United States v. Willie Yates

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0173p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 16-3997

v. │

│

│

WILLIE YATES, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 5:10-cr-00489-1—Christopher A. Boyko, District Judge.

Argued: June 13, 2017

Decided and Filed: August 9, 2017

Before: MOORE, GILMAN, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Claire C. Curtis, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio,

for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,

for Appellee. ON BRIEF: Claire C. Curtis, FEDERAL PUBLIC DEFENDER’S OFFICE,

Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE,

Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Willie Yates appeals from the district court’s

sentencing decision in connection with his convictions for being a felon in possession of a

firearm and for possessing crack cocaine with the intent to distribute the drug. The court found

No. 16-3997 United States v. Yates Page 2

Yates to be a career offender under United States Sentencing Guidelines (U.S.S.G.) § 4B1.1(a)

based on his prior Ohio convictions for robbery and drug trafficking. Yates contends, however,

that he was improperly classified as a career offender, arguing that his Ohio robbery conviction

does not qualify as a “crime of violence” under U.S.S.G § 4B1.1(a)(3). He also contends that his

sentence is substantively unreasonable because the court failed to consider an applicable policy

statement in the commentary to the guidelines. For the following reasons, we VACATE Yates’s

sentence and REMAND the case for resentencing.

I. BACKGROUND

A. Factual background

In 2010, officers with the Akron Police Department executed a search warrant at Yates’s

residence. The police seized firearms, ammunition, crack cocaine, and drug paraphernalia during

the search. Yates was subsequently arrested and charged with being a felon in possession of a

firearm, in violation of 18 U.S.C § 922(g)(1), and for possessing crack cocaine with the intent to

distribute the drug, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). A jury found Yates

guilty of both offenses in 2011.

At sentencing, the district court determined that Yates was an armed career criminal

based on his prior criminal history. The court therefore imposed a mandatory minimum sentence

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and sentenced Yates to

prison terms of 327 months on each count, to run concurrently.

B. Procedural background

This court affirmed Yates’s conviction and sentence in 2012, holding that the district

court did not err in classifying Yates as an armed career criminal. See United States v. Yates,

501 F. App’x 505 (6th Cir. 2012). Yates later returned to the district court to file a motion under

28 U.S.C. § 2255, alleging that a number of errors occurred during his trial and at his sentencing.

The district court denied Yates’s motion in 2014. He then filed a notice of appeal and requested

a certificate of appealability (COA), which this court granted on the sole issue of whether

Yates’s counsel provided ineffective assistance during his trial. The court later expanded the

No. 16-3997 United States v. Yates Page 3

COA to include Yates’s claim that he was improperly sentenced under the ACCA in light of the

Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).

In 2016, this court affirmed the district court’s denial of Yates’s ineffective-assistance

claim, but vacated Yates’s sentence. See Yates v. United States, No. 14-3547 (6th Cir. April 13,

2016). Yates’s status as an armed career criminal was based in part on his 1999 Ohio robbery

conviction, which the district court had deemed to be a “violent felony” under the ACCA’s

residual clause. And because the residual clause was held to be unconstitutionally vague in

Johnson, this court concluded that Yates was entitled to be resentenced.

An updated Presentence Report, prepared in connection with Yates’s resentencing,

determined that he was a career offender under U.S.S.G. § 4B1.1 based on his 1999 Ohio

robbery conviction and his 2008 Ohio drug-trafficking conviction. Yates’s base offense level

was therefore set at 34. If this enhancement had not been applied, Yates’s base offense level

would have been 24. And because Yates was found to be in possession of enough crack cocaine

to constitute a felony, the report reflected a four-level increase under U.S.S.G. § 2K2.1(b)(6),

which applies such an increase if the defendant “used or possessed [a] firearm or ammunition in

connection with another felony offense.” His adjusted offense level, without the career-offender

enhancement, would have therefore been 28. Yates filed a sentencing memorandum in response

to the Presentence Report, arguing that he was not a career offender under U.S.S.G. § 4B1.1

because his Ohio robbery conviction was not a qualifying offense under the guidelines. Yates

also contended that, even if he was found to be a career offender, the district court should decline

to apply the sentence enhancement based on an applicable policy statement in the commentary to

the guidelines.

