                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0543n.06

                                           No. 08-1813
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                             Aug 05, 2009
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
MAURICE LASHON EMERY,                             )   WESTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellant.                       )


       Before: CLAY and SUTTON, Circuit Judges; THAPAR, District Judge.*


       SUTTON, Circuit Judge. Maurice Emery appeals his sentence for bank robbery, challenging

the district court’s conclusion that he is a career offender under the sentencing guidelines. Because

resisting and obstructing a police officer under Mich. Comp. Laws § 750.81d(1) is not categorically

a crime of violence, as we recently concluded in a separate case, see United States v. Mosley, No.

08-1783, __F.3d__, 2009 WL 2176634, at *4 (6th Cir. July 23, 2009), we vacate his sentence and

remand for resentencing.


                                                 I.


       In 2008, Emery pleaded guilty to bank robbery. See 18 U.S.C. § 2113(a). After finding that

Emery was a career offender, see U.S.S.G. § 4B1.1, the district court calculated a guidelines range

       *
          Judge Amul Thapar, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 08-1813
United States v. Emery

of 151 to 188 months and sentenced him to 188 months in prison. In explaining its career-offender

determination, the district court found that Emery’s prior state-court conviction for resisting and

obstructing a police officer was a crime of violence. See Mich. Comp. Laws § 750.81d(1). Emery

objected to the classification before the sentencing judge, and he objects to the classification on

appeal. (For what it is worth, Emery did not object then, and he does not object now, to the district

court’s classification of a separate state-court conviction as a crime of violence.)


                                                   II.


        We recently considered whether resisting and obstructing a police officer under Mich. Comp.

Laws § 750.81d(1) is categorically a crime of violence in Mosley, and we held that it was not. See

2009 WL 2176634, at *1. We follow the same path here.


        An individual is a career offender under the sentencing guidelines if (1) he was at least 18

when he committed the crime of conviction, (2) the crime of conviction is a felony crime of violence

or a felony controlled-substance offense, and (3) he has been convicted of at least two other crimes

of violence or controlled substance offenses. U.S.S.G. § 4B1.1. A “crime of violence” is one that

“[1] has as an element the use, attempted use, or threatened use of physical force against the person

of another . . . [2a] is burglary of a dwelling, arson, or extortion, involves use of explosives, or [2b]

otherwise involves conduct that presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a).




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No. 08-1813
United States v. Emery

       In determining whether a prior conviction is a crime of violence, we use a “categorical

approach”—considering the crime as defined by the statute, not as defined by the particulars of the

individual’s underlying conduct. Taylor v. United States, 495 U.S. 575, 600–02 (1990); see Mosley,

2009 WL 2176634, at *2. If the statutory definition includes an offense that is not a crime of

violence and one that is, we may look at “the indictment, the plea agreement, the plea colloquy or

‘comparable judicial record[s]’” to discover whether the defendant “necessarily” pleaded guilty to

a crime of violence. Mosley, 2009 WL 2176634, at *2 (quoting Shepard v. United States, 544 U.S.

13, 26 (2005)).


       In Mosley, we addressed whether resisting and obstructing a police officer under Mich.

Comp. Laws § 750.81d(1) is a crime of violence. 2009 WL 2176634, at *4. The offense under

Michigan law is defined as follows: “[A]n individual who assaults, batters, wounds, resists,

obstructs, opposes, or endangers a person who the individual knows or has reason to know is

performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2

years or a fine of not more than $2,000.00, or both.” Mich. Comp. Laws § 750.81d(1). The term

“obstruct[ing]” is further defined as “includ[ing] . . . a knowing failure to comply with a lawful

command.” Id. § 750.81d(7)(a). Consistent with Chambers v. United States, __U.S.__, 129 S.Ct.

687 (2009), we emphasized 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.” Mosley, 2009 WL 2176634, at *4.


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No. 08-1813
United States v. Emery

       In holding that a violation of the statute was not categorically a crime of violence in Mosley,

we said the following:


       [W]e 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.


Id. The same conclusion applies here.


       As in Mosley, the government will have a chance on remand to argue that the relevant

Shepard documents show that Emery committed a crime of violence, by showing that “the

indictment, the plea agreement, the plea colloquy or ‘comparable judicial record[s],’” id. at *2

(quoting Shepard, 544 U.S. at 26), establish that Emery necessarily admitted to a crime of violence

when he pleaded guilty to resisting and obstructing a police officer. Because we must vacate

Emery’s sentence, it is not necessary to address his argument that his sentence was procedurally

unreasonable.


                                                III.


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




                                                -4-
