UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case Number 09-20006-07-BC

v. Honorable Thomas L. Ludington

ADAM CADENA,

Defendant.

______________________________________ /

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 

MOTION IN LIMINE AND GRANTING IN PART DEFENDANT’S MOTION 

FOR DETERMINATION OF CAREER OFFENDER STATUS

Defendant Adam Cadena was charged in a January 14, 2009 indictment [Dkt. # 12] with one

count of conspiracy to distribute more than five kilograms of cocaine, 21 U.S.C. §§ 846 & 841(a)(1),

four counts of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and one count of

forfeiture, 18 U.S.C. § 924(g); 21 U.S.C. § 853. The indictment also charged nine other defendants

with various crimes associated with an alleged drug distribution ring led by Richard Wildfong that

operated in Saginaw, Michigan. 

On September 15, 2009 Defendant filed a motion in limine [Dkt. # 93], challenging the

admission of recorded telephone conversations between a person the government alleges to be

Defendant and a now-deceased confidential informant (“CI”). The motion contends that admission

of the CI’s recorded statements would violate his constitutional right to confront the witnesses

against him. U.S. Const. amend. VI. On October 14, 2009 Defendant filed a second motion,

requesting a judicial determination of whether he is a career offender under the United States

Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.2. Pursuant to E.D. Mich. L.R. 7.1(e)(2), the

hearing scheduled for November 17, 2009 was cancelled, and both motions will be decided on the

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The Court will assume for the purposes of the motion in limine that the government will be

able to prove that Defendant participated in the telephone conversations, and appropriately

authenticate his voice on the recordings. 

2

Defendant has not raised a hearsay or foundational objection to the admission of the

recorded conversations. 

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papers. 

I

Defendant’s motion in limine contends that “he had nothing to do with the Richard Wildfong

cocaine conspiracy” and seeks to exclude evidence of recorded telephone conversations between a

person the government will allege to be defendant1

 and a now-deceased CI. Mot. in Limine at 4;

[Dkt. # 93]. He argues that he has a Sixth Amendment right to present a defense,2 including to

confront and cross examine the witnesses against him, and that under Chambers v. Mississippi, 410

U.S. 284 (1973), “sometimes state rules of evidence must bend to enable a Defendant to present that

defense.” The government’s response [Dkt. # 130] contends that Chambers is factually

distinguishable from the instant case, and even if it were not, the Supreme Court has subsequently

held in Crawford v. Washington, 541 U.S. 36 (2004), that the Sixth Amendment makes the out-ofcourt statements of an unavailable witnesses inadmissible in the government’s case in chief only if

those statements were testimonial. The government contends that the CI’s statements on the

recording are not testimonial. 

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. amend VI.

In Crawford, the Supreme Court held that the right of confrontation applies not just to in-court

testimony, but also to out-of-court statements that are “testimonial” in nature. Crawford, 541 U.S.

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at 50–51. Consequently, out-of-court statements that are “testimonial” are inadmissible unless the

witness is “unavailable” and the defendant had a prior opportunity to cross examine the witness.

Here, the CI’s statements during the recorded conversations occurred outside the courtroom

and the CI is “unavailable,” but Defendant has not had an opportunity to cross examine the CI.

Therefore, the CI’s statements during the recorded telephone conversations are inadmissible if they

are “testimonial.” If they are not “testimonial,” the confrontation clause is not a barrier to their

admission. 

The Supreme Court has declined to precisely define the term “testimonial,” but the Court has

provided some guidance that the circuit courts have elaborated on. “Testimonial” statements include

in-court testimony and “extrajudicial statements . . . contained in formalized testimonial materials,

such as affidavits, depositions, prior testimony, or confessions.” Id. at 51–52 (quoting White v.

Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring)). In the Sixth Circuit, the term has been

more broadly construed to turn on the declarant’s intent. A statement is testimonial if “the declarant

intends to bear testimony against the accused. That intent, in turn, may be determined by querying

whether a reasonable person in the declarant’s position would anticipate his statement being used

against the accused in investigating and prosecuting the crime.” United States v. Cromer, 389 F.3d

662, 675 (6th Cir. 2004). “Considered within such a framework, statements of a confidential

informant are testimonial.” Id. However, that rule is limited to those statements of a CI that are

offered to prove the truth of the matter asserted. Id.

