United States v. Denson

• Citation: 728 F.3d 603
• Decision Date: 29 August 2013
• Docket Number: No. 12–3433.,12–3433.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Demario DENSON, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

728 F.3d 603

UNITED STATES of America, Plaintiff–Appellee,

v.Demario DENSON, Defendant–Appellant.

No. 12–3433.

United States Court of Appeals, Sixth Circuit.

Aug. 29, 2013.

ON BRIEF:Brian R. McGraw, Cleveland, OH, for Appellant. Duane J. Deskins, United States Attorney's Office, Cleveland, OH, for Appellee.

Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Demario Denson's sentencing appeal presents two issues. The first is whether a conviction for inciting to violence, seeOhio Rev.Code § 2917.01(A), is a crime of violence under the career-offender provisions of the sentencing guidelines. We hold that it is not, but that the facts of Denson's conviction necessarily establish that the species of incitement to which he pled guilty is a crime of violence. The second question is whether the district court erred when it declined to apply an acceptance-of-responsibility adjustment based on a presentence report that showed Denson was charged with a new state firearm offense while awaiting sentencing in this case. We conclude that it did not. As a result, we AFFIRM.

I. BACKGROUND

Demario Denson was indicted in January 2012 on a charge of being a felon in possession of a firearm. See18 U.S.C. § 922(g)(1). One month later, Denson was detained again for allegedly supplying a shotgun to a police informant who planned to commit a robbery. Denson pled guilty to the felon-in-possession charge in February 2012.

Denson's probation officer prepared a presentence investigation report for his sentencing on the earlier charge. The reportidentified two prior state felony convictions that increased the base-offense level used to calculate Denson's guidelines range because they were crimes of violence. SeeU.S.S.G. §§ 2K2.1(a)(2), 4B1.1, 4B1.2. Denson objected to the inclusion of an Ohio conviction for inciting to violence as a predicate crime of violence, seeOhio Rev.Code § 2917.01(A), arguing that the incitement statute could be violated without any violence actually occurring. The district court overruled the objection. It reasoned that the Ohio incitement statute meets the career-offender guideline's requirement that a qualifying prior offense must contain “the use, attempted use, or threatened use of physical force against the person of another” as an element because the threatened use of violence is sufficient to commit the state crime. SeeU.S.S.G. § 4B1.2(a)(1). The court thus concluded that Denson's incitement conviction constituted a crime of violence under the career-offender guideline.

The district court also rejected Denson's argument that his sentencing range should be reduced because Denson accepted responsibility for his crime. SeeU.S.S.G. § 3E1.1. Denson contended that he was “cloaked with the presumption of innocence” with respect to the unadjudicated shotgun-supplying charge, which the court should not consider against him. Finding it “hard to imagine something” that could “negate[ ]” Denson's acceptance of responsibility more than another firearm offense involving the sale of a shotgun to a would-be felon, the court declined to apply the reduction.

The district court sentenced Denson to a 72–month term of imprisonment.

II. ANALYSIS

Denson appeals two facets of the calculation of his sentence, which we review pursuant to 28 U.S.C. § 1291. First, he contends that his Ohio felony conviction for inciting to violence is not a crime of violence under the career-offender guideline. Second, Denson argues the district court improperly denied the acceptance-of-responsibility reduction he requested.

A. Crime of violence

Two baseline rules guide our analysis. First, we review de novo a district court's determination that a prior conviction is a crime of violence. United States v. Wynn, 579 F.3d 567, 570 (6th Cir.2009). Second, we analyze a crime of violence under the career-offender guideline just as we do a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and so rely on ACCA cases here. United States v. Johnson, 707 F.3d 655, 659 n. 2 (6th Cir.2013).

Under the guidelines, “any offense under federal or state law” for which an offender can be imprisoned for more than one year is a crime of violence if it (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1); (2) is burglary of a dwelling, arson, extortion, involves the use of explosives, id.§ 4B1.2(a)(2), or is “one of the crimes specifically enumerated in Application Note 1 to the career offender guideline,” United States v. Rodriguez, 664 F.3d 1032, 1036 (6th Cir.2011); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2).

