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United States v. Morris

United States Court of Appeals, Sixth Circuit

March 15, 2018

United States of America, Plaintiff-Appellee,
v.
Melvin Andrew Morris, Defendant-Appellant.

          Argued: January 25, 2017

         Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:14-cr-20427-5-Thomas L. Ludington, District Judge.

         ARGUED:

          Stevens J. Jacobs, JACOBS LAW OFFICE, Bay City, Michigan, for Appellant.

          Mark Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

         ON BRIEF:

          Stevens J. Jacobs, JACOBS LAW OFFICE, Bay City, Michigan, for Appellant.

          Mark Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

          Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.

          OPINION

          JANE B. STRANCH, CIRCUIT JUDGE.

         This case returns us to the serial litigation over the meaning of the terms "physical force" and "crime of violence." Melvin Morris was convicted of one count of distribution of cocaine base, in violation of 21 U.S.C. § 841, and was sentenced as a career offender under United States Sentencing Guideline (USSG) § 4B1.1. Morris challenges that sentence, arguing that his two prior felony convictions for domestic assault under Michigan Compiled Laws (M.C.L.) § 750.81 are not crimes of violence under § 4B1.2. We conclude that a conviction under M.C.L. § 750.81 is a crime of violence under the residual clause of the Guidelines. Accordingly, we AFFIRM.

         I. BACKGROUND

         Morris pled guilty to the distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The plea agreement specified a Guidelines range of 30 to 37 months in prison. Because an amendment lowering the applicable drug sentencing guidelines was to become effective a few weeks later, the Government did not oppose a two-level downward variance, resulting in a suggested range of 24 to 30 months of imprisonment. The agreement stated that Morris could withdraw his plea if the court were to impose a sentence higher than 37 months.

         Morris had two felony domestic violence convictions under M.C.L. § 750.81(2). Pursuant to the Michigan statute, the first two convictions for domestic assault are misdemeanor offenses, the third and subsequent violations are felony offenses. Based on these convictions, the probation officer in Morris's federal case concluded that he qualified as a career offender under USSG § 4B1.1. Morris asked the district court before sentencing to determine whether he qualified as a career offender, arguing that his two prior domestic violence convictions did not qualify as "crime[s] of violence." The Government responded that it decided not to score Morris as a career offender and asked the court to sentence him within the range in the plea agreement.

         The district court determined that Morris's previous crimes "had as an element the use of . . . physical force against the person of another." The court also utilized the "modified categorical approach, " examining the guilty-plea transcripts from Morris's convictions and finding that both qualified as crimes of violence. Accordingly, the district court determined that he was a career offender. Morris then withdrew his plea, proceeded to a jury trial, and was found guilty.

         The career offender designation resulted in an offense level of 32, a criminal history category of VI, and a guidelines range of 210 to 262 months of imprisonment as set out in Morris's new Presentence Report. The district court varied downward and imposed a sentence of 180 months of imprisonment. Morris filed a timely appeal.

         II. ANALYSIS

         A. ...


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