NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0175n.06
Case No. 16-3382
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Mar 22, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
JON HERRING, JR., ) OHIO
)
Defendant-Appellant. )
BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges.
COOK, Circuit Judge. Defendant Jon Herring, Jr., pleaded guilty to one count of
conspiring to possess with intent to distribute cocaine base. The district court sentenced Herring
as a career offender to 120 months in prison after concluding that Herring’s prior Ohio
aggravated assault conviction constituted a crime of violence under the Sentencing Guidelines.
Herring appeals his sentence, and we AFFIRM.
A defendant qualifies as a career offender if the crime of conviction “is a felony that is
either a crime of violence or a controlled substance offense” and “the defendant has at least two
prior felony convictions of either a crime of violence or a controlled substance offense.” USSG
§ 4B1.1(a). The only question is whether Herring’s Ohio aggravated assault conviction
constitutes a “crime of violence.”
Case No. 16-3382, United States v. Herring
The Guidelines define “crime of violence” as an offense that: “has as an element the use,
attempted use, or threatened use of physical force against the person of another,” or “is burglary
of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(1)
& (2) (2015).1 Ohio’s aggravated assault statute provides that no person shall cause “serious
physical harm to another” or “cause or attempt to cause physical harm . . . by means of a deadly
weapon.” Ohio Rev. Code § 2903.12(A)(1)–(2).
In United States v. Perry, 703 F.3d 906 (6th Cir. 2013), we held that under the Armed
Career Criminal Act (ACCA)’s residual clause, Ohio aggravated assault qualifies as a violent
felony because it “proscribes conduct that presents a serious potential risk of physical injury to
another.”2 Id. at 910 (quotation marks omitted); see also United States v. Anderson, 695 F.3d
390, 406 (6th Cir. 2012) (White, J., concurring) (noting that Ohio aggravated assault convictions
qualify as violent felonies under the ACCA residual clause). Though Perry applied the ACCA’s
“violent felony” definition, the career-offender guideline in effect at Herring’s March 2016
sentencing employed identical language in defining “crime of violence,” so we interpret the two
provisions similarly. See United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009). Tracking
1
An August 2016 Amendment to the Sentencing Guidelines removed the residual clause
from § 4B1.2. Since Herring was sentenced prior to the amendment, the residual clause still
applies to his case. See USSG § 1B1.11 (“The court shall use the Guidelines Manual in effect on
the date that the defendant is sentenced.”).
2
In Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), the Supreme Court held that
the ACCA’s residual clause was unconstitutionally vague. We later held that Johnson’s
reasoning applies with equal force to the Guidelines’ residual clause. United States v. Pawlak,
822 F.3d 902, 904 (6th Cir. 2016). But the Supreme Court recently held that “the advisory
Guidelines are not subject to vagueness challenges,” Beckles v. United States, ---S. Ct.---,
2017 WL 855781, at *3 (March 6, 2017), thus abrogating Pawlak, and permitting the application
of USSG § 4B1.2(a)’s residual clause.
-2-
Case No. 16-3382, United States v. Herring
Perry, we conclude that Herring’s aggravated assault conviction falls within the Guidelines’
crime-of-violence residual clause.
Accordingly, we uphold the sentence imposed by the district court and AFFIRM
Herring’s conviction.
-3-