       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Martin                     No. 03-1855
    ELECTRONIC CITATION: 2004 FED App. 0249P (6th Cir.)
                File Name: 04a0249p.06                    Appellant. Andrew Byerly Birge, UNITED STATES
                                                          ATTORNEY, Grand Rapids, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

UNITED STATES OF AMERICA , X                                SUTTON, Circuit Judge. A federal grand jury indicted
                                                          Darrell Martin for possessing a firearm in violation of
           Plaintiff-Appellee, -                          18 U.S.C. §§ 922(g) and 924(a)(2), and he pleaded guilty to
                                 -
                                 -   No. 03-1855          the offense. Determining that the State of Michigan had
          v.                     -                        successfully prosecuted Martin for at least one prior “crime of
                                  >                       violence”—either third-degree fleeing and eluding or resisting
                                 ,                        and obstructing a police officer—the district court gave
DARRELL J. MART IN ,             -
         Defendant-Appellant. -                           Martin a base-offense level of 20 under § 2K2.1(a)(4)(A) of
                                                          the Sentencing Guidelines. Martin appeals his sentence,
                                N                         claiming that neither conviction constitutes a crime of
      Appeal from the United States District Court        violence. Concluding that third-degree fleeing and eluding
 for the Western District of Michigan at Grand Rapids.    under Michigan law is a crime of violence, we affirm.
    No. 03-00007—Gordon J. Quist, District Judge.
                                                                                         I.
                 Argued: June 16, 2004
                                                             On September 10, 2002, officers of the Muskegon,
           Decided and Filed: July 29, 2004               Michigan police department identified a stolen car and
                                                          proceeded to follow it. As the car rounded a corner, it slowed
 Before: SILER, DAUGHTREY, and SUTTON, Circuit            down and (before it had stopped) the two occupants of the car
                    Judges.                               jumped out of the moving car and fled. Police chased the
                                                          men but apprehended only one of them, whom they later
                  _________________                       identified as Darrell Martin. As the officers ordered Martin
                                                          to the ground, they noticed a handgun lying on the ground
                       COUNSEL                            five or six feet away. Martin acknowledged that he owned
                                                          the weapon, and the officers arrested Martin and placed him
ARGUED:     Paul L. Nelson, FEDERAL PUBLIC                in custody.
DEFENDERS OFFICE, Grand Rapids, Michigan, for
Appellant. Andrew Byerly Birge, UNITED STATES               On January 9, 2003, a grand jury indicted Martin for being
ATTORNEY, Grand Rapids, Michigan, for Appellee.           a felon in possession of a firearm in violation of 18 U.S.C.
ON BRIEF:     Paul L. Nelson, FEDERAL PUBLIC              §§ 922(g) and 924(a)(2). He pleaded guilty to the charge.
DEFENDERS OFFICE, Grand Rapids, Michigan, for

                            1
No. 03-1855                     United States v. Martin      3    4      United States v. Martin                     No. 03-1855

   In its presentence report, the Government recommended a        this instance, we need consider only whether Martin’s fleeing-
base-offense level of 20 under § 2K2.1(a)(4)(A) of the            and-eluding conviction qualifies.
Sentencing Guidelines. That provision says defendants who
violate certain firearms-related laws must receive a base-                                       A.
offense level of 20 if they committed the offense “subsequent
to sustaining one felony conviction of [] a crime of violence,”     Section 2K2.1(a)(4)(A) of the Sentencing Guidelines
as defined by § 4B1.2(a) of the Guidelines and its application    confers a base offense level of 20 on defendants convicted of
note 1. In the Government’s view, Martin previously had           offenses for “Unlawful Receipt, Possession, or Transportation
been convicted of two qualifying offenses: (1) “Resisting and     of Firearms or Ammunition; Prohibited Transactions
Obstructing a Police Officer” under Mich. Comp. Laws              Involving Firearms or Ammunition” if the defendant
§ 750.479 (as written prior to the 2002 amendments), and          “committed any part of the [] offense subsequent to sustaining
(2) “Fleeing and Eluding–3rd [degree]” under Mich. Comp.          one felony conviction of either a crime of violence or a
Laws § 750.479a(1) and (3). JA 68–69. Martin argued that          controlled substance offense.” The application notes to the
neither conviction constituted a “crime of violence” under the    provision refer the reader to § 4B1.2(a) and its accompanying
Guidelines and that his base-offense level should be 14, not      application note 1 for a definition of a “crime of violence.”
20.                                                               U.S.S.G. § 2K2.1 cmt. n.5. Under the definition provided in
                                                                  § 4B1.2(a), “crimes of violence” encompass
  The district court adopted the Government’s
recommendation. It then added a 2-level upward adjustment             any offense under federal or state law, punishable by
under U.S.S.G. § 2K2.1(b)(4) (possession of a stolen gun) and         imprisonment for a term exceeding one year, that--
a 3-level downward adjustment under U.S.S.G. § 3E1.1                  (1) has as an element the use, attempted use, or
(acceptance of responsibility), all of which generated an             threatened use of physical force against the person of
offense level of 19. Combining this offense level with his            another, or (2) is burglary of a dwelling, arson, or
criminal history category (V), the Sentencing Guidelines gave         extortion, involves use of explosives, or otherwise
Martin a sentencing range of 57 to 71 months, and the district        involves conduct that presents a serious potential risk of
court sentenced him to a 57-month prison term.                        physical injury to another.

