United States v. Wynn

judgment in the but concur I therefore by majority. offered opinion America, STATES

UNITED

Plaintiff-Appellee, WYNN, Defendant-Appellant.

Antonio

No. 07-4307. Appeals, States Court

Sixth Circuit. 16, 2009.

Argued: June Sept. and Filed:

Decided Nov.

Rehearing Denied Kratt, by utterly only definition offered I do not theory flawed. is the native of affirmance" although the alternative definitions of- any And any to reach further. Because see reason sugges- majority interesting by the are fered tions, argument that Kratt failed to make the fol- argu- Kratt does not make of these "envi- lows from the second definition argues only contrary, Kratt On the ments. by majority, I no reason to see sion[ed]” money received as a result of the that "[t]he simply make it for him to manufacture 'profits' of a crimi- named offenses were not justification reaching an issue of first im- enterprise, funds which were nal but rather pression prudent in this circuit. The more refinancing specific purpose used for wait consider such course would be to airplane.” Appellant Br. at 21. Nowhere they properly where are issues in a case receipts suggest of his Kratt ever does parties, especially in this context raised profits Bancorp because South loan are may types these where there be nuances to collateral, offsetting they with were secured that have not been dis- financial transactions resembling majority's anything or offer Simply parties. because we cussed "profits." Be- alternative definition of second alternative definitions does can "envision" acknowledge majority cause the seems that we need to address them. unacceptable, and that not mean definition is the fourth Witmer-Rieh, ARGUED: Jonathan Of- Defender, fice of the Federal Public Cleve- land, Ohio, for Appellant. Gregory C. Sasse, Assistant United States Attorney, Cleveland, Ohio, Appellee. for ON Witmer-Rich, BRIEF: Jonathan Office of Defender, Cleveland, Federal Public Sasse, substance, containing Ohio, plastic bag a white Appellant. Gregory C. for cocaine, Attorney, plain Cleve- later identified crack United States Assistant arrested, Ohio, police and the land, Appellee. view. upon discovered more crack cocaine MOORE, GIBBONS, and Before: told, Wynn pos- the car. All search of FRIEDMAN, Judges.* Circuit grams 44.7 of at the sessed crack cocaine time of his arrest. MOORE, J., opinion of delivered GIBBONS, J., court, joined. and, indicted Wynn pursuant in which was FRIEDMAN, 578-81), (pp. plea agreement, Wynn pleaded delivered a J. written part. one count of with in- opinion dissenting guilty possession separate to distribute five or more of grams tent OPINION crack cocaine violation of 21 U.S.C. MOORE, 841(a)(1) (b)(1)(B), 1, NELSON Circuit KAREN August § & on Judge. pleading guilty, Wynn Prior to consented pre-plea Investigation to a Presentence Wynn

Defendant-Appellant Antonio (“PSR”), Report and prepared was his sentence (“Wynn”) appeals 235-month sentencing hearing. updated to a resulting guilty plea, pursuant from (“U.S.S.G.”) § 4B1.1 for a total MANUAL count of plea agreement, to one written offense level of 37. The based the PSR five with intent to distribute possession § 4B1.1 enhancement on two convic- more of crack cocaine in violation grams or (1) tions: “Assault Peace Officer” [a] (b)(1)(B). 841(a)(1) § & of 21 U.S.C. guilty plea Battery” and to “Sexual that, in argument appeal is Wynn’s sole in violation of Ohio 2907.03. Rev.Code recent deci- Court’s light ¶ — 19. The PSR the latter PSR described Begay sion offense as follows: -, 1581, According August Cuyahoga (2008), in conclud- the district court erred County Department Adult Probation Wynn’s guilty to “sexual bat- ing plea report, following was tery” under Ohio Rev.Code 21, 2000, October at 4:00 known: On violence” of deter- purposes a “crime of defendant, friend, a.m. the his and his offender. Wynn a career mining girlfriend to the home of friend’s went below, we VA- For the reasons discussed 16-year-old cous- girlfriend’s female REMAND to Wynn’s sentence and CATE in, juve- night drinking. after a The purpose court for the limited the district down, upstairs girl lay nile went resentencing Wynn after her bed- the defendant followed her into Wynn qualifies a career offend- whether conversation, room. After a brief Begay. light er girl’s leg, started rubbing defendant AND I. FACTS PROCEDURE initially told him to He stop. but she however, touching he her underlying stopped, began of this case are The facts 2006, again Cleve- as she tried to leave the room. dispute. On December girl car for The defendant onto her police stopped land officers forced girl The sig- without and removed her clothes. speeding changing lanes bed screamed, his During placed noticed and the defendant naling. stop, police Circuit, Friedman, designation. sitting by Daniel Circuit for the Federal *The Honorable M. Appeals Judge the United Court of States (2008), hand over her mouth. told the She de- the district court erred imposing breath[e], 4B.l(a) fendant that she could not the U.S.S.G. career-offender en- he removed his hand. defendant hancement to his sentence because his con- opened girl’s legs then and inserted viction under Ohio Rev.Code 2907.03 is penis vagina. into her After his not a “crime of violence” under the moving, girl got defendant finished Wynn test. asserts without this en- up happened. and told her cousin what hancement, his total offense level would ¶ 34. The assigned PSR PSR a have history been with a criminal cate- which, history category VI, criminal gory VI, guidelines for a range of 130 to coupled with a total offense level of below, explained months.1 As we con- advisory guidelines range resulted clude that we must Wynn’s vacate sen- imprisonment. Wynn’s 360 months to life light tence in of Begay. sentencing

