from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:10-cr-20461-1-Bernard
A. Friedman, District Judge.
N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for
N. Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit,
Michigan, for Appellee.
Before: COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit
SUTTON, Circuit Judge.
convicted Oscar Harris of being a felon in possession of a
firearm, and the district court sentenced him to 300
months' imprisonment under the Armed Career Criminal
Act's residual clause. After the Supreme Court
invalidated the residual clause, Harris received a new
sentence of 115 months-the top of a range set in part by the
district court's determination that Harris's two
prior convictions for Michigan felonious assault were crimes
of violence under the Guidelines. Harris challenged that
determination, and appeals it here, on the ground that
Michigan felonious assault does not categorically involve the
"use, attempted use, or threatened use of physical
force, " as the elements clause of the Guidelines
requires. U.S.S.G. § 4B1.2(a). But Michigan's
felonious assault statute obliges a jury to find at least
attempted or threatened offensive touching and use
of a dangerous weapon. Because those two elements together
add up to violent force, and thus to a crime of violence, we
Guidelines raise the base offense level for firearm offenses
preceded by two felony convictions for "crime[s] of
violence." Id. § 2K2.1(a)(2). One of the
definitions of crimes of violence covers "any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that . . . has as an element the
use, attempted use, or threatened use of physical force
against the person of another." Id. §
4B1.2(a); see id. § 2K2.1 cmt. n.1. This
provision, often called the "elements clause, "
mirrors the elements clause in the Armed Career Criminal Act,
and we typically interpret them the same way. See United
States v. Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir.
2012). Both clauses apply only to offenses that require a
finding of "violent force-that is, force
capable of causing physical pain or injury to another
person." Johnson v. United States, 559 U.S.
133, 140 (2010).
ground rules inform whether an offense qualifies as a crime
of violence under the elements clause. When an offense of
conviction does not list multiple elements in the
alternative, it is not "divisible." Mathis v.
United States, 136 S.Ct. 2243, 2249 (2016). And when the
relevant statute is not divisible, as all agree is the case
here, we apply the "categorical approach" to
determine what the state offense entails. Descamps v.
United States, 133 S.Ct. 2276, 2284 (2013). That means
we look only to the offense's statutory definition along
with controlling judicial interpretations of it, rather than
at the facts underlying the conviction, to determine whether
the offense is a crime of violence. See Taylor v. United
States, 495 U.S. 575, 600 (1990).
Michigan, any "person who assaults another person with a
gun, revolver, pistol, knife, iron bar, club, brass knuckles,
or other dangerous weapon without intending to commit murder
or to inflict great bodily harm less than murder is guilty
of" felonious assault, also called assault with a
dangerous weapon. Mich. Comp. Laws § 750.82. That
language, reframed as elements, requires "(1) an
assault, (2) with a dangerous weapon, and (3) with the intent
to injure or place the victim in reasonable apprehension of
an immediate battery." People v. Jackson, 790
N.W.2d 340, 343 n.2 (Mich. 2010) (emphasis and quotation
omitted). The assault must consist of attempted battery or
"an act that would cause a reasonable person to fear or
apprehend an immediate battery, " and that the defendant
must have intended to injure or cause fear of immediate
battery. People v. Micsak, No. 308317, 2013 WL
275906, at *2 (Mich. Ct. App. Jan. 24, 2013). A battery, in
this context, is "a forceful or violent touching, "
id.; see People v. Datema, 533 N.W.2d 272,
275 n.8 (Mich. 1995), which Michigan defines as "any use
of physical force against another person so as to harm or
embarrass" that person, People v. Chandler, 506
N.W.2d 882, 884 (Mich. Ct. App. 1993). And a dangerous weapon
is "any object that is used in a way that is likely to
cause serious physical injury or death." People v.
Davis, No. 234898, 2002 WL 31117043, at *2 (Mich. Ct.
