UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM SANDERS, Defendant-Appellant.
No. 05-4238
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 15, 2006
06a0460p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Northern District of Ohio. No. 03-00154—James Gwin, District Judge. Argued: October 27, 2006.
COUNSEL
ARGUED: Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. ON BRIEF: Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
OPINION
CLELAND, District Judge. On remand for resentencing after United States v. Booker, 543 U.S. 220 (2005), the district court held that Defendant-Appellant William Sanders was subject to thе sentencing provisions of the Armed Career Criminal Act (the “ACCA“),
On November 25, 2003, a jury convicted Sanders of being a felon in possession of ammunition in violation of
On remand, the district court conducted two resentencing hearings, and again found Sanders subject to the ACCA because he had committed three violent felonies. The first violent felony was Sanders‘s February 2, 1981 robbery conviction in Mahoning County Common Pleas Court, case number 80CR421. The second violent felony was Sanders‘s 1981 robbery conviction in Trumbull County, case numbers 81CR11 and 81CR12.1 For Sanders‘s third violent felony, the district court found that Sanders had been convicted of two counts of aggravated robbery in 1984 in Trumbull County, case number 83CR359.
After concluding that these three offenses qualified as violent felonies under the ACCA, the district court resentenced Sanders to a term of imprisonment of 180 months to be followed by three years of supervised release. Sanders timely appealed, raising challenges to the first and third predicate violent felonies. He argues (1) that the district court erred in finding the third violent felony because Ohio‘s aggravated robbery crime does not constitute a violent felony under the ACCA and (2) that the documents on which the district court based its finding that Sanders had been convicted of the first violent felony were inherently unreliable.
II.
Sanders challenges whether the district court correctly concluded that aggravated robbery under Ohio law constitutes a predicate violent felony under the ACCA and whether the district court properly relied on state court documents in determining that Sanders was convicted of robbery. Both of these challenges rely on the United States Supreme Court‘s interpretation of the ACCA which we review de novo. United States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994); United States v. Brady, 988 F.2d 664, 666 (6th Cir. 1993). Factual conclusions, such as determining what offense Sanders was convicted of in case number 80CR421, are reviewed under a clearly erroneous standard. United States v. Graves, 60 F.3d 1183, 1185 (6th Cir. 1995) (citations omitted); United States v. Beasley, 442 F.3d 386, 394 (6th Cir. 2006).
III.
The ACCA mandates a term of imprisonment of fifteen years for persons who are convicted under
In Taylor, the United States Supreme Court held that “burglary” under the ACCA encompasses “generic” burglary and means “any crime, regardless of its exact definition or label,
We think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense. This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury wаs actually required to find all the elements of generic burglary.
Id. (footnote omitted).
The Court subsequently instructed that in reviewing admitted burglaries (i.e., pleas) a sentencing court could not “look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary.” Shepard, 544 U.S. at 16. The Court held that “a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. The Court also confirmed that Taylor‘s “categorical approach” applied in all predicate ACCA offenses, not just burglaries. Id. at 17, n.2.
Thus, under Taylor and Shepard, the sentencing court is restricted to applying the “categorical approach,” and must look only to certain types of documents when determining whether the underlying offense constitutes a violent felony under the ACCA.
In his first argument on appeal, Sanders contends that the district court erred by concluding that aggravated robbery under Ohio law constitutes a predicate violent felony within the meaning of the ACCA. Specifically, Sanders argues that the third violent felony which the district court attributed to him, the 1984 aggravated robbery conviction in case number 83CR359, does not constitute a violent felony. Wе disagree.
The jury verdict in 83CR359 indicates that Sanders was convicted of two counts of aggravated robbery, one of which included a specification listed in the indictment. The “Entry on Sentence” states that Sanders had been found guilty of a firearm specification. Sanders first argues that the district court was not allowed to refer to the “Entry on Sentence” in determining the nature of Sanders‘s conviction, and without referring to the “Entry on Sentence,” it is impossible to know the nature of the otherwise unspecified “specification.”
We reject this argument and find that the district court properly referred to the “Entry on Sentence” in determining Sanders‘s sentence. Sanders cites a Fifth Circuit case which held that a sentencing court cannot rely upon abstracts of judgment under Taylor and Shepard. See United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005). In Gutierrez-Ramirez, the Fifth Circuit agreed with the Ninth Circuit that the district court cannot rely solely on “shorthand abbreviations,” prepared not by the court but by the clerk, to determine the nature of the conviction. Id. at 358. In this case, however, the district court relied on the jury verdict, which expressly indicated a specification, as well as the “Entry on Sentence” which gave further context to the jury verdict. In reviewing the “Entry on Sentence,” it is clear that the document constitutes a final judgment, reflecting the jury verdict and imposing the sentence, and is signed by the sentencing judge—rather
Moreover, even if the district court was restricted to the jury verdict indicating only a “specificаtion,” the statutory definition of aggravated robbery is sufficient to support the conclusion that the conviction constitutes a violent felony under the ACCA. The relevant statute3 provides:
No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control;
(2) Inflict, or attempt to inflict serious physical harm on another.