counsel filed a memorandum argued for a downward variance from A. Standard of Review guidelines range, object but did not After the Supreme Court’s deci any factual assertions or to PSR Booker, sion in United States v. 543 U.S. finding Wynn was a career offender. 220, 738, 125 (2005), S.Ct. 160 L.Ed.2d 621 PSR, reviewing After the district we review sentences “for reasonableness— correctly court determined that the calcu- including procedural for error in the calcu 37; however, lated total offense level was guideline lation of the range such as defen three-point court awarded a reduction dant asserts in this case.” United States for acceptance responsibility total Bartee, (6th Cir.2008) 357, v. 529 F.3d 358 34, offense reducing guidelines level of States, (citing 38, Gall v. United 552 U.S. range to 262 to imprison- 327 months of 586, 596, 169 (2007)). 128 S.Ct. ment. The district court further noted Thus, reviewing a district court’s Wynn was a career offender but that sentencing determination, we must “en [Wynn’s] “because of forthrightness, [and sure that the district court committed no Wynn’s] willingness to it help,” would treat significant procedural error, failing such as Wynn’s 33, final total offense level as a (or improperly calculate calculating) the with a criminal history category of VI. (“R.”) (09/18/07 range, Guidelines treating the Guidelines Record at 29 Hr’g Sent. 11). mandatory, failing to Tr. at consider produced This a guidelines 3553(a) factors, range selecting of 235 to 293 a sentence months. The district clearly facts, based on Wynn sentenced to 235 erroneous or failing months of imprisonment. Wynn timely adequately appealed explain this the chosen sen Gall, sentence. tence.” 128 S.Ct. at 597. We review de novo the district court’s determination II. ANALYSIS that a prior conviction is a “crime of vio appeal sole contention on lence” under U.S.S.G. 4B1.1. United , — in light Begay (6th v. 486, United v. Hargrove, U.S. States 416 F.3d 494 States -, 1581, Cir.2005). 128 S.Ct. 170 L.Ed.2d 490 Wynn ("ROA”) (Plea further Appeal notes that under the current Agreement at 26 at U.S.S.G., version guidelines range his 2). statutory This minimum is based on would Wynn be 110 to 137 months. Br. at 4. Wynn's prior drug conviction for a offense. However, Wynn does not account for the ten- (Information ROA at Regarding 21-22 Prior year mandatory-minimum applica sentence Conviction). 60; ¶ ble to his conviction. See PSR Record

571 (1990), expanded based to convictions B. Status Career-Offender v. United guilty pleas Shepard (1) if ais career offender “A defendant 1254, 13, 544 U.S. years eighteen atwas least the defendant (2005).2 See, e.g., L.Ed.2d committed time the defendant old at the (6th Arnold, F.3d States (2) conviction; offense the instant Bartee, Cir.1995); “Un- felony is a of conviction instant offense the court categorical approach, der or a a crime of violence is either look offense; the must substance controlled fact of facts un- felony statutory definition—not the has at least two defendant of violence of either crime the offense—to wheth- derlying convictions determine U.S.S.G. substance offense.” controlled a conclusion supports that definition er 4Bl.l(a). Wynn does not contest for a crime the conviction was two are requirements one and fact that (em- 529 F.3d at 359 violence.”3 rather, met; that he does asserts added) States v. phasis (citing United of vio- predicate the two “crime not have (6th Armstead, Cir. a career necessary to be lence” convictions 2006)); Taylor, also 495 U.S. at see because, light in of offender that a court is (holding 110 S.Ct. in conviction Begay, his Court’s decision to “look convic- required to the fact of § is not a Rev.Code 2907.03 under Ohio of the statutory tion and the definition “crime of violence.” prior if a prior offense” a “crime A conviction constitutes prior felony” constitutes un- conviction a “violent “punishable if the of crime was violence” (em- Armed Act der the Career Criminal one by exceeding for a imprisonment term added)); at 1584 phasis Begay, 128 S.Ct. year,” and (“[W]e generically, consider offense

(1) use, attempted an has as element the in of say, we examine it terms that is

use, physical of or threatened use in law defines offense and not how the another, against person force of might an terms of how individual offender or particular committed it on a occa- have (2) arson, a or burglary dwelling, of is sion.”). is, however, exception There extortion, explosives, involves use categorical approach: “[W]hen conduct that or otherwise involves statutory crime to [of definition risk a serious presents potential am- pleaded guilty] the defendant is which injury to another. physical ... may ... examine biguous court added). 4B1.2(a) (emphasis U.S. S.G. document, the charging terms of the ‘the agreement transcript plea terms of or

