RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0233p.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. 10-3205
v.
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Defendant-Appellant. -
KEAHMBI COLEMAN,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 09-00175-001—Kathleen McDonald O’Malley, District Judge.
Argued: July 21, 2011
Decided and Filed: August 24, 2011
Before: COLE and ROGERS, Circuit Judges; SARGUS, District Judge.*
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COUNSEL
ARGUED: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant. Daniel R. Ranke, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Amy B. Cleary, FEDERAL
PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Daniel R. Ranke,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
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OPINION
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ROGERS, Circuit Judge. Keahmbi Coleman challenges his sentence
enhancement under the Armed Career Criminal Act (ACCA) on the ground that a
violation or attempted violation of Ohio’s third-degree burglary statute, O.R.C.
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 10-3205 United States v. Coleman Page 2
§ 2911.12(A)(3), is not categorically a “violent felony.” See 18 U.S.C. § 924(e)(2)(B).
Because the burglary or attempted burglary of an “occupied structure” creates a risk of
physical injury that is similar to the risk posed by generic burglary, the offense is
categorically violent under the residual “otherwise” clause of § 924(e)(2)(B)(ii). The
district court therefore properly imposed the enhancement.
Cleveland police arrested Coleman after a domestic dispute. In his back pocket
they found an unloaded, dilapidated firearm frame that had no trigger assembly and
could not be made readily operable. There is no dispute that a firearm frame counts as
a “firearm” for purposes of § 922(g)(1). See 18 U.S.C. § 921(a)(3)(B). Coleman claims
that he discovered the frame in his backyard and put the gun in his pocket so that his
children and other children in the neighborhood would not find it.
A federal grand jury indicted Coleman for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Coleman pled guilty and the district court
imposed an ACCA-enhanced sentence based on his three prior Ohio convictions for
burglary in 2002 and 2005 and attempted burglary in 2002. See O.R.C. § 2911.12(A)(3).
The district court reasoned that although O.R.C. § 2911.12(A)(3) proscribes
“non-generic” burglaries, see Taylor v. United States, 495 U.S. 575, 598 (1990),
Coleman’s prior convictions nevertheless qualify as violent felonies under the ACCA’s
residual provision for crimes that “otherwise involve[] conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The court
then sentenced Coleman to the mandatory minimum fifteen-year prison term. See id.
§ 924(e)(1).
This sentence, though harsh on the facts of this case, was properly imposed
because of Coleman’s record of three prior convictions that are “violent felonies” under
the residual clause of § 924(e)(2)(B)(ii). Coleman’s only challenge is to the applicability
of the ACCA, and that challenge fails. The ACCA requires a minimum fifteen-year
sentence for any person who violates § 922(g)(1) and has three previous convictions for
a “violent felony” or a “serious drug offense.” Id. § 924(e)(1). A “violent felony”
includes “any crime punishable by imprisonment for a term exceeding one year” that:
No. 10-3205 United States v. Coleman Page 3
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
Id. § 924(e)(2)(B).
Coleman pled guilty to violating Ohio’s third-degree burglary statute in 2002 and
2005, and to an attempted burglary violation in 2002. See O.R.C. § 2911.12(A)(3). The
statute in question meets the “otherwise involves” prong of the ACCA’s definition of a
violent felony. Indeed, the Tenth Circuit has precisely so held in a 2009 case involving
the same Ohio statute. United States v. Scoville, 561 F.3d 1174, 1180-81 (10th Cir.
2009). The statute provides that no person “by force, stealth, or deception” shall:
Trespass in an occupied structure or in a separately secured or separately
occupied portion of an occupied structure, with purpose to commit in the
structure or separately secured or separately occupied portion of the
structure any criminal offense.
O.R.C. § 2911.12(A)(3). An “occupied structure” is defined in turn as:
[A]ny house, building, outbuilding, watercraft, aircraft, railroad car,
truck, trailer, tent, or other structure, vehicle, or shelter, or any portion
thereof, to which any of the following applies:
(1) It is maintained as a permanent or temporary dwelling, even though
it is temporarily unoccupied and whether or not any person is actually
present.
(2) At the time, it is occupied as the permanent or temporary habitation
of any person, whether or not any person is actually present.
(3) At the time, it is specially adapted for the overnight accommodation
of any person, whether or not any person is actually present.
(4) At the time, any person is present or likely to be present in it.
O.R.C. § 2909.01(C). Coleman argues that a trespass or attempted trespass in an
“occupied structure” is not categorically “violent” for purposes of 18 U.S.C.
§ 924(e)(2)(B)(ii). Under the “categorical approach” to determining whether an offense
counts as a violent felony, we “consider whether the elements of the offense are of the
type that would justify its inclusion within the residual provision, without inquiring into
No. 10-3205 United States v. Coleman Page 4
the specific conduct of th[e] particular offender.” James v. United States, 550 U.S. 192,
202 (2007) (emphasis in original).
