UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 In Johnson v. United States, — U.S. —, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), the 

Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. 

§ 924(e)(2)(B)(ii), was unconstitutionally vague. In United States v. Pawlak, 822 F.3d 902 (6th 

Cir. 2016), the Sixth Circuit extended Johnson to invalidate the residual clause of the “crime of 

violence” definition set forth in § 4B1.2(a)(2) of the Sentencing Guidelines. After Johnson but 

before Pawlak, Defendant Lamall McClendon was sentenced subject to an enhancement under 

§ 2K2.1(a)(4)(A), which, at the time of McClendon’s sentencing, provided that a defendant who 

commits an unlawful weapons possession offense with one prior conviction of either a “crime of 

violence” or a controlled substance offense will be given a base offense level of 20. This 

provision used the “crime of violence” definition from § 4B1.2(a)(2). McClendon says that the 

predicate offense the Court used to make this determination (his prior Michigan conviction for 

felonious assault) no longer qualifies as a “crime of violence” after Johnson and Pawlak—and 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 

v. 

 

LAMALL MCCLENDON, 

 Defendant. 

Case No. 15-cr-20156 

Case No. 16-cv-11849 

Honorable Laurie J. Michelson 

OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE [17] 

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therefore asks this Court to vacate his sentence.1

 He also says that his counsel was ineffective for 

failing to object to the application of 2K2.1(a)(4)(A) during sentencing. 

I. 

McClendon was arrested in March 2015 pursuant to a criminal complaint charging him 

with possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), and felon in possession 

of a firearm, 18 U.S.C. § 922(g)(1). The indictment issued on March 18, 2015. (R. 8.) 

McClendon pled guilty to count two of the indictment, which charged him with being a 

felon in possession of a firearm in violation of 18 U.S.C. § 922(g). (R. 11, PID 25.) The plea 

agreement estimated a total offense level of 25 and a criminal history category of II, which 

resulted in an estimated guidelines range of 63 to 78 months. Contributing to both of these 

estimates was McClendon’s February 2013 conviction under Michigan’s assault-with-adangerous-weapon statute. (R. 11, PID 41.) Specifically, U.S.S.G. § 2K2.1(a)(4)(A) provides for 

a base offense level of 20 for a defendant who commits an unlawful weapons possession offense 

with one prior conviction of either a “crime of violence” or a controlled substance offense. 

After McClendon’s guilty plea, the probation officer discovered two additional 

convictions for domestic violence. Thus, the Presentence Report calculated an additional two 

criminal history points, U.S.S.G. § 4A1.1(c), a total criminal history score of five, and a criminal 

history category of III. The base offense level remained the same as in the Rule 11 plea 

agreement. There were no objections to the Presentence Report—including the calculation of the 

base offense level of 20 under § 2K2.1(a)(4)(A). The Court accepted the Presentence Report 

 

1

 The Court is aware that the Supreme Court will soon be deciding whether Johnson

applies to the sentencing guidelines, Beckles v. United States. See No. 15-8544, — U.S. —, 2016 

WL 1029080 (U.S. June 27, 2016) (granting certiorari), but as neither party has asked for a stay 

and McClendon’s prior assault conviction is a crime of violence irrespective of the residual 

clause, the Court will rule on the motion now. 

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determinations of the total base offense level (25) and criminal history (III) and, as a result, 

calculated McClendon’s advisory guidelines range at 70 to 87 months. The Court imposed a 

sentence of 70 months on August 20, 2015. (R. 16, PID 93.) Appointed counsel represented 

McClendon throughout the course of the proceedings, including sentencing. (R. 4.) 

Pursuant to the plea agreement, McLendon waived his right to file a direct appeal. 

Instead, he filed this pro se collateral appeal to vacate his sentence. (R. 17.) 

II. 

28 U.S.C. § 2255 provides: 

A prisoner in custody under sentence of a court established by Act of Congress 

claiming the right to be released upon the ground that the sentence was imposed 

in violation of the Constitution or laws of the United States, or that the court was 

without jurisdiction to impose such sentence, or that the sentence was in excess of 

the maximum authorized by law, or is otherwise subject to collateral attack, may 

move the court which imposed the sentence to vacate, set aside or correct the 

sentence. 

