U.S. v. Wynn

• Decision Date: 02 September 2009
• Docket Number: No. 07-4307.,07-4307.
• Citation: 579 F.3d 567
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio WYNN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

579 F.3d 567

UNITED STATES of America, Plaintiff-Appellee, v. Antonio WYNN, Defendant-Appellant.

No. 07-4307.

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2009.

Decided and Filed: September 2, 2009.

ARGUED:

Jonathan Witmer-Rich, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Gregory C. Sasse, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

ON BRIEF:

Jonathan Witmer-Rich, Office of the Federal Public Defender, Cleveland,

Ohio, for Appellant. Gregory C. Sasse, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MOORE, GIBBONS, and FRIEDMAN, Circuit Judges.^*

MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined. FRIEDMAN, J. (pp. 578-81), delivered a separate opinion dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Antonio Wynn ("Wynn") appeals his 235-month sentence resulting from a guilty plea, pursuant to a written plea agreement, to one count of possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). Wynn's sole argument on appeal is that, in light of the Supreme Court's recent decision in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the district court erred in concluding that Wynn's guilty plea to "sexual battery" under Ohio Rev.Code § 2907.03 was a "crime of violence" for purposes of determining that Wynn was a career offender. For the reasons discussed below, we VACATE Wynn's sentence and REMAND to the district court for the limited purpose of resentencing Wynn after determining whether Wynn qualifies as a career offender in light of Begay.

I. FACTS AND PROCEDURE

The underlying facts of this case are not in dispute. On December 30, 2006, Cleveland police officers stopped Wynn's car for speeding and changing lanes without signaling. During the stop, police noticed a plastic bag containing a white substance, later identified as crack cocaine, in plain view. Wynn was arrested, and the police discovered more crack cocaine upon a search of the car. All told, Wynn possessed 44.7 grams of crack cocaine at the time of his arrest.

Wynn was indicted and, pursuant to a written plea agreement, Wynn pleaded guilty to one count of possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B), on August 1, 2007. Prior to pleading guilty, Wynn consented to a pre-plea Presentence Investigation Report ("PSR"), which was prepared and updated prior to the sentencing hearing. MANUAL ("U.S.S.G.") § 4B1.1 for a total offense level of 37. The PSR based the § 4B1.1 enhancement on two prior convictions: (1) "Assault on [a] Peace Officer" and (2) a plea of guilty to "Sexual Battery" in violation of Ohio Rev.Code § 2907.03. PSR ¶ 19. The PSR described the latter offense as follows:

According to an August 2001 Cuyahoga County Adult Probation Department presentence report, the following is known: On October 21, 2000, at 4:00 a.m. the defendant, his friend, and his friend's girlfriend went to the home of the girlfriend's 16-year-old female cousin, after a night of drinking. The juvenile girl went upstairs to lay down, and the defendant followed her into her bedroom. After a brief conversation, the defendant started rubbing the girl's leg, but she told him to stop. He initially stopped, however, he began touching her again as she tried to leave the room. The defendant forced the girl onto her bed and removed her clothes. The girl screamed, and the defendant placed his hand over her mouth. She told the defendant that she could not breath[e], and he removed his hand. The defendant then opened the girl's legs and inserted his penis into her vagina. After the defendant finished moving, the girl got up and told her cousin what happened.

PSR ¶ 34. The PSR assigned Wynn a criminal history category of VI, which, coupled with a total offense level of 37, resulted in an advisory guidelines range of 360 months to life imprisonment. Wynn's counsel filed a sentencing memorandum that argued for a downward variance from the guidelines range, but did not object to any factual assertions in the PSR or to the finding that Wynn was a career offender.

After reviewing the PSR, the district court determined that the correctly calculated total offense level was 37; however, the court awarded a three-point reduction for acceptance of responsibility for a total offense level of 34, reducing the guidelines range to 262 to 327 months of imprisonment. The district court further noted that Wynn was a career offender but that "because of [Wynn's] forthrightness, [and Wynn's] willingness to help," it would treat Wynn's final total offense level as a 33, with a criminal history category of VI. Record ("R.") at 29 (09/18/07 Sent. Hr'g Tr. at 11). This produced a guidelines range of 235 to 293 months. The district court sentenced Wynn to 235 months of imprisonment. Wynn timely appealed this sentence.

II. ANALYSIS

Wynn's sole contention on appeal is that, in light of Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the district court erred in imposing the U.S.S.G. § 4B.1(a) career-offender enhancement to his sentence because his conviction under Ohio Rev.Code § 2907.03 is not a "crime of violence" under the Begay test. Wynn asserts that, without this enhancement, his total offense level would have been 27, with a criminal history category of VI, for a guidelines range of 130 to 162 months.¹ As explained below, we conclude that we must vacate Wynn's sentence in light of Begay.

A. Standard of Review

After the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences "for reasonableness— including for procedural error in the calculation of the guideline range such as defendant asserts in this case." United States v. Bartee, 529 F.3d 357, 358 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007)). Thus, when reviewing a district court's sentencing determination, we must "ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Gall, 128 S.Ct. at 597. We review de novo the district court's determination that a prior conviction is a "crime of violence" under U.S.S.G. § 4B1.1. United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005).

B. Career-Offender Status

"A defendant is 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). Wynn does not contest the fact that requirements one and two are met; rather, Wynn asserts that he does not have the two predicate "crime of violence" convictions necessary to be a career offender because, in light of the Supreme Court's decision in Begay, his conviction under Ohio Rev.Code § 2907.03 is not a "crime of violence."

A prior conviction constitutes a "crime of violence" if the crime was "punishable by imprisonment for a term exceeding one year," and

(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.

U.S.S.G. § 4B1.2(a) (emphasis added).

To determine whether a prior conviction constitutes a "crime of violence," we must apply the categorical approach expressed in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and expanded to convictions based on guilty pleas in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).² See, e.g., United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995); Bartee, 529 F.3d at 359. "Under this categorical approach, the court must look only to the fact of conviction and the statutory definition—not the facts underlying the offense—to determine whether that definition supports a conclusion that the conviction was for a crime of violence."³ Bartee, 529 F.3d at 359 (emphasis added) (citing United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)); see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (holding that a court is required to "look only to the fact of conviction and the statutory definition of the prior offense" when determining if a prior conviction constitutes a "violent felony" under the Armed Career Criminal Act (emphasis added)); Begay, 128 S.Ct. at 1584 ("[W]e consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion."). There is, however, an exception to the categorical approach: "[W]hen the statutory definition [of the prior crime to which the defendant pleaded guilty] is ambiguous ... the court may examine ... `the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.'" Bartee, 529 F.3d at 359 (quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254).

Given this framework and the facts in the record, we must answer two questions to resolve the instant appeal. First, is a generic...