United States v. Brown

601 F.Supp.3d 267

UNITED STATES of America, Plaintiff,

v.Derrick BROWN, Defendant.

Case No. 1:21-cr-289

United States District Court, N.D. Ohio, Eastern Division.

Signed April 29, 2022

Carolyn M. Kucharski, Catherine Adinaro Shusky, Office of the Federal Public Defender, Cleveland, OH, for Defendant.

Colleen M. Egan, Peter E. Daly, Office of the U.S. Attorney, Akron, OH, for Plaintiff.

MEMORANDUM OPINION

J. Philip Calabrese, United States District Judge

In 2010, when he was 18 years old, Defendant Derrick Brown was convicted of aggravated robbery with a firearm specification in violation of Ohio law, specifically Section 2911.01(A)(1) of the Ohio Revised Code. For that offense, he was sentenced to and served eight years in prison. The parties dispute whether this conviction constitutes a crime of violence under the Sentencing Guidelines following the Supreme Court's decision last year in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). Though it heard oral arguments on the issue in March 2022, the Sixth Circuit has not yet spoken to the issue. United States v. White , No. 21-3209 (6th Cir.); see also United States v. Butts , No. 21-3783 (6th Cir.).

For Mr. Brown, if his prior conviction counts as a crime of violence, he has a total offense level of 34 and a criminal history category of VI, yielding a guideline range of 262 to 327 months. If that conviction is not a crime of violence, he has a total offense level of 31 and a criminal history category of III, for a guideline range of 135 to 168 months. Defendant also argues that offense does not constitute a serious violent felony for purposes of 18 U.S.C. § 3559(c)(2). If it does, 18 U.S.C. § 841(b)(1)(A) provides for a mandatory minimum sentence of 15 years (180 months) in prison and a minimum period of 10 years of supervised release.

I. Sentencing Guidelines ( U.S.S.G. § 4B1.2(a) )

The United States Sentencing Guidelines impose longer prison sentences on certain defendants who have a criminal record containing previous violent felonies. As applicable here, the Guidelines define a "crime of violence" as any State or federal offense that meets one of two definitions. Under the Guidelines, a crime of violence means any offense that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). Defendant makes arguments under each of these definitions. The Court addresses each in turn.

I.A. Force or Elements Clause ( U.S.S.G. § 4B1.2(a)(1) )

Because it requires that an offense have as an element the actual, attempted, or threatened use of force to constitute a crime of violence, Section 4B1.2(a)(1) is referred to as the "force clause" or, alternatively, the "elements clause." Defendant argues that a conviction for aggravated robbery under Section 2911.01(A)(1) of the Ohio Revised Code is not a crime of violence under the force clause. The parties do not dispute that the force clause requires a mens rea greater than recklessness as to the force element. That is the central holding of Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). Defendant contends that Section 2911.01(A)(1) has no mens rea , while the United States contends it has a mens rea greater than recklessness.

I.A.1. Categorical Approach

The Supreme Court directs lower courts to use the categorical approach to determine whether prior convictions "ha[ve] as an element the use, attempted use or threatened use of physical force against the person of another." Descamps v. United States , 570 U.S. 254, 260–61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (citing Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). Although the categorical approach originated under the Armed Career Criminal Act, it also applies to the Sentencing Guidelines. See United States v. Ford , 560 F.3d 420, 421–22 (6th Cir. 2009). Under the categorical approach, courts do not look at the particular facts of a prior conviction. Instead, they examine only the statutory elements of previous offenses. Descamps , 570 U.S. at 261, 133 S.Ct. 2276 ; Taylor , 495 U.S. at 600, 110 S.Ct. 2143. Under the categorical approach, courts determine whether every defendant convicted of the particular offense must have used, attempted to use, or threatened to use physical force against the person of another to have been convicted of that offense. Burris , 912 F.3d at 392. Courts do not examine whether the defendant actually used, attempted to use, or threatened to use physical force against the person of another in the particular case giving rise to the prior conviction. Id.

