UNITED STATES of America, Plaintiff-Appellee, v. Troy Leon LAFERRIERE, Defendant-Appellant, 399 F. App'x 65

PER CURIAM. Troy Leon Laferriere pled guilty to being a felon in possession of a firearm. The district court determined that Laferri-ere was an armed career criminal and, consistent with a binding plea agreement, sentenced Laferriere to the mandatory minimum sentence of fifteen years’ imprisonment. Laferriere now appeals, arguing that the district court should not have concluded that a juvenile conviction for armed assault with intent to rob was a predicate offense under the Armed Career Criminal Act (“ACCA”) because insufficient evidence supported the finding that Laferriere was convicted of that offense.

The record supports the district court’s conclusion that Laferriere was convicted of armed assault with intent to rob. However, because the evidence fails to establish that this conviction was for a crime that involved an actual firearm — a particular requirement for juvenile delinquency predicate offenses under the ACCA — the prior conclusion cannot be used to enhance Laf-erriere’s sentence. On August 1, 2007, a witness called the Lansing, Michigan, Police Department to report an intoxicated man with a gun. The witness identified the man as the defendant, Troy Leon Laferriere.

When police officers located Laferriere, he was near the front of his residence; Laferriere fled the officers, and they apprehended him in his backyard. When he was captured, Laferriere was standing near a table where there were two bags of marijuana in plain view, sitting adjacent to Laferriere’s keys. Police officers obtained a search warrant for the house where Laferriere was staying, and they discovered a shotgun in the area of the house that Laferriere inhabited.

Because Laferriere had previously been convicted of a felony, a federal grand jury indicted him for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Laferriere initially agreed to plead guilty to the offense. After the Presen-tence Investigation Report (PSR) recommended that Laferriere be designated an armed career criminal, however, he moved to withdraw his plea.

The district court granted the motion, noting that as an armed career criminal, Laferriere was facing a minimum sentence (fifteen years), which was greater than the maximum sentence (ten years) provided for by the plea agreement. After further negotiations— and on the eve of trial — the parties submitted a binding plea agreement to the court pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The agreement called for a sentence of 180 months, the mandatory minimum sentence for an armed career criminal. See 18 U.S.C. § 924(e)(1).

After a hearing, the district court accepted the proposed plea agreement, agreeing that if the court determined that Laferriere was an armed career criminal, the court would sentence him to 180 months’ imprisonment. Before the district court, Laferriere argued that there was insufficient evidence to establish that he had three previous convictions for violent felonies, and thus he argued that he was not an armed career criminal. In particular, Laferriere challenged his alleged juvenile conviction for “Assault with Intent to Rob-Armed” in violation of Michigan Compiled Laws § 750.89.

The alleged conviction is evidenced by an “Order of Disposition” issued by the Juvenile Division of the Ingham County Probate Court in April, 1991. Because the document is difficult to describe and

interpretation of this document is central to this case, a copy of the order is attached to this opinion as an appendix. At Laferriere’s sentencing hearing, the district court rejected Laferriere’s argument that the order of disposition is ambiguous: I disagree with counsel’s reading of the Government’s Exhibit No. 1. I don’t think it’s ambiguous at all. I think it’s clear that on the date designated that the defendant pled guilty to assault with intent to rob while armed, contrary MCL 750.89, and was remanded to the custody of the Ingham County Youth Center in Lansing pursuant to that plea.

It’s clear also that the charge of possession of firearm in commission of a felony was not sustained, while it’s not crystal clear from the record, an understanding of how the state courts work would indicate that that count was probably dismissed pursuant to a plea agreement with the defendant. Likewise, apparently there was another petition pending, which is designated as Number 4, which is noted in Paragraph 10, and which a separate charge of breaking and entering an occupied dwelling contrary MCL 750.110 was also dismissed.

