United States of America v. Darrell J. Mart in

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0249P (6th Cir.)
File Name: 04a0249p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRELL J. MART IN,
Defendant-Appellant.
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No. 03-1855
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 03-00007—Gordon J. Quist, District Judge.
Argued: June 16, 2004
Decided and Filed: July 29, 2004
Before: SILER, DAUGHTREY, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
Appellant. Andrew Byerly Birge, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
2 United States v. Martin No. 03-1855
Appellant. Andrew Byerly Birge, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. A federal grand jury indicted
Darrell Martin for possessing a firearm in violation of
18 U.S.C. §§ 922(g) and 924(a)(2), and he pleaded guilty to
the offense. Determining that the State of Michigan had
successfully prosecuted Martin for at least one prior “crime of
violence”—either third-degree fleeing and eluding or resisting
and obstructing a police officer—the district court gave
Martin a base-offense level of 20 under § 2K2.1(a)(4)(A) of
the Sentencing Guidelines. Martin appeals his sentence,
claiming that neither conviction constitutes a crime of
violence. Concluding that third-degree fleeing and eluding
under Michigan law is a crime of violence, we affirm.
I.
On September 10, 2002, officers of the Muskegon,
Michigan police department identified a stolen car and
proceeded to follow it. As the car rounded a corner, it slowed
down and (before it had stopped) the two occupants of the car
jumped out of the moving car and fled. Police chased the
men but apprehended only one of them, whom they later
identified as Darrell Martin. As the officers ordered Martin
to the ground, they noticed a handgun lying on the ground
five or six feet away. Martin acknowledged that he owned
the weapon, and the officers arrested Martin and placed him
in custody.
On January 9, 2003, a grand jury indicted Martin for being
a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). He pleaded guilty to the charge.

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No. 03-1855 United States v. Martin 3
In its presentence report, the Government recommended a
base-offense level of 20 under § 2K2.1(a)(4)(A) of the
Sentencing Guidelines. That provision says defendants who
violate certain firearms-related laws must receive a base-
offense level of 20 if they committed the offense “subsequent
to sustaining one felony conviction of [] a crime of violence,”
as defined by § 4B1.2(a) of the Guidelines and its application
note 1. In the Government’s view, Martin previously had
been convicted of two qualifying offenses: (1) “Resisting and
Obstructing a Police Officer” under Mich. Comp. Laws
§ 750.479 (as written prior to the 2002 amendments), and
(2) “Fleeing and Eluding–3rd [degree]” under Mich. Comp.
Laws § 750.479a(1) and (3). JA 68–69. Martin argued that
neither conviction constituted a “crime of violence” under the
Guidelines and that his base-offense level should be 14, not
20.
The district court adopted the Government’s
recommendation. It then added a 2-level upward adjustment
under U.S.S.G. § 2K2.1(b)(4) (possession of a stolen gun) and
a 3-level downward adjustment under U.S.S.G. § 3E1.1
(acceptance of responsibility), all of which generated an
offense level of 19. Combining this offense level with his
criminal history category (V), the Sentencing Guidelines gave
Martin a sentencing range of 57 to 71 months, and the district
court sentenced him to a 57-month prison term.
II.
Martin challenges his sentence on appeal, arguing that
§ 2K2.1(a)(4)(A) does not apply because he had not been
convicted of any “crimes of violence” at the time he
committed the § 922(g) offense. As the parties agree, we give
fresh review to the legal question whether either of Martin’s
convictions constitutes a “crime of violence.” See United
States v. Bass, 315 F.3d 561, 564–65 (6th Cir. 2002). And as
the parties also agree, Martin’s sentence may be affirmed if
either the fleeing-and-eluding conviction or the resisting-and-
obstructing conviction amounts to a “crime of violence.” In
4 United States v. Martin No. 03-1855
this instance, we need consider only whether Martin’s fleeing-
and-eluding conviction qualifies.
A.
Section 2K2.1(a)(4)(A) of the Sentencing Guidelines
confers a base offense level of 20 on defendants convicted of
offenses for “Unlawful Receipt, Possession, or Transportation
of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition” if the defendant
“committed any part of the [] offense subsequent to sustaining
one felony conviction of either a crime of violence or a
controlled substance offense.” The application notes to the
provision refer the reader to § 4B1.2(a) and its accompanying
application note 1 for a definition of a “crime of violence.”
U.S.S.G. § 2K2.1 cmt. n.5. Under the definition provided in
§ 4B1.2(a), “crimes of violence” encompass
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.
The accompanying application note expands the list of
enumerated offenses to include “murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of credit, and
burglary of a dwelling” as “crimes of violence,” and reiterates
that other offenses also count 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

