United States of America v. Rajon Jamison

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0236p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAJON JAMISON,
Defendant-Appellant.
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No. 22-1840
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:19-cr-20798-1—Laurie J. Michelson, District Judge.
Decided and Filed: October 26, 2023
Before: KETHLEDGE, THAPAR, and MATHIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Sanford A. Schulman, Detroit, Michigan, for Appellant. Ann Nee, UNITED
STATES ATTORNEY’S OFFICE, Flint, Michigan, for Appellee.
_________________
OPINION
_________________
MATHIS, Circuit Judge. Rajon Jamison challenges the enhanced sentence he received
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), after pleading guilty to a
federal firearm offense. We must decide whether a violation of Michigan’s felony-firearm
statute is a “violent felony” under the ACCA when a juvenile is convicted of that offense for
possessing a firearm while committing second-degree murder. For the reasons below, we hold
that it is. Thus, we affirm.
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I.
In October 2019, officers in Flint, Michigan, recovered ammunition and three firearms
from Jamison’s suspected residence. A grand jury returned a one-count indictment against
Jamison for being a felon in possession of firearms and ammunition, in violation of 18 U.S.C.
§ 922(g)(1). The government referenced 18 U.S.C. § 924(e)—the ACCA—in the indictment
because it believed that Jamison’s criminal history qualified him for an ACCA sentence
enhancement.
On the morning that Jamison’s case was set for trial, he pleaded guilty to the § 922(g)
violation without a plea agreement. At sentencing, the district court found that Jamison had the
following prior convictions that were violent felonies under the ACCA: (1) a 1994 conviction as
a juvenile in Michigan for second-degree murder and for felony firearm; (2) a 2011 conviction in
Michigan for assault with intent to commit great bodily harm less than murder and for felony
firearm; and (3) a 2012 conviction in federal court to one count of possession with intent to
distribute controlled substances. The district court sentenced Jamison to 188 months’
imprisonment.
Jamison timely appealed. Jamison argues that the district court erred in sentencing him
under the ACCA because he does not have three prior convictions for violent felonies or serious
drug offenses. And, assuming that the ACCA does not apply, Jamison argues that his non-
ACCA sentencing range should be reduced by two offense levels. We address the arguments in
turn.
II.
The ACCA mandates a severe increase in certain repeat offenders’ sentences. It
“enhances the sentence of anyone convicted under 18 U.S.C. § 922(g) of being a felon in
possession of a firearm if he has three or more prior convictions,” state or federal, that are a
“violent felony or a serious drug offense, or both, committed on occasions different from one
another.” Borden v. United States, 141 S. Ct. 1817, 1822 (2021); 18 U.S.C. § 924(e)(1). If a
defendant has three such prior convictions on his record at the time of his § 922(g) conviction,

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the ACCA turns a “10-year maximum sentence . . . into a 15-year minimum one.”1 Borden,
141 S. Ct. at 1822 (citations omitted).
We use the categorical approach to determine if a prior conviction qualifies as a violent
felony or a serious drug offense. United States v. Fields, 53 F.4th 1027, 1043 (6th Cir. 2022);
United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019) (en banc). Using that approach, “the
facts of a given case are irrelevant.” Borden, 141 S. Ct. at 1822. We instead look only to the
elements of the alleged predicate offense and ask if it “‘by definition, . . . falls within [the]
category’ of offenses described by the federal statute.” Fields, 53 F.4th at 1043 (quoting
Mellouli v. Lynch, 575 U.S. 798, 805 (2015)) (alteration in original).
In using the categorical approach, we “must presume that the [previous] conviction rested
upon nothing more than the least of the acts criminalized under” the alleged predicate offense.
Id. at 1043–44 (alteration in original). It is a hypothetical inquiry that asks if “‘someone [could]
commit [the] crime of conviction without’ meeting the federal enhancement’s criteria.” Id. at
1044 (quoting Pereida v. Wilkinson, 141 S. Ct. 754, 762 (2021)) (alterations in original). If he
can, then that conviction cannot serve as a predicate offense that warrants an enhancement.
As mentioned above, the district court found that Jamison’s 1994 juvenile conviction, his
2011 conviction for assault with intent to commit great bodily injury and felony firearm, and his
2012 federal drug conviction were all violent felonies under the ACCA. We consider whether
the district court erred.
A.
As an initial matter, Jamison has forfeited some of his sentencing challenges on appeal.
A defendant forfeits issues raised on appeal that he fails to develop “in any meaningful way.”
United States v. Kerley, 784 F.3d 327, 340 (6th Cir. 2015); see also United States v. Bradley,
917 F.3d 493, 509 (6th Cir. 2019) (defendant “failed sufficiently to develop his lesser-included
offense argument and thus forfeited the argument”). In his brief on appeal, Jamison asserts only
“that his prior convictions including his conviction for conspiracy to commit armed robbery do
1In 2022, Congress passed the Bipartisan Safer Communities Act which increased the penalty for a
§ 922(g) violation to 15 years from 10 years. 18 U.S.C. § 924(a)(8).

