United States v. Sanders , 301 F. App'x 503 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0726n.06
Filed: November 24, 2008
07-3664
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
MICHAEL P. SANDERS, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: DAUGHTREY and GIBBONS, Circuit Judges; ZATKOFF, District Judge.
PER CURIAM. The defendant, Michael Sanders, pleaded guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and to possessing crack
cocaine, in violation of 21 U.S.C. § 844(a), and was sentenced to 57 months’ incarceration.
He now appeals this sentence, alleging that his offense level was improperly increased
based on his prior convictions because, under Ohio state law, “aggravated riot” should not
be classified as a crime of violence for purposes of U.S.S.G. § 4B1.2(a). Although
“aggravated riot” is not necessarily a crime of violence under the Ohio criminal statute, the
wording of Sanders’s indictment demonstrates that he was charged under a subsection of
the aggravated riot statute that constitutes a crime of violence under the federal guidelines.
We therefore affirm the district court’s sentencing order.
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United States v. Sanders
FACTUAL AND PROCEDURAL BACKGROUND
In this case, the probation officer who prepared the presentence report calculated
Sanders’s base offense level on the felon-in-possession charge at 24 under U.S.S.G. §
2K2.1(a)(4), in light of his two prior felony convictions for crimes of violence, and set his
criminal history category at IV. Defendant filed a sentencing memorandum contending that
the offense level should be pegged at 20 because only one of his prior offenses was a
crime of violence. The district court nevertheless agreed with the presentence report’s
recommendations, setting the base level at 24 but awarding Sanders a three-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a)-(b), giving him a final
offense level for Count 1 of 21 and resulting in a guideline sentence range of 57 to 71
months. The statutory maximum for the cocaine possession conviction was 12 months.
The district court imposed concurrent sentences of 57 months and 12 months, to be
followed by three years of supervised release.
DISCUSSION
We review de novo a district court’s decision that a prior offense qualifies as a crime
of violence under the United States Sentencing Guidelines. See United States v. Foreman,
436 F.3d 638, 640 (6th Cir. 2006).
Under the guidelines, a criminal defendant who has been convicted of illegal
possession of a firearm, including violation of 18 U.S.C. § 922(g)(1), will be assigned a
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base offense level of 24 “if the defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense[.]” U.S.S.G. § 2.K2.1(a)(2). However, if “the defendant
committed any part of the instant offense subsequent to sustaining one felony conviction
of either a crime of violence or a controlled substance offense[,]” then a base offense level
of only 20 will be assigned. U.S.S.G. § 2.K2.1(a)(4)(A). Sanders claims that the district
court improperly calculated his base offense level at 24 under subsection (a)(2), rather than
20 under subsection (a)(4)(A), after finding – incorrectly, he contends – that his prior
offense of aggravated riot qualified as a crime of violence under the sentencing guidelines.
Under those guidelines, “crime of violence” is defined as “any offense under federal
or state law, punishable by imprisonment for a term exceeding one year” if it
(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. § 4.B1.2(a). The commentary provides that “murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension
of credit, and burglary of a dwelling” qualify as crimes of violence. U.S.S.G. § 4.B1.2 cmt
n.1. Beyond these enumerated crimes, subsection (a)(1) qualifies certain crimes as violent
because they have the actual, attempted, or threatened use of physical force as an
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element. Subsection (a)(2) qualifies other prior offenses as crimes of violence if they
“otherwise involve[] conduct that presents a serious potential risk of physical injury to
another,” which we have referred to as the “otherwise clause.” See United States v.
Collier, 493 F.3d 731, 733 n.3 (6th Cir. 2007).
