RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0460p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-4238
v.
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WILLIAM SANDERS, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Northern District of Ohio.
No. 03-00154—James Gwin, District Judge.
Argued: October 27, 2006
Decided and Filed: December 15, 2006
Before: KEITH and McKEAGUE, Circuit Judges; CLELAND, District Judge.*
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COUNSEL
ARGUED: Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant. Michael
L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
ON BRIEF: Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant. Michael
L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
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OPINION
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CLELAND, District Judge. On remand for resentencing after United States v. Booker, 543
U.S. 220 (2005), the district court held that Defendant-Appellant William Sanders was subject to
the sentencing provisions of the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e), and
sentenced him to a term of imprisonment of 180 months to be followed by three years of supervised
release. Sanders now challenges two of the predicate violent felonies on which the district court
based its sentencing. For the reasons stated below, we affirm.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
No. 05-4238 United States v. Sanders Page 2
I.
On November 25, 2003, a jury convicted Sanders of being a felon in possession of
ammunition in violation of 18 U.S.C. § 922(g)(1). The district court found that Sanders was subject
to the sentencing provisions of the ACCA and sentenced him to a term of imprisonment of 188
months to be followed by three years of supervised release. Sanders appealed and this court upheld
his conviction but remanded for resentencing in light of United States v. Booker, 543 U.S. 220
(2005), Shepard v. United States, 544 U.S. 13 (2005) and Taylor v. United States, 495 U.S. 575
(1990). United States v. Sanders, 404 F.3d 980 (6th Cir. 2005).
On remand, the district court conducted two resentencing hearings, and again found Sanders
subject to the ACCA because he had committed three violent felonies. The first violent felony was
Sanders’s February 2, 1981 robbery conviction in Mahoning County Common Pleas Court, case
number 80CR421. The second violent felony1 was Sanders’s 1981 robbery conviction in Trumbull
County, case numbers 81CR11 and 81CR12. For Sanders’s third violent felony, the district court
found that Sanders had been convicted of two counts of aggravated robbery in 1984 in Trumbull
County, case number 83CR359.
After concluding that these three offenses qualified as violent felonies under the ACCA, the
district court resentenced Sanders to a term of imprisonment of 180 months to be followed by three
years of supervised release. Sanders timely appealed, raising challenges to the first and third
predicate violent felonies. He argues (1) that the district court erred in finding the third violent
felony because Ohio’s aggravated robbery crime does not constitute a violent felony under the
ACCA and (2) that the documents on which the district court based its finding that Sanders had been
convicted of the first violent felony were inherently unreliable.
II.
Sanders challenges whether the district court correctly concluded that aggravated robbery
under Ohio law constitutes a predicate violent felony under the ACCA and whether the district court
properly relied on state court documents in determining that Sanders was convicted of robbery.
Both of these challenges rely on the United States Supreme Court’s interpretation of the ACCA
which we review de novo. United States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994); United
States v. Brady, 988 F.2d 664, 666 (6th Cir. 1993). Factual conclusions, such as determining what
offense Sanders was convicted of in case number 80CR421, are reviewed under a clearly erroneous
standard. United States v. Graves, 60 F.3d 1183, 1185 (6th Cir. 1995) (citations omitted); United
States v. Beasley, 442 F.3d 386, 394 (6th Cir. 2006).
III.
The ACCA mandates a term of imprisonment of fifteen years for persons who are convicted
under 18 U.S.C § 922(g), and who have three previous convictions for “a violent felony or a serious
drug offense, or both.” 18 U.S.C § 924(e)(1). “[V]iolent felony” is defined as “any crime
punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use,
attempted use, or threatened use of physical force against the person of another; or . . . is burglary,
arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
In Taylor, the United States Supreme Court held that “burglary” under the ACCA
encompasses “generic” burglary and means “any crime, regardless of its exact definition or label,
1
Initially, the district court found that these two convictions should constitute separate violent felonies, but it
subsequently consolidated them for purposes of the ACCA.
