United States v. Young

(en they duty when Plaintiffs retiree health 1998) banc), are care it is clear that because were terminated.” (explaining [later] at 400 benefits not. are unalterable” “forever benefits vested sum, plain- Philips ceased to be law, by employer’s required and not employer after 2001. tiffs’ June The “is vest benefits to welfare commitment LGP, subsequently from plaintiffs retired intent to lightly; be inferred not to years five and it was later —after LGP’s plan found in the documents ‘must be vest Chapter bankruptcy proceeding resulted express in clear and must be stated of retiree health bene- a termination its omitted). ”) (citations language’ plaintiffs sought to turn back fits—that legal get to these In an effort around and seek health the clock lifetime benefits (and the barriers, plaintiffs contend Philips. genuine There are no issues that there majority apparently agrees) and, my opinion, Philips material fact of of fact on issue material genuine judgment to as a matter of is entitled law. developed that the defendants record Therefore, I respectfully dissent. fiduciary duty under ERISA. breached its However, I v. B.F. Good- Sengpiel believe Cir.1998) Co., fore-

rich claim. To the extent

closes this attach liability should

plaintiffs claim plan did not amend its Philips America, of UNITED STATES them, argument specifically exclude Plaintiff-Appellee, merit. legal factual without equally im- LGP ownership, the transfer After plans administering started mediately YOUNG, Michael Danotus The eventually issued own SPDs. its Defendant-Appellant. rightly point defendants out: No. 08-1394. fiduciary acting was not PENAC health transferring its retiree capacity Appeals, Court LGP, a liability plaintiffs fact that Sixth Circuit. (see Br.) do not Pis. expressly dispute Argued: 2009. June 666. Nor did Sengpiel, 15[6] F.3d at See in- obligations liable for the it become Sept. 2009. Decided Filed: manag- by afterwards new curred LGP’s Rehearing and En Banc Rehearing Id.; East, Darnel ers. Denied Oct. that liabili- Once transferred, had no need ty was PENAC program its retiree health

to amend longer no plaintiffs,

exclude since was their care. retiree health

liable thus “In this

The district court held: fiduciary duty Defen-

any breach decision, by must come from the

dants transfer parent company,

Defendants’ to LGP.

the assets and liabilities of PDC imple-

By being part of business decision parent company, their Defen-

mented fiduciary not breach an ERISA

dants did

OPINION LIOI, Judge. District SARA ap- Young (“Young”) Michael Defendant being conviction a felon peals his for of a 18 U.S.C. firearm under possession 15-year well sen- 922(g)(1), as his under the Armed Career Criminal tence (ACCA). follow, For reasons Act the and the sen- we affirm both tence.

I. 15, 2006, approximately December On a.m., police Rapids, 1:15 officers Grand Young asleep observed in a car Michigan for numerous public parking in a lot known activity. shootings and other criminal area, high-crime the hour of Based on the loitering unlawful night, lot, parking the officers city one of approach question the car to decided Young. Gould, Law Richard

ARGUED: Charles Young having questioned, denied When Ap- Offices, Rapids, Michigan, for Grand on but his re- anything illegal person, his McManus, L. Assistant pellant. Jennifer “furtive hand over his peated movements” Rapids, Attorney, Grand hiding pocket suggested that he was jacket BRIEF: Appellee. for ON Michigan, weapon; or a the officer asked contraband Offices, Gould, Law Richard Charles Young com- step out of car. Young to Appellant. Rapids, Michigan, for Grand that he had and informed the officer plied McManus, United L. Assistant Jennifer time, the officer’s Around same gun. a Michigan, Attorney, Rapids, Grand an out- yelled Young had partner Appellee. ar- standing arrest warrant. The officer gun on his Young discovered

rested was Young which admitted his. person, GRIFFIN, Before: SUTTON and LIOI, Judges; Judge.* District Circuit charged being a felon in Young was with firearm, of a in violation of 18

possession D.J., 922(g)(1). filed a motion to LIOI, opinion of the He delivered the U.S.C. of an uncon- court, GRIFFIN, J., joined. gun as the fruit suppress in which seizure, 881-85), SUTTON, search and (pp. J. delivered stitutional November part, judge district denied. On opinion concurring separate plea agreement, in the without written dissenting part concurring Young changed plea guilty, his judgment. * Lioi, designation. sitting by States Dis- Sara The Honorable Ohio, Judge for the Northern District of trict judge district sentenced him to mini- III. 15-year

