United States v. Demario Denson
2013 U.S. App. LEXIS 18019
| 6th Cir. | 2013Background
- Denson pled guilty in federal court to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was later charged in state court with supplying a shotgun to an informant.
- Probation identified two prior Ohio felonies that increased his guidelines range under the career-offender provisions, including an Ohio conviction for "inciting to violence" (Ohio Rev. Code § 2917.01(A)).
- Denson argued the incitement statute is overbroad because it can be violated without actual physical force and therefore is not a "crime of violence" for guideline purposes.
- The district court concluded the incitement conviction was a crime of violence and denied Denson a § 3E1.1 acceptance-of-responsibility reduction based on the unadjudicated state firearm charge, sentencing him to 72 months.
- On appeal the Sixth Circuit considered (1) whether Ohio’s inciting-to-violence statute is a crime of violence under the career-offender guideline and (2) whether denial of acceptance-of-responsibility was proper given the presentence report showing an intervening firearms charge.
Issues
| Issue | Denson's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Ohio § 2917.01(A) (inciting to violence) is a "crime of violence" under U.S.S.G. § 4B1.2(a) | § 2917.01(A) is overbroad and can be violated without use/attempted/threatened physical force, so it is not a qualifying predicate | While the statute is broad, Denson’s particular conviction necessarily involved incitement to a violent felony (felonious assault/attempted murder), so it qualifies under the modified-categorical approach | The statute is not categorically a crime of violence, but Denson’s plea colloquy established he incited felonious assault/attempted murder, so his conviction is a crime of violence for guideline purposes |
| Whether the district court erred in denying the § 3E1.1 acceptance-of-responsibility reduction because the intervening state firearms charge was unadjudicated | The court could not penalize Denson for an unproven, pending state charge; he retains presumption of innocence | Sentencing facts may be found by a preponderance; the uncontested presentence report gave reliable, strong evidence of new firearms conduct that negated withdrawal/acceptance | District court did not err: it could rely on the presentence report and properly denied the reduction |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (limits use of modified-categorical approach to divisible statutes)
- Shepard v. United States, 544 U.S. 13 (2005) (identifies documents permissible to determine elements admitted in plea)
- Begay v. United States, 553 U.S. 137 (2008) (limits residual/ "otherwise involves" clause by requiring similarity to enumerated offenses)
- Chambers v. United States, 555 U.S. 122 (2009) (failure-to-report statute is not a violent felony under residual clause)
- United States v. Stafford, 721 F.3d 380 (6th Cir. 2013) (applies divisible-statute/modified-categorical reasoning to Ohio aggravated-riot statute)
- United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) (Ohio felonious-assault § 2903.11(A) is a violent felony under ACCA)