*

The Honorable Robert H. Cleland, United States District Judge for

the Eastern District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0222P (6th Cir.)

File Name: 04a0222p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FELIX HERRERA,

 Defendant-Appellant.

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No. 03-1654

Appeal from the United States District Court

for the Western District of Michigan at Grand 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; CLELAND,

District Judge.*

_________________

COUNSEL

ARGUED: Lawrence J. Phelan, HAEHNED & PHELAN,

Grand Rapids, Michigan, for Appellant. Andrew B. Birge,

2 United States v. Herrera No. 03-1654

UNITED STATES ATTORNEY, Grand Rapids, Michigan,

for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNED

& PHELAN, Grand Rapids, Michigan, for Appellant.

Andrew B. Birge, UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee.

_________________

OPINION

_________________

CLELAND, District Judge. Defendant Felix Herrera

appeals a sentencing determination that qualified him as a

career offender pursuant to § 4B1.1 of the United States

Sentencing Guidelines (U.S.S.G.). Defendant claims that the

trial court erred in concluding that his previous state felony

convictions for attempted taking of a firearm from a peace

officer, Mich. Comp. Laws § 750.479b(2), and for resisting

and obstructing a police officer, Mich. Comp. Laws

§ 750.479(a), were “violent crimes” within the meaning of

U.S.S.G. § 4B1.2(a). For the reasons set forth below, we

agree with the district judge’s decision as to the first of the

two predicate convictions, find it unnecessary to reach the

question of the second predicate conviction and AFFIRM the

judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

On July 22, 2002 in Lansing, Michigan, Defendant sold

crack cocaine to an undercover officer and was confronted by

a team of surveillance officers wearing jackets with the word

“POLICE” emblazoned on them. According to the officers at

the scene, Defendant initially did not comply with their

command to lie on the ground, but pulled a gun from his

waistband and swung it toward the officers. The officers

dove for cover, and Defendant soon decided to lower his gun

and obey the officers’ commands. On October 24, 2002, a

federal grand jury returned a three-count indictment against

Defendant, charging him with knowingly and intentionally
No. 03-1654 United States v. Herrera 3

possessing cocaine base (crack) with the intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), being a

convicted felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1), and carrying and brandishing a firearm

in relation to a drug trafficking crime, in violation of

18 U.S.C. § 924(c). Defendant entered a guilty plea to the

possession with intent to distribute charge (Count I) and the

carrying and brandishing a firearm charge (Count III) on

January 6, 2003. Pursuant to the plea agreement, the final

determination as to the length of Defendant’s sentence rested

solely with the trial court, which would consider a

presentence report and objections or suggestions from the

government and Defendant. The government agreed to

dismiss the felon in possession charge (Count II).

About March 24, 2003, a presentence report was prepared,

indicating that Defendant had been previously convicted in

state court on numerous occasions. Among Defendant’s

myriad of past convictions were three convictions that the

U.S. probation officer suggested were “crimes of violence”

under the U.S.S.G.: (1) a felonious assault which occurred on

June 25, 1998; (2) an attempt to commit the crime of

disarming a police officer which occurred on August 9, 2001;

and (3) resisting and obstructing a police officer also on

August 9, 2001. The last two offenses arose from the same

occurrence in which Defendant fled on foot after police pulled

him over for a traffic stop. When an officer caught and

reached for Defendant, Defendant grabbed the officer’s gun

and tried to pull it from its holster. The police officer was

able to subdue Defendant and place him into custody without

further incident. Based upon these offenses, the probation

officer concluded that Defendant should be classified as a

career offender pursuant to U.S.S.G. § 4B1.1, under which a

defendant with two violent felony convictions or drug

trafficking felony convictions is to be classified as a career

offender. In a memorandum filed May 1, 2003, Defendant

objected to the probation officer’s career offender

recommendation.

