DURYANE LEWIS CHANEY, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 17-2024
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 11, 2019
19a0039p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: October 4, 2018. Before: BATCHELDER, GIBBONS, and ROGERS, Circuit Judges.
ARGUED: Joan E. Morgan, FEDERAL PUBLIC DEFENDER OFFICE, Flint, Michigan, for Appellant. Mark Chasteen, UNITED STATES ATTORNEYS OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Joan E. Morgan, FEDERAL PUBLIC DEFENDER OFFICE, Flint, Michigan, for Appellant. Mark Chasteen, UNITED STATES ATTORNEYS OFFICE, Detroit, Michigan, for Appellee.
OPINION
ROGERS, Circuit Judge. Duryane Chaney pleaded guilty to one count each of felon in possession of a firearm and possession with intent to distribute cocaine. Because his criminal
Chaney pleaded guilty to one count of felon in possession of a firearm,
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements clause“]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated crimes clause“], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause“].
Chaney objected at sentencing to the ACCA enhancement on the grounds that his 1981 Michigan conviction for attempted unarmed robbery was not a “violent felony” because it resulted in less than one year of imprisonment and did not, in his particular case, involve the use of “physical force.” The Government countered that a crime qualifies under the ACCA so long as it is punishable by more than one year in prison—regardless of the sentence handed down—and that Michigan unarmed robbery categorically qualifies as a violent felony, citing United States v. Mekediak to the sentencing court. Mekediak had held that Michigan “unarmed robbery categorically creates a sufficiently comparable risk of injury to another as the risk posed by burglary,” and thus “is a crime of violence for the purposes of [the] ACCA.” 510 F. App‘x 348, 354 (6th Cir. 2013), abrogation recognized by Shuti v. Lynch, 828 F.3d 440, 448 (6th Cir. 2016). The district court concluded that the “government [was] absolutely right,” adding, “and of course, a conviction for attempted unarmed robbery does involve the attempted use or threatened use of physical force. So it qualifies.” Chaney was sentenced as an armed career criminal.
More than a year later, Chaney brought (and later amended) a
Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.
As a threshold matter, the Government argues that Chaney‘s claim is procedurally improper because—despite its masquerading as a Johnson II residual-clause claim—it actually turns on the Court‘s earlier decision in Johnson v. United States, 559 U.S. 133 (2010) [hereinafter Johnson I], interpreting the degree of force required by the “elements clause.” But a petitioner may bring a Johnson II claim challenging his status as an armed career criminal in a first
Although it is true that Johnson II “does not reopen all sentences increased by [the ACCA],” see Potter v. United States, 887 F.3d 785, 787 (6th Cir. 2018), we have rejected the Government‘s implied premise that a first-time
Here, Chaney has shown just that. As in many pre-Johnson II cases, the sentencing judge did not specify which ACCA clause it relied on in deeming Michigan attempted unarmed robbery a violent felony. The Government‘s own arguments at sentencing, however, suggest that it and the court were looking to the residual clause. At sentencing, the Government cited only Mekediak, 510 F. App‘x at 354, in support of the enhancement—a case expressly relying on the residual clause. That the only enhancement-supporting authority before the district court relied on the residual clause strongly suggests that the district court did too. On the other hand, the court did state that the conviction “involve[s] the attempted use or threatened use of physical
Having cleared that procedural hurdle, Chaney must survive another. For the first time on appeal the Government argues that Chaney procedurally defaulted his claim by failing to argue on direct review that his conviction did not satisfy the elements clause. In other words, the Government would have us fault Chaney for not making an argument that would have had no practical effect whatsoever given the then-viable residual clause. That would be a harsh outcome under any circumstances, and only more so here because the Government concedes that it has forfeited its own argument by failing to raise it before the district court. The Government asks us to look past its oversight because it was busy litigating other Johnson II claims at the time. But even if the Government‘s excuse of practical burden might fly in another context, we will not excuse the Government‘s forfeiture on that basis here only to hold Chaney‘s claim procedurally defaulted for his failure to raise a claim that would have had no practical effect. The Government has, therefore, forfeited any defense of procedural default.
On the merits, Chaney‘s 1981 Michigan conviction for attempted unarmed robbery is categorically a violent felony under the ACCA‘s elements clause. The operative Michigan statute punishes theft committed “by force and violence, or by assault, or putting in fear.”
As we held in United States v. Mathews, “putting in fear” under the statute requires the use or threatened use of physical force as defined in Johnson I. 689 F. App‘x at 844–46. That is because, as explained in Mathews, the best guidance from the Michigan Supreme Court is that Michigan law requires a “reasonable belief that [the victim] may suffer injury unless he complies with the demand.” Id. (quoting Michigan v. Kruper, 64 N.W.2d 629, 632 (Mich. 1954)); see also Michigan v. Hearn, 406 N.W.2d 211, 214 (Mich. Ct. App. 1987).