To prevail under this section, a prisoner must demonstrate “a fundamental defect which 

inherently results in a complete miscarriage of justice [or] an omission inconsistent with the 

rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783 (1979) 

(quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Specifically, “the movant must allege 

as a basis for relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the 

statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire 

proceeding invalid.’”Mallett v. United States, 334 F.3d 491, 496–97 (6th Cir. 2003) (quoting 

Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)). 

The primary issue in this motion is whether Michigan’s assault with a dangerous weapon 

statute is still a “crime of violence” after the Supreme Court’s ruling in Johnson. When the Court 

sentenced McClendon, it applied U.S.S.G. § 2K2.1(a)(4)(A). That section provided, in relevant 

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part, that a sentencing court should apply a base offense level of 20 if “the defendant committed 

any part of the instant offense subsequent to sustaining one felony conviction of either a crime of 

violence or a controlled substance offense[.]” U.S.S.G. § 2K2.1(a)(4)(A). “‘Crime of violence’ 

[had] the meaning given that term in §4B1.2(a) and Application Note 1 of the Commentary to 

§4B1.2.” Commentary to U.S.S.G. § 2K2.1(a)(4)(A). 

Therefore, at the time of sentencing, 

The term “crime of violence” mean[t] 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, [Force Clause] or 

(2) is burglary of a dwelling, arson, or extortion, involves use of 

explosives, [Enumerated-Felony Clause] or otherwise involves conduct 

that presents a serious potential risk of physical injury to another. 

[Residual Clause] 

U.S.S.G. § 4B1.2(a) (emphasis and explanatory brackets added). The emphasized language is the 

residual clause, which the Sixth Circuit held “unconstitutionally vague” in Pawlak. Thus, the 

question before the Court is whether McClendon’s conviction under Michigan’s assault-with-adangerous-weapon statute still qualifies as a crime of violence under the force clause, since it can 

no longer qualify by virtue of the residual clause. 

The Court engages in a multi-step inquiry to determine whether a prior offense can be 

classified as a predicate under the Sentencing Guidelines. United States v. Mekediak, 510 F. 

App’x 348 (6th Cir. 2013) (citing United States v. Montanez, 442 F.3d 485, 489 (6th Cir. 2006)). 

The ultimate question in this case will be whether the defendant admitted to a crime that “has as 

an element the use, attempted use, or threatened use of physical force against the person of 

another.” U.S.S.G. § 4B1.2(a)(1). “The prior conviction qualifies as an ACCA [or Guidelines] 

predicate only if the statute’s elements are the same as, or narrower than” a statute containing the 

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exact language as the use-of-force clause. Descamps v. United States, — U.S. —, 133 S. Ct. 

2276, 2281 (2013); see also United States v. White, No. 4:08-CR-103, 2016 U.S. Dist. LEXIS 

93818, at *5 (N.D. Ohio July 19, 2016) (“For a conviction to fall under the use-of-force prong, 

the underlying statute must necessarily entail ‘the use, attempted use, or threatened use of 

physical force against the person of another.’ So long as the statute only punishes conduct 

involving the use or attempted use of physical force, the statute does not need to expressly mirror 

the language of the use-of-force clause.”). 

 The question identified above may apply to the statute as a whole (formal categorical 

approach), or to a specific part of the statute (modified categorical approach). Descamps, 133 S. 

Ct. at 2283. Whether the modified categorical approach or the formal categorical approach 

applies depends on whether the statute is divisible. See United States v. Woodley, No. 15-cr20007, 2015 U.S. Dist. LEXIS 162065, at *6 (E.D. Mich. Dec. 3, 2015). Any statute with 

alternative phrasing could potentially be a divisible statute. The Supreme Court has directed the 

following “threshold inquiry” in such circumstances: 

The first task for a sentencing court faced with an alternatively phrased statute is 

thus to determine whether its listed items are elements or means. If they are 

elements, the court should do what we have previously approved: review the 

record materials to discover which of the enumerated alternatives played a part in 

the defendant’s prior conviction, and then compare that element (along with all 

others) to those of the generic crime. But if instead they are means, the court has 

no call to decide which of the statutory alternatives was at issue in the earlier 

prosecution. 

Mathis v. United States, — U.S. —, 136 S. Ct. 2243, 2248 (2016). That is to say, a statute is 

divisible only where it “lists multiple elements disjunctively,” not where it “enumerates various 

factual means of committing a single element.” Id. at 2256 (emphases added). In addition to the 

means vs. elements inquiry, “Divisibility must be accompanied by another condition . . . 

ambiguity in the statute of conviction . . . . [meaning that] an individual can violate the statute [of 

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conviction] in a way that constitutes a violent felony and in a way that does not.” United States v. 

