United States v. Butts

• Decision Date: 26 July 2022
• Docket Number: 21-3783
• Citation: 40 F.4th 766
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David BUTTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

40 F.4th 766

UNITED STATES of America, Plaintiff-Appellee,

v.David BUTTS, Defendant-Appellant.

No. 21-3783

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 26, 2022

ON BRIEF: Vanessa Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: GUY, MOORE, and CLAY, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

David Butts appeals the sentence imposed for his federal drug-trafficking and firearm offenses. During Butts's sentencing hearing, the district court found that one of Butts's prior Ohio robbery offenses was a predicate offense warranting a career-offender enhancement under the U.S. Sentencing Guidelines. On appeal, Butts and the government contend that this was error. We agree and hold that Butts's Ohio Revised Code § 2911.02(A)(2) robbery conviction predicated on a § 2913.02 theft offense does not constitute a crime of violence under the "elements clause" of § 4B1.2(a) of the Guidelines.¹ However, because the procedural error in calculating the Guidelines range did not affect the district court's selection of the sentence, we AFFIRM the district court's judgment.

I. BACKGROUND

Butts pleaded guilty to possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and two firearm-possession offenses. R. 42 (Plea Agreement ¶ 2, 10) (Page ID #334, 336). In the plea agreement, Butts did not stipulate to any sentencing range or computation of criminal history, deferring the calculation of his sentence to the district court's discretion under the Guidelines. Id. ¶ 11, 13 (Page ID #336–37). The Presentence Investigation Report submitted to the district court before sentencing indicated that Butts had two prior convictions that rendered him a "career offender" as defined by the Guidelines: one Ohio drug-trafficking conviction and, relevant to this appeal, a robbery conviction under Ohio Revised Code § 2911.02(A)(2).² R. 50 (PSR ¶ 29, 36, 39) (Page ID #428–30); R. 64 (Sentencing Hr'g Tr. at 4) (Page ID #492). Butts's designation as a career offender potentially subjected him to a higher base-offense level under § 4B1.1(b)(2) of the Guidelines.

During Butts's sentencing hearing, Butts objected to the designation of his Ohio Revised Code § 2911.02(A)(2) robbery conviction as a predicate offense warranting a sentence enhancement. R. 64 (Sentencing Hr'g Tr. at 4) (Page ID #492). Butts argued that the U.S. Supreme Court's opinion in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 1821–22, 210 L.Ed.2d 63 (2021), precludes the enhancement. R. 64 (Sentencing Hr'g Tr. at 4–5) (Page ID #492–93). Borden held that offenses that require only a reckless state of mind cannot serve as violent-felony predicates under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), and Butts argued that his robbery offense did not require proof of any state of mind when using force under Ohio law. Id. The government disagreed, interpreting Ohio law to require that a defendant act with at least a knowing state of mind in committing a robbery offense. Id. at 5–6 (Page ID #493–94). The district court adopted the government's position and found that Butts's § 2911.02(A)(2) conviction was a crime of violence warranting an enhancement. Id. at 6 (Page ID #494). After increasing Butts's offense level pursuant to the career-offender enhancement, subtracting three levels for acceptance of responsibility, and weighing the relevant sentencing factors, the district court varied downward from the applicable Guidelines range to impose concurrent 60-month sentences on counts 1 and 2, the violations of 21 U.S.C. § 841(a)(1) and (b)(1)(B), to be followed by the mandatory consecutive 60-month sentence on count 3, the violation of 18 U.S.C. § 924(c)(1)(A). Id. at 7–8, 11–12 (Page ID #495–96, 499–500). The district court found that a sentence of "120 months is a significant sentence in this case." Id . at 12 (Page ID #500). Butts timely appealed.

II. ANALYSIS

A. Career-Offender Enhancement

Under § 4B1.1 of the U.S. Sentencing Guidelines, a career offender—a person at least eighteen years old who has committed a crime of violence or a controlled-substance offense and "has at least two prior felony convictions of either a crime of violence or a controlled substance offense,"—receives an enhanced sentence. Section 4B1.2(a) of the Guidelines defines a "crime of violence" in two parts: the so-called "elements clause," which defines a crime of violence as an offense that "has an element the use, attempted use, or threatened use of physical force against the person of another," and the so-called "enumerated-offenses clause," which lists various generic offenses. Butts pleaded guilty to committing a controlled-substance offense when he was over eighteen, so he meets the threshold requirements of a career-offender enhancement. Butts also does not contest that he has been convicted of a controlled-substance offense that would qualify for the career-offender enhancement. R. 50 (PSR ¶ 29, 39) (Page ID #428, 430).