In Michigan v. Randolph, the Michigan Supreme Court held that “Michigan‘s unarmed robbery statute is derived from the common law,” and indeed “adopted the common-law definition of robbery.”2 648 N.W.2d 164, 167 (Mich. 2002), superseded by statute, P.A. 2004, No. 128, as recognized in Michigan v. March, 886 N.W.2d 396 (Mich. 2016). Michigan‘s codification of common law robbery is significant because the Michigan Supreme Court interpreted the common law (and thus Michigan‘s statute) to require “the felonious and forcible taking, from the person of another, of goods or money to any value by violence or putting him in fear.” See id. (quoting 4 Blackstone, Commentaries, Public Wrongs, ch. 17, 241). In so interpreting the common law, the Randolph court relied on sources that repeatedly equated “putting in fear” with putting a person in fear of immediate injury. See id. at 167–168, 167 n.6 (“Feloniously taking the property of another in his presence and against his will, by putting him in fear of immediate personal injury, is robbery at common law.” (quoting Rapajle, Larceny & Kindred Offenses § 445 (1892)) (emphasis added)). Because Michigan unarmed robbery codifies common law robbery, and common law robbery, as understood by the Michigan Supreme Court, requires putting the victim in fear of immediate personal injury, Michigan‘s unarmed robbery statute must be read to require the same.
This court has held that a state robbery statute that requires “putting in fear” qualifies as a violent felony under the elements clause when state law interprets “fear,” as it does here, to mean “fear of bodily injury from physical force offered or impending.” See United States v. Mitchell,
The “force and violence” alternative also satisfies the elements clause, notwithstanding Chaney‘s argument that the Michigan statute criminalizes “force and violence” less than the “physical force” needed to satisfy the ACCA. Johnson I defines “physical force” as “violent force,” 559 U.S. at 140, and the plain text of the Michigan statute required “force and violence,”
We assume that if Michigan unarmed robbery could be accomplished by merely using physical force to embarrass the victim, then it would fall outside of the ACCA. But it takes far too active an imagination to dream up a scenario in which a person could steal someone‘s property by touching the victim in a harmless and non-threatening but embarrassing way. The categorical approach‘s “focus on the minimum conduct criminalized by the state statute is not an
invitation to apply ‘legal imagination’ to the state offense.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013).
As explained in Randolph, it is not enough under Michigan law that force and violence be used at some point during the theft; the force and violence (or threat of such) must be the act that is used to accomplish the taking. See 648 N.W.2d at 173. This distinction is key and separates unarmed robbery here from, for example, plain assault or the battery statute at issue in Johnson I. For battery, the offensive or embarrassing touching is itself the crime, whereas that same harmless touch would somehow have to deprive the victim of property to amount to robbery. One can imagine a robbery involving an offensive or embarrassing touch coupled with a threat—implicit or otherwise—of harm for noncompliance. But it strains the imagination to think someone could steal property through an offensive or embarrassing touch alone.
Even if a more creative mind could imagine such a scenario, there must be a “realistic probability, not a theoretical possibility, that [Michigan] would apply its statute to conduct that” is less than violent force, for the conviction to fall outside of the elements clause. See Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); Perez v. United States, 885 F.3d 984, 990 (6th Cir. 2018). Chaney has not pointed to any Michigan case that applied the statute to nonqualifying force and thus has not shown that realistic probability. See Gonzalez, 549 U.S. at 193. The two cases Chaney cites purporting to interpret “force and violence” do so in the context of assault statutes. Again, the court in Boyd affirmed a conviction for assault of a prison employee. 300 N.W.2d at 762. Although the Chandler case did, after addressing the assault statute at issue, go on to find sufficient evidence of attempted unarmed robbery, it did so based on a clear threat of violent force—namely, the defendant‘s threat to “blow [the victim‘s] head off” if he didn‘t get out of the car. See Chandler, 506 N.W.2d at 885. The Chandler court‘s only discussion of “force and violence” was dicta regarding an assault-with-intent-to-rob statute and has no bearing here. See id. at 884.
The cases most on point strongly suggest that robbery requires violent force and that a theft without such force would more realistically be charged as larceny from the person, a lesser offense than robbery. See
‘immediate presence’ of the victim to accomplish a theft.” Michigan v. Smith-Anthony, 821 N.W.2d 172, 175 (Mich. Ct. App. 2012), aff‘d, 837 N.W.2d 415 (Mich. 2013). “What separates robbery from larceny from the person is violence or the threat of violence.” Michigan v. Gould, 166 N.W.2d 530, 533–34 (Mich. Ct. App. 1968), aff‘d in part, rev‘d in part on other grounds, 179 N.W.2d 617 (Mich. 1970). Having failed to identify a single Michigan case affirming a conviction for unarmed robbery involving “force and violence” less than the minimum “violent force” required by Johnson I, Chaney has not shown a realistic probability that Michigan would apply its statute to such conduct.
Also, for this reason, this case is distinguishable from cases such as United States v. Yates, 866 F.3d 723, 728–32 (6th Cir. 2017), where the state supreme court had clearly interpreted a state robbery statute to punish conduct that was held not to rise to violent force under the ACCA‘s elements clause.