So the Court finds no ambiguity in Exhibit 1, assault with intent to rob while armed is the offense to which the defendant offered a plea. And the Court finds that that is a predicate felony for purposes of armed career criminal. The court then imposed a 180-month sentence in accordance with the plea agreement. Laferriere now appeals, arguing (1) that the order of disposition is ambiguous and (2) that a judicial determination that Laf-erriere had been convicted of armed assault with intent to rob violates the rule set out by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

While Laferriere’s case must be remanded for reasons explained below, neither of the two main arguments presented on appeal has merit. First, the district court’s determination that the order of disposition indicates that Laferriere was convicted of armed assault with intent to rob is not clearly erroneous. See United States v. Crowell, 493 F.3d 744, 748 (6th Cir.2007) (standard of review).

The order of disposition states, in the chart in paragraph five, that Laferriere admitted that he was guilty of count I of the petition dated January 4, 1991: armed assault with intent to rob, in violation of Michigan Compiled Laws § 750.89. Because Laferriere cannot point to any aspect of the order of disposition that undermines the straightforward conclusion that Laferriere was convicted of armed assault with intent to rob, the district court did not commit clear error on this matter. Laferriere argues that the district court’s conclusion was erroneous based on two purported ambiguities in the document.

The first is the fact that in the first line of paragraph five, both the box indicating that the allegations in the petition are sustained and the box indicating that the allegations in the petition are not sustained are filled in. But both boxes were filled in because the juvenile court adjudicated two counts: one count was sustained (armed assault with intent to rob) and the other count was not sustained (possession of a firearm in the commission of a felony). This

interpretation is confirmed by the fact that the order contains a space for “all allegations which are not sustained,” and this space lists only the possession of a firearm in the commission of a felony count. Laferriere also questions the meaning of some numbers (# 4, # 5) that appear twice in paragraph five and once just above paragraph ten of the order.

The most natural reading of the document as a whole is that there were two petitions: petition four, which charged breaking and entering of an occupied dwelling house; and petition five, count one of which was armed assault with intent to rob, and count two of which was possession of a firearm in the commission of a felony. This reading explains why one of the not sustained charges was indicated in paragraph ten, which lists petitions that are dismissed; and the other not sustained charge was indicated in the last

section of paragraph five, which lists allegations that are not sustained. The order referred to the breaking and entering charge in paragraph ten because the entire petition containing that charge was dismissed. The order referred to the possession of a firearm in the commission of a felony charge in the last

section of paragraph five because it was in the same petition as the armed assault with intent to rob count, and that petition was not dismissed in its entirety. Second, the use of the juvenile conviction as a predicate offense for the finding that Laferriere was an armed career criminal did not violate Apprendi The Ap-prendi rule explicitly excepts prior convictions: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added).

In Crowell, this court held that “the use of procedurally sound juvenile adjudications as [ACCA] predicates does not violate due process.” 493 F.3d at 750. Laferriere also argues that the Government has the burden of affirmatively showing that the procedural guarantees provided by Michigan law were actually afforded to Laferriere in his particular case. But this argument misreads Crowell, and a requirement that the Government demonstrate that a defendant received due process during a prior adjudication would be inconsistent with Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994).

Crowell upheld the ACCA predicate where there was no indication the defendant had not received due process protections, and state law clearly provided for such protections. See 493 F.3d at 750-51. This is the situation in the present case. In Custis, the Supreme Court held that the ACCA “does not permit [a defendant] to use the federal sentencing forum to gain review of his state convictions.” 511 U.S. at 497, 114 S.Ct. 1732; see also United States v. Rogers, 45 F.3d 1141, 1143 (7th Cir.1995) (applying Custis to a juvenile conviction).

The only exception to this rule is for claims that the defendant was denied counsel entirely, see Custis, 511 U.S. at 496, 114 S.Ct. 1732, and Laferriere has produced no evidence that he was denied his right to counsel. Indeed, the only evidence available indicates the opposite: the order of disposition states that Laferriere “had ... an attorney.” While Laferriere’s primary arguments on appeal lack merit, he is nonetheless entitled to resentencing because of a particular requirement of the ACCA.

