           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. Herrera                    No. 03-1654
        ELECTRONIC CITATION: 2004 FED App. 0222P (6th Cir.)
                    File Name: 04a0222p.06                                UNITED STATES ATTORNEY, Grand Rapids, Michigan,
                                                                          for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNED
                                                                          & PHELAN, Grand Rapids, Michigan, for Appellant.
UNITED STATES COURT OF APPEALS                                            Andrew B. Birge, UNITED STATES ATTORNEY, Grand
                                                                          Rapids, Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                         _________________

 UNITED STATES OF AMERICA , X                                                                     OPINION
            Plaintiff-Appellee, -                                                             _________________
                                  -
                                  -   No. 03-1654                            CLELAND, District Judge. Defendant Felix Herrera
           v.                     -                                       appeals a sentencing determination that qualified him as a
                                   >                                      career offender pursuant to § 4B1.1 of the United States
                                  ,                                       Sentencing Guidelines (U.S.S.G.). Defendant claims that the
 FELIX HERRERA ,                  -
          Defendant-Appellant. -                                          trial court erred in concluding that his previous state felony
                                                                          convictions for attempted taking of a firearm from a peace
                                 N                                        officer, Mich. Comp. Laws § 750.479b(2), and for resisting
       Appeal from the United States District Court                       and obstructing a police officer, Mich. Comp. Laws
  for the Western District of Michigan at Grand Rapids.                   § 750.479(a), were “violent crimes” within the meaning of
    No. 02-00259—Richard A. Enslen, District Judge.                       U.S.S.G. § 4B1.2(a). For the reasons set forth below, we
                                                                          agree with the district judge’s decision as to the first of the
                     Argued: June 16, 2004                                two predicate convictions, find it unnecessary to reach the
                                                                          question of the second predicate conviction and AFFIRM the
               Decided and Filed: July 12, 2004                           judgment of the district court.

 Before: RYAN and COOK, Circuit Judges; CLELAND,                                I. FACTS AND PROCEDURAL HISTORY
                  District Judge.*
                                                                             On July 22, 2002 in Lansing, Michigan, Defendant sold
                      _________________                                   crack cocaine to an undercover officer and was confronted by
                                                                          a team of surveillance officers wearing jackets with the word
                            COUNSEL                                       “POLICE” emblazoned on them. According to the officers at
                                                                          the scene, Defendant initially did not comply with their
ARGUED: Lawrence J. Phelan, HAEHNED & PHELAN,                             command to lie on the ground, but pulled a gun from his
Grand Rapids, Michigan, for Appellant. Andrew B. Birge,                   waistband and swung it toward the officers. The officers
                                                                          dove for cover, and Defendant soon decided to lower his gun
                                                                          and obey the officers’ commands. On October 24, 2002, a
    *
                                                                          federal grand jury returned a three-count indictment against
     The Ho norable Robert H. Cleland, United States District Judge for   Defendant, charging him with knowingly and intentionally
the Eastern District of Michigan, sitting by designation.

                                  1
No. 03-1654                   United States v. Herrera      3    4    United States v. Herrera                     No. 03-1654

