58 F.4th 889
6th Cir.2023Background
- Defendant Jamael White pleaded guilty to being a felon in possession of a firearm; PSR and government sought ACCA enhancement based on three prior aggravated-robbery convictions (one juvenile adjudication in 2005; multiple adult convictions in 2009).
- 2009 convictions: six counts of aggravated robbery under Ohio Rev. Code § 2911.01(A)(1) with firearm specifications for offenses occurring March 19 and March 22, 2009; PSR treated these as separate occasions for ACCA purposes.
- 2005 juvenile adjudication listed § 2911.01 but did not identify a specific subsection or the underlying theft offense; sentencing record lacked clarity about the predicate theft provisions for the aggravated-robbery convictions.
- White objected at sentencing to ACCA application (arguing the 2009 offenses were a single occasion and raising fairness concerns about juvenile adjudications) but did not raise the Borden-type mens rea argument below because Borden had not yet been decided.
- District court applied ACCA, sentenced White to 180 months; on appeal the Sixth Circuit vacated the sentence and remanded, concluding the record did not support treating the Ohio aggravated-robbery convictions as ACCA violent-felony predicates under Borden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio aggravated-robbery convictions (§ 2911.01(A)(1)) qualify as ACCA "violent felonies" after Borden (mens rea requirement) | Gov: Patterson/Evans show § 2911.01(A)(1) has a force element (implied threat) and firearm specs show A(1) applies | White: § 2911.01(A)(1) lacks an express mens rea for the deadly-weapon element (Lester); Borden requires at least purposeful/knowing conduct | Sixth Circuit: Plain error; vacated sentence because § 2911.01(A)(1) does not, on its face and under Ohio law, require mens rea > recklessness and underlying theft predicates were not shown |
| Whether White's juvenile adjudication qualifies as an ACCA predicate when the record does not identify the subsection or underlying theft | Gov: Firearm specifications in juvenile entry indicate § 2911.01(A)(1) conduct and thus a violent-felony juvenile adjudication | White: Entry fails to identify subsection or theft predicate; government did not prove the subsection | Held: Court declined to credit the juvenile adjudication on this record; remand required for resentencing if government can prove the subsection/predicate |
| Whether appellate review should be plain-error or de novo for a mens rea argument not raised at sentencing because Borden was decided later | Gov: Objections below were not sufficiently specific; plain-error review applies | White: Could not have objected before Borden; seeks de novo review | Held: Plain-error review applies even where a new rule is at issue; plain error is judged by law at appellate review (Borden applies) |
| Constitutionality/use of juvenile adjudications to enhance ACCA sentences | Gov: Use is permissible under federal law | White: Using juvenile adjudications is unfair due to different standards and burdens | Held: Court did not decide the constitutional challenge; remanded for resentencing because of the mens rea/record defects |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (plurality: ACCA elements clause excludes reckless conduct; requires purposeful or knowing use of force)
- United States v. Patterson, 853 F.3d 298 (6th Cir. 2017) (pre-Borden: held Ohio § 2911.01(A)(1) categorically qualified as an ACCA predicate)
- United States v. Butts, 40 F.4th 766 (6th Cir. 2022) (post-Borden: predicate force element must be committed with mens rea > recklessness)
- United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (explains categorical approach for determining violent-felony predicates)
- Taylor v. United States, 495 U.S. 575 (1990) (established categorical approach for prior-conviction analysis)
- State v. Evans, 911 N.E.2d 889 (Ohio 2009) (Ohio Supreme Court: displaying/brandishing a deadly weapon conveys an implied threat to inflict physical harm)
- State v. Lester, 916 N.E.2d 1038 (Ohio 2009) (Ohio Supreme Court: deadly-weapon element need not carry an express mens rea; court characterized the element as imposing strict liability)
- United States v. Wilson, 978 F.3d 990 (6th Cir. 2020) (discusses divisibility and how to identify underlying predicate theft offenses)
- State v. Tolliver, 19 N.E.3d 870 (Ohio 2014) (clarifies that underlying theft offense supplies mens rea; default culpability statute inapplicable)