United States of America v. Felix Herrera

*The Honorable Robert H. Cleland, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0222P (6th Cir.)
File Name: 04a0222p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FELIX HERRERA,
Defendant-Appellant.
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No. 03-1654
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00259—Richard A. Enslen, District Judge.
Argued: June 16, 2004
Decided and Filed: July 12, 2004
Before: RYAN and COOK, Circuit Judges; CLELAND,
District Judge.*
_________________
COUNSEL
ARGUED: Lawrence J. Phelan, HAEHNED & PHELAN,
Grand Rapids, Michigan, for Appellant. Andrew B. Birge,
2 United States v. Herrera No. 03-1654
UNITED STATES ATTORNEY, Grand Rapids, Michigan,
for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNED
& PHELAN, Grand Rapids, Michigan, for Appellant.
Andrew B. Birge, UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
CLELAND, District Judge. Defendant Felix Herrera
appeals a sentencing determination that qualified him as a
career offender pursuant to § 4B1.1 of the United States
Sentencing Guidelines (U.S.S.G.). Defendant claims that the
trial court erred in concluding that his previous state felony
convictions for attempted taking of a firearm from a peace
officer, Mich. Comp. Laws § 750.479b(2), and for resisting
and obstructing a police officer, Mich. Comp. Laws
§ 750.479(a), were “violent crimes” within the meaning of
U.S.S.G. § 4B1.2(a). For the reasons set forth below, we
agree with the district judge’s decision as to the first of the
two predicate convictions, find it unnecessary to reach the
question of the second predicate conviction and AFFIRM the
judgment of the district court.
I. FACTS AND PROCEDURAL HISTORY
On July 22, 2002 in Lansing, Michigan, Defendant sold
crack cocaine to an undercover officer and was confronted by
a team of surveillance officers wearing jackets with the word
“POLICE” emblazoned on them. According to the officers at
the scene, Defendant initially did not comply with their
command to lie on the ground, but pulled a gun from his
waistband and swung it toward the officers. The officers
dove for cover, and Defendant soon decided to lower his gun
and obey the officers’ commands. On October 24, 2002, a
federal grand jury returned a three-count indictment against
Defendant, charging him with knowingly and intentionally

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No. 03-1654 United States v. Herrera 3
possessing cocaine base (crack) with the intent to distribute,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), being a
convicted felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), and carrying and brandishing a firearm
in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c). Defendant entered a guilty plea to the
possession with intent to distribute charge (Count I) and the
carrying and brandishing a firearm charge (Count III) on
January 6, 2003. Pursuant to the plea agreement, the final
determination as to the length of Defendant’s sentence rested
solely with the trial court, which would consider a
presentence report and objections or suggestions from the
government and Defendant. The government agreed to
dismiss the felon in possession charge (Count II).
About March 24, 2003, a presentence report was prepared,
indicating that Defendant had been previously convicted in
state court on numerous occasions. Among Defendant’s
myriad of past convictions were three convictions that the
U.S. probation officer suggested were “crimes of violence”
under the U.S.S.G.: (1) a felonious assault which occurred on
June 25, 1998; (2) an attempt to commit the crime of
disarming a police officer which occurred on August 9, 2001;
and (3) resisting and obstructing a police officer also on
August 9, 2001. The last two offenses arose from the same
occurrence in which Defendant fled on foot after police pulled
him over for a traffic stop. When an officer caught and
reached for Defendant, Defendant grabbed the officer’s gun
and tried to pull it from its holster. The police officer was
able to subdue Defendant and place him into custody without
further incident. Based upon these offenses, the probation
officer concluded that Defendant should be classified as a
career offender pursuant to U.S.S.G. § 4B1.1, under which a
defendant with two violent felony convictions or drug
trafficking felony convictions is to be classified as a career
offender. In a memorandum filed May 1, 2003, Defendant
objected to the probation officer’s career offender
recommendation.
4 United States v. Herrera No. 03-1654
On May 8, 2003, Defendant appeared before the district
court for sentencing and reasserted his objection to the
presentence report. The court rejected his challenge, finding
that the conviction for attempt to disarm a police officer was
a crime of violence as defined at U.S.S.G. § 4B1.2(a). The
court also went on to decide, “for the sake of completeness,”
that Defendant’s conviction for resisting and obstructing a
police officer also constituted a crime of violence. The effect
of this determination was to increase Defendant’s offense
level from Level 13 to Level 29 and his guideline range from
33-41 months to 151-188 months, accounting for a three-level
reduction for acceptance of responsibility. Defendant’s
criminal history category, however, was unaffected because
Defendant was scored in Category VI based upon his prior
record.
Defendant was sentenced to 160 months on Count I and 84
months on Count III, to be served consecutively for a total of
244 months imprisonment. Defendant was ordered to pay a
fine of $2,140.00 and $200.00 in special assessments, and
was required to remain on supervised release for a term of
five years after his release from prison. On May 15, 2003,
Defendant filed a timely notice of appeal.
II. STANDARD OF REVIEW
The district court’s interpretation of the Sentencing
Guidelines is a question of law, which we review de novo.
See United States v. Garza, 999 F.2d 1048, 1051 (6th Cir.
1993); see also United States v. Arnold, 58 F.3d 1117, 1120
(6th Cir. 1995) (applying de novo standard of review to the
district court’s construction of the term “crime of violence” in
the Guidelines).

