United States v. Ivy

93 F.4th 937

UNITED STATES of America, Plaintiff-Appellee, v. Alexander IVY, Defendant-Appellant.

No. 22-4052

United States Court of Appeals, Sixth Circuit

Argued: January 30, 2024

Decided and Filed: February 20, 2024

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:22-cr-00059-1—Donald C. Nugent, District Judge.

ARGUED: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Jason Manion, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Jason Manion, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: SILER, MATHIS, and BLOOMEKATZ, Circuit Judges.

OPINION

MATHIS, Circuit Judge.

Alexander Ivy pleaded guilty to possession of methamphetamine with intent to distribute and being a felon in possession of a firearm. At sentencing, the district court enhanced Ivy's Sentencing Guidelines range upon finding that Ivy's prior conviction for aggravated robbery under Ohio law was a "crime of violence" under the Guidelines. We hold that a conviction for aggravated robbery with a deadly weapon under Ohio Revised Code § 2911.01(A)(1), without further information that the aggravated-robbery conviction is predicated on a particular underlying theft offense, is not a crime of violence. We thus vacate Ivy's sentence and remand to the district court for resentencing.

I.

On March 24, 2021, Ivy went to a drug house to purchase drugs. While he was there, police officers executed a search warrant on the house. When the police arrived, Ivy picked up a gun and placed it inside a kitchen drawer. The police recovered the gun, and DNA testing revealed that Ivy had touched it. The officers also recovered 29 methamphetamine pills.

A grand jury indicted Ivy for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Ivy pleaded guilty to both counts of the indictment with a plea agreement.

Ivy had previously been convicted of multiple Ohio felonies, including aggravated robbery. See OHIO REV. CODE ANN. § 2911.01(A)(1). At sentencing, the district court found that Ivy's prior aggravated-robbery conviction was a "crime of violence" under the Guidelines. Without such a finding, Ivy's Guidelines range would likely have been 46 to 57 months' imprisonment. Because the district court designated Ivy's prior aggravated-robbery conviction as a crime of violence, Ivy's Guidelines range increased to 92 to 115 months' imprisonment. Ultimately, the district court sentenced Ivy to a below-Guidelines sentence of 75 months' imprisonment. Ivy timely appealed.

II.

We must decide whether the district court erred in finding that Ivy had a conviction for a crime of violence before he committed the offense of being a felon in possession of a firearm. We review the district court's answer to this legal question de novo. United States v. Hawkins, 554 F.3d 615, 616 (6th Cir. 2009).

Under the Guidelines, a defendant with a felon-in-possession conviction generally begins with a base offense level of 14. U.S.S.G. § 2K2.1(a)(6). But if the defendant committed the felon-in-possession offense after having been previously convicted "of either a crime of violence or a controlled substance offense," his base offense level jumps to 20. Id. § 2K2.1(a)(4)(A).

The Guidelines define a "crime of violence" as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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).

Id. § 4B1.2(a) (2018). We commonly refer to subpart (1) as the elements clause and subpart (2) as the enumerated-offenses clause. We consider if Ohio aggravated robbery with a deadly weapon is a crime of violence under either clause.

III.

Ivy's aggravated-robbery conviction arises from a violation of Ohio Revised Code § 2911.01(A)(1). That statute makes it a first-degree felony for an offender to possess a deadly weapon and "either display the weapon, brandish it, indicate that the offender possesses it, or use it" while "attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code." OHIO REV. CODE ANN. § 2911.01(A)(1). Section 2913.01 in turn identifies more than 30 different "theft offenses." Id. § 2913.01(K). An offender thus commits Ohio aggravated robbery by perpetrating any one of the predicate theft offenses while possessing and using a deadly weapon. Section 2913.01(K) specifies some serious theft offenses, such as robbery, burglary, and aggravated theft. Id. § 2913.01(K)(1) (citing §§ 2911.02, 2911.12(A), 2913.02(B)(2)). But the list of theft offenses also includes seemingly less serious offenses, such as tampering with coin machines, safecracking, insurance fraud, and workers' compensation fraud. Id. (citing §§ 2911.31, 2911.32, 2913.47, 2913.48). Ivy's state-court indictment and judgment of conviction do not specify the predicate theft offense for his aggravated-robbery conviction.

