U.S. v. Kaplansky

• Decision Date: 02 December 1994
• Docket Number: No. 92-3744,92-3744
• Citation: 42 F.3d 320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul KAPLANSKY, Defendant-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 320

42 F.3d 320

UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul KAPLANSKY, Defendant-Appellant.

No. 92-3744.

United States Court of Appeals Sixth Circuit.

Reargued June 15, 1994.

Decided Dec. 2, 1994.

Nancy A. Vecchiarelli, Asst. U.S. Atty. (briefed), Cleveland, OH, Sean Connelly (argued and briefed), U.S. Dept. of Justice, Criminal Div., Washington, DC, for plaintiff-appellee.

Gerald S. Gold, Orville E. Stifel, II (argued and briefed), Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH, for defendant-appellant.

Before: MERRITT, Chief Judge, and KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, and DAUGHTREY, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which KEITH, JONES, MILBURN, GUY, BOGGS, NORRIS, SILER, BATCHELDER, and DAUGHTREY, JJ., joined. NELSON, J. (p. 328), delivered a separate concurring opinion in which KENNEDY and RYAN, JJ., joined. MERRITT, C.J. (pp. 328-30), delivered a separate dissenting opinion, in which MARTIN, J., joined, with MARTIN, J. (pp. 330-31), also delivering a separate dissenting opinion.

SUHRHEINRICH, Circuit Judge.

The Armed Career Criminal Act, 18 U.S.C. Sec. 924(e) (the "ACCA"), provides that a felon in possession of a firearm who has been previously convicted of three or more "violent felonies" is subject to an enhanced sentence. "Violent felony" is defined in Sec. 924(e)(2)(B) as any crime punishable by imprisonment for a term exceeding one year that "has as an element the use, attempted use, or threatened use of physical force," or "involves conduct that presents a serious potential risk of physical injury to another." Sec. 924(e)(2)(B)(i), (ii). The principal issue before the en banc court is whether attempted kidnapping under Ohio Rev.Code Ann. Sec. 2905.01, which provides that the crime of kidnapping may occur by "force, threat, or deception," see Ohio Rev.Code Ann. Sec. 2905.01 (Anderson 1993), satisfies either prong of the statute and is therefore a predicate crime under the ACCA.

I.

Defendant Robert Paul Kaplansky entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). The district court, citing defendant's three prior convictions for rape, gross sexual imposition, and attempted kidnapping, imposed the mandatory fifteen years imprisonment without parole under the penalty enhancement provisions of 18 U.S.C. Sec. 924(e). Defendant conceded at sentencing that his prior conviction for rape qualified as a "violent felony," but argued that his prior conviction for gross sexual imposition was not, because the language of the statute is such that the crime can be committed without the use of force. He made a similar argument regarding the attempted kidnapping conviction because of the Ohio statute's inclusion of deception as one of the means by which the crime of kidnapping may be committed.

The district court held that although neither conviction qualified as a "violent felony" under a "categorical approach," the actual conduct underlying each conviction demonstrated that each prior crime did in fact involve force and otherwise presented a serious risk of injury to the victim. In reaching the latter conclusion, the court relied on the underlying facts set forth in the presentence report as well as the testimony of the victims, which was given at the sentencing hearing. Defendant exercised his reserved right to appeal any adverse sentencing determinations and the district court's denial of his motion to suppress.

The original three-member panel vacated defendant's sentence, holding that the lower court erred in examining the actual conduct underlying Kaplansky's convictions, but otherwise agreed with the district court's conclusion that the statutory possibility of kidnapping by deception for the purpose of committing a nonviolent felony precluded defendant's conviction from being classified categorically as a "violent felony" under either clause of Sec. 924(e)(2)(B). It therefore did not address defendant's argument regarding his gross sexual imposition conviction. United States v. Kaplansky, No. 94-3744, 1993 WL 366362 (6th Cir. Sept. 22, 1993) (vacated). The dissent felt that all kidnappings by deception, even ones for the purpose of committing a nonviolent felony or obstructing a function of government, invariably present a "potential" for physical injury. A majority of the court voted for rehearing en banc, thereby vacating the previous opinion and judgment of the original panel. United States v. Kaplansky, 5 F.3d 177 (6th Cir.1993).