mum pursuant sentence to ACCA. Young also challenges 15-year his mandatory minimum sentence. im ACCA II. poses 15-year mandatory minimum sen Young argues that the district tence defendant convicted of court erred in denying sup his motion to § 922(g) has three or more convic press gun. clear, Sixth Circuit law is qualifying tions as “violent felonies” or however, that a guilty-pleading defendant “serious drug offenses.” 18 U.S.C. may appeal pre-plea an adverse ruling 924(e)(1). concedes two of on a suppress motion to evidence unless he prior qualify his offenses drug as serious preserved has right the to do so in a offenses, he argues but that his 1997 con plea written agreement under Criminal fleeing viction for eluding, and second of 11(a)(2). Herrera, Rule fense under Michigan law does not qualify (6th Cir.2001); Fed. felony as a violent under ACCA. 11(a)(2). R.Crim.P. writing require The The fleeing-and-eluding statute under may only ment be excused if the defendant Young states, was convicted in rele- “made it clear that he preserve wished to part, vant as follows: right appeal, his to government the ac A driver of a motor given vehicle who is knowledged that appeal, he could and the hand, voice, by emergency light, or siren court accepted that.” United States v. a visual or signal by audible a police or Mastromatteo, Cir. officer, conservation acting in the lawful 2008). justification The exception for the performance of duty, his or her directing is that even if “the exact format of Rule the driver to bring his or her motor 11(a)(2)” followed, is not its “intent and vehicle to a stop, and who willfully fails purpose have been fulfilled” where the de obey direction increasing the fendant very it clear “ma[kes] that he in vehicle, extinguishing the tended to right reserve his appeal vehicle, lights of the or denial otherwise at- suppression of [a] motion[].” Id. tempting to flee or police elude the or In this it is undisputed that there officer, conservation guilty is aof misde- was no plea agreement. Further, written meanor, punished and shall be by im- Young neither nor clearly his counsel ex prisonment for days not less than 30 nor pressed an intention to preserve sup year.... more than 1 pression Indeed, issue on appeal. during 257.602a(l) sentencing, Laws the district judge acknowl person If a edged on violates that provision three occasions that within preserved years issue for five of a appeal was the ACCA enhancement, conviction, and neither Young punishable nor his the offense is as a objected Thus, counsel felony by otherwise.1 imprisonment term of up to raising barred from suppression is is and including years. four sue appeal. 257.602a(4). on reported 1. As sentencing (2) in the transcript, the preservation "There is a legal of issue judge appeal district (emphasis added); stated: for in this case” (1) "There appeal is a reservation of on the (3) indeed, you your "And lawyer have previous ruling regarding Court's applica- preserved your right appeal this Court’s fleeing tion of to the armed ca- ruling application your on the reer criminal statute which is attendant eluding conviction to the armed career crimi- Young’s sentencing”; Mr. nal statute.” underlying is an the behavior the of- felony” under ACCA consider A “violent ordinarily generally fense as or com- term of punishable by a offense that mitted, Chambers v. United exceeding year and ei- imprisonment one U.S.-, 172 L.Ed.2d use, at- an ther “has as element James, (2009); 550 U.S. at use, physical or threatened use of tempted “not terms of how individ- another,” or person against force might committed [the ual offender have arson, extortion, involves “is burglary, occasion,” particular on a Begay, offense] involves explosives, otherwise use of at 1584. conduct that injury to another.” 18 categorical approach Under 924(e)(2)(B). Young’s offense we hold that U.S.C. Young’s qualifies conviction as a violent imprisonment a term of punishable was felony under ACCA. as convicted exceeding year, one he was conduct, clearly purposeful involved a second Michigan’s fleeing-and-eluding statute ap- thus, years; Young’s fleeing- within five only to those plies willfully “who fail[ ] to the thresh- and-eluding conviction satisfies obey officer’s] direction.” Mich. Comp. [an Young’s ACCA. convic- requirement old of 257.602a(l) (1996). Laws See United however, tion, an element does have as Roseboro, v. 236 & States 551 F.3d n. use, use, use attempted the or threatened (4th Cir.2009) (noting Michigan’s 5 arson, force, type burglary, it a of nor is of the requires statute vi- extortion, involving an offense the use or purposeful); compare to be olation United Thus, before the