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not qualify him as an armed career offender[.]”2 D. 23 at p.25. Jamison failed to develop this
argument as it relates to his 2012 drug conviction and his 2011 conviction for assault with intent
to commit great bodily injury and felony firearm. He has therefore forfeited any challenge to the
district court relying on these convictions as ACCA predicate offenses.
B.
That leaves Jamison’s 1994 juvenile conviction for felony firearm and second-degree
murder. A juvenile conviction3 qualifies as a violent felony under the ACCA’s elements clause
if it: (1) “has as an element the use, attempted use, or threatened use of physical force against the
person of another,” (2) is punishable by imprisonment for more than one year; and (3) involves
“the use or carrying of a firearm, knife, or destructive device.” 18 U.S.C. § 924(e)(2)(B)(i);
United States v. Eubanks, 617 F.3d 364, 369 (6th Cir. 2010). We review a district court’s
finding that a crime is a violent felony under the ACCA de novo. United States v. Amos,
501 F.3d 524, 526 (6th Cir. 2007) (citing United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.
2005)).
Below, we consider whether Jamison’s juvenile conviction for felony firearm under
Michigan law qualifies as a violent felony under the ACCA, which in turns requires us to
consider whether second-degree murder under Michigan law is a violent felony.
1.
A person is guilty of a felony-firearm offense under Michigan law when the person
“carries or has in his or her possession a firearm when he or she commits or attempts to commit a
felony.” Mich. Comp. Laws Ann. § 750.227b(1). Such a conviction “shall be punished by
imprisonment for 2 years.” Id. The elements of felony firearm are: (1) possessing a firearm
(2) during the commission, or attempted commission, of another felony. People v. Avant,
597 N.W.2d 864, 869 (Mich. Ct. App. 1999); Sandoval Hernandez v. Barr, 764 F. App’x 469,
2The district court did not find that Jamison’s conviction for conspiracy to commit armed robbery qualified
as an ACCA predicate offense. Therefore, we need not consider any alleged error related to that conviction.
3The ACCA uses the term “act of delinquency.” An act of delinquency is nothing more than “[a] crime
committed by a juvenile.” United States v. Mekediak, 510 F. App’x 348, 351 (6th Cir. 2013), abrogated on other
grounds by Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016).

