RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0078p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

O SCAR H ARRIS , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 16-2239

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:10-cr-20461-1—Bernard A. Friedman, District Judge. Decided and Filed: April 4, 2017 Before: COLE, Chief Judge; SU TTON and KETHLEDGE, Circuit Judges.

_________________ COUNSEL
ON BRIEF: Andrew N. Wise, FEDERAL DEFEND ER OFFICE, Detroit, Michigan, for Appellant. Shane N. Cralle, UNITED STATES ATTORNEY’S OFFICE, De troit, Michigan, for Appellee.

_________________ OPINION

_________________ SUTTON, Circuit Judge. A ju ry 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 th e 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 Mi chigan felonious assault were crimes of violence under the Guidelines. Harris challenged that determination, and appeals it 

### >No. 16-2239 United States v. Harris Page 2

here, on the ground that Michigan felonious assa ult does not categorically involve the “use, attempted use, or threatened use of physical for ce,” as the elements clause of the Guidelines requires. U.S.S.G. § 4B1.2(a). But Michigan’s fe lonious 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 affirm.

The Guidelines raise the base offense leve l 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 st ate 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 “element s 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 a pply only to offenses that require a finding of “ violent force—that is, force capable of causing physic al pain or injury to another person.” Johnson v. United States , 559 U.S. 133, 140 (2010).
A few ground rules inform whether an offens e qualifies as a crime of violence under the elements clause. When an offense of convi ction 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 al l 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 l ook only to the offense’s st atutory 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).
In Michigan, any “person who assaults anothe r person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without in tending 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 w eapon, and (3) with the intent to injure or placeNo. 16-2239 United States v. Harris Page 3

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 Mich igan 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).
Taken together, these elements entail “the use, attempted use, or threatened use of physical force” under the federal Sentencing Guid elines. 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 a nd 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 w ithout intentionally attempting or threatening physical force against another with a dangerous weapon.

Our sister circuits take the same approach. In applying Johnson to New Mexico aggravated assault, the Tenth Circuit held th at “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 pa in 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 didNo. 16-2239 United States v. Harris Page 4

the First Circuit, which held that a comparable Massachusetts assault wi th 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 elemen ts 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).
In resisting this conclusion, Harris points out that someone can co mmit 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 in volves 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, phys ical force in the more general sense, then the use of a deadly weapon may transform this more ge neral force into the nece ssary ‘violent force’ to constitute a crime of vi olence within the meaning of Johnson .” Rafidi , 829 F.3d at 446 (quotations omitted). That’s ju st what we have here.

Even 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 c onviction 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 agai nst the victim’s back confirms that the thre at of serious injury through use of a danger ous 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).
“[O]ur focus on the minimum conduct criminaliz ed by the state statute is not an invitation to apply ‘legal imagination’ to the state offens e; there must be a realistic probability, not aNo. 16-2239 United States v. Harris Page 5

theoretical possibility, th at 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 possibilit y, much less a realistic probability, of Michigan convicting someone of felonious assault who had not used, atte mpted, or threat ened “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 Ha rris’s two convictions for Michigan felonious assault amount to crimes of violence unde r the Guidelines and th at the district court properly calculated his offense level and Guidelines range.
For these reasons, we affirm.