Although burglary is an enumerated example of a “violent felony,” see 18 U.S.C.
§ 924(e)(2)(B)(ii), Ohio’s third-degree burglary statute proscribes conduct broader than
the Supreme Court’s definition of “generic burglary,” which—for § 924(e)
purposes—means “any crime . . . 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 (emphasis added). Under Ohio law, an “occupied structure”
includes any “house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer,
tent, or other structure, vehicle, or shelter.” O.R.C. § 2909.01(C). Thus, Ohio’s third-
degree burglary statute sweeps more broadly than generic burglary because it “includ[es]
places, such as automobiles and vending machines, other than buildings.” United States
v. Holycross, 333 F. App’x 81, 85 (6th Cir. 2009) (quoting Taylor, 495 U.S. at 598); see
United States v. Lane, 909 F.2d 895, 902 (6th Cir. 1990).1
Nevertheless, a violation or attempted violation of O.R.C. § 2911.12(A)(3) is a
violent felony under the residual clause of § 924(e)(2)(B)(ii) because it “otherwise”
creates a risk of physical injury that is similar to the risk posed by generic burglary. It
is well established that burglary and attempted burglary in Ohio “involve[] conduct that
presents a serious potential risk of physical injury to another.” Lane, 909 F.2d at 903
(quoting 18 U.S.C. § 924(e)(2)(B)(ii)); see also United States v. Skipper, 552 F.3d 489,
493 (6th Cir. 2009). The risk inheres in the “possibility of a face-to-face confrontation
between the burglar and a third party—whether an occupant, a police officer, or a
bystander—who comes to investigate.” James, 550 U.S. at 203. As we explained in
Lane, “[a]n ‘occupied structure’ is defined broadly to include places in which a person
1
It does not matter that the “occupied structures” in this case happen to be buildings, PSR at
¶¶ 34, 36, since that detail is not apparent from the limited sources a court may consider in adhering to the
“categorical approach.” See Shepard v. United States, 544 U.S. 13, 16 (2005). As the district court
correctly held, an 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,” id., does not
permit a conclusion that all of the elements of generic burglary were satisfied for each of Coleman’s prior
convictions. These documents “merely track the language of Ohio's burglary statute and do not
specifically identify the type of ‘occupied structure(s)’ at issue.” R. 22 at 11.
No. 10-3205 United States v. Coleman Page 5
is actually or likely to be present.” 909 F.2d at 903 (citing O.R.C. § 2909.01). Thus, the
burglary of such a structure categorically presents a serious risk of injury. Id.
That does not end the inquiry, however, because the risk of injury—in addition
to being serious—must also be “roughly similar, in kind as well as in degree,” to the risk
posed by one of the enumerated examples in § 924(e)(2)(B)(ii). Begay v. United States,
553 U.S. 137, 143 (2008). This requirement is met as well. Ohio’s third-degree
burglary statute, though broader than generic burglary, is clearly “similar in kind” to
generic burglary. Indeed, the only difference between third-degree burglary in Ohio and
generic burglary is the substitution of “occupied structure” in place of “building.” It is
therefore difficult to imagine what could be more “similar in kind” to an enumerated
offense than Ohio’s third-degree burglary statute. See Scoville, 561 F.3d at 1180.
The risk posed by the burglary of an “occupied structure” is also similar “in
degree” to the risk posed by a generic burglary. This is because the risk in both
situations—the potential for a violent confrontation—arises from the same possibility:
that “an innocent person might appear while the crime is in progress.” James, 550 U.S.
at 204. The Ohio statute describes four different ways in which a structure can be
“occupied,” ranging from a structure that is “maintained as a permanent or temporary
dwelling, even though it is temporarily unoccupied,” O.R.C. § 2909.01(C)(1), to one in
which, “[a]t the time, any person is present or likely to be present,” id. § 2909.01(C)(4).
In each case, the risk created by a trespass with purpose to commit a criminal offense is
that an innocent person—whether already inside the structure, nearby, or arriving on the
scene—will notice the intruder, leading to a “face-to-face confrontation” that results in
a physical injury. See James, 550 U.S. at 203; Scoville, 561 F.3d at 1180-81.
Accordingly, because the burglary of an “occupied structure” creates a risk of injury that
is similar to the risk posed by generic burglary, all three of Coleman’s prior convictions
are violent felonies under the residual clause of § 924(e)(2)(B)(ii).
