USA v. Rex Meek

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. John M. Rogers, Deborah L. Cook, David W. McKeague (AUTHORING), Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0003p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-5336
v.
>
,
REX DEAN MEEKS,
Defendant-Appellant. N
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 09-00044-001—Karen K. Caldwell, District Judge.

Decided and Filed: January 5, 2012
Before: ROGERS, COOK, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kathryn A. Walton, Lexington, Kentucky, for Appellant. Charles P.
Wisdom, Jr., David A. Marye, ASSISTANT UNITED STATES ATTORNEYS,
Lexington, Kentucky, for Appellee. Rex Dean Meeks, Glenville, West Virginia, pro se.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. Defendant appeals the district court’s decision to
sentence him as a career offender. Because Defendant’s prior Kentucky convictions for
first degree wanton endangerment qualify as crimes of violence, and because
Defendant’s arguments under 21 U.S.C. § 851 lack merit, we AFFIRM.

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I
Following a jury trial, Defendant-Appellant Rex Dean Meeks was convicted of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and
possession with intent to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1).
Defendant’s criminal history included two state felony convictions in 2000 for first
degree wanton endangerment, and a state felony conviction in 2004 for first degree
complicity to traffic in a controlled substance. In light of these prior convictions, the
district court sentenced Meeks as a career offender pursuant to § 4B1.1(a) of the
Sentencing Guidelines. On appeal, Meeks challenges the district court’s decision to
sentence him as a career offender. First, in a brief filed by counsel, Meeks contends that
his convictions for first degree wanton endangerment do not qualify as crimes of
violence for purposes of Guidelines § 4B1.1. Second, in a pro se supplemental brief,
Meeks contends that the career offender enhancement was improper because the
government and the court failed to comply with the sentencing enhancement provisions
of 21 U.S.C. § 851(a) and (b).
II
We review de novo a district court’s determination that a prior conviction is a
“crime of violence” for purposes of career offender designation under § 4B1.1. United
States v. Ruvalcaba, 627 F.3d 218, 221 (6th Cir. 2010) (citing United States v. Hargrove,
416 F.3d 486, 494 (6th Cir. 2005)).
A defendant is a career offender under § 4B1.1 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.
U.S.S.G. § 4B1.1(a).

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There is no dispute that Meeks was over eighteen years old when he committed
the instant controlled substance felony offense or that his 2004 conviction for first
degree complicity to traffic in a controlled substance is a qualifying controlled substance
offense. Meeks contends, however, that the other prior felony convictions considered
by the district court – his 2000 convictions for first degree wanton endangerment – do
not qualify as crimes of violence.
The Guidelines define a “crime of violence” as a felony that (1) “has as an
element the use, attempted use, or threatened use 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).
Under Kentucky law, a person is guilty of wanton endangerment in the first
degree “when, under circumstances manifesting extreme indifference to the value of
human life, he wantonly engages in conduct which creates a substantial danger of death
or serious physical injury to another person.” Ky. Rev. Stat. § 508.060. A person acts
wantonly
when he is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the circumstance exists.
The risk must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation. A person who creates
such a risk but is unaware thereof solely by reason of voluntary
intoxication also acts wantonly with respect thereto.
Ky. Rev. Stat. § 501.020(3).
Because first degree wanton endangerment does not include the use, attempted
use, or threatened use of physical force as one of its elements, and because it does not
include burglary of a dwelling, arson, extortion, or the use of explosives, the parties’
dispute focuses on whether a conviction for wanton endangerment falls within the
residual clause of § 4B1.2(a)(2) as an offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

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Not every crime that presents a serious potential risk of physical injury to another falls
within the residual clause. Begay v. United States, 553 U.S. 137, 142-43 (2008).1 In
Begay the Supreme Court held that although drunk driving posed a serious potential risk
of physical injury, it did not fall within the residual clause because it was a strict liability
crime, and did not involve the purposeful, violent, or aggressive conduct of the
examples. Id. at 144-45. In light of Begay, we have held that application of the residual
clause of § 4B1.2(a)(2) should be guided by two inquiries: “One, does the crime present
a serious potential risk of violence akin to the listed crimes? Two, does the crime
involve the same kind of ‘purposeful, violent, and aggressive conduct’ as the listed
crimes?” United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009) (citations omitted).
The Supreme Court has recently suggested that Begay’s “purposeful, violent, and
aggressive conduct” inquiry should be limited to crimes based on strict liability,
negligence, and recklessness because it is not based on statutory language and is often
redundant with the inquiry into risk. Sykes v. United States, 131 S. Ct. 2267, 2275-76
(2011). In other cases, levels of risk will generally divide crimes that qualify as crimes
of violence from those that do not. Id. at 2275 (“In general, levels of risk divide crimes
that qualify from those that do not.”). See also United States v. McMurray, 653 F.3d
367, 377 n.9 (6th Cir. 2011) (noting that Sykes retreated to some degree from Begay’s
“purposeful, violent, and aggressive” standard).
In determining whether a prior conviction is a “crime of violence,” we apply a
“categorical approach, looking to the statutory definition of the offense and not the
particular facts underlying the conviction.” United States v. Gibbs, 626 F.3d 344, 352
(6th Cir. 2010) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). However,
“[i]f it is possible to violate the statute in a way that would constitute a crime of violence
and in a way that would not, the court may consider the indictment, guilty plea, or

