* The Ho nora ble RobertH. Clel and, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Michigan, sit ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0222P (6th C ir.) File Name: 04a02 22p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

F ELI X H ERRERA , Defenda nt-Appel

lant. X - - - -
> , - - N No. 03-1654

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 02-00259—Richard A. Enslen, District Judge.

Argued: June 16, 2004 Decided and Filed: July 12, 2004 Before: RYAN and COOK, Circuit Judges; CL ELAND, District Judge. *

_________________ COUNSEL

ARGUED: Lawrence

J. Phelan, HAEHN ED & PHELAN, Grand Rapids, Michigan, for Appellant. Andrew B. B irge, 2 United Sta tes v. He rrera No. 03-1654

UNITE D STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRI EF: Lawrence J. Phelan, HAEHNED & PHELAN, Grand

Rap ids, Michigan, for A ppellant

. Andrew B. Birge, UNI

TED STATES ATTOR

NEY , Grand Rapids, Michigan, for Appellee.

_________________ OPINION

_________________ CLELA ND, Di stric t Judge. Defendant Felix Herrera appeals a senten cing de terminat ion that qu

alified h im as a
career offender pursuant to § 4 B1.1 of the United States Sentencing Guidelines (U.S.S.G.). Defendant claims that the trial court erred in concluding that his previouss tate felony convictions for atte mpted taking of a firearm from a pe ace officer, Mich. Comp. Law s § 750.479b(2), an d for re sist in g and obstr

ucting a police officer, Mich. Comp. L aws § 750.479(a), were “v iolen t crimes” within the meaning of U.S.S.G. § 4B1.2( a). For the reasons set forth below, we agreewith the district judge’s decision as to the firs t o f the two predicate convictions, find it unnece ssa ry to rea ch the question of

the second predic ate conviction and AFFI RM the judgmen t of the dis trict cou

rt.
I. FACTS AND PROCEDURAL HISTORY

OnJuly 2 2, 2002 in L

ansing, Mic higan, Defend ant sold crack cocaine to an undercover offic er and was confronted

by
a team of surveillance officers wea ring jackets

with the word “POLI CE” emblazoned onthem. According to the officers at the scene, D efenda

nt init ia lly d

id not comp ly w

ith their command to lie on the ground, but pulled a gun fro m h is waistband

and swung it toward the offic ers. The officers dove for cover, and Defendant soon decided to lower his gun and obey the off

icers ’ commands. On October 24, 2002, a federal grand

jury returne d a three -count indi ctment against Defend ant, char ging him with knowingly and inten

tionallyNo. 03-1654 United Sta tes v. He rrera 3

possessing cocaine base (crack) with the intent to distribute, inviolation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), being a
con victedfelon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1), an d carrying a nd bra ndis hing a firearm inrelation to a drug trafficking c rime, in violation o f 18 U.S.C. § 924(c). Defendant entered a gu il ty plea to the possession with intent to distribute charge (Count I) and the carry ing and brandishing a firearm char ge (Count II

I) on January 6, 2003. P ur suant to the plea agreement, the final determination

as to the le

ngth of Defendant’s sentence rested solely with the trial court, which woul d consider a presentence report and objections or suggestions from the government

and Defendant. The g ove rnment a greed to dismiss the felon in possession charge (Count II ).

About March 24, 2003, a presentence report was prepared, indicating that Defendant had been previ ously convicte d in state co urt on numerous occasions. Among Defendant’s myriad o f past convictions were three convictions that the U.S. probation officer suggeste d were “crimes of vi olen ce” under the U.S.S.G.: (1) a felonious assault which occurred on June 2 5, 1998; (2) an attempt to commit the crime o f disarming a police officer which occurre d on August 9, 2001; and (3) resisting and obstructing a police off ice r also o n August 9, 2001. The last two

offense s arose from the s ame occurrencein which Defendant fled on foot after police pulled him over for a traffic s top . When an officer caught and reached for Defendant, Defendant g rabbed the of

fic er’s gun and tried to pull it from its holster. The police officer was able to subdue Defendant and place hi m into custody without fu rther incident. Based upon these offenses, the proba tion officer concluded that Defendant should be cl assifie d as a
career offender pursuant to U.S.S.G. § 4B1.1, under which a defendant wi th tw o v io le nt fe lo ny con victions or drug trafficking

felony convictions is to be classifie d a s a career offender. In a memorandum filed May 1, 2003, Defendant obj ected to the probation officer’s career offen de r recommendation. 4 United Sta tes v. He rrera No. 03-1654