Here, the conversation between defendant and the CI did not produce statements that were

formal or under oath; the statements were not given to a police officer as part of a custodial

interrogation; and the statements were not part of a hearing or earlier trial. But the statements were

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made by a CI with the clear understanding that they would be used “against the accused in

investigating and prosecuting the crime.” Id. Under a literal reading of Cromer, then, the CI’s

statements would seem to be testimonial and barred by the confrontation clause even though in

Cromer the CI’s statements were given directly to a police officer who later testified at trial. In this

case, the statements were not given directly to a police officer, but they were captured in a recorded

telephone conversation between the CI and Defendant in circumstances under which a reasonable

person in the CI’s position would know that investigators would listen to the recording and use his

recorded statements against the Defendant at a later trial. 

However, whether the CI’s statements are barred also depends on the purpose for which they

are offered. United States v. Jones, 205 Fed. App’x 327, 340 (6th Cir. Oct. 11, 2006). The

Confrontation Clause “does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 (citing Tennessee v. Street,

471 U.S. 409, 414 (1985)). Defendant asserts that the recording of his conversation with the CI will

be offered to prove his connection to the “Wildfong cocaine conspiracy.” The recordings may be

admissible for that purpose, or to “ ‘give meaning to the admissible responses of’ ” Defendant or

establish a connection between Defendant and the CI. Jones, 205 Fed. App’x at 342 (quoting United

States v. Sexton, 119 Fed. App’x 735, 741–43 (6th Cir. 2005)). But they are not admissible if the

government offers the CI’s statements to prove the truth of the matter asserted. 

Consequently, Defendant’s motion in limine will be granted to the extent the government

intends to offer the CI’s recorded statements to prove the truth of the matter asserted. The motion

will be denied to the extent the government intends to offer the CI’s recorded statements to give

context to Defendant’s own statements in the recordings or establish a connection between

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Defendant and the CI. The government will be directed to provide a recording and transcript of the

CI’s statements it anticipates using during trial to Defendant and the Court withing thirty days. The

Government should also provide a written explanation of the statements’ relevance along with the

transcript. 

II

Defendant has also moved for a determination of whether he is a “career offender” pursuant

to U.S.S.G. § 4B1.1. [Dkt. # 132]. The question is relevant to sentencing, but not to the

determination of whether or not he is guilty of the charged offenses. Sentencing, of course, will not

take place unless defendant pleads guilty and waives his right to a jury trial, or is convicted of one

or more of the charges following trial. Nevertheless, the government indicated in its response to

Defendant’s motion [Dkt. # 135], and confirmed at a status conference held on November 17, 2009,

that it does not oppose the Court making the determination at this time. Moreover, because the

determination of whether Defendant qualifies as a career offender would have a significant impact

on his ultimate sentence if he were to be convicted or plead guilty, and because the state of the law

leaves him without clear guidance, the Court will endeavor to furnish a decision. The Court will

undertake the analysis with the understanding that Defendant retains his presumption of innocence

and he has not waived any right to which he is entitled. 

U.S.S.G. § 4B1.1(a) provides that “[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.” The only issue in dispute is whether a conviction for

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It is not clear from the record whether the conviction was based on a violation of subsection

one or subsection two. The statute provides in full: 

Sec. 234b. (1) Except as provided in subsection (3) or (4), an individual who

intentionally discharges a firearm at a facility that he or she knows or has reason to

believe is a dwelling or an occupied structure 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) An individual who intentionally discharges a firearm in a facility that he or she

knows or has reason to believe is an occupied structure in reckless disregard for the

safety of any individual 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.

(3) Subsections (1) and (2) do not apply to a peace officer of this state or another

state, or of a local unit of government of this state or another state, or of the United

States, performing his or her duties as a peace officer.

(4) Subsections (1) and (2) do not apply to an individual who discharges a firearm

in self-defense or the defense of another individual.

(5) As used in this section:

(a) “Dwelling” means a facility habitually used by 1 or more individuals as a place

of abode, whether or not an individual is present in the facility.

(b) “Occupied structure” means a facility in which 1 or more individuals are present.

(c) “Peace officer” means that term as defined in section 215.

Mich. Comp. Laws. § 750.234b.