4 United States v. Herrera No. 03-1654

On May 8, 2003, Defendant appeared before the district

court for sentencing and reasserted his objection to the

presentence report. The court rejected his challenge, finding

that the conviction for attempt to disarm a police officer was

a crime of violence as defined at U.S.S.G. § 4B1.2(a). The

court also went on to decide, “for the sake of completeness,”

that Defendant’s conviction for resisting and obstructing a

police officer also constituted a crime of violence. The effect

of this determination was to increase Defendant’s offense

level from Level 13 to Level 29 and his guideline range from

33-41 months to 151-188 months, accounting for a three-level

reduction for acceptance of responsibility. Defendant’s

criminal history category, however, was unaffected because

Defendant was scored in Category VI based upon his prior

record.

Defendant was sentenced to 160 months on Count I and 84

months on Count III, to be served consecutively for a total of

244 months imprisonment. Defendant was ordered to pay a

fine of $2,140.00 and $200.00 in special assessments, and

was required to remain on supervised release for a term of

five years after his release from prison. On May 15, 2003,

Defendant filed a timely notice of appeal.

II. STANDARD OF REVIEW

The district court’s interpretation of the Sentencing

Guidelines is a question of law, 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) (applying de novo standard of review to the

district court’s construction of the term “crime of violence” in

the Guidelines).
No. 03-1654 United States v. Herrera 5

III. DISCUSSION

Pursuant to U.S.S.G. § 4B1.1:

A defendant is a career offender if (1) the defendant was

at least eighteen years old at the time the defendant

committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a

crime of 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 controlled substance

offense.

U.S.S.G. § 4B1.1(a).

Defendant does not dispute that the offense of conviction is

a felony committed after he attained the age of eighteen. He

agrees also that his 1998 conviction for felonious assault

qualifies as a violent crime. Defendant’s contention is that

neither his conviction for attempting to disarm a police officer

nor his conviction for resisting and obstructing an officer

qualify as a “crime of violence” for purposes of § 4B1.1(a).

The Guidelines define a “crime of violence” as:

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, or

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

use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another.

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

further clarify the definition:

6 United States v. Herrera No. 03-1654

For purposes of this guideline--"Crime of violence" and

"controlled substance offense" include the offenses of

aiding and abetting, conspiring, and attempting to

commit such offenses.

"Crime of violence" includes murder, manslaughter,

kidnaping, aggravated assault, forcible sex offenses,

robbery, arson, extortion, extortionate extension of

credit, and burglary of a dwelling. Other offenses are

included as "crimes of violence" if (A) that offense has

as an element the use, attempted use, or threatened use of

physical force against the person of another, or (B) the

conduct set forth (i.e., expressly charged) in the count of

which the defendant was convicted involved use of

explosives (including any explosive material 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 Peace Officer

No panel of this Circuit has previously decided whether a

conviction for attempting to disarm a police officer, Mich.

Comp. Laws § 750.479b(2), is a “crime of violence” under

the Guidelines. To examine this question, a “categorical

approach” is used. See United States v. Harris, 165 F.3d

1062, 1068 (6th Cir. 1999); see also United States v. Arnold,

58 F.3d 1117, 1121 (6th Cir. 1995) (citing as analogous

Taylor v. United States, 495 U.S. 575 (1990)). Under this

approach, the facts and circumstances underlying the

defendant’s felony 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 avoids

the impracticability and unfairness of allowing a sentencing

court to engage in a broad factfinding inquiry relating to a

defendant’s prior offenses.”). If the court were not convinced,
No. 03-1654 United States v. Herrera 7

however, that the statutory formulation of the offense

encompassed conduct that posed a serious potential of

physical injury, it could examine the indictment for the

specific conduct charged. See United States v. Arnold,

58 F.3d 1117, 1123 (6th Cir. 1995).

In examining the criminal statute, the court should not think

only of the hypothetically possible but unusual conduct that

might constitute an offense thereunder, but rather should

focus on the ordinary way that conduct would violate the

statute. See United States v. Campbell, 256 F.3d 381, 396 (6th

Cir. 2001) (“In deciding whether the statutory 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 offense of attempting to

disarm a police officer is not enumerated as a crime of

violence under the Guidelines and does not include the use,

attempted use, or threatened use of physical force as a

necessary element. Rather, their argument centers on the

third method for identifying a crime of violence--whether the

offense involves a “serious potential risk of physical injury 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 officer

or a corrections officer.

