680 Fed.Appx. 388 (6th Cir. 2017), 15-3088, United States v. Alexander

Docket Nº:15-3088
Citation:680 Fed.Appx. 388
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ALEXANDER, JR., Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Daniel R. Ranke, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH. For MICHAEL ALEXANDER, JR., Defendant - Appellant: Joseph V. Pagano, Law Office, Akron, OH. MICHAEL ALEXANDER, JR., Defendant - Appellant, Pro se, Atwater, CA.
Judge Panel:BEFORE: NORRIS, CLAY, and COOK, Circuit Judges.
Case Date:February 22, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 388

680 Fed.Appx. 388 (6th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MICHAEL ALEXANDER, JR., Defendant-Appellant

15-3088

United States Court of Appeals, Sixth Circuit

February 22, 2017

NOT RECOMMENDED FOR PUBLICATION

Editorial Note:

Sixth Circuit Rule 28(g) limits citation to specific situations. Please see Rule 28(g) before citing in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served on other parties and the Court.

Alexander v. United States, 137 S.Ct. 295, 196 L.Ed.2d 209, (U.S., 2016)

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Daniel R. Ranke, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH.

For MICHAEL ALEXANDER, JR., Defendant - Appellant: Joseph V. Pagano, Law Office, Akron, OH.

MICHAEL ALEXANDER, JR., Defendant - Appellant, Pro se, Atwater, CA.

BEFORE: NORRIS, CLAY, and COOK, Circuit Judges.

Page 389

ORDER

Defendant Michael Alexander, Jr. appeals the final judgment of conviction and sentence of the district court resentencing Alexander to 151 months' incarceration for possession with intent to distribute heroin, in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(C). The Supreme Court granted certiorari to consider Alexander's claims in Alexander v. United States, 137 S.Ct. 295, 196 L.Ed.2d 209 (2016). Consequently, the Supreme Court vacated our judgment in United States v. Alexander, 642 Fed.Appx. 506 (6th Cir. 2016), and remanded back to the Sixth Circuit for further consideration in light of Mathis v. United States, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Having reviewed the relevant legal authority and the record herein, we hereby determine that this case shall be REMANDED to the district court for resentencing for the reasons set forth below.

Alexander was originally sentenced as a career offender under the United States Sentencing Guidelines because of his prior convictions for, inter alia, gross sexual imposition, in violation of Ohio Rev. Code § 2907.05. We determined that Ohio's aforementioned gross sexual imposition statute that had as an element " the use, attempted use, or threatened use of physical force" and was, therefore, a crime of violence as defined in U.S.S.G. § 4B1.2(a). In light of Mathis, however, that conclusion is no longer valid.

When determining which crimes fall within § 4B1.2(a), federal courts use the " categorical approach." United States v. Covington, 738 F.3d 759, 762 (6th Cir. 2014). This approach requires a court to look only to the fact of conviction and the statutory definition of the prior offense and not to the particular facts underlying that conviction. See United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014) (citing Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). As the Supreme Court explained in Descamps v. United States, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013), in cases where a statute lists alternative elements, the statute is divisible. When faced with a divisible statute, where one alternative will qualify as a predicate offense and another will not, courts should apply the " modified categorical...

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