possessing cocaine base (crack) with the intent to distribute,     On May 8, 2003, Defendant appeared before the district
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), being a    court for sentencing and reasserted his objection to the
convicted felon in possession of a firearm, in violation of      presentence report. The court rejected his challenge, finding
18 U.S.C. § 922(g)(1), and carrying and brandishing a firearm    that the conviction for attempt to disarm a police officer was
in relation to a drug trafficking crime, in violation of         a crime of violence as defined at U.S.S.G. § 4B1.2(a). The
18 U.S.C. § 924(c). Defendant entered a guilty plea to the       court also went on to decide, “for the sake of completeness,”
possession with intent to distribute charge (Count I) and the    that Defendant’s conviction for resisting and obstructing a
carrying and brandishing a firearm charge (Count III) on         police officer also constituted a crime of violence. The effect
January 6, 2003. Pursuant to the plea agreement, the final       of this determination was to increase Defendant’s offense
determination as to the length of Defendant’s sentence rested    level from Level 13 to Level 29 and his guideline range from
solely with the trial court, which would consider a              33-41 months to 151-188 months, accounting for a three-level
presentence report and objections or suggestions from the        reduction for acceptance of responsibility. Defendant’s
government and Defendant. The government agreed to               criminal history category, however, was unaffected because
dismiss the felon in possession charge (Count II).               Defendant was scored in Category VI based upon his prior
                                                                 record.
   About March 24, 2003, a presentence report was prepared,
indicating that Defendant had been previously convicted in          Defendant was sentenced to 160 months on Count I and 84
state court on numerous occasions. Among Defendant’s             months on Count III, to be served consecutively for a total of
myriad of past convictions were three convictions that the       244 months imprisonment. Defendant was ordered to pay a
U.S. probation officer suggested were “crimes of violence”       fine of $2,140.00 and $200.00 in special assessments, and
under the U.S.S.G.: (1) a felonious assault which occurred on    was required to remain on supervised release for a term of
June 25, 1998; (2) an attempt to commit the crime of             five years after his release from prison. On May 15, 2003,
disarming a police officer which occurred on August 9, 2001;     Defendant filed a timely notice of appeal.
and (3) resisting and obstructing a police officer also on
August 9, 2001. The last two offenses arose from the same                      II. STANDARD OF REVIEW
occurrence in which Defendant fled on foot after police pulled
him over for a traffic stop. When an officer caught and            The district court’s interpretation of the Sentencing
reached for Defendant, Defendant grabbed the officer’s gun       Guidelines is a question of law, which we review de novo.
and tried to pull it from its holster. The police officer was    See United States v. Garza, 999 F.2d 1048, 1051 (6th Cir.
able to subdue Defendant and place him into custody without      1993); see also United States v. Arnold, 58 F.3d 1117, 1120
further incident. Based upon these offenses, the probation       (6th Cir. 1995) (applying de novo standard of review to the
officer concluded that Defendant should be classified as a       district court’s construction of the term “crime of violence” in
career offender pursuant to U.S.S.G. § 4B1.1, under which a      the Guidelines).
defendant with two violent felony convictions or drug
trafficking felony convictions is to be classified as a career
offender. In a memorandum filed May 1, 2003, Defendant
objected to the probation officer’s career offender
recommendation.
No. 03-1654                    United States v. Herrera          5   6      United States v. Herrera                    No. 03-1654