At issue in this case is whether Butts's robbery conviction under Ohio Revised Code § 2911.02(A)(2) constitutes a crime of violence under § 4B1.2(a)’s elements clause after Borden .³ Butts argues that it does not. On appeal, the government changes course and concedes that point. "We are not bound to accept," however, "what in effect was a stipulation on a question of law." United States v. Wilson , 978 F.3d 990, 996 (6th Cir. 2020) (quoting U.S. Nat'l Bank of Or. v. Ind. Ins. Agents of Am. Inc. , 508 U.S. 439, 448, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) ). In interpreting statutory language, we cannot delegate our authority to the parties, especially "given the widespread and serious effect that a decision" interpreting the Guidelines may have. See id. at 997. We therefore undertake our own analysis in resolving this question.

Under the now-familiar categorical approach, we look to the elements of a defendant's prior offenses, rather than the facts supporting the defendant's convictions, to determine whether an offense is a crime of violence under the Guidelines’ elements clause. United States v. Camp , 903 F.3d 594, 599 (6th Cir. 2018). We assume that the defendant was convicted based on the least culpable conduct criminalized under the predicate offense and then ask whether that conduct would satisfy the Guidelines’ definition of "crime of violence." United States v. Yates , 866 F.3d 723, 728 (6th Cir. 2017). We review de novo a district court's determination that a crime constitutes a crime of violence under the Guidelines. United States v. Cooper , 739 F.3d 873, 877 (6th Cir. 2014).

In Borden , the Court interpreted the definition of a "violent felony" under ACCA's elements clause, 18 U.S.C. § 924(e)(2)(B)(i), which conforms to § 4B1.2(a)’s elements clause in all relevant respects. 141 S. Ct. at 1821–22. The Court observed that the phrase "against another ... demands that the perpetrator direct his action at, or target, another individual," and concluded that a violent felony predicate offense must criminalize the use of force committed with a mental state that is at least purposeful or knowing. Id. at 1825–28. In other words, an offense that forbids the use, attempted use, or threatened use of force committed recklessly (or with a less culpable state of mind) cannot be a violent felony under ACCA. Id. at 1825. Because authority that interprets ACCA's elements clause guides our analysis of what constitutes a "crime of violence" pursuant to § 4B1.2(a), see United States v. Patterson, 853 F.3d 298, 305 (6th Cir. 2017), an offense requiring a reckless state of mind cannot be a crime of violence under § 4B1.2(a) either.

With Borden as a backdrop, we turn to Ohio law. At the time of Butts's conviction, Ohio Revised Code § 2911.02(A) provided that:

(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the offender's control;

(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

(3) Use or threaten the immediate use of force against another.

We assume that, like Ohio's felonious assault statutes, Ohio's robbery statute is divisible, meaning that the statute defines multiple crimes by alternatively listing elements. See Wilson , 978 F.3d at 993 ; United States v. Johnson , 933 F.3d 540, 543–44 (6th Cir. 2019). Here, there is no dispute that Butts's prior conviction was under (A)(2), which on its face does not indicate the state of mind a defendant must have to inflict, attempt to inflict, or threaten to inflict physical harm.

The Ohio Supreme Court has given this omission maximum effect in State v. Tolliver , 140 Ohio St.3d 420, 19 N.E.3d 870, 875 (2014). Because "[§] 2911.02(A) predicates every robbery on the elements of a completed or an attempted ‘theft offense,’ " the court held that the mens rea for the underlying theft offense specifies the mens rea that the state must prove to convict a person of robbery. Id. at 874. But that does not mean that Ohio imputes the mens rea for the theft offense to any of § 2911.02 ’s subdivisions. Quite the opposite; Tolliver held that the state does not need to prove a mens rea for § 2911.02(A)(3) ’s force element at all.

Id. at 874–75.⁴ Although Tolliver analyzed convictions under § (A)(3) rather than § (A)(2) of § 2911.02, it made clear that its reasoning applies equally to all of § 2911.02 ’s subdivisions. Id. Under that reasoning, if a defendant inflicts physical harm while committing a theft in Ohio, the defendant commits robbery, even if the harm was inflicted without a mens rea.

Without a state of mind linked to the physical injury element of a § 2911.02(A)(2) conviction, we must ask whether a theft offense underlying the conviction necessarily involved...