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No. 22-1840 United States v. Jamison Page 5
472 (6th Cir. 2019). But any felony could satisfy the another-felony element—including a
felony that does not satisfy the ACCA’s elements clause. This statute therefore is too broad to
categorically qualify as a violent felony. And so, we must decide “whether the statute in
question is divisible because it sets out multiple separate crimes.” Burris, 912 F.3d at 393.
Michigan’s felony-firearm statute is divisible because there are alternate ways to commit
the crime. See Sandoval Hernandez, 764 F. App’x at 473–75; Milton v. United States, 35 F.3d
566, at *2 (6th Cir. 1994) (unpublished table decision). Specifically, each different felony that a
defendant commits or attempts to commit while possessing a firearm constitutes an alternate way
of violating the felony-firearm statute. Michigan’s model jury instruction for felony firearm
proves the point. It provides:
(1) The defendant is also charged with the separate crime of possessing a firearm
at the time [he/she] committed [or attempted to commit] the crime of
__________.
(2) To prove this charge, the prosecutor must prove each of the following
elements beyond a reasonable doubt:
(3) First, that the defendant committed [or attempted to commit] the crime of
__________, which has been defined for you. It is not necessary, however, that
the defendant be convicted of that crime.
(4) Second, that at the time the defendant committed [or attempted to commit]
that crime [he/she] knowingly carried or possessed a firearm.
Mich. Model Crim. Jury Instruction § 11.34 (Mich. Sup. Ct. Comm. on Model Crim. Jury
Instructions 2017). The “blank spaces indicate that the prosecution is required to prove that a
defendant committed a specific underlying felony to obtain a felony-firearm conviction.”
Sandoval Hernandez, 764 F. App’x at 475. Therefore, the felony that underlies a felony-firearm
offense is an element of the crime. See People v. Morton, 377 N.W.2d 798, 801 (Mich. 1985)
(“[T]he Legislature intended, with only a few narrow exceptions,4 that every felony committed
by a person possessing a firearm result in a felony-firearm conviction.”); see also People v.
Mitchell, 575 N.W.2d 283, 285 (Mich. 1998); Sandoval Hernandez, 764 F. App’x at 474
4None of those exceptions applies here.

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(holding that “the commission of a particular felony is an element of the offense” of felony
firearm).
Because the felony-firearm statute is divisible, we use the modified categorical approach
“to determine which alternative element in a divisible statute formed the basis of the defendant’s
conviction.” Descamps v. United States, 570 U.S. 254, 278 (2013). This approach allows us to
look past “the mere fact of conviction” and look to other sources to determine if the defendant’s
prior conviction falls within the conduct the ACCA penalizes. See Taylor v. United States,
495 U.S. 575, 602 (1990); Shepard v. United States, 544 U.S. 13, 19 (2005) (holding that
Taylor’s reasoning extended to prior convictions stemming from guilty pleas as well as those
stemming from jury verdicts). These other sources include charging documents, written plea
agreements, transcripts of plea colloquies, and “any explicit factual finding by the trial judge to
which the defendant assented.” Shepard, 544 U.S. at 16.
The state-court documents related to Jamison’s 1994 felony-firearm conviction reflect
that Jamison possessed a firearm while committing second-degree murder. Therefore, Jamison’s
juvenile felony-firearm conviction qualifies as an ACCA predicate offense only if second-degree
murder is a violent felony under the ACCA.
2.
We use the categorical approach to determine if second-degree murder under Michigan
law is a violent felony within the strictures of the ACCA’s elements clause. Fields, 53 F.4th at
1043. Under that approach, we consider whether any of the acts criminalized by the state statute,
“even the least culpable,” do not match the elements clause. Borden, 141 S. Ct. at 1822. But
focusing on the least culpable conduct under the state statute does not mean we should let our
“legal imagination” run wild. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Instead, “there must be ‘a realistic probability,
not a theoretical possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime.’” Id.
We look to Michigan law to determine if second-degree murder includes conduct that
falls outside of the ACCA’s elements clause. Burris, 912 F.3d at 398. In Michigan, a prosecutor