Lafer-riere’s conviction of armed assault with intent to rob cannot be counted as a sentence-enhancing predicate offense under the ACCA because the evidence fails to establish that the conviction was for a crime that actually involved the use or carrying of a firearm, knife, or destructive device, as required for

an act of juvenile delinquency. Before the ACCA’s enhanced prison sentences may be administered, the government has the burden to show that the defendant had three pri- or convictions for “violent felonies” or “serious drug offenses.” 18 U.S.C. § 924(e)(1). A “violent felony” is defined as: [A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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) (emphasis added). Laferriere’s conviction of armed assault with intent to rob was, importantly for this case,

an act of juvenile delinquency. Thus, the government must also show that Laf-erriere used or carried a “firearm, knife, or destructive device” when he committed his armed assault for this conviction to count as a predicate offense and to enhance his sentence under the ACCA. The government has not met its burden of proving that Laferriere was convicted of actually using or carrying a firearm, knife, or destructive device as part of his act of juvenile delinquency back in 1991.

The mere fact of conviction of armed assault with intent to rob is not sufficient because it is possible to be found guilty of this crime under Michigan law without the involvement of an actual firearm, knife, or destructive device. A defendant may also be convicted under that law if he used “any

article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon.” Mich. Comp. Laws § 750.89. A “toy gun or a finger or other object hidden in a bag or under a coat to simulate the appearance of a weapon” is enough for a conviction. People v. Jolly, 442 Mich. 458, 502 N.W.2d 177, 181 (1993) (footnotes omitted); see also People v. Syakovich, 32 Mich.App. 356, 188 N.W.2d 642, 643 (1971). “Firearm” is defined too narrowly for purposes of the ACCA to include a child’s toy or finger. See 18 U.S.C. § 921(a)(3); cf. United States v.

Forrest, 402 F.3d 678, 686-87 (6th Cir.2005). There is no indication on the order of disposition that Lafer-riere conceded possessing an actual firearm in 1991. Indeed, all the order of disposition says about a firearm is that the charge of possessing a firearm was not sustained. And, given the age of the adjudication, the plea colloquy has been lost or destroyed. Without proof that a firearm (or knife or other destructive device) was involved, this conviction is meaningless for ACCA purposes. Laferriere’s enhanced sentence therefore cannot be salvaged.

Although Laferriere failed to cite the particular statutory provision of the ACCA dealing with juvenile delinquency convictions, we may nonetheless reverse, in the interest of justice, where Laferriere’s ACCA-enhanced sentence was plain error. “[Tjhis Court has discretion to correct plain errors affecting important rights of criminal defendants, even when not raised on appeal.” United States v. Graham, 275 F.3d 490, 521-22 (6th Cir.2001) (vacating sentence in light of Apprendi issue that was not raised before the court).

Plain error is (1) error, (2) that was obvious or clear, (3) that affected the party’s substantial rights, and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc). Laferriere’s enhanced sentence was error because his armed-assault conviction could not count as an ACCA predicate offense without proof that he used or earned a “firearm, knife, or destructive device,” the error was obvious or clear since 18 U.S.C. § 924(e)(2)(

B) unambiguously requires such proof, and it affected Laferriere’s substantial rights because he was erroneously sentenced to a longer prison term. Id. The court has discretion to decide whether the error affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Hamm, 400 F.3d 336, 340 (6th Cir.2005). It would affect the fairness and/or integrity of the judicial proceedings to compel Laferriere to serve an incorrectly enhanced sentence. For these reasons, we reverse the judgment of the District Court and remand for resentencing. .

This opinion is styled per curiam because it was prepared in the chambers of more than one judge. . This reading is confirmed by a document attached to the copy of Laferriere’s PSR that was provided to the district court. That document was a petition charging Laferriere with two criminal counts: Count I, "ASSAULT W/I TO ROB ARMED" and Count II, "POSSESSION OF A FIREARM IN THE COMMISSION OF A FELONY.” This petition was labeled “PETITION (# 5)” in a

section of the document labeled, "For court use only." We do not rely on the petition because the district court did not expressly rely upon it and because the order of disposition is unambiguous without reference to the petition. . Although the 1991 petition charging Laferri-ere with assault with intent to rob while armed mentions a "sawed-off shotgun,” the language of the charge ("an

article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, a sawed off shotgun”) does not preclude the possibility of an

article that merely looks like a shotgun.