United States v. Rodriguez, 09–3867.

• Decision Date: 07 February 2012
• Docket Number: No. 09–3867.,09–3867.
• Citation: 664 F.3d 1032
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Antonio B. RODRIGUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

664 F.3d 1032

UNITED STATES of America, Plaintiff–Appellee,

v.Antonio B. RODRIGUEZ, Defendant–Appellant.

No. 09–3867.

United States Court of Appeals, Sixth Circuit.

Argued: June 8, 2011.Decided and Filed: Dec. 21, 2011.Rehearing and Rehearing En Banc Denied Feb. 7, 2012.

ARGUED: Jeffrey B. Lazarus, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Daniel J. Riedl, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Jeffrey B. Lazarus, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Daniel J. Riedl, Assistant United States Attorney, Cleveland, Ohio, for Appellee.Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

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.

II. ANALYSIS

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 conduct set forth (i.e. expressly charged) in the count of which the defendant was convicted involved use of explosives ... or, by its nature, presented a serious potential risk of physical injury to another.”

To determine the nature of a prior conviction, this Court applies a “categorical” approach, looking to the statutory definition of the crime of conviction and not the facts underlying that conviction. United States v. Ruvalcaba, 627 F.3d 218, 221 (6th Cir.2010). The Court does not concern itself with how a defendant may have committed the crime on a specific occasion, but rather considers the offense generically to examine how the law defines the offense. Id.

Under this Court's interpretation of § 4B1.2 and its commentary, a prior felony conviction can qualify as a “crime of violence” in one of three ways: (1) the conviction is one of the crimes specifically enumerated in Application Note 1 to the career offender guideline; (2) if not specifically enumerated, the crime has as an element the use, attempted use, or threatened use of physical force; or (3) if the offense is not specifically enumerated or does not include physical force as an element, the crime involved conduct posing a serious potential risk of physical injury to another person. Id. (citing United States v. Wilson, 168 F.3d 916, 927 (6th Cir.1999)). This Court recently indicated that the term “aggravated assault” in the commentary to § 4B1.2 refers to “generic aggravated assault.” United States v. McFalls, 592 F.3d 707, 716 (6th Cir.2010). “Generic aggravated assault” is especially difficult to define because many states categorize assault in degrees rather than by use of the terms “simple” or “aggravated,” and “because some states still retain the common law distinction between assault and battery.” Id. at 716–17. Under the Model Penal Code, a defendant is guilty of aggravated assault “if he ‘(a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.’ ” Id. at 717 (quoting Model Penal Code § 211.1(2)).

The Ohio fourth-degree aggravated assault statute at issue in this case, Ohio Rev.Code § 2903.12, tracks the Model Penal Code formulation of aggravated assault, except that the Ohio statute does not permit conviction for reckless conduct under circumstances manifesting extreme indifference to the value of human life. See United States v. Esparza–Herrera, No. CR06–219–S–BLW, 2007 WL 4125785, at *3 & App'x (D.Idaho Nov. 16, 2007) (noting Ohio is among thirty-one state jurisdictions that do not permit reckless conduct to support an aggravated assault charge, citing Ohio Rev.Code § 2903.12), aff'd 557 F.3d 1019 (9th Cir.2009). The Ohio statute is distinguishable from that in McFalls, because there we determined that South Carolina's common-law crime of assault and battery of a high and aggravated nature did not categorically qualify as a “crime of violence” because the offense included actions taken recklessly rather than intentionally. McFalls, 592 F.3d at 716.

By contrast to the offense discussed in McFalls, the Ohio aggravated assault statute requires that the defendant act “knowingly.” Ohio Rev.Code § 2903.12(a). The statute provides:

(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:

(1) Cause serious physical harm to another or to another's unborn;

(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code.

Under Ohio Revised Code § 2901.22(B),

[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.

Acting with knowledge “corresponds loosely with...