(b) The peace officer or corrections officer is performing

his or her duties as a peace officer or a corrections

officer.

(c) The individual takes the firearm without consent of

the peace officer or corrections officer.

8 United States v. Herrera No. 03-1654

(d) The peace officer or corrections officer is authorized

by his or her employer to carry the firearm in the line of

duty.

Mich. Comp. Laws § 750.479b(2).

Defendant first focuses on the word “serious” in the phrase

“presents a serious potential risk of physical injury to

another,” U.S.S.G. § 4B1.2(a)(1), and argues that there is not,

inherent in the disarming statute, a risk of serious injury. We

note, however, that the adjectives “serious” and “potential”

both modify the word “risk,” not “injury.” Actual physical

injury need not be certain upon the commission of the

offense. There need only be a risk of injury for which there

is a serious potential in order to satisfy the Guideline. We

find that an affront to a police officer’s authority in the way

contemplated in the statute presents not only a potential, but

also a serious risk. 

The statute quite unmistakably contemplates a scenario in

which the 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 corrections officer.” Mich. Comp. Laws

§ 750.479b(2). Further, the elements require the firearm be

taken while the officer is performing his duties by a person

who “believe[s] the person from whom the firearm is taken is

a peace officer.” Id. (emphasis added); see also People v.

Cooks, No. 210025, 2000 WL 33521057, *2 (Mich. Ct. App.

Mar. 24, 2000) (“[T]he disarming an officer statute is

intended to prevent someone from attempting to and/or

gaining access to an officer's firearm, thereby causing injury

to the officer.”). 

In almost all circumstances, an officer will have his firearm

on his person or in the close vicinity when performing his

official duties. It is obvious that a perpetrator’s attempt to

gain possession of an officer’s weapon creates a situation
No. 03-1654 United States v. Herrera 9

where there is not only a serious potential risk of physical

injury, but most likely an extremely heightened risk of serious

or even deadly injury. An officer will try to repel the attempt,

which would create a risk of injury to the suspect and could

also endanger anyone in the area. Further, the officer may be

injured in the scuffle that ensues, especially if the suspect

actually dispossesses the officer of his gun. The

government’s review of Michigan case law involving attacks

against officers amply demonstrates the kind of risks

involved. See, e.g., People v. Williams, No. 228730, 2002

WL 31424779, *2 (Mich. Ct. App. Oct. 29, 2002) (“violent,

violent, lengthy struggle” 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

warrant, defendant attempted to flee. When caught by an

officer, defendant struggled. He managed to disarm the

officer and shoot the officer before being shot himself.”). 

The district court noted that a police officer “is going to

fiercely resist any effort” to seize the weapon. The court said

further that “[t]his creates a scenario rife with opportunity for

injury and death to people involved and anyone around,

which makes the potential for violence an inherent aspect of

the offense.” We agree.

The Tenth Circuit, examining a statute governing jail

escapes, said that

every escape scenario is a powder keg, which may or

may not explode into violence and result in physical

injury to someone at any given time, but which always

has the serious potential to do so . . . . A defendant who

escapes from a jail is likely to possess a variety of

supercharged emotions, and in evading those trying to

recapture him, may feel threatened by police officers,

ordinary citizens, or even fellow escapees.

Consequently, violence could erupt at any time. Indeed,

even in a case where a defendant escapes from a jail by

stealth and injures no one in the process, there is still a

10 United States v. Herrera No. 03-1654

serious potential risk that injury will result when officers

find the defendant and attempt to place him in custody.

