                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT




                            No. 09-2916




                 UNITED STATES OF AMERICA

                                 v.

                     MALCOLM McMILLER,
                      also known as SHAKE

                        Malcolm McMiller,
                                      Appellant


           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                (D.C. Crim. No. 2-00-cr-00069-001)
                 District Judge: Hon. Alan N. Bloch


             Submitted Under Third Circuit LAR 34.1(a)
                          April 15, 2010

   Before: SLOVITER and HARDIMAN, Circuit Judges, and
                 POLLAK * , District Judge

                       (Filed: April 19, 2010)




       *
        Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
                                        OPINION


SLOVITER, Circuit Judge.

       Appellant Malcolm McMiller was arrested for false imprisonment and battery in

Georgia while serving a five-year term of supervised release after serving a prison

sentence for possession with intent to distribute crack cocaine. Upon learning of

McMiller’s arrest, the United States Probation Office in the Western District of

Pennsylvania, where he was convicted of his crack offense, notified the District Court

that it had reason to believe McMiller had violated a condition of his supervised release.

At the revocation hearing held in the Western District of Pennsylvania, McMiller denied

the allegations. The District Court found that McMiller had committed the offenses of

false imprisonment and battery, both in violation of Georgia law. The District Court also

found that the offense of false imprisonment under Georgia law was a “crime of

violence” and thus a Grade A violation under § 7B1.1 of the United States Sentencing

Guidelines. As a result, the District Court revoked McMiller’s supervised release and

sentenced him to a prison term of fifty-one months.

       McMiller contends that the District Court erred both in denominating false

imprisonment under Georgia law as a crime of violence and in holding that the evidence

supported the finding that he was guilty of that offense. McMiller also contends that the

District Court failed to employ a categorical approach and improperly considered his

conduct in deciding whether false imprisonment is a crime of violence. We are not

                                             2
persuaded.

                                 I. Factual Background

       After McMiller was released from prison, he moved to Georgia to reside with his

family. According to a police report, McMiller confronted his wife, Marlo McMiller

(“Marlo”), at her workplace about his suspicions of her infidelity. The police report

stated that McMiller refused to let Marlo leave her office, where he “spent the next hour

and fifteen minutes assaulting her by punching, kicking, spitting on, and choking her.”

Supp. App. at 2. The report also stated that thereafter McMiller “put [Marlo] in the car,

and they drove around as he continued to yell and hit her.” Supp. App. at 2. Eventually,

Marlo convinced McMiller to let her use the restroom at a public park and then used a

passerby’s mobile telephone to phone the police, at which point McMiller fled.

       McMiller was charged with false imprisonment and battery. The Probation Office

in the Western District of Pennsylvania then submitted a Petition on Supervised Release

notifying the District Court that it had reason to believe that McMiller had violated the

term of his supervised release requiring that he “shall not commit another federal, state, or

local crime.” Supp. App. at 1.

       At the revocation hearing, after McMiller denied the allegations that he had

physically abused his wife and kept her both in her office and in the car against her will,

the Government put on the testimony of the officer of the Columbus, Georgia, Police

Department who had come to Marlo’s assistance. The District Court concluded that



                                              3
McMiller “confined or detained [Marlo] without legal authority and in violation of her

personal liberty when . . . he locked the door to her office, not allowing her to leave, and

began punching and kicking her” and when “he took her in his automobile and continued

to verbally and physically assault her.” App. at 37b.

       The District Court further found that false imprisonment under Georgia law is a

“crime of violence,” reasoning that “false imprisonment otherwise involves conduct that

presents a serious potential risk of physical injury to another.” App. at 38b (citing

U.S.S.G. § 4B1.2(a)). In light of its finding, the District Court designated McMiller’s

violation of his supervised release conditions as “Grade A,” the most serious category of

violation under U.S.S.G. § 7B1.1. It revoked McMiller’s supervised release and

sentenced him to a term of imprisonment of fifty-one months, the lowest sentence under

the relevant Guidelines range. McMiller appeals.1

                                       II. Discussion

       McMiller states that we should “review de novo whether a particular crime

constitutes a ‘crime of violence.’” Appellant’s Br. at 2. The Government, on the other

hand, argues that because McMiller did not object to the District Court’s finding that false

imprisonment was a crime of violence, “it is McMiller’s burden to establish plain error.”




                    1
                      The District Court had jurisdiction to issue an order
             revoking McMiller’s term of supervised release under 18 U.S.C. §§
             3231 and 3583(e)(3). This court has jurisdiction to decide the
             appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(3).