explosives. of the issue (7th Spells, v. 749 537 F.3d falls Court is whether Cir.2008) (mens “knowingly rea element of is, “residual clause”—that under ACCA’s presumed intentionally” purposeful con- or it “involves conduct whether duct); West, United States v. 550 F.3d risk potential a of serious (10th Cir.2008) (statute 960-61, prohib- 924(e)(2)(B)®. another.” U.S.C. a “in or iting vehicle willful wan- operating An offense ACCA’s falls within signal” of disregard [an ton in- officer’s] (1) conduct). if it poses residual clause purposeful volved others; potential physical injury risk of Moreover, ordinary an violation of Mich- purpose involves the same kind of statute igan^ fleeing-and-eluding involves ful, violent, aggressive conduct as the conduct. A aggressive attempt deliberate arson, burglary, offenses of enumerated police a in a to flee elude officer motor extortion, of involving or offenses the use challenge to vehicle constitutes “a clear the States, v. explosives. Begay United authority,” officer’s States Har- -, 1581, 1586, rimon, Cir.2009), 568 F.3d (2008); Ford, L.Ed.2d 490 give usually will the officer to “call[ ] 420, 421 In con- West, chase,” Spells, F.3d at inquiry, are to use the ducting we This true especially F.3d at 969. is we approach,” meaning that “categorical proscribed flees manner an offender the only “whether the elements the examine statute, i.e., “by by Michigan increas- of type justify are of that would vehicle, speed ing extinguishing offense provision.” vehicle, its inclusion within residual or otherwise at- lights ” 192, 202, tempting James v. United 550 U.S. to flee elude.... Mich. 257.602a(l) (1996). Fleeing 167 L.Ed.2d 532 Laws Further, only aggressive also original). generally (emphasis 752; West, it “typically to a confronta- at lead[s] 550 F.3d at 964-65. tion” between the offender and only intuitive, the officer. Not is such risk of violence Harrimon, West, (quoting but it has empirically. been borne out As 970); Roseboro, noted, 550 F.3d at see also 551 the Fifth study Circuit a involv (“The F.3d at 240 intentional act of ing fifty-six diso- law agencies enforcement beying a law by country, enforcement officer refus- across the injuries (including fatalities) ing stop light signal, 7,737 for his blue without resulted reported justification, (ci inherently Harrimon, an aggressive pursuits. 568 F.3d at 537 (citation omitted)). omitted). and violent act.” tation That constitutes a rate of .04 injuries-per-pursuit and exceeds the Finally, fleeing involves vio rate injuries-per-arson, spe poses lent conduct that serious cifically enumerated ACCA.3Id. physical injury pur to others. The pose Indeed, motor vehicle is to classifying Young’s conviction as avoid detention or police arrest offi felony violent accords with purpose cer, and typically attempt offenders title, flee of ACCA. As indicated its “the by any necessary, means including speed Armed Career upon Criminal Act focuses ing, extinguishing lights nighttime, special driv danger created when a particu- wrong way, weaving, type etc.2 See lar possesses of offender ... gun.” West, (“[U]nder (citations 550 F.3d at 964 the stress 128 S.Ct. at 1587 omit- ted). urgency which will naturally attend Begay held that ACCA included situation, person his fleeing from law as violent felonies those “crimes involving] enforcement likely recklessly will drive ... purposeful, ‘violent,’ and ‘aggressive’ any pursuit and turn into a high-speed conduct” because those offenses “[are] chase with potential for harm serious to such that [they] likely make[] more (citations police bystanders.” or innocent offender, an later possessing gun, will omitted)); Harrimon, 568 F.3d at 536 use that gun deliberately to harm a vic- (Given tim,” the “marked pursuit likelihood of and are “potentially themselves more and confrontation” in fleeing-and-eluding dangerous when firearms are involved.” offenses, case, (citations “in typical omitted). an offender Id. With re- fleeing from an attempted stop spect or arrest to and eluding, if an offender will not endanger hesitate to others to is willing to drive recklessly to elude good make escape.”); officer, his or her police see also without regard safety for the Roseboro, 551 F.3d at 240. Those bystanders officers, actions of or pursuing it is nearly always pose a danger substantial likely to that the offender would not hesitate pedestrians, motorists, other passengers, to a gun deliberately use to harm a victim and pursuing officers. Spells, See 537 in Moreover, another context. fleeing and Though theoretically possible it is according to willful- 3. to U.S. Fire Admin- istration, 2,475 ly obey injuries fail to an stop roughly officer’s command to