A.

We first consider whether Ivy's Ohio aggravated-robbery conviction is a crime of violence under the Guidelines' elements clause. It is not. In United States v. White, we recently held that after Borden v. United States, 593 U.S. 420, 141 S.Ct. 1817, 210 L.Ed.2d 63 (2021), an Ohio aggravated-robbery conviction is not a crime of violence under Armed Career Criminal Act's elements clause unless its predicate theft offense has as an element the "knowing or purposeful 'use, attempted use, or threatened use of physical force against the person of another.' " 58 F.4th 889, 899 (6th Cir. 2023). We can apply our interpretation of the Armed Career Criminal Act's elements clause to the Guidelines' elements clause because those clauses "are identical." United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019) (en banc).

Because Ivy's state-court indictment and judgment for his aggravated-robbery conviction do not identify his predicate theft offense, the government cannot show that the conviction required a knowing or purposeful use of force and falls within the purview of the Guidelines' elements clause. White, 58 F.4th at 899. The government does not challenge this conclusion.

B.

We next consider whether Ivy's conviction for Ohio aggravated robbery is a crime of violence under the Guidelines' enumerated-offenses clause. The government argues that Ohio aggravated robbery is a match for either robbery or extortion under the Guidelines. See U.S.S.G. § 4B1.2(a)(2). To determine if a prior conviction matches one of the offenses listed in the enumerated-offenses clause, we apply the categorical approach and assess whether the prior conviction's elements "are the same as, or narrower than, those of the generic offense" listed in the enumerated-offenses clause. Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). "[I]f the crime of conviction covers any more conduct than the generic offense," then the predicate crime does not match an enumerated offense even if the defendant's actual conduct "fits within the generic offense's boundaries." Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Thus, if the Ohio aggravated-robbery statute "reaches conduct outside the scope of" the generic offense, such that a hypothetical defendant can receive a conviction under the statute without satisfying the elements of the offense identified in the Guidelines, then it "does not constitute a crime of violence." United States v. Yates, 866 F.3d 723, 734 (6th Cir. 2017).

The Ohio aggravated-robbery statute, we have explained, is "twice divisible." United States v. Wilson, 978 F.3d 990, 997 (6th Cir. 2020). That is, the statute not only requires us to determine the type of aggravated robbery at issue—§ 2911.01(A)(1), (2), or (3)—but also, which of the more than 30 theft offenses mentioned in § 2913.01(K) underlies the conviction. Id. at 997-99. We therefore apply the modified categorical approach "to determine which alternative element" in the statute "formed the basis of the defendant's conviction." Descamps, 570 U.S. at 278, 133 S.Ct. 2276. This approach allows us to look past "the mere fact of conviction" to other sources, such as charging documents and written plea agreements, to determine if Ivy's aggravated-robbery conviction is a crime of violence under the Guidelines. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Jamison, 85 F.4th 796, 802 (6th Cir. 2023). At the first divisibility step, we look to the Shepard documents to determine Ivy's predicate theft offense—one of the more than 30 different theft offenses listed in Ohio Revised Code § 2913.01(K). Wilson, 978 F.3d at 997-98. And at the second step, we must determine which of the three possible actions Ivy took while committing the predicate theft offense. Id.; OHIO REV. CODE ANN. § 2911.01(A)(1)-(3). In essence, each of § 2913.01(K)(1)'s more than 30 theft offenses combines with a prohibited action in § 2911.01(A) to create a distinct aggravated-robbery offense. See Wilson, 978 F.3d at 999. And where, as here, the Shepard documents "do not make clear" under which theft offense the defendant was convicted, we "must presume" that the aggravated-robbery conviction "rested upon nothing more than the least of the acts criminalized" by the Ohio law. Burris, 912 F.3d at 406 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013)).

Applying this analysis, we...