To determine whether colloquy judge between and defendant violence,” constitutes a “crime of conviction plea the factual for the basis categorical approach apply we must defendant, or to some confirmed Taylor United expressed judicial informa- comparable record of this 110 S.Ct. Shepard, government misquotes phrase in its Although Taylor, all in- 3. The felony” ("The categorical ap- the definition "violent Br. at 12 volved brief. Gov't Act, we have re- Armed Career Criminal Taylor requires proach established analysis espoused peatedly applied and to look to the of conviction' facts parallel opinions "to the determination these 'statutory offense when definition’ of the constitutes of whether question.” analyzing 'crime of violence' 1.2(a).” § 4B violence' under USSG ‘crime of added)). (emphasis at 359. ” Bartee, (5) tion.’ (quoting person’s offender is the other 1254). Shepard, 544 U.S. at adoptive natural or parent, or a stepparent, guardian, custodian, or Given this framework and the facts in person parentis in loco of the record, we must answer questions two person. other First, to resolve the instant appeal. is a generic conviction under Ohio Rev.Code (6) The other person custody is in categorically 2907.03 a “crime of vio- law patient or a in a hospital or lence”? Because we conclude that the an- institution, other and the offender question “no,” swer to this we must next has supervisory or disciplinary au- determine whether the district court could thority person. over other nevertheless Wynn’s conclude that convic- teacher, The offender is a adminis- tion under 2907.03 constitutes a “crime trator, coach, or person using violence” the factual recitation authority employed by or serving provided crime in the PSR. Because in a school for which the state we also conclude that the answer to this board of “no,” prescribes education min- question is we must vacate imum pursuant sentence. standards to divi- (D) sion of section 3301.07 of the Is a Generic Conviction under Code, Revised person the other Categori- Ohio Rev.Code school, enrolled or attends that cally a “Crime of Violence”? and the offender is not enrolled in At the time Wynn’s conviction, Ohio and does not attend that school. § Rev.Code 2907.03 criminalized the fol- (8) minor, The other person is a lowing activity: teacher, offender is a administra- (A) person No shall engage in sexual tor, coach, person or other in au- another, conduct with thority employed by or in serving spouse offender, any education, higher institution of the following apply: person and the other is in enrolled (1) The knowingly offender coerces or attends that institution. person the other by any submit (9) person minor, The other is a and means that prevent would resis- the offender is person’s the other tance a person of ordinary res- athletic or type coach, other is olution. person’s instructor, the other is (2) The offender knows that the other the leader of a scouting troop of person’s ability to appraise na- which the person other is a mem- ture of or control the per- other ber, or is a person with temporary son’s own conduct substantially is or occasional disciplinary control impaired. over the person. (3) The offender knows that the other person 2907.03(A) (2001). Ohio § Rev.Code submits because the other person is unaware that There the act is no in is indication the record as to being committed. 2907.03(A) § the subsection of to which pleaded guilty. Thus, we must ini- The offender knows that the other 2907.03(A) tially § review in person entirety its submits because the other if, person categorically, determine mistakenly generic convic- identifies the 2907.03(A) § offender as person’s the other tions under are “crimes of spouse. violence.” the ACCA thus a clause of and was “vio- “[a]s noted previously We have defined, battery felony.” Begay, [under sexual at 1584. In statutorily lent 128 S.Ct. use, simply require characterization, does not § rejecting 2907.03] such use, of force. or threatened use attempted carries “a assumed DUI serious Court Rather, upon using complete crime is physical injury risk of to anoth- potential the victim to means induce coercive er,” a fact was but concluded that such perpe- conduct with engage sexual categorize crime as a enough to “vio- Mack, 8 F.3d States v. trator.” United felony” lent the “otherwise” clause. Cir.1993) (“Mack (6th 7”), va- Rather, previ- at as we have Id. 1584-86. rehearing on oth- superseded cated and ously explained, Supreme Court deter- Mack, 53 grounds by er United States v. a crime encompassed mined that 77”). Cir.1995) (“Mack (6th F.3d 126 clause if “similar in “otherwise” it is both Moreover, one of battery” “sexual is not degree to the enumer- kind and risk crimes listed U.S.S.G. enumerated examples-burglary dwelling, of a ar- ated thus, 4B1.2(a); we can conclude extortion, son, involving crimes use battery” is a “crime of violence” “sexual Bartee, 529 F.3d at explosives.” battery” that “sexual if we determine “burglary, Court stressed by the involves encompassed “otherwise extortion, arson, involving crimes potential presents conduct that serious explosives! listed ]all use of t]he crimes!— — injury to another” clause of physical risk of ‘violent,’ involve typically purposeful, (hereafter 4B1.2(a)(2) referred to as conduct,” a trait that the ‘aggressive’ DUI clause). U.S.S.G. “otherwise” in question Begay, statute did not share. 