                              II.                                 The accompanying application note expands the list of
                                                                  enumerated offenses to include “murder, manslaughter,
   Martin challenges his sentence on appeal, arguing that         kidnapping, aggravated assault, forcible sex offenses,
§ 2K2.1(a)(4)(A) does not apply because he had not been           robbery, arson, extortion, extortionate extension of credit, and
convicted of any “crimes of violence” at the time he              burglary of a dwelling” as “crimes of violence,” and reiterates
committed the § 922(g) offense. As the parties agree, we give     that other offenses also count as “crimes of violence” if
fresh review to the legal question whether either of Martin’s
convictions constitutes a “crime of violence.” See United             (A) that offense has as an element the use, attempted use,
States v. Bass, 315 F.3d 561, 564–65 (6th Cir. 2002). And as          or threatened use of physical force against the person of
the parties also agree, Martin’s sentence may be affirmed if          another, or (B) the conduct set forth (i.e., expressly
either the fleeing-and-eluding conviction or the resisting-and-       charged) in the count of which the defendant was
obstructing conviction amounts to a “crime of violence.” In           convicted involved use of explosives (including any
No. 03-1855                      United States v. Martin         5   6     United States v. Martin                       No. 03-1855

  explosive material or destructive device) or, by its nature,       the indictment for the specific conduct charged.”) (quotation
  presented a serious potential risk of physical injury to           omitted).
  another.
                                                                                                     B.
U.S.S.G. § 4B1.2 cmt. n.1. Because neither the Guideline nor
its application note names fleeing and eluding as a crime of            Martin’s presentence report indicates, and the parties agree,
violence, that offense must either (1) have “as an element the       that Martin pleaded guilty to fleeing and eluding in the third
use, attempted use, or threatened use of physical force against      degree in violation of Michigan Compiled Laws
the person of another” or (2) “present[] a serious potential risk    § 750.479a(1) and (3). That statute says that “[a] driver of a
of physical injury to another” to qualify. U.S.S.G. § 4B1.2(a)       motor vehicle who is given . . . [a] signal by a[n] officer . . .
& cmt. n.1.                                                          directing the driver to . . . stop shall not willfully fail to obey
                                                                     that direction by increasing the speed of the vehicle,
  In deciding whether an offense amounts to a “crime of              extinguishing the lights of the vehicle, or otherwise
violence” under these two tests, we have applied a                   attempting to flee or elude the . . . officer.” Mich. Comp.
“categorical approach,” which is to say we have looked at            Laws § 750.479a(1). A person commits the offense in the
“the fact of conviction and the statutory definition of the          third-degree if the violation “results in a collision or
predicate offense,” not the “underlying facts regarding the          accident,” if the violation “occurred in an area where the
offense,” to determine whether either test is satisfied. United      speed limit is 35 miles an hour or less” or if the defendant has
States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995); see            a previous conviction for actual or attempted fourth-degree
United States v. Champion, 248 F.3d 502, 505 (6th Cir. 2001)         fleeing and eluding or similar misconduct. Id. § 750.479a(3).
(applying categorical approach in determining whether an             The charging document—which is described in the
offense has as an element “the use, attempted use, or                presentence report (in language to which the defendant did
threatened use of physical force”); United States v. Payne,          not object)—says that Martin committed the third-degree
163 F.3d 371, 374 (6th Cir. 1998) (applying categorical              offense by causing “a collision or an accident” or by failing
approach in determining whether an offense entails “serious          to stop while in a 35-mile-per-hour zone, or both. JA 69.
potential risk of physical injury”); cf. Taylor v. United States,
495 U.S. 575, 602 (1990) (applying the same approach in                Because fleeing and eluding does not have as an element
determining whether an offense is a “violent felony” under           “the use, attempted use, or threatened use of physical force
the armed career criminal statute). If the relevant statute of       against the person of another,” the pertinent question is
conviction does not supply a clear answer to these inquiries,        whether the offense “otherwise involves conduct that presents
as Martin concedes, Appellant’s Br. at 16, the sentencing            a serious potential risk of physical injury to another.”
court may consult the indictment and either the jury                 U.S.S.G. § 4B1.2(a)(2). We believe that it does.
instructions or plea agreement for the specific conduct with
which the defendant was charged in order appropriately to               When a motorist disobeys an officer and flees in his car,
characterize the offense. See United States v. Kaplansky, 42         whether by “increasing [his] speed,” “extinguishing the
F.3d 320, 322 (6th Cir. 1994) (en banc); see also Bass, 315          [car’s] lights” or by “otherwise attempting to flee,” that
F.3d at 565 (“[W]hen it is not clear from the elements of the        person creates a conspicuous potential risk of injury to
offense alone whether the crime involved a serious risk of           pedestrians, vehicles sharing the road, passengers in the
potential injury to another, the sentencing court may review         fleeing car and the pursuing officer. See United States v.
No. 03-1855                       United States v. Martin       7    8    United States v. Martin                      No. 03-1855

