                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0259a.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 08-1783
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 KYLE DWAYNE MOSLEY,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
             No. 08-00009-001—Robert Holmes Bell, District Judge.
                                 Argued: April 21, 2009
                            Decided and Filed: July 23, 2009
         Before: BOGGS, Chief Judge; MOORE and SUTTON, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Richard D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand
Rapids, Michigan, for Appellant. Christopher M. O’Connor, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard D.
Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for
Appellant. Christopher M. O’Connor, ASSISTANT UNITED STATES ATTORNEY,
Grand Rapids, Michigan, for Appellee.
                              ________________________

                                 AMENDED OPINION
                              ________________________

        SUTTON, Circuit Judge. At stake in this appeal is whether Kyle Mosley’s state-law
conviction for resisting and obstructing a police officer, Mich. Comp. Laws § 750.81d(1),
is a crime of violence under the sentencing guidelines. We hold that it is not.




                                             1
No. 08-1783          United States v. Mosley                                            Page 2


                                               I.

        In 2008, Mosley pleaded guilty to being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). The district court calculated a guidelines range of 77 to 96 months,
and it sentenced Mosley to 96 months. See U.S.S.G. Ch. 5 Pt. A.

        One feature of the calculation bears on this appeal. The district court increased
Mosley’s base-offense level in part because he had committed a prior “crime of violence.”
U.S.S.G. § 2K2.1(a)(3); see also id. § 4B1.2. Over Mosley’s objection, the court determined
that his prior conviction for resisting and obstructing a police officer under Michigan law
constituted a crime of violence.

                                               II.

        The sentencing guidelines define a “crime of violence” as a felony that (1) “has as
an element the use, attempted use, or threatened use of physical force against the person of
another,” or (2)(a) “is burglary of a dwelling, arson, or extortion, involves use of explosives”
or (b) “otherwise involves conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.2(a); see also 18 U.S.C. § 924(e)(1).

        Michigan law defines the offense for which Mosley was convicted as applying to an
individual who “assaults, batters, wounds, resists, obstructs, opposes, or endangers a person
whom the individual knows or has reason to know is performing his or her duties.” Mich.
Comp. Laws § 750.81d(1) (emphasis added). The statute defines “obstruct[ing]” as “the use
or threatened use of physical interference or force or a knowing failure to comply with a
lawful command.” Id. § 750.81d(7)(a) (emphasis added).

        The first question is whether this state-law offense contains a use-of-physical-force
element. It does not. An individual may violate the statute by committing any one of several
prohibited actions, and at least one of the prohibited actions does not involve the
use—attempted, threatened or real—of physical force. Under Michigan law, an individual
“obstructs” an officer if he “knowing[ly] fail[s] to comply with a lawful command,” id.
§ 750.81d(7)(a), which he may do without attempting or threatening to use force. See, e.g.,
People v. Chapo, No. 281172, __N.W.2d__, 2009 WL 1011172 (Mich. Ct. App. April 14,
2009) (officer had probable cause to arrest defendant for violating § 750.81d when defendant
No. 08-1783          United States v. Mosley                                             Page 3


“refused to comply with an order to exit the vehicle”); People v. Tice, No. 256736, 2006 WL
198530, at *4 (Mich. Ct. App. Jan. 26, 2006) (defendant violated § 750.81d “by repeatedly
reentering the crime scene after being instructed to stay out of it”).

        People v. Vasquez, 631 N.W.2d 711 (Mich. 2001), is not to the contrary. It held that
“obstruct[ing]”—as used in a different statute and as undefined in that statute—included
“threaten[ing], either expressly or impliedly, physical interference and actual physical
interference with a police officer.” Id. at 721. A court or a legislature, as an original matter,
might well choose to define “obstruct” in this manner. But that is not how the Michigan
legislature chose to define it in this statute, where it expressly contains the option of a
“knowing failure to comply.” A later revision to the statute confirms the point. In 2002, in
response to Vasquez, the Michigan Legislature enacted § 750.81d(1) and amended the
provision at issue in Vasquez to include the “knowing failure to comply” language. See Tice,
2006 WL 198530, at *4; Mich. Comp. Laws § 750.479. As it stands, § 750.81d(7)(a)
incorporates both the definition of obstruction announced in Vasquez and “a knowing failure
to comply.” Vasquez does not help the government.

