United States v. Jon Herring, Jr.
683 F. App'x 424
6th Cir.2017Background
- Defendant Jon Herring, Jr. pleaded guilty to one count of conspiracy to possess with intent to distribute cocaine base.
- The district court sentenced Herring as a career offender to 120 months based on prior convictions, including an Ohio aggravated assault conviction.
- The sole disputed sentencing issue was whether Ohio aggravated assault qualifies as a “crime of violence” under the career‑offender Guideline, USSG § 4B1.2(a).
- At the time of sentencing (March 2016) the Guideline included a residual clause defining “crime of violence” to include offenses that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”
- The Sixth Circuit relied on its prior decision in United States v. Perry, which held Ohio aggravated assault falls within the ACCA residual clause, and treated the identical Guideline language similarly.
- The court affirmed the sentence, noting later doctrinal developments (Johnson, Pawlak, Beckles) but emphasizing that the residual clause applied to Herring’s sentencing date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio aggravated assault is a “crime of violence” under USSG § 4B1.2(a)’s residual clause | Gov: Yes—Ohio aggravated assault “presents a serious potential risk of physical injury” and thus fits the residual clause (relying on Perry) | Herring: Argued it should not count as a crime of violence (challenging residual‑clause application) | The court held Ohio aggravated assault qualifies under the Guideline’s residual clause and affirmed the sentence |
Key Cases Cited
- United States v. Perry, 703 F.3d 906 (6th Cir. 2013) (held Ohio aggravated assault qualifies under ACCA residual clause)
- United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) (noting Ohio aggravated assault qualifies as violent felony under ACCA)
- United States v. Ford, 560 F.3d 420 (6th Cir. 2009) (treating ACCA and career‑offender Guideline language similarly)
- United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016) (applied Johnson to Guidelines residual clause)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause unconstitutionally vague)
- Beckles v. United States, 137 S. Ct. 886 (2017) (held advisory Guidelines are not subject to vagueness challenges)