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No. 03-1654 United States v. Herrera 5
III. DISCUSSION
Pursuant to U.S.S.G. § 4B1.1:
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).
Defendant does not dispute that the offense of conviction is
a felony committed after he attained the age of eighteen. He
agrees also that his 1998 conviction for felonious assault
qualifies as a violent crime. Defendant’s contention is that
neither his conviction for attempting to disarm a police officer
nor his conviction for resisting and obstructing an officer
qualify as a “crime of violence” for purposes of § 4B1.1(a).
The Guidelines define a “crime of violence” 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.
U.S.S.G. § 4B1.2(a) (emphasis added). The application notes
further clarify the definition:
6 United States v. Herrera No. 03-1654
For purposes of this guideline--"Crime of violence" and
"controlled substance offense" include the offenses of
aiding and abetting, conspiring, and attempting to
commit such offenses.
"Crime of violence" includes murder, manslaughter,
kidnaping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as "crimes of violence" if (A) that offense has
as an element the use, attempted use, or threatened use of
physical force against the person of another, or (B) the
conduct set forth (i.e., expressly charged) in the count of
which the defendant was convicted involved use of
explosives (including any explosive material or
destructive device) or, by its nature, presented a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2 (application note 1) (emphasis added).
A. Michigan Compiled Laws § 750.479b(2): Attempted
Taking of a Firearm from a Peace Officer
No panel of this Circuit has previously decided whether a
conviction for attempting to disarm a police officer, Mich.
Comp. Laws § 750.479b(2), is a “crime of violence” under
the Guidelines. To examine this question, a “categorical
approach” is used. See United States v. Harris, 165 F.3d
1062, 1068 (6th Cir. 1999); see also United States v. Arnold,
58 F.3d 1117, 1121 (6th Cir. 1995) (citing as analogous
Taylor v. United States, 495 U.S. 575 (1990)). Under this
approach, the facts and circumstances underlying the
defendant’s felony conviction are generally of no
consequence, and a court does no more than examine the
definition of the crime provided by the state legislature. See
Arnold, 58 F.3d at 1121 (“[T]he categorical approach avoids
the impracticability and unfairness of allowing a sentencing
court to engage in a broad factfinding inquiry relating to a
defendant’s prior offenses.”). If the court were not convinced,

