U.S. v. Sanders, 05-4238.

• Decision Date: 15 December 2006
• Docket Number: No. 05-4238.,05-4238.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William SANDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

470 F.3d 616

UNITED STATES of America, Plaintiff-Appellee, v. William SANDERS, Defendant-Appellant.

No. 05-4238.

United States Court of Appeals, Sixth Circuit.

Argued: October 27, 2006.

Decided and Filed: December 15, 2006.

ARGUED: Terry H. Gilbert, Friedman & Gilbert, Cleveland, Ohio, for Appellant. Michael L. Collyer, Office of the Attorney General, Cleveland, Ohio, for Appellee. ON BRIEF: Terry H. Gilbert, Friedman & Gilbert, Cleveland, Ohio, for Appellant. Michael L. Collyer, Office Of The Attorney General, Cleveland, Ohio, for Appellee.

Before: KEITH and McKEAGUE, Circuit Judges; CLELAND, District Judge.^*

OPINION

CLELAND, District Judge.

On remand for resentencing after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court held that Defendant-Appellant William Sanders was subject to the sentencing provisions of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e), and sentenced him to a term of imprisonment of 180 months to be followed by three years of supervised release. Sanders now challenges two of the predicate violent felonies on which the district court based its sentencing. For the reasons stated below, we affirm.

I.

On November 25, 2003, a jury convicted Sanders of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). The district court found that Sanders was subject to the sentencing provisions of the ACCA and sentenced him to a term of imprisonment of 188 months to be followed by three years of supervised release. Sanders appealed and this court upheld his conviction but remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Sanders, 404 F.3d 980 (6th Cir.2005).

On remand, the district court conducted two resentencing hearings, and again found Sanders subject to the ACCA because he had committed three violent felonies. The first violent felony was Sanders's February 2, 1981 robbery conviction in Mahoning County Common Pleas Court, case number 80CR421. The second violent felony was Sanders's 1981 robbery conviction in Trumbull County, case numbers 81 CR11 and 81 CR12.¹ For Sanders's third violent felony, the district court found that Sanders had been convicted of two counts of aggravated robbery in 1984 in Trumbull County, case number 83CR359.

After concluding that these three offenses qualified as violent felonies under the ACCA, the district court resentenced Sanders to a term of imprisonment of 180 months to be followed by three years of supervised release. Sanders timely appealed, raising challenges to the first and third predicate violent felonies. He argues (1) that the district court erred in finding the third violent felony because Ohio's aggravated robbery crime does not constitute a violent felony under the ACCA and (2) that the documents on which the district court based its finding that Sanders had been convicted of the first violent felony were inherently unreliable.

II.

Sanders challenges whether the district court correctly concluded that aggravated robbery under Ohio law constitutes a predicate violent felony under the ACCA and whether the district court properly relied on state court documents in determining that Sanders was convicted of robbery. Both of these challenges rely on the United States Supreme Court's interpretation of the ACCA which we review de novo. United States v. Maness, 23 F.3d 1006, 1008 (6th Cir.1994); United States v. Brady, 988 F.2d 664, 666 (6th Cir.1993). Factual conclusions, such as determining what offense Sanders was convicted of in case number 80CR421, are reviewed under a clearly erroneous standard. United States v. Graves, 60 F.3d 1183, 1185 (6th Cir. 1995) (citations omitted); United States v. Beasley, 442 F.3d 386, 394 (6th Cir.2006).

III.

The ACCA mandates a term of imprisonment of fifteen years for persons who are convicted under 18 U.S.C § 922(g), and who have three previous convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C § 924(e)(1). "[V]iolent felony" is defined 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 against the person of another; or . . . 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. § 924(e)(2)(B).

In Taylor, the United States Supreme Court held that "burglary" under the ACCA encompasses "generic" burglary and means "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599, 110 S.Ct. 2143. Relevant to the instant case, the Taylor Court further held that in determining whether an offense constitutes "burglary" for purposes of § 924(e)'s sentence enhancement, the sentencing court could look to its statutory definition to determine if it "substantially corresponds" to "generic" burglary, or the charging paper and jury instructions to see if they "actually required the jury to find all the elements of generic burglary in order to convict the defendant." Id. at 602, 110 S.Ct. 2143. The Court explained:

We think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense. This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary.

Id. (footnote omitted).

The Court subsequently instructed that in reviewing admitted burglaries (i.e., pleas) a sentencing court could not "look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary." Shepard, 544 U.S. at 16, 125 S.Ct. 1254. The Court held that "a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id. The Court also confirmed that Taylor's "categorical approach" applied in all predicate ACCA offenses, not just burglaries. Id. at 17, 125 S.Ct. 1254, n. 2.

Thus, under Taylor and Shepard, the sentencing court is restricted to applying the "categorical approach," and must look only to certain types of documents when determining whether the underlying offense constitutes a violent felony under the ACCA.

In his first argument on appeal, Sanders contends that the district court erred by concluding that aggravated robbery under Ohio law constitutes a predicate violent felony within the meaning of the ACCA. Specifically, Sanders argues that the third violent felony which the district court attributed to him, the 1984 aggravated robbery conviction in case number 83CR359, does not constitute a violent felony. We disagree.

The jury verdict in 83CR359 indicates that Sanders was convicted of two counts of aggravated robbery, one of which included a specification listed in the indictment. The "Entry on Sentence" states that Sanders had been found guilty of a firearm specification. Sanders first argues that the district court was not allowed to refer to the "Entry on Sentence" in determining the nature of Sanders's conviction, and without referring to the "Entry on Sentence," it is impossible to know the nature of the otherwise unspecified "specification."

We reject this argument and find that the district court properly referred to the "Entry on Sentence" in determining Sanders's sentence. Sanders cites a Fifth Circuit case which held that a sentencing court cannot rely upon abstracts of judgment under Taylor and Shepard. See United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir.2005). In Gutierrez-Ramirez, the Fifth Circuit agreed with the Ninth Circuit that the district court cannot rely solely on "shorthand abbreviations," prepared not by the court but by the clerk, to determine the nature of the conviction. Id. at 358. In this case, however, the district court relied on the jury verdict, which expressly indicated a specification, as well as the "Entry on Sentence" which gave further context to the jury verdict. In reviewing the "Entry on Sentence," it is clear that the document constitutes a final judgment, reflecting the jury verdict and imposing the sentence, and is signed by the sentencing judge—rather than the clerk, as in Gutierrez-Ramirez. The district court was therefore entitled to review this document when determining the nature of the conviction.² Beasley, 442 F.3d at 393-394 ("Rather, in making its determination, the district court expressly stated that it relied only on the state court judgment and underlying indictment, materials that are explicitly within the scope of the `categorical approach' approved by the Supreme Court.") (citations and footnote omitted).

Moreover, even if the district court was restricted to the jury verdict indicating only a "specification," the statutory definition of aggravated robbery is sufficient to support the conclusion that the conviction constitutes a violent felony under the ACCA. The relevant statute³ provides:

No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:

(1) Have a deadly...