RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0086p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│
v. │
> Nos. 15-3311/3312/3313
│
RONNIE SWEETS SMITH, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 4:10-cr-00136—Sara E. Lioi, District Judge.
Decided and Filed: April 8, 2016
Before: BOGGS, and ROGERS, Circuit Judges; BERG, District Judge.*
_________________
COUNSEL
ON BRIEF: William G. Brown, STITES & HARBISON, PLLC, Franklin, Tennessee, for
Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee.
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OPINION
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ROGERS, Circuit Judge. Ronnie Smith challenges on appeal the enhancement of his
felon-in-possession sentence under the enumerated-offenses clause of the Armed Career
Criminal Act (the “ACCA”). Under the ACCA, a person who violates 18 U.S.C. § 922(g) and
*
The Honorable Terrence G. Berg, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
No. 15-3311 United States v. Smith Page 2
has three previous convictions for a violent felony shall be imprisoned for a minimum of
15 years. 18 U.S.C. § 924(e)(1). Under the ACCA’s so-called enumerated-offenses clause, a
“violent felony” includes a crime that is “punishable by imprisonment for a term exceeding one
year” and “is burglary, arson, or extortion, [or] involves [the] use of explosives.” 18 U.S.C.
§ 924(e)(2)(B)(ii). Smith relies on the Supreme Court’s recent decision invalidating a different
ACCA clause, the residual clause, as unconstitutionally vague. Johnson v. United States, 135 S.
Ct. 2551 (2015). The residual clause includes as a “violent felony” a crime that “otherwise
involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). The enumerated-offenses clause, however, gives ordinary people fair notice
of the conduct it punishes and does not invite arbitrary enforcement. Further, the enumerated-
offenses clause does not contain the weaknesses that rendered the residual clause invalid.
Moreover, limiting language in the Johnson opinion makes clear that its holding does not extend
to the enumerated-offenses clause. Smith’s argument therefore does not provide a basis for
relief.
Smith pled guilty to two counts of possessing firearms as a felon under 18 U.S.C.
§ 922(g)(1), and to other federal crimes. After concluding that Smith had three prior convictions
that constituted violent-felony convictions under the enumerated-offenses clause of the ACCA,
the district court determined that Smith’s sentence should be enhanced. The district court
therefore sentenced Smith to an aggregate of 200 months in prison. Smith appeals.
Smith’s contention that the enumerated-offenses clause is unconstitutionally vague lacks
merit. A criminal law is unconstitutionally vague when the law is “so vague that it fails to give
ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary
enforcement.” Johnson, 135 S. Ct. at 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357–58
(1983)). Since the method that courts use to determine if crimes qualify as violent felonies under
this clause produces predictable, consistent results, the enumerated-offenses clause gives
ordinary people fair notice of the conduct it punishes and does not invite arbitrary enforcement.
To determine whether an offense qualifies as a violent felony under this clause, a court must
“compare the elements of the statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime—i.e., the offense as commonly understood. The prior conviction
No. 15-3311 United States v. Smith Page 3
qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than,
those of the generic offense.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). If the
defendant has been convicted of violating a “divisible statute” that “sets out one or more
elements of the offense in the alternative,” the court may examine “a limited class of documents,
such as indictments and jury instructions, to determine which alternative formed the basis of the
defendant’s prior conviction. The court can then . . . compare the elements of the crime of
conviction . . . with the elements of the generic crime.” Id.
This elements-to-elements comparison allows a person to determine whether a conviction
will qualify as a violent felony by examining the statute under which the conviction was made
and a limited class of documents. The enumerated-offenses clause therefore gives ordinary
people fair notice of the conduct that it punishes. Further, since the elements-to-elements
comparison is grounded in real-world facts and statutory elements, the enumerated-offenses
clause does not invite courts to make arbitrary assessments about whether convictions qualify as
violent felonies under this clause. The enumerated-offenses clause is therefore not
unconstitutionally vague.
Smith’s reliance on Johnson for the proposition that the enumerated-offenses clause is
unconstitutionally vague is misplaced. This is because the enumerated-offenses clause does not
contain the weaknesses that led the Johnson Court to conclude that the residual clause was
unconstitutionally vague. The Supreme Court held that the residual clause contained “[t]wo
features” that “conspire to make it unconstitutionally vague.” Johnson, 135 S. Ct. at 2557. First,
the clause created “grave uncertainty about how to estimate the risk posed by a crime” by tying
“the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-
world facts or statutory elements.” Id. This is because to determine whether a crime
categorically qualified as a violent felony under the residual clause, a court was required to
imagine “the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether
that abstraction presents a serious potential risk of physical injury.” Id. (quoting James v. United
States, 550 U.S. 192, 208 (2007)). The enumerated-offenses clause does not require courts to
make this type of uncertain assessment about risk. As stated above, courts use an elements-to-
elements comparison to determine whether an offense qualifies as a violent felony under the
No. 15-3311 United States v. Smith Page 4
enumerated-offenses clause. This comparison does not require courts to make any assessments
about the risk that a crime poses in an ordinary case. Accordingly, the enumerated-offenses
clause does not contain the first feature that led the Supreme Court to conclude that the residual
clause was unconstitutionally vague.
The enumerated-offenses clause also does not contain the second weakness that led the
Supreme Court to conclude that the residual clause was unconstitutionally vague. The Supreme
Court held in Johnson that the residual clause produced “more unpredictability and arbitrariness
than the Due Process Clause tolerates,” because the clause, in addition to creating uncertainty
about how to estimate the risk posed by a crime in an ordinary case, “leaves uncertainty about
how much risk it takes for a crime to qualify as a violent felony.” Johnson, 135 S. Ct. at 2558.
In contrast, the elements-to-elements comparison that courts use to determine if a crime
constitutes a violent felony under the enumerated-offenses clause does not measure risk of injury
at all. The enumerated-offenses clause therefore does not produce the type of unpredictable and
arbitrary results that rendered the residual clause unconstitutional.
Indeed, the Supreme Court explicitly stated that its decision in Johnson “does not call
into question application of the [ACCA] to the four enumerated offenses, or the remainder of the
[ACCA’s] definition of a violent felony.” Id. at 2563. Citing this language, we have explained
that after Johnson “a defendant can still receive an ACCA-enhanced sentence based on the
statute’s . . . enumerated-offense clause.” United States v. Priddy, 808 F.3d 676, 683 (6th Cir.
2015). Since the decision in Johnson, we have continued to uphold sentences that were
enhanced because defendants had been convicted of committing prior offenses that qualified as
violent felonies under the enumerated-offenses clause, albeit in opinions that did not explicitly
address the issue of whether the enumerated-offenses clause is unconstitutionally vague. Id. at
684–87; United States v. Taylor, 800 F.3d 701, 719–20 (6th Cir. 2015); United States v. Bailey,
No. 14–6524, 2015 WL 4257103, at *3–4 (6th Cir. July 15, 2015).
The judgment of the district court is affirmed.