The district court rejected Yates’s arguments and found him to be a career offender with

a base offense level of 34. Because of Yates’s depression, poor medical condition, and the lack

of any disciplinary history while incarcerated, however, the court decided to vary downward

from the guidelines range, which was 262 to 327 months of imprisonment. The court instead

sentenced Yates to a term of 120 months’ imprisonment for his conviction under 18 U.S.C.

§ 922(g)(1) and a term of 240 months’ imprisonment for his conviction under 21 U.S.C.

§ 841(a)(1), to run concurrently. Yates timely appealed, arguing that (1) the court erred in

No. 16-3997 United States v. Yates Page 4

sentencing him as a career offender under the guidelines because his Ohio robbery conviction

should not be considered a qualifying offense, and (2) the sentence imposed by the court was

substantively unreasonable.

II. ANALYSIS

A. Standard of review

“We review de novo a district court’s conclusion that a crime qualifies as a predicate

offense for the career-offender designation” under the guidelines. United States v. Skipper,

552 F.3d 489, 491 (6th Cir. 2009). The reasonableness of a sentence, on the other hand, is

reviewed using the abuse-of-discretion standard. United States v. Carter, 510 F.3d 593, 600 (6th

Cir. 2007). “Review for reasonableness has both procedural and substantive components.” Id.

B. Yates was improperly designated a career offender under the guidelines.

Yates first argues that the district court erred in applying the career-offender

enhancement to determine that his base offense level was 34. Under the guidelines,

[a] defendant is a career offender if (1) the defendant was at least eighteen years

old at the time the defendant committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). At the time that Yates was sentenced, a “crime of violence” was defined

by the guidelines 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 burglary of a dwelling, arson, or extortion, involves

use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another.

U.S.S.G. § 4B1.2(a) (2009).

No. 16-3997 United States v. Yates Page 5

The district court concluded that Yates’s 1999 Ohio robbery conviction was a crime of

violence and that his 2008 Ohio drug-trafficking conviction was a controlled-substance offense.

Yates was therefore subject to the career-offender enhancement under U.S.S.G. § 4B1.1(a)(3)

based on these two convictions. On appeal, Yates challenges the court’s conclusion that his

Ohio robbery conviction qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1) (the force

clause). The government responds that Yates’s robbery conviction is indeed a crime of violence

under the force clause and that, in the alternative, robbery is a crime of violence under

§ 4B1.2(a)(2) (the enumerated-offenses clause). We will address each of these arguments in

turn.

1. Yates’s conviction under Ohio Rev. Code Ann. § 2911.02(A)(3) does

not qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(1).

Yates was convicted of robbery in 1999 under Ohio Rev. Code Ann. § 2911.02(A)(3),

which provides as follows:

(A) No person, in attempting or committing a theft offense or in

fleeing immediately after the attempt or offense, shall . . .

(3) Use or threaten the immediate use of force against

another.

For the purpose of this statute, force is defined as “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing.” Ohio Rev. Code Ann.

§ 2901.01(A)(1).

Yates first contends his robbery conviction is not a crime of violence because the degree

of physical force required by the guidelines’ force clause is “violent force—that is, force capable

of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133,

140 (2010). (We note that this 2010 Johnson decision is distinct from the Supreme Court’s 2015

decision of the same name that we have previously cited.) Yates argues that the force

criminalized by Ohio Rev. Code Ann. § 2911.02(A)(3)—“any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing”—is less than the

violent force required by the guidelines’ force clause as interpreted by Johnson.

