UNITED STATES of America, Plaintiff-Appellee, v. Derrick Montez BALL, Defendant-Appellant.
No. 14-5048
United States Court of Appeals, Sixth Circuit
Argued: Oct. 3, 2014. Decided and Filed: Nov. 17, 2014.
771 F.3d 964
For the foregoing reasons, we AFFIRM the judgment of the district court.
ARGUED: Jeffrey C. Rager, Rager Law Firm, PLLC, Lexington, Kentucky, for Appellant. Kate K. Smith, United States Attorney‘s Office, Lexington, Kentucky, for Appellee. ON BRIEF: Jeffrey C. Rager, Rager Law Firm, PLLC, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Ron L. Walker, Jr., United States Attorney‘s Office, Lexington, Kentucky, for Appellee.
Before: SILER, CLAY, and GRIFFIN, Circuit Judges.
OPINION
SILER, Circuit Judge.
This case concerns whether a Kentucky
I.
Ball‘s Presentence Report identified three prior state convictions that rendered him eligible for a 15-year minimum sentence as an “armed career criminal.” His sentencing range under the Guidelines was 188-235 months; the court sentenced him to 211 months.
Concerning his three Kentucky predicate convictions, Ball does not contest that his cocaine trafficking conviction qualifies as a “serious drug offense” under the ACCA. He waived his challenge to the designation of his Boyle County fleeing and evading conviction as a violent felony, but he claims his 2008 conviction for fleeing and evading in Mercer County does not qualify as a violent felony.
The background for Ball‘s 2008 conviction was that he was arrested in Mercer County at the end of an automobile police chase. He was charged with, among other crimes, fleeing or evading. At the time, Ball was subject to an arrest warrant from Boyle County for cocaine trafficking and another incident of fleeing and evading. As part of his plea deal to these three charges, the other charges were dismissed. His three convictions were consolidated into a single sentence.
At his federal plea hearing, Ball made no specific admissions, and the court made no specific findings of fact regarding the circumstances underlying Ball‘s Mercer County fleeing and evading conviction. The crime, “Fleeing or evading police in the first degree,” is defined in
(1) A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
1. The person is fleeing immediately after committing an act of domestic violence as defined in
KRS 403.720 ;2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of
KRS 189A.010 ;3. The person is driving while his or her driver‘s license is suspended for violating
KRS 189A.010 ; or4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property; or
(b) When, as a pedestrian, and with intent to elude or flee, the person knowingly or wantonly disobeys an order to stop, given by a person recognized to be a peace officer, and at least one (1) of the following conditions exists:
1. The person is fleeing immediately after committing an act of domestic violence as defined in
KRS 403.720 ; or2. By fleeing or eluding, the person is the cause of, or creates a substantial risk of, serious physical injury or death to any person or property.
The indictment for the Mercer County offense reads as follows (emphasis added):
That on or about the 24th day of October, 2008 in Mercer County, Kentucky the above named defendant, Derrick Ball, committed the offense of Fleeing or Evading in the First Degree when he knowingly disobeyed a police officer‘s order to stop his vehicle in an attempt to elude the police and by fleeing or eluding, the defendant creates a substantial risk of serious physical injury to another person.
Ball argues we should look to the facts of his “fleeing or evading” arrest (or lack thereof in the record) and find that it was not a violent felony. The government argues we should look to the indictment, which specifies that Ball pleaded to “fleeing or evading” under
Ball‘s conviction qualifies as a violent felony for two reasons. First, we have previously indicated that the act of fleeing police in a motor vehicle is so inherently risky that felony convictions for this behavior will always qualify as “violent” under the ACCA‘s residual clause. See, e.g., United States v. Martin, 378 F.3d 578, 582-83 (6th Cir. 2004). Second, even if this were not the case, one element of Ball‘s conviction was that his vehicle flight created “a substantial risk of serious physical injury to another person.” This element tracks the language of the residual clause and renders his conviction a violent felony.
II.
The relevant issues are all legal questions subject to de novo review. These include the interpretation and application of the ACCA and the narrower question of whether a prior conviction qualifies as a violent felony. United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir. 2013). While we are bound by a state court‘s interpretation of its own criminal statutes, whether a state crime is a violent felony under the ACCA is a question of federal law. United States v. Rede-Mendez, 680 F.3d 552, 555-56 (6th Cir. 2012); see also Johnson v. United States, 559 U.S. 133, 138 (2010). We also review challenges to the constitutionality of a statute de novo. United States v. Bowers, 594 F.3d 522, 527 (6th Cir. 2010).
