664 F.3d 1032 (6th Cir. 2011), 09-3867, United States v. Rodriguez
|Citation:||664 F.3d 1032|
|Opinion Judge:||JANE B. STRANCH, Circuit Judge.|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Antonio B. RODRIGUEZ, Defendant-Appellant.|
|Attorney:||Jeffrey B. Lazarus, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Daniel J. Riedl, Assistant United States Attorney, Cleveland, Ohio, for Appellee. Jeffrey B. Lazarus, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Daniel J. Riedl, Assistant United States At...|
|Judge Panel:||Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.|
|Case Date:||December 21, 2011|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued: June 8, 2011.
[Copyrighted Material Omitted]
Antonio Rodriguez appeals the district court's sentence imposed under the career offender guideline. He argues that the district court should not have counted as predicate offenses any of the Ohio felony convictions listed in the Presentence Report (PSR).
We conclude that Rodriguez's felony conviction in Ohio for aggravated assault qualifies as a crime of violence under the career offender guideline. We also conclude that Rodriguez may not collaterally attack in this appeal his felony conviction in Ohio for felonious assault. Because these two prior crimes of violence support the district court's finding of career offender status, we AFFIRM the sentence.
I. PROCEDURAL HISTORY
A grand jury indicted Rodriguez in 2005 for aiding and abetting possession with intent to distribute 500 grams or more of a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Rodriguez pleaded guilty to the charge pursuant to a written plea agreement with the Government. The plea agreement stated that the parties believed Rodriguez qualified for sentencing under the career offender guideline, USSG § 4B1.1 (Nov. 2004).
Rodriguez reserved his right to appeal the sentence imposed.
In preparing the PSR, the probation officer applied the career-offender guideline, noting that Rodriguez's criminal history included prior felony convictions for aggravated robbery and aggravated assault in Ohio in 1995, as well as a prior felony conviction for felonious assault in Ohio in 1999. 1 With a total adjusted offense level of 34 and a criminal history category of VI, the applicable guideline range was 262 to 327 months. Rodriguez did not file any objections to the PSR.
At sentencing, the district court adopted the guideline calculation in the PSR. The Government then moved under USSG § 5K1.1 for a four-level downward departure to reward Rodriguez for his substantial assistance. The district court granted a six-level reduction, which lowered the offense level to 28 and the applicable guideline range to 140 to 175 months. The district court sentenced Rodriguez to serve 144 months of imprisonment and eight years of supervised release. Rodriguez did not object to the sentence as imposed.
A. Standard of Review
We review de novo whether Rodriguez's Ohio felony conviction for aggravated assault qualifies as a " crime of violence" under the career offender guideline because the Government has not asked us to apply the plain-error standard in light of Rodriguez's failure to object below. See Appellee's Br. at 12; United States v. Williams, 641 F.3d 758, 763-64 (6th Cir.2011) (declining to apply plain-error standard where Government did not request its application); United States v. Wynn, 579 F.3d 567, 570 (6th Cir.2009) (stating de novo standard ordinarily applies to determination whether an offense is a " crime of violence" ).
The parties agree that the plain-error standard applies to Rodriguez's second argument, also raised for the first time on appeal, that his Ohio felony conviction for felonious assault was void ab initio and could not support sentencing under the career offender guideline. Rodriguez must show (1) an error; (2) the error was plain; and (3) the error affected substantial rights. See United States v. Richards, 659 F.3d 527, 546 (6th Cir.2011). If these three conditions are met, this Court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. (citations and internal quotation marks omitted).
B. The Ohio aggravated assault conviction is a " crime of violence"
To qualify as a career offender, a defendant must be at least eighteen years of age, the instant offense must be a felony that is either a " crime of violence" or a controlled substance offense, and the defendant must have " at least two prior felony convictions of either a crime of violence or a controlled substance offense."
USSG § 4B1.1(a). A " crime of violence" is defined as:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(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.
USSG § 4B1.2(a). The crime of " aggravated assault" is one of the enumerated " crimes of violence" listed in Application Note 1 to USSG § 4B1.2. In listing the enumerated " crimes of violence," the guideline does not distinguish between degrees of offenses. See United States v. Wood, 209 F.3d 847, 850 (6th Cir.2000). Application Note 1 further provides that a non-enumerated offense is a " crime of violence" if " (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the...
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