A sentencing court applies a “categorical” approach to determine the nature of a prior conviction, which means that it focuses on the statutory definition of the offense, rather than the manner in which an offender may have violated the statute in a particular circumstance. Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011). Even when there is “little doubt” that the circumstances of a defendant's violation were violent, “the question is whether [the statute he violated], as a categorical matter,” is a crime of violence. Id.

Courts use “a variant of this method—labeled (not very inventively) the ‘modified categorical approach’—when a prior conviction is for violating a so-called ‘divisible statute,’ ” which “sets out one or more elements of the offense in the alternative.” Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). The modified-categorical approach is a “tool” used in a “narrow range of cases” to “identify the relevant element” of which a defendant was necessarily convicted if—and only if—his conviction was under “a statute with multiple alternative [ ]” elements. Id. at 2287 (internal quotation marks omitted). So where a prior conviction was under a statute that “could be violated in a way that would constitute a crime of violence and in a way that would not,” United States v. Rede–Mendez, 680 F.3d 552, 556 (6th Cir.2012), we may “consult a limited class of documents ... to determine which alternative [element] formed the basis of the defendant's prior conviction,” Descamps, 133 S.Ct. at 2281;see also Shepard v. United States, 544 U.S. 13, 16–17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Where the defendant has pled guilty, these so-called Shepard documents may include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254. The point of the modified-categorical inquiry is to determine “whether the court documents establish that the defendant ‘necessarily admitted’ the elements of a predicate offense through his plea.” United States v. Medina–Almaguer, 559 F.3d 420, 423 (6th Cir.2009) (quoting Shepard, 544 U.S. at 16, 125 S.Ct. 1254).

1. Categorical analysis of Ohio's inciting-to-violence statute

Ohio law defines the crime of inciting to violence as “knowingly engag [ing] in conduct designed to urge or incite another to commit any offense of violence” if the conduct either “takes place under circumstances that create a clear and present danger that any offense of violence will be committed” or “proximately results in the commission of any offense of violence.” Ohio Rev.Code § 2917.01(A) (emphasis added).

The first question is whether the incitement statute “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). It does not. While the statute says that a defendant must do something designed to urge another to commit “any offense of violence,” Ohio law is clear that an “offense of violence” does not categorically entail the use of physical force. Section 2901.01(A)(9) of the state's Revised Code provides the general definition of the term “offense of violence” as it is used in Ohio's statutes, and sets forth assorted categories of qualifying offenses. These include acts “committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons.” Ohio Rev.Code § 2901.01(A)(9)(c). And they also include nearly three dozen enumerated offenses, see id. § 2901.01(A)(9)(a), and their “substantially equivalent” analogs found in federal law or the law of any state, id. § 2901.01(A)(9)(b). While many of the enumerated offenses include a use-of-physical-force element—take as examples murder, id. § 2903.02, rape, id. § 2907.02, and robbery, id. § 2911.02—several do not—such as threatening non-physical harm to influence or hinder a public official in the discharge of his duties, id. § 2921.03, and failing to return to detention, id. § 2921.34. So while a conviction under § 2917.01(A)may involve the use of physical force in the underlying “offense of violence,” it does not do so as a categorical matter because it may rest on an “offense of violence” that requires none.

That Ohio's legislature chose to include the word “violence” in naming the offense and elaborating an element of it that sounds like it involves the use of physical force does not change matters. “[A] specific offense [does not] automatically qualify as a crime of violence just because it has the same name as one of the enumerated offenses” under § 4B1.2(a)(1) of the guidelines. Rede–Mendez, 680 F.3d at 556. So too a state offense does not automatically qualify as a crime of violence merely because its title includes the word “violence” or an element of it is denominated an “offense of violence”—particularly where that element sweeps in a broad range of violent and nonviolent conduct. Such a statute is overbroad in a categorical analysis of the use-of-physical-force prong. And this overbreadth is not cured because the...