United States v. Burris
| Decision Date | 13 December 2017 |
| Docket Number | No. 16-3855,16-3855 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LE'ARDRUS BURRIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ROGERS, J., delivered the opinion of the court in which MERRITT and MOORE, JJ., joined. MERRITT, J. (p. 7), delivered a separate concurring opinion in which MOORE, J., joined.
ROGERS, Circuit Judge. This case presents the question of whether the district court properly treated defendant Burris's prior Ohio conviction for complicity to traffic drugs as a "controlled substance offense" for purposes of applying the Career Offender guideline, U.S.S.G § 4B1.2(b), to Burris's sentence below for conspiring to possess with intent to distribute and to distribute heroin. The Ohio complicity statute sets forth four different ways in which a defendant may be convicted of complicity: solicitation, aiding and abetting, conspiracy, and causing an innocent person to commit the offense. Ohio Rev. Code § 2923.03. Burris argues that the elements of solicitation in connection with drug trafficking do not meet the Career Offender definition of a "controlled substance offense," such that conviction under the complicity statute as a whole is categorically excluded from serving as a predicate for Career Offender status. That argument fails, however, because conviction for complicity to drug trafficking requires that the State prove all the elements of the underlying substantive drug trafficking offense, Ohio Rev. Code § 2925.03, which has been found to categorially qualify as a Guidelines controlled substance offense. Burris's other arguments on appeal are without merit.
Following a jury trial, Burris was convicted of four counts, including conspiring to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846. At sentencing, the district court held that Burris was a career offender, and therefore subject to a higher Sentencing Guidelines offense level, based upon Burris's prior Ohio convictions for complicity to drug trafficking in 2005 and felonious assault in 2007. Burris acknowledged the two earlier convictions, but he objected to the career offender classification because, according to Burris, it overstated his actual criminal history. He did not, however, argue that his prior convictions were not career-offender predicate offenses. After weighing all relevant circumstances, the court varied downward from the advisory Guidelines range of 210 to 262 months, and imposed a 90-month term of incarceration on the first two counts of the indictment, a concurrent 12-month term of incarceration on the remaining two counts, followed by a three-year term of supervised release and a $400 special assessment.
Burris's contention that his prior Ohio conviction for complicity to drug trafficking does not qualify as a controlled substance offense fails because each alternative enumerated in Ohio Rev. Code § 2923.03 satisfies the Guideline definition of a controlled substance offense. In Ohio, to be convicted of complicity to drug trafficking under Ohio Rev. Code § 2923.03, the State must prove the elements of the underlying Ohio drug trafficking statute, Ohio Rev. Code § 2925.03(A)(1). Indeed, the statute makes clear that it is not a crime itself to be complicit, asone is only complicit in the commission of an underlying substantive offense. As the Ohio Supreme Court has stated, "in order to convict an offender of complicity, the state need not establish the principal's identity . . . the state need only prove that a principal committed the offense." State v. Perryman, 358 N.E.2d 1040, 1048-49 (Ohio 1976), judgment vacated on other grounds, 438 U.S. 911 (1978); see also State v. Coleman, 525 N.E.2d 792, 796 (Ohio 1988). Indeed, the 1973 Ohio Legislative Service Commission Comment to § 2923.03 makes clear that "[a]n offense must actually be committed . . . before a person may be convicted as an accomplice." Section 2923.03 describes four alternatives for violating a substantive criminal statute beyond acting as a principal offender, and Burris's conviction for complicity required proof that the elements of the drug trafficking statute as well as one or more of § 2923.03's alternatives were violated. Because Ohio's drug trafficking statute has been found to "categorically qualif[y] as a controlled substance offense" under the Guidelines, United States v. Evans, 699 F.3d 858, 868 (6th Cir. 2012), complicity to drug trafficking also qualifies as a controlled substance offense.
The Sixth Circuit employed similar reasoning in United States v. Gloss to find that a conviction under Tennessee law for facilitation of aggravated robbery constituted a conviction of a violent felony, for purposes of sentencing under the Armed Career Criminal Act ("ACCA"). 661 F.3d 317 (6th Cir. 2011). The court in Gloss reasoned that "[i]f a conviction for facilitation or conspiracy requires the government to prove the elements of the underlying violent felony, such a conviction will itself qualify as a violent felony under the first clause of [18 U.S.C.] § 924(e)(2)(B)." Id. at 319. Thus, Burris's argument that soliciting the distribution of drugs may include activity that is not a controlled substance offense is without merit. Whether a defendant solicits the principal, aids or abets the principal, conspires with the principal, or causes aninnocent person to engage in drug trafficking, the State is still required to prove the elements of the underlying substantive offense, which categorically qualifies as a controlled substance offense, see Evans, 699 F.3d at 868. Therefore, § 2923.03 also categorically qualifies as a controlled substance offense under U.S.S.G. § 4B1.2(b). See Gloss, 611 F.3d at 319.
Burris's citation of United States v. Dolt, 27 F.3d 235 (6th Cir. 1994), which interpreted Florida's drug solicitation statute, does not weaken this analysis because Ohio's complicity statute is meaningfully different. Unlike Ohio Rev. Code § 2923.03, "the Florida solicitation statute does not require completion or commission of the offense." Id. at 238. Florida's solicitation statute could not categorically qualify as a controlled substance offense under our reasoning in Gloss because the substantive offense need not be proven in Florida, but Dolt does not stand for the proposition that any statute that punishes solicitation cannot qualify as a controlled substance offense. Thus, because § 2923.03 requires that the substantive offense be committed or attempted before a person can be found complicit under any of the complicity alternatives, including solicitation, Dolt is not applicable.
In his substitute brief, Burris additionally argues on appeal that Ohio's felonious assault statute, Ohio Rev. Code § 2903.11, is not a predicate violent felony offense under the Sentencing Guidelines, but that argument is in direct contradiction with binding circuit precedent. In United States v. Anderson, 695 F.3d 390, 400, 402 (6th Cir. 2012), this court held that committing felonious assault in Ohio necessarily requires the use of physical force and is therefore a predicate "violent felony" under the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Indeed, Anderson held that both subsections (1) and (2) of Ohio Rev. Code §§ 2903.11(A) constitute a crime that "has as an element the use, attempted use, or threatened use of physical force against another," and, thus, an ACCA force-clause predicate offense. 695 F.3d at 400, 402. The pertinent provision ofthe Guidelines is identical to the ACCA's force clause. Compare U.S.S.G. § 4B1.2(a)(1), with 18 U.S.C. § 924(e)(2)(B)(i). Anderson was recently followed in Williams v. United States, 875 F.3d 803, 805-07 (6th Cir. 2017). Thus, Anderson and Williams are binding precedent that resolve this issue.
Finally, notwithstanding Burris's remaining argument, there was sufficient evidence to support Burris's conviction for conspiring to possess with intent to distribute heroin.
Drug Enforcement Administration special agent Daniel Wehrmeyer testified that when Emery Lee, a major heroin dealer in the area, ran into supply issues with his source in ...
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