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discharging a firearm at a dwelling or occupied structure related to a 1995 incident in Bay City,

Michigan in violation of Mich. Comp. Laws § 750.234b3 is a “crime of violence.” If, as Defendant

contends, the conviction is not for a “crime of violence,” he will likely face a substantially shorter

sentence if convicted of the offenses charged in this case. 

A “crime of violence” is “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

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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). The parties focus on the “otherwise clause,” that

is, whether the conviction for discharge of a firearm at a dwelling “otherwise involves conduct that

presents a serious potential risk of physical injury to another.” The Sixth Circuit applies a two-part

test to the determination of whether a conviction fits within the otherwise clause. First, “does the

crime present a serious potential risk of [physical injury] akin to the listed crimes?” United States

v. Ford, 560 F.3d 420, 421 (6th Cir. 2009) (citing James v. United States, 550 U.S. 192 (2007)).

Second, “does the crime involve the same kind of ‘purposeful, violent, aggressive conduct’ as the

listed crimes?” Ford, 560 F.3d at 421 (quoting Begay v. United States, 128 S. Ct. 1581, 1586

(2008)). A categorical approach is applied to the determination, meaning a court should “look at

the statutory definition of the crime of conviction, not the facts underlying that conviction, to

determine the nature of the crime.” Id. at 422 (citing Taylor v. United States, 495 U.S. 575, 602

(1990)). Only if “it is possible to violate a criminal law in a way that amounts to a crime of violence

and in a way that does not” may the Court consider the facts underlying the conviction. Ford, 560

F.3d at 422 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). 

A

Defendant asserts that the Court should look beyond the mere fact of his conviction to the

circumstances underlying the charges because it is “possible” to violate the law in a nonviolent way.

Ford, 560 F.3d at 422. More specifically, that it is possible to discharge a firearm at or in a qualified

facility without creating a serious risk of physical injury. Chambers v. United States, 129 S. Ct. 687

(2009). The argument is unpersuasive. Unlike a conviction for escape, which was at issue in

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Chambers and Ford, a conviction for discharge of a firearm “at” or “in” a dwelling requires proof

that the defendant intentionally discharged a firearm at or from within a “facility” he “kn[e]w[] or

ha[d] reason to believe” was then occupied by a person or was “habitually used” by at least one

person “as a place of abode.” Mich. Comp. Laws § 750.234(b). It may be possible to “walk away”

from a minimum security prison, halfway house, or custodial medical facility without committing

a crime of violence, Ford, 560 F.3d 420, but it is less probable that the intentional discharge of a

firearm at or from within a building that is known to be occupied, or at least “habitually” used as an

abode, would not create “a serious potential risk of physical injury” similar to the listed crimes.

James, 550 U.S. at 209. 

It may be possible to construct a scenario where a person could violate the statute without

actually endangering another person—perhaps a celebratory gunshot fired into the air to bring in the

new year or target practice directed toward a “facility” located in a remote forest that a person

“habitually” uses as an abode, but that the person firing the shot knows to be empty at the time.

However, the categorical approach does not require “that every conceivable factual offense covered

by a statute must necessarily present a serious potential risk of injury before the offense can be

deemed a violent felony.” Id. at 208. “[T]he proper inquiry is whether the conduct encompassed

by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to

another. One can always hypothesize unusual cases in which even a prototypically violent crime

might not present a genuine risk of injury . . . .” Id. 

Moreover, even if Defendant was only convicted on an “aiding and abetting theory,” as he

contends in his motion, the term “crime of violence” includes convictions for “the offense of aiding

and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.1, Appl. n.1.

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Begay involves the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), not the sentencing

guidelines, but still applies to this question with equal force because “both laws share essentially the

same definitions (if not the same titles).” Ford, 560 F.3d at 421. 

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The mere fact that Defendant did not pull the trigger does not mean the conviction is not a crime of

violence. 

