UNITED STATES оf America, Plaintiff-Appellee/Cross-Appellant, v. Luke D. PATTERSON, Defendant-Appellant/Cross-Appellee.
Nos. 15-4112/4113/4183
United States Court of Appeals, Sixth Circuit.
Decided and Filed: April 3, 2017
Rehearing En Banc Denied May 8, 2017
If the “inherently transitory” exception to mootness allows us to sidestep these realities, and if it applies to “systemic errors” without any built-in expiration dates, I am concerned. The exception was designed to “fоcus[] on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant‘s litigation strategy.” Genesis Healthcare Corp. v. Symczyk, — U.S. —, 133 S.Ct. 1523, 1531, 185 L.Ed.2d 636 (2013). We seem to be at the bottom of a long, steep, and icy slope and may want to consider how we got here.
For these reasons, I would affirm the district court across the board. The court seeing it otherwise on the mootness decision, I respectfully dissent from that part оf its ruling.
I.
ARGUED: Claire C. Curtis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant in 15-4113/4183. Carmen E. Henderson, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee in 15-4113/4183. ON BRIEF: Claire C. Curtis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant in 15-4113/4183. Carmen E. Henderson, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee. Luke D. Patterson, Glenville, West Virginia, pro se in 15-4112.
Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
OPINION
SUTTON, Circuit Judge.
Local police caught Luke Patterson driving around Akron, Ohio, with a stolen pistol in the driver‘s door. That earned him convictions under Ohio law for receiving stolen property and driving under suspension. On July 30, 2014, officers from the Akron Police Department stopped Patterson for a traffic violation. They noticed an open container of alcohol and found a Smith & Wesson pistol in the driver‘s door of the car. Patterson told the officers that he had bought the gun on “the street” for a hundred dollars. When the police ran the serial number of the gun through the system, they learned that it had been stolen a month earlier.
On August 12, 2014, an Ohio grand jury indicted Patterson. In exchаnge for dropping some of the charges against him, Patterson pleaded guilty in September 2014 to receiving stolen property and to driving under suspension in violation of Ohio law.
On August 27, 2014, a federal grand jury indicted Patterson for being a felon in possession of a firearm. See
At sentencing, the district court refused to treat his three robbery convictions as violent felonies under the Armed Career Criminal Act. The presentence report calculated Patterson‘s base offense level as if aggravated robbery with a deadly weapon qualified as a crime of violence under U.S.S.G. § 4B1.2(a). But because the three convictions counted as a single sentence, see U.S.S.G. § 4A1.2(a)(2), only one of the convictions impacted Patterson‘s base offense level. Patterson did not object to the base offense level of 20, and the district court sentenced him accordingly.
Patterson appealed the denial of the motion to dismiss and his sentence. The United States cross-appealed the district court‘s application of the Armed Career Criminal Act.
II.
The district court correctly rejected Patterson‘s double jeopardy objection to the federal charge. “A prosecution in state court under state law, ... followed by a prosecution in federal court under federal law, does not violate the constitutional prohibition on double jeopardy.” United States v. Holmes, 111 F.3d 463, 467 (6th Cir. 1997). Separate sovereigns—Ohio and the United States—may prosecute an individual successively for offenses arising from the same course of conduct. See Heath v. Alabama, 474 U.S. 82, 88-89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). Ohio could prosecute Patterson under its general police power, and the United States could prosecute him because the gun had traveled in interstate commerce. See United States v. Chesney, 86 F.3d 564, 571-72 (6th Cir. 1996). Ohio and the United States derive their power to prosecute from separate sources of sovereignty and thus may prosecute the same individual under their separate legal codes. Such dual prosecutions do not violate the Double Jeopardy Clause.
Perhaps coming to grips with this point, Patterson urges a variatiоn on this argument for the first time on appeal, claiming that the federal prosecution was in “bad faith” because the United States Attorney for the Northern District of Ohio should have informed him of the federal government‘s intention to file charges in federal court when Patterson was considering the State‘s plea agreement. But “the federal government had no involvement in [] state plea negotiаtions,” and the State never promised Patterson that federal prosecutors wouldn‘t charge him for violating federal law. United States v. McConer, 530 F.3d 484, 495 (6th Cir. 2008). Patterson hypothesizes that his case may have involved participation between Ohio prosecutors and the United States Attorney as part of Project Exile (a federal program in other States) or Project Safe Neighborhoods. But nothing in the record shows, or even suggests, federal collaboration in this state prosecution. The federal indictment was separate from the state indictment, and federal district courts “have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.”