OnMay 8, 2003, Def

endant appeared before the district court for sentencing and reasserted his objection to the present ence re port. The court rejected his challenge , finding that the conviction for attempt to disarm a police officer was
a crime of violence as d efined at

U.S.S.G. § 4B1.2(a). The court also went

on to decide, “for the sake of completene ss,” that Defendant’s conviction for resisting and obs truct ing a police officer

also constituted a

crime of violence. The effect of this determination wa s to increa se Defe ndant’s o ffense level from Level 13 to Level 29 and his guideline range from 33-41 m on ths to 151-188 months, accounting for a three-level reduction for acceptance of resp onsibility. Defendant’s criminal history categ ory, howeve r, was unaff

ec ted beca

use Defend a ntwas scored in Category VI based upon his prior record.

Defendant

was sentenced

to 160 month s on Count I and 84 months on Count I

II , to be ser

ved cons ecutive ly

for a total of 244 mo nt hs im pr is on me nt . D ef en da nt wa s o rd er ed to pa y a fine of $2,140 .00 and $2 00.00 in sp ecial assess ments, and
was required to remain on supe rvised re lease for a term of five years a

fter hi s release from prison. On May 15, 2003, Defend ant filed a timely notice of appeal.

II. STANDA

RD OF RE VIEW
The district court’s interpretation of the Sentencing Guidelines is a quest

ion of la w , which we review de novo

. See United States v. Garza , 999 F.2d 1048, 1051 (6th Cir. 1993); see also United States v. Arnold , 58 F.3d 1117, 1120 (6th Cir. 1995)(apply

ing de novo standard of review to the districtcourt’s construction of the te rm “crim e of violence” in the Guidelines).No. 03-1654 United Sta tes v. He rrera 5

III. DISCU SSION Pursuant to U.S.S.G. § 4B1.1:

A defenda

nt is a career offender

if (1) the defendant was at least eig hteen y ears old at the time

th e defendant committed

the instan t o ffense of conviction; (2) the instantoffense of co nvic tion is a felony that is either a crimeof violence or

a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a contro l led substance offense. U.S.S.G. § 4B1.1(a).

Defendant

does not di spute that the offense of conviction is
a felony committed afte

r he attained the age of eig hteen. He agrees also that his 1998 conviction for felonious assault qualifies as a vi ole nt crime. Defendant’s contention is that neither his conviction for attempting to disarm a police officer
nor his c on viction for resisting and obstructing an office r qualify as a “ crime of violence” for purposes of § 4B 1.1(a).

The Guide lines def

ine a “crime of vi olence”

as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one y ear, that-- (1) has as an

eleme nt th e use, attempted use, or thre atened

use of physical f

orce against the person of another, or (2) is burglary

of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involve s conduc t th a t presents a serious p otential ri

sk of ph ysical inj ury to another

. U.S.S.G. § 4B1.2( a) (emphasis added). The application notes further clarify

the definition: 6 United Sta tes v. He rrera No. 03-1654

For purposes of

this guideline--"Crime of violence" and "contr olle d substance offense" include the offe nses of aiding an d abetting , conspir ing, and attempti

ng to commit such offens es.
"Crime of v i olence" includes murder, manslaug hter, kidnapin g, aggr avated a ssault, forcible se x offense s, ro bb er y, arson, extortion, extortionate extension of credit, and bu rgl ary of a

dwelling. Other offenses are included as "cr im es of vi olence" if (A) that offense ha s as an element the use, attempted use, or threatened use of physical force against the person of a nother, or (B ) the conduct set forth (i.e., expressly charg ed) in the count of whichthe defendant was convi ct ed involved use of explosives (including any explosive mater ia l or destructive device) or, by its nature, presented a serious potential risk of physical injury to another

. U.S.S.G. § 4B1.2 (application note 1) (emphasis added). A. Michigan Compiled Laws § 750.479b(2): Attempted Taking of a Firearm from a Peac e Officer