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No. 03-1855 United States v. Martin 5
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 cmt. n.1. Because neither the Guideline nor
its application note names fleeing and eluding as a crime of
violence, that offense must either (1) have “as an element the
use, attempted use, or threatened use of physical force against
the person of another” or (2) “present[] a serious potential risk
of physical injury to another” to qualify. U.S.S.G. § 4B1.2(a)
& cmt. n.1.
In deciding whether an offense amounts to a “crime of
violence” under these two tests, we have applied a
“categorical approach,” which is to say we have looked at
“the fact of conviction and the statutory definition of the
predicate offense,” not the “underlying facts regarding the
offense,” to determine whether either test is satisfied. United
States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995); see
United States v. Champion, 248 F.3d 502, 505 (6th Cir. 2001)
(applying categorical approach in determining whether an
offense has as an element “the use, attempted use, or
threatened use of physical force”); United States v. Payne,
163 F.3d 371, 374 (6th Cir. 1998) (applying categorical
approach in determining whether an offense entails “serious
potential risk of physical injury”); cf. Taylor v. United States,
495 U.S. 575, 602 (1990) (applying the same approach in
determining whether an offense is a “violent felony” under
the armed career criminal statute). If the relevant statute of
conviction does not supply a clear answer to these inquiries,
as Martin concedes, Appellant’s Br. at 16, the sentencing
court may consult the indictment and either the jury
instructions or plea agreement for the specific conduct with
which the defendant was charged in order appropriately to
characterize the offense. See United States v. Kaplansky, 42
F.3d 320, 322 (6th Cir. 1994) (en banc); see also Bass, 315
F.3d at 565 (“[W]hen it is not clear from the elements of the
offense alone whether the crime involved a serious risk of
potential injury to another, the sentencing court may review
6 United States v. Martin No. 03-1855
the indictment for the specific conduct charged.”) (quotation
omitted).
B.
Martin’s presentence report indicates, and the parties agree,
that Martin pleaded guilty to fleeing and eluding in the third
degree in violation of Michigan Compiled Laws
§ 750.479a(1) and (3). That statute says that “[a] driver of a
motor vehicle who is given . . . [a] signal by a[n] officer . . .
directing the driver to . . . stop shall not willfully fail to obey
that direction by increasing the speed of the vehicle,
extinguishing the lights of the vehicle, or otherwise
attempting to flee or elude the . . . officer.” Mich. Comp.
Laws § 750.479a(1). A person commits the offense in the
third-degree if the violation “results in a collision or
accident,” if the violation “occurred in an area where the
speed limit is 35 miles an hour or less” or if the defendant has
a previous conviction for actual or attempted fourth-degree
fleeing and eluding or similar misconduct. Id. § 750.479a(3).
The charging document—which is described in the
presentence report (in language to which the defendant did
not object)—says that Martin committed the third-degree
offense by causing “a collision or an accident” or by failing
to stop while in a 35-mile-per-hour zone, or both. JA 69.
Because fleeing and eluding does not have as an element
“the use, attempted use, or threatened use of physical force
against the person of another,” the pertinent question is
whether the offense “otherwise involves conduct that presents
a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2). We believe that it does.
When a motorist disobeys an officer and flees in his car,
whether by “increasing [his] speed,” “extinguishing the
[car’s] lights” or by “otherwise attempting to flee,” that
person creates a conspicuous potential risk of injury to
pedestrians, vehicles sharing the road, passengers in the
fleeing car and the pursuing officer. See United States v.

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No. 03-1855 United States v. Martin 7
Howze, 343 F.3d 919, 922 (7th Cir. 2003) (noting that with
the offense of flight, “[b]ystanders are in particular jeopardy”
and “[c]ollisions between fleeing vehicles and pedestrians or
others who get in the way are common”). That Martin
committed this offense either by causing a “collision or
accident,” Mich. Comp. Laws § 750.479a(3)(a), or by fleeing
in a 35-mile-per-hour zone (presumably a residential or
school area), id. § 750.479a(3)(b), confirms the palpable risk
of physical injury to others caused by flight under the statute.
At the same time that flight itself creates a risk of injury to
others, so too does the suspect’s eventual apprehension. By
making a deliberate choice to disobey a police officer, the
motorist provokes an inevitable, escalated confrontation with
the officer. In this regard, fleeing and eluding resembles
escape, see Howze, 343 F.3d at 921–22; United States v.
James, 337 F.3d 387, 391 n.4 (4th Cir. 2003), which nine
courts of appeals (including this one) have agreed constitutes
a “crime of violence” under the Guidelines, regardless of
whether the defendant forcefully escaped from a maximum
security prison or walked away from a halfway house. See
United States v. Thomas, 361 F.3d 653, 656 & n.4 (D.C. Cir.
2004) (citing cases); United States v. Harris, 165 F.3d 1062,
1068 (6th Cir. 1999). Both escape and fleeing from a police
officer represent “continuing offense[s],” Thomas, 361 F.3d
at 660, which heighten the emotions and adrenaline levels of
the parties involved, see United States v. Gosling, 39 F.3d
1140, 1142 (10th Cir. 1994) (attributing the risk of injury
inherent in escape at least partially to the “supercharged
emotions” involved in “evading those trying to recapture” the
suspect), and which generally end with a confrontation
between the officer and the escapee or fleeing driver, Thomas,
361 F.3d at 660. Such a confrontation “inherently presents
the serious potential risk of physical injury” because the
fleeing driver “intent on his goal” of eluding the officer “faces
the decision of whether to dispel the [officer’s] interference
or yield to it.” United States v. Dickerson, 77 F.3d 774, 777
(4th Cir. 1996).
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Indeed, fleeing and eluding in most settings will pose a
greater risk of injury than escape. Howze, 343 F.3d at 922.
While an escape and fleeing alike involve the potential for
dangerous confrontation between the suspect and police
officers, not all escapes involve flight and the inherent third-
party risks that such conduct entails. Id. Because fleeing and
eluding an officer while in a car generally will present serious
potential risks of physical injury to third parties—the only
relevant inquiry—it necessarily qualifies as a “crime of
violence” under the Guidelines.
To date, two courts of appeals have reached a comparable
conclusion. See Howze, 343 F.3d at 921–22 (determining that
the offense of fleeing from an officer under Wisconsin law
presents a “serious potential risk of physical injury to
another,” relying in large part on the offense’s similarity to,
and even greater potential for danger than, an escape); James,
337 F.3d at 390–92 (same, South Carolina law). While
Howze and James concluded that fleeing from an officer in a
car “presents a serious potential risk of physical injury to
another” in the course of concluding that the offense is a
“violent felony” under the armed career criminal statute,
18 U.S.C. § 924(e), rather than a “crime of violence” under
the Sentencing Guidelines, this difference in the predicate
provisions does not alter our analysis. The relevant language
of the two provisions—“serious potential risk of physical
injury to another”—is the same. And this Court has held that
the two provisions entail the same basic inquiry. See, e.g.,
Arnold, 58 F.3d at 1121.
That the Michigan fleeing-and-eluding statute may “be
violated by conduct that is passive, non-violent, and non-
threatening,” Appellant Br. at 17, does not demand a different
conclusion. The Guideline defines offenses presenting a
“serious potential risk of physical injury” as crimes of
violence; it does not require that actual injury or violence
occur or even that the risk of injury materialize in a given
case. See United States v. Winn, 364 F.3d 7, 11 (1st Cir.
2004) (“It is irrelevant whether the [crime of violence]

