               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0341n.06

                                          No. 14-1423

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              May 07, 2015
UNITED STATES OF AMERICA,                             )                   DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE WESTERN DISTRICT OF
DAVID LOUIS LEE, aka Doodlebug,                       )   MICHIGAN
                                                      )
       Defendant-Appellant.                           )



       BEFORE: BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.


       PER CURIAM. David Louis Lee, a federal prisoner, appeals the 140-month sentence

imposed following his guilty plea to a charge of conspiracy to possess with intent to distribute

cocaine base. 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846. We affirm.

                                               I.

       The Presentence Report (PSR) calculated Lee’s guidelines range at 262 to 327 months

(total offense level 34 and criminal-history category VI), recommended a 262-month sentence,

and noted the statutory minimum sentence of 120 months. The PSR designated Lee as a career

offender, which also placed him in a criminal-history category VI. U.S.S.G. § 4B1.1(b) (“A

career offender’s criminal history category in every case under this subsection shall be Category

VI.”). At sentencing, the district court granted the government’s motion to reduce Lee’s offense

level by six levels based on substantial assistance, U.S.S.G. § 5K1.1, which resulted in a

guidelines range of 140 to 175 months. Defense counsel urged the court to sentence Lee to the
No. 14-1423
United States v. Lee

statutory minimum of 120 months’ imprisonment; however the court sentenced Lee at the

bottom of the range, to 140 months of imprisonment. On appeal, Lee argues that his prior

Michigan conviction of arson of personal property over fifty dollars, Mich. Comp. Laws Ann.

§ 750.74 (West 1991), was not a crime of violence that rendered him subject to the career

offender enhancement.

                                                II.

       A determination that a prior conviction is a crime of violence under the career offender

guidelines is reviewed de novo. United States v. Rede-Mendez, 680 F.3d 552, 555 (6th Cir.

2012). A “crime of violence”

       means any offense under federal or state law, punishable by imprisonment for a
       term exceeding one year, that – (1) has an element the use, attempted use, or
       threatened use of physical force against the person of another, or (2) is burglary of
       a dwelling, arson, or extortion, involves use of explosives, or otherwise involves
       conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

       The Michigan arson statute in effect when Lee pleaded guilty and was sentenced required

the state to prove that he willfully and maliciously burned personal property (his own or that of

another) worth over fifty dollars:

       Burning of personal property – Any person who wilfully and maliciously burns
       any personal property . . . owned by himself or another . . . . [i]f the value of the
       personal property burned or intended to be so burned . . . . be more than $50.00,
       such person shall be guilty of a felony.

Mich. Comp. Laws Ann. § 750.74 (West 1991); PID 508-09.

       The issue is whether Lee’s conviction under this statute constituted generic arson. The

generic definition of a crime “is found by surveying how the crime is described across

jurisdictions, as well as consulting sources such as the Model Penal Code.” United States v.

Rede-Mendez, 680 F.3d 552, 556 (6th Cir. 2012); see also United States v. Velez-Alderete,

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United States v. Lee

569 F.3d 541, 544–45 (5th Cir. 2009) (where the defendant argued that under the common law

and the Model Penal Code the definition of arson involves an explicit risk of harm to a person,

not merely property, and that the generic meaning of arson covers property likely to be occupied,

the court rejected that argument because it “ignores the consensus among state statutes that

defines contemporary arson as involving the malicious burning of property, personal or real,

without requiring that the burning threaten harm to a person.”).

        There is no published decision on point, but in United States v. Miller, 246 F. App’x 369,

371–72 (6th Cir. 2007) (unpublished), we held that Tennessee’s crime of arson of personal

property is a violent felony under the Armed Career Criminal Act, which equates to a crime of

violence under the guidelines, United States v. Young, 580 F.3d 373, 379 n.5 (6th Cir. 2009).

