United States of America v. Chadrick Akeem Perry

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0210p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHADRICK AKEEM PERRY,
Defendant-Appellant.
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No. 23-1543
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cr-00163-1—Jane M. Beckering, District Judge.
Argued: June 11, 2024
Decided and Filed: September 4, 2024
Before: COLE, GIBBONS, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand
Rapids, Michigan, for Appellant. Lauren Biksacky, UNITED STATES ATTORNEY’S
OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Lauren
Biksacky, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. During his prosecution, Chadrick Perry was
committed to a federal facility to restore his competency for trial. Delays in that process
>

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extended his pre-trial proceedings. Eventually, Perry pleaded guilty to being a felon in
possession of ammunition. The district court imposed a sentence of 57 months’ imprisonment.
On appeal, Perry raises two issues. One involves the Speedy Trial Act. Perry says the
Act’s timeliness requirements were violated while he awaited competency restoration treatment.
The other implicates his sentence. Perry challenges the district court’s determination that his
prior conviction for aggravated domestic violence was a “crime of violence” under U.S.S.G.
§ 4B1.2(a), which resulted in an increase to his Guidelines range. Seeing no error on either
front, we affirm.
I.
A federal grand jury indicted Perry for being a felon in possession of a firearm and
ammunition. Following a not guilty plea in October 2020, Perry was detained at a county jail in
Michigan pending trial. While preparing Perry’s defense, his counsel came to the view that
Perry’s competency to stand trial should be evaluated. The district court agreed and granted
Perry’s motion to determine competency.
Perry then began a long journey through competency evaluation and treatment in the
federal Bureau of Prisons. To allow for an evaluation, Perry was transported to a federal facility
in Chicago. He remained there for two months, at which point a forensic psychologist deemed
him competent to stand trial and recommended that he be returned to pre-trial detention in
Michigan. Upon Perry’s return, the district court held a competency hearing. The court delayed
its competency determination, however, to honor two requests made by Perry: that he be
allowed to furnish additional records for his psychologist in Chicago to evaluate, and that he
undergo a second, separate evaluation by a different psychologist at a federal facility in North
Carolina.
After evaluating Perry, the two forensic psychologists came to different conclusions.
Even after review of the additional records, the provider in Chicago continued to deem Perry
competent to stand trial. But the examiner in North Carolina determined that Perry was not
competent to stand trial. At a subsequent hearing in September 2021, the parties, in light of the
latter medical diagnosis, agreed that Perry should be committed to the custody of the Attorney

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General under 18 U.S.C. § 4241(d) for competency restoration treatment—a request the district
court likewise granted.
Perry was designated to the North Carolina facility for competency restoration on
September 30, 2021. For reasons that the government has not fully explained, he did not arrive
there until March 1, 2022. Once in North Carolina, Perry underwent treatment by mental health
professionals. A few months later, the providers issued a report stating that Perry was competent
to stand trial. Following a hearing, the district court found Perry’s competence restored and set a
date for trial.
With his case moving forward again, Perry moved to dismiss the indictment due to
alleged violations of the Speedy Trial Act. Perry asserted that the 152-day period between his
designation to be treated in North Carolina and his ultimate arrival there counted against the
Speedy Trial Act’s 70-day clock for bringing a defendant to trial. The district court denied the
motion. In the district court’s view, “the entire time from when the [court] deemed [Perry]
mentally incompetent to stand trial” in September 2021 “until [it] ruled [Perry’s] competency
restored” the following September was “fully excluded under [18 U.S.C.] § 3161(h)(4) as a delay
resulting from ‘the fact that [Perry was] mentally incompetent or physically unable to stand
trial.’”
With that, Perry pleaded guilty to one count of the indictment, being a felon in possession
of ammunition, in violation of 18 U.S.C. § 922(g)(1). He did so pursuant to a conditional plea
agreement, which allowed him to appeal the denial of his motion to dismiss. His case proceeded
to sentencing. The probation office recommended that Perry’s otherwise applicable base offense
level be increased on the ground that Perry’s 2013 state conviction for aggravated domestic
violence was a predicate crime of violence. See U.S.S.G. § 2K2.1(a)(4). Doing so resulted in a
Guidelines range of 51–63 months of imprisonment.
Perry objected to that recommendation. In his view, the prior conviction for domestic
violence was not a crime of violence, meaning the proper Guidelines range was 30–37 months.
At sentencing, the district court overruled Perry’s objection and imposed a within-Guidelines
sentence of 57 months. This timely appeal followed.