No panel of thi s Cir cuit has previously dec ided whether a
conv iction for attempting to disarm a police officer, M ich

. Comp. Laws § 750.479b(2), is a “cr ime of violence” under the Guidelines. To examine this question, a “ c ategorical approach” is used. See Un ited State s v. Harris , 165 F.3d 1062, 1068 (6th Cir. 1999); see also U nited State

s v. Arnold

, 58 F.3d 1117, 1121 (6th Cir. 1995) (cit ing as analogous Taylor v. United States , 495 U.S. 57 5 (1990)) . Under t his approach, the fa cts and circumstances underly ing the defendant’s fe lo ny conviction are generally

of no consequence, and a court does no more than examine the definition of the crime provided by the state legislature. See Arnold , 58 F.3d at 1121 (“[T]he categorical approach a voids the impract ica bility and unfairness of a llowing a sentencing
co urt to engage in a broad f

actfinding inquiry

relat ing to a defendant’s prior offenses.”). I f the court were not convinced,No. 03-1654 United Sta tes v. He rrera 7

however, th at th e s ta tu to ry f or mulation of

the offe

nse encompassed

conduct that posed a serious poten tia l of physical injury , it

cou ld examine the indictment for the specific conduct charged. See Unit ed Sta tes v. Arn old , 58 F.3d 1117, 1123 (6th Cir. 1995).

Inexamining the criminal statute, the court should not think only of the hypothetically

possible but unusual condu ct th at might constitute anoffe nse ther eunder, but rathe

r should focus on the ordinary way that conduct woul d v iolate the statute. See Unite

d States v . Campbell

, 256 F.3d 381, 396 (6th Cir. 2001) (“In deciding whether th e statutor

y crime constitutes a ‘crime of violence,’ we examine ‘the typical run of conduct,’ for this sort of offense.”).

The parties do not dispute that the o ffense

of attemp ting to disarm a police officer is not enumerated as a crime of violence under the Gui delines and does not include the use, attempted use, or threatened use of phy sical forc e as a necessary element. Rather, their arg u ment centers on the third method for identifying

a crime of violence--whether the offense involves a

“seriou s potentia

l risk of phy sical inju

ry to another.” U.S.S.G. 4B1.2(a)(2).

The elements of Michigan Compiled Laws § 750.479b(2), disarming a police officer, are : (a) The individual knows or has reason to believe the person from whom the firearm is taken is a peace of ficer or a corrections officer. (b) The peace officer or c orrections officer is performing his or her du

ties as a p eace of

fic er or a corrections officer. (c) The individual takes th e firearm without consent of the peace officer or cor

rections officer. 8 United Sta tes v. He rrera No. 03-1654

(d) The peace officer

or corrections officer is authorized by his or her employ

er to carr y th e firea rm in the line of du ty. Mich. Comp. Laws § 750.479b(2).

Defendant

first focuses on the word “serious” in the phrase “prese nts a seriou s potentia

l risk of ph

ysi cal inju

ry to another,” U.S.S.G. § 4B1.2(a)(1), and arg ues that there is no t, inherent in the disarming statute, a risk of seri ous in jury . We note, however, that the adjectives “serious” a n d “potent

ial” bo th modify the word “r

isk,” not “injury.” Actual physical injury need not be certain upon the c ommi ssion of the offense. Ther e need on ly be a risk of injury for which there is a serious potential in orde r to sat isfy the G uide line. We find that an affront to a pol ice officer’s authority in the way contempl ated in

the statute presents not only a potential, but also a serious risk.

The statute

quite unmis takably

contempl ates a sc enarioin whicht h e firearm is taken from a police officer. Before setting out the elements of the offense, the opening sentence of the statute states that the statute is designed to punish “[a]n individual who takes a firearm from the lawful possession of
a peace officer or a c orrections officer.” Mich. Comp. Laws § 750.479b(2). Further, the elements require the firea rm be taken while the officer is perf

ormin g his duties by a person who “believ e[s] the person from whom the firearm is taken is
a peace officer.” Id. (emphas is added) ; see also People v

. Cooks , No. 210025, 2000 WL 33521057, *2 (Mich. Ct. App. Mar. 24, 2 000) (“[T ]he disarm ing an o fficer

statute is intended to preve

nt someone

from atte

mpting to and/or gaining access to an off icer' s firear

m, thereby

causing injury to the officer.”).