4B1.2(a)(2). Thus, at 1586. to be alike in Relying just that Mack II. We held offenses, kind to enumerated crime Kaplan- opinion our United States violent, “alike in ‘purposeful, must be (en (6th Cir.1994) banc), sky, 42 F.3d 320 aggressive’ nature of the conduct.” “sexual panel II concluded that Mack v. Mosley, States as defined Rev.Code battery Ohio (6th Cir.2009) Begay, 128 S.Ct. (quoting a ‘vio- categorically qualifies as 1586). lent clause felony’ under” “otherwise” parallel of determination to the ACCA—a light Begay, In our decision Mack is a whether a conviction determination good Mack longer II law. The II § 2907.03 “crime of violence”—because did not whether crimes panel consider ‘potential’ it “a carries with serious §in both in included 2907.03 were similar II, Mack 53 at 128.4 violence.” F.3d (i.e., § crimes kind whether 2907.03 involve violent, aggressive and con- purposeful, changed law has since Mack The duct) degree and of risk enumer- II, Begay, however. arson, extortion, burglary, ated crimes of Mexico Court considered whether a New involving (“DUI”) explosives. crimes After Be- or stat driving-under-the-influence inquiries performed ute “otherwise” these must be encompassed gay, authority categorically qualifies § circuit that Rev.Code 2907.03 as 4. There is some in this holding suggests felony’ that Mack IT s was limited to a 'violent under” "otherwise” (4). 2907.03(A)(3) Hargrove, II, § 416 F.3d Mack 53 at 128. Because we clause. F.3d however, Hargrove, at no anal- 495. contains generic conclude that conviction under ysis Mack II regarding how it determined that categorically § a "crime 2907.03 is not Indeed, holding Id. is so limited. such violence,” propriety Hargrove's distinc- contrary declara- to Mack blanket seems II's significant. tion is not battery defined in Ohio tion that "sexual as 4B1.2, § § an 2L1.2 whether offense is and to which enumerate categorically a “crime violence” under various per se “crimes violence” applica- See Mosley, “otherwise” clause. subsection, ble the term used each as both list “forcible sex offenses” as “crimes Essentially, government violence.” Furthermore, applying Begay contends that “forcible these sex offenses” test, generic we conclude that terms are “analogous” and should be inter- § categorically 2907.03 is preted to encompass same crimes. “crime of violence” some subsec because Moreover, Gov’t Letter Br. gov- § tions of result in 2907.03 can convictions § ernment asserts 2L1.2’s commen- involving purposeful for crimes while tary “was amended November behavior, aggressive do not involve define ‘including ‘forcible sex offenses’ as violent For example, behavior. 2907.03(A)(5) § criminalizes a where consent to the conduct is given consensual valid, sexual encounter between a woman legally or is not such as where con- 21-year-old adopted stepson. her See sent to the is involuntary, conduct incom- ” Lowe, State v. Ohio St.3d coerced,’ petent, or and that “all convic- (2007) (“Courts N.E.2d examining (as § tions under ... it existed 2907.03(A)(5) R.C. have found the statute it) 2001 when Wynn was convicted under clear and in its unambiguous criminaliza categorically fall th[is] within definition ” of all falling sexual within conduct its ‘forcible sex offenses.’ Id. we Because regardless of a purview, age victim’s disagree government’s with the initial consent.”). Such a consensual sexual act premise, that “forcible sex offenses” under between adults would not be violent and § 2L1.2 and 4B1.2 should be read aggressive by nature, and thus would not offenses, cover the reject same we abe “crime of violence” under government’s argument. test. §§ assert a argument language new focused on amendment to the added the “forc- definition “forcible sex § offenses” located ible sex term of offenses” 2L1.2: “forc- 2L1.2, in the commentary § to U.S.S.G. (including ible sex offenses where consent guidelines the provision pertaining to un- given conduct is not or is not legally entry lawful to the United States. The valid, such as consent to where the conduct panel requested government that the a file coerced).” incompetent, is involuntary, letter brief Wynn on the and that issue l(B)(iii) (2008) § U.S.S.G. cmt. n. 2L1.2 respond. considering After these letter added). (emphasis According to the Sen- briefs, we are not persuaded by gov- the Commission, tencing purpose the of this ernment’s argument. new “clarifiy] scope amendment is to the term, brief, government its the term letter ‘forcible sex offense’ as that is ob- commentary serves that the notes to used the definition ‘crime of violence’ C, § not app. qualify categorically 2907.03 does as § § 2L1.2 2L1.2.” U.S.S.G. added). § a of violence” under 4B1.2.5 (emphases “crime amend. not commentary did re- 4B1.2’s Section the District Conclude Could Court amendment, though it even ceive such that Conviction Under Sentencing Commission’s within the § Ohio Rev.Code 2907.03 Consti- amend that section. See so to discretion tuted a “Crime of Violence” (2008). By § cmt. n. 1 4B1.2 U.S.S.G. Using the Factual Recitation § 2L1.2’s apply that we should arguing the PSR? 4B1.2, § the language gov- additional though determined