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No. 23-1543 United States v. Perry Page 4
II.
A. We consider first Perry’s challenge under the Speedy Trial Act. See 18 U.S.C. § 3161
et seq. We review the district court’s interpretation of the Act de novo, United States v. Zabawa,
719 F.3d 555, 561 (6th Cir. 2013), and its factual findings for clear error, United States v. Marks,
209 F.3d 577, 586 (6th Cir. 2000).
Beginning with first principles, the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” U.S. CONST.
amend. VI. Through the Speedy Trial Act, the basis for Perry’s motion to dismiss, Congress set
out a framework for honoring that guarantee. See Betterman v. Montana, 578 U.S. 437, 445
(2016). To that end, the Speedy Trial Act “comprehensively regulates the time within which a
trial must begin.” Zedner v. United States, 547 U.S. 489, 500 (2006). At its core is a
straightforward command—a defendant must be brought to trial within 70 days from the date of
arrest, the filing of the indictment or information, or the defendant’s first appearance in court,
whichever occurs last. See 18 U.S.C. § 3161(c)(1). If the defendant’s trial does not commence
within that period, the indictment must be dismissed, either with or without prejudice. Id.
§ 3162(a)(2).
As today’s case reflects, what is sometimes less straightforward is determining how to
apply the statutory exceptions to the 70-day clock. Certain periods are not counted toward the
Act’s calculations. See id. § 3161(h). Examples include delays resulting from “any interlocutory
appeal,” id. § 3161(h)(1)(C), “consideration by the court of a proposed plea agreement,” id.
§ 3161(h)(1)(G), and “the absence or unavailability of . . . an essential witness,” id.
§ 3161(h)(3)(A). So long as the triggering event occurs, the excepted periods “shall be
excluded.” Id. § 3161(h); see United States v. Tinklenberg, 563 U.S. 647, 655 (2011) (“The
whole paragraph [Section 3161(h)] can be read as requiring the automatic exclusion of the . . .
specific sublist . . . .”).
Two exclusion periods are at issue here. One is § 3161(h)(4), which omits from the 70-
day calculation “[a]ny period of delay resulting from the fact that the defendant is mentally
incompetent or physically unable to stand trial.” 18 U.S.C. § 3161(h)(4). Another is

