Opinion
Case No. 1:04-CV-774, Criminal Case No. 1:03:CR:70.
March 21, 2005
OPINION
This court has before it Michael Eugene Mann's ("Petitioner") Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his motion, Petitioner claims that his constitutional rights were violated when this court enhanced his sentence pursuant to the United States Sentencing Guidelines.
I. Procedural History
On August 5, 2003, Petitioner pled guilty to Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner was sentenced on November 5, 2003. The court first assessed a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). This was predicated on the court's finding that Petitioner had been convicted of two prior crimes of violence: possession with intent to deliver marijuana and operating a vehicle under the influence of liquor (OUIL). The court then enhanced Petitioner's offense level under the United States Sentencing Guidelines by eight levels as is explained below. This court then reduced Petitioner's offense level by three levels for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Petitioner was ultimately sentenced at an offense level of 29, criminal history category VI, with a sentence range of 151 to 188 months, but the sentence was capped at 120 months, the maximum sentence for felon in possession. Petitioner did not appeal his sentence. On November 16, 2004, Petitioner filed his motion under 28 U.S.C. § 2255. The § 2255 motion is timely.
When Petitioner was convicted under the Michigan statute, "operating while intoxicated" meant either: (a) the person was under the influence of liquor, a controlled substance, or a combination of liquor and a controlled substance; or (b) the person had an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. M.C.L.A. § 257.625 (2004).
II. Whether Petitioner's Offense Level Was Correctly Scored
Petitioner first claims that his sentencing guideline range was incorrectly calculated under the United States Sentencing Guidelines because a conviction for operating a vehicle under the influence of liquor (OUIL), third offense, was mistakenly deemed to be a "crime of violence" pursuant to U.S.S.G. § 4B1.2. This felony conviction, plus Petitioner's conviction for possession with intent to distribute marijuana, caused Petitioner to be scored as a "career offender" pursuant to U.S.S.G. § 4B1.1(a) and (b). Petitioner claims that this alleged error raised his base offense level from the correct level of 20 to 24. It should be noted that neither Petitioner nor his counsel objected to scoring the felony OUIL offense as a crime of violence.
The definition of "crime of violence" in U.S.S.G. § 4B1.2(a)(2) is:
(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that —
(2) . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.
The Application Notes, note 1, further defines "crime of violence" as:
* * *
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.
Petitioner cites Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377 (2004) to support his argument that OUIL is not a crime of violence under the sentencing guidelines. In Leocal, the Court held that a felony third offense conviction for driving under the influence (DUI) was not a "crime of violence" as that term is used in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F), which defines "crime of violence" to be a crime of violence as defined in 18 U.S.C. § 16. 18 U.S.C. § 16 defines "crime of violence" as follows:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Court held that DUI was not a crime of violence under the statute because DUI did not contain the necessary mens rea element that was required in the statutory definition. In responding to the government's argument that the "substantial risk" language of subsection 16(b) sweeps more broadly than does subsection 16(a) and would include DUI, the Court held that substantial risk language does not encompass all negligent misconduct but simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing the offense. "The reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime." 129 S.Ct. at 383 (Emphasis in original). Then, in a footnote immediately following this quoted language, the Court said:
Thus, § 16(b) plainly does not encompass all offenses which create a "substantial risk" that injury will result from a person's conduct. The "substantial risk" in § 16(b) relates to the use of force, not to the possible effect of a person's conduct. Compare § 16(b) (requiring a "substantial risk that physical force against the person or property of another may be used"), with United States Sentencing Commission, Guidelines Manual § 4B1.2(a)(2) (Nov. 2003) (in the context of a career-offender sentencing enhancement, defining "crime of violence" as meaning, inter alia, "conduct that presents a serious potential risk of physical injury to another"). The risk that an accident may occur when an individual drives while intoxicated is simply not the same thing as the risk that the individual may "use" physical force against another in committing the DUI offense. See, e.g., United States v. Lucio-Lucio, 347 F.3d 1202, 1205-1207 (C.A.10, 2003); Bazan-Reyes v. INS, 256 F.3d 600, 609-610 (C.A.7 2001).Id. n. 7.