B

Moving to the second Ford inquiry, Defendant contends that the conviction is not a “crime

of violence” because it is “not similar in kind to the numerated offenses in the guideline . . . .” See

Begay v. United States, 128 S. Ct. 1581 (2008).4 In Begay, the Supreme Court held that the specific

examples in clause two of the guideline—burglary of a dwelling, arson, extortion, and crimes

involving explosives—limit the scope of the otherwise clause. Id. at 1584–86. The Court explained

that the examples in clause two show Congress’s intent to capture only “physically risky crimes

against property,” rather than all crimes that present a serious risk of physical injury. Id. at 1586

(citing H.R. Rep. No. 99-849, p. 3 (1986)). Furthermore, all of the listed crimes require proof of

“purposeful, violent, and aggressive” conduct before a defendant may be convicted. Begay, 128 S.

Ct. At 1586. Consequently, drunk driving is not covered by the otherwise clause because, unlike

arson, burglary, and extortion, it is not a physically risky property crime, nor does it necessarily

involve “purposeful, violent, or aggressive” conduct. Id. 

Initially, Defendant’s second argument also seems unpersuasive. Unlike drunk driving,

“[i]ntentional discharge of a firearm at dwelling or occupied structure,” is a “physically risky crime

against property.” Begay, 128 S. Ct. at 1586. Like burglary, it creates the potential for a “violent”

conflict when a perpetrator approaches a “dwelling” or “occupied structure” and purposefully and

aggressively discharges a firearm at it. Id. Like arson, even if no one is present at the “dwelling”

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at the time, the potential for physical injury remains high. Bullets, much like fire, do not just stop

when they reach their targets, nor for that matter do they always meet their targets. Any time a

weapon is fired at a dwelling it creates the potential for a significant injury or death to a neighbor

or person simply passing by. See United States v. Weinert, 1 F.3d 889, 891 (9th Cir. 1993) (holding

that conviction pursuant to Cal. Penal Code § 246 for “maliciously and willfully discharg[ing] a

firearm at an inhabited dwelling” is a crime of violence even though the statute did not require that

the dwelling be occupied at the time of the incident and the defendant claimed he knew it to be

unoccupied); United States v. Ruvalcaba, No. 5:08CR379, 2009 WL 1707911 (N.D. Ohio June 18,

2009) (holding that a violation of Ohio Rev. Code Ann. § 2923.161 for discharging a firearm “at or

into an occupied structure” is a crime of violence even though the statute did not require that a

person actually be in or at the “occupied structure” at the time of the incident); see also United

States v. Rice, 520 F.3d 811, 820 (7th Cir. 2008) (conviction pursuant to 720 Ill. Comp. Stat. 5/24-

1.2(a)(2) for discharging “a firearm in the direction of another person or in the direction of a vehicle

he or she knows or reasonably should know to be occupied by a person” is a crime of violence). But

see United States v. Gear, 577 F.3d 810, 812 (7th Cir. 2009) (conviction for reckless discharge of

a firearm pursuant to 720 Ill. Comp. Stat. 5/24-1.5(a) is not a “crime of violence” because it does

not require intentional conduct for a conviction). 

Moreover, discharge of a firearm at a dwelling, like arson, burglary, extortion, and crimes

involving the use of explosives usually involves “purposeful, violent, and aggressive conduct.”

Begay, 128 S. Ct. at 1586 (internal quotations and citation omitted). Discharge of a firearm at a

building requires intent to discharge the weapon at a building the perpetrator knows is occupied, or

at least habitually used as a place of abode. See People v. Henry, 607 N.W.2d 767 (Mich. App. Ct.

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1999) (holding that the discharge of a firearm at a dwelling is a general intent crime). Discharge of

a firearm at a dwelling is not a strict liability or status crime. Statutes criminalizing drunk driving,

on the other hand, “typically do not insist on purposeful, violent, and aggressive conduct; rather,

they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct

in respect to which the offender need not have had any criminal intent at all.” Begay, 128 S. Ct. at

1586–87; see also U.S.S.G. § 4B1.1. 

The initial analysis, as well as common sense, suggest that discharge of a firearm “at” or “in”

a dwelling or occupied structure is a crime of violence because it typically creates the risk of a

serious physical injury, and usually involves the same type of purposeful, violent, and aggressive

conduct involved in arson, burglary, crimes involving explosives, and some types of extortion. But

recent decisions from the Supreme Court and the Sixth Circuit indicate a trend toward a more

limited definition of the phrase “crime of violence.” At least as to the second Ford inquiry, the

similarity between the crime at issue and the enumerated crimes, the appellate courts have

emphasized the type of searching inquiry that the Supreme Court appeared to caution against when

making the first inquiry, whether the crime creates a risk of physical injury. 