We can appreciate Patterson‘s concern that the federal government may prosecute him fоr driving within the borders of Akron with a firearm. And he is not alone in criticizing such a broad definition of federal criminal power. See, e.g., Alderman v. United States, 562 U.S. 1163, 131 S.Ct. 700, 703, 178 L.Ed.2d 799 (2011) (Thomas,
III.
The heart of the appeal and cross-appeal concerns the Armed Career Criminal Act—and whether Patterson‘s three robberies qualify as predicate offenses under it.
The Act offers three paths for treating an offense punishable by at least one year in prison as a “violent felony“: The offense (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another,” knоwn as the elements clause; (2) “is burglary, arson, or extortion, [or] involves use of explosives,” known as the enumerated offenses clause; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another,” known as the residual clause.
The Supreme Court recently invalidated one of those paths—the residual clause of the Armed Career Criminal Act. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). That leaves two paths.
Robbery is not an enumerated offense under the Act. That leaves one path.
Does the elements clause, then, apply to Patterson‘s robbery convictions? The only way that aggravated robbery could qualify as a “violent felony” under the Act is if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Here is the language of Ohio‘s aggravated robbery statute:
(A) No person, in аttempting or committing a theft offense, ... or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.
That‘s enough to show that Patterson‘s three aggravated robbery convictions required proof “the use, attempted use, or threatened use of physical force against the person of another.”
Patterson offers several rejoinders. He points out that aggravated robbery under Ohio law does not include an element that matches the Armed Career Criminal Act‘s elements clause word for word. But that doesn‘t matter as long as convicting someone of aggravated robbery requires Ohio to prove everything included in the elements clause. For that reason, we‘ve ruled that Ohio‘s aggravated assault statute qualifies as a violent felony under the elements clause even though it lacks “a stand-alone physical force element.” Id. at 401. The threatened harm isn‘t merely an emotional one or a minor brush of the hand; it‘s the potentially deadly and violent force that comes from an “instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”
But, insists Patterson: “Nothing in the statute expressly requires the use of force” or “that use of a deadly weapon must be against the person of another.” Third Br. 5. Truе. But the Ohio Supreme Court, the authoritative interpreter of Ohio law, reads the aggravated robbery statute to contain just that. Evans, 911 N.E.2d at 894-95. “It is the very act of displaying, brandishing, indicating possession, or using the weapon that constitutes the threat to inflict harm because it intimidates the victim into complying.” Id. at 894 (emphasis added).
Still, Patterson persists, the language of the aggravated-robbery statute would allow Ohio to convict someone who robs a store whilе just happening to be carrying a weapon openly, as Ohio allows. Oral Argument at 3:51-4:18; see United States v. Moore, 203 F.Supp.3d 854, 861 (N.D. Ohio 2016) (posing the same hypothetical). To the same effect were the district court‘s concerns that the statute would apply to someone who had a firearm “otherwise available” for use in his pocket when he robbed a victim even if he did not threaten the victim with the deadly weapon, R. 71 at 25, or if he used only “emotional force,” R. 69 at 5-6. But Patterson points to no case where Ohio has convicted someone of aggravated robbery for “threatening force against an object rather than a person,” id. at 6, or otherwise completing the offense without threatening a victim with the deadly weapon. The Ohio Supreme Court itself identified similar possibilities: “purchasing a hunting knife in a hardware оr sporting goods store as [the defendant] simultaneously shoplifts a bag of nails by placing them in his pocket.” Evans, 911 N.E.2d at 894. But the state court called this possibility and ones like it “implausible.” Id. at 894-95. All of this falls into the category of “imaginative flights” that the Supreme Court cautioned us not to use in applying the categorical approach. United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring); see Moncrieffe, 133 S.Ct. at 1684-85. So long as there is no reason to think that Ohio aggravated robbery with a deаdly weapon can be applied to individuals who use minimal actual force or who do not threaten serious physical force against others, there is every reason to treat it as a crime of violence.