Even we have § 4B1.2 as if it us to treat ernment asks say categorically that cannot that a we fact the that also were amended. Given § conviction under Ohio Rev.Code failed to Sentencing Commission violence,” does is “crime of not end § 4B1.2 and that the Commission amend government also inquiry. our asserts purpose stated specifically 2907.03(A) § if convictions under are clarify scope was to 2008 amendment violence,” categorically not “crimes of 2L1.2, under sex offenses” of “forcible and, ambiguous applying statute is at least that we must draw is logical conclusion Taylor/Shepard exception, district Sentencing Commission did not permitted underly court was to look to the sex offenses” under intend “forcible conviction, as ing facts of the detailed way § 4B1.2 defined the same (the only in the PSR evidence the rec § 2L1.2. We “forcible sex offenses” conviction), regarding ord to as government’s invitation accept will not Wynn certain that was convicted under to overrule this decision. 2907.03(A)(1), government which the Moreover, such differential treatment categorically a “crime contends is of vio scope of “forcible sex of- regarding Wynn lence.” counters factual recita the two fenses” between sections consis- Taylor*s tions in a “do fall under PSR with other differences the sections. tent exception,’ govern and that ‘narrow amendment, Even before attempt PSR] ment’s use invites [the commentary included both 2L1.2USCA’s sought very Taylor pre harm that “statutory abuse rape” “sexual judicial re-litigation present vent: minor” its list enumerated “crimes underlying proceeding of the facts the de violence,” specifically § 4B1.2 while did Reply fendant’s conviction.” those crimes. See U.S.S.G. 2L1.2 list Wynn’s argument per Br. at find 3. We l(B)(iii) (2007); § 4B1.2 cmt. n. U.S.S.G. suasive. (2007). Thus, § 2L1.2’s defini- n. cmt. always argument depen- The government’s of “crime of violence” has ex- more crimes than dent on whether factual recitation in pressly covered sex definition, “comparable judicial nothing there is PSR constitutes § 4B1.2’s Shepard record” under district Sentencing Commis- irrational about determining if a de- approach court can consider in decision to continue sion’s a prior conviction is “crime of adding language the amendment fendant’s with reject panel previ- A of this court has § 2L1.2 alone. therefore the violence.” to We held, a ously published opinion, in a that argument and conclude that government’s descrip- factual district court’s use of the under Ohio Rev.Code generic a conviction gorically "crime of violence” express opinion regarding constitutes a We whether under 4B1.2. subsection of 2907.03 cate- individual prior tion of a conviction contained in a the States Supreme requires Court PSR to if the conviction is determine modification the decision or this Court a violence” “not adhere “crime of does to sitting en banc the prior overrules deci- Taylor Shepard.” the dictates Bar- (internal omitted)). sion.” quotation marks tee, Bartee, at 529 F.3d 361. In according Bartee, Applying we conclude that it would information, to the amended the defendant be improper rely the district to pleaded to guilty “sexual contact with an- on in the factual the recitations PSR person, ... Angela during to-wit: that Wynn’s § determine 2907.03 convic- felony, commission another to-wit: tion was for a “crime of violence.” solicit[ing] minor for immoral purposes.” government The attempts to minimize (alterations original). Id. at 360 in The application Bartee’s to the current case panel Bartee in concluded order to “[njowhere that contending Bartee does determine that this conviction was for a it indicate whether objected the defendant “crime of violence” under the “otherwise” to the factual recitation in the Presentence clause, necessarily one had consider the Report.” Br. Gov’t at Bartee sug factual allegations PSR, contained gests in a possibility footnote the that the explicitly “Angela” noted that was a object defendant did not to the PSR. Bar minor engaged defendant in sex- (“Nor tee, 529 at 361 n. 4 can we ual contact with her. Id. at 361. The conclude that the error was harmless sim panel Bartee noted that “the Court [in ply because never denied defendant Shepard] specifically rejected govern- that conviction involved sexual permit ment’s call to po- consideration of added)). contact a (emphasis with minor.” reports lice complaint criminal applica- Further, even if the defendant Bartee tions to a support finding guilty objected had to the factual recitations of plea only could have been based on facts PSR, panel Bartee did not base its would qualify the conviction as a ‘vio- conclusion regarding lent the PSR on a felony.’” Id. at such (citing 359-60 Shep- ard, Instead, 1254). fact. panel at compared Bartee S.Ct. vacating sentence, the defendant’s the factual pan- generally recitations in a PSR el descriptions concluded the factual to the information contained a police contained in PSR sort are “the of infor- report materials, or like concluding that might mation that one expect find the PSR contained “the sort information police report application or for criminal might expect one police to find complaint.” 529 F.3d report application for criminal com plaint.” Moreover, Id. at 361. such