That is, recent decisions suggest district courts should parse the offense and even invent

hypothetical scenarios to ensure that “every conceivable factual offense covered by a statute must

necessarily” involve purposeful, violent, and aggressive conduct. Cf. James, 550 U.S. at 208. If

there is any conceivable way that a conviction could have resulted from conduct that is not

purposeful, violent, and aggressive, then the conviction is not a crime of violence pursuant to

U.S.S.G. § 4B1.1. See Chambers v. United States, 129 S. Ct. 687 (2009) (parsing the elements of

failure to report pursuant to 720 Ill. Comp. Stat. 5/31-6(a) and determining that it punished several

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classes of conduct, including conduct that did not involve use of physical violence such that it could

not be classified as a crime of violence); Ford, 560 F.3d at 422 (parsing the elements of escape

pursuant to Ky. Rev. Stat. § 520.010 and determining it was not a crime of violence because, among

other reasons, not all offenses punished by the statute were purposeful, violent, or aggressive). 

The statute at issue in this case, Mich. Comp. Laws § 750.234b, prohibits two distinct classes

of conduct. First, discharging a firearm “at a facility” that a person “knows or has reason to believe

is a dwelling or an occupied structure.” Second, discharging a firearm “in a facility” that the person

“knows or has reason to believe is an occupied structure in reckless disregard for the safety of any

individual.” The statute defines dwelling as “a facility habitually used by [one] or more individuals

as a place of abode, whether or not an individual is present at the facility.” An occupied structure

is “a facility in which [one] or more individuals are present.” Defendant’s brief suggests he was

convicted for discharging a firearm “in” a qualified facility [Dkt. # 132]; the government’s brief

suggests the firearm was discharged “at” a qualified facility [Dkt. # 135]. Both types of conduct will

be analyzed in turn.

The first section of the statute prohibits discharging a weapon “at” a qualified facility. Mich.

Comp. Laws § 750.234b(1). “At” is given is ordinary meaning; “ ‘[t]o or in the direction of’ ” or

“ ‘in, on, or near.’ ” People v. Wilson, 585 N.W.2d 24, 26 (Mich App. Ct. 1998) (quoting The

American Heritage Dictionary 137 (1982); Random House College Dictionary 83 (1997)).

Consequently, the bullet need not even contact the facility, or be aimed directly at the facility to

secure a conviction. Wilson, 585 N.W.2d at 26. All the government must prove is that the person

charged “was shooting toward or in the direction of” a qualified facility. Id. Proof that a defendant

intentionally discharged a firearm in the direction of a qualified facility, even if the defendant

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intentionally aimed above the facility, the bullet did not contact the facility, and the defendant knew

the facility was empty at the time, constitutes sufficient evidence for a conviction pursuant to the

statute. Id. Moreover, the statute defines a general intent crime, not a specific intent crime. People

v. Henry, 607 N.W.2d 767 (Mich. App. Ct. 1999). To obtain a conviction the government only

needs to demonstrate that the defendant intended to do the prohibited act, discharge a firearm in the

direction of a qualified facility, not that the defendant intended a specific result. Id. at 769. 

Considering the elements as interpreted by the Michigan courts, conviction pursuant to §

750.234b(1) requires (1) intent to discharge a weapon (2) toward or in the direction of (3) a facility

habitually used as a place of abode, even if no one is present at the time, or any facility where a

person is actually present at the time. It does not require purposeful aggression or purposeful

violence. Begay, 128 S. Ct. 1581. A defendant merely standing in her yard on New Year’s Eve and

intentionally discharging a celebratory gunshot in the general direction of her home, which she

knows to be empty, would violate the statute. Such a defendant, like a drunk driver or prison

escapee, acted recklessly and placed people around her at risk of physical injury, but she did not

display the type of purposeful violence or aggression that the Supreme Court and the Sixth Circuit

require. Id.; Ford, 560 F.3d at 425. 