United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)

(internal citations omitted). Similarly, in the typical case, a

person attempting to disarm an officer is fueled by adrenaline

rather than reason and may act with further violence when the

officer steps up his effort to maintain control of the situation

and his firearm.

Analogous holdings of this and our sister circuits support

a finding that the offense of attempting to disarm a police

officer qualifies as a crime of violence. In United States v.

Payne, 163 F.3d 371 (6th Cir. 1998), we held that the offense

of larceny from the person, Mich. Comp. Laws § 750.357,

was a crime of violence. We concluded that because the

offense required the property be taken from the possession of

the victim or from within the immediate presence or area of

control of the victim, larceny from the person “clearly

[presented] the type of situation that could result in violence.”

Payne, 163 F.3d at 375. We stated,

Any person falling victim to a crime involving such an

invasion of personal space would likely resist or defend

in a manner that could lead to immediate violence.

Whether or not violence or harm actually results in any

given instance is not relevant. We agree with the First

Circuit that “although larceny from the person 'typically

involves no threat 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 argues that, because officers are trained to

handle dangerous situations, the offense of disarming an

officer is less dangerous than larceny from the person. We

emphatically disagree and note that attempted disarming

situations are in fact more fraught with danger because they
No. 03-1654 United States v. Herrera 11

always involve inherently dangerous instrumentalities.

Further, the typical motive of a person who attempts to

disarm a police officer is markedly different from the likely

motive of a person who commits larceny from the person.

The perpetrator who tries to gain possession of an officer’s

gun is not ordinarily a mere thief, trying to make off with the

firearm, but more often is trying to gain a tactical advantage

over the officer in a confrontational situation. The potential

risk of physical injury is plainly greater than a larceny from

the person scenario.

In another analogous case, the First Circuit held that assault

and battery upon a police officer, even the non-violent variety

as proscribed by Massachusetts law, constituted a crime of

violence. See United States v. Fernandez, 121 F.3d 777 (1st

Cir. 1997). The court stated:

It would seem self-evident that assault and battery upon

a police officer usually involves force against another,

and so meets that standard. At a minimum, assault and

battery upon a police officer requires purposeful and

unwelcomed contact with a person the defendant knows

to be a law enforcement officer actually engaged in the

performance of official duties. While it is true that

neither violence, nor the use of force, is an essential

element of the crime as statutorily defined, still, violence,

the use of force, and a serious risk of physical harm are

all likely to accompany an assault and battery upon a

police officer.

Id. at 780. The court noted that the offense nearly always

involves the intentional striking of an on-duty officer and thus

“nearly always poses a serious risk of actual or potential

physical force and the likelihood of physical injury--to the

police officer initially, and to the perpetrator (and even the

public) subsequently, when the officer reacts or attempts to

subdue the offender.” Id. 

12 United States v. Herrera 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

disarm an officer is a crime of violence. In Kaplansky, we

held that even kidnaping by deception constituted a crime of

violence, in part because the victim might realize what was

happening and resist. Id. at 324. Similarly, even if a suspect

merely takes a firearm from an officer’s constructive

possession without contact (i.e., not from the officer’s

physical person), the officer may notice such threatening

behavior and respond with force. Although it is true that the

elements of the offense do not require physical 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 argument that an attempt to

disarm a police officer involves a less serious potential risk of

injury than a completed crime of the same. Once a person

endeavors to take an officer’s firearm without consent while

that officer is performing his or her duties, any risk of injury

that arises remains present whether the assailant is successful

in obtaining the gun or not. We understand that if the person

does succeed in gaining possession of the officer’s gun,

especially in the presence of the officer or directly from the

person of the officer, there is a greater likelihood that the risk

of harm will materialize in actual harm. Moreover, we

understand that the officer would be placed in greater danger

because he would be more vulnerable without his firearm.