Inalmost all

circumst ances, an officer will have his firearm
on his person or in the close vicinity whe n perfo rming his official duties. I

t i s ob vious that

a perpe trator’ s attempt t

o gain possession of an officer’s weapon cre ates a situationNo. 03-1654 United Sta tes v. He rrera 9

where there is no t o nl y a serious potential risk of physical in ju ry, butmost likely an

extremely heighte

ned risk of serious
or even de ad ly i nj ur y. An offic er will tr y to repel th e attempt , whichwould create a

risk of i njury

to the susp ect and c ould also endang er any

one in the area. Further, the office r may be injured in the scuffle

that ensues, especially

if the suspect actually disposses ses t

he offi cer of his gun. The government’s review of Michigan case law involving attacks agains toff

icers amply demonstrates the kind of r isks involved. See, e.g. , People v . Will ia ms , No. 228730, 2002 WL 3142 4779, *2 (Mich. Ct. App. Oct. 29, 2002) (“ violent, violent, lengthy strug

gle” between two officers and suspect); People v. Pope , No. 204645, 1999 WL 33453383, *1 (Mich. Ct. App. Mar. 23, 1999) (“During the execution of the
warran t, defendant attempted to flee. When caug ht by an officer, defendant struggled. He ma n aged to disarm the officer and shoot the officer befor e being shot himself.”).

The district co ur t noted tha t a police office r “is go ing to fierce ly resist any eff ort” to seize the weapon. The cour t said further that “[t]his cre ates a

scenario rife with opportunity for injury and dea th to peopl e involv ed and anyone around, whichmakes the potential for violence an inherent aspect of the offense.” We agree

. The Tenth C ircu it, examinin g a stat ute gov erning

jail escapes, said that

every escape scenario is a powder k eg, whi ch may or may not explode into violence and result in ph ysical injury to so meone a t a ny g iv en ti me , b ut wh ic h a lw ays has the serio

us potential

to do so . . . . A defendant who
es capes fro m a jail is likely to possess a variety of supe rcharged

emotions, and in evading those try ing t o recapture him, may

feel thr eatene d by

police of

ficers, ordinary citizens, or ev en fello w esc apees

. Co ns eq ue nt ly, violence

could erupt at any time. Indeed,
even ina cas e where a defendant esca pes from a jail by stealth and injures no one in the proce ss, th ere is sti ll a 10 United Sta tes v. He rrera No. 03-1654

serious potentia

l risk that injury will resu lt when officers fi nd th e d ef

en da nt an d a tt em pt to pl ac e h im in cu st od y.
United States v. Gosling , 39 F.3d 1140, 1142 (10th Cir. 1994) (internal ci ta ti on s o mi tt ed ). Si mi la rl y, in the typical case , a person attempting to disarm an officer is fueled by adrenaline rather than reason

and may ac

t with further violence when the officer steps up hi s effort to maintain control of the situation and his fi rearm. Analogous holdings of this and our sister circuits support
a findi ng that the offense of attempting to disarm a police officer qualifies as a crime of violence. I n United States v. Payne , 163 F.3d 371 ( 6th Cir. 199 8), we he ld that the offense of larcen y f rom the pe

rso n, Mich. Comp. Laws § 750.357,
was a crime of v io lence. We concluded that because the offense required the property be

taken from the possession of the victim or fromwithi n the immediate presence or area of control of the victim, larceny from the pers on “cle arly [presented] the ty

pe of situation tha

t could re sult

inviolence.” Payne , 163 F.3d at 375. We stated, Any person falli ng victim to a crime involving such an invasion of personal space would likely resist or defe nd in a manner that could lead to immediate violence

. Wheth er or not violence or harm actually results in any given instance is not relevant. We ag ree with the Firs t Circuit that “although larceny

from the p erson ' typ ically involves no threa

t of violence,' the risk of ensuing struggle is omnipresent."

Id. (citing United States v. De Jesus , 984 F.2d 21, 24 (1st Cir. 1993)).

