United States v. Burris, 010319 FED6, 16-3855

Docket Nº:16-3855
Opinion Judge:ALICE M. BATCHELDER, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Le'Ardrus Burris, Defendant-Appellant.
Attorney:Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, f...
Judge Panel:Before: COLE, Chief Judge; MERRITT, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges. THAPAR, Circuit Judge, concurring. ROGERS, Circuit Judge. KETHLEDGE, Circuit Judge, concurring in the judgm...
Case Date:January 03, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Le'Ardrus Burris, Defendant-Appellant.

No. 16-3855

United States Court of Appeals, Sixth Circuit

January 3, 2019

Argued: October 6, 2017

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:15-cr-00245-6-James S. Gwin, District Judge.

ARGUED EN BANC:

Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for Appellant.

Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

ON SUPPLEMENTAL BRIEF:

Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for Appellant.

Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: COLE, Chief Judge; MERRITT, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.

OPINION

ALICE M. BATCHELDER, CIRCUIT JUDGE

Federal law imposes longer prison sentences on certain violent career criminals. As relevant here, both the Armed Career Criminal Act ("ACCA") and the United States Sentencing Guidelines ("Guidelines") impose longer prison sentences on certain defendants who have a criminal record containing multiple previous violent felonies. See 18 U.S.C. § 924(e)(1), (e)(2)(B); USSG §§ 4B1.1, 4B1.2(a)(1). And both contain an identical so-called "elements clause" describing certain eligible violent-felony predicates: felonies that "ha[ve] 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); USSG § 4B1.2(a)(1).

The question in this case is whether convictions of Ohio felonious assault and Ohio aggravated assault qualify as violent-felony predicates under the ACCA and Guidelines elements clauses. In 2012, a panel of this court held that both Ohio felonious assault and Ohio aggravated assault qualify as violent-felony predicates under the ACCA elements clause. See United States v. Anderson, 695 F.3d 390, 399-402 (6th Cir. 2012). That conclusion was disputed then, see id. at 406 (White, J., concurring), and has been disputed since, see, e.g., Williams v. United States, 875 F.3d 803, 809 (6th Cir. 2017), reh'g en banc granted, vacated by, 882 F.3d 1169 (6th Cir. 2018) (Moore, J., concurring) ("we ought to reconsider Anderson en banc"); id. at 810 (Merritt, J., dissenting) ("the Anderson court did not follow the analytical procedure or reasoning process now established by the Supreme Court"). Still, subsequent panels of this court have considered themselves bound by Anderson. See id. at 805 (majority opinion). Among those was the panel in this case, which held that Ohio felonious assault qualifies as a violent-felony predicate under the Guidelines elements clause. See United States v. Burris, No. 16-3855, 2017 WL 6368852, at *2 (6th Cir. Dec. 13, 2017), reh'g en banc granted, vacated by, Order (6th Cir. Feb. 26, 2018) (No. 16-3855); accord United States v. Hibbit, 514 Fed.Appx. 594, 597 (6th Cir. 2013).

We granted en banc review to examine whether Anderson still binds this court. We first conclude that Ohio felonious assault and Ohio aggravated assault are too broad to always (or categorically) qualify as violent-felony predicates-they each criminalize more conduct than is described in the ACCA and Guidelines elements clauses. We next conclude that both Ohio's felonious-assault and aggravated-assault statutes are divisible-they each set out two separate crimes, one of which qualifies as a violent-felony predicate under the ACCA and the Guidelines and the other which does not. Because the Anderson court did not conduct an overbreadth analysis, and because subsequent Supreme Court precedent requires a divisibility analysis that Anderson lacks, we conclude that Anderson no longer binds this court. Still, based on the facts in this case and the applicable standard of review, we conclude that Burris is not eligible for relief. We AFFIRM the judgment of the district court.

I.