These facts are nonetheless irrelevant to the court’s inquiry

because a significant risk of such injury still exists even

during an uncompleted attempt to commit the offense. See

United States v. Roberts, 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, requires that the seriousness must

reside in the risk, and not necessarily in the injury.”). We

believe that, more often than not, attempts to disarm officers

do not materialize into completed offenses because officers

generally respond with some level of force (sometimes lethal)

to repel their assailants. We reject the suggestion that the
No. 03-1654 United States v. Herrera 13

likelihood of physical injury meaningfully diminishes (i.e.,

enough to conclude that a “serious” potential risk no longer

exists) when a person merely attempts to disarm an officer but

fails to complete the task. The commentary to the Guidelines

supports such a view. It states that crimes of violence

“include the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses. U.S.S.G. 4B1.2

(application note 1) (emphasis added).

Accordingly, we agree with the district court’s

determination that the offense as set forth in the disarming

statute inherently involves a serious potential risk of physical

injury, that it therefore constitutes a “crime of violence” under

U.S.S.G. § 4B1.2 and that Defendant is a career offender.

The district court made clear in its holding that Defendant’s

felonious assault conviction coupled with his attempt to

disarm an officer conviction was sufficient to satisfy the

career offender requirements in the guidelines. It was only

“for the sake of completeness” that the district court analyzed

the resisting and obstructing conviction under Michigan

Compiled Laws § 750.479(a). We need not reach the issue of

whether this additional predicate crime also constitutes a

crime of violence. We choose to avoid the question because,

given the findings we have already made, any possible

disagreement with the district court’s conclusion on this point

would be of no consequence.

B. Due Process

Defendant finally argues that “there are Due Process

concerns” with his sentence because, if affirmed, it

retroactively expands the punishment that he faces without

notice prior to his plea. Further, he claims he would have

sought a more favorable plea (e.g., the negotiation of a

statutory cap) if he had known he faced such 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 States v. Herrera No. 03-1654

In this case, there are no due process implications for

Defendant’s guilty plea or eventual sentence. At the time he

entered his plea, Defendant acknowledged that he understood

the statutory maximum sentence and knew that the court

would use the Guidelines to make the final sentencing

determination. Moreover, the plea agreement states, “The

defendant understands that, based on his criminal record, he

may qualify as a ‘Career Offender’ under § 4B1.1 of the

Guidelines and receive a higher sentence under the Guidelines

than if he did not have the same criminal record.” It is

apparent from the signed plea agreement that Defendant’s

plea was knowingly and intelligently offered. The notice in

the agreement gave Defendant “sufficient awareness of the

relevant circumstances and likely consequences” of his plea.

Brady v. United States, 397 U.S. 742, 748 (1970); see also

United States v. Spires, 946 F.2d 896, No. 90-1864, 1991 WL

211281, *2 (6th Cir. Oct. 21, 1991) (“As long as a defendant

knows, before he enters his plea, the maximum sentence he

can receive, due process does not require the court to inform

the defendant of the specific sentencing guideline range that

will be applied.”).

Further, Defendant was not denied due process at

sentencing because the district court provided him with

reasonable notice that it was considering the enhancement and

provided Defendant with an opportunity to be heard on the

issue. Oyler v. Boles, 368 U.S. 448, 452 (1962). Defendant

received the presentence report, recommending that he be

sentenced as a career offender, almost six weeks prior to his

sentencing hearing and he was able to fully litigate the issue

at his hearing. See United States v. Wilhite, 929 F.2d 702,

No. 90-5931, 1991 WL 46512, *1 (6th Cir. Apr. 4, 1991)

(“Concerns for due process do not require that a criminal

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

adequate opportunity to challenge the factual basis for

applying the enhancement.”).
No. 03-1654 United States v. Herrera 15

CONCLUSION

Defendant’s prior conviction for attempting to disarm a

police officer, Michigan Compiled Laws § 750.479b(2),

constitutes a crime of violence under U.S.S.G. § 4B1.2(a)(2).

Defendant’s constitutional rights were not violated when he

was classified as a career offender. The judgment of the

district court is AFFIRMED.