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may initially charge a defendant with open murder. People v. Johnson, 398 N.W.2d 219, 223
(Mich. 1986). If a jury finds the defendant guilty, it determines whether the defendant
committed first- or second-degree murder. Mich. Comp. Laws Ann. § 750.318. A person is
guilty of first-degree murder if he commits any of the acts specified in Mich. Comp. Laws Ann.
§ 750.316. “All other kinds of murder shall be murder of the second degree.” Id. § 750.317.
Drawing on common law, the Michigan Supreme Court defines murder as “the unlawful
killing of one human being by another with malice aforethought.” People v. Goecke,
579 N.W.2d 868, 878 (Mich. 1998). “The elements of second-degree murder are: (1) a death,
(2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.”
Id. Second-degree murder has as an element the use of force because, generally speaking, “a
murderer must always ‘use’ physical force to cause death.” United States v. Harrison, 54 F.4th
884, 889 (6th Cir. 2022). But does second-degree murder have the requisite mens rea necessary
to be a violent felony? We believe it does.
The key element is malice. Malice includes: (1) “the intent to kill”; (2) “the intent to
cause great bodily harm”; or (3) “the intent to do an act in wanton and wilful disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”
Goecke, 579 N.W.2d at 878. The third type of malice reflects the least culpable second-degree
murder.
Second-degree murder committed under the third type of malice is considered depraved-
heart murder. Id. Depraved-heart murder “is a general intent crime” that does not require that
the defendant “actually intend the harmful result.” Id. at 879. “The intent to do an act in obvious
disregard of life-endangering consequences is a malicious intent.” Id. And “malice is implied
when the circumstances attending the killing demonstrate an abandoned and malignant heart.”
Id. at 880.
In Borden, the Supreme Court clarified that the ACCA’s elements clause includes
offenses committed by “purposeful and knowing acts,” but not “reckless conduct.” 141 S. Ct. at
1826. As a result, if an offense requires “only a mens rea of recklessness—a less culpable
mental state than purpose or knowledge”—that offense is not a violent felony. Id. at 1821–22.

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But Borden acknowledged that courts view mental states on a spectrum and left the door
open for crimes with mental states between recklessness and knowledge—“often called depraved
heart or extreme recklessness”—to qualify as violent felonies. See id. at 1825 n.4 (internal
quotations omitted); see also Harrison, 54 F.4th at 890 (finding that Borden did not extend to
“mental states more culpable than recklessness”); Borden, 141 S. Ct. at 1856 n.21 (Kavanaugh,
J., dissenting) (opining that “crimes committed with extreme recklessness, such as depraved-
heart murder, should obviously still qualify as predicate offenses under ACCA”).
Michigan’s depraved-heart murder falls pretty close to acting purposefully or knowingly
on the mens rea spectrum. That is because unless circumstances justify it, “an act may be done
with such heedless disregard of a harmful result, foreseen as a likely possibility, that it differs
little in the scale of moral blameworthiness from an actual intent to cause such harm.” Goecke,
579 N.W.2d at 879 (quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 858 (3d ed.
1982)). “At times such a state of mind is said to be ‘the same as if [the] defendant had
deliberately intended the act committed.’” Id.
The Michigan Supreme Court has further described the mens rea for depraved-heart
murder as akin to willful and wanton misconduct required in certain civil cases. Those civil
cases describe willful conduct as acts that are “intentional, or its effective equivalent.” Id. at 879
n.29 (quoting Jennings v. Southwood, 521 N.W.2d 230, 237 (Mich. 1994)). Put differently,
willful and wanton conduct in those civil cases “is made out only if the conduct alleged shows an
intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent
of a willingness that it does.” Id. Second-degree murder thus qualifies as a violent felony under
the ACCA’s elements clause.
Our recent decision in Harrison supports this conclusion. There, the defendant
challenged a sentence enhancement he received under 18 U.S.C. § 3559(c) based on his prior
Kentucky conviction for complicity to commit murder. Harrison, 54 F.4th at 886, 888. Under
Kentucky law, “complicity to commit murder include[s] the elements of murder.” Id. at 888
(citing Ky. Rev. Stat. Ann. § 507.020(1)). At the very least, that requires a defendant to
“wantonly engage[] in conduct which creates a grave risk of death to another person and thereby
cause[] the death of another person.” Ky. Rev. Stat. Ann. § 507.020(1)(b); Harrison, 54 F.4th at