No. 05-4238 United States v. Sanders Page 3
having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” Taylor, 495 U.S. at 599. Relevant to the instant case, the
Taylor Court further held that in determining whether an offense constitutes “burglary” for purposes
of § 924(e)’s sentence enhancement, the sentencing court could look to its statutory definition to
determine if it “substantially corresponds” to “generic” burglary, or the charging paper and jury
instructions to see if they “actually required the jury to find all the elements of generic burglary in
order to convict the defendant.” Id. at 602. The Court explained:
We think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest
of the enhancement statute, it generally requires the trial court to look only to the fact
of conviction and the statutory definition of the prior offense. This categorical
approach, however, may permit the sentencing court to go beyond the mere fact of
conviction in a narrow range of cases where a jury was actually required to find all
the elements of generic burglary.
Id. (footnote omitted).
The Court subsequently instructed that in reviewing admitted burglaries (i.e., pleas) a
sentencing court could not “look to police reports or complaint applications to determine whether
an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary.”
Shepard, 544 U.S. at 16. The Court held that “a later court determining the character of an admitted
burglary is generally limited to examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which
the defendant assented.” Id. The Court also confirmed that Taylor’s “categorical approach” applied
in all predicate ACCA offenses, not just burglaries. Id. at 17, n.2.
Thus, under Taylor and Shepard, the sentencing court is restricted to applying the
“categorical approach,” and must look only to certain types of documents when determining whether
the underlying offense constitutes a violent felony under the ACCA.
In his first argument on appeal, Sanders contends that the district court erred by concluding
that aggravated robbery under Ohio law constitutes a predicate violent felony within the meaning
of the ACCA. Specifically, Sanders argues that the third violent felony which the district court
attributed to him, the 1984 aggravated robbery conviction in case number 83CR359, does not
constitute a violent felony. We disagree.
The jury verdict in 83CR359 indicates that Sanders was convicted of two counts of
aggravated robbery, one of which included a specification listed in the indictment. The “Entry on
Sentence” states that Sanders had been found guilty of a firearm specification. Sanders first argues
that the district court was not allowed to refer to the “Entry on Sentence” in determining the nature
of Sanders’s conviction, and without referring to the “Entry on Sentence,” it is impossible to know
the nature of the otherwise unspecified “specification.”
We reject this argument and find that the district court properly referred to the “Entry on
Sentence” in determining Sanders’s sentence. Sanders cites a Fifth Circuit case which held that a
sentencing court cannot rely upon abstracts of judgment under Taylor and Shepard. See United
States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005). In Gutierrez-Ramirez, the Fifth Circuit
agreed with the Ninth Circuit that the district court cannot rely solely on “shorthand abbreviations,”
prepared not by the court but by the clerk, to determine the nature of the conviction. Id. at 358. In
this case, however, the district court relied on the jury verdict, which expressly indicated a
specification, as well as the “Entry on Sentence” which gave further context to the jury verdict. In
reviewing the “Entry on Sentence,” it is clear that the document constitutes a final judgment,
reflecting the jury verdict and imposing the sentence, and is signed by the sentencing judge–rather
No. 05-4238 United States v. Sanders Page 4
than the clerk, as in Gutierrez-Ramirez. The district court was therefore entitled to review this
document when determining the nature of the conviction.2 Beasley, 442 F.3d at 393-394 (“Rather,
in making its determination, the district court expressly stated that it relied only on the state court
judgment and underlying indictment, materials that are explicitly within the scope of the ‘categorical
approach’ approved by the Supreme Court.”) (citations and footnote omitted).
Moreover, even if the district court was restricted to the jury verdict indicating only a
“specification,” the statutory definition of aggravated robbery is sufficient to support the3 conclusion
that the conviction constitutes a violent felony under the ACCA. The relevant statute provides:
No person, in attempting or committing a theft offense, as defined in section 2913.01
of the Revised Code, or in fleeing immediately after such attempt or offense, shall
do either of the following:
(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of
the Revised Code, on or about his person or under his control;
(2) Inflict, or attempt to inflict serious physical harm on another.
Ohio Rev. Code § 2911.01(A). Sanders admits that the second section of this statute “clearly
implicates 18 U.S.C. § 924(e)(2)(B)(i), because it explicitly involves ‘the use, attempted use, or
threatened use of physical force against the person of another.’” Sanders argues, however, that the
first section does not implicate the ACCA because it does not involve a crime that “has as an
element the use, attempted use, or threatened use of physical force against the person of another; or
. . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). We
disagree, and find that aggravated robbery under Ohio law “involves conduct that presents a serious
potential risk of physical injury to another.”4 Id.