resulted from 267,000 injuries arsons—a rate calmly driving per vehicle of .009 the vehicle at or Hairimon, arson. (citing 568 F.3d at 537 below following limit and all traffic Admin., U.S. Fire Arson in the United process, laws in the we concern ourselves Topical (Issue 8) (2001)). Fire Research Series ordinarily with how an offense is Also, 2005, according in to National Fire committed, generally upon based the statute. Association, 9,593 Prevention injuries civilian 550 U.S. at 323,900 resulted approximately reported Chambers, general 129 S.Ct. at 690. As a injuries per "intentional fires”—a rate of .03 matter, attempt one does not to “flee or Admin., (citing fire. intentional U.S. Fire police elude’’ a officer in such a manner. Arson National Arson Awareness for Profit: (2009)). Week Media Kit this cannot overrule panel of Court dangerous potentially more eluding itself is modify may panel, [it] of another decision are involved. Given firearms intervening holdings when an ordinary ... in the eluding, fleeing and Supreme of the United States opinion the of- between a confrontation provokes to do so.” Caswell v. officer, requires [it] Court a firearm could an fender Comm’n, F.3d Housing City Detroit confrontation from change the quickly (6th Cir.2005); n. 1 Again, statistics to a shootout. scuffle Smith, the Seventh that conclusion—as support analysis to be inconsis- find Foreman’s noted, all state and We one-fourth Circuit Begay well as tent with James —as brandishing inmates convicted federal reaffirmed James —and in an did so effort a firearm displaying gov- hold that Foreman does at 752 therefore Spells, capture. evade Justice, this case. Survey of ern Dep’t of (citing n. 3 Correctional and Federal Inmates State James, we twice consid Prior to by Offenders Firearm Use Facilities: under an ered whether (Nov.2001)). Therefore, in- “[a]n Table fleeing- Michigan’s amended version flee an purposeful decision dividual’s a “crime of and-eluding qualified statute as stop, re- when told in a vehicle officer provi under the career-offender violence” were if the same individual flects that sentencing guidelines, U.S.S.G. sion of the stop and asked of a firearm possession 4Bl.l(a).5 Laws greater have a they would by police, [sic] the amended Under 750.479a in an effort to use that firearm propensity statute, “fourth-degree fleeing elud 752; see also Id. at to evade arrest.” of the same elements ing” required proof West, at 970. Young was the statute under which (2) vehicle, an use of a motor al convicted: argues that this Court stop the vehicle officer order to Fore ready determined (6th Cir.2006), duty, of his performance the lawful man, F.3d 638 by speed of that order not willful disobedience eluding simpliciter does fleeing and lights, or extinguishing the vehicle’s physical ing, potential risk pose a serious flee or elude the attempting to others, must there otherwise and that we injury to 950.479a(l). An offender Id. at “Although a officer. resentencing4 for fore remand inherently fleeing-and-eluding more offense is remains that if Foreman 4. is correct offense, compare law, dangerous than first good should be reversed. his sentence Ford, ("No concerned, in this case at 424 one it takes the statute is So far as suggesting empirical any elude the evidence exactly to flee and has offered the same conduct (or fifth) walkaway escapes, to tradi- time: in contrast first time as it does second vehicle, (2) escapes, apt are to lead to serious risks tional an order to use of a motor Moreover, ap- injury.”). it more in the lawful stop the vehicle an officer legislature, not propriately to the falls duty, willful disobedi- performance of his rele- judiciary, recidivist conduct extinguishing to render by speeding, ence of that order felony” inquiry under the attempting "violent lights, vant to the or otherwise the vehicle’s Comp. Laws ACCA. or elude the officer. flee 257.602a(l) the concur- Neither under the career- A "crime of violence” why 5. government explains hav- rence nor identically interpreted provision is offender fleeing-and-eluding ing prior felony” under ACCA. United a "violent changes the “behavior under- “significantly” 593, Houston, Cir. F.3d subsequent of- lying” a 1999); Hargrove, 416 F.3d fense, Chambers, nor does 129 S.Ct. at suggesting second either cite evidence collision, Foreman, who caused a fled a 35 mile- after we decided zone, per-hour prior had a conviction for Supreme Court announced the first fourth-degree fleeing eluding, and mean- that, applying categorical time while, was liable for “third-degree fleeing offense, approach to an unenumerated 950.479a(3). eluding.” Id. at courts must determine “whether the con Martin,