Also undermining this argument is the United States Supreme Court‘s application of the Armed Career Criminal Act. The Court has not hesitated to consider the state courts’ interpretatiоn of the relevant state laws. See id. 1686. So too for our court. In the case that Patterson cites for the proposition that our “review is limited to the specific elements of the offense,” Third Br. 3, we turned to precedents of the Tennessee Supreme Court to determine that Tennessee‘s robbery statute qualified under the elements clause, United States v. Priddy, 808 F.3d 676, 686 (6th Cir. 2015).
Other cases are to the same effect. All we nеeded to know about facilitation of aggravated robbery under Tennessee law was that it criminalized “knowingly provid[ing] substantial assistance to” someone committing aggravated robbery. Gloss, 661 F.3d at 319. The reality that the statute also required knowledge that the other person would carry out the use of force and that the facilitator did not have the intent required to commit the facilitated felony plаyed no role in our analysis. Id. at 318.
Other circuit courts have ruled that the government does not need to prove a specific intent for every word in the elements clause. The Fourth Circuit faced and rejected the argument that South Carolina robbery cannot qualify as a violent felony because “it does not contain an explicit mens rea requirement as to the force or intimidation еlement.” Doctor, 842 F.3d at 311 (majority). As in this case, the defendant “fail[ed] to cite a single case in South Carolina where a defendant negligently or recklessly used force in the commission of a robbery, or where a defendant negligently or recklessly intimidated a victim.” Id. Concocting hypothetical and unrealistic examples divorced from the case law is a recipe for sentencing “at an untenable rеmove from facts on the ground.” Id. at 313 (Wilkinson, J., concurring). The Seventh Circuit also ruled that Indiana robbery qualified as a violent felony even though the “statute requires only that the victim be in fear of bodily injury.” United States v. Duncan, 833 F.3d 751, 756 (7th Cir. 2016). The Indiana statute lacked a mens rea for the threat, but, considering Indiana caselaw, the Seventh Circuit could “not see how, in the ordinary case, the State will be
The Ninth Circuit‘s decision in United States v. Parnell is not to the contrary. 818 F.3d 974 (9th Cir. 2016). Although the Ninth Circuit held that armed robbery under Massachusetts law does not qualify as a violent felony, it would have ruled differently “[i]f every robbery involved an implied threat of violent force,” because “every victim would be placed in fear.” Id. at 980. The Supreme Court of Ohio, in contrast to Massachusetts, interprets aggravated robbery with a deadly weapon in every case to require an “implied threat to inflict physical harm” to the victim. Evans, 911 N.E.2d at 894. Of like import is United States v. Dixon. It hinged on the reality that California had convicted individuals for accidental uses of force. 805 F.3d 1193, 1197-98 (9th Cir. 2015). But Patterson fails to point to any comparable cases under
Because
IV.
Patterson claims that the district court erred in treating aggravated robbery with a deadly weapon as a crime of violence when calculating Patterson‘s base offense level under the Sentencing Guidelines. He did not raise this claim below, and accordingly plain error review applies. Priddy, 808 F.3d at 681-82.
The elements clause of the crime of violence provision in the Guidelines is nearly identical to the elements clause in the Armed Career Criminal Act. To qualify as a crime of violence under the Guidelines, the prior offense must have as “an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). We have not hesitated to use authority interpreting the elements clause in the Armed Career Criminal Act in interpreting the same phrase in the Guidelines. See United States v. Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012). We see no reason, and Patterson has offered none, for treating the two provisions differently here. We thus conclude that aggravated robbery with a deadly weapon, which the Supreme Court of Ohio interprets to require the threat of physical harm to another with a deadly weapon, qualifies as a crime of violence under the Guidelines.
There is a separate reason for rejecting this argument. Because “the advisory Guidelines are not subject to vagueness challenges,” Beckles v. United States, — U.S. —, 137 S.Ct. 886, 890, 197 L.Ed.2d 145 (2017), aggravated robbery with a deadly weapon also would have qualified as a crime of violence under the residual clause, which was still pаrt of the Guidelines at the time of Patterson‘s sentencing, see U.S.S.G. § 4B1.2(a)(2) (2015);
For these reasons, we affirm the district court‘s denial of the motion to dismiss and calculation of the base offense level, reverse the ruling that Patterson did not have three previous convictions for a violent felony, vacate Patterson‘s sentence, and remand for resentencing.