United States v. David Butts, 40 F.4th 766

Butts pleaded guilty to possession with intent to distribute (21 U.S.C. § 841) and related firearm offenses; sentencing was deferred to the district court under the Guidelines.
The PSR designated Butts a career offender based on two prior felonies, including an Ohio robbery conviction under Ohio Rev. Code § 2911.02(A)(2) predicated on a § 2913.02 theft charge.
At sentencing Butts objected, relying on Borden to argue that a robbery conviction that can rest on reckless conduct cannot qualify as a "crime of violence" under the Guidelines’ elements clause; the government argued Ohio law requires at least a knowing mens rea for robbery.
The district court adopted the government’s view, applied the career-offender enhancement, then granted a substantial downward variance and imposed concurrent 60-month terms for drug counts plus a mandatory consecutive 60-month § 924(c) term (total 120 months).
On appeal the Sixth Circuit held that an Ohio § 2911.02(A)(2) robbery conviction predicated on an unspecified § 2913.02 theft does not qualify as a crime of violence under USSG § 4B1.2(a)’s elements clause after Borden, but affirmed the sentence as the error was harmless given statutory minimums.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ohio § 2911.02(A)(2) robbery (predicated on § 2913.02 theft) is a "crime of violence" under USSG § 4B1.2(a)’s elements clause	Butts: Borden forbids treating offenses permitting reckless force as crimes of violence; Ohio law permits conviction without purposeful/knowing force	Government: Ohio law requires at least a knowing mens rea for robbery’s force element	Held: Not a crime of violence under the elements clause when predicated on an unspecified § 2913.02 theft; Borden controls
Whether the district court’s application of the career-offender enhancement requires remand	Butts: Procedural error in Guidelines calculation warrants resentencing	Government: Asked to remand so district court can argue the enumerated-offenses clause; did not press harmless-error defense	Held: Error was harmless — sentence (120 months) could not have been lower because of mandatory minimums, so affirmation

Borden v. United States, 141 S. Ct. 1817 (2021) (holding elements-clause predicates require purposeful or knowing mental state; recklessness insufficient)
State v. Tolliver, 19 N.E.3d 870 (Ohio 2014) (Ohio Supreme Court: mens rea for underlying theft governs robbery statute and force element may require no separate culpability)
United States v. Patterson, 853 F.3d 298 (6th Cir. 2017) (discussing aggravated-robbery/deadly-weapon context and interaction with ACCA predicates)
United States v. Wilson, 978 F.3d 990 (6th Cir. 2020) (categorical/divisibility analysis and limits on party stipulations of law)
United States v. Johnson, 933 F.3d 540 (6th Cir. 2019) (prior Sixth Circuit decision addressing § 2911.02(A)(2) before Borden)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (requirement of "realistic probability" that state would apply statute to non-generic conduct)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability standard in categorical approach)
United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (harmless-error standard at sentencing)