Similar to the Michigan statute at issue, the Tennessee arson-of-personal-property statute in

Miller proscribed knowingly burning and damaging any personal property, except buildings or

structures, without the consent of the owner(s) or with the intent to destroy or damage the

property. Tenn. Code. Ann. § 39-14-303.1                 (Emphasis added).        Miller concluded that the

defendant was convicted under a “generic” state arson statute:

        Under Tennessee law, there is no question that Miller pled guilty to a crime of
        “arson.” The widely accepted “generic” definition of arson thus includes the
        knowing burning of personal property without consent or with unlawful intent.

246 F. App’x at 372. The court thus did not reach the question whether Miller’s conviction fell

within the ACCA’s “residual clause” because involving conduct that presents a serious potential

risk of physical injury to another. Id.




1
  Section 39-14-303 provides in pertinent part: “A person commits arson who knowingly damages any personal
property . . . by means of a fire or explosion: (1) Without the consent of all persons who have a possessory or
proprietary interest therein; or (2) With intent to destroy or damage any such property for any unlawful purpose.”

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United States v. Lee

         Similar to the defendant’s argument in Miller, Lee’s argument is that his 1998 conviction

of arson of an automobile was not a crime of violence because it did not involve a serious

potential risk of physical injury. He cites United States v. Cooper, 739 F.3d 873, 879 (6th Cir.),

cert. denied, 134 S. Ct. 1910 (2014), for the proposition that an offense is not a crime of violence

just simply because it has the same name as one of the offenses enumerated in U.S.S.G.§

4B1.2(a)(2) and the court must determine whether the offense fits the generic definition of the

listed crime. That is correct, but we agree with Miller, supra, that the willful and malicious

burning of any personal property is covered by the generic definition of arson. See also United

States v. Gatson, 776 F.3d 405, 410 (6th Cir. 2015),2 (holding that arson conviction under Ohio

law qualified as “generic” arson for purposes of Armed Career Criminal Act, noting that “like

every other court to consider the question, we conclude that generic arson embraces the

intentional or malicious burning of any property.”); see also Velez-Alderete, 569 F.3d at 546

(citing Miller and observing that thirty-six states extend arson to personal property, noting “the

consensus among state statutes that defines contemporary arson as involving the malicious

burning of property, personal or real, without requiring that the burning threaten harm to a

person,” and that the federal arson statute “similarly extends to personal property without regard

to the possible harm to a person.”).

         Lee also argues that the Michigan statute he was convicted of violating contained an

additional element requiring the state to prove that he had a prior conviction. But Lee cites the

current Michigan arson statute, and not the one that applied in 1998, at the time he committed



2
  The government brought Gatson to our attention by supplemental authority letter filed February 17, 2015. The
Ohio arson statute in Gatson required the state to prove that a person knowingly caused, or created a substantial risk
of, physical harm to any property of another without the other person’s consent by “means of fire or explosion.”
Ohio Rev. Code § 2909.03. Gatson, like Lee, set fire to a car. Gatson, 776 F.3d 405, 410 (6th Cir. 2015).


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No. 14-1423
United States v. Lee

and pleaded no contest to the arson charge, which had no such element.3 See Mich. Comp. Laws

Ann. § 750.74 (West 1991). In any event, the addition of the prior conviction element does not

affect whether it qualifies as an enumerated offense.

        Because Lee’s arguments that his arson conviction was not a crime of violence for career-

offender purposes are without merit, we AFFIRM the district court’s judgment.




3
  Defendant’s confusion regarding which version of the Michigan arson statute applies to his arson conviction may
be due to the fact that the judgment entered in January 1999, after an amendment to the statute took effect.
However, Lee pleaded no contest to the arson charge on December 4, 1998, before the statute was amended
effective January 1, 1999. PID 511 (amended statute), 524-537 (plea hearing in Lake County Trial Court, criminal
division). The judgment of sentence itself states that Lee was found guilty on December 4, 1998 on a plea of no
contest. PID 540.

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