We are bound Bartee. Darrah v. holding, Park, declaring be non (6th -Shepard PSRs to City Oak Cir.2001) (“[A] documents, is consistent with panel Shepard’s of this Court cannot Taylor overrule decree that “require[s] the decision of panel. another that evi generic decision dence of controlling remains au- [a] conviction confined thority unless court,” inconsistent decision of convicting records of the Shep- Johnson, conviction, 6. Additionally, in cerning United States v. recounts factual (6th Cir.2009), 308 Fed.Appx. conviction, when con- basis for the the district court sidering properly whether under statutory Tenn. focused definition in Code Ann. "crime 39-13-103 is a vio- concluding offense otherwise involves clause, lence" pan- presents potential "otherwise” conduct that a serious risk praised el the district physical injury court’s treatment of the to another.” Id. at 975 "Although added) (internal PSR: report, (emphasis quotation marks omitted). which is the evidence record con-

577 1254, case, ard, 23, 125 instant there is no Shep- because the U.S. at S.Ct. 544 in the ard-approved for a federal district-court document record that prepared a PSR Wynn’s a can never be a record of can be used to determine whether sentencing court. 2907.03 consti- convicting specific state conviction under a tutes “crime violence.” We therefore government the argument, At oral Wynn’s sentence and REMAND VACATE argument a new and contended raised purpose the court for the limited to district the regarding in Bartee everything said resentencing Wynn after determining Shepard PSR as a document use of a qualifies a whether as career offend- because, government dicta remand, light Begay. er in On a Shepard did assert that a PSR was not not district court should consider fac- government Any failure of the document. tual recitations the PSR in order to Shepard argument to a Bartee raise Wynn’s determine whether 2907.03 con- analysis render Bartee’s. PSR dic does not Instead, viction is “crime of violence.” a ta. in a case can consid A statement allow govern- the district court should necessary if not ered dicta it “was ment to further on submit evidence appeal.” determination of issue status, long issue of career-offender so as Hardin, 404, F.3d 411 v. United States Shepard to such evidence adheres (6th Cir.2008). Bartee, in order con In Baker, standard. States v. See United treat the district court to the defen vince (6th Cir.2009) (allow- 443, n. F.3d 455 & 10 a “crime of vio dant’s conviction as government present new ing evi- lence,” government urged the district “the remand, at though dence “[e]ven to infer that court to use ‘common sense’ sentencing original hearing govern- ‘[t]he sexual contact the defendant had since production ment had the burdens of and minor, a Angela soliciting with ‘while’ prove that defendant’s persuasion’ to reck- and, Angela must have been that minor endangerment qualified less therefore, have the sexual contact must 4Bl.l(a), felony under predicate [be- Bartee, 529 at a minor.” been with justified its so by failure do was cause] noted, this inference panel 361. As ‘special circumstances’—the fact Be- “could have been drawn consider yet had decided at the time gay been ing underlying facts” of conviction con sentencing hearing place.”) took Unit- If appropri Id. it were tained PSR. Goodman, 310, States v. 519 F.3d look ed ate court to district (6th Cir.2008) inference, (quoting United States v. necessary PSR and draw the (D.C.Cir. Leonzo, 1086, have panel then had the Bartee would However, 1995).). Wynn’s to vacate the sentence. Additionally, reason because con- cocaine, reliance on the PSR the district viction involves crack the district if the were appropriate only would be PSR court should consider the Court’s Thus, necessary a Shepard document. pronouncements Kimbrough v. recent precursor panel’s decision to vacate States, 128 S.Ct. United U.S. its sentence in Bartee was defendant’s (2007), Spears 169 L.Ed.2d 481 — a Shepard a PSR not determination that -, document, gov regardless of whether the (2009), Shepard argu specifically ernment made precedents. relevant ment. III. CONCLUSION sum, generic con- we conclude that above, For reasons discussed we 2907.03 is