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889–90. We held that such wantonness was “a more culpable mental state than recklessness,”
and therefore complicity to commit murder qualified as a “serious violent felony” under
18 U.S.C. § 3559. Harrison, 54 F.4th at 890. Because § 3559’s elements clause is nearly
identical to that of the ACCA’s language at issue here, “we can define a ‘serious violent felony’
under § 3559(c) the same way we define a ‘violent felony’ under the ACCA.” United States v.
Ruska, 926 F.3d 309, 312 (6th Cir. 2019); see also United States v. Patterson, 853 F.3d 298, 305
(6th Cir. 2017) (similarly relying on the ACCA’s elements clause to interpret the elements clause
of the “crime of violence” provision in the Sentencing Guidelines). Michigan second-degree
murder, like Kentucky complicity to commit murder, “requires something a far cry from mere
indifference to risk.” Harrison, 54 F.4th at 894 (Cole, J., concurring).
We are not alone in our conclusion. As we noted in Harrison, other circuits have held
that Borden does not preclude a finding that crimes with mental states more culpable than
recklessness are violent felonies under the ACCA. Id. at 890 (majority opinion) (citing United
States v. Begay, 33 F.4th 1081, 1093–95 (9th Cir. 2022) (en banc), Alvarado-Linares v. United
States, 44 F.4th 1334, 1344 (11th Cir. 2022), and United States v. Manley, 52 F.4th 143, 150–51
(4th Cir. 2022)). And since Harrison, other circuits considering this issue continue to reach the
same conclusion. See United States v. Kepler, 74 F.4th 1292, 1302–09 (10th Cir. 2023) (finding
federal depraved-heart murder is categorically a crime of violence under 18 U.S.C. § 924(c)—a
statute with an elements clause almost identical to the ACCA); Janis v. United States, 73 F.4th
628, 632–35 (8th Cir. 2023) (finding that federal depraved-heart murder’s “extreme
recklessness” standard “is close to knowledge and far from ordinary recklessness,” and
“necessarily denotes the oppositional conduct” under § 924(c)).
In sum, Michigan second-degree murder is a “violent felony” under the ACCA because
it: (1) requires a level of culpability almost indistinguishable from purposeful or knowing, and
(2) necessarily involves the use of force. And because second-degree murder is an element of
Jamison’s juvenile felony-firearm conviction, that conviction, which necessarily involves the
possession of a firearm, qualifies as an ACCA predicate offense. Therefore, Jamison had three
qualifying offenses.

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3.
Jamison argues that the district court’s use of his juvenile conviction as a predicate
offense falls outside the spirit of the ACCA. Put differently, he argues that his juvenile
conviction should not be an ACCA predicate offense because of the time that has elapsed since
that conviction and because he lacked maturity at the time of that offense. He cited almost no
support for these arguments before the district court or on appeal.
Jamison’s argument lacks merit. First, the district court correctly noted that there is no
time limit for a defendant’s prior convictions to serve as ACCA predicate offenses. See United
States v. Moreno, 933 F.2d 362, 373 (6th Cir. 1991) (“Although the Sentencing Guidelines may
restrict the sentencing court’s consideration of certain past offenses, § 924(e) does not.”).
Second, and as we explained above, the ACCA’s plain language explicitly allows for the
inclusion of predicate juvenile offenses to enhance firearms possession penalties. See 18 U.S.C.
§ 924(e)(2)(B).
III.
Jamison also argues on appeal that the district court should have calculated his
Guidelines range using U.S.S.G. § 2K2.1 with a base offense level of 24, not 26. But in
sentencing Jamison, the district court relied on the ACCA guidelines, U.S.S.G. § 4B1.4, not
U.S.S.G. § 2K2.1. Therefore, this argument is also meritless.
IV.
For the reasons above, we AFFIRM the judgment of the district court and GRANT the
government’s motion to take judicial notice of the charging petition for Jamison’s juvenile case.

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