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No. 03-1654 United States v. Herrera 7
however, that the statutory formulation of the offense
encompassed conduct that posed a serious potential of
physical injury, it could examine the indictment for the
specific conduct charged. See United States v. Arnold,
58 F.3d 1117, 1123 (6th Cir. 1995).
In examining the criminal statute, the court should not think
only of the hypothetically possible but unusual conduct that
might constitute an offense thereunder, but rather should
focus on the ordinary way that conduct would violate the
statute. See United States v. Campbell, 256 F.3d 381, 396 (6th
Cir. 2001) (“In deciding whether the statutory crime
constitutes a ‘crime of violence,’ we examine ‘the typical run
of conduct,’ for this sort of offense.”).
The parties do not dispute that the offense of attempting to
disarm a police officer is not enumerated as a crime of
violence under the Guidelines and does not include the use,
attempted use, or threatened use of physical force as a
necessary element. Rather, their argument centers on the
third method for identifying a crime of violence--whether the
offense involves a “serious potential risk of physical injury to
another.” U.S.S.G. 4B1.2(a)(2).
The elements of Michigan Compiled Laws § 750.479b(2),
disarming a police officer, are:
(a) The individual knows or has reason to believe the
person from whom the firearm is taken is a peace officer
or a corrections officer.
(b) The peace officer or corrections officer is performing
his or her duties as a peace officer or a corrections
officer.
(c) The individual takes the firearm without consent of
the peace officer or corrections officer.
8 United States v. Herrera No. 03-1654
(d) The peace officer or corrections officer is authorized
by his or her employer to carry the firearm in the line of
duty.
Mich. Comp. Laws § 750.479b(2).
Defendant first focuses on the word “serious” in the phrase
“presents a serious potential risk of physical injury to
another,” U.S.S.G. § 4B1.2(a)(1), and argues that there is not,
inherent in the disarming statute, a risk of serious injury. We
note, however, that the adjectives “serious” and “potential”
both modify the word “risk,” not “injury.” Actual physical
injury need not be certain upon the commission of the
offense. There need only be a risk of injury for which there
is a serious potential in order to satisfy the Guideline. We
find that an affront to a police officer’s authority in the way
contemplated in the statute presents not only a potential, but
also a serious risk.
The statute quite unmistakably contemplates a scenario in
which the firearm is taken from a police officer. Before
setting out the elements of the offense, the opening sentence
of the statute states that the statute is designed to punish “[a]n
individual who takes a firearm from the lawful possession of
a peace officer or a corrections officer.” Mich. Comp. Laws
§ 750.479b(2). Further, the elements require the firearm be
taken while the officer is performing his duties by a person
who “believe[s] the person from whom the firearm is taken is
a peace officer.” Id. (emphasis added); see also People v.
Cooks, No. 210025, 2000 WL 33521057, *2 (Mich. Ct. App.
Mar. 24, 2000) (“[T]he disarming an officer statute is
intended to prevent someone from attempting to and/or
gaining access to an officer's firearm, thereby causing injury
to the officer.”).
In almost all circumstances, an officer will have his firearm
on his person or in the close vicinity when performing his
official duties. It is obvious that a perpetrator’s attempt to
gain possession of an officer’s weapon creates a situation

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No. 03-1654 United States v. Herrera 9
where there is not only a serious potential risk of physical
injury, but most likely an extremely heightened risk of serious
or even deadly injury. An officer will try to repel the attempt,
which would create a risk of injury to the suspect and could
also endanger anyone in the area. Further, the officer may be
injured in the scuffle that ensues, especially if the suspect
actually dispossesses the officer of his gun. The
government’s review of Michigan case law involving attacks
against officers amply demonstrates the kind of risks
involved. See, e.g., People v. Williams, No. 228730, 2002
WL 31424779, *2 (Mich. Ct. App. Oct. 29, 2002) (“violent,
violent, lengthy struggle” between two officers and suspect);
People v. Pope, No. 204645, 1999 WL 33453383, *1 (Mich.
Ct. App. Mar. 23, 1999) (“During the execution of the
warrant, defendant attempted to flee. When caught by an
officer, defendant struggled. He managed to disarm the
officer and shoot the officer before being shot himself.”).
The district court noted that a police officer “is going to
fiercely resist any effort” to seize the weapon. The court said
further that “[t]his creates a scenario rife with opportunity for
injury and death to people involved and anyone around,
which makes the potential for violence an inherent aspect of
the offense.” We agree.
The Tenth Circuit, examining a statute governing jail
escapes, said that
every escape scenario is a powder keg, which may or
may not explode into violence and result in physical
injury to someone at any given time, but which always
has the serious potential to do so . . . . A defendant who
escapes from a jail is likely to possess a variety of
supercharged emotions, and in evading those trying to
recapture him, may feel threatened by police officers,
ordinary citizens, or even fellow escapees.
Consequently, violence could erupt at any time. Indeed,
even in a case where a defendant escapes from a jail by
stealth and injures no one in the process, there is still a
10 United States v. Herrera No. 03-1654
serious potential risk that injury will result when officers
find the defendant and attempt to place him in custody.
United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)
(internal citations omitted). Similarly, in the typical case, a
person attempting to disarm an officer is fueled by adrenaline
rather than reason and may act with further violence when the
officer steps up his effort to maintain control of the situation
and his firearm.
Analogous holdings of this and our sister circuits support
a finding that the offense of attempting to disarm a police
officer qualifies as a crime of violence. In United States v.
Payne, 163 F.3d 371 (6th Cir. 1998), we held that the offense
of larceny from the person, Mich. Comp. Laws § 750.357,
was a crime of violence. We concluded that because the
offense required the property be taken from the possession of
the victim or from within the immediate presence or area of
control of the victim, larceny from the person “clearly
[presented] the type of situation that could result in violence.”
Payne, 163 F.3d at 375. We stated,
Any person falling victim to a crime involving such an
invasion of personal space would likely resist or defend
in a manner that could lead to immediate violence.
Whether or not violence or harm actually results in any
given instance is not relevant. We agree with the First
Circuit that “although larceny from the person 'typically
involves no threat of violence,' the risk of ensuing
struggle is omnipresent."
Id. (citing United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.
1993)).
Defendant argues that, because officers are trained to
handle dangerous situations, the offense of disarming an
officer is less dangerous than larceny from the person. We
emphatically disagree and note that attempted disarming
situations are in fact more fraught with danger because they