Mitchell, 743 F.3d 1054, 1063 (6th Cir. 2014). 

 Thus, if the statute lists multiple elements disjunctively and the statute is ambiguous, then 

the Court applies the modified categorical approach. What this means is that the Court can 

“consult a limited class of documents . . . to determine which alternative [element] formed the 

basis of the defendant’s prior conviction.” United States v. Denson, 728 F.3d 603, 608 (6th Cir. 

2013) (quoting Descamps, 133 S. Ct. at 2281). These documents include the “charging 

document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by 

the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16 

(2005). The point is to determine which elements the defendant “necessarily admitted . . . 

through his plea,” United States v. Medina-Almaguer, 559 F.3d 420, 423 (6th Cir. 2009) (citation 

omitted), so that the Court can determine whether among those elements were “the use, 

attempted use, or threatened use of physical force against the person of another.” See United 

States v. Del Carmen Gomez, 690 F.3d 194, 200 (4th Cir. 2012); see also Descamps, 133 S. Ct. 

at 2285 (explaining that the modified categorical approach is “a mechanism” to apply “the 

categorical approach’s basic method” where the offense statute is divisible). If such documents 

are unavailable or do not establish which alternative was the basis of the conviction, the Court 

would not be able to say whether the defendant “necessarily admitted” an element that falls 

within the force clause, and that conviction would not qualify as a predicate offense. See, e.g., 

United States v. Nigro, 650 F. Supp. 2d 372, 376 (E.D. Pa. 2009). 

If the “threshold inquiry” set forth in Mathis shows that the statute is not divisible, then 

the “modified approach . . . has no role to play,” Descamps, 133 S. Ct. at 2285, and the Court 

applies the formal categorical approach. Thus, viewing the statute as a whole, the Court asks 

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whether the statute “has as an element the use, attempted use, or threatened use of physical force 

against the person of another.” U.S.S.G. § 4B1.2(a)(1). 

With this standard in mind, the Court turns to the Michigan statute at issue. It states in 

relevant part: 

(1) Except as provided in subsection (2), a 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 a felony punishable by imprisonment for not 

more than 4 years or a fine of not more than $2,000.00, or both. 

(2) A person who violates subsection (1) in a weapon free school zone is guilty of 

a felony punishable by 1 or more of the following: 

(a) Imprisonment for not more than 4 years. 

(b) Community service for not more than 150 hours. 

(c) A fine of not more than $6,000.00. 

Mich. Comp. Laws § 750.82. 

The Sixth Circuit—in a pre-Mathis opinion—held that the statute required a modified 

categorical approach, stating it was “ambiguous under a [formal] categorical approach because 

the statutory definition includes assault with a variety of items—not only guns and knives, but 

also iron bars, clubs, and brass knuckles—articles that we have commented are not included in 

the ACCA’s definition of a firearm, knife, or ‘destructive device.’” United States v. Mekediak, 

510 F. App’x 348 (6th Cir. 2013). (The Sentencing Guideline provision incorporates the 

ACCA’s definition of “firearm.” Comment to U.S.S.G. § 2K2.1(a)(4)(A).) 

Post-Mathis, however, the Court believes that the statute requires a formal categorical 

approach. Mathis itself provided the following example of a non-divisible statute: an assault with 

a deadly weapon offense where “deadly weapon” meant “knife, gun, bat, or similar weapon[.]” 

136 S. Ct. at 2249 (citation omitted). That, the Court said, would be an example of “diverse 

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means of satisfying a single element of a single crime” where “a jury need not find (or a 

defendant admit) any particular item[.]” Id. That is just the case here: a jury need only find that 

an assault was committed with some “dangerous weapon”—they need not be unanimous on what 

particular weapon was used. And the second subsection criminalizes the same conduct, but 

narrows the scope of that conduct to a particular location. Therefore, pursuant to Mathis, the 

Court will apply the formal categorical approach to the statue. 

“The elements of felonious assault [Mich. Comp. Laws § 750.82] are (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) (citation omitted). Sixth Circuit panels have previously held that these elements 

sufficiently contained “the use, attempted use, or threatened use of physical force against the 

person of another” to make the offense a violent felony under the ACCA. United States v. 

