Whether a state law criminalizing resisting arrest constitutes a 'crime of violence' under the U.S. Sentencing Guidelines when the statute encompasses non-violent forms of resistance

No question identified. : To Justice Brett M. Kavanaugh: Petitioner Ronald D. Houston, through his attorney of record, Assistant Federal Public Defender Tyler Keith Morgan, requests an additional 60 days in which to file a petition in this Court seeking certiorari to the Eighth Circuit Court of Appeals, up through February 17, 2024. Petitioner requests this extension under Supreme Court Rule 13.5. JURISDICTION Petitioner requests an extension to file a petition for writ of certiorari. Petitioner is preparing to request this Court’s review of the judgment issued by the Eighth Circuit Court of Appeals on July 20, 2023, affirming his conviction for unlawful possession of a firearms on two occasions to which he pled guilty. The District Court calculated a Sentencing Guidelines range of 120-151 months, incorporating an enhanced base offense level of 22 by designating Petitioner’s 2017 Missouri conviction for resisting arrest by force a prior “crime of violence.” U.S.S.G. § having as an element “the use, attempted use, or threatened use of physical force against the person of another.” Absent this designation the Guidelines range would have been 84-105 months. The District Court imposed concurrent sentences of 120 months. The District Court granted the Government’s request to add the statement that it would have imposed the same sentence regardless of the Guidelines calculation. Mr. Houston appealed to the Eighth Circuit Court of Appeals alleging that the District Court committed procedural error in designating Missouri’s resisting arrest statute a “crime of violence” as defined in U.S.S.G. § 4B1.2(a)(1). Mr. Houston cited Missouri state court cases that established that the least violent form of resisting arrest consisted of an arrestee holding still as a law enforcement officer pushed him to force compliance with an order to move. Mr. Houston cited this Court’s decision in Borden v. United States, 141 S. Ct. 1817 (2021), which held that the identical “element of force” definition in 18 U.S.C. §924(e )(2)(B)(i) excluded crimes defined by a defendant’s conduct “that is not directed or targeted at another,” id. at 1833 (plurality decision), and that it “applied only to intentional acts designed to cause harm.” Id at 1835 (Thomas, J., concurring). He noted that the Seventh Circuit had years earlier held that a similar Indiana law satisfied by proof that police injured their hands by striking a disobedient arrestee did not satisfy an identical “force clause” definition. The Court of Appeals denied Mr. Houston’s timely motion for rehearing on September 20, 2023.