1

Although Begay concerned application of the “violent felony” designation under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), the determination of whether a conviction is a
“violent felony” under the ACCA is analyzed in the same way as whether a conviction is a “crime of
violence” under Guidelines § 4B1.2(a). United States v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir. 2011)
(citing United States v. Gibbs, 626 F.3d 344, 352 n. 6 (6th Cir. 2010)).

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similar documents to determine whether they necessarily establish the nature of the prior
conviction.” Id. (citing Shepard v. United States, 544 U.S. 13, 26 (2005)).
Because wanton endangerment involves conduct that creates “a substantial
danger of death or serious physical injury,” Ky. Rev. Stat. Ann. § 508.060, it necessarily
involves a “serious potential risk of violence” akin to the level of risk associated with
the listed crimes. Moreover, unlike the drunk driving offense considered in Begay,
wanton endangerment is not based on strict liability, negligence, or recklessness.
Wanton endangerment requires the defendant to have acted “wantonly.”2 Because
wanton endangerment involves criminal intent (being aware of and consciously
disregarding a substantial and unjustifiable risk), Sykes suggests that we are not required
to engage in Begay’s “purposeful, violent, and aggressive conduct” inquiry, and that the
level of risk alone is sufficient to qualify first degree wanton endangerment as a crime
of violence. Prior to Begay, we had no difficulty concluding that wanton endangerment
is a “crime of violence.” See, e.g., United States v. Wilder, 161 F. App’x 545, 552 (6th
Cir. 2006) (holding that wanton endangerment under Tennessee law is a crime of
violence because the statute proscribes “conduct presenting a serious potential risk of
physical injury.”); United States v. Matney, No. 98-5240, 1999 WL 253640, 181 F.3d
105 (6th Cir. Apr. 23, 1999) (Table) (assuming that wanton endangerment under
Kentucky law is a crime of violence).
We can conceive of no way to violate the Kentucky first degree wanton
endangerment statute in a way that would not present the same level of risk as the listed
crimes. Accordingly, in light of Sykes’s retreat from Begay’s “purposeful, violent, and
aggressive conduct” inquiry, we again conclude that wanton endangerment is
categorically a “crime of violence” for purposes of § 4B1.1.3 See United States v.
2

By definition, “wanton” conduct involves more criminal intent than “reckless” conduct. A
person acts recklessly when he “fails to perceive a substantial and unjustifiable risk that the result would
occur or the circumstance exists.” Ky. Rev. Stat. § 501.020(4). A person acts “wantonly” when he “is
aware of and consciously disregards a substantial and unjustifiable risk.” Ky. Rev. Stat. § 501.020(3).
3

The district court did not use the categorical approach because of its determination that the
statute is ambiguous. See Hancock v. Commonwealth, 998 S.W.2d 496, 498 (Ky. App. 1998) (“Wanton
endangerment is not limited to specific types of conduct,” and “may be committed in many ways.”); United
States v. Clark, No. 08-203, 2009 WL 972614 (E.D. Ky. Apr. 10, 2009) (holding that the Kentucky wanton

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Honeycutt, No. 2:10-cr-00057-1, 2011 WL 2471024, at *6 (S.D. W.Va. June 20, 2011)
(concluding, in light of Sykes, that wanton endangerment with a firearm is a violent
felony under a categorical analysis).
Even if we were to engage in Begay’s “purposeful, violent, and aggressive”
inquiry, we would still be satisfied that Meeks’s wanton endangerment convictions
qualify as crimes of violence. Because the wanton endangerment statute does not
address any specific conduct, this inquiry requires us to use the modified-categorical
approach. Under this approach we may consider “the indictment, guilty plea, or similar
documents to determine whether they necessarily establish the nature of the prior
conviction.” McMurray, 653 F.3d at 377 (quoting Gibbs, 626 F.3d at 352). We must
determine whether the court documents establish that the defendant “necessarily
admitted” that he engaged in the same kind of purposeful, violent, and aggressive
conduct as the listed crimes through his plea. See McMurray, 653 F.3d at 377 (quoting
United States v. Medina-Almaguer, 559 F.3d 420, 423 (6th Cir. 2009)).
Because the transcript of the 2000 plea colloquy was not available, the only
relevant evidence to establish the specific conduct behind Meeks’s wanton
endangerment convictions is the March 2000 indictment, which charged Meeks with the
following offenses: Count I, fleeing or evading police in the first degree in violation of
Ky. Rev. Stat. § 520.095; Counts II and III, first degree wanton endangerment in
violation of Ky. Rev. Stat. § 508.060; Count IV, criminal mischief in the first degree in
violation of Ky. Rev. Stat. § 512.020; and Count V, driving under the influence, in
violation of Ky. Rev. Stat. § 189A.010. Meeks pled guilty to all five counts. Counts II
and III charged that Meeks committed the offense of first degree wanton endangerment
when he operated his motor vehicle under the influence of alcohol or other substances
and collided with the vehicles of Deputy Hale and Deputy Franklin.4