Sanders correctly recognizes that the first section of aggravated robbery involves possession
of a deadly weapon or dangerous ordnance either (1) while attempting or committing a theft offense
or (2) in fleeing immediately after such attempt or offense. Sanders argues that aggravated robbery
2
Sanders cites to Sanders v. McMackin, 786 F.Supp. 672, 673 (N.D. Ohio 1992), in which his firearm
specification was vacated pursuant to an action under 28 U.S.C. § 2254. As the Government points out, Sanders was
given the opportunity to present this evidence below, but failed to do so. Nonetheless, even if Sanders has not waived
this issue, the invalidity of the firearm specification does not affect his aggravated robbery conviction. For reasons
discussed, infra, the aggravated robbery, even without a firearm specification, is a violent felony.
3
Sanders contends that, because the statute was amended in 1983, it is impossible to know under which version
of the statute he was convicted. Sanders does not point out any material changes between the two versions, and the
Government correctly cites an unpublished Ohio case, which held that “[a] new version of R.C. 2911.01 took effect on
January 5, 1983, the sole change from the old version being to change the offense from a felony of a first degree to an
aggravated felony of the first degree.” State v. Goodwin, No. 83AP-599, 1984 WL 6021, at *1 (Ohio Ct. App. Dec. 6,
1984).
4
Sanders also points out that various courts have made the unremarkable holding that the first section of Ohio
Rev. Code § 2911.01(A) does not involve the use or threatened use of force, as does the second section of § 2911.01(A).
Sanders mistakenly argues, however, that these holdings somehow mandate the conclusion that aggravated robbery is
not a violent felony under the ACCA. As stated above, and as acknowledged by Sanders, a violent felony under the
ACCA is defined as a crime that either “has as an element the use, attempted use, or threatened use of physical force
against the person of another; or . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphases added).
Thus, even if Ohio Rev. Code § 2911.01(A)(1) does not require the use or threatened use of force, it may still qualify
as a violent felony if it “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii).
No. 05-4238 United States v. Sanders Page 5
is therefore analogous to carrying a concealed weapon, which courts have found does not constitute
a predicate violent felony. See United States v. Johnson, 704 F. Supp. 1403, 1407 (E.D. Mich.
1989), (“[T]he ‘carrying a concealed weapon’ conviction cannot be classified as a “violent felony”
within the meaning of the statutory ACCA definition.”), aff’d per curiam, No. 89-1570, 1990 WL
47483 (6th Cir. Apr. 18, 1990); United States v. Whitfield, 907 F.2d 798, 800 (8th Cir. 1990)
(“Although carrying an illegal weapon may involve a continuing risk to others, the harm is not so
immediate as to present[ ] a serious potential risk of physical injury to another.”) (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii) and citing Johnson, 704 F. Supp. at 1407) (alteration in original).
Ohio’s aggravated robbery crime, however, is distinguishable from a carrying a concealed
weapon because the statute requires not only the possession of a deadly weapon or dangerous
ordnance, but also that the weapon or ordnance is possessed while committing or attempting to
commit a theft or while fleeing a theft. The combination of these two elements “involves conduct
that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
Indeed, it cannot be seriously argued that possessing a weapon or ordnance while committing or
attempting to commit a theft does not pose a serious potential risk of physical injury to the victim,
any bystanders and, possibly, the responding officer. Likewise, possessing a weapon or ordnance
while in flight presents a similar risk to anyone with whom the fleeing person may come into
contact.
While Sanders argues that possessing a weapon in flight does not necessarily present a risk
of injury, “necessarily” is not the relevant standard. Sanders attempts in vain to distinguish United
States v. Martin, 378 F.3d 578 (6th Cir. 2004), where this court found that fleeing and eluding under
Michigan law was a “crime of violence” for purposes of § 2K2.1(a)(4)(A). Although Martin
involved analysis of a different statutory provision, the Sixth Circuit employed the “categorical
approach” to determine that fleeing and eluding involved “conduct that presents a serious potential
risk of physical injury to another.” Id. at 582. Notably, the court stated:
That the Michigan fleeing-and-eluding statute may “be violated by conduct that is
passive, non-violent, and non-threatening,” does not demand a different conclusion.