                     III. DISCUSSION                                     For purposes of this guideline--"Crime of violence" and
                                                                         "controlled substance offense" include the offenses of
  Pursuant to U.S.S.G. § 4B1.1:                                          aiding and abetting, conspiring, and attempting to
                                                                         commit such offenses.
  A defendant is a career offender if (1) the defendant was
  at least eighteen years old at the time the defendant                  "Crime of violence" includes murder, manslaughter,
  committed the instant offense of conviction; (2) the                   kidnaping, aggravated assault, forcible sex offenses,
  instant offense of conviction is a felony that is either a             robbery, arson, extortion, extortionate extension of
  crime of violence or a controlled substance offense; and               credit, and burglary of a dwelling. Other offenses are
  (3) the defendant has at least two prior felony convictions            included as "crimes of violence" if (A) that offense has
  of either a crime of violence or a controlled substance                as an element the use, attempted use, or threatened use of
  offense.                                                               physical force against the person of another, or (B) the
                                                                         conduct set forth (i.e., expressly charged) in the count of
U.S.S.G. § 4B1.1(a).                                                     which the defendant was convicted involved use of
                                                                         explosives (including any explosive material or
   Defendant does not dispute that the offense of conviction is          destructive device) or, by its nature, presented a serious
a felony committed after he attained the age of eighteen. He             potential risk of physical injury to another.
agrees also that his 1998 conviction for felonious assault
qualifies as a violent crime. Defendant’s contention is that         U.S.S.G. § 4B1.2 (application note 1) (emphasis added).
neither his conviction for attempting to disarm a police officer
nor his conviction for resisting and obstructing an officer          A. Michigan Compiled Laws § 750.479b(2): Attempted
qualify as a “crime of violence” for purposes of § 4B1.1(a).              Taking of a Firearm from a Peace Officer
  The Guidelines define a “crime of violence” as:                      No panel of this Circuit has previously decided whether a
                                                                     conviction for attempting to disarm a police officer, Mich.
  any offense under federal or state law, punishable by              Comp. Laws § 750.479b(2), is a “crime of violence” under
  imprisonment for a term exceeding one year, that--                 the Guidelines. To examine this question, a “categorical
                                                                     approach” is used. See United States v. Harris, 165 F.3d
  (1) has as an element the use, attempted use, or                   1062, 1068 (6th Cir. 1999); see also United States v. Arnold,
  threatened use of physical force against the person of             58 F.3d 1117, 1121 (6th Cir. 1995) (citing as analogous
  another, or                                                        Taylor v. United States, 495 U.S. 575 (1990)). Under this
                                                                     approach, the facts and circumstances underlying the
  (2) is burglary of a dwelling, arson, or extortion, involves       defendant’s felony conviction are generally of no
  use of explosives, or otherwise involves conduct that              consequence, and a court does no more than examine the
  presents a serious potential risk of physical injury to            definition of the crime provided by the state legislature. See
  another.                                                           Arnold, 58 F.3d at 1121 (“[T]he categorical approach avoids
U.S.S.G. § 4B1.2(a) (emphasis added). The application notes          the impracticability and unfairness of allowing a sentencing
further clarify the definition:                                      court to engage in a broad factfinding inquiry relating to a
                                                                     defendant’s prior offenses.”). If the court were not convinced,
No. 03-1654                    United States v. Herrera        7   8      United States v. Herrera                     No. 03-1654

however, that the statutory formulation of the offense                 (d) The peace officer or corrections officer is authorized
encompassed conduct that posed a serious potential of                  by his or her employer to carry the firearm in the line of
physical injury, it could examine the indictment for the               duty.
specific conduct charged. See United States v. Arnold,
58 F.3d 1117, 1123 (6th Cir. 1995).                                Mich. Comp. Laws § 750.479b(2).

   In examining the criminal statute, the court should not think      Defendant first focuses on the word “serious” in the phrase
only of the hypothetically possible but unusual conduct that       “presents a serious potential risk of physical injury to
might constitute an offense thereunder, but rather should          another,” U.S.S.G. § 4B1.2(a)(1), and argues that there is not,
focus on the ordinary way that conduct would violate the           inherent in the disarming statute, a risk of serious injury. We
statute. See United States v. Campbell, 256 F.3d 381, 396 (6th     note, however, that the adjectives “serious” and “potential”
Cir. 2001) (“In deciding whether the statutory crime               both modify the word “risk,” not “injury.” Actual physical
constitutes a ‘crime of violence,’ we examine ‘the typical run     injury need not be certain upon the commission of the
of conduct,’ for this sort of offense.”).                          offense. There need only be a risk of injury for which there
                                                                   is a serious potential in order to satisfy the Guideline. We
   The parties do not dispute that the offense of attempting to    find that an affront to a police officer’s authority in the way
disarm a police officer is not enumerated as a crime of            contemplated in the statute presents not only a potential, but
violence under the Guidelines and does not include the use,        also a serious risk.
attempted use, or threatened use of physical force as a
necessary element. Rather, their argument centers on the             The statute quite unmistakably contemplates a scenario in
third method for identifying a crime of violence--whether the      which the firearm is taken from a police officer. Before
offense involves a “serious potential risk of physical injury to   setting out the elements of the offense, the opening sentence
another.” U.S.S.G. 4B1.2(a)(2).                                    of the statute states that the statute is designed to punish “[a]n
                                                                   individual who takes a firearm from the lawful possession of
  The elements of Michigan Compiled Laws § 750.479b(2),            a peace officer or a corrections officer.” Mich. Comp. Laws
disarming a police officer, are:                                   § 750.479b(2). Further, the elements require the firearm be
                                                                   taken while the officer is performing his duties by a person
  (a) The individual knows or has reason to believe the            who “believe[s] the person from whom the firearm is taken is
  person from whom the firearm is taken is a peace officer         a peace officer.” Id. (emphasis added); see also People v.
  or a corrections officer.                                        Cooks, No. 210025, 2000 WL 33521057, *2 (Mich. Ct. App.
                                                                   Mar. 24, 2000) (“[T]he disarming an officer statute is
  (b) The peace officer or corrections officer is performing       intended to prevent someone from attempting to and/or
  his or her duties as a peace officer or a corrections            gaining access to an officer's firearm, thereby causing injury
  officer.                                                         to the officer.”).
  (c) The individual takes the firearm without consent of            In almost all circumstances, an officer will have his firearm
  the peace officer or corrections officer.                        on his person or in the close vicinity when performing his
                                                                   official duties. It is obvious that a perpetrator’s attempt to
                                                                   gain possession of an officer’s weapon creates a situation
No. 03-1654                     United States v. Herrera        9   10    United States v. Herrera                     No. 03-1654