App. Sept. 24, 2002); see People v. Goolsby, 279
N.W. 867, 869 (Mich. 1938).
together, these elements entail "the use, attempted use,
or threatened use of physical force" under the federal
Sentencing Guidelines. U.S.S.G. § 4B1.2(a). We said so
before the Supreme Court's 2010 Johnson
decision. See United States v. Mosley, 339
F.App'x 568, 575 (6th Cir. 2009) (finding Michigan
felonious assault a violent felony under ACCA); United
States v. O'Valle, 9 F.3d 110, 110 (6th Cir. 1993)
(table) (same under Guidelines). And our cases since
Johnson show why that conclusion remains sound. When
a felony must be committed with a deadly weapon and involves
some degree or threat of physical force, it is a crime of
violence under the elements clause. Rede-Mendez, 680
F.3d at 558; see United States v. Rafidi, 829 F.3d
437, 446 (6th Cir. 2016). Michigan felonious assault meets
that threshold because there is no way to commit it without
intentionally attempting or threatening physical force
against another with a dangerous weapon.
sister circuits take the same approach. In applying
Johnson to New Mexico aggravated assault, the Tenth
Circuit held that "engaging in menacing conduct toward a
victim, with a weapon capable of causing death or great
bodily harm, threatens the use of 'force capable of
causing physical pain or injury.'" United States
v. Ramon Silva, 608 F.3d 663, 672 (10th Cir. 2010). The
Seventh Circuit adopted the reasoning of Ramon Silva
and applied it to Indiana aggravated battery. See United
States v. Taylor, 630 F.3d 629, 634-35 (7th Cir. 2010).
As did the First Circuit, which held that a comparable
Massachusetts assault with a dangerous weapon statute was a
crime of violence because "the harm threatened by an
assault is far more violent than offensive touching when
committed with a weapon that is designed to produce or used
in a way that is capable of producing serious bodily harm or
death." United States v. Whindleton, 797 F.3d
105, 114 (1st Cir. 2015). We agree with all of that, and with
the similar reasoning that yet more circuits used in applying
the elements clause to assault-with-a-dangerous-weapon
statutes before Johnson. See United States v.
Dominguez, 479 F.3d 345, 348 (5th Cir. 2007); United
States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009).
resisting this conclusion, Harris points out that someone can
commit Michigan battery with offensive touching and that
offensive touching does not amount to sufficient force under
Johnson. But this argument asks us to look at just
one element, the assault, to determine whether the offense
includes sufficient force. The categorical approach
doesn't require that each element of an offense
involve use of force; it requires that the offense
overall include use of violent force. Michigan
felonious assault involves violent force because it
proscribes not common law assault but common law assault
with a dangerous weapon. And "if a statute
ha[s] as an element some degree of, or the threat of,
physical force in the more general sense, then the use of a
deadly weapon may transform this more general force into the
necessary 'violent force' to constitute a crime of
violence within the meaning of Johnson."
Rafidi, 829 F.3d at 446 (quotations omitted).
That's just what we have here.
Harris's two case citations show that the felonious
assault statute requires a dangerous weapon and a
threatened, attempted, or successful battery. Take People
v. Davis, 549 N.W.2d 1, 5 (Mich. Ct. App. 1996), which
upheld a conviction for the "mere pressing" of a
gun, as Harris puts it, to the victim's back.
Appellant's Br. 11. The "mere" is easy for
Harris to say, while the "pressing" of the gun
against the victim's back confirms that the threat of
serious injury through use of a dangerous weapon is critical
to the offense. Harris's other case, People v.
Jones, likewise confirms that "[f]elonious
assault" is not just simple assault but is "defined
as a simple assault aggravated by the use of a weapon."
504 N.W.2d 158, 164 (Mich. 1993).
focus on the minimum conduct criminalized by the state
statute is not an invitation to apply 'legal
imagination' to the state offense; there must be a
realistic probability, not a theoretical possibility, that
the State would apply its statute to conduct that falls
outside" the limitations of the elements clause.
Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013)
(quotation omitted); United States v. Patterson,
___F.3d___, No. 15-4112, 2017 WL 1208425, at *2 (6th Cir.
Apr. 3, 2017). We see no possibility, much less a realistic
probability, of Michigan convicting someone of felonious
assault who had not used, attempted, or threatened
"force capable of causing physical pain or injury to
another person." Johnson, 559 U.S. at 140.
Harris indeed points to no such case. All of this means that