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No. 03-1654 United States v. Herrera 11
always involve inherently dangerous instrumentalities.
Further, the typical motive of a person who attempts to
disarm a police officer is markedly different from the likely
motive of a person who commits larceny from the person.
The perpetrator who tries to gain possession of an officer’s
gun is not ordinarily a mere thief, trying to make off with the
firearm, but more often is trying to gain a tactical advantage
over the officer in a confrontational situation. The potential
risk of physical injury is plainly greater than a larceny from
the person scenario.
In another analogous case, the First Circuit held that assault
and battery upon a police officer, even the non-violent variety
as proscribed by Massachusetts law, constituted a crime of
violence. See United States v. Fernandez, 121 F.3d 777 (1st
Cir. 1997). The court stated:
It would seem self-evident that assault and battery upon
a police officer usually involves force against another,
and so meets that standard. At a minimum, assault and
battery upon a police officer requires purposeful and
unwelcomed contact with a person the defendant knows
to be a law enforcement officer actually engaged in the
performance of official duties. While it is true that
neither violence, nor the use of force, is an essential
element of the crime as statutorily defined, still, violence,
the use of force, and a serious risk of physical harm are
all likely to accompany an assault and battery upon a
police officer.
Id. at 780. The court noted that the offense nearly always
involves the intentional striking of an on-duty officer and thus
“nearly always poses a serious risk of actual or potential
physical force and the likelihood of physical injury--to the
police officer initially, and to the perpetrator (and even the
public) subsequently, when the officer reacts or attempts to
subdue the offender.” Id.
12 United States v. Herrera No. 03-1654
The reasoning of United States v. Kaplansky, 42 F.3d 320
(6th Cir. 1994), further supports our finding that an attempt to
disarm an officer is a crime of violence. In Kaplansky, we
held that even kidnaping by deception constituted a crime of
violence, in part because the victim might realize what was
happening and resist. Id. at 324. Similarly, even if a suspect
merely takes a firearm from an officer’s constructive
possession without contact (i.e., not from the officer’s
physical person), the officer may notice such threatening
behavior and respond with force. Although it is true that the
elements of the offense do not require physical violence or
force, as a practical matter force and a consequential serious
risk of physical injury is typically likely to accompany such
an offense.
We also reject Defendant’s argument that an attempt to
disarm a police officer involves a less serious potential risk of
injury than a completed crime of the same. Once a person
endeavors to take an officer’s firearm without consent while
that officer is performing his or her duties, any risk of injury
that arises remains present whether the assailant is successful
in obtaining the gun or not. We understand that if the person
does succeed in gaining possession of the officer’s gun,
especially in the presence of the officer or directly from the
person of the officer, there is a greater likelihood that the risk
of harm will materialize in actual harm. Moreover, we
understand that the officer would be placed in greater danger
because he would be more vulnerable without his firearm.
These facts are nonetheless irrelevant to the court’s inquiry
because a significant risk of such injury still exists even
during an uncompleted attempt to commit the offense. See
United States v. Roberts, 59 Fed.Appx. 86, No. 01-5230, 2003
WL 343237, *4 (6th Cir. Feb. 12, 2003) (“First, we note that
§ 4B1.2(a)(2), on its face, requires that the seriousness must
reside in the risk, and not necessarily in the injury.”). We
believe that, more often than not, attempts to disarm officers
do not materialize into completed offenses because officers
generally respond with some level of force (sometimes lethal)
to repel their assailants. We reject the suggestion that the