Sanders correctly recognizes that the first section of aggravated robbery involves possession of a deadly weapon or dangerous ordnance either (1) while attempting or committing a theft offense or (2) in fleeing immediately after such attempt or offense. Sanders argues that aggravated robbery
Ohio‘s aggravated robbery crime, however, is distinguishable from a carrying a concealed weapon because the statute requires not only the possession of a deadly weapon or dangerous ordnance, but also that the weapon or ordnance is possessed while committing or attempting to commit a theft or while fleeing a theft. The combination of these two elements “involves conduct that presents a serious potential risk of physical injury to another.”
While Sanders argues that possessing a weapon in flight does not necessarily рresent a risk of injury, “necessarily” is not the relevant standard. Sanders attempts in vain to distinguish United States v. Martin, 378 F.3d 578 (6th Cir. 2004), where this court found that fleeing and eluding under Michigan law was a “crime of violence” for purposes of § 2K2.1(a)(4)(A). Although Martin involved analysis of a different statutory provision, the Sixth Circuit employed the “categorical approach” to determine that fleeing and eluding involved “conduct that presents a serious potential risk of physical injury to another.” Id. at 582. Notably, the court stated:
That the Miсhigan fleeing-and-eluding statute may “be violated by conduct that is passive, non-violent, and non-threatening,” does not demand a different conclusion. The Guideline defines offenses presenting a “serious potential risk of physical injury” as crimes of violence; it does not require that actual injury or violence occur or even that the risk of injury materialize in a given case. To require crimes of violence in all fact patterns to lead to a violent or harmful end not only would ignore our categorical approach to this inquiry, but it also would read the “serious potential risk of physical injury” language out of the Guideline.
Id. at 583 (internal citations omitted) (citing U.S.S.G. § 4B1.2(a)(2)). The ACCA does not require certainty of injury, only that the predicate crime “involve[] conduct that presents a serious potential risk of physical injury to another.”
In his second argument on appeal, Sanders argues that the district court improperly found that he had been convicted of the first violent felony, the 1981 robbery conviction in Mahoning County. During resentencing proceedings, the Government provided three documents to prove Sanders‘s conviction: (1) an indictment that charged Sanders with aggravated robbery in violation of
As discussed above, Taylor and Shepard require the sentencing court to utilize a “categorical approach” when determining the nature of the underlying offense, and they further hold that in employing that approach, the court is restricted to looking to certain types of documents. Shepard, 544 U.S. at 16-17; Taylor, 495 U.S. at 602. Sanders contends that the underlying documents in case number 80CR412 were unreliable, and the district court erred in interpreting them to conclude that Sanders had been convicted of robbery. We disagree.
This court has previously held that the “categorical approach” described in Taylor and Shepard does not apply to the initial factual question of determining the particular offense of which a defendant was convicted. See Beasley, 442 F.3d at 392. In Beasley, the district court construed a notation of “CA:M2” on the state judgment of conviction as referring to criminal attempt, second degree murder. Id. at 389. This Court upheld the district court‘s factual finding, and rejected the defendant‘s argument that the district court violated the principles of Shepard, Taylor, and Apprendi v. New Jersey, 530 U.S. 466 (2000):
In considering whether Defendant‘s “CA:M2” conviction counted as a predicate offense under § 924(e), the district court did not confront the dilemma addressed in Taylor and Shepard—namely, how to determine whether a “generic” state court conviction qualifies as one of the offenses enumerated in the Armed Career Criminal Act. Rather, the question here was more rudimentary—the district court was called upon to determine precisely what state court offense was reflected in the “CA:M2” notation on Defendant‘s judgment of conviction. Taylor‘s categorical approach would apply, if at all, only after the district court made this threshold identification of the offense of conviction. See United States v. Warwick, 149 Fed. Appx. 464, 468 n. 1 (6th Cir. 2005) (observing that Shepard does not govern the distinct, antecedent inquiry “whether the Governmеnt has furnished sufficient evidence to prove merely that a conviction exists“).
Beasley, 442 F.3d at 392. We similarly find that, here, Sanders is not actually challenging the nature of the robbery conviction,6 but rather the fact of conviction.
Moreover, even if the “categorical approach” of Taylor and Shepard applied, we would still affirm the district court, because the relevant documents supported the district court‘s conclusion. Shepard expressly allows examination of the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16. If anything, the district court should not have relied on the journal entry form, which is the only doсument that refers to “burglary.” The indictment and the guilty plea (which is signed by Sanders and his attorney) are listed in Shepard as documents which the sentencing court may consult, and these documents, when construed together, clearly indicate that Sanders was convicted of robbery.
Finally, it is worth noting that regardless of whether Sanders was convicted of “robbery” or “burglary” in 80CR421, the conviction would have counted as a predicate violent felony under the ACCA. Indeed, Sanders doеs not even argue that “burglary” under Ohio law would not be a predicate violent felony. Instead, Sanders argues that to engage in any fact-finding to determine whether the conviction was for “burglary” or “robbery” would violate the principles of Taylor and Shepard. This argument is rejected, as it is inconsistent with both Taylor and Shepard themselves, as well as with this Court‘s prior opinion in Beasley.
The district court‘s conclusion that Sanders‘s 1981 robbery conviction constituted a violent felony under the ACCA is therefore affirmed.
V.
For the reasons stated above, we affirm the judgment of the district court.