728 F.3d 603 (6th Cir. 2013), 12-3433, United States v. Denson

Docket Nº:12-3433
Citation:728 F.3d 603
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEMARIO DENSON, Defendant-Appellant
Attorney:Brian R. McGraw, Cleveland, Ohio, for Appellant. Duane J. Deskins, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.
Judge Panel:Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.
Case Date:August 29, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 603

728 F.3d 603 (6th Cir. 2013)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DEMARIO DENSON, Defendant-Appellant

No. 12-3433

United States Court of Appeals, Sixth Circuit

August 29, 2013

Decided: August 29, 2013.

Page 604

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:12-cr-00021-1--James S. Gwin, District Judge.

ON BRIEF:

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Brian R. McGraw, Cleveland, Ohio, for Appellant.

Duane J. Deskins, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

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

OPINION

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JANE B. STRANCH, Circuit Judge.

Demario Denson's sentencing appeal presents two issues. The first is whether a conviction for inciting to violence, see Ohio 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. See 18 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 report

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identified two prior state felony convictions that increased the base-offense level used to calculate Denson's guidelines range because they were crimes of violence. See U.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, see Ohio 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. See U.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. See U.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, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011).

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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, 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. 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).

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...

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