Opinion
CASE NO. 5:14-CR-289
09-25-2015
UNITED STATES OF AMERICA, Plaintiff, v. LUKE D. PATTERSON, Defendant.
OPINION & ORDER :
On April 8, 2015, Defendant Luke D. Patterson entered a plea of guilty to the charge of Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. § 922(g).
Doc. 1; Doc. 42.
At the sentencing hearing, the Government argued that Defendant Patterson should be sentenced under the Armed Career Criminals Act ("ACCA" or "Act"), codified at 18 U.S.C. § 924(e)(1). Under the ACCA, a defendant faces a fifteen year mandatory minimum sentence if he is charged as a felon in possession of a firearm and has three or more earlier "violent felony" convictions. Defendant Patterson objects to the application of the ACCA to his case.
At the September 23, 2015 sentencing hearing, the Court sustained Defendant Patterson's objection. The Court offers further analysis in this written opinion and order.
I. Background
Near 2001, Ohio convicted Patterson of three counts of aggravated robbery under Ohio Rev. Code § 2911.01(A)(1). At the time of these convictions, Ohio's aggravated robbery statute provided:
In reviewing the underlying offense, the Court takes the modified categorical approach outlined by the Supreme Court in United States v . Descamps, ___ U.S. ___, 133 S.Ct. 2276 (2013). Ohio's aggravated robbery statute contains various subparts identifying different possible elements. However, the statute is clearly divisible, and under the "modified categorical" approach, the Court may look to particular court documents to determine which subpart is at issue. The parties agree that the relevant elements are contained at Ohio Rev. Code 2911.01(A)(1).
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapono nor about the of enders' person or under the of enders' contro land either display the weapon, brandishit, indicate that the of ender possesses it, or use it;
The Court decides whether Patterson's three Ohio aggravated robbery conviction are each a predicate "violent felony" under the ACCA.
The Armed Career Criminals Act defines "violent felony" as:
any crime punishable by imprisonment for a term exceeding one year . . . that—
18 U.S.C. § 924(e)(2)(B) (emphasis added). Until recently, Ohio's aggravated robbery statute was a violent felony under the last clause of subsection (ii): a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." However, on June 26, 2015, the Supreme Court issued an opinion in Johnson v. United States, holding that this residual clause was unconstitutionally vague.(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
___ U.S. ___, 135 S.Ct. 2551 (2015).
As a result, the Government must now show that a conviction under Ohio Rev. Code § 2911.01(A)(1) is a violent felony under subsection (i), frequently called the "force clause." A predicate felony under the force clause must "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another."
II. Standard
A state statute need not have an express element mirroring the force clause to be a predicate offense under the ACCA. However, violation of the elements of the state statute must necessarily entail "the use, attempted use, or threatened use of physical force against the person of another."
The leading case that discussed this provision is the 2010 decision in Johnson v. United States. There, the Supreme Court analyzed the Florida battery statute, which allowed for conviction when a person "actually and intentionally touches or strikes another person against [his] will." The Court found that the Defendant's conviction for battery "was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes the use of 'physical force' within the meaning of § 924(e)(2)(B)(i)."
559 U.S. 133 (2010) (unrelated to the 2015 Johnson opinion).
Id. at 133 (quoting Fla. Stat. § 784.03(1)(a)).
Id. at 136. The Court focused on the more minimal "actually and intentionally touching" rather than "strike" because "nothing in the record of Johnson's 2003 battery conviction permitted the District Court to conclude that it rested upon anything more than the least of these acts." Id. Similarly, in taking the modified categorical approach, the Court can narrow down the predicate offense to Ohio Rev. Code § 2911.01(A)(1), but it must consider the "least" of the acts covered by that portion of the statute.
The Supreme Court in Johnson then held that "physical force" as used in the ACCA means "violent force—that is, force capable of causing physical pain or injury to another person." Moreover, the term physical "plainly refers to force exerted by and through concrete bodies—distinguishing physical force from, for example, intellectual force or emotional force."
