United States v. Evans

• Decision Date: 15 November 2012
• Docket Number: No. 11–3460.,11–3460.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sathon EVANS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

699 F.3d 858

UNITED STATES of America, Plaintiff–Appellee,

v.Sathon EVANS, Defendant–Appellant.

No. 11–3460.

United States Court of Appeals,Sixth Circuit.

Argued: April 17, 2012.

Decided and Filed: Nov. 15, 2012.^*

ARGUED:Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Christopher K. Barnes, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF:Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Christopher K. Barnes, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: GIBBONS and SUTTON, Circuit Judges, and DUGGAN, District Judge.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Sathon Evans pled guilty to being a felon in possession of a firearm and was sentenced to 92 months' imprisonment. When calculating his base offense level under the United States Sentencing Guidelines, the district court determined that Evans's 2004 Ohio conviction for trafficking in cocaine was a controlled substance offense and that his 2000 Ohio conviction for knowingly assaulting a police officer was a crime of violence as defined under the Guidelines and, accordingly, applied a four-level enhancement to Evans's base offense level pursuant to U.S.S.G. § 2K2.1(a)(2). On appeal, Evans argues that this four-level enhancement was not warranted, claiming that his assault conviction under Ohio Revised Code § 2903.13(A) does not categorically qualify as a crime of violence and that his trafficking in cocaine conviction under Ohio Revised Code § 2925.03(A)(1) does not categorically qualify as a controlled substance offense. He also argues that his sentence is substantively unreasonable. For the reasons that follow, we affirm the sentence imposed by the district court.

I.

On April 22, 2010, Cincinnati Police Department officers on a mountain bike patrol observed a person—later identified as Sathon Evans—sitting on a park bench after the park was closed. The officers approached Evans to investigate why he was in the park after hours, but before he noticed them, Evans got up from the bench and approached a vehicle that had stopped on a street adjacent to the park. While Evans was talking to the occupants of the vehicle, he became aware of the approaching police officers and fled. The officers gave chase, and during the pursuit, they observed Evans holding a pistol in his hand. Before he was apprehended in an alley, officers saw Evans throw the gun on top of a building. Evans was arrested, and the firearm, a loaded .45–caliber semiautomatic handgun, was recovered.

Evans was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and pled guilty to the offense. Prior to sentencing, a probation officer prepared a presentence investigation report (“PSR”). Having concluded that Evans had at least two prior felony convictions of either a crime of violence or a controlled substance offense, the probation officer calculated Evans's base offense level as 24 pursuant to U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. After several adjustments were applied, Evans's total offense level was 23. The PSR indicated that Evans had 16 criminal history points, placing him in a criminal history category of VI. This resulted in a recommended sentence of 92 to 115 months' imprisonment.

Evans objected to the probation officer's determination that his 2004 Ohio cocaine trafficking conviction was a controlled substance offense as defined under U.S.S.G. § 4B1.2(b). He argued that his conviction under Ohio Revised Code § 2925.03(A)(1) could not categorically be considered a “controlled substance offense” under the Guidelines because the statute allowed for a conviction for a mere “offer to sell” drugs. Evans also argued that his conviction for knowingly assaulting a police officer, in violation of Ohio Revised Code § 2903.13(A) and (C)(3), could not categorically be considered a crime of violence as defined under U.S.S.G. § 4B1.2(a) because the conduct proscribed by the statute need not be “purposeful.” Evans conceded, however, that his prior 2006 felony conviction for drug trafficking in Ohio qualified as a controlled substance offense under the Sentencing Guidelines. As a result, Evans argued that with just one qualifying prior felony conviction, his base offense level under the Guidelines should have been 20 instead of 24.