Mosley, 339 F. App’x 568, 575 (6th Cir. 2009); see also United States v. O’Valle, 9 F.3d 110, 

1993 U.S. App. LEXIS 22841, at *2–4 (6th Cir. 1993) (table) (drawing the same conclusion 

under the Guidelines, § 4B1.1). 

After Mosley, the Supreme Court made the following clarification to the “violent felony” 

definition: “We think it clear that in the context of a statutory definition of ‘violent felony,’ the 

phrase ‘physical force’ means 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). Even in light of 

Johnson (2010), the Court finds that § 750.82 qualifies as a crime of violence. 

Since Johnson (2010), the Sixth Circuit has cautioned that “not all crimes involving a 

deadly weapon have the threatened use of physical force as an element” because “[t]he use of a 

deadly weapon may exacerbate the threat of physical force, but does not necessarily supply the 

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threat if it is not already present in the underlying crime.” United States v. Rede-Mendez, 680 

F.3d 552 (6th Cir. 2012). In Rede-Mendez, the Sixth Circuit examined a New Mexico aggravated 

assault (deadly weapon) statute. New Mexico’s definition of assault included “the use of 

insulting language toward another impugning his honor, delicacy or reputation.” Id. at 557. This 

made “New Mexico’s definition of aggravated assault . . . broader than the generic version 

because the underlying assault can be committed solely by using insulting language.” Id. at 557. 

Thus, “[n]ot every crime becomes a crime of violence when committed with a deadly weapon 

. . . the underlying crime must already have as an element some degree of, or the threat of, 

physical force in the more general sense (such as ‘the least touching’).” Id.

Michigan courts “have defined an assault as either an attempt to commit a battery or an 

unlawful act which places another in reasonable apprehension of receiving an immediate 

battery.” People v. Reeves, 580 N.W.2d 433, 435 (Mich. 1998) (citation and internal quotation 

marks omitted). In turn, “Battery has been defined as ‘an intentional, unconsented and harmful or 

offensive touching of the person of another, or of something closely connected with the person.’” 

People v. Starks, 701 N.W.2d 136, 140 (2005) (citations omitted). This offense therefore 

involves “the least touching.” See Rede-Mendez, 680 F.3d at 558. The First Circuit, in examining 

a similar Massachusetts assault-with-a-dangerous weapon statute, explained, “Logically, 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 (1st Cir. 2015). Further, the court 

added, “dicta in Johnson assumed that an assault and battery with a dangerous weapon was a 

‘violent felony.’” Id. at 115 (citing Johnson, 559 U.S. at 140–41). 

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Therefore, the Court joins the others in this district which have held that Michigan 

Compiled Laws § 750.82 qualifies as a crime of violence under the force clause after Johnson

(2010). See, e.g., United States v. Franklin, No. 10-20467-01, 2014 U.S. Dist. LEXIS 77088, at 

*14 (E.D. Mich. June 6, 2014); Smith v. United States, No. 06-20659, 2012 U.S. Dist. LEXIS 

64391, at *11 (E.D. Mich. May 8, 2012). Thus, McClendon is not entitled to resentencing based 

on his argument that § 2K2.1(a)(4)(A) did not apply to him. (R. 17, PID 100.) 

This conclusion also suffices to dispose of McClendon’s claim that his counsel was 

ineffective for failing to raise the Johnson issue. (R. 17, PID 99.) “An ineffective assistance 

claim has two components: A petitioner must show that counsel’s performance was deficient, 

and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) 

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); see Valentine v. United States, 488 

F.3d 325, 331 (6th Cir. 2007) (applying Strickland to a § 2255 habeas petition). To satisfy the 

prejudice prong, McClendon must show that “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. Even if counsel should have raised McClendon’s Johnson argument 

prior to sentencing, counsel’s failure to do so ultimately resulted in no prejudice to McClendon. 

As just reasoned, his base offense level was properly calculated under § 2K2.1(a)(4)(A) . 

III. 

For the reasons set forth above, IT IS ORDERED that McClendon’s motion to vacate 

sentence (R. 17) is DENIED. 

SO ORDERED. 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

Dated: January 31, 2017 U.S. DISTRICT JUDGE 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court=s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on January 31, 2017. 

s/Keisha Jackson 

Case Manager 

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