III.
Ball claims his sentence enhancement was unwarranted because his 2008 conviction for fleeing in a motor vehicle from the police was not a violent felony. Under the ACCA, specifically
(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 explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
We have adopted an analytical process for determining whether a predicate conviction qualifies as a violent felony un
However, some statutory crimes are “divisible,” meaning they encompass different crimes embedded in one statute. If a divisible statute contains multiple crimes, and if at least one of the crimes is categorically a violent felony and at least one of the crimes is not, then we employ a “modified categorical approach.” See Descamps v. United States, 133 S.Ct. 2276, 2281-85 (2013). Under this approach, we may review a narrow category of documents, known as Shepard materials, to determine which crime within the statute formed the basis of the defendant‘s predicate conviction. See Rede-Mendez, 680 F.3d at 556. Shepard materials include only the terms of the charging document, the terms of a plea agreement, the transcript of the plea colloquy, or some comparable judicial record of this information. Shepard v. United States, 544 U.S. 13, 26 (2005).
The “modified categorical approach” is simply a tool that enables a court to pinpoint the elements of the crime that the defendant “necessarily admitted” so the court can apply the categorical approach. Davis, 751 F.3d at 775-77. Application of the ACCA turns upon the defendant‘s prior “convictions,” not upon the defendant‘s prior conduct, see
In this case, the Kentucky statute at issue contains several sub-parts. See
The record in this case contains the indictment for Ball‘s Mercer County fleeing or evading conviction. Ball pleaded guilty to subsection (1)(a)(4) of
Determining whether a crime fits within the ACCA‘s residual clause involves a two-step inquiry. See Stafford, 721 F.3d at 399. The first step asks whether the predicate offense, as defined by statute, “presents a serious potential risk of physical injury to another.” Mitchell, 743 F.3d at 1060. The crime need not actually result in physical injury; the residual clause requires only “a serious potential risk of physical injury.” United States v. Taylor, 696 F.3d 628, 632 (6th Cir. 2012); United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998).
The Kentucky statute meets the standard of step one for two reasons. First, the relevant subsection criminalizes fleeing in a motor vehicle from the police when the defendant “is the cause of, or creates substantial risk, of serious physical injury or death to any person or property.”
Second, we have previously explained that all felonies that involve fleeing from the police in a motor vehicle qualify as violent felonies under the ACCA. “When a motorist disobeys an officer and flees in his car . . . that person creates a conspicuous potential risk of injury to pedestrians, vehicles sharing the road, passengers in the fleeing car and the pursuing officer.” Martin, 378 F.3d at 582. Not only does the “flight itself” create a “palpable risk of physical injury to others,” but “so too does the suspect‘s eventual apprehension,” because the motorist has provoked an “inevitable, escalated confrontation” with the pursuing officer. Id. Even if a vehicular flight statute may technically be violated by conduct that is “passive, nonviolent, and non-threatening,” this does not diminish the inherent potential risk of vehicle flight. Id. at 583. Vehicle flight from an officer is
We have determined under the first step of the residual clause analysis that Ball‘s Mercer County conviction was for a felony that “presents a serious potential risk of physical injury to another.” We therefore proceed to step two.
For a crime to qualify as a violent felony under step two of the residual clause analysis, the crime “must also be similar ‘in kind as well as in degree of risk posed’ ” to the crimes enumerated in
Ball‘s crime does not lack a specific mens rea. The statute says the fleeing must be done “knowingly or wantonly.”
The question for step two under Sykes is whether the crime carries a level of risk similar to crimes such as burglary, arson, extortion, or explosives. Here, we find no reason to depart from the Supreme Court‘s observation that “[s]erious and substantial risks are an inherent part of vehicle flight.” Sykes, 131 S.Ct. at 2276.