In United States v. encompassed by duct the elements of the (6th Cir.2004), we held that convictions offense, ordinary in the with either of two additional circum potential injury serious risk of to anoth causing a collision and/or stances — er.” 550 U.S. at mile-per-hour in a 35 qualified zone— added). (emphasis The Court reaf third-degree fleeing eluding as a crime approach firmed that in Begay and Cham recently of violence. Id. at 583. We reaf bers. 128 S.Ct. at Cham firmed Martin in United States v. La bers, Foreman, however, 690. Casse, (6th Cir.2009), 567 F.3d 763 engage did not in the analysis prescribed also concerned third-degree fleeing and James; indeed, panel in Foreman eluding with the additional circumstances could not have known to do so because causing a collision and/or pre-dated Rather, Foreman James. Fore mile-per-hour later, years zone.6 Two simply that, man reasoned because fourth- that, decided in Foreman because fourth- degree fleeing eluding can conceivably degree fleeing did not involve be committed causing without either of the additional circumstances at others, potential risk of “the cate Martin, issue in categorical approach “the gorical approach is not determinative.” is not determinative of whether fourth de Foreman, 436 643. That Foreman gree fleeing ais ‘crime of ” upon relied such reasoning especially violence.’ 436 F.3d at 643. significant upon remedy: examination of its Foreman remanded case to determine remand to the district court to determine whether' “the [underlying facts the defen whether “the facts demonstrate a dant’s serious demonstrate a po offense] serious tential physical injury physical injury risk of to another.” to anothe (emphasis Id. in original). r.”8 (emphasis original). As the explicitly did LaCasse state statutory that it con- definition of the offense.” particular cerned those Shepard, additional circum- (quot- U.S. at 125 S.Ct. government stances. The Taylor, 2143). brief to the Sixth 495 U.S. at noted, however, however, Circuit in LaCasse Taylor Shepard, Both involved determined, offenses, upon district court burglary based provided and thus little document, history, charging criminal guidance apply and "categorical on how to plea colloquy, approach” defendant’s conviction specifically to offenses not enu- causing resulted either from a collision or merated in ACCA. speeding mile-per-hour in a 35 zone. 2007 opinion 8. The 2477944, Foreman itself does not indicate WL at *9. that it underly- ever considered the behavior States, 13, Shepard v. United typical 544 U.S. eluding. case of (2005), indeed, S.Ct. 161 L.Ed.2d 205 the last And the fact that Foreman remanded Supreme relevant Court case decided before the case to the district court to determine Foreman, holding Taylor reiterated the underlying whether the facts the defendant’s States, v. United 495 U.S. posed 110 S.Ct. potential conviction a serious risk of (1990), that, Foreman, L.Ed.2d 607 determining physical injury, in 436 F.3d at prior qualifies whether a as a vio- undermines the notion that Foreman exam- ACCA, felony lent generally may under fourth-degree courts ined how only "look to the fact typically of conviction and the Shepard committed. documents applying in court did not err subsequent district clarified Supreme Court Foreman, however, fact-based rem- enhancement. such a ACCA’s may because courts impermissible edy is IV. offender “how an individual examine