No. 16-3997 United States v. Yates Page 6

This court has previously addressed the Ohio robbery statute at issue in the unpublished

opinion of United States v. Mansur, 375 F. App’x 458 (6th Cir. 2010). The court in Mansur

determined that the defendant’s conviction for attempted robbery under Ohio law qualified as a

violent felony under the ACCA because “the crime of robbery clearly has as an element the use,

attempted use, or threatened use of physical force against another person.” Id. at 463–64.

Ordinarily, “we treat a holding that a crime is categorically a violent felony under the

ACCA as controlling as to whether that same crime is a crime of violence under § 4B1.1.”

United States v. Hibbit, 514 Fed. App’x. 594, 597 (6th Cir. 2013). But because Mansur is

unpublished, we are not bound by its holding. See Bell v. Johnson, 308 F.3d 594, 611 (6th Cir.

2002) (“It is well-established law in this circuit that unpublished cases are not binding

precedent.”). We also find the reasoning of Mansur unpersuasive in light of Supreme Court

precedent, Ohio state-court decisions, and more recent caselaw from our sister circuits.

In determining whether Yates’s conviction under Ohio Rev. Code Ann. § 2911.02(A)(3)

is a crime of violence as defined by the guidelines, we must “apply a ‘categorical’ approach,

meaning that we look at the statutory definition of the crime of conviction, not the facts

underlying that conviction, to determine the nature of the crime.” See United States v. Ford,

560 F.3d 420, 421–22 (6th Cir. 2009). Under the categorical approach, we must first assume that

Yates’s “conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and

then determine whether even those acts” would qualify as a crime of violence under the

guidelines. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Johnson, 559 U.S.

at 137). The minimum culpable conduct criminalized by the state statute includes only conduct

to which there is a “realistic probability, not a theoretical possibility” that the state would apply

the statute. Id. at 1685 (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007)).

In other words, we must determine the minimum level of force criminalized by Ohio Rev. Code

Ann. § 2911.02(A)(3) and then resolve whether that conduct constitutes the type of violent force

required by the guidelines’ force clause.

The force criminalized by Ohio Rev. Code Ann. § 2911.02(A)(3) is defined as “any

violence, compulsion, or constraint physically exerted by any means upon or against a person.”

Ohio Rev. Code Ann. § 2901.01(1)(1) (emphases added). By its plain language, Ohio’s

No. 16-3997 United States v. Yates Page 7

expansive definition of force appears to cover more than force “capable of causing physical pain

or injury to another person.” See Johnson, 559 U.S. at 140; see also United States v. Mulkern,

854 F.3d 87, 93–94 (1st Cir. 2017) (“The word ‘any’ is a powerful beacon to us here, making

clear that the crime does not require a showing of force ‘capable of causing physical pain or

injury’—something short of that will do.”); United States v. Eason, 829 F.3d 633, 641 (8th Cir.

2016) (holding that, after Johnson, the definition of physical force under Arkansas law—being

“any . . . [b]odily impact, restraint, or confinement; or [t]hreat of any bodily impact, restraint, or

confinement”—“on its face, falls short of requiring ‘force capable of causing physical pain or

injury to another person.’”).

A review of Ohio state-court decisions confirms our view that a defendant need not

engage in violent force in order to be convicted of robbery under Ohio Rev. Code Ann.

§ 2911.02(A)(3). But we acknowledge that, at first glance, the Ohio case of State v. Carter,

504 N.E.2d 469 (Ohio Ct. App. 1985), appears to lean the other way. The Carter court stated

that “[t]he type of force envisioned by the legislature in enacting [the Ohio robbery statute] is

that which poses actual or potential harm to a person.” Id. at 470. In fact, this court justified its

holding in Mansur based partially on the above quotation. See Mansur, 375 F. App’x at 464 n.8.

And the statement in Carter could be interpreted to support the conclusion that a conviction

under Ohio Rev. Code Ann. § 2911.02(A)(3) requires proof of “force capable of causing

physical pain or injury to another person.” See Johnson, 559 U.S. at 140. But Mansur failed to

acknowledge that the Ohio courts, in practice, have affirmed Ohio robbery convictions where the

force applied by the defendant was lower than the type of violent force required by Johnson.