where there is not only a serious potential risk of physical          serious potential risk that injury will result when officers
injury, but most likely an extremely heightened risk of serious       find the defendant and attempt to place him in custody.
or even deadly injury. An officer will try to repel the attempt,
which would create a risk of injury to the suspect and could        United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)
also endanger anyone in the area. Further, the officer may be       (internal citations omitted). Similarly, in the typical case, a
injured in the scuffle that ensues, especially if the suspect       person attempting to disarm an officer is fueled by adrenaline
actually dispossesses the officer of his gun.               The     rather than reason and may act with further violence when the
government’s review of Michigan case law involving attacks          officer steps up his effort to maintain control of the situation
against officers amply demonstrates the kind of risks               and his firearm.
involved. See, e.g., People v. Williams, No. 228730, 2002
WL 31424779, *2 (Mich. Ct. App. Oct. 29, 2002) (“violent,             Analogous holdings of this and our sister circuits support
violent, lengthy struggle” between two officers and suspect);       a finding that the offense of attempting to disarm a police
People v. Pope, No. 204645, 1999 WL 33453383, *1 (Mich.             officer qualifies as a crime of violence. In United States v.
Ct. App. Mar. 23, 1999) (“During the execution of the               Payne, 163 F.3d 371 (6th Cir. 1998), we held that the offense
warrant, defendant attempted to flee. When caught by an             of larceny from the person, Mich. Comp. Laws § 750.357,
officer, defendant struggled. He managed to disarm the              was a crime of violence. We concluded that because the
officer and shoot the officer before being shot himself.”).         offense required the property be taken from the possession of
                                                                    the victim or from within the immediate presence or area of
   The district court noted that a police officer “is going to      control of the victim, larceny from the person “clearly
fiercely resist any effort” to seize the weapon. The court said     [presented] the type of situation that could result in violence.”
further that “[t]his creates a scenario rife with opportunity for   Payne, 163 F.3d at 375. We stated,
injury and death to people involved and anyone around,
which makes the potential for violence an inherent aspect of          Any person falling victim to a crime involving such an
the offense.” We agree.                                               invasion of personal space would likely resist or defend
                                                                      in a manner that could lead to immediate violence.
  The Tenth Circuit, examining a statute governing jail               Whether or not violence or harm actually results in any
escapes, said that                                                    given instance is not relevant. We agree with the First
                                                                      Circuit that “although larceny from the person 'typically
  every escape scenario is a powder keg, which may or                 involves no threat of violence,' the risk of ensuing
  may not explode into violence and result in physical                struggle is omnipresent."
  injury to someone at any given time, but which always
  has the serious potential to do so . . . . A defendant who        Id. (citing United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.
  escapes from a jail is likely to possess a variety of             1993)).
  supercharged emotions, and in evading those trying to
  recapture him, may feel threatened by police officers,               Defendant argues that, because officers are trained to
  ordinary citizens, or even fellow escapees.                       handle dangerous situations, the offense of disarming an
  Consequently, violence could erupt at any time. Indeed,           officer is less dangerous than larceny from the person. We
  even in a case where a defendant escapes from a jail by           emphatically disagree and note that attempted disarming
  stealth and injures no one in the process, there is still a       situations are in fact more fraught with danger because they
No. 03-1654                     United States v. Herrera      11   12    United States v. Herrera                     No. 03-1654