The second class of conduct prohibited by the statute is discharge of a firearm “in” a

qualified facility. Mich. Comp. Laws § 750.234b(2). The Michigan appellate courts have not

specifically defined “in,” but it too will be given its normal meaning. When used as a preposition,

“in” “indicate[s] inclusion within space, a place, or limits.” Random House College Dictionary 670

(1982). “In,” in the context of section two, means “within” or “inside” a qualified facility. In

Henry, the Michigan Court of Appeals assumed “in” had such a meaning, and upheld the

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defendant’s conviction for recklessly discharging a firearm within his own home. Henry, 670

N.W.2d 767. In addition to prohibiting discharge of a firearm “in” a qualified facility rather than

“at” a qualified facility, section two also differs from section one in that it requires a person to be

in the facility at the time; habitual use of the facility as an abode is not enough. Finally, section two

adds a fourth element to the crime; the discharge must have been made in reckless disregard for the

safety of an individual. 

Still, section two, like section one, will not always require purposeful violence or purposeful

aggression to achieve a conviction. Take, for example, a hypothetical defendant who uses his

basement as a target range, but recklessly fails to provide a proper backstop and ensure that the

bullets do not leave the basement. When the hypothetical defendant takes aim and fires, he

intentionally discharges a firearm, in a facility where a person (the defendant) is located, with

reckless disregard for the safety of an individual (perhaps the defendant again). Arguably, however,

he has not acted violently or aggressively. 

Violations of § 750.234b will usually involve purposeful, violent, and aggressive conduct,

but not always. As a result, the Court is not prepared to decide, after applying the categorical

approach, that Defendant Cadena is a career offender, at least if it is required to decide that his §

750.234b conviction is a crime of violence. Although the circumstances pose an extremely close

question, “if any doubt remains about this conclusion, the rule of lenity alleviates it. When

ambiguity clouds the meaning of a criminal statute, ‘the tie must go to the defendant.’ ” Ford, 560

F.3d at 425 (quoting United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (plurality)). Too much

doubt remains about whether Cadena’s conviction necessarily involved purposeful, violent, and

aggressive conduct to hold as a matter of law that he committed a crime of violence. Begay, 128 S.

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Ct. 1581. 

III

The Court’s conclusion that the statute is ambiguous such that it prohibits several categories

of conduct, some of which would qualify as a crimes of violence pursuant to § 4B1.2 and some of

which would not, does not end the inquiry. In such cases, and “where a defendant has pleaded

guilty, [the Court] may also consider ‘the charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ”

United States v. Baker, 559 F.3d 443, 452 (6th Cir. 2009) (quoting Shepard v. United States, 544

U.S. 13, 16 (2005)). The Court may take a critical look at the actual facts that led to Defendant’s

conviction, rather than rely on the elements of the statute alone. The Court may not consider police

reports or other records that are not part of the specific factual findings made by the judge and

accepted by Defendant. Id. at 21–23. The government, which would bear the burden of proving by

a preponderance of the evidence that the 1995 conviction is a crime of violence at sentencing, has

not yet provided any specific factual evidence relating to Defendant’s 1995 conviction that is

appropriate for the Court to review. The government will, however, have the opportunity to present

such evidence before sentencing. 

Accordingly, Defendant’s motion in limine [Dkt. # 93] is GRANTED to the extent it

requests exclusion of the testimonial statements of the now-deceased CI that are offered to prove

the truth of the matter asserted. The government is DIRECTED to provide the Court and Defendant

with a transcript of the statements it anticipates using at trial within 30 days of the date of this

opinion. The transcript should be accompanied by a written explanation or the statements’

relevance.

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It is further ORDERED that Defendant’s motion for determination of his career offender

[Dkt. # 132] status is GRANTED to the extent it asks for a judicial determination of whether or not

§ 750.234b describes a crime of violence. Because the statute is ambiguous, the determination

depends on the specific facts of conviction. 

It is further ORDERED that if Defendant is convicted or pleads guilty and waives his right

to a jury trial, the appropriate advisory guideline range calculated pursuant to the Unites States

Sentencing Guidelines Manual will depend on whether the government can show by a

preponderance of the evidence that the specific events that led to Defendant’s conviction for

violating § 750.234b demonstrate purposeful, violent, and aggressive conduct. 

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: November 24, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on November 24, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

1:09-cr-20006-TLL-CEB Doc # 167 Filed 11/24/09 Pg 16 of 16 Pg ID 565