        The second question is whether this state-law offense appears in U.S.S.G.
§ 4B1.2(a)’s list of covered crimes. It does not. Resisting or obstructing a police officer is
not burglary of a home, arson or extortion, and it does not involve explosives.

        The third question, as is often true in crime-of-violence cases, is the key one: Did
Mosley’s state-law conviction “otherwise involve[] conduct that presents a serious potential
risk of physical injury to another”? Not in our view.

        An offense is a crime of violence under the clause if it is “similar, in kind as well as
in degree of risk posed,” to the enumerated offenses. Begay v. United States, __U.S.__, 128
S. Ct. 1581, 1585 (2008). A sentencing court thus needs to establish both requirements to
find that an offense qualifies—that the prior crime is alike in its risk of physical injury to
others and alike in the “purposeful, violent, and aggressive” nature of the conduct. Id. at
1586; Chambers v. United States, __U.S.__, 129 S. Ct. 687, 691–92 (2009); United States
v. Ford, 560 F.3d 420, 421–22 (6th Cir. 2009). In gauging whether an offense satisfies these
requirements, we start with a “categorical” approach—classifying the state-law crime,
determining whether that definition of the crime satisfies these requirements and ignoring
No. 08-1783          United States v. Mosley                                            Page 4


the actual conduct underlying the conviction. Taylor v. United States, 495 U.S. 575, 602
(1990); Ford, 560 F.3d at 421–22. If it is possible to violate the state law in a way that
amounts to a crime of violence and in a way that does not, we may consider the indictment,
the plea agreement, the plea colloquy or “comparable judicial record[s]” to determine
whether the individual’s actual conduct “necessarily” establishes the nature of the offense.
Shepard v. United States, 544 U.S. 13, 26 (2005); Ford, 560 F.3d at 422.

        Often the key analytical move in the case happens at the first step: deciding whether
the state-law definition of the offense involves just one category or two or more categories
of crimes. Just because a state legislature chooses to place a variety of proscribed acts in one
statute (or even one subsection of a statute) does not mean that all of the listed acts must be
classified as one category of offense for purposes of defining a “crime of violence” under
federal law. The “categorical approach requires courts to choose the right category,” as the
Supreme Court recently clarified, and sometimes that choice requires the federal courts to
draw distinctions that the state law on its face does not draw. Chambers, 129 S. Ct. at 690.
A single state law, for example, may proscribe burglary of a building and burglary of a
vehicle. Yet the federal courts must treat “the two” offenses “as different crimes” because
they “differ[] so significantly” from each other, even though they happen to appear in the
same statute. Id.; see also Shepard, 544 U.S. at 16–17. In Chambers, the Court found it
necessary to treat a single escape statute under Illinois law as involving at least two
categories of crimes because there were at least two ways to distinguish the proscribed
conduct. Id. at 691. In the aftermath of Chambers, we recently did the same thing in
interpreting a similar Kentucky escape statute. Ford, 560 F.3d at 423–24.

        In this instance, the Michigan law contains at least one obvious fault line. The
offense not only covers an individual who “assaults, batters, [or] wounds” a law enforcement
officer, but it also covers an individual who “obstructs” an officer, Mich. Comp. Laws
§ 750.81d(1), which includes “a knowing failure to comply with a lawful command,” id.
§ 750.81d(7)(a). An “assault[]” of an officer and a “knowing failure to comply” with an
officer’s lawful command, it seems to us, involve “behavior” that “differs so significantly”
that they must be treated “as different crimes.” Chambers, 129 S. Ct. at 690. Just as the
failure-to-report offense at issue in Chambers differed materially from traditional escape
offenses, so do these two crimes. “The behavior that likely underlies a [failure to comply
No. 08-1783          United States v. Mosley                                            Page 5


with a lawful command] would seem less likely to involve a risk of physical harm than the
less passive, more aggressive behavior underlying an [assault].” Id. at 691.

        To decide this case, we need not determine whether this Michigan law can be—or
should be—divided still further. For now, it suffices to conclude that the law contains at
least two categories—those violations, on the one hand, involving an individual who
physically injures an officer because he “assaults, batters, [or] wounds” the officer, and
those, on the other hand, involving an individual who “obstructs” an officer through “a
knowing failure to comply with a lawful command,” Mich. Comp. Laws § 750.81d(1),
(7)(a); see United States v. Almenas, 553 F.3d 27, 33–34 (1st Cir. 2009) (holding that “using
or threatening to use physical force or violence against [a] police officer or another” and
“using any other means which creates a substantial risk of causing bodily injury to such
police officer or another” were crimes of violence).