I.A.2. The Ohio Supreme Court and Circuit Precedent

Ohio's aggravated robbery statute provides that "[n]o person in attempting or committing a theft offense ... or in fleeing immediately after the attempt or offense, shall ... [h]ave a deadly weapon ... and either display the weapon, brandish it, indicate that the offender possesses it, or use it." Ohio Rev. Code § 2911.01(A)(1). In State v. Evans , 122 Ohio St. 3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 23, the Ohio Supreme Court read Section 2911.01(A)(1) as inherently conveying a threat of force against another. According to Evans , the Ohio statute requires the following intent:

One cannot display, brandish, indicate possession of, or use a deadly weapon in the context of committing a theft offense without conveying an implied threat to inflict physical harm. 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 with the command to relinquish property without consent.

Id. In this regard, the Ohio Supreme Court reads the State's aggravated robbery statute as having as an element, at the very least, the implied threat of the use of physical force. Moreover, the Ohio Supreme Court rejected as "implausible" examples in which a person could indicate possession of a deadly weapon without implying a threat to inflict physical harm. Id. at ¶ 24.

Based on this reading of the aggravated robbery statute, the Sixth Circuit directly addressed whether aggravated robbery is a crime of violence under the Guidelines. In United States v. Patterson , 853 F.3d 298, 305 (6th Cir. 2017), the Sixth Circuit ruled that aggravated robbery under Ohio law constitutes a crime of violence under the Sentencing Guidelines. This ruling builds on a line of authority in which the Sixth Circuit equates the force clause of the Guidelines with the elements clause of the Armed Career Criminal Act, which is nearly identical. Id. at 305 (citing United States v. Rede-Mendez , 680 F.3d 552, 555 n.2 (6th Cir. 2012) ); see also United States v. Burris , 912 F.3d 386, 390 (6th Cir. 2019) (en banc). Of particular importance for present purposes, the definition of a violent felony under the Armed Career Criminal Act applies to a crime of violence under the Guidelines as well. United States v. Hibbit , 514 F. App'x 594, 597 (6th Cir. 2013).

To hold in Patterson that aggravated robbery under Section 2911.01(A)(1) of the Ohio Revised Code is a crime of violence under the Sentencing Guidelines, the Sixth Circuit relied on the Ohio Supreme Court's ruling in Evans . Patterson , 853 F.3d at 302–03. Therefore, the question becomes whether Patterson controls or if changes in the law as to mens rea supersede that decision.

I.A.2.a. Borden

Recently, the Supreme Court decided Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), under the Armed Career Criminal Act. There, writing for a four-Justice plurality, Justice Kagan identified four states of mind that give rise to criminal liability, in descending order of culpability: purpose, knowledge, recklessness, and negligence. Id. at 1823. The plurality held that the definition of a violent felony requires purpose or knowledge, not recklessness or negligence. Id. at 1825. For this conclusion, the plurality located the mens rea requirement in the language of the force clause in the Armed Career Criminal Act, which requires force "against the person of another." Id. at 1833. This language "introduces that action's conscious object." Id. Therefore, it excludes reckless conduct and actions not directed at another. Id.

In so concluding, the plurality abrogated the Sixth Circuit's decision in United States v. Verwiebe , 874 F. 3d 258 (6th Cir. 2017), which held that reckless offenses qualified as violent felonies. See Borden , 141 S. Ct. at 1823. Relying on Verwiebe , the Sixth Circuit upheld Borden's sentence as a career offender, id. , and the Supreme Court reversed, id. at 1834. "Offenses with a mens rea of recklessness do not qualify as violent felonies under ACCA." Id.

Justice Thomas concurred in the judgment on the ground that recklessness does not embrace use of physical force as an element. Id. at 1835 (Thomas, J., concurring). Justice Thomas preferred to overrule Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (holding that the residual clause of the ACCA is unconstitutionally vague under the Fifth Amendment), but accepted Johnson in Borden to avoid "create[ing] further confusion and division about whether state laws prohibiting reckless assault satisfy the elements clause." Id. at 1836. In taking this position, Justice Thomas left no doubt that he viewed Borden's crime as "a ‘violent felony’ as Congress defined the term." Id.

I.A.2.b. Viability of Circuit Precedent Following Borden

The Sixth Circuit decided Patterson on April 3, 2017—some four years before Borden , but also six months before the Sixth Circuit decided Verwiebe on October 20, 2017. At...