United States v. Darrell Moore

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 28, 2019
• Docket: 16-4155
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 19a0096n.06

Nos. 16-4103/4115

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 28, 2019 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellant/Cross-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE DARRELL D. MOORE, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellee/Cross-Appellant. ) )

BEFORE: BATCHELDER, GILMAN, and ROGERS, Circuit Judges

ROGERS, Circuit Judge. Darrell Moore pleaded guilty to one count of felon in possession

of a firearm, 18 U.S.C. § 922(g)(1). When a § 922(g) violator has at least three violent felonies

on his criminal record, he may be sentenced as an armed career criminal—a designation that

triggers a steep fifteen-year mandatory minimum sentence, § 924(e)(1). Moore had three prior

Ohio convictions—for robbery, aggravated robbery, and aggravated assault—which the

Government contends are predicate violent felonies. But Moore was not sentenced as an armed

career criminal, because the district court held that only one of those convictions (Ohio aggravated

assault) is a violent felony under the Armed Career Criminal Act.

Subsequent decisions by this court have brought into question the district court’s ACCA

holdings. First, this court in United States v. Patterson held that Ohio aggravated robbery is

categorically a violent felony under the ACCA. 853 F.3d 298, 302–03 (6th Cir. 2017). Second,

this court in United States v. Burris held that Ohio aggravated assault is divisible into two variants, Nos. 16-4103/4115, United States v. Moore

Ohio Rev. Code § 2903.12(A)(1) and (A)(2), and that a conviction under § 2903.12(A)(2) remains

an ACCA predicate. 912 F.3d 386, 405 (6th Cir. 2019); id. at 410 (Rogers, J., concurring in part

and in the judgment); id. at 410–11 (Kethledge, J., concurring in the judgment). It is unclear on

this record which variant Moore was convicted of, and a look at the so-called Shepard documents

is required. Third, the district court held that Ohio robbery under Ohio Rev. Code § 2911.02(A)(2)

does not qualify under the ACCA because it requires a mens rea of only recklessness. But in doing

so, the court relied on yet another since-reversed precedent. Following the Supreme Court’s

decision in Voisine v. United States, 136 S. Ct. 2272 (2016), this court has held that recklessness

may suffice under the elements clause of the Armed Career Criminal Act. See United States v.

Verwiebe, 874 F.3d 258, 252 (6th Cir. 2017).

In light of these developments with respect to each of Moore’s three possible predicate

offenses, we vacate Moore’s sentence and remand for resentencing consistent with these changes

in the law.

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