always involve inherently dangerous instrumentalities.                The reasoning of United States v. Kaplansky, 42 F.3d 320
Further, the typical motive of a person who attempts to            (6th Cir. 1994), further supports our finding that an attempt to
disarm a police officer is markedly different from the likely      disarm an officer is a crime of violence. In Kaplansky, we
motive of a person who commits larceny from the person.            held that even kidnaping by deception constituted a crime of
The perpetrator who tries to gain possession of an officer’s       violence, in part because the victim might realize what was
gun is not ordinarily a mere thief, trying to make off with the    happening and resist. Id. at 324. Similarly, even if a suspect
firearm, but more often is trying to gain a tactical advantage     merely takes a firearm from an officer’s constructive
over the officer in a confrontational situation. The potential     possession without contact (i.e., not from the officer’s
risk of physical injury is plainly greater than a larceny from     physical person), the officer may notice such threatening
the person scenario.                                               behavior and respond with force. Although it is true that the
                                                                   elements of the offense do not require physical violence or
  In another analogous case, the First Circuit held that assault   force, as a practical matter force and a consequential serious
and battery upon a police officer, even the non-violent variety    risk of physical injury is typically likely to accompany such
as proscribed by Massachusetts law, constituted a crime of         an offense.
violence. See United States v. Fernandez, 121 F.3d 777 (1st
Cir. 1997). The court stated:                                        We also reject Defendant’s argument that an attempt to
                                                                   disarm a police officer involves a less serious potential risk of
  It would seem self-evident that assault and battery upon         injury than a completed crime of the same. Once a person
  a police officer usually involves force against another,         endeavors to take an officer’s firearm without consent while
  and so meets that standard. At a minimum, assault and            that officer is performing his or her duties, any risk of injury
  battery upon a police officer requires purposeful and            that arises remains present whether the assailant is successful
  unwelcomed contact with a person the defendant knows             in obtaining the gun or not. We understand that if the person
  to be a law enforcement officer actually engaged in the          does succeed in gaining possession of the officer’s gun,
  performance of official duties. While it is true that            especially in the presence of the officer or directly from the
  neither violence, nor the use of force, is an essential          person of the officer, there is a greater likelihood that the risk
  element of the crime as statutorily defined, still, violence,    of harm will materialize in actual harm. Moreover, we
  the use of force, and a serious risk of physical harm are        understand that the officer would be placed in greater danger
  all likely to accompany an assault and battery upon a            because he would be more vulnerable without his firearm.
  police officer.                                                  These facts are nonetheless irrelevant to the court’s inquiry
                                                                   because a significant risk of such injury still exists even
Id. at 780. The court noted that the offense nearly always         during an uncompleted attempt to commit the offense. See
involves the intentional striking of an on-duty officer and thus   United States v. Roberts, 59 Fed.Appx. 86, No. 01-5230, 2003
“nearly always poses a serious risk of actual or potential         WL 343237, *4 (6th Cir. Feb. 12, 2003) (“First, we note that
physical force and the likelihood of physical injury--to the       § 4B1.2(a)(2), on its face, requires that the seriousness must
police officer initially, and to the perpetrator (and even the     reside in the risk, and not necessarily in the injury.”). We
public) subsequently, when the officer reacts or attempts to       believe that, more often than not, attempts to disarm officers
subdue the offender.” Id.                                          do not materialize into completed offenses because officers
                                                                   generally respond with some level of force (sometimes lethal)
                                                                   to repel their assailants. We reject the suggestion that the
No. 03-1654                     United States v. Herrera      13    14   United States v. Herrera                   No. 03-1654

