                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0588n.06

                                            No. 08-2214                                   FILED
                                                                                       Sep 02, 2010
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    WESTERN DISTRICT OF MICHIGAN
SAMUEL DARNELL FRANCE,                            )
                                                  )
       Defendant-Appellant.                       )
                                                  )

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

       DANNY C. REEVES, District Judge. Samuel France appeals his 200-month sentence

based on the district court’s determination that he qualifies as a career offender under § 4B1.1 of the

sentencing guidelines. For the following reasons, we vacate France’s sentence and remand the case

for resentencing.

                                                  I.

       The facts underlying this appeal are not in dispute. As set forth in the Presentence

Investigation Report, France was indicted in March 2008 on one count of distributing fifty grams or

more of cocaine base in violation of 21 U.S.C. § 841(a)(1). He pleaded guilty to that charge two

months later. Prior to sentencing, France was classified as a career offender by the United States



       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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No. 08-2214
United States v. France

Probation Office based on two prior felony convictions. France concedes that the first of those

convictions (delivery of cocaine), is a controlled-substance offense for purposes of the career-

offender determination under the sentencing guidelines. The subject of the instant appeal is the

second conviction, which arose out of an incident in 1992 when France, then twenty years old, had

sex with a fourteen-year-old girl. That encounter resulted in a one-count felony information charging

France with criminal sexual conduct in the third degree in violation of Michigan law. The original

felony information alleged:

       SAMUEL DARNELL FRANCE did engage in sexual penetration with another
       person, to-wit: MARISA ARIANE LEON, DOB 1/23/78, said person being at least
       13 years of age, but under 16 years; contrary to MCL 750.520d(1)(a)[.]

A subsequent amended felony information incorporated by reference the original charge and added

a second count, which read:

       SAMUEL DARNELL FRANCE did assault another person to-wit: MARISA
       ARIANE LEON with intent to commit criminal sexual conduct involving sexual
       penetration, contrary to MCL 750.520g(1)[.]

France pleaded guilty to the charge of assault with intent to commit criminal sexual conduct

involving sexual penetration. The original charge of criminal sexual conduct in the third degree was

dismissed in exchange for his guilty plea.

       France objected to his classification as a career offender based on his sexual-assault

conviction, arguing that assault with intent to commit criminal sexual conduct involving sexual

penetration is not a “crime of violence” for purposes of the career-offender determination under

U.S.S.G. § 4B1.1. However, the district court concluded that the offense was a crime of violence

and overruled France’s objection.       The court thus applied the career-offender sentencing

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United States v. France

enhancement, and France was sentenced to 200 months imprisonment and five years of supervised

release.

                                                 II.

       Sentences imposed since Booker “are reviewed for reasonableness — including for

procedural error in the calculation of the guideline range.” United States v. Bartee, 529 F.3d 357,

358 (6th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 49, 128 S. Ct. 586, 596, 169 L. Ed.

2d 445 (2007); and United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005)). A district court’s determination that an offense constitutes a crime of violence is subject

to de novo review. Id. (citing United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005)).

       The sole issue raised in this appeal is whether the district court correctly found that France’s

sexual-assault offense constitutes a crime of violence for purposes of the career-offender

determination under the sentencing guidelines. Section 4B1.1(a) of the guidelines provides:

       A defendant is a career offender if (1) the defendant was at least eighteen years old
       at the time the defendant committed the instant offense of conviction; (2) the instant
       offense of conviction is a felony that is either a crime of violence or a controlled
       substance offense; and (3) the defendant has at least two prior felony convictions of
       either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). A “crime of violence” is defined as

       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.

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No. 08-2214
United States v. France

U.S.S.G. § 4B1.2(a).

        Whether a particular offense constitutes a crime of violence is determined using the

categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed.

2d 607 (1990), and made applicable to plea-based convictions in Shepard v. United States, 544 U.S.

