3.08.2007

6th Cir. Sides with 8th Cir. in Holding that Carrying a Concealed Weapon Does Not Qualify as a “Violent Felony” Under the Armed Career Criminal Act

Per U.S. v. Alexander, 2007 WL 419796 (6th Cir. Feb. 09, 2007):

A “violent felony,” the Act says, is “any crime punishable by imprisonment for a term exceeding one year, ... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .” 18 U.S.C. § 924(e)(2)(B). Under Michigan law, one violates the concealed-carry prohibition by “carry[ing] a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person ... without a license to carry the pistol as provided by law.” Mich. Comp. Laws § 750.227(2). Our sister circuits have reached conflicting conclusions on the point. Compare United States v. Whitfield, 907 F.2d 798, 800 (8th Cir.1990) (“Although carrying [a concealed] weapon may involve a continuing risk to others, the harm is not so immediate as to present a serious risk of physical injury to another .”) (internal quotation marks and brackets omitted), with United States v. Hall, 77 F.3d 398, 401 (11th Cir.1996) (“Carrying a concealed weapon is conduct that poses serious potential risk of physical injury and, so, falls under the definition of violent felony.”). Another panel of our court, see United States v. Flores, No. 06-1152 (6th Cir.), argued Jan. 24, 2007, has the issue in front of it in a case that does not involve plain-error review.

. . .

Informed by these precedents and the language of the Act, we do not think that a concealed-weapon conviction rises to the level of a “violent felony.”

. . .

Although the district court erred in labeling Alexander's prior conviction for carrying a concealed weapon a “violent felony” under the Armed Career Criminal Act, the error was not “plain.” Until today, the question presented-whether carrying a concealed weapon is a “violent felony” for purposes of the Act-was an open one in our circuit, see United States v. Flores, 118 F. App'x 49, 54 (6th Cir. Dec. 17, 2004), and it was one on which our sister circuits were divided, compare Whitfield, 907 F.2d at 800, with Hall, 77 F.3d at 401-02. The conflicting precedents on the question at hand show that the error was not plain. See United States v. Barrow, 118 F.3d 482, 492 (6th Cir.1997) ( “[I]n light [of] the circuit split ... and the lack of definitive precedent in this Circuit, the error was not ‘plain.’ ”); United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995) (“[A] circuit split precludes a finding of plain error.”); United States v. Blandford, 33 F.3d 685, 712 (6th Cir.1994) ( “Because the ... issue has divided our sister circuits, we cannot see that the district court's alleged error ... was a ‘plain’ one ....”).

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