likelihood of physical injury meaningfully diminishes (i.e.,          In this case, there are no due process implications for
enough to conclude that a “serious” potential risk no longer        Defendant’s guilty plea or eventual sentence. At the time he
exists) when a person merely attempts to disarm an officer but      entered his plea, Defendant acknowledged that he understood
fails to complete the task. The commentary to the Guidelines        the statutory maximum sentence and knew that the court
supports such a view. It states that crimes of violence             would use the Guidelines to make the final sentencing
“include the offenses of aiding and abetting, conspiring, and       determination. Moreover, the plea agreement states, “The
attempting to commit such offenses. U.S.S.G. 4B1.2                  defendant understands that, based on his criminal record, he
(application note 1) (emphasis added).                              may qualify as a ‘Career Offender’ under § 4B1.1 of the
                                                                    Guidelines and receive a higher sentence under the Guidelines
  Accordingly, we agree with the district court’s                   than if he did not have the same criminal record.” It is
determination that the offense as set forth in the disarming        apparent from the signed plea agreement that Defendant’s
statute inherently involves a serious potential risk of physical    plea was knowingly and intelligently offered. The notice in
injury, that it therefore constitutes a “crime of violence” under   the agreement gave Defendant “sufficient awareness of the
U.S.S.G. § 4B1.2 and that Defendant is a career offender.           relevant circumstances and likely consequences” of his plea.
                                                                    Brady v. United States, 397 U.S. 742, 748 (1970); see also
  The district court made clear in its holding that Defendant’s     United States v. Spires, 946 F.2d 896, No. 90-1864, 1991 WL
felonious assault conviction coupled with his attempt to            211281, *2 (6th Cir. Oct. 21, 1991) (“As long as a defendant
disarm an officer conviction was sufficient to satisfy the          knows, before he enters his plea, the maximum sentence he
career offender requirements in the guidelines. It was only         can receive, due process does not require the court to inform
“for the sake of completeness” that the district court analyzed     the defendant of the specific sentencing guideline range that
the resisting and obstructing conviction under Michigan             will be applied.”).
Compiled Laws § 750.479(a). We need not reach the issue of
whether this additional predicate crime also constitutes a             Further, Defendant was not denied due process at
crime of violence. We choose to avoid the question because,         sentencing because the district court provided him with
given the findings we have already made, any possible               reasonable notice that it was considering the enhancement and
disagreement with the district court’s conclusion on this point     provided Defendant with an opportunity to be heard on the
would be of no consequence.                                         issue. Oyler v. Boles, 368 U.S. 448, 452 (1962). Defendant
                                                                    received the presentence report, recommending that he be
                       B. Due Process                               sentenced as a career offender, almost six weeks prior to his
                                                                    sentencing hearing and he was able to fully litigate the issue
   Defendant finally argues that “there are Due Process             at his hearing. See United States v. Wilhite, 929 F.2d 702,
concerns” with his sentence because, if affirmed, it                No. 90-5931, 1991 WL 46512, *1 (6th Cir. Apr. 4, 1991)
retroactively expands the punishment that he faces without          (“Concerns for due process do not require that a criminal
notice prior to his plea. Further, he claims he would have          defendant be placed on advance notice of the application of a
sought a more favorable plea (e.g., the negotiation of a            career offender sentence under guideline 4B1.1, so long as the
statutory cap) if he had known he faced such a severe               defendant has, as he was in the instant case, been afforded an
sentence. We review this constitutional challenge de novo.          adequate opportunity to challenge the factual basis for
See United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir.            applying the enhancement.”).
1993).
No. 03-1654                   United States v. Herrera    15

                     CONCLUSION
  Defendant’s prior conviction for attempting to disarm a
police officer, Michigan Compiled Laws § 750.479b(2),
constitutes a crime of violence under U.S.S.G. § 4B1.2(a)(2).
Defendant’s constitutional rights were not violated when he
was classified as a career offender. The judgment of the
district court is AFFIRMED.
