NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1050n.06 No. 11-2127 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. J AMES J AMAR WI L SON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

Be fore : SI L ER and COOK, Circuit Judges; and STEEH, D istrict J udg e. * COOK, Circuit J udg e. J ames J amar Wil son, who pleade d g uilty to possession of a firea rm during a drug traff

icking offe nse, appea ls the dist ri ct court’s application of the car eer offe nder enhanc ement to his sentenc e. He argues that his previous conviction for obstructing a police office r under Michig an Compil ed L aws § 750.81d(1) does not qualify as a predic ate “cr ime of violence.” We ag ree and VACATE the district court’s se ntencing judgme nt.
The car eer offe nder enhanc ement require s two predic ate offe nses, consi s ting of either “cr ime[s] of violen ce” or drug -re lated crimes. See U.S.S.G. § 4B1.1( a). Wil son admits one predic ate offe nse, but objects that his obstruction conviction does not qualify as a crime of violence. During sentenc ing, the go v er n m ent produce d Wil son’s plea colloquy for the obstruction offe nse,
*T he Honor abl e Geor ge C. Ste eh, Unit ed Sta te s Dis tr ic t J udge for the Eas te rn Dis tr ic t of Mi chi gan, si tt ing by des ignat ion

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which re veale d that Wil son disobey ed a tr aff ic offic er’ s command to stop his ve hicle. Rely ing on the S upreme Court’s rec ent dec ision in Syke s v. United States , 131 S. Ct . 2267 (2011), the district court deeme d Wil son’s admitted vehicular flig ht—which resulted in Wil so n ’s obstruction conviction—a crime of v i o lence and applied the car eer offe nder enhanc ement to Wil son’s Guidelines scor e.
Wil son appea ls, arguing that his obstruction conviction (i) differ s from the vehicular -flig ht conviction at issue in Syke s , and (ii) falls short of the “cr ime of violence” stand ard. We ag ree on both counts beca

use the g overnme nt conce des the first (Gov’t Br

. at 20), and we adopted the second in United States v. Mosley , 575 F.3d 603, 608 (6th Cir. 2009) (conc luding that an obstruction conviction under § 750.81d(1) for knowing failure to c omply with a n office r’s lawful command is not a “cr ime of violence” ). Neve rtheless, the g overnme n t ar gu es that Syke s supports the district court’s judgme nt by broade ning the definition of “cr i m e o f v i olence ” to include vehicular flig ht. Fur ther, the g overnme nt relies on the plain-er ror standard, arguing that Wil son failed to object to the d istrict court’s scoring of his obstruction conviction as a crime of violence. Both g overn m en t arg uments lack mer it.

Be g inning with the standard of revie w, we find that Wil son’s attorney proper ly objected to classifying the obstruction offe nse as a crime of violence for purposes of the car eer offe nder Guidelines. Thoug h not the clea rest of argum en t s , counsel repe atedly distinguished the Syke s d efe ndant’s predic ate crime, which fell under I ndiana’ s vehicular -flig ht statute, from Wi l s o n ’s , -2-No. 11-2127

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which happene d to involve vehicular flig ht but f ell under Michig an’s non-vehic ular-f light statute. (R. 35, Sent’g Tr. at 7 ( emphasizing that Wilson pleaded g uilty to “ assaulting , battering , resisting , obstructing , or opposi ng [an office r],” and not to a vehic ular fle eing -and- eluding char g e).) Given t h e context, defe nse counsel clea rly stated Wil son’s opposition to counting the obstruction convic t ion toward the car eer -off ender enhanc ement, preserving our de novo revie w of the di strict court’s judg ment. See, e .g. , United States v. W ynn , 579 F.3d 567, 570 ( 6th Cir. 2009). 1 Turning to the merits, noth i n g i n Syke s undermines the Mosley court’s conclusion that an obstruction offe nse under § 750.81d(1) falls short of t h e crime- of-violenc e bar. Syke s held that a violation of I ndiana’ s vehicular -flig ht statute cate g orica lly qualifies as a “violent felony ” for purposes of se ntencing

enhanc ements under

the Arme d Caree r Criminal Act, 18 U.S.C. § 924(e). Syke s , 131 S.Ct

. at 2277. The g overnme nt corr ectly notes that Syke s focuse d on the residual clause of 18 U.S.C. § 924(e) (2)( B) (ii), which, like the virtually identical definition of “cr ime of violence” in U.S.S.G. § 4B1.2( a), asks whether the predic ate offe nse “involves conduct that prese nts a serious p o tential risk of phy sical injury to another .” Syke s , 131 S. Ct. at 2272–74. Yet, S yk es o ff er s n o g uidance on how to trea t an obstruction offe nse under § 750.81d(1).
That is Wil son’s crime: obstruction and/or re s i s t ance . Wil son’s underly ing conduct—his vehicular flig ht detailed in the plea colloquy —does not suppor

t a conviction of a

ny other off enses
Even if de fense counsel fa iled to object to scoring the obstruction offe nse as a “cr ime of 1 violence,” we he ld in United States v. Gibbs that such a misclassific ation constitutes plain error

. 626 F.3d 344, 356 ( 6th Cir. 2010). -3-No. 11-2127

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that would qualify as “cr imes of violence” under § 750.81d(1): assault, battery , wounding , opposing,

or endang ering

. Michig an law def ines obstruction to include “a knowing failure to comply with a lawf u l command,” Mich. Comp. L aws § 750.81d(7)( a), which Mosley corr ectly observe d encompa ss ed such non-violent infrac tions as “re fusing to produce information” and “ig noring an office r’s command not to cross the street,” 5 7 5 F. 3 d at 607. These examples illust rate that, even afte r Syke s , § 750.81d(1) e ncompasses c onduct that lacks a n inhere nt risk of phy sical injury

. As the g overnme nt conce des (Gov’t Br

. at 16), it m at t ers not how Wil son committed his obstruction crime. In United States v. Ford , 560 F.3d 420, 422 ( 6th Cir. 2009), we explained that

we apply a cate g orica l approa ch that focuse s on the statutory defi n i t i o n of the crime and not the underlying conduct that resulted in the conviction. And to the ext en t t h e statute allows for both violent and non-violent crimes, we consult Shepard documents “to see if they ‘nec essar ily ’ establish the nature of the prior offe nse.” Id. (citing Sh ep a r d v. United States , 544 U.S. 13, 26 (2005))

. Wil son did not plead g uilty to a crime of vehicular flig ht, and the g overnme nt cannot punish him as though he did. See United States v. McM urray , 653 F.3d 3 6 7 , 3 7 7 (6th Cir. 2011) (re ly ing on Shepard documents to deter mine which section of a Tenne ssee assault statute the defe ndant pleade d g uilty to); Gibbs , 626 F.3d at 355 (same, § 750.81d). Be cause the district c ourt improperly score d Wil son’s obstruction offe nse as a crime of violence, we VACATE and REMAND for rese ntencing

.

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