Howze, 343 F.3d 919, 922 (7th Cir. 2003) (noting that with             Indeed, fleeing and eluding in most settings will pose a
the offense of flight, “[b]ystanders are in particular jeopardy”     greater risk of injury than escape. Howze, 343 F.3d at 922.
and “[c]ollisions between fleeing vehicles and pedestrians or        While an escape and fleeing alike involve the potential for
others who get in the way are common”). That Martin                  dangerous confrontation between the suspect and police
committed this offense either by causing a “collision or             officers, not all escapes involve flight and the inherent third-
accident,” Mich. Comp. Laws § 750.479a(3)(a), or by fleeing          party risks that such conduct entails. Id. Because fleeing and
in a 35-mile-per-hour zone (presumably a residential or              eluding an officer while in a car generally will present serious
school area), id. § 750.479a(3)(b), confirms the palpable risk       potential risks of physical injury to third parties—the only
of physical injury to others caused by flight under the statute.     relevant inquiry—it necessarily qualifies as a “crime of
                                                                     violence” under the Guidelines.
   At the same time that flight itself creates a risk of injury to
others, so too does the suspect’s eventual apprehension. By            To date, two courts of appeals have reached a comparable
making a deliberate choice to disobey a police officer, the          conclusion. See Howze, 343 F.3d at 921–22 (determining that
motorist provokes an inevitable, escalated confrontation with        the offense of fleeing from an officer under Wisconsin law
the officer. In this regard, fleeing and eluding resembles           presents a “serious potential risk of physical injury to
escape, see Howze, 343 F.3d at 921–22; United States v.              another,” relying in large part on the offense’s similarity to,
James, 337 F.3d 387, 391 n.4 (4th Cir. 2003), which nine             and even greater potential for danger than, an escape); James,
courts of appeals (including this one) have agreed constitutes       337 F.3d at 390–92 (same, South Carolina law). While
a “crime of violence” under the Guidelines, regardless of            Howze and James concluded that fleeing from an officer in a
whether the defendant forcefully escaped from a maximum              car “presents a serious potential risk of physical injury to
security prison or walked away from a halfway house. See             another” in the course of concluding that the offense is a
United States v. Thomas, 361 F.3d 653, 656 & n.4 (D.C. Cir.          “violent felony” under the armed career criminal statute,
2004) (citing cases); United States v. Harris, 165 F.3d 1062,        18 U.S.C. § 924(e), rather than a “crime of violence” under
1068 (6th Cir. 1999). Both escape and fleeing from a police          the Sentencing Guidelines, this difference in the predicate
officer represent “continuing offense[s],” Thomas, 361 F.3d          provisions does not alter our analysis. The relevant language
at 660, which heighten the emotions and adrenaline levels of         of the two provisions—“serious potential risk of physical
the parties involved, see United States v. Gosling, 39 F.3d          injury to another”—is the same. And this Court has held that
1140, 1142 (10th Cir. 1994) (attributing the risk of injury          the two provisions entail the same basic inquiry. See, e.g.,
inherent in escape at least partially to the “supercharged           Arnold, 58 F.3d at 1121.
emotions” involved in “evading those trying to recapture” the
suspect), and which generally end with a confrontation                 That the Michigan fleeing-and-eluding statute may “be
between the officer and the escapee or fleeing driver, Thomas,       violated by conduct that is passive, non-violent, and non-
361 F.3d at 660. Such a confrontation “inherently presents           threatening,” Appellant Br. at 17, does not demand a different
the serious potential risk of physical injury” because the           conclusion. The Guideline defines offenses presenting a
fleeing driver “intent on his goal” of eluding the officer “faces    “serious potential risk of physical injury” as crimes of
the decision of whether to dispel the [officer’s] interference       violence; it does not require that actual injury or violence
or yield to it.” United States v. Dickerson, 77 F.3d 774, 777        occur or even that the risk of injury materialize in a given
(4th Cir. 1996).                                                     case. See United States v. Winn, 364 F.3d 7, 11 (1st Cir.
                                                                     2004) (“It is irrelevant whether the [crime of violence]
No. 03-1855                       United States v. Martin       9    10   United States v. Martin                      No. 03-1855