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No. 03-1855 United States v. Martin 9
actually involved any violence.”) (quotation omitted); Payne,
163 F.3d at 375 (noting that “under the categorical approach”
it is not relevant whether a “physical injury actually occurred
in the case at bar”); Gosling, 39 F.3d at 1142 (acknowledging
that escape “may or may not explode into violence and result
in physical injury” but “always has the serious potential to do
so”). To require crimes of violence in all fact patterns to lead
to a violent or harmful end not only would ignore our
categorical approach to this inquiry, but it also would read the
“serious potential risk of physical injury” language out of the
Guideline. See U.S.S.G. § 4B1.2(a)(2); Thomas, 361 F.3d at
658–59.
Nor does it make a difference that Martin could have
violated the statute by committing a prior violation of fourth-
degree fleeing and eluding instead of causing an accident or
fleeing in a 35-mile-per-hour zone. See Mich. Comp. Laws
§ 750.479a(3) (stating that a defendant commits third-degree
fleeing and eluding if (1) “[t]he violation results in a collision
or accident,” (2) “[a] portion of the violation occurred in an
area where the speed limit is 35 miles an hour or less” or
(3) “[t]he individual has a prior conviction for fourth-degree
fleeing and eluding, attempted fourth-degree fleeing and
eluding, or fleeing and eluding under [another provision]
prohibiting substantially similar conduct”). Even if it were
true that the fourth-degree offense—which entails the same
conduct as third-degree fleeing and eluding, but without the
additional factor of an accident, a 35-mile-per-hour zone or a
prior fleeing-and-eluding conviction, id. § 750.479a(2)—does
not pose a serious potential risk of physical injury, as Martin
alleges, case law makes clear that we must look at the conduct
charged in the indictment when the statutory offense
potentially covers violent and non-violent crimes. See Bass,
315 F.3d at 565–66 (noting that the indictment charged the
defendant with “aggravated” child abuse while the statute
under which the defendant was convicted encompassed a
broader range of conduct); United States v. Winter, 22 F.3d
15, 18–19 (1st Cir. 1994) (determining that where the
statutory definition of an offense encompasses both violent
10 United States v. Martin No. 03-1855
and non-violent crime, courts may look to the “nature and
object of the [] activity as described in the indictment and
fleshed out in the jury instructions”). In this instance,
Martin’s indictment under the statute charged him with
fleeing that caused an accident, or fleeing in a 35-mile-per-
hour zone, or both.
Because the language of the Guideline is clear—that
“potential” risk of injury rather than actual violence or injury
is the touchstone of a violent crime—Martin’s appeal to the
rule of lenity does not add traction to his argument. See
United States v. Boucha, 236 F.3d 768, 774 (6th Cir. 2001)
(noting that lenity applies if ambiguity remains after
considering the plain language and structure of the statute).
Nor, at all events, is the rule of lenity the only safety valve
available. Had the district court believed that the calculation
of Martin’s criminal history category under the Guidelines
resulted in an inequitable sentence, § 4A1.3 would have
permitted a downward adjustment. The court, however,
considered and rejected that option.
III.
For the foregoing reasons, we affirm the defendant’s
sentence.

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