. Descamps, 133 S. Ct. at 261 (cleaned up);

Royal, 731 F.3d at 341-342. In addition, under the categorical approach, an offense

can only qualify as a crime of violence if all of the criminal conduct covered by a

statute – “including the most innocent conduct” – matches or is narrower than the

definition of crime of violence. United States v. Torres-Miguel, 701 F.3d 165, 167 (4th

Cir. 2012). If the most innocent conduct penalized by a statute does not constitute a

crime of violence, then the statute categorically fails to qualify as a crime of violence.

B.

Huey’s prior unarmed robbery convictions did not

require any particular mens rea related to the use or

threatened use of force.

In this case, the two prior crimes of violence identified by the probation officer

were Huey’s convictions in 2000 and 2002 for unarmed robbery in Michigan. J.A. 72,

74-78. As in many states, “Michigan’s unarmed robbery statute is derived from the

common law.” People v. Randolph, 648 N.W.2d 164, 167 (Mich. 2002). 4 In order to

obtain a conviction, the state must prove that a defendant did “(1) feloniously take

the property of another, (2) by force or violence or assault or putting in fear; and (3)

be unarmed.” People v. Harverson, 804 N.W.2d 757, 761 (Mich. Ct. App. 2010). It is

“a specific intent crime for which the prosecution must establish that the defendant

intended to permanently deprive the owner of property.” Ibid. There is no dispute

4 In 2004, Michigan’s robbery statute was amended. People v. Williams, 814 N.W.2d

270, 273-274 (Mich. 2012).

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that the element of “force or violence or assault or putting in fear” meets the definition

of “violent force” necessary to make a conviction for unarmed robbery a crime of

violence. See Chaney v. United States, 917 F.3d 895 (6th Cir. 2019). Nonetheless, it

cannot be classified as such due to the mens rea attached to that element.

This Court recently addressed the requisite mens rea for prior convictions that

enhance sentences in Borden. Borden was convicted of being a felon in possession of

a firearm and sentenced under the Armed Career Criminal Act. In the courts below,

Borden had unsuccessfully argued that his prior Tennessee conviction for reckless

aggravated assault was not a “violent felony” under ACCA because the force involved

in the offense was only required to be done recklessly. Borden, 141 S. Ct. at 1822.

This Court agreed and remanded Borden’s case for resentencing. In reaching that

conclusion, this Court recognized “four states of mind, as described in modern

statutes and cases, that may give rise to criminal liability.” Id. at 1823. The two most

culpable states of mind – purpose and knowledge – would support a violent felony

designation. Noting that the distinction between the two was “limited,” this Court

explained that a person who acts knowingly with regard to violence “makes a

deliberate choice with full awareness of consequent harm,” even “though not

affirmatively wanting the result.” Ibid. By contrast, the two lesser states of mind –

recklessness and negligence – do not lead to offenses being violent felonies.

Recklessness requires acting in disregard of a risk, but “[t]hat risk need not come

anywhere close to a likelihood.” Id. at 1824. Looking to the definition of violent felony

in ACCA, the Court held that the “phrase ‘against another,’ when modifying ‘use of

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force,’ demands that the perpetrator direct his action at, or target, another individual.

Reckless conduct is not aimed in that prescribed manner.” Id. at 1825.

Huey’s prior convictions do not require that violent force to be “aimed in that

prescribed manner.” For unarmed robbery in Michigan, the required felonious taking

is of “property that may be the subject of a larceny from the person.” People v.

Himmelein, 442 N.W.2d 667, 673 (Mich. Ct. App. 1989). Thus “the intent element of

this offense” of unarmed robbery is related to the taking of property, not the use of

force. Harverson, 804 N.W.2d at 762 (emphasis added); see also People v. Crawford,

923 N.W.2d 296, 301 (Mich. Ct. App. 2018)(“[a]rmed robbery is a specific-intent crime,

requiring proof that the defendant intended to permanently deprive the owner of his

or her property”). 5 As one judge put it, “The intent necessary for the offense of armed

robbery is the intent necessary to commit larceny . . . which is the intent to steal

another person’s property or to permanently deprive the owner of his or her property.”

Crawford, 923 at 307 (Markey, P.J., concurring). Without any intent element related

to the use of force, unarmed robbery in Michigan can be committed with a mens rea

of recklessness and fails to be a crime of violence under Borden. For example, in

People v. Sanders, 184 N.W.2d 269 (Mich. Ct. App. 1970), the defendant “took a bag

of money from the bedroom by stealth” and then, after being discovered, “fled from

the house to a waiting automobile.” Id. at 276. The victim’s grandson gave chase,

prompting the defendant to “fire[] a shot into the air to prevent the grandson from

5 Crawford was partly vacated and partly affirmed on other grounds by the Michigan

Supreme Court. People v. Crawford, 924 N.W.2d 248 (Mich. 2019).

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catching him or obtaining the license number of the car.” Ibid. 6 Firing into the air

like that, without any particular person being targeted, is a paradigmatic reckless

act, one that is not “aimed in that prescribed manner.”

A crime of violence under § 4B1.2(a) requires not just an element of violent

force, but force that is intentionally directed at another person. Huey’s convictions in

Michigan for unarmed robbery do not require the proof of such an element, as the

element of force in that offense may be shown to have been the result of reckless

conduct. As a result, those offenses are not crimes of violence and Huey’s advisory

Guideline range was miscalculated, resulting in the imposition of a procedurally

unreasonable sentence.

For the same reason, Huey’s prior convictions do not qualify as generic robbery

under the enumerated offense clause of U.S.S.G. § 4B1.2(a)(2), which was the basis

the Fourth Circuit relied upon for affirming his sentence. The court concluded that

Michigan’s robbery statute at the time of Huey’s convictions “is a categorical match”

for the generic definition of robbery used in the Guidelines, which is “the

misappropriation of property under circumstances involving [immediate] danger to

the person.” Huey, 2023 WL 6638076 at *1, quoting United States v. Gattis, 877 F.3d

150, 156 (4th Cir. 2017). But Michigan law makes clear not only that the use of force

6 As explored in Randolph, Sanders was the first of many cases in the Michigan

Courts of Appeals to hold that the force element of robbery could be committed during

the escape following the taking of property, a position the state supreme court

ultimately concluded was incorrect. Randolph, 648 N.W.2d at 168-172. Nonetheless,

for more than three decades it was possible to be convicted based on force used during

an escape which could, as Sanders shows, be committed recklessly.

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can occur after the taking but can be done recklessly, making the offense broader

than the generic definition of robbery. As a result, it cannot be a crime of violence.

See Mathis v. United States, 579 U.S. 500, 504-505 (2016).

X. CONCLUSION

For the reasons stated, the Supreme Court should grant certiorari in this case.

Respectfully submitted,

JAMAILE HUEY

By Counsel

WESLEY P. PAGE

FEDERAL PUBLIC DEFENDER

Jonathan D. Byrne

Appellate Counsel

Counsel of Record

Lex A. Coleman

Senior Litigator,

Assistant Federal Public Defender

Dated: January 10, 2024

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