United States v. Antonio ClarkUnited States v. Antonio Clark
Dorcas’ account of Chaidy’s entry could not save Chaidy’s application, because it conflicted with her son’s account in crucial ways. Chaidy testified that his father, Chaidy Junus, assisted him in obtaining a passport prior to leaving Singapore for the United States, but Dorcas testified that Chaidy obtained the passport on his own. Chaidy testified that the Indonesian passpоrt he obtained in Singapore listed him according to the name “Jermia Chiew,” but Dorcas and Junus testified that the passport listed Chaidy according to the name “Jermia Chaidy.” Chaidy testified that his aunt’s friend paid for his education at Bunker Hill, but Dorcas testified that she and her husband paid for Chaidy’s education. Chaidy testified that he left Boston after a falling out with his aunt, while Dorcas testified that Chaidy left Boston after his parents could no longer afford to pay for his education. After Chaidy’s attorney prepared a letter detailing Chaidy’s and Dorcas’ account of their trip from Singapore to Los Angeles, Chaidy said he saw his mother sign the declaration. However, Dorcas testified that she signed it in Indonesia and mailed it to her son. All told, Dorcas’ testimony detracted from Chaidy’s account of his entry into the United States.
Finally, Chaidy argues that the BIA imprоperly imposed a corroboration requirement that the IJ did not impose. We disagree. This argument improperly characterizes the opinions of the IJ and the Board. The IJ cited Chaidy’s failure to corroborate the theft of his passport as one of many bases for disbelieving Chaidy’s testimony and concluding that he did not prove the lawfulness of his entry. The IJ’s desire for corroboration of Chaidy’s testimony was consistent with the statutory framework governing removal proceedings and was reasonable under the circumstances.
CONCLUSION
For the foregoing reasons, we DENY Chaidy’s petition for review.
Clark challenges his classification as an armed career criminal and argues that the district court erred in finding that Kentucky’s wanton endangerment offense constituted a violent felony under the ACCA. For the reasons that follow, we AFFIRM the sentence of the district court.
I.
Antonio Dwayne Clark was indiсted on October 2, 2008, on one count of being a convicted felon in possession of a firearm, in violation of
Prior to sentencing, Clark filed an objection to the presentence investigation report, arguing, inter alia, that under the United States Supreme Court decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), crimes such as wanton endangerment could not be classified as violent crimes.
OPINION
MICHAEL R. BARRETT, District Judge.
Appellant Antonio Dwayne Clark was convicted of Possession of a Firearm by a Convicted Felon under
At the April sentencing hearing, the district judge addressed Clark’s objections to his classifiсation as an armed career criminal under
The district judge found that the Kentucky statute was facially ambiguous because it was not clear whether it criminalized purposeful, violent, and aggressive conduct. To determine whether Clark’s offenses were violent fеlonies under the ACCA, the district judge looked beyond the statutory definition of wanton endangerment to the documents and findings underlying the conviction.
The district court ultimately found that Clark’s prior convictions for wanton endangerment were violent felonies because they involved the firing of a weapon into a home and vehicle, which the court found were similar in kind and degree of risk posed to the enumerated examples. The district judge overruled Clark’s objections to the presentence report and classified him as an armed career сriminal. Clark was sentenced to the mandatory minimum term under the ACCA—180 months in the Bureau of Prisons.
II.
We review de novo the legal question of whether a prior conviction constitutes a “crime of violence” under the ACCA. United States v. Martin, 378 F.3d 578, 580 (6th Cir.2004).
The ACCA,
(1) In the case of a person who violates section 922(g) of this title and has three previоus convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years ...
(2) As used in this subsection —...
(B) The term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explоsives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....
Two of the statute’s provisions define the term “violent felony,” including the so-called “residual” clause of part (ii), which includes offenses not otherwise listed in
Previously, when determining whether an offense qualified as a violent felony under the ACCA’s residual clause, we applied a two-part test: (1) whether thе offense “poses a serious potential risk of physical injury to others“; and (2) whether the offense “involves the same kind of purposeful, violent, and aggressive conduct as the enumerated offenses of burglary, arson, extortion, or offenses involving the use of explosivеs.” United States v. Benton, 639 F.3d 723, 731 (6th Cir.2011) (quoting United States v. Young, 580 F.3d 373, 377 (6th Cir.2009)).