viction under Ohio Rev.Code violence,” REMAND sentence and categorically “crime of VACATE 578 opin- quotes consistent with this proceedings opinion) relating

for court its to Wynn’s prior ion. state court conviction for a battery” that “sexual leave doubt the FRIEDMAN, Judge, Circuit dissenting generic pleaded state crime to which he in part. categorically guilty crime vio- lence. I would affirm the sentence. Unlike court, I not do conclude “that it would Wynn challenged ques Since has not or improper rely court for district to facts, tioned those there is no valid con on the factual recitations the PSR to cern here that attempted upon reliance Wynn’s § that determine 2907.03 convic- produce them would the kind of collateral ‘crime of tion was for a violence’”—facts litigation that the Court wished challenge. which did avoid it to refused to permit recognized, has As this court police district court to utilize reports and States, 13, 26, v. 544 Shepard United U.S. complaint applications determining for (2005). 1254, 125 161 S.Ct. character of a Shep state conviction. See statutory definition “[W]hen [of ard, 21-23, 544 S.Ct. As prior crime to which the pleaded defendant this court stated: policies “One ani guilty] may is ... the court ambiguous mating adoption the Court’s this ap charging examine ... ‘the terms- proach was to practical avoid ‘the difficul document, plea agreement the terms of a potential and ties unfairness’ of permitting or transcript colloquy judge between sentencing relitigate court to the facts and defendant in which the factual basis and delve into the details of a convic plea for the was confirmed the defen- Armstead, tion.” United v. States dant, judicial or to rec- comparable some (6th Cir.2006) 943, 947 (quoting Tay ” ord information.’ States v. 601, lor United 495 U.S. Bartee, (6th Cir.2008) 529 F.3d 2143, 109 (1990)). S.Ct. L.Ed.2d (quoting Shepard). This court’s Indeed, in view of failure to similarly have recognized cases that in ad- facts, challenge appear those it would document, to charging plea dition acknowledges he accuracy their aas basis agreement or colloquy judge between for his sentence. defendant, sentencing judge also states, however, The court it may judicial “comparable consider a rec- alleged holding “bound” our in Bartee ord.” Mosley, United States v. 575 F.3d that “a (6th district court’s use of factual Cir.2009). 603, 605 description aof conviction contained In criminal it practice cases is common a PSR to if the determine convic- for a defendant who wants contest or is a ‘crime of ‘not violence’ does ad- challenge presentence forth in facts set here to Taylor the dictates of Shep- report object If a them. defendant ” Although ard.’ there are statements so, does do it is understood those the Bartee opinion provide support accepted facts are admitted as a basis conclusion, I do not read Bartee so for determining the sentence. See United holding indicating, or as requiring us so (6th Carter, States v. to hold. Cir.2004) (“ ‘The district allowed to accept as allegations sentence-enhancing prior true all factual presentence report Michigan defendant state conviction was for criminal ”). object.’ does not Here the facts as set sexual conduct. That crime sexu- included (which forth in report al contact “under involving circumstances the offense to defen- felony.” that not The commission the pleaded guilty. the defendant dant charged information state person with “another sexual contact with Id. committing the felo- Angela” while to-wit: This court concluded that: pur- a minor for immoral soliciting ny the the district court did not adhere to that the conceded government poses. Taylor Shepard in deter dictates contact of which the defen- crime of sexual mining prior the conviction in this that require the did not that was convicted dant involving sexual con case was an offense contended, It a minor. be with contact the recent tact with a minor. As Court however, the indictment that because the ly explained, categorical approach with sexual contact charged the defendant the requires that “we consider offense felony, of another during the commission say, we it generically, that is to examine pur- for immoral namely, soliciting minor in terms of how the law defines properly could court poses, district and not terms how offense of a that was convicted “crime infer he have commit might individual offender person with whom because violence” particular ted it on a occasion.” girl the minor had sexual contact was he — -, v. United for charged soliciting with he was whom (2008). 1581, 1584, 170 S.Ct. purposes. immoral quoted A footnote to last sentence that “neither the statu- This court noted following includes the statement: amended informa- tory definition nor the Nor can we conclude that error was contact was specified that sexual simply because the harmless defendant at 361. It held with minor.” that the conviction never denied appeared “to have been although it that involved sexual contact with a minor. factually” case “that since the defen- 28-29, Shepard, See 544 U.S. Angela had contact with ‘while’ dant sexual (O’Connor, 1254, 161 L.Ed.2d 205 S.Ct. minor, Angela must have been soliciting majority dissenting) (criticizing and, therefore, con- minor the sexual rejecting a “common sense” inference been a minor.” tact must have with in- burglary convictions state “[CJategorically speaking, buildings). into entry volved necessarily proof sexual require not did Id. at 361 n. (footnote minor.” omit- contact with a Id. foregoing statements I do view ted). or the court’s decision there from Bartee to certain facts pointed The court then char- that in holding as report relat- “revealed” sentence-enhancing con- acter of the relationship between ing to sexual pre-sentence viction facts set forth in the Angela. It then stated: defendant challenge defendant did report Bartee not ex- cannot be considered. did Not is this sort information so Nor did the court’s deci- expect police plicitly to find in a state. might that one rule. necessarily such a for criminal com- sion announce report application points made not refer to the government makes The did plaint, but the also partial of this dis- it was on in the discussion argue based attempt sent, it would have these which one would think While Shepard-eligible records. it the broad rule announcing if were facts conduct known done underlying reflect to it. “statutory rape,” court here attributes parlance common inferred, way. given, It based on decide either For the probably could reasons that if the issue the statements I would hold that consideration of those unchallenged of the use of statements permissible. facts would be presented pre-sentence report were to the aspect 2. There is another panel, panel Bartee that would come out opinion that troubles The court’s me. way same that this court does this court states that “there no is indication Bartee, however, did case. not decide that the record the subsection of or question, explicitly implicitly. either In Wynn pleaded 2907.03 to which guilty.” opinion, conjectural analysis my such does correct, if only presentence That not, could not and should not convert the report is In considered. United States v. opinion binding ruling Bartee into a Alexander, however, court this dealt with that issue. the similar situation which the question Supreme The Court’s recent case ad- a whether defendant’s convic- state dressing general subject, Begay a of categorical constituted “crime vio- — -, U.S. lence” could answered resort to (2008), light sheds on this issue. (6th presentence report. 543 F.3d 819 question The there a was whether New Cir.2008). upheld This enhanced driving Mexico conviction for under the sentence based that conviction for a influence of alcohol a constituted “violent of Michigan “crime violence” because the felony” 924(e)(2)(B)(ii), under 18 U.S.C. Correction, Department of and the State which includes its definition of “violent Police maintained internet databases that felony” arson, a “burglary, crime that is or provided “publicly viewable criminal-histo- extortion, explosives, involves use of ry indicating records [the that defendant] otherwise involves presents conduct that was in fact violating specific convicted of potential physical serious injury risk of statutory provision that such a crime.” Supreme another.” The Court held that Id. at 824. court ruled The that “even if the state crime felony” was not “violent the record is clear entirely about the under that definition because ‘that term precise statutory offense served as only covers crimes “similar” to listed crimes, predicate one any ambiguity arson, “burglary, crimes of or extortion” readily by taking judicial resolved notice “rather than every ‘presents crime that criminal-history records.” [defendant’s] potential physical serious injury risk of ” — Id. -, another.’ 128 S.Ct. at Similarly, it pres- would seem that in the may ent case we judicial take notice words, In other question judicial publicly available Ohio records addressed scope and decided was the unequivocally show that the state sexual statutory the federal definition of “violent felony.” battery offense of which Apparently was con- question there was no of what victed was a evidence could be “crime of violence.” considered The deciding presentence whether the state crime of report convic- this case shows definition, tion came within the and the that state case was docket CR-01-403077. ques- Court did not address Cuyahoga County Common Pleas tion. Court records show that in case no. CR- 31, 2001, July 01-403077 on the defendant: sum, I pre- believe that whether the ENTERS A PLEA report sentence could OF GUILTY TO be considered de- A(l) BATTERY, termine the character of SEXUAL RC prior con- open (SB2) viction is an question may that we FEL-3 AS AMENDED IN report resort THE INDICTMENT. OF COUNT THE DEFENDANT purpose limited the docket FINDS COURT of that That is fact GUILTY. number conviction. Alexander, that, in the is “not language (State Wynn, Antonio CR-01- Ohio v. Pleas, debate in this subject to reasonable case.” of Common Cuyahoga Court (available Information) http:// F.3d at 824. Docket (Last cpdocket.cp.cuyahogacounty.us/) possible from Alex- The other distinction 2008) checked, The state August government appar- ander is there defen- show that the records also court’s infor- ently submitted the state conviction September sentenced on dant was court, mation to the whereas here battery conviction for the sexual fact, obtained the data. That court itself 2907.03(A)(1). however, stronger make appears to this a statute to The Ohio criminal than case than Alexander rather weaker pleaded guilty thus states: taking judicial notice of infor- the state (A) in sexual engage person No shall possibility Here is no mation. there another, not conduct with given have government may offender, ... spouse of the information about a incorrect inaccurate coerces knowingly The offender conviction. state person the other submit prevent resis- means that would ordinary res- by person

