United States v. Patterson

• Decision Date: 03 April 2017
• Docket Number: Nos. 15-4112/4113/4183,s. 15-4112/4113/4183
• Citation: 853 F.3d 298
• Parties: UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant, v. Luke D. PATTERSON, Defendant–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

853 F.3d 298

UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant,

v.Luke D. PATTERSON, Defendant–Appellant/Cross–Appellee.

Nos. 15-4112/4113/4183

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 3, 2017

Rehearing En Banc Denied May 8, 2017

ARGUED: Claire C. Curtis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant in 15–4113/4183. Carmen E. Henderson, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee in 15–4113/4183. ON BRIEF: Claire C. Curtis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant in 15–4113/4183. Carmen E. Henderson, UNITED STATES ATTORNEY' S OFFICE, Cleveland, Ohio, for Appellee. Luke D. Patterson, Glenville, West Virginia, pro se in 15–4112.

Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Local police caught Luke Patterson driving around Akron, Ohio, with a stolen pistol in the driver's door. That earned him convictions under Ohio law for receiving stolen property and driving under suspension. That was not all. Ohioans, like most Americans, also must answer to a separate sovereign: the federal government. In connection with the same incident, Patterson also pleaded guilty under federal law to being a felon in possession of a firearm. See 18 U.S.C. § 922(g). When it came time for sentencing, the district court counted several prior Ohio convictions for aggravated robbery with a deadly weapon as crimes of violence under the United States Sentencing Guidelines but not as violent felonies under the Armed Career Criminal Act. We affirm the district court's denial of the motion to dismiss, but reverse for resentencing because Patterson's prior convictions meet the requirements of the Sentencing Guidelines and the Armed Career Criminal Act.

I.

On July 30, 2014, officers from the Akron Police Department stopped Patterson for a traffic violation. They noticed an open container of alcohol and found a Smith & Wesson pistol in the driver's door of the car. Patterson told the officers that he had bought the gun on "the street" for a hundred dollars. When the police ran the serial number of the gun through the system, they learned that it had been stolen a month earlier.

On August 12, 2014, an Ohio grand jury indicted Patterson. In exchange for dropping some of the charges against him, Patterson pleaded guilty in September 2014 to receiving stolen property and to driving under suspension in violation of Ohio law.

On August 27, 2014, a federal grand jury indicted Patterson for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Patterson had pleaded guilty in 2001 to two counts of aggravated robbery, Ohio Rev. Code § 2911.01(A)(1), and one count of aggravated robbery with a firearm specification, id. §§ 2911.01(A)(1), 2941.145. The three convictions stemmed from armed robberies at an insurance agency, a cash advance store, and a cigarette shop. The district court rejected Patterson's motion to dismiss the federal charge on double jeopardy grounds.

At sentencing, the district court refused to treat his three robbery convictions as violent felonies under the Armed Career Criminal Act. The presentence report calculated Patterson's base offense level as if aggravated robbery with a deadly weapon qualified as a crime of violence under U.S.S.G. § 4B1.2(a). But because the three convictions counted as a single sentence, see U.S.S.G. § 4A1.2(a)(2), only one of the convictions impacted Patterson's base offense level. Patterson did not object to the base offense level of 20, and the district court sentenced him accordingly.

Patterson appealed the denial of the motion to dismiss and his sentence. The United States cross-appealed the district court's application of the Armed Career Criminal Act.

II.

The district court correctly rejected Patterson's double jeopardy objection to the federal charge. "A prosecution in state court under state law, ... followed by a prosecution in federal court under federal law, does not violate the constitutional prohibition on double jeopardy." United States v. Holmes , 111 F.3d 463, 467 (6th Cir. 1997). Separate sovereigns—Ohio and the United States—may prosecute an individual successively for offenses arising from the same course of conduct. See Heath v. Alabama , 474 U.S. 82, 88–89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). Ohio could prosecute Patterson under its general police power, and the United States could prosecute him because the gun had traveled in interstate commerce. See United States v. Chesney , 86 F.3d 564, 571–72 (6th Cir. 1996). Ohio and the United States derive their power to prosecute from separate sources of sovereignty and thus may prosecute the same individual under their separate legal codes. Such dual prosecutions do not violate the Double Jeopardy Clause.

Perhaps coming to grips with this point, Patterson urges a variation on this argument for the first time on appeal, claiming that the federal prosecution was in "bad faith" because the United States Attorney for the Northern District of Ohio should have informed him of the federal government's intention to file charges in federal court when Patterson was considering the State's plea agreement. But "the federal government had no involvement in [ ] state plea negotiations," and the State never promised Patterson that federal prosecutors wouldn't charge him for violating federal law. United States v. McConer , 530 F.3d 484, 495 (6th Cir. 2008). Patterson hypothesizes that his case may have involved participation between Ohio prosecutors and the United States Attorney as part of Project Exile (a federal program in other States) or Project Safe Neighborhoods. But nothing in the record shows, or even suggests, federal collaboration in this state prosecution. The federal indictment was separate from the state indictment, and federal district courts "have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C. § 3231. No evidence of bad faith exists.

We can appreciate Patterson's concern that the federal government may prosecute him for driving within the borders of Akron with a firearm. And he is not alone in criticizing such a broad definition of federal criminal power. See, e.g. , Alderman v. United States , 562 U.S. 1163, 131 S.Ct. 700, 703, 178 L.Ed.2d 799 (2011) (Thomas, J., dissenting from denial of certiorari) ("If the Lopez framework is to have any ongoing vitality, it is up to this Court to prevent it from being undermined by a 1977 precedent [Scarborough v. United States , 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) ] that does not squarely address the constitutional issue."). But he does not challenge the extent of that power here.

III.

The heart of the appeal and cross-appeal concerns the Armed Career Criminal Act—and whether Patterson's three robberies qualify as predicate offenses under it.

The Act offers three paths for treating an offense punishable by at least one year in prison as a "violent felony": The offense (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," known as the elements clause; (2) "is burglary, arson, or extortion, [or] involves use of explosives," known as the enumerated offenses clause; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another," known as the residual clause. 18 U.S.C. § 924(e)(2)(B).

The Supreme Court recently invalidated one of those paths—the residual clause of the Armed Career Criminal Act. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). That leaves two paths.

Robbery is not an enumerated offense under the Act. That leaves one path.

Does the elements clause, then, apply to Patterson's robbery convictions? The only way that aggravated robbery could qualify as a "violent felony" under the Act is if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). In determining whether the elements clause covers aggravated robbery, we look to the statutory definition of the state offense rather than the underlying facts of Patterson's crimes, what courts call the categorical approach. United States v. Anderson , 695 F.3d 390, 399 (6th Cir. 2012) ; see Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). If the statute requires proving that someone used, attempted, or threatened to use physical force against another, it satisfies the elements clause even if the statute does not match the elements clause word for word. See United States v. Gloss , 661 F.3d 317, 319 (6th Cir. 2011). Through it all, "our focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside" the Armed Career Criminal Act's limitations. Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684–85, 185 L.Ed.2d 727 (2013) (quotation omitted).

Here is the language of Ohio's aggravated robbery statute:

(A) No person, in attempting or committing a theft offense, ... or in fleeing immediately after the attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.

Ohio Rev. Code § 2911.01. According to the Supreme Court of Ohio, "[o]ne cannot display, brandish, indicate possession of, or use a deadly weapon in the context of committing a theft offense without conveying an implied threat to inflict physical harm. It is the very act of displaying, brandishing, indicating possession, or using the weapon that constitutes the threat to inflict harm because it intimidates the victim...