The fact that one of Coleman’s convictions was for an attempted violation of
O.R.C. § 2911.12(A)(3) does not change matters. Indeed, “the risk posed by an
attempted burglary . . . may be even greater than that posed by a typical completed
No. 10-3205 United States v. Coleman Page 6
burglary.” James, 550 U.S. at 204. As the Supreme Court explained, many attempted
burglaries remain just that—attempts—precisely because the burglar is “thwarted by
some outside intervenor.” Id. (citing our decision in Lane, 909 F.2d at 903). For this
reason, we have consistently held that attempted burglaries are no less “violent” than
completed burglaries for purposes of the residual clause. See Lane, 909 F.2d at 903
(Ohio attempted burglary); United States v. Bureau, 52 F.3d 584, 593 (6th Cir. 1995)
(Tennessee attempted burglary); United States v. Fish, 928 F.2d 185, 188 (6th Cir. 1991)
(Michigan attempted burglary).
Nor does it matter that the “presence or likely presence” of another person is not
a separate requirement of Ohio’s third-degree burglary statute, but is instead merely one
way in which a structure is considered “occupied.” See O.R.C. § 2909.01(C). Relying
on United States v. Lewis, 330 F. App’x 353, 364 (3d Cir. 2009), Coleman argues that
unlike Ohio’s second-degree burglary statute, O.R.C. § 2911.12(A)(2), the “actual or
likely presence” of another person is not an element of Ohio’s third-degree burglary
statute, O.R.C. § 2911.12(A)(3), and therefore the offense does not pose a serious risk
of physical injury to another.
But this confuses the absence of a statutory element requiring the presence or
likely presence of another with “the possibility of a face-to-face confrontation between
the burglar and a third party—whether an occupant, a police officer, or a
bystander—who comes to investigate.” James, 550 U.S. at 203 (emphasis added). As
we explained in holding that Ohio’s fourth-degree burglary statute—which omits the
element “with purpose to commit . . . any criminal offense”—was nevertheless a “crime
of violence” under the career-offender guideline, “[a] risk need not itself be an element
of an offense in order to be considered part of the hypothetical ‘ordinary case’ by which
the offense’s dangerousness is measured.” Skipper, 552 F.3d at 493. Indeed, the
presence or likely presence of another person is not even a requirement of generic
burglary—the enumerated example against which the riskiness of Ohio’s third-degree
burglary offense must be judged. See Taylor, 495 U.S. at 599.
No. 10-3205 United States v. Coleman Page 7
Instead, it is the “occupation” itself—whether the structure is currently occupied
or merely maintained as a dwelling—that increases the odds that a trespass in that
structure will be interrupted by “an occupant, caretaker, or some other person who comes
to investigate.” Lane, 909 F.2d at 903 (quoting Taylor, 495 U.S. at 588). And this is
true regardless of the type of structure at issue. Whether the occupant makes his home
in a summer cabin or a tent, it is the maintenance of that structure as a dwelling that
generates the possibility that an innocent person will come along just as the burglar is
inside or attempting to break in.
Finally, it makes no difference that Coleman can imagine a non-risky way to
burglarize such a structure. While there may be situations in which the break-in of an
“occupied structure” would not pose a serious risk of injury, the same is true of generic
burglary. See James, 550 U.S. at 208. Under the categorical approach, it suffices that
“in the ordinary case,” a trespass (or attempted trespass) in an occupied structure creates
the potential for a violent confrontation that is similar to the risk posed by generic
burglary. See id.; Begay, 553 U.S. at 143.
Coleman protests that Ohio’s third-degree burglary statute does not proscribe the
type of “purposeful, violent, and aggressive conduct” that is characteristic of the
enumerated examples preceding the residual clause. See Begay, 553 U.S. at 145. But
the Supreme Court has recently made clear that the absence of a statutory element
requiring proof of such conduct is not by itself a ground for concluding that an offense
is not categorically violent. See Sykes v. United States, — U.S. —, 131 S. Ct. 2267,
2275-76 (2011).
Coleman also asks this court to vacate his sentence for the entirely different
reason that his 2005 burglary conviction is invalid under state law. By statute, Ohio
courts must notify defendants that they will be subject to post-release control when
imposing sentences for certain felonies. O.R.C. § 2929.19(B)(3)(c)-(e). Several Ohio
cases suggest that sentences for offenders who do not receive the required notice are
“void,” see State v. Singleton, 920 N.E.2d 958, 961-63 (Ohio 2009), and Coleman argues
that his 2005 burglary conviction cannot serve as an ACCA predicate because he was
No. 10-3205 United States v. Coleman Page 8
not properly notified of post-release control at sentencing. But the Ohio Supreme Court
recently clarified that a failure to provide the required notice results only in invalidation
of the improperly imposed term of post-release control, not the entire sentence (much
less the underlying conviction). State v. Fisher, 942 N.E.2d 332 (Ohio 2010). And even
if the Ohio Supreme Court had not eliminated the basis for Coleman’s claim, he would
not be permitted to attack his state conviction collaterally in a federal sentencing
proceeding. See United States v. Aguilar-Diaz, 626 F.3d 265, 269-71 (6th Cir. 2010)
(applying Custis v. United States, 511 U.S. 485, 496 (1994)).
The judgment of the district court is affirmed.