        Having determined that a “knowing failure to comply with a lawful command”
conviction represents a distinct offense under Chambers, we can quickly conclude that it is
not a crime of violence under the “otherwise” clause. The offense, for one, does not involve
comparable “purposeful, violent, and aggressive” conduct. Begay, 128 S. Ct. at 1586. Even
though the offense involves conduct that often will be “purposeful,” “nothing in the statute
. . . requires the offense to involve . . . violence or . . . aggressiveness.” Ford, 560 F.3d at
423. All the individual must do is know about an officer’s lawful order and fail to obey it,
no matter the nature of the order, no matter the circumstances. A knowing failure to comply
with a lawful command—say, by refusing to produce information, by ignoring an officer’s
command not to cross the street or by failing to stay put at an accident scene—is no more
aggressive and violent than walking away from custody, id., drunk driving, Begay, 128 S.
Ct. at 1588, or a failure to report to prison, Chambers, 129 S. Ct. at 691–93. If these
offenses are not crimes of violence, neither is this one.

        Nor, for similar reasons, does the offense entail the same degree of risk of physical
injury to other individuals as the enumerated offenses. No doubt, there may be settings
where an individual’s failure to follow an officer’s lawful command poses such risks. But
we have no basis in this record—empirical or otherwise—for concluding that the typical
violation would create such a danger.
No. 08-1783         United States v. Mosley                                           Page 6


        In deciding that a “knowing failure to comply with a lawful command” is a crime of
violence under the categorical approach, the district court did not have the benefit of
Chambers. What the court did have the benefit of—an unpublished decision from this court,
see United States v. Merchant, 288 F. App’x 261, 263–64 (6th Cir. 2008)—did not help
matters because that decision held that convictions under this Michigan law qualified as
crimes of violence. See also United States v. Bass, 274 F. App’x 443 (6th Cir. 2008). In
Merchant, the panel did not consider whether the law could be treated as involving more
than one category of offense—indeed, it is not even clear that the point was
argued—presumably because the panel did not have the benefit of Chambers. Instead,
invoking an approach premised on the Supreme Court’s earlier decision in James v. United
States, 550 U.S. 192 (2007), the panel viewed the statute as a whole and considered whether
violations of the statute in the main were likely to share the same risk-of-physical-harm and
violent-kind-of-crime qualities as the listed crimes. Chambers changes the landscape. It is
now clear that, before we examine the ordinary behavior underlying a conviction under the
statute, we must decide at the outset how to classify violations, and most significantly we
must decide whether the statute should be treated as involving more than one category of
offense for federal crimes-of-violence purposes. In the aftermath of Chambers, a “knowing
failure to comply with a lawful command” of a police officer simply is not a crime of
violence.

        To recap, we know that Mich. Comp. Laws § 750.81d(1) contains at least two
categories of crimes, and that at least one of those categories, “obstruct[ing]” based on a
“knowing failure to comply with a lawful command,” is not a crime of violence. We also
know that Mosley’s conviction was for a violation of that statute, but we do not know which
category his offense falls into. Treating the offense as “containing at least two separate
crimes” for purposes of determining the nature of a prior conviction, Chambers, 129 S. Ct.
at 691, means that we cannot classify Mosley’s prior conviction and, at least at the
categorical step of the inquiry, it cannot qualify as a crime of violence.

        All of this, however, does not necessarily bring the case to an end. Because the
district court resolved this matter at the categorical stage under Taylor, the government has
not had an opportunity to show whether the indictment, the plea agreement, the plea
colloquy or “comparable judicial record[s]” show that Mosley “necessarily admitted”
No. 08-1783         United States v. Mosley                                           Page 7


committing a crime of violence. Shepard, 544 U.S. at 26. It may, for example, turn out that
he was convicted for “assault[ing]” an officer, not for failing to comply with an officer’s
lawful command. Any such Shepard documents are not before us, and the district court at
any rate has not had an opportunity to pass on the issue in the first instance. Much the same
is true of the government’s alternative argument that another one of Mosley’s prior
convictions—his conviction for use of a self-defense spray, see Mich. Comp. Laws
§ 750.224d(2)—amounts to a crime of violence. The district court should be given an
opportunity to consider this argument in the first instance as well.

                                              III.

        For these reasons, we vacate Mosley’s sentence and remand for resentencing.
