United States v. Le' Ardrus Burris
912 F.3d 386
6th Cir.2019Background
- Le'Ardrus Burris was convicted of federal drug and related offenses and had prior Ohio felony convictions including a 2007 felonious-assault conviction under Ohio Rev. Code § 2903.11(A)(2).
- The district court classified Burris as a career offender under the Sentencing Guidelines, relying on his Ohio felonious-assault conviction; Burris did not raise that the conviction failed to qualify at sentencing.
- This en banc Sixth Circuit review asked whether Ohio felonious assault and aggravated assault qualify as "crimes of violence" under the Guidelines' elements clause (identical to ACCA's elements clause) when analyzed under the Supreme Court’s categorical/modified-categorical approach.
- Ohio statutes criminalize (A)(1) knowingly causing "serious physical harm" and (A)(2) causing or attempting to cause physical harm by means of a deadly weapon; Ohio defines "serious physical harm" to include certain severe mental harms.
- The court found (1) subsections (A)(1) are overbroad because Ohio courts have applied them to serious mental harms without physical force, (2) both statutes are divisible into (A)(1) and (A)(2) crimes, and (3) convictions under (A)(2) (deadly-weapon variant) qualify as crimes of violence under the elements clause.
- Because Shepard documents in Burris's record showed conviction under (A)(2), any error in prior precedent (United States v. Anderson) did not affect Burris’s substantial rights; the Sixth Circuit affirmed.
Issues
| Issue | Burris's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Ohio felonious and aggravated assault categorically qualify under the Guidelines/ACCA elements clause | (Burris) Statutes are overbroad because "serious physical harm" includes severe mental harms; thus convictions can occur without violent physical force and do not categorically match the elements clause | (Gov) Prior circuit precedent (Anderson) bound the court; state courts mostly construe statutes to require force | The statutes are overbroad as to (A)(1); Anderson was wrongly decided on that point. |
| Whether the statutes are divisible (i.e., list alternative elements vs. alternative means) | (Burris) Statutes may be indivisible and thus overbreadth would bar treating convictions as predicates | (Gov) Divisibility and prior practice support treating (A)(1) and (A)(2) as separate offenses | The statutes are divisible; (A)(1) and (A)(2) are separate crimes. |
| If divisible, whether (A)(2) (deadly-weapon variant) qualifies as a crime of violence under the elements clause | (Burris) Even (A)(2) might be problematic if state law applied it nonviolently | (Gov) Use/attempted use of a deadly weapon satisfies the elements-clause requirement of violent physical force | (A)(2) qualifies: deadly-weapon component satisfies the elements clause (deadly-weapon rule). |
| Whether Burris is entitled to relief given procedural posture (forfeiture/plain-error) | (Burris) Anderson should be overruled; his prior conviction does not qualify | (Gov) Burris failed to raise the issue below; Shepard documents show he was convicted under (A)(2) so no plain error harming substantial rights | No relief: Shepard documents establish (A)(2) conviction; any error was not prejudicial under plain-error standard. |
Key Cases Cited
- United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) (prior Sixth Circuit panel decision holding Ohio felonious and aggravated assault matched ACCA elements clause)
- Descamps v. United States, 570 U.S. 254 (2013) (explaining categorical vs. modified-categorical approach and divisibility analysis)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifying how to identify elements vs. means and tools for divisibility analysis)
- Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" as violent force capable of causing pain or injury)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (striking down ACCA residual clause as void for vagueness; relevant to residual-clause discussion)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) ("realistic probability" test for whether a state statute will be applied to nonmatching conduct)
- Taylor v. United States, 495 U.S. 575 (1990) (origin of the categorical approach)