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§ 3161(h)(1), which excludes various “period[s] of delay resulting from other proceedings
concerning the defendant.” Id. § 3161(h)(1). Relevant “proceedings” include time dedicated to
the “transportation of any defendant from another district, or to and from places of examination
or hospitalization . . . .” Id. § 3161(h)(1)(F). This latter exclusion, it bears noting, has an
exclusion of its own, one that presumes unreasonable “any time consumed in excess of ten days
from the date [of] an order of removal or an order directing such transportation, and the
defendant’s arrival at the destination . . . .” Id.
Perry argues that time between when he was designated for competency restoration in
North Carolina (September 30, 2021) and when he arrived there (March 1, 2022) counts as time
spent in transportation under § 3161(h)(1)(F). Because that provision presumptively authorizes
only ten days of transportation time, the remaining days, Perry contends, must count toward his
Speedy Trial Act clock. And as the total number of non-excludable days exceeds 70, he adds,
his prosecution violates the Speedy Trial Act.
Standing alone, the transportation provision might not save Perry’s prosecution from
dismissal under the Speedy Trial Act. But in this case, we must also consider § 3161(h)(4).
Again, that provision excludes from Speedy Trial Act calculations “[a]ny period of delay
resulting from” the district court’s determination that Perry was mentally incompetent to stand
trial, a period that encompasses the entire duration of Perry’s transport from Michigan to North
Carolina. An examiner in North Carolina determined that Perry was not competent for purposes
of trial. Not long thereafter, the district court committed Perry to the custody of the Attorney
General. The time following Perry’s commitment qualifies as “delay resulting from the fact that
[Perry] is mentally incompetent or physically unable to stand trial.” 18 U.S.C. § 3161(h)(4).
And “any period of delay” that falls under § 3161(h)(4) “shall be excluded” from Speedy Trial
Act calculations. Id. §§ 3161(h), 3161(h)(4) (emphasis added).
On its face, this text is unambiguous and mandatory. Read together, the terms “any” and
“shall” are absolute prohibitions on counting against the Speedy Trial Act deadline time that
results from a defendant being deemed incompetent to stand trial. See Babb v. Wilkie, 589 U.S.
399, 405 n.2 (2020) (“The word ‘any’ has an expansive meaning” (cleaned up)); Maine
Cmty. Health Options v. United States, 590 U.S. 296, 311 (2020) (“When, as is the case here,

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Congress distinguishes between ‘may’ and ‘shall,’ it is generally clear that ‘shall’ imposes a
mandatory duty.” (cleaned up)). As a result, the entire period between the district court’s order
finding Perry not competent to stand trial and the court’s order deeming his competence restored
must be excluded from the Act’s calculations.
In short, the terms of the Speedy Trial Act require us to read § 3161(h)(1)(F) in tandem
with § 3161(h)(4), the latter of which independently paused the Act’s 70-day countdown during
Perry’s period of incompetency. That conclusion makes sense not only as a textual matter, but
also as a constitutional one. After all, trying a defendant deemed incompetent to assist in his
defense violates due process. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (citing Medina v.
California, 505 U.S. 437, 453 (1992)). Perry’s approach would penalize the government for
failing to bring to trial a defendant who could not lawfully be tried.
We are not alone in that understanding. At least four circuits have harmonized
§§ 3161(h)(1)(F) and (h)(4) in the same way. See United States v. Minton, 99 F.4th 692, 695
(4th Cir. 2024) (“[T]here was no proceeding pending when the [delay] took place because [the
defendant] had already been declared incompetent . . . . [T]he relevant provision here is Section
3161(h)(4), not Section 3161(h)(1)(F).” (cleaned up)); United States v. Romero, 833 F.3d 1151,
1155 (9th Cir. 2016), cert. denied, 583 U.S. 875 (2017); United States v. Patterson, 872 F.3d
426, 433–34 (7th Cir. 2017); United States v. Pendleton, 665 F. App’x 836, 839 (11th Cir. 2016)
(per curiam) (“[I]f a defendant is mentally incompetent under § 3161(h)(4), that time is
excludable even if there is also a transportation delay that is unreasonably long and thus not
excludable under § 3161(h)(1)(F).”). No other circuit, to our knowledge, has held otherwise.
Perry’s reliance on United States v. Turner, 602 F.3d 778 (6th Cir. 2010), does not alter
the result. Turner involved the interplay between §§ 3161(h)(1)(A) and (h)(1)(F)—both of
which fall within § 3161(h)(1)’s consideration of exclusions for “other proceedings concerning
the defendant.” Subsection (h)(1)(A) excludes delays resulting from “any proceeding[s],
including any examinations, to determine” mental competency. And § 3161(h)(1)(F) concerns
delays resulting from transportation to and from examinations and hospitalizations. In Turner,
we concluded that § 3161(h)(1)(F) presumptively limits § 3161(h)(1)(A), thereby imposing a
ten-day limit on excludable transportation time in connection with proceedings to determine

