Opinion
Case No. 1:09-CR-33.
September 22, 2009
MEMORANDUM AND OPINION
Defendant Quentin Estill entered a plea of guilty to Count 1 of the Indictment, which charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). The Defendant came before the Court for sentencing on September 22, 2009. This memorandum and opinion is an excerpt from the Court's statement of reasons justifying sentence and sets forth the Court's ruling on the Defendant's objection to the probation officer's calculation of the Sentencing Guidelines range.
The Guidelines sentencing range in this case on Count 1 is thirty (30) to thirty-seven (37) months of imprisonment based on an offense level of 17 and a criminal history category of III. There is no mandatory minimum term of imprisonment on Count 1.
The Defendant has one objection to the probation officer's calculation of the Sentencing Guidelines offense level. Specifically, the Defendant objects to the probation officer's conclusion that the base offense level is 20 pursuant to U.S.S.G. § 2K2.1(a)(4) because his prior conviction for failure to comply with the signal or order of a police officer is not a "crime of violence." The Defendant apparently argues that this prior offense is not a "violent felony" because it does not increase the likelihood that he is a person who might deliberately use a firearm. In support of this argument, the Defendant relies on Begay v. United States, 128 S. Ct. 1581 (2008) and United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009).
As is relevant here, pursuant to U.S.S.G. § 2K2.1(a)(4), the base offense level for a conviction under 18 U.S.C. § 922(g)(1) is 20 if the defendant committed the offense subsequent to sustaining one felony conviction for a "crime of violence." Under the Application Notes to the Sentencing Guidelines, a "crime of violence":
includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2, Application Note 1. The Sentencing Guidelines' definition of "crime of violence" essentially incorporates the definition of "violent felony" from the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B).
Generally, to determine whether an offense not specifically enumerated in the definition is a "crime of violence," the trial court is required to employ the "categorical approach" in which the fact of conviction and the statutory definition are the only relevant considerations. United States v. Wynn, ___ F.3d ___, No. 07-4307, 2009 WL 2768496, at *3 (6th Cir. Sept. 2, 2009). The court does not look at the facts underlying the conviction to determine how the defendant actually committed the offense. Id.; see also id. ("We consider the offense generically, that is to say, we examine the terms of how the law defines the offense and not in terms of how an individual offender might have committed the offense on a particular occasion.") (quoting Begay, 128 S. Ct. at 1584).
In Begay, the Court determined that New Mexico's felony DUI offense is not a "violent felony" under clause (ii) of the ACCA because, although it is an offense that creates a serious potential risk of harm to others, it is an offense unlike the other violent and aggressive crimes enumerated in the statute that are associated with a likelihood that the defendant will engage in violent, aggressive, and purposeful conduct in the future. Begay, 128 S. Ct. at 1588. Thus, according to the Defendant, his prior felony offense for failure to obey the signal of a police officer is not the type of crime that makes it likely he will engage in violent conduct in the future, and, therefore, is not a "crime of violence" under the Sentencing Guidelines.
The Defendant was indicted and pled guilty to the charge of failure to obey the signal of a police officer in violation of Ohio Rev. Code § 2921.331(B). Section § 2921.331(B) provides: "No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person's motor vehicle to a stop." Section 2921.331(C)(5) makes a violation of § 2921.331(B) a third degree felony if, in pertinent part, the trier of fact finds beyond a reasonable doubt that "[t]he operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property." In this case, the indictment and other documents submitted by the government indicate that the Defendant was indicted and pled guilty to a violation of § 2921.331(B) with the aggravating circumstance that in doing so he "caused a substantial risk of serious physical harm to persons or property." See United States v. Sanders, 470 F.3d 616, 623-24 (6th Cir. 2006) (district court may examine charging documents to determine nature of underlying offense).
In United States v. Young, ___ F.3d ___, No. 08-1394, 2009 WL 2836620 (6th Cir. Sept. 4, 2009), the Court held with little hesitation that Michigan's fleeing and eluding statute is a violent felony pursuant to the ACCA and Begay:
An ordinary violation of Michigan's fleeing-and-eluding statute involves aggressive conduct. A deliberate attempt to flee or elude a police officer in a motor vehicle constitutes a clear challenge to the officer's authority, and it usually will call the officer to give chase. This is especially true when an offender flees in the manner proscribed by the Michigan statute, i.e., "by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude. . . ." Fleeing and eluding also is generally aggressive because it typically leads to a confrontation between the offender and the officer.
Finally, fleeing and eluding involves violent conduct that poses a serious potential risk of physical injury to others. The purpose of fleeing in a motor vehicle is to avoid detention or arrest by a police officer, and offenders typically attempt to flee by any means necessary, including speeding, extinguishing lights at nighttime, driving the wrong way, weaving, etc. Those actions nearly always pose a substantial danger to pedestrians, other motorists, passengers, and pursuing officers. Not only is such risk of violence intuitive, but it has been borne out empirically. As the Fifth Circuit noted, in a study involving fifty-six law enforcement agencies across the country, 314 injuries (including fatalities) resulted from 7,737 reported pursuits. That constitutes a rate of .04 injuries-per-pursuit and exceeds the rate of injuries-per-arson, an offense specifically enumerated in ACCA.
Indeed, classifying Young's conviction as a violent felony accords with the purpose of ACCA. As indicated by its title, "the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender . . . possesses a gun." Begay held that ACCA only included as violent felonies those "crimes involv[ing] . . . purposeful, `violent,' and `aggressive' conduct" because those offenses "[are] such that [they] make [] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim," and are themselves "potentially more dangerous when firearms are involved." With respect to fleeing and eluding, if an offender is willing to drive recklessly to elude a police officer, without regard for the safety of bystanders or pursuing officers, it is likely that the offender would not hesitate to use a gun deliberately to harm a victim in another context. Moreover, fleeing and eluding itself is potentially more dangerous when firearms are involved. Given that fleeing and eluding, in the ordinary case, provokes a confrontation between the offender and an officer, a firearm could quickly change the confrontation from a scuffle to a shootout. Again, statistics support that conclusion-as the Seventh Circuit noted, one-fourth of all state and federal inmates convicted for brandishing or displaying a firearm did so in an effort to evade capture. Therefore, an individual's purposeful decision to flee an officer in a vehicle when told to stop, reflects that if the same individual were in possession of a firearm and asked to stop by police, they would have a greater propensity to use that firearm in an effort to evade arrest.Id. at *3-*4 (internal citations omitted; some internal brackets and quotation marks omitted).
In this case, Defendant's felony conviction for failing to obey the signal of a police officer is substantially similar to Michigan's fleeing and eluding statute. By definition, it is an offense that poses a serious potential risk of harm to others and is a "crime of violence" pursuant to Begay for all of the reasons stated by the Court in Young. Accordingly, Defendant's objection to the probation officer's determination of the correct base offense level is not well-taken and is OVERRULED. SO ORDERED