Defendant

argu es that, bec ause off icers a re trained to handle dange rous situa

tions, the offense of dis arm ing an officer is less d a ngerousthan

larc eny from the p erson. We emphat ica lly

disagree and note that attempted disarming situations are in fact more fraught with danger bec ause theyNo. 03-1654 United Sta tes v. He rrera 11

al wa ys involve inherently dan ger ous instru

mentalitie s. Further , the ty

pical moti

ve of a pe

rson who a

ttempts t o disarma police officer

is marked

ly d iffere nt from the

likely motive of a person who commits larceny from the person. T he perpetrator who tries to gain possession of an off icer’s gun is not ordinarily a mere

thief, trying to make

off with the firear m, butmore often

is tr ying to gai n a tact ical a dvant age ov er th e officer in a confrontational situation. The potential risk of physical inju

ry is plainly great e r th an a larceny

from the person scenario.

Inanother analog ous case , the Fir st Circuit held that a ssault and battery upon a police

officer, even

the non-v iolent va riety
as proscribed by Ma ssachu sett s law, constituted a crime of violence. See United

States v. Fernandez , 121 F.3d 777 (1st Cir. 1997). The court stated:

It wo uld seem self-evident that assault and battery upon
a police of ficer u sually involves force against another, and so meets that s tandar d. At a minimum, assault and battery upon a police officer requires purposef ul and unwelcomed

contact with a person the defendant knows to be a law enforcement office r actually e

n ga ged in the performance of offic ial duties . While it is true that neither violence, nor the use o f force, is an essential element of the cr ime as statutorily defined, still, violence, the use of force, an

d a serio us risk of phy sical harm are all likely to accompany

an assault and

batt ery upon a police officer.

Id. at 780. The court not ed t ha t t he of fe ns e n ea rl y al wa ys involves the intentional striking of anon-duty office

r and thus “nearl y a lw ays poses a serious risk of actual or potential physical force and

the li kelihood of physical injury --to the police officer initially, and t o the perpetrator (and even the public) subsequently, when the of ficer r eacts or attemp ts to subdue the offender.” Id. 12 United Sta tes v. He rrera No. 03-1654

The reasoning of United States v. Kaplansky , 42 F.3d 320 (6th Cir. 1994), further

supports our finding that an attempt to disarman officer is a crime of violence. I n Kaplansky , we held that even kidnaping by

deception

constitute d a crime

of violence, in part becaus e the victim might realize what was happeningand resi st. Id. at 324. Similarly, even if a suspec t merely takes a firearm from an offi ce r’s constructive possession witho ut c ontact (i.e., not from the officer’s physical person), the officer may notice such threatening behavior and resp ond with

force. Although it is true that the elements of the of fense do not require p hys i cal violence or force, as a practical

matter force and

a consequential serious risk of physical injury

is typically

likely to accompany such an offense.

We also reject Defendant’s arg ument that an attempt to disarma police office

r involve s a less serious potential risk of injury tha n a completed crime of the same. Once a person endeavors to take an officer’s firear m without c onsent wh

ile that officer

is perfo rming hi s or her d uties, any risk of injury that arises remains present

whether the assailant

is successful inobtaining

the gun or not. We understand

that if the person does suc ceed i n gaining possession of the officer’s g un, especia ll y in the presence of the officer or directly from the person of the of ficer, there is

a greater likelihood that the risk of harm wil l mate rialize in actual harm. Moreover, we understand

that the officer would be placed in gr eater danger because he would b e more vu

lnerabl e without h

is firea rm. Thesefacts ar e nonetheless irrelevant to the court’s inquiry b ecau se a significant risk of such injury still exists even during an un complet ed attempt to commit the offense. See United States v. Rob erts , 59 Fed.Appx. 86, No. 01-5230, 2003 WL 343237, *4 (6th Cir. Feb. 12, 2003) (“First, we note that § 4B1.2(a)(2), on its face, require s that the se riousnes s must reside in the risk, and n ot ne cess aril y i n the injur y. ”). We believe that, more often than not, attempts to disarm officers do not materialize into completed offenses because office rs gener ally respond w

ith somelevel of

force ( sometimes

lethal) to repel their assailants. We reject the sugg es ti on that theNo. 03-1654 United Sta tes v. He rrera 13

likelihoodof phy sica l injury meaningf ully diminishes (i.e., enough to conclude that a “serious” potential risk no long e r exists) when a person merely attempts to disarm an officer but fails to complete the task. The co mmentary to the Guidelines suppo rts such a vie

w. It states tha

t crimes o f viole nc e “include the offenses of aid ing and abett ing, conspiring, and attempting

to commit such offenses . U .S.S .G. 4B1.2 (application note 1) (emphasis added).