Le'Ardrus Burris was charged with one count of conspiracy to possess with the intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B) and (b)(1)(C), 846; one count of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and two counts of using a communication facility to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b) and (d)(1). A jury found Burris guilty on all counts.

Burris had a criminal record containing two previous Ohio felony convictions: a 2005 conviction for complicity in trafficking in drugs, in violation of Ohio Revised Code §§ 2923.02, 2925.03; and a 2007 conviction for felonious assault, in violation of Ohio Revised Code § 2903.11(A)(2). See Burris, 2017 WL 6368852, at *1, 2. The district court relied on these felonies to sentence Burris as a career offender under the Guidelines. Id. at *1; see USSG §§ 4B1.1, 4B1.2(a)(1). Burris objected to the career-offender classification, arguing that it overstated his actual criminal history, but Burris did not argue that his Ohio felonies were not violent-felony predicates under the Guidelines. See Burris, 2017 WL 6368852, at *1. The district court ultimately granted Burris a significant downward variance from the applicable 210-to-262-month Guidelines range, sentencing him to 90 months' imprisonment. See id.

On appeal, Burris argued that neither of his Ohio felonies qualified as violent-felony predicates under the Guidelines. See id. at *1-2. The panel rejected both arguments. See id. In rejecting Burris's argument regarding his Ohio felonious-assault conviction, the panel relied on Anderson and another recent Sixth Circuit case, Williams, 875 F.3d at 805-06. See Burris, 2017 WL 6368852, at *2 ("Anderson and Williams are binding precedent that resolve this issue."). We subsequently granted en banc review in Williams and in this case.

II.

This area of federal sentencing law is complicated. Members of the Supreme Court have described aspects of it as a "time-consuming legal tangle," Mathis v. United States, 136 S.Ct. 2243, 2264 (2016) (Breyer, J., dissenting), and as a "mess," id. at 2269 (Alito, J., dissenting). Before turning to the merits of Burris's arguments, therefore, we begin by describing (1) the operation of the ACCA and the Guidelines, (2) Ohio's felonious assault and aggravated assault statutes, and (3) our cases interpreting those statutes in the ACCA and Guidelines context.

A.

The ACCA imposes a fifteen-year mandatory-minimum prison sentence on persons who violate 18 U.S.C. § 922(g), the federal felon-in-possession-of-a-firearm statute, and who have three previous state or federal convictions for "violent felon[ies] or serious drug offense[s]." See 18 U.S.C. § 924(e)(1). A "violent felony" is a felony that, as relevant here, "has as an element the use, attempted use, or threatened use of physical force1 against the person of another." Id. § 924(e)(2)(B)(i). This clause is commonly called the ACCA "elements clause." See, e.g., United States v. Patterson, 853 F.3d 298, 302 (6th Cir. 2017). Similarly, the Guidelines advise enhanced sentences for "career offenders," adults who commit a "felony that is either a crime of violence or a controlled substance offense" and who have "at least two prior felony convictions of either a crime or violence or a controlled substance." See USSG § 4B1.1(a). A "crime of violence" is a felony that, as relevant here, "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 4B1.2(a)(1). This clause is commonly called the Guidelines "elements clause." See, e.g., United States v. Harris, 853 F.3d 318, 320 (6th Cir. 2017). Because the text of the ACCA and Guidelines elements clauses are identical, we typically interpret both elements clauses "the same way." See id.

Since 1990, the Supreme Court has instructed federal sentencing courts to use the "categorical approach" to determine whether a defendant's previous state or federal felony convictions "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another." See Descamps v. United States, 570 U.S. 254, 260-61 (2013) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)) ("Taylor adopted a 'formal categorical approach'" in the ACCA context); see also United States v. Ford, 560 F.3d 420, 421-22 (6th Cir. 2009) (citing Taylor, 495 U.S. at 602) ("we apply a 'categorical' approach" in the Guidelines context). The categorical approach prohibits federal sentencing courts from looking at the particular facts of the defendant's previous state or federal felony convictions; rather...

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