Precisely what felony offenses qualify as crimes of violence under these two tests
has been the topic of much litigation under the sentencing guidelines. In Taylor v. United
States, 495 U.S. 575 (1990), the Supreme Court concluded that a court “must take a
categorical approach and first consider the statutory definition of the offense.” Foreman,
436 F.3d at 641 (interpreting Taylor, 495 U.S. 575). The categorical approach generally
requires the sentencing court to “confine its inquiry to the ‘statutory definitions of the prior
offenses,’ but it may also look to ‘the charging paper and jury instructions,’” Collier, 493
F.3d at 733 (quoting Taylor, 495 U.S. at 600, 602), to determine whether the jury actually
had to find the elements of a violent offense in order to convict the defendant. See Taylor,
495 U.S. at 602. More recently, the Supreme Court affirmed the Taylor holding, holding
that courts are to “consider whether the elements of the offense are of the type that would
justify its inclusion within the residual provision, without inquiring into the specific conduct
of [a] particular offender.” James v. United States, 550 U.S. 192, ___, 127 S. Ct. 1586,
1594 (2007). By way of clarification, James held that the categorical approach does not
require “that every conceivable factual offense covered by a statute must necessarily
present a serious potential risk of injury before the offense can be deemed a violent
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felony.” Id. at 1597. “Rather, the proper inquiry is whether the conduct encompassed by
the elements of the offense, in the ordinary case, presents a serious potential risk of injury
to another.” Id.
However, where initial examination of the statutory language fails to clarify whether
a particular offense is a crime of violence as a categorical matter, the reviewing court may
then consider “the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented” in order to determine whether the crime was a crime of violence
pursuant to the otherwise clause. Shepard v. United States, 544 U.S. 13, 16 (2005).
Although the opinions in Taylor, James, and Shepard focus on the definition of “a violent
felony under the Armed Career Criminal Act, the application of these rules to the definition
of ‘crime of violence’ under the Sentencing Guidelines has become an accepted practice
in this circuit.” Foreman, 436 F.3d at 641.
Sanders challenges the designation of his conviction for the Ohio crime of
aggravated riot as a crime of violence. The Ohio statute, Ohio Revised Code § 2917.02,
provides in relevant part:
(A) No person shall participate with four or more others in a course of
disorderly conduct in violation of section 2917.11 of the Revised Code:
(1) With purpose to commit or facilitate the commission of a felony;
(2) With purpose to commit or facilitate the commission of any offense of
violence;
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(3) When the offender or any participant to the knowledge of the offender
has on or about the offender's or participant's person or under the offender's
or participant's control, uses, or intends to use a deadly weapon or
dangerous ordnance, as defined in section 2923.11 of the Revised Code.
Because the state offense of aggravated riot is not specifically identified in the
federal guidelines or commentary as a crime of violence, we must determine whether it
qualifies as one under Taylor, James, and Shepard – an issue of first impression in the
Sixth Circuit. Sanders argues that the state statute prohibiting aggravated riot criminalizes
a wide range of conduct, not all of which is violent or involves “a serious potential risk of
physical injury to another.” U.S.S.G. § 4.B1.2(a)(2). Indeed, a review of the statutory
language demonstrates that not all offenses criminalized as aggravated riot under Ohio
Revised Code § 2917.02 involve as an element “the use, attempted use, or threatened use
of physical force against the person of another,” as proscribed by U.S.S.G. § 4.B1.2(a)(1),
principally because subsection (A)(1) of the Ohio statute prohibits the commission of
disorderly conduct with four or more others “[w]ith purpose to commit or facilitate the
commission of a felony.” Ohio Rev. Code § 2917.02(A)(1). Obviously, the prohibited
conduct under this subsection of the statute lacks as an element the use of force. As a
result, we cannot say that offenses that qualify as “aggravated riot” in Ohio necessarily
qualify as “crimes of violence” under U.S.S.G. § 4.B1.2(a)(1).