                                              4
Appellee’s Br. at 3. We need not resolve this dispute because the District Court did not

err, much less plainly so, and our standard of review has no bearing on the outcome of

this appeal.

       McMiller argues that the District Court erred in holding that false imprisonment

under Georgia law is a crime of violence and therefore a Grade A violation of McMiller’s

supervised release conditions. Appellant’s Br. at 10. Under the Sentencing Guidelines,

the term “crime of violence” means:

       any offense under federal or state law, punishable by imprisonment for a
       term exceeding one year, that . . . (1) has as 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) (emphasis added); see also U.S.S.G. § 7B1.1 cmt. n.2 (explaining

that the definition of “crime of violence” for purposes of classifying violations of

supervised release conditions is coextensive with the meaning of that phrase as provided

in § 4B1.2). For our purposes today, we must focus on the portion of § 4B1.2(a)

italicized above, which has been denominated the “residual clause.” United States v.

Johnson, 587 F.3d 203, 207 (3d Cir. 2009) (citation omitted).

       “We generally use a categorical approach to classify a prior conviction.” Id. at 208

(citing Taylor v. United States, 495 U.S. 575, 600-02 (1990)). “Under that approach, a

court must ask ‘whether the elements of the offense are of the type that would justify its

inclusion within the residual [clause], without inquiring into the specific conduct of this

                                              5
particular offender.’” Id. (quoting James v. United States, 550 U.S. 192, 202 (2007))

(emphasis omitted). To determine whether a conviction under Georgia’s false

imprisonment statute categorically qualifies as a crime of violence, we begin by analyzing

the statutory text. Johnson, 587 F.3d at 208.

       The pertinent statutory definition of “False Imprisonment” is as follows:

       A person commits the offense of false imprisonment when, in violation of
       the personal liberty of another, he arrests, confines, or detains such person
       without legal authority.

Ga. Code Ann. § 16-5-41(a).

       Under the Supreme Court’s opinion in Begay v. United States, 128 S. Ct. 1581

(2008), a crime of violence typically requires purposeful conduct. See Johnson, 587 F.3d

at 214 (finding that “in light of the government’s representation that it does not seek to

define” convictions as crimes of violence “to the extent [they are] premised on reckless

conduct,” only purposeful, knowing conduct can suffice).

       Examination of the Georgia statute leads us to conclude that false imprisonment

under Georgia law does typically require purposeful conduct. The words “arrests,

confines, [and] detains” all imply knowing, intentional acts, rather than recklessness or

negligence. See Ga. Code Ann. § 16-5-41(a). Indeed, McMiller does not assert that

reckless or negligent conduct could render an individual guilty under Georgia’s false

imprisonment statute.

       At the next step under Begay, we must determine whether false imprisonment



                                                6
presents a serious potential risk of physical injury to someone other than the perpetrator.

See 128 S. Ct. at 1585. Again, we resolve that question in the affirmative. As the District

Court noted, “[w]hile the use of physical force is not an element of this crime, false

imprisonment . . . involves conduct that presents a serious potential risk of physical injury

to another [because] . . . [e]ven if [a] person is not held by force, there is a strong

likelihood that a person would use force to resist being held and physical injury would

ensue.” App. at 38b. Indeed, Georgia cases show that convictions under Georgia’s false

imprisonment statute involve scenarios in which the offense conduct poses a serious risk

of potential injury because, just as the District Court found, the victim often uses physical

force in an attempt to resist confinement. See Reynolds v. State, 497 S.E.2d 580, 583 (Ga.

Ct. App. 1998) (perpetrator induced victim to allow him into her car and then made

unwanted sexual advances toward her and impeded her egress from the car, which led the

victim to “fight[ ] to escape”). Moreover, most Georgia false imprisonment cases involve

far more violent and aggressive behavior. See, e.g., Pierce v. State, 687 S.E.2d 185, 190

(Ga. Ct. App. 2009) (defendant “grabbed the victim by the hair and dragged her from

room to room . . . while beating her”); Williams v. State, 670 S.E.2d 828, 832-33 (Ga. Ct.

App. 2008) (perpetrator raped victim in her home then forced her into a closet, threatened

to kill her if she did not stay in the closet, and tied the closet’s doors with a cord).