Indeed, the facts before the Carter court involved a victim who “had a firm grasp of her

purse, with the strap over her shoulder, when [the defendant] pulled it from her” and “then pulled

[her] right hand off of [her] left hand here where [she] []was holding the bottom part of [her]

purse.” Carter, 504 N.E.2d at 470–71. The court first reasoned that “the potential for serious

physical injury was certainly present” in light of the woman’s age, id. at 470, and therefore the

threat of the immediate use of physical force existed as contemplated by Ohio Rev. Code Ann.

§ 2911.02(A)(3). Had Carter rested its holding solely on the existence of this threat of serious

physical injury, we might be inclined to reaffirm Mansur’s holding that “the crime of robbery

No. 16-3997 United States v. Yates Page 8

[under Ohio law] clearly has as an element the use, attempted use, or threatened use of physical

force against another person.” Mansur, 375 F. App’x 458 at 463–64.

But the Carter court went on to hold that this purse-snatching incident entailed the

requisite degree of actual force sufficient to constitute robbery under Ohio Rev. Code Ann.

§ 2911.02(A)(3). The court stated that, “[g]iven [the victim’s] vulnerability, the force applied,

however minuscule, was within the contemplation of the statute,” so that “Carter’s acts . . . in

grabbing the victim’s purse constituted the actual use of force.” Carter, 504 N.E.2d at 471

(emphasis added). To support this conclusion, the court cited an unpublished Ohio appellate

case holding “that the act of bumping an elderly victim in order to distract her attention while

another person removed her wallet from her purse comprises force under the robbery statute.”

Id. at 470 (citing State v. Grant, No. 43027, 1981 WL 4576, at *2 (Ohio Ct. App. Oct. 22,

1981)). Indeed, the Carter court explicitly quoted Grant’s language that “a bump is an act of

violence within the meaning of R.C. 2901.01(A), even though only mildly violent, as the statute

does not require a high degree of violence.” Id. (quoting Grant, No. 43027, 1981 WL 4576, at

*2).

Subsequent Ohio decisions reinforce our conclusion that only a minimal level of force is

needed to sustain a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3). In another purse-

snatching case, an Ohio appellate court upheld the defendant’s conviction for robbery when he

“ran up to [the victim], grabbed her purse, jerked her arm back, and kept running.” In re

Boggess, 2005-Ohio-6527, 2005 WL 3344502, at *1 (Ohio Ct. App. 2005). The Boggess court

addressed the level of force required by Ohio Rev. Code Ann. § 2911.02(A)(3), noting that “[i]n

purse snatching cases, the evidence is sufficient to show that defendant exerted force toward

victim, so as to support conviction for robbery, when it shows that the accused physically exerted

enough force upon the victim’s arm so as to remove the purse from her involuntarily.” Id. at 3;

see also State v. Juhasz, 2015-Ohio-3801, 2015 WL 5515826, at *2 (Ohio Ct. App. 2015)

(recognizing that “Ohio courts have held that a struggle over control of an individual’s purse has

been sufficient to establish the element of force” and that “the struggle need not be prolonged or

active; the act of forcibly removing a purse from an individual’s shoulder is sufficient”). These

cases show that, at the very least, a “realistic probability” exists that Ohio is applying Ohio Rev.

No. 16-3997 United States v. Yates Page 9

Code Ann. § 2911.02(A)(3) in such a way that criminalizes a level of force lower than the type

of violent force required by Johnson. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)

(quoting Johnson, 559 U.S. at 137).