Because the Ohio statute lacks force as an element under subsection (A)(1), we
turn to our next determination: whether aggravated riot is a crime of violence under
U.S.S.G. § 4.B1.2(a)(2) because it “presents a serious potential risk of physical injury to
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another.” Again, using the categorical approach requires examination of statutory
language. Here, subsections (A)(2) and (3) of the aggravated riot statute prohibit conduct
that poses risk of physical injury through “offense[s] of violence” or use of “a deadly
weapon or dangerous ordnance.” As a categorical matter, conduct under those
subsections would obviously qualify as a crime of violence. However, as previously
discussed, it is equally obvious that conduct under subsection (A)(1), does not necessarily
pose a risk of physical injury.1 And, although in James the Supreme Court signaled that
not every hypothetical offense covered by a criminal statute need be violent in order to
qualify as a crime of violence, the Court likewise indicated that the relevant inquiry must
focus on “whether the conduct encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of injury to another.” 127 S. Ct. at 1597.
Because the statute in question here contains elements that expressly distinguish conduct
with a risk of violence under subsections (A)(2) and (3) from other kinds of disorderly
conduct committed in the course of non-violent felonies under subsection (A)(1),
aggravated riot does not appear to be a crime of violence in all cases. It follows that the
1
Considering the various subsections of a single criminal statute separately for purposes of
classifying crimes of violence is not a novel approach. We have previously held that certain
subsections of a statute may be categorical crimes of violence, whereas other subsections may
require closer examination to determine if the actual offense conduct qualifies as a crime of violence.
See, e.g., Foreman, 436 F.3d at 641-42 (holding that under United States v. Martin, 378 F.3d 578
(6th Cir. 2004), the Michigan crime of third-degree fleeing and eluding pursuant to Michigan
Compiled Laws section 750.479a(3)(a) and (b) is a categorical crime of violence, whereas fourth-
degree fleeing and eluding pursuant to subsection (c) of the same statute is not a categorical crime
of violence; a prior offense of fourth-degree fleeing and eluding therefore requires the court to refer
to sources authorized in Shepard to determine whether the conduct qualifies as a crime of violence).
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district court erred in concluding that all aggravated riot “presents a risk in the ordinary
sense that someone could be injured” under the rule announced in James.
Nevertheless, Sanders misapprehends the process for assessing what is a crime
of violence when he suggests that the inquiry ends with this conclusion. In undertaking the
categorical approach on de novo review of a sentence, we are not restricted to a mere
examination of the statutory language but are permitted to look at the charging documents
and jury instructions to determine the actual elements of the crime committed. See Taylor,
495 U.S. at 602. A study of Sanders’s indictment reveals that it does not cite to a specific
subsection of section 2917.02. However, the language of the indictment is identical to the
statutory language, revealing that his prior conviction was undoubtedly for violation of either
subsection (A)(2) or (A)(3) of the Ohio aggravated-riot statute, both of which are crimes of
violence, as explained above.2 In light of the information contained in Sanders’s
indictment, we have no hesitation in concluding that he was convicted of a crime of
violence. Thus, the district court properly designated Sanders’s aggravated riot conviction
as a crime of violence and correctly sentenced him accordingly. The fact that conviction
2
In relevant part, Sanders’s indictment for his prior offense reads:
The Grand Jurors, on their oath, further find that the Defendant(s), unlawfully, did
participate with four (4) or more others in a course of disorderly conduct in violation
of Section 2917.11 of the Revise[d] Code with purpose to commit or facilitate the
commission of an offense of violence and/or the said Michael Sanders, Kevin Keyes,
Jermaine Warith, Terence Cloud and Andre Pettaway, or a participant to their
knowledge, had used or intended to use a deadly weapon or dangerous ordnance, in
violation of Section 2917.02 of the Ohio Revised Code.
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under subsection (A)(1) of the statute might, in a different situation, necessitate a different
conclusion provides no reason to vacate the sentence imposed in this case.
CONCLUSION
Although “aggravated riot” is not necessarily a crime of violence pursuant to
statutory language alone, our review of Sanders’s indictment establishes that he was
charged and convicted of an offense that, under a subsection of Ohio’s aggravated riot
statute, constitutes a crime of violence for federal sentencing purposes. It follows that the
district court did not err in sentencing Sanders under U.S.S.G. § 4B1.2(a). The judgment
containing the court’s sentencing order is, therefore, AFFIRMED.
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