Accor di ng ly, we agree with the district court’s de terminationthat the offense as set forth in the disar min g statute inherently involves a ser

ious potential risk of

physical in ju ry, that it

theref ore cons titutes a “ crimeof violence” under U.S.S.G. § 4B1.2 and that Defendant is a caree r offender.

The district court

made clear in its holdingthat Defendant’s felonious as sa ult conviction coupl ed with his attempt to disarman off

icer conviction was sufficient to satisfy the
career offende r requ irements

in the gu idelines. It wa s only “for the sake of

completeness” that the district court analy zed the resisting and obstruct ing conviction under Michigan CompiledLaws § 750.479(a). We nee d not reach the issue of whether this additional predicate crime also constitut e s a crimeof violence. We choose to avoid the question because, given the findin

gs we have

alread y ma de, any possible disagreement

with the distri ct court ’s concl

usion on thi s point would be of no consequence.

B. Due Pr ocess
Defendant

finally arg

ues that “there are Due P rocess concer ns” with his se

ntence b ecause , if affi rmed, it ret roactiv ely

expands the punishment that he faces withou t notice prior to his plea . Furth er, he claims he would have sought a more fav orable plea (e.g., the negotiation of a statutory cap) if he had known he faced suc h a severe sentence. We review this constitutional challenge de novo. See United States v. Lloyd , 10 F.3d 1197, 1220 (6th Cir. 1993). 14 United Sta tes v. He rrera No. 03-1654

Inthis case, there are no due process implications for Defendant’s guilty plea or eventual sentence. At the time he entered his plea, Defendant acknowledg ed that he understood the statutory maximum sentence and knew that the c ourt would use the G

uideline s to make th

e final se

ntenc ing determ in ation. Moreover, the plea agre ement states, “The defendant understands that, based on his criminal record, he may qualify as a ‘Car

eer Off ender’ under § 4 B1.1 of t h e Guidelines and rec eive a hi gher sentence under the Guide lines thanif he did not have t he same c

riminal r ecord.” It is apparent from the signed plea agre ement that Defendant’s plea was knowingly

and intelligently off

ered. T he notic e in the agree ment ga ve Defe ndant “su fficient awareness of the relevant circumstances and likely consequences” of

his plea. Bradyv. United States , 397 U.S. 7 42, 748 (1 970); see also United States v. Spires , 946 F .2d 89 6, No . 90- 1864, 1991 W L 211281, *2 (6th Cir. Oct. 21, 1991) (“As long as a defendant knows, before

he ente rs his plea, the maximum sentence he
can receive, due process does not require the court

to inform the defe ndant of t he speci fic sente ncing gu ideli ne range that will be applied.”). Further, D efendant was not denied due process at sentenc in g because

the distri ct court

provided

him with
reasona ble notice that it was conside ring the e nhancement and provided Defendant with an opportunity to be heard on the issue. Oyler v. Boles , 368 U.S. 448, 452 (1962). Defendant received the pr esentence report, recommending that he be sentenced as a career

offender, almost six weeks prior to h is sentenc ing hea

ring an d he was a

ble to fully litigate the

issue at his hearing. See Unite

d States v

. Wilhi te , 929 F.2d 702, No. 90-5931, 1991 WL 46 512, *1 (6th Cir. Apr. 4, 1991) (“Concerns for due process do not require t hat a cr iminal defendant be placed on advance notice of the application of a career offender sentence

under guideline 4B1.1, so long as the defendant has, as he was in the instant case, been afforded an ad e quateopportunity to challeng e the factual basis for applying the

enhancement.”).No. 03-1654 United Sta tes v. He rrera 15

CONCLUSION
Defendant’s prior conviction for atte mpting to disarm a police officer, Michigan Com piled Laws § 750.479b(2), constitutes a crime

of violence under U.S.S.G. § 4B1.2(a)(2). Defend ant’s constitutional rights were not violated when he
was classified as a career off ender. The judgment of the district court is AFFIRMED.