Opinion
No. 17-1088
11-22-2017
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEDRICK DESHAWN CLARK, Defendant-Appellant.
NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0647n.06 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN BEFORE: CLAY, COOK, and WHITE, Circuit Judges.
PER CURIAM. Kedrick Clark pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 921(a), and 924(a)(2). PSR at 3. At sentencing, Clark objected to the PSR's base offense-level calculation on the ground that his prior conviction under Michigan's felonious assault statute, Mich. Comp. Laws Ann. § 750.82, was not a conviction of a "crime of violence" under USSG § 4B1.2(a)(1). PID 235/Sentencing Hr'g. Clark also objected to the PSR's adding a criminal-history point for a marijuana-related civil infraction under Grand Rapids City Charter, tit. XVIII, § 292. PID 235, 237-39. The Government agreed with Clark that his admission of responsibility for a civil infraction is not a "prior sentence imposed upon an adjudication of guilt by guilty plea, trial, or plea of nolo contendere" as required by USSG § 4A1.2(a)(1) and should not be scored a criminal-history point. PID 241-44. The district court overruled Clark's objections and imposed a bottom-of-the-guidelines 57-month sentence. The court stated that had it not scored the point, the Guidelines range and sentence would have been different. PID 254. We AFFIRM the district court's base offense-level calculation, VACATE the district court's criminal-history scoring, and REMAND for resentencing.
Clark acknowledges that United States v. Harris, 853 F.3d 318, 321 (6th Cir. 2017), decided during the pendency of this appeal, held that Michigan felonious assault, Mich. Comp. Laws § 750.82, has as an element the use, attempted use, or threatened use of physical force against another, and thus constitutes a crime of violence. Applying Harris, we affirm the district court's base-offense-level scoring of 20 under USSG §§ 2K2.1(a)(4)(A) and 4B1.2(a)(1).
Under Michigan law, "a person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony . . ." Mich. Comp. Laws Ann. § 750.82. --------
The Government concedes error in the district court's scoring a criminal history point for the civil infraction. Given the district court's candid acknowledgment that the scoring affected the sentence, resentencing is required.
We therefore affirm the district court's base offense-level calculation under Harris, 853 F.3d at 321, vacate the scoring of Clark's criminal-history category, and remand for Clark to be resentenced without scoring an additional criminal-history point for the civil infraction.