endangerment statute is facially ambiguous).
4

Count II of the indictment charged that Meeks:

committed the offense of wanton endangerment, first degree when he manifested
extreme indifference to human life when he wantonly engaged in a conduct which
created a substantial danger of death to another person, to-wit: he operated his motor

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Meeks contends that, although his actions presented a potential risk of injury to
another, his wanton endangerment conviction, like the drunk driving conviction
discussed in Begay, did not involve the same kind of “purposeful, violent, and aggressive
conduct” as the listed crimes. He contends that because of his intoxication, he was
unaware of the risk he created.
Meeks’s contention that he lacked a sufficiently culpable state of mind because
of his intoxication lacks merit.

Meeks’s convictions for wanton endangerment

necessarily involved an admission that he was aware of and consciously disregarded a
substantial risk that his conduct created a substantial danger of death to Deputies Hale
and Franklin. Accordingly, contrary to Meeks’s assertions, he was not unaware of the
risk he created as a result of his intoxication.
Furthermore, a crime may involve purposeful, violent, and aggressive conduct
even if it does not include a specific intent to cause harm. For example, in Ruvalcaba
we held that the unlawful discharge of a firearm into an occupied structure was a crime
of violence because, although the statute did not require an intent to do harm, the
defendant necessarily made a conscious decision to fire the gun when he discharged it
at the occupied structures, and his conduct presented a risk to others and was aggressive.
627 F.3d at 225. In United States v. LaCasse, 567 F.3d 763 (6th Cir. 2009), we held that
fleeing and eluding is a crime of violence because the offender makes a conscious
decision to flee rather than to stop his vehicle as requested by a police officer, and it
involves aggressive conduct because the offender is attempting to outrun a police cruiser
either in a low speed-limit area or in a manner that results in a collision or an accident.
Id. at 766.

vehicle under the influence of alcohol or other substances and collided with the vehicle
of Deputy Hale.
Count III charged that Meeks:
committed the offense of wanton endangerment, first degree when he wantonly engaged
in a conduct which created a substanial [sic] danger of death to another person, to-wit:
he operated his motor vehicle under the influence of alcohol or other substances and
collided with the vehicle of Deputy Franklin.

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Similarly, although Meeks’s conviction for wanton endangerment did not require
intent to cause serious injury, it did involve purposeful, violent, and aggressive conduct
because it involved an awareness of, and a conscious disregard of a substantial risk that
his collision with the deputies’ vehicles would create a substantial risk of death to the
deputies.
Accordingly, whether we apply a categorical risk analysis in light of Sykes, or
a modified-categorical approach using the two-step Begay inquiry, we are satisfied that
Meeks’s prior convictions for first degree wanton endangerment were crimes of
violence, and that he was properly sentenced as a career offender under § 4B1.1 of the
Sentencing Guidelines.
III
In his pro se supplemental brief, Meeks identifies two sentencing issues that were
not raised by counsel in the opening brief. Meeks claims that the government’s failure
to file an information under 21 U.S.C. § 851(a) giving him notice of what prior
convictions would be used to enhance his sentence, and the district court’s failure to
advise him of his right to challenge his prior convictions under § 851(b), precluded the
district court from sentencing him as a career offender under § 4B1.1 of the Sentencing
Guidelines.
These claims fail as a matter of law. The procedural requirements of § 851 only
apply to statutory sentencing enhancements, not to sentencing enhancements under the
Guidelines. See United States v. Brannon, 7 F.3d 516, 521 (6th Cir. 1993) (“Because
defendant’s sentence was enhanced under U.S.S.G. § 4B1.1, the notice requirements of
21 U.S.C. § 851(a)(1) are inapplicable.”); United States v. Mans, 999 F.2d 966, 969 (6th
Cir. 1993) (“[T]he requirements of § 851(a)(1) apply only to statutory sentence
enhancement, not sentence enhancement under § 4B1.1 of the Sentencing Guidelines.”).
Because Meeks’s sentence was enhanced under the Guidelines rather than under 21
U.S.C. § 841(b), the procedural requirements of § 851 do not apply.

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Because we find that Meeks was properly sentenced as a career offender, we
AFFIRM his sentence.