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No. 03-1654 United States v. Herrera 13
likelihood of physical injury meaningfully diminishes (i.e.,
enough to conclude that a “serious” potential risk no longer
exists) when a person merely attempts to disarm an officer but
fails to complete the task. The commentary to the Guidelines
supports such a view. It states that crimes of violence
“include the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses. U.S.S.G. 4B1.2
(application note 1) (emphasis added).
Accordingly, we agree with the district court’s
determination that the offense as set forth in the disarming
statute inherently involves a serious potential risk of physical
injury, that it therefore constitutes a “crime of violence” under
U.S.S.G. § 4B1.2 and that Defendant is a career offender.
The district court made clear in its holding that Defendant’s
felonious assault conviction coupled with his attempt to
disarm an officer conviction was sufficient to satisfy the
career offender requirements in the guidelines. It was only
“for the sake of completeness” that the district court analyzed
the resisting and obstructing conviction under Michigan
Compiled Laws § 750.479(a). We need not reach the issue of
whether this additional predicate crime also constitutes a
crime of violence. We choose to avoid the question because,
given the findings we have already made, any possible
disagreement with the district court’s conclusion on this point
would be of no consequence.
B. Due Process
Defendant finally argues that “there are Due Process
concerns” with his sentence because, if affirmed, it
retroactively expands the punishment that he faces without
notice prior to his plea. Further, he claims he would have
sought a more favorable plea (e.g., the negotiation of a
statutory cap) if he had known he faced such a severe
sentence. We review this constitutional challenge de novo.
See United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir.
1993).
14 United States v. Herrera No. 03-1654
In this case, there are no due process implications for
Defendant’s guilty plea or eventual sentence. At the time he
entered his plea, Defendant acknowledged that he understood
the statutory maximum sentence and knew that the court
would use the Guidelines to make the final sentencing
determination. Moreover, the plea agreement states, “The
defendant understands that, based on his criminal record, he
may qualify as a ‘Career Offender’ under § 4B1.1 of the
Guidelines and receive a higher sentence under the Guidelines
than if he did not have the same criminal record.” It is
apparent from the signed plea agreement that Defendant’s
plea was knowingly and intelligently offered. The notice in
the agreement gave Defendant “sufficient awareness of the
relevant circumstances and likely consequences” of his plea.
Brady v. United States, 397 U.S. 742, 748 (1970); see also
United States v. Spires, 946 F.2d 896, No. 90-1864, 1991 WL
211281, *2 (6th Cir. Oct. 21, 1991) (“As long as a defendant
knows, before he enters his plea, the maximum sentence he
can receive, due process does not require the court to inform
the defendant of the specific sentencing guideline range that
will be applied.”).
Further, Defendant was not denied due process at
sentencing because the district court provided him with
reasonable notice that it was considering the enhancement and
provided Defendant with an opportunity to be heard on the
issue. Oyler v. Boles, 368 U.S. 448, 452 (1962). Defendant
received the presentence report, recommending that he be
sentenced as a career offender, almost six weeks prior to his
sentencing hearing and he was able to fully litigate the issue
at his hearing. See United States v. Wilhite, 929 F.2d 702,
No. 90-5931, 1991 WL 46512, *1 (6th Cir. Apr. 4, 1991)
(“Concerns for due process do not require that a criminal
defendant be placed on advance notice of the application of a
career offender sentence under guideline 4B1.1, so long as the
defendant has, as he was in the instant case, been afforded an
adequate opportunity to challenge the factual basis for
applying the enhancement.”).

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No. 03-1654 United States v. Herrera 15
CONCLUSION
Defendant’s prior conviction for attempting to disarm a
police officer, Michigan Compiled Laws § 750.479b(2),
constitutes a crime of violence under U.S.S.G. § 4B1.2(a)(2).
Defendant’s constitutional rights were not violated when he
was classified as a career offender. The judgment of the
district court is AFFIRMED.

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