Moreover, the statutory history and underpinnings of the ACCA support the conclusion that Michigan unarmed robbery qualifies under the elements clause, as both statutes trace their roots to common law robbery. See Stokeling, 139 S. Ct. at 549–52. As originally enacted in 1984, the ACCA listed only two predicate offenses—robbery and burglary. See Pub. L. 98-473, § 1802, 98 Stat. 2185, 18 U.S.C.App. § 1202(a) (1982 ed. and Supp. II).4 The definition of robbery in that version of the ACCA was drawn directly from the common law: “‘robbery’ means any felony consisting of the taking of the property of another from the person or presence of another by force or violence, or by threatening or placing another person in fear that any person will imminently be subjected to bodily injury.” See id. § 1803(2); Stokeling, 139 S. Ct. at 550-51. That definition not only encompasses Michigan unarmed robbery, but is nearly identical to it, and for good reason: they are both drawn from the common law. Compare
statute.” See id. at 583 (quoting 132 Cong. Rec. 7697 (1986)). In doing so, it used the sine qua non of common law robbery—“force or violence“—as the basis for the definition of a violent felony: a crime punishable by more than one year‘s imprisonment that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See
Furthermore, treating Michigan unarmed robbery as an ACCA predicate under the elements clause accords with decisions by two of our sister circuits holding that Michigan unarmed robbery is a violent felony under the ACCA. The Eighth Circuit in United States v. Lamb similarly relied on Randolph to hold as much. See 638 F. App‘x 575, 577 (8th Cir. 2016), vacated on other grounds by 137 S. Ct. 494 (2016); see also United States v. Tirrell, 120 F.3d 670, 680 (7th Cir. 1997). Those decisions also accord with decisions from this and other circuits interpreting other common-law-derived robbery statutes in the same way. See, e.g., United States v. Priddy, 808 F.3d 676, 686 (6th Cir. 2015) (Tennessee robbery), abrogated on other grounds by United States v. Stitt, 860 F.3d 854 (2017) (en banc), decision reversed on other grounds, 139 S. Ct. 399 (2018); United States v. Harris, 844 F.3d 1260, 1268–70 (10th Cir. 2017) (Colorado robbery); United States v. Doctor, 842 F.3d 306, 308–12 (4th Cir. 2016) (South Carolina robbery); United States v. Duncan, 833 F.3d 751, 754–58 (7th Cir. 2016) (Indiana robbery).
Without addressing these cases, Chaney points to cases construing dissimilar state robbery statutes to fall outside of the ACCA‘s reach. But, even assuming they survive Stokeling, 139 S. Ct. at 554–55, those cases are easily distinguishable—in each, state decisional law was found to provide that, unlike at common law or in Michigan, no more than de minimis force was
required for robbery. See, e.g., United States v. Winston, 850 F.3d 677, 684–85 (4th Cir. 2017) (Virginia robbery); United States v. Geozos, 870 F.3d 890, 900–01 (9th Cir. 2017) (Florida robbery); United States v. Nicholas, 686 F. App‘x 570, 574–76 (10th Cir. 2017) (Kansas robbery); United States v. Gardner, 823 F.3d 793, 803–04 (4th Cir. 2016) (North Carolina robbery); United States v. Parnell, 818 F.3d 974, 978–80 (9th Cir. 2016) (Massachusetts armed robbery); United States v. Eason, 829 F.3d 633, 640–42 (8th Cir. 2016) (Arkansas robbery).
Finally, Chaney argues that, even if Michigan unarmed robbery qualifies as a violent felony, Michigan attempted unarmed robbery does not. But the ACCA‘s elements clause expressly includes the “attempted use” of “physical force.” See
Despite that straightforward reading, Chaney argues that Michigan‘s attempt statute must equal the generic definition of attempt—intent to commit the underlying offense and a “substantial step” towards commission—to satisfy the elements clause‘s “attempted use” requirement. Chaney cites no binding authority for that point, but even if we were to require that Michigan‘s attempt statute must satisfy the generic definition of attempt, it does. Under Michigan law, attempt requires intent and an overt action “more than mere preparation to commit the crime,” which “would lead immediately to the completion of the crime had the defendant not failed in the perpetration, or been intercepted or prevented in the execution of the same.” See Michigan v. Burton, 651 N.W.2d 143, 150 (Mich. Ct. App. 2002) (internal quotation marks omitted).
Moreover, the attempt factor is applied only to the first element of unarmed robbery—the felonious taking—not the force element. See Michigan v. Gardner, 265 N.W.2d 1, 5 n.1 (Mich. 1978). That is, the only difference between unarmed robbery and attempted unarmed robbery is whether the perpetrator is successful in taking the property—the same degree of “force and violence, assault, or putting in fear” is needed in both cases. See Tirrell, 120 F.3d at 680–81. Thus, it makes no difference that Chaney was convicted for attempted unarmed robbery. Michigan attempted unarmed robbery, as it existed in 1981, is a violent felony under the ACCA‘s elements clause.
For these reasons, the judgment of the district court is affirmed.