United States District Court, E.D. Michigan, Southern Division
Judge David R. Grand
OPINION AND ORDER GRANTING MOTION FOR RECONSIDERATION
E. LEVY United States District Judge
August 14, 2017, the Court issued an opinion and order
granting Petitioner Terry Willis' motion to vacate his
sentence on the grounds that two of his four prior
convictions, armed robbery and assault with intent to murder,
did not qualify as crimes of violence under the Armed Career
Criminal Act. (Dkt. 192.)
has filed a motion for reconsideration, asking that the Court
reconsider in light of the Sixth Circuit's recent
decision in Raybon v. United States, Case No.
16-2522, 2017 WL 3470389 (6th Cir. Aug. 14, 2017). In
Raybon, the Sixth Circuit held that the
Michigan's assault with intent to do great bodily harm
qualified as a crime of violence under the ACCA. Id.
motion for reconsideration should be granted “if the
movant demonstrates a palpable defect by which the court and
the parties have been misled and that a different disposition
of the case must result from a correction thereof.”
In re Greektown Holdings, LLC, 728 F.3d 567, 573- 74
(6th Cir. 2013). “A palpable defect is one that is
‘obvious, clear, unmistakable, manifest, or
plain.'” Majchrzak v. Cty. of Wayne, 838
F.Supp.2d 586, 596 (E.D. Mich. 2011).
requests that the Court reconsider its conclusion that
assault with intent to murder does not qualify as a crime of
violence in light of the Sixth Circuit's holding that
assault with intent to do great bodily harm qualifies. (Dkt.
Raybon, the Sixth Circuit reasoned that assault with
intent to do great bodily harm qualified as a crime of
violence for several reasons. First, violent force, as
defined by the Supreme Court in Johnson v. United
States, 559 U.S. 133 (2010), means “force capable
of causing physical pain or injury to another person, ”
id. at 140, and “[t]hat sounds a lot like
‘great bodily harm, ' which means ‘force or
violence to do corporal harm.'” Raybon,
2017 WL 3470389, at *4. Second, “the Michigan Model
Criminal Jury Instruction for assault with intent to do great
bodily harm defines ‘great bodily harm' as any
‘physical injury that could seriously harm the health
or function of the body.'” Id. (citing
Mich. Crim. J.I. 17.7(4)). Finally, there was no
“realistic probability . . . that Michigan would apply
the statute to conduct that does not satisfy” the crime
of violence requirement of the ACCA. Id.
Court must adhere to Sixth Circuit precedent. And following
the reasoning of the Sixth Circuit in Raybon, the
Court finds that assault with intent to murder qualifies as a
crime of violence under section 924(e)(1) of the ACCA.
Assault with intent to do great bodily harm is a
“necessarily included lesser included offense of
assault with intent to murder.” People v.
Brown, 267 Mich.App. 141, 150 (2005); People v.
Moore, Nos. 224084-224086, 2002 WL 869961, at *10 (Mich.
Ct. App. Apr. 30, 2002) (citing People v. Raper, 222
Mich.App. 475, 483 (1995)). And because the lesser included
offense constitutes a crime of violence, the greater offense
also qualifies, as murder would cause harm to the body at
least as significant, if not greater than, would be required
to satisfy “great bodily harm.” See
Brown, 267 Mich.App. at 150 (“It defies common
sense to suggest that a defendant could commit an assault
with the intent to kill another person without also
intentionally and knowingly inflicting great bodily
harm.”). Accordingly, the Court concludes it is bound
by Raybon to hold that assault with intent to murder
constitutes a crime of violence.
Court reaches this conclusion with some reluctance. In
Johnson, the Supreme Court instructed lower courts
to focus on the type and extent of force, i.e., physical
force and how significant that physical force is, and to
guard against conflating physical force with physical injury.
See Johnson, 559 U.S. at 140.
forth in the August 14, 2017 opinion and order, the elements
for assault with intent to murder in Michigan are “(1)
an assault, (2) with an actual intent to kill, [and] (3)
which, if successful, would make the killing murder.”
People v. Escott, No. 297206, 2011 WL 2507846, at *1
(Mich. Ct. App. June 23, 2011) (quoting People v.
McRunels, 237 Mich.App. 168, 181 (1999)).
is defined as “either an attempt to commit a battery or
an unlawful act that places another in reasonable
apprehension of receiving an immediate battery.”
People v. Sutton, No. 328692, 2017 WL 104548, at *2
(Mich. Ct. App. Jan. 10, 2017) (quoting People v.
Starks, 473 Mich. 227, 234 (2005)). Battery is defined
as the “intentional, unconsented and harmful or
offensive touching of the person of another.”
Id. (quoting People v. Reeves, 458 Mich.
236, 240 n.4 (1998)).
definitions indicate that an individual may commit assault
with intent to murder through “offensive touching,
” which the Supreme Court has expressly rejected as
satisfying the physical force requirement of section
924(e)(1). United States v. Castleman, __U.S.__, 134
S.Ct. 1405, 1411 (2014) (rejecting common law definition of
battery, which included offensive touching, as sufficient to
satisfy the ACCA because such a reading was a “comical
misfit” with “violent felony” and
“physical force”). Thus, given that the Court
must look to the “least objectionable conduct that
would violate the statute, ” United States v.