Finally, our conclusion is in line with recent decisions from other federal appellate courts

across the country that have addressed the issue before us now: whether the state robbery statute

in question contains as an element the use, attempted use, or threatened use of “force capable of

causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140. We conclude

that Ohio Rev. Code Ann. § 2911.02(A)(3) is akin to those state robbery statutes held not to

contain such a high level of force. The statute is also markedly dissimilar to the state statutes

held to criminalize the level of violent force necessary to sustain a sentence enhancement under

the guidelines.

For example, in United States v. Bell, 840 F.3d 963 (8th Cir. 2016), the Eighth Circuit

held that a conviction under Missouri’s second-degree robbery statute did not qualify as a crime

of violence because it did “not necessarily require use of the type of violent force described by

the Supreme Court in Johnson.” Id. at 966–67. To support its conclusion, the court pointed to a

case in which “the Missouri Court of Appeals sustained a conviction [for second-degree robbery]

based on the victim’s testimony that the defendant ‘‘bumped’ her shoulder and ‘yanked’ her

purse away from her[,]’ while ‘another witness testified that [the defendant] ‘nudged’ [the

victim],’ and yet a ‘third witness testified that there was a ‘slight’ struggle’ over the purse.” See

id. at 966 (quoting State v. Lewis, 466 S.W.3d 629, 631 (Mo. Ct. App. 2015)). Also relevant to

the court’s decision was the fact that “the victim did not testify [that] the slight struggle caused

her any pain, or that she was injured by the incident.” Id. The Eighth Circuit therefore

concluded that “there is at least a ‘reasonable probability’ Missouri could apply its statute (or

already has) to conduct falling short of violent force.” Id. (quoting Moncrieffe, 133 S. Ct. at

1685).

Other circuits have similarly held that, when a state robbery statute criminalizes minimal

force, such as the force incidental to purse-snatching, a conviction under that statute is not a

“crime of violence” under the guidelines’ force clause or a “violent felony” under the ACCA

force clause. See United States v. Mulkern, 854 F.3d 87, 93 (1st Cir. 2017) (holding that a state

No. 16-3997 United States v. Yates Page 10

conviction for robbery in Maine was not a violent felony under the ACCA because “Maine’s

highest court recognizes that ‘any physical force’ suffices to satisfy the ‘physical force’ element

[of the robbery statute],” including “‘the mere act of snatching a purse from the hand of a

victim’ . . . , even if the robber never made ‘direct bodily contact’ with the victim”) (emphasis in

original); United States v. Gardner, 823 F.3d 793, 803–04 (4th Cir. 2016) (holding that a

conviction under the North Carolina robbery statute did not qualify as a violent felony under the

ACCA in light of decisions from the North Carolina Court of Appeals holding “that a

defendant’s act of pushing the victim’s hand off of a carton of cigarettes was sufficient ‘actual

force’ to uphold a common law robbery conviction” and upholding “a conviction when a

defendant pushed the shoulder of an electronics store clerk, causing her to fall onto shelves while

the defendant took possession of a television”) (internal citations omitted); see also United States

v. Nicholas, No. 16-3043, 2017 WL 1429788, at *3–5 (10th Cir. Apr. 24, 2017) (holding that a

conviction under the Kansas robbery statute is not a violent felony under the ACCA); United

States v. Winston, 850 F.3d 677, 684–85 (4th Cir. 2017) (holding that a conviction under the

Virginia robbery statute is not a violent felony under the ACCA); United States v. Eason,

829 F.3d 633, 640–42 (8th Cir. 2016) (holding that a conviction under the Arkansas robbery

statute is not a violent felony under the ACCA).

The force required for a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3) is

similarly not “violent force . . . capable of causing physical pain or injury to another person.”