13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). Bartee, 529 F.3d at 359. When applying this

approach, “the court must look only to the fact of conviction and the statutory definition — not the

facts underlying the offense — to determine whether that definition supports a conclusion that the

conviction was for a crime of violence.” Id. (citing United States v. Armstead, 467 F.3d 943, 947

(6th Cir. 2006)).     The categorical approach was meant to prevent sentencing courts from

“‘relitigat[ing] the facts and delv[ing] into the details of a prior conviction.’” Id. (quoting Armstead,

467 F.3d at 947).

        The Supreme Court has allowed an exception to the categorical approach in cases where the

statutory definition of the offense underlying the defendant’s prior conviction is ambiguous. Id.

Under this exception, if the prior conviction was based on a plea, the court may consider “‘the terms

of the charging document, the terms of a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information’” in order to determine whether the offense admitted

to was a crime of violence. Id. (quoting Shepard, 544 U.S. at 26). When examining the charging

document in a case where the crime initially charged is not the crime of which the defendant was

convicted, “the court may only consider the elements of [the] dismissed charge that are essential to

the offense to which the defendant pleaded guilty.” Id. at 361 n.4 (citing Armstead, 467 F.3d at 949,

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United States v. France

and United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir. 1995)). Moreover, this Court has held that

a presentence report is not a “comparable judicial record” under Shepard and thus may not properly

be considered during the crime-of-violence inquiry. See United States v. Wynn, 579 F.3d 567, 575-

77 (6th Cir. 2009).

       A.      Categorical Approach

       An offense is categorically a crime of violence if it is apparent from the statutory definition

that the offense (1) “has as an element the use, attempted use, or threatened use of physical force

against the person of another”; (2) is one of the offenses enumerated in § 4B1.2(a)(2), i.e., burglary

of a dwelling, arson, extortion, or an offense involving the use of explosives; or (3) “otherwise

involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a); see United States v. Baker, 559 F.3d 443, 452 (6th Cir. 2009). Thus, the first inquiry in

the present case is whether the Michigan statute under which France was convicted “has as an

element the use, attempted use, or threatened use of physical force against the person of another.”

U.S.S.G. § 4B1.2(a)(1).

       France was convicted of assault with intent to commit criminal sexual conduct involving

sexual penetration in violation of MCL § 750.520g(1). The Supreme Court of Michigan has defined

the elements of that offense as “simply (1) an assault, and (2) an intent to commit [criminal sexual

conduct] involving sexual penetration.” People v. Nickens, 470 Mich. 622, 685 N.W.2d 657, 661

(Mich. 2004). As will be discussed more fully below, under Michigan law, assault does not

necessarily involve the use (or attempted or threatened use) of force. See id. at 662. Thus, France’s

sexual-assault offense does not qualify as a crime of violence under the first prong of the categorical

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United States v. France

approach. Moreover, the offense is not one of the crimes enumerated in U.S.S.G. § 4B1.2(a)(2).

The remaining question, then, is whether assault with intent to commit criminal sexual conduct

involving sexual penetration constitutes a crime of violence under the “otherwise” clause of that

section.

        The standard for determining whether an offense falls under the “otherwise” clause of

§ 4B1.2(a)(2) has evolved in recent years. Previously, the inquiry was simply whether the crime

generally involved “a serious potential risk of physical injury to another.” Bartee, 529 F.3d at 362-

63 (citing Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008)).

However, in Begay, the Supreme Court held that to be a “violent felony” for purposes of the Armed

Career Criminal Act (“ACCA”), a crime must not merely carry “a serious potential risk of physical

injury to another,” but must also be “similar in both kind and in degree of risk to the enumerated

examples — burglary of a dwelling, arson, extortion, or crimes involving the use of explosives.”

Id. at 363. Because this Circuit has determined that the “violent felony” definition under the ACCA

should be interpreted consistently with the parallel “crime of violence” provision in the sentencing

guidelines, the test set forth in Begay also applies to cases involving U.S.S.G. § 4B1.2(a)(2). See

id. at 363.

