United States v. Alexander, 021816 FED6, 15-3088

Docket Nº:15-3088
Opinion Judge:CLAY, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ALEXANDER, JR., Defendant-Appellant.
Judge Panel:BEFORE: NORRIS, CLAY, and COOK, Circuit Judges.
Case Date:February 18, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MICHAEL ALEXANDER, JR., Defendant-Appellant.

No. 15-3088

United States Court of Appeals, Sixth Circuit

February 18, 2016

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

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

CLAY, Circuit Judge.

Defendant Michael Alexander, Jr. appeals the final judgment of conviction and sentence of the district court resentencing Defendant 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). For the reasons that follow, we AFFIRM the sentence imposed by the district court.

BACKGROUND

On August 28, 2012, Defendant was indicted in the Northern District of Ohio for possession with intent to distribute approximately 44 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Defendant pled guilty pursuant to a written plea agreement on March 21, 2013. In the plea agreement, Defendant expressly retained his rights to attack his sentence collaterally for ineffective assistance of counsel and to appeal any potential finding by the district court that he was a career offender.

The pre-sentence investigation report ("PSR") subsequently prepared stated that Defendant was a career offender under the United States Sentencing Guidelines on the basis of three prior felony convictions: two 2005 convictions in Ohio state court for gross sexual imposition and attempted inciting to violence, respectively, and a 2011 conviction in the United States District Court for the Northern District of Ohio for conspiracy to distribute cocaine. Accordingly, it set his offense level at 32 pursuant to the Career Offender Guideline, U.S.S.G. § 4B1.1(b)(3). His criminal history placed him in Category VI, the same level that would apply under the Career Offender Guideline. Id. After applying a three-level reduction for acceptance of responsibility, for a final level of 29, the PSR calculated a Guidelines range of 151–188 months.

In his sentencing memorandum, Defendant argued that the attempted inciting to violence conviction did not qualify as a crime of violence under the Guidelines, and that the 2005 convictions for attempted inciting to violence and gross sexual imposition counted as a single sentence because they were imposed on the same day, without any intervening arrest. The government responded that, regardless of whether the attempted inciting to violence and gross sexual imposition convictions counted as a single sentence, Defendant still had at least the two predicate offenses required to make him a career offender because of the 2011 conviction for conspiracy to distribute cocaine. The government attached to its sentencing memorandum the indictments and journal entries for the gross sexual imposition and attempted inciting to violence convictions, and the judgment in Defendant's prior conviction for conspiracy to distribute cocaine.

At the sentencing hearing on July 15, 2013, Defendant objected to the classification of the attempted inciting to violence conviction as a crime of violence. The district court declined to reach the issue, because it deemed gross sexual imposition and conspiracy to distribute cocaine convictions the necessary two predicate convictions for crimes of violence or controlled substance offenses required to classify Defendant as a career offender. Beginning with an offense level of 32 and a criminal history category of VI pursuant to the Career Offender Guideline, the district court applied a three-level reduction for acceptance of responsibility, and calculated a Guidelines sentence of 151–188 months before imposing a sentence of 151 months of imprisonment and three years of supervised release. Judgment was entered on July 17, 2013.

On August 4, 2014, Defendant filed a pro se habeas motion asking the district court to vacate his sentence under 28 U.S.C. § 2255.1 He alleged ineffective assistance of counsel on two grounds: that trial counsel had failed both to file a direct appeal and to object to the classification of the gross sexual imposition and attempted inciting to violence convictions as predicate offenses for classification as a career offender. The district court appointed new counsel on November 24, 2014. After conducting an evidentiary hearing with Defendant's former trial counsel, the district court found that trial counsel had been ineffective for failing to file a direct appeal when Defendant had requested that he do so, but stayed resolution of the ineffective assistance of counsel claim for failure to object to classification as a career offender. The district court ordered that Defendant be re-sentenced.

A brief resentencing hearing was held on January 23, 2015. At the resentencing, Defendant's new counsel stated that he wished to incorporate all of the objections entered at the original sentencing hearing and to object to the career offender finding and the predicate offenses listed in the PSR. The government requested that the district court reincorporate all of its previous arguments and filings from the prior proceedings. Although the court "incorporate[d]" Defendant's newly entered objections "as part of [the] resentencing, " the district court did not disturb any of its prior holdings, and reimposed its prior sentence of 151 months of incarceration, followed by three years of supervised release. (R. 56, Tr. of Resentencing, Page ID 467.) Defendant now appeals.

DISCUSSION

Standard of review

We review de novo whether a crime constitutes a crime of violence for purposes of the career offender enhancement of the United States Sentencing Guidelines. United States v. Cooper, 739 F.3d 873, 877 (6th Cir. 2014). See also United States v. Rodriguez, 664 F.3d 1032, 1035 (6th Cir. 2011) (applying de novo review where defendant did not object below and the government did not request plain error review on appeal). In so doing, we employ the same analysis as when considering whether crimes constitute "violent felonies" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013) (deeming ACCA violent felony jurisprudence persuasive in this context).

Analysis

A. The Career Offender Guideline and the Johnson Decision

The United States Sentencing Guidelines allow a defendant to be adjudged a career offender if

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). A "crime of violence" is defined in U.S.S.G. § 4B1.2(a) as "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.

Note 1 of the application notes to U.S.S.G. § 4B1.2 states, "'Crime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling" (emphasis added).

Until recently, prior convictions could be classified as predicate offenses for classification as a career offender in one of three ways: the crime (1) involved physical force, (2) was one of the enumerated offenses such as burglary, or (3) was held to involve a serious risk of physical injury to another. In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held the identically worded residual clause of the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(ii), to be unconstitutionally vague.

The government no longer argues that Defendant's attempted inciting to violence conviction, which would have come under the residual clause, can be a predicate offense for purposes of the Career Offender Guideline. The question remains, however, whether the district court erred in finding Defendant's conviction for gross sexual imposition to be a predicate offense for career offender classification. Although gross sexual imposition is not one of the offenses listed in the enumerated offense clause of the Guideline itself-even though forcible sex offenses are listed in the application notes-it constitutes a predicate offense if it necessarily involved physical force as one of the elements of the...

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