The Guideline defines offenses presenting a “serious potential risk of physical
injury” as crimes of violence; it does not require that actual injury or violence occur
or even that the risk of injury materialize in a given case. To require crimes of
violence in all fact patterns to lead to a violent or harmful end not only would ignore
our categorical approach to this inquiry, but it also would read the “serious potential
risk of physical injury” language out of the Guideline.
Id. at 583 (internal citations omitted) (citing U.S.S.G. § 4B1.2(a)(2)). The ACCA does not require
certainty of injury, only that the predicate crime “involve[] conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). As in Martin, we
find that possessing a dangerous ordnance or deadly weapon while fleeing a 5theft, or while
committing or attempting to commit a theft, presents such a potential risk to others. We therefore
affirm the district court’s conclusion that aggravated robbery under Ohio law constitutes a violent
felony and uphold the district court’s calculation of Sanders’s third predicate violent felony.
5
We reject Sanders’s argument that there may be some limited circumstances when possessing a “dangerous
ordnance,” such as a firearm muffler, does not present a potential risk of injury in a non-confrontational theft offense,
thus precluding a finding that it is a violent felony under Ohio law. We instead find that Ohio’s aggravated robbery
“substantially corresponds” to the definition of violent felonies under the ACCA. Taylor, 495 U.S. at 602 (“[A]n offense
constitutes ‘burglary’ for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially
corresponds to ‘generic’ burglary, or the charging paper and jury instructions actually required the jury to find all the
elements of generic burglary in order to convict the defendant.”).
No. 05-4238 United States v. Sanders Page 6
IV.
In his second argument on appeal, Sanders argues that the district court improperly found
that he had been convicted of the first violent felony, the 1981 robbery conviction in Mahoning
County. During resentencing proceedings, the Government provided three documents to prove
Sanders’s conviction: (1) an indictment that charged Sanders with aggravated robbery in violation
of Ohio Rev. Code § 2911.01(A)(1); (2) a guilty plea stating that Sanders pleaded guilty to robbery
as defined under Ohio Rev. Code § 2911.02(A); and (3) a journal entry stating that Sanders’s
sentence was imposed under Ohio Rev. Code § 2911.01(A)(1) and “reduced to burglary” under Ohio
Rev. Code § 2911.02(A). Sanders argues that the facially inconsistent documents cannot establish
that he was convicted of either robbery or burglary, and the district court should not have counted
this conviction as a predicate violent felony.
As discussed above, Taylor and Shepard require the sentencing court to utilize a
“categorical approach” when determining the nature of the underlying offense, and they further hold
that in employing that approach, the court is restricted to looking to certain types of documents.
Shepard, 544 U.S. at 16-17; Taylor, 495 U.S. at 602. Sanders contends that the underlying
documents in case number 80CR412 were unreliable, and the district court erred in interpreting them
to conclude that Sanders had been convicted of robbery. We disagree.
This court has previously held that the “categorical approach” described in Taylor and
Shepard does not apply to the initial factual question of determining the particular offense of which
a defendant was convicted. See Beasley, 442 F.3d at 392. In Beasley, the district court construed
a notation of “CA:M2” on the state judgment of conviction as referring to criminal attempt, second
degree murder. Id. at 389. This Court upheld the district court’s factual finding, and rejected the
defendant’s argument that the district court violated the principles of Shepard, Taylor, and Apprendi
v. New Jersey, 530 U.S. 466 (2000):
In considering whether Defendant’s “CA:M2” conviction counted as a predicate
offense under § 924(e), the district court did not confront the dilemma addressed in
Taylor and Shepard–namely, how to determine whether a “generic” state court
conviction qualifies as one of the offenses enumerated in the Armed Career Criminal
Act. Rather, the question here was more rudimentary–the district court was called
upon to determine precisely what state court offense was reflected in the “CA:M2”
notation on Defendant’s judgment of conviction. Taylor’s categorical approach
would apply, if at all, only after the district court made this threshold identification
of the offense of conviction. See United States v. Warwick, 149 Fed. Appx. 464, 468
n. 1 (6th Cir. 2005) (observing that Shepard does not govern the distinct, antecedent
inquiry “whether the Government has furnished sufficient evidence to prove merely
that a conviction exists”).
