                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a1050n.06

                                              No. 11-2127                                     FILED
                                                                                          Oct 05, 2012
                            UNITED STATES COURT OF APPEALS                         DEBORAH S. HUNT, 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
JAMES JAMAR WILSON,                                  )
                                                     )
        Defendant-Appellant.                         )



        Before: SILER and COOK, Circuit Judges; and STEEH, District Judge.*


        COOK, Circuit Judge. James Jamar Wilson, who pleaded guilty to possession of a firearm

during a drug trafficking offense, appeals the district court’s application of the career offender

enhancement to his sentence. He argues that his previous conviction for obstructing a police officer

under Michigan Compiled Laws § 750.81d(1) does not qualify as a predicate “crime of violence.”

We agree and VACATE the district court’s sentencing judgment.


        The career offender enhancement requires two predicate offenses, consisting of either

“crime[s] of violence” or drug-related crimes. See U.S.S.G. § 4B1.1(a). Wilson admits one

predicate offense, but objects that his obstruction conviction does not qualify as a crime of violence.

During sentencing, the government produced Wilson’s plea colloquy for the obstruction offense,


         *The Honorable George C. Steeh, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 11-2127
United States v. Wilson


which revealed that Wilson disobeyed a traffic officer’s command to stop his vehicle. Relying on

the Supreme Court’s recent decision in Sykes v. United States, 131 S. Ct. 2267 (2011), the district

court deemed Wilson’s admitted vehicular flight—which resulted in Wilson’s obstruction

conviction—a crime of violence and applied the career offender enhancement to Wilson’s

Guidelines score.


       Wilson appeals, arguing that his obstruction conviction (i) differs from the vehicular-flight

conviction at issue in Sykes, and (ii) falls short of the “crime of violence” standard. We agree on

both counts because the government concedes the first (Gov’t Br. at 20), and we adopted the second

in United States v. Mosley, 575 F.3d 603, 608 (6th Cir. 2009) (concluding that an obstruction

conviction under § 750.81d(1) for knowing failure to comply with an officer’s lawful command is

not a “crime of violence”). Nevertheless, the government argues that Sykes supports the district

court’s judgment by broadening the definition of “crime of violence” to include vehicular flight.

Further, the government relies on the plain-error standard, arguing that Wilson failed to object to the

district court’s scoring of his obstruction conviction as a crime of violence. Both government

arguments lack merit.


       Beginning with the standard of review, we find that Wilson’s attorney properly objected to

classifying the obstruction offense as a crime of violence for purposes of the career offender

Guidelines. Though not the clearest of arguments, counsel repeatedly distinguished the Sykes

defendant’s predicate crime, which fell under Indiana’s vehicular-flight statute, from Wilson’s,


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No. 11-2127
United States v. Wilson


which happened to involve vehicular flight but fell under Michigan’s non-vehicular-flight statute.

(R. 35, Sent’g Tr. at 7 (emphasizing that Wilson pleaded guilty to “assaulting, battering, resisting,

obstructing, or opposing [an officer],” and not to a vehicular fleeing-and-eluding charge).) Given

the context, defense counsel clearly stated Wilson’s opposition to counting the obstruction

conviction toward the career-offender enhancement, preserving our de novo review of the district

court’s judgment.1 See, e.g., United States v. Wynn, 579 F.3d 567, 570 (6th Cir. 2009).


       Turning to the merits, nothing in Sykes undermines the Mosley court’s conclusion that an

obstruction offense under § 750.81d(1) falls short of the crime-of-violence bar. Sykes held that a

violation of Indiana’s vehicular-flight statute categorically qualifies as a “violent felony” for

purposes of sentencing enhancements under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Sykes, 131 S.Ct. at 2277. The government correctly notes that Sykes focused on the residual clause

of 18 U.S.C. § 924(e)(2)(B)(ii), which, like the virtually identical definition of “crime of violence”

in U.S.S.G. § 4B1.2(a), asks whether the predicate offense “involves conduct that presents a serious

potential risk of physical injury to another.” Sykes, 131 S. Ct. at 2272–74. Yet, Sykes offers no

guidance on how to treat an obstruction offense under § 750.81d(1).


       That is Wilson’s crime: obstruction and/or resistance. Wilson’s underlying conduct—his

vehicular flight detailed in the plea colloquy—does not support a conviction of any other offenses


       1
        Even if defense counsel failed to object to scoring the obstruction offense as a “crime of
violence,” we held in United States v. Gibbs that such a misclassification constitutes plain error.
626 F.3d 344, 356 (6th Cir. 2010).

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No. 11-2127
United States v. Wilson


that would qualify as “crimes of violence” under § 750.81d(1): assault, battery, wounding, opposing,

or endangering. Michigan law defines obstruction to include “a knowing failure to comply with a

lawful command,” Mich. Comp. Laws § 750.81d(7)(a), which Mosley correctly observed

encompassed such non-violent infractions as “refusing to produce information” and “ignoring an

officer’s command not to cross the street,” 575 F.3d at 607. These examples illustrate that, even

after Sykes, § 750.81d(1) encompasses conduct that lacks an inherent risk of physical injury.


       As the government concedes (Gov’t Br. at 16), it matters not how Wilson committed his

obstruction crime. In United States v. Ford, 560 F.3d 420, 422 (6th Cir. 2009), we explained that

we apply a categorical approach that focuses on the statutory definition of the crime and not the

underlying conduct that resulted in the conviction. And to the extent the statute allows for both

violent and non-violent crimes, we consult Shepard documents “to see if they ‘necessarily’ establish

the nature of the prior offense.” Id. (citing Shepard v. United States, 544 U.S. 13, 26 (2005)).

Wilson did not plead guilty to a crime of vehicular flight, and the government cannot punish him as

though he did. See United States v. McMurray, 653 F.3d 367, 377 (6th Cir. 2011) (relying on

Shepard documents to determine which section of a Tennessee assault statute the defendant pleaded

guilty to); Gibbs, 626 F.3d at 355 (same, § 750.81d). Because the district court improperly scored

Wilson’s obstruction offense as a crime of violence, we VACATE and REMAND for resentencing.




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