At sentencing, the district court rejected Evans's arguments and found that his 2004 Ohio conviction of trafficking in cocaine was a controlled substance offense and that his 2000 Ohio conviction for knowingly assaulting a police officer was a crime of violence as defined under § 4B1.2 of the Sentencing Guidelines. After Evans presented his arguments in favor of mitigation and a below-Guidelines sentence—including a difficult, unstable childhood; the murder of his father; a history of substance abuse; the completion of a GED and drug treatment programs; and his claim that he only began carrying a gun for protection after the murder of his brother—the district court considered the 18 U.S.C. § 3553(a) sentencing factors. The district court acknowledged Evans's difficult upbringing but concluded that this factor was outweighed by his lengthy and serious criminal history. The district court ultimately imposed a sentence of 92 months' imprisonment, which was at the bottom end of the Guidelines range.

II.

On appeal, Evans maintains that the district court improperly enhanced his advisory base offense level by four levels, from 20 to 24, under Sentencing Guideline § 2K2.1(a)(2) based on his 2000 felony conviction of knowingly assaulting a police officer and his 2004 felony conviction of trafficking in cocaine. Section 2K2.1(a)(2) provides that if a defendant who is convicted of being a felon in possession of a firearm has at least two prior felony convictions of either a crime of violence or a controlled substance offense, the district court is to apply a base offense level of 24. U.S.S.G. § 2K2.1(a)(2). If a defendant has only one such prior conviction, the district court is to apply a base offense level of 20. Id.§ 2K2.1(a)(4)(A). Because Evans has admitted that his prior 2006 felony conviction for drug trafficking in Ohio qualifies as a controlled substance offense under the Sentencing Guidelines, we need only find that one of the challenged prior convictions qualifies under §§ 2K2.1 and 4B1.2 to affirm the district court's decision to set Evans's base offense level at 24.

A district court's determination that a prior offense qualifies either as a crime of violence or as a controlled substance offense is a legal determination, which we review de novo. United States v. Catalan, 499 F.3d 604, 606 (6th Cir.2007); United States v. McMurray, 653 F.3d 367, 371 (6th Cir.2011). When conducting this de novo review, this court applies a “categorical” approach, “looking to the statutory definition of the offense and not the particular facts underlying the conviction.” ¹McMurray, 653 F.3d at 372 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

A.

Evans claims that his prior conviction for assault of a police officer, in violation of Ohio Revised Code § 2903.13(A) and (C)(3), was not categorically a crime of violence pursuant to U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 incorporates the definition of a “crime of violence” from U.S.S.G. § 4B1.2, which provides that

(a) The term “crime of violence” means 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.

U.S.S.G. §§ 4B1.2(a) & 2K2.1, Application Note 1. The district court found that the Ohio assault statute under which Evans was convicted—Ohio Revised Code § 2903.13(A) and (C)(3), which states: “[n]o person shall knowingly cause or attempt to cause physical harm to another ... [and] ... [i]f the victim of the offense is a peace officer ... while in the performance of [his] official duties, assault is a felony of the fourth degree”—was categorically a crime of violence under both subsections of § 4B1.2(a). We agree.

First, when the victim is a police officer, the Ohio assault statute describes an offense punishable by imprisonment for a term exceeding one year. SeeOhio Rev.Code § 2929.14(A)(4).

Next, in order to categorically qualify as a crime of violence under the first subsection of the Guidelines definition, a statute must have as an element the use (or attempted use) of physical force against another. U.S.S.G. § 4B1.2(a)(1). When construing the “use of physical force” clause of the ACCA ( see footnote 1, supra ), the Supreme Court defined “physical force” to mean “ violent force—that is, force capable of causing physical pain or injury to another person,” and contrasted this level of force with mere unwanted touching, which would be incapable of causing such physical pain or injury. Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 1270–72, 176 L.Ed.2d 1 (2010).

The Ohio assault statute at issue requires proof that a defendant knowingly caused or attempted to cause physical harm to another person. Ohio Rev.Code § 2903.13(A). Ohio defines “physical harm” as any injury, regardless of its gravity or duration. SeeOhio Rev.Code § 2901.01(A)(3). One can knowingly cause or attempt to cause physical harm— i.e., physical injury—to another only by knowingly using or attempting to use physical force— i.e., force capable of causing physical injury. Conviction under the Ohio statute, § 2903.13(A), therefore, necessarily requires proof that a defendant knowingly used, or attempted to use, physical force capable of causing physical pain or injury and,...