A defendant could be convicted under the Florida battery statute for "any intentional physical contact, 'no matter how slight.'" As a result, the Court found that the statute did not have an element of the use, attempted use, or threatened use of physical force. In Johnson, the Court found that the Florida battery statute could not be a predicate offense.
Id. at 138.
The Sixth Circuit has also analyzed whether particular state charges constitute predicate offenses under the force clause. In United States v. Gloss, the Circuit analyzed the Tennessee statute for aggravated robbery. The statute required that the crime was either "accomplished with a deadly weapon" or resulted in the victim "suffer[ing] serious bodily injury." The Sixth Circuit concluded that "any robbery accomplished with a real or disguised deadly weapon, or that causes serious bodily injury, falls under the first clause of the definition of violent felony, as it necessarily involves 'the use, attempted use, or threatened use of physical force against the person of another.'"
661 F.3d 317 (6th Cir. 2011).
Id. at 319.
In United States v. Anderson, the Sixth Circuit addressed Ohio's aggravated assault statute. The statute required that the defendant knowingly "(1) [c]auses serious physical harm to another [or] (2) [c]ause[s] or attempt[s] to cause physical harm to another . . . by means of a deadly weapon or dangerous ordnance." Citing Johnson, the Sixth Circuit found it "clear" that the statute's terms "necessarily requires proof that the defendant used 'force capable of causing physical pain or injury.'" The Circuit noted that a defendant cannot knowingly cause serious physical harm to another without using physical force as understood in the context of the ACCA.
695 F.3d 390 (6th Cir. 2012).
Id. at 399-400.
Id. at 400.
Finally, in United States v. Bilal, the Sixth Circuit addressed an earlier version of the Ohio aggravated robbery statute at issue in this case. The verison of the statute in effect at the time of the underlying conviction in Bilal did not include the phrase, "display the weapon, brandish it, indicate that the offender possesses it, or use it." The Sixth Circuit held that the statute absent this language was not a predicate violate felony. The statute did not include as an element the use, attempted use, or threatened use of physical force against the person of another.
610 Fed. App'x. 569 (6th Cir. 2015).
Id.
III. Analysis
This appears to be an issue of first impression: whether the amended Ohio aggravated robbery statute is a predicate violent felony under the force clause of the ACCA. Although a close issue, the Court holds that it does not.
Given the recent ruling in Bilal, the Court looks to the qualifying element in the Ohio aggravated robbery statute, which allows conviction if defendants "display the weapon, brandish it, indicate that the offender possesses it, or use it." Displaying, indicating possession, or using a weapon covers a wide range of culpable behavior. But that range of behavior does not necessitate the use, attempted use, or even threatened use of physical force against the person of another. Instead, a defendant could be culpable under the Ohio statute for using emotional force, or for threatening force against an object rather than a person.
The case at hand is distinguishable from both Gloss and Anderson. Gloss concerned a statute that required that the robbery itself be "accomplished with a deadly weapon." Accomplishing the crime "with" a weapon covers a narrower range of action than the Ohio aggravated robbery statute allowing conviction for the display, indication of possession, or use of a weapon. Moreover, the statute at issue in Anderson had a prong that specifically required serious physical harm, which is closely tied to the requisite element of "physical force."
The Armed Career Criminals Act imposes a lengthy fifteen year mandatory minimum sentence. The Supreme Court recently invalidated the Act's residual clause as unconstitutionally vague. This decision highlights the burden placed on lower courts to ensure that predicate crimes fit squarely within the purview of the remaining clauses of the statute. Ohio's aggravated robbery statute undoubtedly covers some behavior that implicates physical force. But the statute is not narrowly limited to those situations. Instead, it covers a wide range of behaviors, including those that conceivably do not include the use, attempted use, or threatened use of physical force against the person of another.
Defendant also raises arguments that the mens rea element of Ohio's aggravated robbery statute is insufficient for the conviction to qualify as a predicate felony. As the Court finds that the aggravated robbery statute is otherwise not a violent felony, the Court does not reach this issue. --------
For the foregoing reasons, the Defendant's objection to application of the Armed Career Criminals Act is SUSTAINED.
IT IS SO ORDERED. Dated: September 25, 2015
s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE