United States v. Mosley
2011 U.S. App. LEXIS 6326
| 6th Cir. | 2011Background
- Mosley was Michigan convicted in 2004 for using a self-defense pepper‑spray device to eject OC at another person (misdemeanor, max 2 years).
- In 2008 Mosley pleaded guilty in federal court to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
- District court initially treated a prior Michigan resisting/obstructing arrest as a crime of violence, increasing his guidelines range and yielding a 96‑month sentence.
- This court vacated that sentence, holding the Michigan offense was not categorically a crime of violence.
- At resentencing the district court held Mosley’s 2004 pepper‑spray conviction did qualify as a crime of violence and Again sentenced Mosley to 96 months.
- Mosley appeals the classification and related rulings arguing error in the residual‑clause analysis, the treatment of juvenile adjudications, and allocution issues during resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Michigan pepper-spray conviction is a crime of violence under § 4B1.2(a). | Mosley contends it lacks serious risk as a whole or lacks element of force. | United States argues the conduct in ordinary case presents serious risk. | Yes; it qualifies under the residual clause. |
| Does the misdemeanor label affect the analysis of a crime of violence under § 4B1.2(a)(2)? | Misdeed label shows no serious risk. | Federal guidelines focus on offense conduct, not state label. | No; federal inquiry looks to the offense, not the state label. |
| Are prior juvenile adjudications properly counted with an intervening arrest for § 4A1.2(a) grouping? | Challenged grouping based on intervening arrest. | Intervening arrest separates offenses for counting. | Accepted; intervening arrest separates two offenses. |
| Was allocution at re-sentencing required or prejudicial in light of the remand proceedings? | Mosley should have been invited to allocute; potential prejudice. | Allocution not required; any error harmless. | Harmless error; no cognizable prejudice shown. |
Key Cases Cited
- James v. United States, 550 U.S. 192 (U.S. 2007) (limits residual clause to conduct that, in ordinary case, presents risk of injury)
- Begay v. United States, 553 U.S. 137 (U.S. 2008) (limits criteria for violent-violent crimes under residual clause)
- Ford v. United States, 560 F.3d 420 (6th Cir. 2009) (statutory definition of crime of violence looked to the offense, not underlying facts)
- Headwaters Forest Def. v. Cnty. of Humboldt, 240 F.3d 1185 (9th Cir. 2000) (pepper spray can cause extreme pain and impairment; used offensively poses risk of injury)
- Melton v. United States, 233 Fed.Appx. 545 (6th Cir. 2007) (pepper spray capable of causing severe injury; dangerous weapon categorization)