II.

As noted above, Sec. 924(e) mandates that a person who violates 18 U.S.C. Sec. 922(g), and who has three previous convictions for "violent felonies," shall be subject to an enhanced sentence. The statute defines "violent felony" as

any crime punishable by imprisonment for a term exceeding one year ... that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

18 U.S.C.A. Sec. 924(e)(2)(B)(West 1994). The statute targets so-called "career offenders," those who by their very nature "present at least a potential threat of harm to persons." Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 2152, 109 L.Ed.2d 607 (1990).

The Supreme Court has stated that in deciding whether a crime is a "violent felony" under either subparagraph of Sec. 924(e)(2)(B), sentencing courts should look to the statutory definition of the crime charged, rather than the actual facts of the individual's prior conviction. Taylor, 495 U.S. at 600-02, 110 S.Ct. at 2159-60. See also United States v. Lane, 909 F.2d 895, 901 (6th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991). This "categorical approach," which is consistent with the statutory language as well as the legislative history, is designed to avoid "the practical difficulties and potential unfairness of a factual approach" to each prior conviction. Taylor, 495 U.S. at 601, 110 S.Ct. at 2159; Lane, 909 F.2d at 901.

The Supreme Court also recognized an exception to the categorical approach in "a narrow range of cases where a jury was actually required to find all the elements" of the violent felony. Taylor, 495 U.S. at 602, 110 S.Ct. at 2160. In such situations, the sentencing court may look to "the charging paper and jury instructions." Id. ¹ When the defendant's conviction is by way of guilty plea, it is appropriate under Taylor to look to the indictment and guilty plea. United States v. Barney, 955 F.2d 635 (10th Cir.1992); United States v. Sweeten, 933 F.2d 765 (9th Cir.1991)(per curiam); United States v. Garza, 921 F.2d 59, 61 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 91, 116 L.Ed.2d 63 (1991); United States v. Cornelius, 931 F.2d 490, 494 (8th Cir.1991); United States v. Payton, 918 F.2d 54 (8th Cir.1990); United States v. Gallman, 907 F.2d 639, 645 n. 7 (7th Cir.1990), cert. denied, 499 U.S. 908, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991). See United States v. Bentley, 29 F.3d 1073, 1077-78 (6th Cir.) (court examined language of indictment to ascertain whether defendant pled guilty to elements of generic burglary where state statute proscribed broader range of conduct), cert. denied, --- U.S. ----, 115 S.Ct. 604, 130 L.Ed.2d 515 (1994).

III.

The government concedes that the district court erred in looking at the actual facts of the prior felony convictions. Despite the district court's belief, the Taylor exception stops short of embracing the actual conduct underlying a prior conviction. Taylor, 495 U.S. at 601, 110 S.Ct. at 2159 (legislative history of Sec. 924(e) reflects that Congress did not intend for sentencing courts to "engage in an elaborate factfinding process regarding the defendant's prior offenses"); Payton, 918 F.2d at 56 (district court erred under Taylor in looking beyond state statute, charging paper and jury instructions to police report to determine nature of conduct leading to conviction). Rather, the government maintains that because kidnapping is a crime directed at the individual personally, it categorically presents a serious potential risk of physical injury. The government also argues that a sentencing court could properly conclude from the indictment, plea and judgment that defendant physically harmed Colleen Lally. We consider the application of categorical approach to Ohio Rev.Code Ann. Sec. 2905.01 first.

A.

The government does not argue that Sec. 2905.01 has as a necessary element the use, attempted use or threatened use of force. We therefore examine the statute exclusively for language that requires conduct that presents a serious risk of physical injury to another. The statute provides in relevant part:

(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes:

(1) To hold for ransom, or as a shield or hostage;

(2) To facilitate the commission of any felony or flight thereafter;

(3) To terrorize, or to inflict serious physical harm on the victim or another;

(4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will;

(5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority.

Ohio Rev.Code Ann. Sec. 2905.01 (emphasis added). Defendant argues, and both the district court and the original panel agreed, that because an attempted kidnapping by deception for statutory purpose (2) or (5) does not necessarily present "a serious potential risk of physical injury to another,"...