Recently, however, the United States Supreme Court narrowed the application of the purposeful, violent, and aggressive formulation of the residual clause, clarifying that while it is a consideration in determining whether an offense is similar to the enumerated offenses of
When analyzing whether an offense constitutes a violent felony under the ACCA, we use the “categorical” approach and look “only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). But, when we are faced with a criminal law that may be violated in a way that amounts to a crime of violence, and a way that does not, we may look beyond the elements of the crime, to the indictment, guilty plea, and similar documents to see if they establish the nature of the prior offense. United States v. Ford, 560 F.3d 420, 422 (6th Cir.2009) (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
In this case, Clark’s previous convictions under Kentucky’s wanton endangerment statute were two of the predicate offenses on which the district court based its classification of Clark as an armed career criminal under the ACCA.
The district court went beyond the “categorical” approach in determining whether Clark’s offenses were violent felonies, finding that “the Kentucky statute is facially ambiguous because it is not entirely clear from the face of the Kentucky statute whether it criminalizes the type of purposeful violent and aggressive conduct as in enumeratеd examples.” (R.48, Sentencing Hr’g. Tr. 13:5-9.) The district court found it necessary to consider “the charging document, written plea agreement, transcript of plea colloquy, and any explicit finding by the trial judge associated with Mr. Clark’s convictions to determine whether they were for crimes of violence.” (Id. at 13:10-14.)
After looking beyond the statutory definition of Clark’s offenses, the district court found that Clark’s prior convictions were for violent crimes, “as they involved the firing of a weapon into a home and a vehicle which are similar in kind and degree of risk posed to the enumerated examples.” (Id. at 13:15-20.)
Clark argues that Kentucky’s wanton endangerment statute is not a categorically violent felony under the ACCA, and that the district court erred by going beyond
Under Kentucky law, a person is guilty of wanton endangerment in the first degree when, “under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.”
In Kentucky, wanton endangerment is not limited to sрecific types of conduct, and examples of previous convictions for violations of the statute illustrate both the heightened level of mental culpability and the active conduct involved in the offense. See Paulley v. Commonwealth, 323 S.W.3d 715 (Ky.2010) (defendant shot through front door of home with nine people present); Fister v. Commonwealth, 133 S.W.3d 480 (Ky.Ct.App.2003) (engineer operated heavy machinery close to person repairing gas line); Hancock v. Commonwealth, 998 S.W.2d 496 (Ky.Ct.App.1998) (intercourse with partner without informing partner of being HIV positive).
Applying the categorical approach in light of the revised emphasis on risk required by Sykes, Kentuсky’s first-degree wanton endangerment offense constitutes a violent felony under the ACCA. The offense includes a substantial danger of death or serious physical injury to another, which is clearly the type of serious, physical risk envisioned by the drafters of the ACCA. In addition, the offense invоlves a conscious disregard of the risk, an active mental state more closely related to the enumerated examples of burglary, arson, extortion, and offenses involving explosives, than it is to offenses that include a mental state of recklessness, negligence, or no mental state at all under strict liability. This analysis and result comport with our recent decision in United States v. Meeks, 664 F.3d 1067, 1070-71 (6th Cir.2012) (footnote omitted). (“We can conceive of no way to violate the Kentucky first degree wanton endangerment statute in a way that would not present the same level of risk as the listed crimes. Accordingly, in light of Sykes’s retreat from Begay’s ‘purposeful, violent, and aggressive conduct’ inquiry, we again conclude that wanton endangerment is categorically a ‘crime of violence’ for purposes of
We find that Kentucky’s first-degree wanton endangerment is categоrically a violent felony under the ACCA, and therefore it is unnecessary to reach the question of whether the trial judge erred in applying the modified categorical analysis in Clark’s case.
III.
The judgment is AFFIRMED.