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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AL DORSEY,
Defendant-Appellant. |
No. 23-5082 |
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:21-cr-00077-1—Charles Edward Atchley, Jr., District Judge.
Decided and Filed: January 23, 2024
Before: McKEAGUE, LARSEN, and MURPHY, Circuit Judges.
_________________________
OPINION
_________________________
MURPHY, Circuit Judge. The U.S. Sentencing Guidelines repeatedly instruct district
courts to increase a defendant’s sentence if the defendant has one or more prior convictions for a
“crime of violence.” See, e.g., U.S.S.G. §§ 2K2.1; 4B1.1. They define “crime of violence” to
mean, as relevant here, an offense that “has as an element the use, attempted use, or threatened
use of physical force against the person of another[.]” Id. § 4B1.2(a). In United States v. Gloss,
661 F.3d 317 (6th Cir. 2011), we interpreted language identical to this so-called “elements
clause” to cover the Tennessee crime of facilitating aggravated robbery. Id. at 318–20.
Viewing itself bound by Gloss, the district court in this case treated Al Dorsey’s prior
convictions for facilitating aggravated robbery as “crimes of violence.” Dorsey now offers two
reasons why we need not follow Gloss. He first asserts that Gloss conflicts with an earlier
decision holding that facilitation offenses (unlike aiding-and-abetting offenses) do not require
defendants to harbor an intent to commit the crime that their conduct facilitated. See United
States v. Vanhook, 640 F.3d 706, 713–14 (6th Cir. 2011). He next asserts that Gloss conflicts
with a later Supreme Court decision holding that the elements clause does not reach reckless uses
of force. See Borden v. United States, 593 U.S. 420, 429 (2021) (plurality opinion); id. at 445–
46 (Thomas, J., concurring in the judgment). Dorsey is wrong on both counts. Because we must
follow Gloss, we affirm. |
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JASON LAIBLE, Executor of the estates of Raymond
Laible and Gayle Laible; STEVEN KLEIN; MARIBETH
KLEIN,
Plaintiffs-Appellees,
v.
TIMOTHY LANTER; BRETT THOMAS; DONALD SCALF,
Defendants-Appellants,
UNITED STATES OF AMERICA,
Defendant-Appellee. |
No. 22-5496 |
Appeal from the United States District Court for the Eastern District of Kentucky at Covington.
No. 2:21-cv-00102—David L. Bunning, District Judge.
Argued: March 8, 2023
Decided and Filed: January 23, 2024
Before: COLE, GIBBONS, and READLER, Circuit Judges.
_________________________
OPINION
_________________________
COLE, Circuit Judge. In August 2020, the federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) and the Cincinnati Police Department (CPD) participated in a
joint federal task force to arrest Mason Meyer. While fleeing from CPD officers, Meyer lost
control of his vehicle and crashed into a restaurant, killing Gayle and Raymond Laible and
severely injuring Steven and Maribeth Klein. The Laibles’ estate and the Kleins brought this
lawsuit alleging that three CPD officers were negligent in their execution of the high-speed car
chase.
The CPD defendants in this action—Sergeant Donald Scalf, Sergeant Timothy Lanter,
and Officer Brett Thomas—allege that they were federal employees immune from common-law
tort actions due to their participation in the federal task force to arrest Meyer. The district court
denied the officers’ motion for immunity under the Westfall Act, 28 U.S.C. §§ 2679(b)(1),
(d)(1), (d)(3). We reverse the district court’s denial of immunity for Scalf because he was a
federal employee acting within the scope of his employment during the chase. We affirm the
district court’s denial of immunity as to Lanter and Thomas because neither were federal
employees at the time of the incident. |
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