        This Court recently explained that “to be alike in kind to the enumerated offenses [for

purposes of the second prong of the Begay test], a crime must be alike in the purposeful, violent, and

aggressive nature of the conduct.” Wynn, 579 F.3d at 573 (internal quotation marks omitted); see

also Bartee, 529 F.3d at 363 (discussing the Begay Court’s distinction among crimes based on

whether the offense involves purposeful, aggressive, and violent conduct). In Wynn, the panel

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United States v. France

determined that under the Begay analysis, a “generic conviction” for a violation of Ohio’s sexual-

battery statute “is not categorically a ‘crime of violence’ because some subsections of [the statute]

can result in convictions for crimes that, while involving purposeful behavior, do not involve

aggressive and violent behavior.”1 Wynn, 579 F.3d at 574. As an example, the panel noted that the

statute “criminalizes a consensual sexual encounter between a woman and her 21-year-old adopted

stepson.” Id. (citing State v. Lowe, 112 Ohio St. 3d 507, 2007 Ohio 606, 861 N.E.2d 512, 515 (Ohio

2007)). Since such an act “would not be violent and aggressive by nature, [it] thus would not be a

‘crime of violence’ under the Begay test.” Id. In other words, the fact that the statute could be

violated in ways that did not involve aggressive and violent conduct precluded a categorical finding

that the offense was a crime of violence.

       Like the Ohio sexual-battery statute analyzed in Wynn, the statute at issue in this case can be

violated in a number of ways that do not involve violent or aggressive conduct. Under Michigan

common law, an assault consists of an attempt to commit “an intentional, unconsented, and harmful

or offensive touching.” People v. Starks, 473 Mich. 227, 701 N.W.2d 136, 141 (Mich. 2005). An

assault may occur where consent to the touching is obtained by fraud or from a person who is not

legally capable of consenting. See id.; see also Nickens, 685 N.W.2d at 662. For example, in Starks,

the Michigan Supreme Court found that there was sufficient evidence to establish assault with intent

to commit criminal sexual conduct involving sexual penetration where the defendant attempted to


       1
        Wynn overruled United States v. Mack (Mack II), 53 F.3d 126 (6th Cir. 1995), in which the
panel found that a violation of the same sexual-battery statute was categorically a crime of violence.
See 579 F.3d at 573 (“In light of Begay, our decision in Mack II is no longer good law.”). The
government relied on Mack II in its brief, which was filed prior to the Wynn decision.

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No. 08-2214
United States v. France

perform fellatio on a thirteen-year-old boy; although there was no evidence that the child resisted or

that the defendant used or threatened force, the act was necessarily “unconsented” because a thirteen-

year-old could not legally give consent. See 701 N.W.2d at 141. Such acts, while they may be

purposeful, are not necessarily violent and aggressive. See Wynn, 579 F.3d at 574; see also Arnold,

58 F.3d at 1121-22 (concluding, prior to Begay, that assault with intent to commit sexual battery

under Tennessee law was not necessarily a crime of violence because the statute encompassed

assault accomplished by fraud as well as by force). Thus, assault with intent to commit criminal

sexual conduct involving sexual penetration under MCL § 750.520g(1) cannot categorically be a

crime of violence.

       The district court concluded otherwise after applying the two-prong Begay test and finding

that “[i]n the ordinary case, although certainly not in every possible case, the crime of assault

involves violent conduct” and “in the ordinary case, although certainly not in every possible case,

criminal sexual conduct involving penetration also involves violent behavior.” United States v.

France, 574 F. Supp. 2d 801, 807 (W.D. Mich. 2008). This reasoning is not sound in light of Wynn,

however, and indeed, the United States conceded at oral argument that a violation of MCL

§ 750.520g(1) is not categorically a crime of violence. Rather, because the statutory definition of

the offense is ambiguous, the analysis shifts from the categorical approach to the Shepard exception

to determine whether the conduct to which France pleaded guilty nevertheless constitutes a crime

of violence. See Wynn, 579 F.3d at 574.




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United States v. France

       B.      Shepard Exception

       The government maintains that France’s sexual-assault offense is a crime of violence under

the Shepard exception because the victim was a minor — a fact which, according to the United

States, can be gleaned from the charging documents in the underlying case. As previously noted,

when the crime-of-violence inquiry extends beyond the statutory definition of the offense in a case

involving a prior plea-based conviction, the sentencing court may consider only “‘the terms of the

charging document, the terms of a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.’” Bartee, 529 F.3d at 359 (quoting Shepard, 544

U.S. at 26); see also Wynn, 579 F.3d at 575-77 (presentence reports not covered by Shepard

exception). Here, the only potential Shepard-approved documents currently in the record are the two

charging documents: the original felony information, which charged France with criminal sexual

conduct in the third degree and revealed the victim’s age, and the amended information, which

incorporated by reference the original charge and added a second count, the count to which France

ultimately pleaded guilty.