We also have held that vehicle flight inherently carries an enormous risk of potential injury. We previously considered analogous vehicle flight statutes from Michigan and Tennessee, and found them to be categorically violent felonies. Doyle, 678 F.3d at 432-33 (considering
We therefore conclude that Kentucky‘s vehicle flight statute likewise qualifies as a violent felony under the ACCA—regardless of whether the violation entailed subsection (a)(4)‘s additional element of causing or creating a substantial risk of serious physical injury or death. As we found in Doyle and Young, even vehicle flight simpliciter presents a risk similar in degree and kind to both burglary and arson. Doyle, 678 F.3d at 435-36 (quoting Sykes, 131 S.Ct. at 2273-74); Young, 580 F.3d at 376-79.
Even were this not the case, Ball‘s indictment makes clear that he pleaded guilty to a crime that not only carried a potential risk similar in magnitude to the ACCA‘s enumerated crimes, he actually created a “substantial“—or ample, considerable, and true—risk of serious injury or death to others. See Bell, 122 S.W.3d at 497. We find no legal basis to overrule the district court‘s determination that Ball‘s predicate crime qualifies as a violent felony under the ACCA.
IV.
Next, Ball argues that the ACCA is unconstitutional because it is void for vagueness. He says the residual clause of
We have previously found this argument unpersuasive and upheld the constitutionality of the residual clause. United States v. Phillips, 752 F.3d 1047, 1051 (6th Cir. 2014); Stafford, 721 F.3d at 403; see also
V.
Ball argues that because the sentencing court must consider additional facts beyond the felon-in-possession conviction to determine whether the ACCA enhancement applies, and because the finding raises the penalty for being a felon in possession of a firearm, the Sixth Amendment requires that the facts be found by a jury beyond a reasonable doubt. We have also rejected this argument. See United States v. Elliott, 757 F.3d 492, 496-97 (6th Cir. 2014); United States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005); see also United States v. Hollingsworth, 414 F.3d 621, 624 (6th Cir. 2005). A court may enhance a defendant‘s sentence when that enhancement is based on the fact of a prior conviction. Alleyne v. United States, 133 S.Ct. 2151, 2160 n. 1 (2013) (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)).
VI.
The next issue is whether the residual clause creates an unconstitutional delegation of legislative powers to the courts. Ball argues that the ACCA impermissibly “delegates to Courts the power to set the minimum and maximum penalty for an offense by deciding which of thousands of state and federal offenses” qualify under the residual clause. See Mistretta v. United States, 488 U.S. 361, 396 (1989) (finding the USSG constitutional). But we have previously rejected the argument that the residual clause entails “an unconstitutional delegation of legislative power to the courts.” United States v. Castner, 19 F.3d 1434, 1994 WL 102963, at *2 (6th Cir. 1994) (unpublished table opinion); see also United States v. Baker, 850 F.2d 1365, 1372 (9th Cir. 1988).
VII.
Ball claims the mandatory nature of the ACCA sentence enhancement makes it unconstitutional. He says the minimum-sentence provision unconstitutionally limits judicial discretion in sentencing. We have already “flatly rejected” that argument. United States v. Cecil, 615 F.3d 678, 696 (6th Cir. 2010). Congress “has the power to fix the sentence for a federal crime, and the scope of judicial discretion with respect to a sentence is subject to congressional control.” Mistretta, 488 U.S. at 364.
VIII.
Ball next points to
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
Ball says the ACCA‘s minimum sentence provision conflicts with the parsimony provision. He says this conflict creates an ambiguity which should be resolved in the defendant‘s favor under the rule of lenity.
The rule of lenity, which counsels that hopelessly ambiguous statutes are to be construed in favor of defendants, is not applicable here because the ACCA is insufficiently vague. “In evaluating whether a statute is ambiguous for rule-of-lenity purposes, it is not enough for the plain language to be unclear; only when the plain language, structure, and legislative history provide no guidance will we apply the rule of lenity.” United States v. King, 516 F.3d 425, 432 (6th Cir. 2008) (quoting United States v. Wagner, 382 F.3d 598, 610 (6th Cir. 2004)).
IX.
The final issue concerns notice. Ball complains that the government failed to alert him prior to his plea colloquy that it planned to seek an ACCA sentence enhancement. He admits he failed to preserve this claim, so we may review it only for plain error. See United States v. Brock, 501 F.3d 762, 773 (6th Cir. 2007).
There is no error here, plain or otherwise, because the government is not required to provide notice of an ACCA sentence enhancement. United States v. Mauldin, 109 F.3d 1159, 1163 (6th Cir. 1997). Ball relies on
AFFIRMED.