not on a offense] [the have committed might reasons, we affirm For these occasion,” an only how of- but particular conviction and sentence. upon ordinarily committed based fense James, at U.S. its elements. SUTTON, concurring in Judge, Circuit 1584; Begay, 128 S.Ct. S.Ct. in dissenting part concurring part, Chambers, at 690. Under S.Ct. judgment. James, given guidance hard cases make bad law. Sometimes Chambers, that an offense the mere fact easy cases make bad law. And sometimes posing without can be committed however, easy Only rarely, do cases make not mean that does potential risk by overruling good law. bad law does ordinarily as committed the offense easy and it is one that This is a risk. See U.S. pose such overruling can 207-08, (rejecting readily the we resolve without S.Ct. v. attempted burglary precedents a one of our state argument —United Foreman, if felony a violent qualified as 436 F.3d 638 Foreman, risk presented a serious Supreme all cases Court has Since harm). Indeed, “proto- cases, even three crime-of-violence decided erime[s],” burgla- violent such typically compels give us to the last none of them murder, extortion, can attempted ry, applies the same rites to Foreman. One no way pose a as to committed such be approach as Foreman. See James injury. genuine States, 192, 207-09, 127 550 U.S. 1586, 167 L.Ed.2d 532 And reasons, we find foregoing For the result in Fore the other two bolster the longer controlling prece- is no Foreman by making it more to estab man James, Begay, and light dent difficult that a defendant’s conviction is Further, lish hold that Chambers. v. Unit crime of violence. See Chambers Michigan’s under flee- Young’s conviction -, ed qualifies as vio- ing-and-eluding statute (2009); 690-92, Begay L.Ed.2d 484 Accordingly, the felony under ACCA. lent tionably and uninten- statutory pro- covers both intentional may only be examined where the statute does not more crimi- tional conduct” because into two or vision can be divided require prove that a defendant categories, one of which is the state to nal at least intent, i.e., willfully felony of which is not. and at least one acted with criminal violent Roseboro, at 691. purposefully. 551 F.3d at 235. See however, Shep- Thus, examination of remanded for Carolina’s statute consti- because South fourth-degree though even ard documents multiple categories, the Fourth tutes criminal single crimi- fleeing and constitutes Shepard consultation of Circuit remanded for categorical category purposes nal ... whether [defen- documents to "determine James, Begay, and Chambers. approach under viola- involved intentional convictions dant’s] concluding that a panel unanimous in This Id. at 240. If the dis- of the statute. tions” inappropri- was Shepard remand in Foreman purposefully found that defendant trict court post at 78-79. ate. See statute, the Fourth Circuit con- violated the cluded, have convictions would defendant’s in Roseboro Circuit’s decision The Fourth violent, aggressive There, purposeful, involved provides helpful contrast. conduct, qualify would as violent and thus that South Car- Circuit determined Fourth Id. "unques- under ACCA. felonies fleeing-and-eluding statute olina's --(cid:127), 202-09, 1586, at United 128 S.Ct. 550 U.S. 1581, 1586, Why 170 L.Ed.2d 490 it “purposeful, involves the same kind of majority must overrule violent, as aggressive” conduct as the opposed registering disagreement with crimes, Begay, enumerated 128 S.Ct. at it, mystery. is a see also 129 S.Ct. at 692. premature overruling This of one of our eases, In three applied we have this precedents stands stark contrast to a Michigan’s fleeing-and-elud- framework to recent In resolving decision the court. first, ing statute. In the v. case, death-penalty Getsy a difficult v. Martin, we held that involving convictions Strickland, all panel three members of the aggravators either of two the “viola- —that registered disagreement their with the accident,” tion results in a collision or leading precedent point, Cooey on v. 257.602a(3)(a), § Laws. or “a Strickland, (6th 412, 479 F.3d Cir. portion of the violation occurred in an area 2007) II). 309, (Cooey See 577 F.3d where the limit is 35 miles an hour (6th Cir.2009); (Moore, J., id. at 313-14 less,” 257.602a(3)(b) present id. — (Merritt, J., concurring); id. at 314-16 dis- potential serious risk of injury. See 378 Yet, credit, senting). panel to its stood rea-We II, by Cooey allowing precedent flight soned both the itself and the survive, even when it meant that Mr. Get- eventual apprehension a conspic- “create[ ] sy might Strickland, Getsy not. See No. potential injury” uous risk of and commit- 09-5935, U.S.-, ting the through either enhance- L.Ed.2d (Aug. WL 2490098 ment palpable “confirms the risk.” Id. at 2009). Perhaps I am missing something, 582. We analogized fleeing also and elud- but I fail to why understand we cannot escape' previously recog- —which This, path indeed, take the same here. nized as a “crime of violence” under the stake, the easier case: There is less Sentencing Guidelines, see United States v. a faithful adherence to Foreman does Harris, Cir.1999), even alter the result. recognized in United States modification Consider straightforward way this to re- Ford, (6th Cir.2009)— solve the one that not require does us as both heightened involve emotions and to overrule Foreman and one that still usually end with a confrontation between majority allows the to conclude that Martin, the officer suspect. and the Young’s fleeing-and-eluding conviction was end, F.3d at 582-83. we concluded a crime of majority violence. As the cor- that fleeing poses greater notes, rectly everything in this case de- risk than escape and elud- pends on whether un- ing always “flight involves [from officers] der Michigan law falls within ACCA’s and the third-party inherent risks that catchall clause for crimes that “otherwise such conduct entails.” presents involve[] conduct that second, Foreman, In the we addressed potential physical injury risk of to anoth- whether 924(e)(2)(B)(ii). fleeing-and-eluding violation And, er.” 18 U.S.C. to a amounted crime of violence if it majority adds, did correctly a crime falls any not involve aggravating within that if circumstances. clause a seri- conduct, potential acknowledged ous We akin in such like degree Martin, the enumerated conduct creates a burglary, ar- offenses— son, extortion or the use of risk explosives, physical injury see to another. 