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competency before a court has weighed in on a defendant’s fitness for trial. Turner, 602 F.3d at
785. But that does not matter here, when, again, the exclusion in Perry’s case arises out of
§ 3161(h)(4) and its broad carve-out for any delays resulting from a defendant’s mental
incompetence. This appeal thus does not depend on the interplay between §§ 3161(h)(1)(A) and
(h)(1)(F). Cf. Zabawa, 719 F.3d at 562 (holding that exclusion under § 3161(h)(1)(D) for a
pending motion trumped transportation provision in § 3161(h)(1)(F)). Again, periods covered by
§ 3161(h)(4) “shall be excluded” in determining Perry’s status under the Speedy Trial Act.
* * *
While permissible under the Speedy Trial Act, the delay in providing Perry necessary
competency restoration services may reflect broader concerns. Perry waited over 150 days from
his designation to North Carolina to his arrival there. On the one hand, Perry’s treatment
seemingly was deferred due to COVID-19-related delays as well as the U.S. Marshals Service’s
protocol for coordinating long-distance inmate transport. On the other hand, there likewise
appears to be some delay tied to the lack of bedspace in North Carolina and the inability of
existing federal medical facilities to service all 94 judicial districts nationwide.
As courts, our charge is to enforce the Speedy Trial Act as written. At the same time, we
can fairly lament the seeming inability to provide more timely accommodations to Perry and, it
appears, others. See United States v. Donnelly, 41 F.4th 1102, 1104 (9th Cir. 2022) (per curiam);
United States v. Mouton, No. 20-CR-00501, 2023 WL 3872206, at *3–4 (S.D. Tex. June 7, 2023)
(“From May 2021 until May 2023, [BOP’s Chief of Psychological Evaluations] testified about
these delays on 17 occasions to federal courts in nine states. During this same period, she
submitted written declarations about these delays on 35 occasions to federal courts in 23 states
and the District of Columbia.” (internal citations omitted)). While worrisome, these issues are
not before us.
B. That leaves Perry’s sentencing challenge. Readers familiar with federal sentencing
practices will be well aware that the Sentencing Guidelines in various places instruct district
courts to increase a defendant’s sentencing range if the defendant has one or more prior
convictions for a crime of violence. That is the case, for instance, in U.S.S.G. § 2K2.1(a)(4)(A),

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which increases the base offense level for a defendant who engages in certain types of firearm
offenses and has previously been convicted of a “crime of violence.” The Guidelines, in turn,
define a “crime of violence” to include any felony that “has as an element the use, attempted use,
or threatened use of physical force against the person of another.” Id. § 4B1.2(a)(1). Against
this backdrop, the district court determined that Perry’s conviction for aggravated domestic
violence in Michigan, prohibited by Mich. Comp. Laws § 750.81a(3), was a crime of violence
for purposes of U.S.S.G. § 2K2.1(a)(4)(A). Perry challenges that conclusion, an issue we review
with fresh eyes. United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam)
(applying de novo review in resolving whether an offense is a crime of violence under the
Guidelines).
All agree that Perry was convicted of committing felony domestic violence (aggravated)
under subsection 3 of Mich. Comp. Laws § 750.81a. That provision criminalizes “commit[ting]
an assault and battery” against a spouse, former spouse, domestic co-habitant, or intimate
partner, and “inflict[ing] serious or aggravated injury upon [the victim] without intending to
commit murder or to inflict great bodily harm less than murder.” Mich. Comp. Laws
§ 750.81a(2)–(3). Our task is to determine whether the just-described offense “necessarily”
involved the use of physical force, thereby satisfying U.S.S.G. § 4B1.2(a). See Borden v. United
States, 593 U.S. 420, 424 (2021); United States v. Doggart, 947 F.3d 879, 887 (6th Cir. 2020).
The Supreme Court offers helpful directives on the point. It has interpreted the phrase
“physical force” to mean “force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010) (interpreting 18 U.S.C. § 924(e)(2)(B)(i));
see also United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019) (en banc) (recognizing that
§ 4B1.2(a)(1) uses the same definition). And that manner of force, we are told, “does not require
any particular degree of likelihood or probability that the force used will cause physical pain or
injury; only potentiality.” Stokeling v. United States, 586 U.S. 73, 84 (2019) (emphasis added).
Now compare that understanding with Perry’s statute of conviction, starting with the
phrase “assault and battery.” Separated by “and,” the terms “assault” and “battery” indicate a
conjunctive requirement. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 116 (2012) (“Under the conjunctive/disjunctive canon, and