Beasley, 442 F.3d at 392. We similarly find that, here, Sanders is not actually challenging the nature
of the robbery conviction,6 but rather the fact of conviction.
6
Although Sanders challenges the nature of an aggravated robbery conviction under Ohio law in his first
argument on appeal, his second argument on appeal relates solely to the fact of conviction. To the extent he challenges
the nature of the robbery conviction, we reject it. The indictment itself specifies that Sanders was charged with
committing a theft offense at a Taco Bell while having a gun on his person either during the theft or in flight. Moreover,
under Ohio law, the crime of robbery includes the “use or threat [of] the immediate use of force against another.” Ohio
Rev. Code § 2911.02(A). Sanders does not directly challenge whether a robbery conviction under Ohio law constitutes
a “violent felony” under the ACCA. Nonetheless, to the extent he has not waived the issue, we affirm the district court’s
conclusion that it does qualify as a violent felony.
No. 05-4238 United States v. Sanders Page 7
The district court properly found that the conviction in case number 80CR421 was for
robbery. The indictment charged Sanders with aggravated robbery in violation of Ohio Rev. Code
§ 2911.01(A)(1). The guilty plea indicated that Sanders pleaded guilty to robbery as defined under
Ohio Rev. Code § 2911.02(A). These two documents are not contradictory, as robbery is a lesser
included offense of aggravated robbery. It is true that the journal entry states that Sanders’s
sentence was reduced to “burglary,” but the statutory citations referenced clearly indicate that
Sanders’s initial aggravated robbery charge under Ohio Rev. Code § 2911.01(A)(1) was reduced to
Ohio Rev. Code § 2911.02(A), which is the robbery statute. Thus, all of the documents reflect the
fact that Sanders’s aggravated robbery charge was reduced to a robbery charge, except for the one
inconsistent notation of “burglary” on the journal entry.7 Further, it is not improper that the district
court looked beyond the journal entry to the indictment and guilty plea in order to gain an
understanding of the proper context in which to interpret the document. Indeed, even in Beasley,
the district court referred to the indictment in order to properly construe “CA:M2.” Beasley, 442
F.3d at 394. Under these facts, we find that the district court utilized “basic common sense” and
“reasonably construed” the journal entry as referring to a robbery conviction. Id.
Moreover, even if the “categorical approach” of Taylor and Shepard applied, we would still
affirm the district court, because the relevant documents supported the district court’s conclusion.
Shepard expressly allows examination of the “charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”
Shepard, 544 U.S. at 16. If anything, the district court should not have relied on the journal entry
form, which is the only document that refers to “burglary.” The indictment and the guilty plea
(which is signed by Sanders and his attorney) are listed in Shepard as documents which the
sentencing court may consult, and these documents, when construed together, clearly indicate that
Sanders was convicted of robbery.
Finally, it is worth noting that regardless of whether Sanders was convicted of “robbery” or
“burglary” in 80CR421, the conviction would have counted as a predicate violent felony under the
ACCA. Indeed, Sanders does not even argue that “burglary” under Ohio law would not be a
predicate violent felony. Instead, Sanders argues that to engage in any fact-finding to determine
whether the conviction was for “burglary” or “robbery” would violate the principles of Taylor and
Shepard. This argument is rejected, as it is inconsistent with both Taylor and Shepard themselves,
as well as with this Court’s prior opinion in Beasley.
The district court’s conclusion that Sanders’s 1981 robbery conviction constituted a violent
felony under the ACCA is therefore affirmed.
V.
For the reasons stated above, we affirm the judgment of the district court.
7
We also reject Sanders’s argument that the district court’s factual presumptions were erroneous because it
found that burglary involves an occupied dwelling. While Ohio Rev. Code § 2911.12(A) does not necessarily require
that the “occupied structure” be a dwelling, the district court expressly stated that Ohio’s burglary statute “typically”
involves a dwelling.