436 924(e)(2)(B)(ii) 18 U.S.C. F.3d at 642-43. But we decided it was —see together, in Taken these three decisions ... a low of presence “the A following fourth-degree create the line: causing or accident” zone offender) {e.g.,a first-time is not a characterize offense categorically to us enabled (Foreman); of violence and at least in Martin crime violation fleeing-and-eluding types third-degree {e.g., of offenses two ordinarily posing “a serious injury in that causes or occurs original). one at 643 (emphasis risk.” Id. zone) thirtyfive-mph a are crimes of vio- held that the therefore We LaCasse). and That leaves to a lence enough {Martin to amount not ‘^serious” was type the last of third- today’s question: Is of violence. crime offense, in a degree defendant has LaCasse, third, In the fourth-degree fleeing committed and elud- Supreme considered whether years, than once in five a crime ing more Begay and intervening decisions Court’s Yes, say, I for of violence? basis analyses. these See 567 altered Chambers saying straightforward respectful so is Cir.2009). At issue was precedents: simply all draw a line of three third-degree fleeing-and- typical whether run-of-the-mine violations of the between pur- of type involves the eluding conviction (treated crimes) statute as non-violent tar- aggressive conduct poseful, violent (treat- aggravated violations of the statute out at 765-67. As laid geted by ACCA. Id. crimes). That precisely ed as violent statute, third-degree of- in the current do what LaCasse seemed to with issue. conduct as a the same fense involves that, me, it And seems to should end this plus presence fourth-degree case, to the same particularly since leads present aggravators: the two one of three majority’s approach does. result that the or a conviction Martin majority register also its If the wishes Comp. Laws. eluding. See Mich. disagreement with it is free to 257.602a(3) third-de- Michigan’s (or panels do so and later the en banc statute, we rea- fleeing-and-eluding gree court) can that criticism into consider- take affirmative, soned, aggressive requires nothing But in this case ation. from strict lia- distinguishable conduct decision, overruling the much less basis for Begay. La- bility drunk-driving offense compels us to do so. Casse, And 567 F.3d at 766. maintaining that Foreman must be report” that a “failure to which held overruled, majority fourth-degree fleeing are thirty-five-mph first-time violator than in offenses, separate and Martin addressed vicinity already the of someone who has third-degree the offense before it: been arrested for and eluding be- eluding. See 378 F.3d they fore and thus knows that what are doing wrong and has embraced the risks Supreme The Court’s recent decisions nonetheless. require overruling also do not of Fore- Begay man. and Chambers both make it matter, Surely, general it also harder, easier, classify not an offense as makes repeat sense treat offenders dif- violence, they a crime of both held ferently from first-time offenders. A cen- held) (as Foreman that the offenses before tral premise of the “career offender” com- crimes of violence. them were not See ponent of interpret ACCA—the law we 1586, today recalcitrant law-breakers —-is ap- 129 S.Ct. at 692-93. And Foreman pose public risks to the that are different plied categorical approach, including in kind and blameworthiness from initial requirement that courts look to the lawbreakers. policy the absence of that ordinary manner in which an offense is judgment, ACCA would not exist. committed, adhered to in and re- James provides Stare decisis one reason for the quired by Taylor v. United I approach reality recommend. The 575, 2143, L.Ed.2d the outcome of this case would be the (1990), predates Foreman. Noth- same, good whether Foreman is law or short, ing, justifies abandoning our cus- bad, provides another. But it makes the respecting holdings pan- tom of least sense to overrule a precedent gratu- els that come before us. See Blair v. itously in Filters, (6th evolving such an Inc., 517, area of federal Henry Cir.2007). law. mire into which “[T]he ACCA’s draftmanship Taylor1 ‘categorical ap- s If there was a time to overrule Foreman us,” Chambers, proach’ pushed have (and was), I don’t think there inwas (Alito, J., at 694 concurring), is con- LaCasse, not this case. LaCasse itself suming increasing portion of our dock- if suggests, explicitly adopts, the same et. This is fourth years case five I propose. line If we now have the right dealing State, with one statute from one to overrule so did the LaCasse with asking each case us to slice the stat- panel. But it left the decision is. as We ute analytical pieces. into thinner Outside instead should leave all three decisions circuit, (Foreman, LaCasse) deep split our has arisen over Martin and where them, whether similar we found of- standing by the sensible they present line draw: fenses fleeing-and-elud- requisite injury, between Kendrick, offenses that involve an aggravating compare United States v. (8th circumstance and those do not. Cir.2005), F.3d and United Howze, (7th States v. 921-22 I also cognizable see no reason to treat Cir.2003), with Kelly, United States v. differently recidivist offense (9th Cir.2005), F.3d 893-95 or the the other aggravating circumstances. On conduct, requisite type aggressive com- contrary: good there is think reason to West, pare United States v. 550 that it poses physical injury more risk of (10th Cir.2008), 968-71 and United States and is more violent than at least one of the v. Spells, 537 F.3d 752-53 others: Cir. thirty-five-mph-zone aggrava- 2008), Harrison, tor. Many people, suspect, I with prefer would to take vicinity their chances of a F.3d It is point opinion say a The of the was to that quagmire to enter this all thing one it; to re- three offenses were not crimes of requires quite it is another violence. case confusion, submit, nothing Only de- I comes from a shifting sand when shift in Shepard remand these circumstances. mands it. setting, suggests For this remand that There is one nuance about Foreman asking we are the district court to do mention, it does not that deserves but something Taylor that prohibits: engaging overruling. hold that require its When we in a fact-specific inquiry about how this categorically a crime of an offense is not Taylor, committed this defendant offense. violence, we often remand the case 600-02, 110 at 495 U.S. S.Ct. 2143. It also may district court so that the Government inadvertently suggests to district courts that the through Shepard establish sources that ignore categori we ourselves will conduct was a crime of vio- defendant’s worse, cal approach and, may that we Foreman, lence, as we did in 436 F.3d at it, reverse them for not I doing so. As see cases, and as we have done other Shepard remand should be issued see, e.g., Mosley, United States v. 575 F.3d when the crime at issue contains least (6th Cir.2009); 603, 608 United States v. categories, way two at least one of commit Baker, Cir.2009); ting violence, the offense ais crime of Armstead, United States v. way at least one of committing the offense type This of re- not. But justifies none of this overrul reflexively, mand should be done how- ing which at worst made a mis ever, sense, it always does not make many that precedents take of our in this settings may suggest some even area have made. All we should do is embracing non-categori- court is Shepard sound a word of caution about If, approach say, cal to the issue. remands and leave Foreman as we found just category, state law offense has one it. categories that both amount to crimes two violence, nothing productive can come One final note. A court of this size contrast, By Shepard inquiry.

