United States v. Demond Wilson

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604

Submitted September 21, 2011* Decided September 21, 2011

Before

RICHARD D. CUDAHY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge No. 11‐1147

UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff‐Appellee, Court for the Western District of Wisconsin.

v. 10‐CR‐128‐BBC‐01

DEMOND WILSON, Barbara B. Crabb, Defendant‐Appellant. Judge.

O R D E R

Demond Wilson, a felon, was carrying several guns in his car, including a shotgun with an obliterated serial number, when police officers conducted a traffic stop. He pleaded guilty to possessing a gun after a felony conviction, 18 U.S.C. § 922(g)(1), and possessing a firearm with an obliterated serial number, id. § 922(k). The district court, over Wilson’s objection, set the base offense level at 20 after concluding that his 2002 conviction in Michigan for using a motor vehicle to elude police, a third‐degree felony, see MICH. COMP. LAWS § 750.479a(1), (3), counts as a conviction for a “crime of violence,” see U.S.S.G.

* The appellant states that oral argument is unnecessary, and we agree. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P. 34(f); CIR. R. 34(f).

No. 11‐1147 Page 2

§§ 2K2.1(a)(4)(A) & cmt. n.1, 4B1.2(a)(2) & cmt. n.1. The court sentenced Wilson within the resulting guidelines range to a total of 84 months’ imprisonment.

In this appeal from his sentence, Wilson challenges the characterization of the Michigan offense as a crime of violence. The Sixth Circuit has held that an offense under subsections (1) and (3) of § 750.479a is a crime of violence. United States v. Martin, 378 F.3d 578, 580–84 (6th Cir. 2004); see United States v. LaCasse, 567 F.3d 763, 764 (6th Cir. 2009) (holding that violation of subsections (1) and (3) of § 750.479a is a “violent felony” under parallel Armed Career Criminal Act, 18 U.S.C. § 924(e)). We have endorsed the Sixth Circuit’s analysis of § 750.479a, see United States v. Dismuke, 593 F.3d 582, 593–96 (7th Cir. 2010), cert. denied, 131 S. Ct. 3018 (2011), and we also have held that similar statutes in Indiana, Wisconsin, and Illinois define crimes of violence or violent felonies, United States v. Sykes, 598 F.3d 334 (7th Cir. 2010) (analyzing IND. CODE § 35‐44‐3‐3(a), (b)(1)(A)), aff’d, 131 S. Ct. 2267 (2011); United States v. Spells, 537 F.3d 743, 747–53 (7th Cir. 2008) (same); Dismuke, 593 F.3d at 588–96 (analyzing WIS. STAT. 346.04(03)); United States v. Womack, 610 F.3d 427, 433 (7th Cir. 2010) (analyzing 625 ILCS 5/11‐204.1), cert. denied, 131 S. Ct. 3020 (2011); Welch v. United States, 604 F.3d 408, 415–25 (7th Cir. 2010) (same), cert. denied, 131 S. Ct. 3019 (2011).

At sentencing Wilson acknowledged that our precedent compels characterizing § 750.479a as a crime of violence, but certiorari had been granted in Sykes, and Wilson sought to preserve the issue pending review by the Supreme Court. In drafting his appellate brief, which was filed before the Supreme Court ruled, Wilson conceded that a decision upholding our opinion in Sykes would foreclose his appeal given that the Indiana statute discussed in that case is substantively indistinguishable from its Michigan counterpart. The Supreme Court has since affirmed Sykes and confirmed that “[f]elony vehicle flight,” as defined by Indiana, is a violent felony, 131 S. Ct. at 2277. Accordingly, we agree with the district court that a violation of subsections (1) and (3) of § 750.479a is a crime of violence.

AFFIRMED.