United States v. Le' Ardrus Burris

912 F.3d 386
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 3, 2019
Docket16-3855
StatusPublished
Cited by117 cases

This text of 912 F.3d 386 (United States v. Le' Ardrus Burris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Le' Ardrus Burris, 912 F.3d 386 (6th Cir. 2019).

Opinions

ALICE M. BATCHELDER, Circuit Judge.

*390Federal 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 F. App'x 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 *391broad 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

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912 F.3d 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-le-ardrus-burris-ca6-2019.