United States v. White
| Decision Date | 31 January 2023 |
| Docket Number | 21-3209 |
| Citation | 58 F.4th 889 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jamael WHITE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Wendy R. Calaway, THE LAW OFFICE OF WENDY R. CALAWAY, CO., L.P.A., Cincinnati, Ohio, for Appellant. Mary Beth Young, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Wendy R. Calaway, THE LAW OFFICE OF WENDY R. CALAWAY, CO., L.P.A., Cincinnati, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.
Before: MOORE, WHITE, and BUSH, Circuit Judges.
Defendant-Appellant Jamael White challenges his designation as an armed career criminal, arguing that his Ohio aggravated robbery convictions do not qualify as predicate offenses under the Armed Career Criminal Act (ACCA) because the Ohio offense can be committed with a mens rea less than purposeful or knowing conduct. He also argues that his juvenile adjudication for aggravated robbery cannot serve as an ACCA predicate offense because the government failed to prove the subsection of the statute under which he was adjudicated, and not all subsections delineate violent felonies. Additionally, White challenges the constitutionality of using juvenile adjudications to enhance sentences under the ACCA. Finally, White argues that, to the extent his objections were not adequately preserved, his trial counsel provided constitutionally deficient counsel. For the reasons set forth below, we VACATE White's sentence and REMAND for resentencing consistent with this opinion.
On December 7, 2019, police officers in Cincinnati, Ohio, responded to a "shots fired" call in the Over-the-Rhine neighborhood. They recovered approximately eight shell casings and interviewed witnesses. One witness had recorded the incident on video and provided it to the officers, who suspected that White had pointed a gun at a person in the video. Police interviewed that person, who said that he knew White and that White had pointed a gun at his face and demanded his personal property.
Three days later, while surveilling the address White had provided to his parole officer, police observed White leave the house and enter a vehicle being driven by someone else. Police performed a traffic stop on the vehicle and found the driver in possession of a firearm, for which he was later charged. They also found a .40 caliber Hi-Point JCP firearm loaded with nine rounds of ammunition under the seat where White was seated. White later admitted that the Hi-Point firearm belonged to him.
A grand jury returned a one-count indictment charging White with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. White pleaded guilty pursuant to a written plea agreement in which he agreed that he had "at least two convictions for crimes of violence" under the U.S. Sentencing Guidelines, U.S.S.G. § 2K2.1. R.26, PID 48. The parties noted, however, that they "do not agree on the applicability of 18 U.S.C. § 924(e)," the ACCA's fifteen-year mandatory-minimum sentence for armed career criminals, "and are free to argue their respective positions at sentencing." Id. White waived his right to appeal his conviction and sentence, except to the extent his sentence exceeded the statutory maximum.1 The plea agreement's waiver provision did not, however, bar White from pursuing claims of ineffective assistance of counsel or prosecutorial misconduct.
The Probation Office recommended that the district court find White to be an armed career criminal under 18 U.S.C. § 924(e) based on his having three prior convictions for violent felonies that were committed on different occasions. The final presentence investigation report (PSR) noted that White was adjudicated guilty of aggravated robbery in violation of Ohio Rev. Code § 2911.01,2 with accompanying specifications for firearm possession and firearm facilitation, in Hamilton County Juvenile Court on August 11, 2005, based on an offense date of June 27, 2005. The PSR also noted that on June 9, 2009, White pleaded guilty and was convicted of six counts of aggravated robbery, in violation of Ohio Rev. Code § 2911.01(A)(1), with specifications for having a firearm on or about his person while committing the offenses, and for possessing, displaying, brandishing, or using a firearm to facilitate the offenses. The PSR noted that the conduct underlying the first four aggravated robberies occurred on March 19, 2009, and the conduct underlying the last two counts occurred on March 22, 2009. "As the offenses occurred on different occasions," the PSR stated, these offenses constituted White's second and third violent felony offenses, respectively. R.33, 97.