       Despite the government’s assumption to the contrary, only Count 2 of the amended felony

information may be considered under the sentencing guidelines. The application notes contained in

the Sentencing Commission’s commentary to U.S.S.G. § 4B1.2 specify that an offense constitutes

a crime of violence if “the conduct set forth (i.e., expressly charged) in the count of which the

defendant was convicted . . . by its nature[] presented a serious potential risk of physical injury to

another.” U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added). The Commission further noted that § 4B1.1

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No. 08-2214
United States v. France

       expressly provides that the instant and prior offenses must be crimes of violence or
       controlled substance offenses of which the defendant was convicted. Therefore, in
       determining whether an offense is a crime of violence or controlled substance
       [offense] for the purposes of § 4B1.1 (Career Offender), the offense of conviction
       (i.e., the conduct of which the defendant was convicted) is the focus of the inquiry.

Id. n.2 (emphasis added); see also Bartee, 529 F.3d at 361 n.4.2 Application notes to the sentencing

guidelines are given controlling weight. United States v. Jarman, 144 F.3d 912, 914 (6th Cir. 1998).

Thus, only Count 2 of the amended felony information is relevant to the crime-of-violence

determination, because the conduct charged in that count is the conduct of which France was

convicted.3

       Count 2 of the amended information merely alleges that France assaulted the victim with

intent to commit criminal sexual conduct involving sexual penetration in violation of MCL

§ 750.520g(1). The charge does not mention that the victim was a minor, nor was the victim’s age

an element of the crime. See Nickens, 685 N.W.2d at 661 (defining the elements of the offense as

“(1) an assault, and (2) an intent to commit [criminal sexual conduct] involving sexual penetration”).



       2
         In Bartee, the defendant had originally been charged with third-degree criminal sexual
conduct under MCL § 750.520d(1)(a), i.e., sexual penetration with a person who is at least 13 and
under 16 years of age — the same offense with which France was initially charged. 529 F.3d at 361
n.4. As in France’s case, however, the criminal sexual conduct charge against Bartee was dismissed.
Id. The Bartee panel questioned the significance of the initial felony information for purposes of
establishing that the defendant’s prior conviction involved sexual conduct with a minor, since “the
court may only consider the elements of a dismissed charge that are essential to the offense to which
the defendant pleaded guilty.” Id.
       3
        The United States maintains that because the amended felony information incorporates by
reference the original information, which provides the victim’s date of birth, the age of the victim
may properly be considered. However, only Count 1 of the amended information — the dismissed
count — incorporates the original charge, not Count 2, the count of conviction.

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No. 08-2214
United States v. France

Moreover, as explained above, the fact that the original felony information identified the victim as

a fourteen-year-old is of no consequence, as only the count of conviction may be considered. See

U.S.S.G. § 4B1.2 cmt. nn.1-2; Bartee, 529 F.3d at 361 n.4. The various cases cited by both parties

regarding whether a sexual offense involving a minor inherently presents a serious potential risk of

physical injury are therefore inapposite, since the age of France’s victim is not a proper consideration

on the current record.

        Because the district court concluded that assault with intent to commit criminal sexual

conduct involving sexual penetration is categorically a crime of violence, it did not reach the

Shepard inquiry and, therefore, had no occasion to consider Shepard documents such as the amended

felony information. If such additional documents exist, they may confirm that France’s conviction

under MCL § 750.520g(1) constitutes a crime of violence. Since the statutory definition of the

offense is ambiguous, a Shepard remand is appropriate to allow the United States to submit

additional evidence establishing that the crime to which France admitted was a crime of violence.

See, e.g., Bartee, 529 F.3d at 363.

                                                  III.

        For the foregoing reasons, we VACATE France’s sentence and REMAND the case for

resentencing with instructions to allow the United States to provide additional Shepard-approved

documents for the purpose of determining whether the conduct to which France pleaded guilty

constitutes a crime of violence.




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