actually involved any violence.”) (quotation omitted); Payne,        and non-violent crime, courts may look to the “nature and
163 F.3d at 375 (noting that “under the categorical approach”        object of the [] activity as described in the indictment and
it is not relevant whether a “physical injury actually occurred      fleshed out in the jury instructions”). In this instance,
in the case at bar”); Gosling, 39 F.3d at 1142 (acknowledging        Martin’s indictment under the statute charged him with
that escape “may or may not explode into violence and result         fleeing that caused an accident, or fleeing in a 35-mile-per-
in physical injury” but “always has the serious potential to do      hour zone, or both.
so”). To require crimes of violence in all fact patterns to lead
to a violent or harmful end not only would ignore our                   Because the language of the Guideline is clear—that
categorical approach to this inquiry, but it also would read the     “potential” risk of injury rather than actual violence or injury
“serious potential risk of physical injury” language out of the      is the touchstone of a violent crime—Martin’s appeal to the
Guideline. See U.S.S.G. § 4B1.2(a)(2); Thomas, 361 F.3d at           rule of lenity does not add traction to his argument. See
658–59.                                                              United States v. Boucha, 236 F.3d 768, 774 (6th Cir. 2001)
                                                                     (noting that lenity applies if ambiguity remains after
   Nor does it make a difference that Martin could have              considering the plain language and structure of the statute).
violated the statute by committing a prior violation of fourth-      Nor, at all events, is the rule of lenity the only safety valve
degree fleeing and eluding instead of causing an accident or         available. Had the district court believed that the calculation
fleeing in a 35-mile-per-hour zone. See Mich. Comp. Laws             of Martin’s criminal history category under the Guidelines
§ 750.479a(3) (stating that a defendant commits third-degree         resulted in an inequitable sentence, § 4A1.3 would have
fleeing and eluding if (1) “[t]he violation results in a collision   permitted a downward adjustment. The court, however,
or accident,” (2) “[a] portion of the violation occurred in an       considered and rejected that option.
area where the speed limit is 35 miles an hour or less” or
(3) “[t]he individual has a prior conviction for fourth-degree                                     III.
fleeing and eluding, attempted fourth-degree fleeing and
eluding, or fleeing and eluding under [another provision]              For the foregoing reasons, we affirm the defendant’s
prohibiting substantially similar conduct”). Even if it were         sentence.
true that the fourth-degree offense—which entails the same
conduct as third-degree fleeing and eluding, but without the
additional factor of an accident, a 35-mile-per-hour zone or a
prior fleeing-and-eluding conviction, id. § 750.479a(2)—does
not pose a serious potential risk of physical injury, as Martin
alleges, case law makes clear that we must look at the conduct
charged in the indictment when the statutory offense
potentially covers violent and non-violent crimes. See Bass,
315 F.3d at 565–66 (noting that the indictment charged the
defendant with “aggravated” child abuse while the statute
under which the defendant was convicted encompassed a
broader range of conduct); United States v. Winter, 22 F.3d
15, 18–19 (1st Cir. 1994) (determining that where the
statutory definition of an offense encompasses both violent