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combines items while or creates alternatives.”). What does it mean for a defendant to commit an
assault and battery in Michigan? An assault is “either an attempt to commit a battery or an
unlawful act that places another in reasonable apprehension of receiving an immediate battery.”
People v. Starks, 701 N.W.2d 136, 140 (Mich. 2005) (citations omitted). Battery, for its part, is
“an intentional, unconsented and harmful or offensive touching of the person of another, or of
something closely connected with the person.” Id. (citations omitted).
We turn next to the statutory requirement that the assault and battery have the effect of
“inflict[ing] serious or aggravated injury” upon a victim. Michigan defines “inflict” as “to lay on
as a stroke, blow, or wound; to impose as something that must be suffered or endured; to cause to
be borne.” People v. McBurrows, 934 N.W.2d 748, 758 (Mich. 2019) (cleaned up). Infliction
similarly requires “direct interaction with the victim.” Id. As a result, one cannot inflict an
injury indirectly by, say, providing drugs to an unknown victim through an intermediate dealer.
Id.
That leaves the statutory phrase “serious or aggravated injury.” Michigan courts have
defined that manner of harm to be “a physical injury that requires immediate medical treatment
or that causes disfigurement, impairment of health, or impairment of a part of the body.” People
v. Frechette, No. 360905, 2024 WL 302118, at *2 (Mich. Ct. App. Jan. 25, 2024) (quoting
People v. Norris, 600 N.W.2d 658, 661 n.3 (Mich. 1999)).
Putting all these concepts together, it becomes evident that Perry’s assault and battery
offense necessarily involved the use of physical force. U.S.S.G. § 4B1.2(a). The battery
component of the offense confirms as much. A battery, again, is an intentional and harmful
touching which directly causes (inflicts) a physical injury requiring immediate medical attention
or causing disfigurement or impairment of the body (a serious or aggravated injury). That
plainly satisfies the Supreme Court’s definition of physical force, which, recall, merely requires
force “capable of causing” physical injury. See Johnson, 559 U.S. at 140. That being the case,
Perry’s offense is a crime of violence. Cf. De Leon Castellanos v. Holder, 652 F.3d 762, 766
(7th Cir. 2011) (“Battery causing bodily harm entails physical force because some sort of
physical pain or damage . . . is required to convict . . . . Johnson held that so long as the force

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involved is capable of causing physical pain or injury to another person [the] physical force
requirement [is] satisfied.” (cleaned up)).
Perry’s response is to emphasize the “assault” component of the offense. He reminds us
that we must look to the least culpable conduct criminalized by the elements of the statute. See
United States v. Thomas, 969 F.3d 583, 584 (6th Cir. 2020) (per curiam). And to his eye, “the
least culpable force that can be used” to commit assault under Michigan law “is an attempt to
commit an offensive touching,” which, in practice, may not cause a physical injury. Even if so,
Perry could not have been convicted under § 750.81a(3) by committing an assault alone. Rather,
he must have also committed a battery. We cannot read that term out of the statute, as Perry
seemingly would have us do. See Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 70 (2011).
Perry’s reliance on United States v. Morris, 885 F.3d 405 (6th Cir. 2018), does not
change our thinking. There, we held that Michigan’s non-aggravated domestic violence offense
was not a “crime of violence.” 885 F.3d at 412. Note that the statute at issue used the
disjunctive assault or battery. See Mich. Comp. Laws § 750.81. And Perry, of course, was
convicted under a different statute, one that requires the commission of both an “assault and
battery,” making Morris a poor guide here.
* * * * *
We affirm Perry’s conviction and sentence.

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