       However, the Begay Court clarified that not “every crime that ‘presents a serious

potential risk of physical injury to another’” qualifies as a crime of violence. 128 S. Ct. at



                                                7
1585 (citation and emphasis omitted). Rather, the crime must be “similar, in kind as well

as in degree of risk posed,” to the enumerated offenses. Id. Begay further explained that

an offense is similar in kind to the enumerated offenses if it “typically involve[s]

purposeful, ‘violent,’ and ‘aggressive’ conduct. . . .” Id. at 1586. For many of the

reasons stated above, we conclude that the typical false imprisonment conviction in

Georgia courts is based upon purposeful, violent, and aggressive conduct.

       McMiller argues that irrespective of whether false imprisonment under Georgia

law constitutes a crime of violence, the District Court “did not follow [the categorical

approach] when it specifically used the facts underlying the offense . . . .” Appellant’s

Br. at 17. We disagree. The “formal categorical approach” requires courts to look “‘only

to the statutory definition[ ] of the prior offense[ ]’ and [courts] may not ‘consider other

evidence’ . . . including, ‘the particular facts underlying [a] conviction[.]’” Singh v.

Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004) (quoting Taylor, 495 U.S. at 600).

       Here, the District Court found that false imprisonment is a crime of violence under

the Guidelines and it stated that it “must apply the formal categorical approach and look

only to the statutory definition of [McMiller’s] crime.” App. at 38b. It then analyzed the

Georgia statute, stating that “false imprisonment . . . involves conduct that presents a

serious potential risk of physical injury to another.” App. at 38b (citing U.S.S.G. §

4B1.2(a)). It cited opinions from other circuits in which offenses similar to Georgia’s

false imprisonment were held to be crimes of violence.



                                              8
       The District Court then stated that its “legal conclusion” – that false imprisonment

under Georgia law is a crime of violence – “is bolstered by the particular facts of this case

which establish that in the course of committing the offense of false imprisonment, the

defendant battered his wife causing substantial and visible physical injury.” App. at 39b.

Even assuming that such language regarding the underlying facts is inappropriate in a

categorical analysis, the Government is correct that it “must be read in context with the

district court’s earlier statements which . . . demonstrated its understanding of the

categorical approach.” Appellee’s Br. at 25.

       McMiller points out that he was arrested and charged but not convicted of false

imprisonment in Georgia, and argues that to find that an offense is a crime of violence

under the categorical approach, there must be an actual conviction of the offense. This

argument is unavailing.

       District courts may revoke supervised release based on no more than a

preponderance of the evidence that an offense was committed. See 18 U.S.C. §

3583(e)(3).2 In the context of revocation of supervised release, a finding by a



                    2
                       Although we have said that “the categorical approach
             requires that we first establish for which specific crimes [a
             defendant] was convicted.” United States v. Remoi, 404 F.3d 789,
             792 (3d Cir. 2005) (per curiam) (emphasis added), the Supreme
             Court decision which established that approach, Taylor, mentions
             no such requirement. Also, Remoi is distinguishable as that case
             arose in a context in which a conviction was required before the
             underlying offense could be analyzed under the categorical
             approach. 404 F.3d at 792.

                                               9
preponderance of the evidence that the defendant violated a state law that proscribes a

crime of violence is sufficient for purposes of the categorical approach.

       We reject McMiller’s argument that the District Court’s finding that he committed

false imprisonment under Georgia law was unsupported by the evidence adduced at the

revocation hearing. We review the District Court’s factual determinations in a revocation

hearing for clear error. United States v. Bladeston, 940 F.2d 877, 892 (3d Cir. 1991).

Although Marlo “testified . . . that during the argument her office door was closed

[but] . . . not lock[ed] [and that McMiller] did [not] prevent her from leaving,”

Appellant’s Br. at 11, at her interview by the Georgia police officer, she stated that “she

was held against her will for over an hour.” App. at 15b. At the preliminary hearing in

McMiller’s state court proceeding it was revealed that Marlo had reported to the officers

that McMiller “locked the door to the office not allowing her to leave” and that he “drove

around continually yelling and hitting her [for] . . . another 45 minutes. . . .” App. at 53b-

54b. Notwithstanding Marlo’s statement that she did not “want to be the reason that

[McMiller] goes to jail,” App. at 30b, the District Court did not abuse its discretion in

finding that McMiller “confined or detained [Marlo] without legal authority and in

violation of her personal liberty . . . .” App. at 37b.

                                       III. Conclusion

       For the above-stated reasons, we will affirm the judgment and sentence of the

District Court.


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