The Probation Office calculated an initial Guidelines imprisonment range of 135 months to 168 months, based on a total offense level of 30, which included a three-point reduction for acceptance of responsibility, and a criminal-history category of IV. However, based on its conclusion that White was an armed career criminal, the Probation Office revised his Guidelines imprisonment range to 180 months, with a statutory maximum of life pursuant to 18 U.S.C. § 924(e)(1). White objected to various portions of the PSR. As relevant here, White disagreed that "the provisions of 18 U.S.C. 924(e) apply to this situation," noting that he had reserved his right to argue the inapplicability of the ACCA in the plea agreement. Id. , PID 113. White also objected to the paragraph of the PSR describing his juvenile adjudication "for the same reasons as set forth above" and because "the Court is limited in the matters to documents which it can review to determine the application of prior convictions." Id. White further objected to the "description of the underlying events" related to the June 2009 aggravated robbery convictions, arguing that they should "count as only one event" and that he had pleaded guilty out of "convenience." Id. , PID 114.
The parties filed sentencing memoranda. The government asked the district court to classify White as an armed career criminal, noting that White had "been convicted of seven total armed robberies, the sum of which took place on three separate days and account for three separate incidents of ‘violent felonies.’ " R.35, PID 127. It emphasized that White's "convictions for aggravated robbery under 2911.01(A)(1) with firearm specifications on March 19 and March 22, 2009[,] qualify as two offenses committed on two occasions for ACCA purposes." Id. The government also argued that the Probation Office correctly determined that White's 2005 juvenile adjudication qualified as a violent felony under the ACCA. The government acknowledged that the sentencing entry for White's juvenile adjudication listed only Ohio Rev. Code § 2911.01, without any specific subsection, as well as two firearm specifications. It asserted, however, that the "conviction documents indicate that [White]’s conviction falls under [Ohio Rev. Code] § 2911.01(A)(1) and ... [White] had a deadly weapon under his control and brandished it." Id. , PID 129. The government noted that a conviction under § 2911.01(A)(1) requires the use of a "deadly weapon," and that the two specifications accompanying White's juvenile adjudication indicated that he had used a firearm in committing the offense. These specifications, in turn, meant that White's juvenile adjudication qualified as a violent felony under the ACCA because his offense "involv[ed] the use or carrying of a firearm, knife, or destructive device." 18 U.S.C. § 924(e)(2)(B).
In his sentencing memorandum, White asserted that "he was righteously convicted of the activities of March 22, 2009; however, the events of March 19, 2009 were not his doing," R.36, PID 134, and that he pleaded guilty because of "the significant penalties he was facing, and the fact that the plea agreement called for concurrent sentences," id. , PID 135. He also argued that his aggravated-robbery convictions relating to the events on March 19 and March 22, 2009, related to a single occasion because there was no intervening arrest, the offenses were charged in a single document, and the sentences were imposed on the same day. White further argued that, although permissible under federal law, the use of juvenile adjudications to enhance sentences under the ACCA was "inherently unfair" due to the different burdens of proof and procedural standards under Ohio juvenile law and Ohio criminal law, and the different goals of the two systems. Id. , PID 136. White pressed the same arguments at sentencing.
The district court overruled White's objections and found him to be an armed career criminal. Based on White's career-offender status, a total offense level of 30, and a criminal-history category of IV, the district court sentenced White to 180 months’ imprisonment followed by five years of supervised release. White timely appealed.
White first argues that his Ohio aggravated robbery convictions do not qualify as violent felonies because the physical-force element of the offense can be committed with a mens rea less than purposeful or knowing conduct, in violation of Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 1825, 210 L.Ed.2d 63 (2021). We generally review de novo a determination that a conviction qualifies as a "violent felony" under the ACCA. United States v. Hockenberry , 730 F.3d 645, 663 (6th Cir. 2013). But when the defendant fails to object at sentencing to the district court's application of the ACCA, we review for plain error. See United States v. Farrad , 895 F.3d 859, 886 (6th Cir. 2018). To prevail under the plain-error standard, a defendant must establish "(1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Southers , 866 F.3d 364, 366 (6th Cir. 2017) (quoting Johnson v. United States , 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d...
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