tance

olution. standard discussed

Under

above, a “crime of this sexual conduct was that, for this appears It thus

violence.” reason, here the district court additional SHERWOOD, Michael Paul as a Wynn’s sentence enhanced properly Petitioner-Appellant, indicates criminal. Alexander career may if resort not be had to facts even presentence about PRELESNIK, Respondent- John judicial may still be taken report, notice Appellee. judicial records. Alex- publicly available several months after ander decided No. 08-1019. to it. 543 F.3d at 824.

Begay and referred of Appeals, States Court could distin- Alexander possibly Sixth Circuit. There all guished grounds. two history “criminal records” Alexander’s Argued: June of its convic- nature established the Sept. Filed: Decided and cited to the court apparently were case, present government. however, necessary rely it is ascertain the docket report to

presentence Wynn’s state conviction. Even

number of report generally cannot

if the the facts of the

be used determine conviction, I do sentence-enhancing

state preclude principle think that would notes commentary of both 2L1.2 brief, Initially, government in its and 4B1.2 enumerate various offenses that (not- point. conceded this Gov’t Br. at 14 per are se “crimes of violence.” See ing that when applies one the narrow Be- l(B)(iii) (2008); U.S.S.G. 2L1.2 cmt. n. whole, gay test to easily 2907.03 as one (2008). U.S.S.G. 4B1.2 n. 1 cmt. Prior permutations concludes that “some amendment, the November 2008 both such battery, definition, Ohio crime of sexual sections included “forcible sex crimes”). offenses” categorically are not violent At offense, however, enumerated without further argument, government oral However, elaboration. attempted See id. to revoke this the 2008 concession and

Case Details

Case Name: United States v. Wynn

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 2, 2009

Citation: 579 F.3d 567

Docket Number: 07-4307

Court Abbreviation: 6th Cir.