Thus, the Supreme Court, itself, has distinguished the phrase "crime of violence" as used in the INA from the same phrase as used in the Sentencing Guidelines. Several courts have held that convictions for felony drunk driving are "crimes of violence." In United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. 2000), the court recognized the different language between U.S.S.G. § 4B1.2 and 18 U.S.C. § 16, and held that driving while intoxicated is a "crime of violence" under U.S.S.G. § 4B1.2. (That court also held, contrary to Leocal, that driving while intoxicated was also a crime of violence under 18 U.S.C. § 16.) This is a troubling conclusion. See United States v. Rutherford, 54 F.3d 370, 377 (7th Cir. 1995). But the Sentencing Commission has retained this definition of "crime of violence" for a long time in the face of some criticism. Id. The language of the Guideline, as distinguished from the INA, seems to require that third offense OUIL is a crime of violence.
Therefore, this court concludes that there is no basis for relief under Leocal. This court further concludes that third offense felony OUIL is a crime of violence under the sentencing guidelines.
III. Whether Petitioner's Sentence Violated His Sixth Amendment Right to Trial by Jury
Petitioner's other claim is that Petitioner's sentence was wrongfully enhanced under the United States Sentencing Guidelines for: possessing three firearms, two levels pursuant to U.S.S.G. § 2K2.1(b)(1)(A); possessing a stolen firearm, two levels pursuant to U.S.S.G. § 2K2.1(b)(4); and possessing the firearms in connection with another felony offense, four levels for drug trafficking pursuant to U.S.S.G. § 2K2.1(b)(5). In support of this claim, Petitioner cites Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). Petitioner did not object to the enhancements given for the number of firearms nor the stolen firearm. He did object to the four level increase for use of the firearms in connection with a drug trafficking offense.
In Blakely, the Supreme Court held that a Washington state trial judge's enhancement of a defendant's sentence based on the judge's finding of deliberate cruelty violated the defendant's Sixth Amendment right to a trial by jury. The decision called into question the constitutionality of both Washington state's sentencing guidelines and the federal sentencing guidelines.
Since November 16, 2004, the date Petitioner filed this § 2255, the United States Supreme Court has decided United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), that addresses whether the federal sentencing guidelines and enhancement provisions violate a defendant's Sixth Amendment rights. In Booker, the Supreme Court concluded that the federal sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment. However, the application of the federal guidelines does not violate a defendant's constitutional rights so long as the guidelines are advisory rather than mandatory. Although Petitioner has not raised a claim under Booker, this court will also consider possible claims under that decision.
Petitioner's motion fails procedurally because Blakely and Booker apply only to cases on direct review. The Sixth Circuit has explicitly held that the new procedural rules set forth in Blakely and Booker do not apply retroactively to § 2255 cases on collateral review. See Humphress v. United States, 398 F.3d 855, 860-863 (6th Cir. 2005). In Humphress, the district court had enhanced the defendant's sentence by nine points based on factual findings, at least some of which had not been found by the jury. The defendant filed a § 2255 motion, claiming that the enhanced sentence violated Blakely. Because Booker was decided after the defendant had filed his motion, the Sixth Circuit also considered Booker in its analysis. It concluded that, although Booker and Blakely were "new rules" of criminal procedure, they did not meet the criteria required to be applied retroactively to cases on collateral review set forth by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). Specifically, the new rules do not forbid punishment of certain primary conduct or prohibit a certain category of punishment for a class of defendants because of their status or offense. See Humphress, 398 F.3d at 860-863. Furthermore, they are not "watershed rules" that implicate the fundamental fairness and accuracy of the criminal proceeding. See id. Accordingly, Petitioner's claims must fail.
Conclusion
For these reasons, Petitioner's § 2255 Motion (docket #1) is DENIED pursuant to Rule 4 of the Rules Governing § 2255 Cases. This case will be dismissed with prejudice.
A Certificate of Appealability will be issued.
A separate order will issue.