from a cannot function if it does not stand its an offense is into two or divisible panel each decisions—if court category categories, more least one in deciding unto itself whether to adhere to is a “crime of violence” and at least one is a prior Respect prece- decision. for our not, something Shepard there is dents, respect for each other and respect sources can reveal: the defendant for the court judges litigants district type committed a of offense that is a crime who must with our live decisions demands Shepard of violence. See v. United panel overruling that each treat 13, 19-21, 544 U.S. precedents as measure of last resort —an (2005); L.Ed.2d 205 act that intervening Supreme unavoidable (or at 690-91. similar) precedent something Court measure, compels. By any that did not Shepard The remand Foreman illus- happen majority seeing things here. The point. ways trates the There are three differently, I respectfully dissent from this fourth-degree fleeing eluding: commit aspect join and otherwise its decision vehicle, “increasing of the extin- of it. the rest vehicle, lights guishing or other- attempting wise to flee elude.” See 257.602a(l). Noth- Laws suggests any in Foreman one of categories

these is a crime of violence. notes crime, different separate was “a prison in this ‘Young” losing appellant —the felony” not a “violent escape” that if Foreman remains case—“is correct 691-93, ACCA, gave under law, should be re- good his sentence LaCasse, to this conclusion. “added force” Maj. n. 4. That is not Op. versed.” at 379 distinction 567 F.3d at 766-67. Chambers’ A recognized exception to stare decisis. and a failure to prison between a breakout least of all the litigant’s position escape that a traditional report suggested losing litigant, does not position felony” involving a “violent remained par- this require precedent, us to overrule violent, ag- type purposeful, same would lose whether ticularly since Id. at gressive targeted conduct ACCA. good law or not. Foreman remains “fleeing [is] 767. And since inconsistent with Mar- Nor is Foreman attempt escape,” we reaffirmed but an Supreme Court intervening tin or with third-degree holding Foreman’s does precedent. a “vio- categorically remained holding. Third-degree 767. contradict Martin’s felony” under ACCA. Id. lent

Case Details

Case Name: United States v. Young

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 4, 2009

Citation: 580 F.3d 373

Docket Number: 08-1394

Court Abbreviation: 6th Cir.