See Johnson, 559 U.S. at 140. Instead, Ohio appellate courts have held that “bumping into an

individual,” Carter, 504 N.E.2d at 471 (quoting Grant, 1981 WL 4576, at *2), and that the force

“exerted . . . upon the victim’s arm so as to remove the purse from her involuntarily,” Boggess,

2005 WL 3344502, at *3, is sufficient to sustain a conviction under Ohio Rev. Code Ann.

§ 2911.02(A)(3). We therefore see no way to distinguish this level of force from the force held

to be minimal by our sister circuits. See, e.g., Gardner, 823 F.3d at 803–04 (holding that “the

minimum conduct necessary to sustain a conviction for North Carolina common law robbery

does not necessarily include the use, attempted use, or threatened use of ‘force capable of

causing physical pain or injury to another person,’” where “even minimal contact may be

sufficient to sustain a robbery conviction if the victim forfeits his or her property in response”).

No. 16-3997 United States v. Yates Page 11

Ohio Rev. Code Ann. § 2911.02(A)(3) also stands in stark contrast to the statutes held by

this and other circuits to contain as an element the use, attempted use, or threatened use of “force

capable of causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140.

The level of force criminalized by the relevant state statutes in these cases is much greater than

the level of force criminalized by the Ohio robbery statute. For example, in United States v.

Harris, 844 F.3d 1260, 1266–68 (10th Cir. 2017), the Tenth Circuit held that a conviction under

the Colorado robbery statute constituted a violent felony under the ACCA because the Colorado

Supreme Court had explicitly held that “the gravamen of the offense of robbery is the violent

nature of the taking.” Id. at 1267 (quoting People v. Borghesi, 66 P.3d 93, 100–01) (Colo.

2003)). In fact, the Tenth Circuit distinguished the level of force required by the Colorado

statute from those state robbery statutes criminalizing a lower level of nonviolent force, such as

the force inherent in purse-snatching incidents. See id. at 1267–68, 1268 n.6 (distinguishing the

Colorado robbery statute from the state robbery statutes at issue in Bell, Gardner, and Eason).

Other cases holding that the state robbery statute in question involved the use or threat of

violent force have made similar findings. See United States v. Doctor, 842 F.3d 306, 308–12

(4th Cir. 2016) (holding that robbery in South Carolina is a violent felony under the ACCA

based, in part, on the fact that, unlike robbery statutes that criminalize purse-snatching incidents,

“there is no indication that South Carolina robbery by violence can be committed with minimal

actual force”), cert. denied, No. 16-8435, 137 S.Ct. 1831 (2017) (Mem.); United States v. Priddy,

808 F.3d 676, 686 (6th Cir. 2015) (holding that robbery in Tennessee constitutes a violent felony

under the ACCA because the statute specifically requires a showing of violence, which is

defined as “physical force unlawfully exercised so as to injure, damage or abuse,” or a showing

that the victim was in “fear of bodily injury and of present personal peril from violence offered

or impending”), abrogated on other grounds by United States v. Stitt, —F.3d—, 2017 WL

2766326 (6th Cir. June 27, 2017) (en banc).

In short, the case before us is distinguishable from the line of circuit decisions upholding

the use of state robbery convictions for sentence-enhancement purposes because “[i]n each of

these cases, there was either an explicit element of violence in the statute . . . or an absence of

state authority demonstrating a reasonable probability that state courts would apply the statute to

No. 16-3997 United States v. Yates Page 12

non-violent conduct.” Nicholas, 2017 WL 1429788 at *5 (internal citations omitted). Ohio Rev.

Code Ann. § 2911.02(A)(3), in contrast, has no explicit requirement of violent force, and Ohio

caselaw indicates that a defendant can be convicted of robbery based on a showing of nonviolent

force, such as the force inherent in a purse-snatching incident or from bumping against an

individual. See Carter, 504 N.E.2d at 471 (quoting Grant, 1981 WL 4576, at *2); Boggess,

2005 WL 3344502.

Based on Ohio state-court decisions, and guided by the various circuit cases, we therefore

conclude that the force criminalized by Ohio Rev. Code Ann. § 2911.02(A)(3) is not “violent

force . . . capable of causing physical pain or injury to another person.” See Johnson, 559 U.S.

133, 140 (2010) (emphasis in original). A “realistic probability” exists, in other words, that Ohio

is applying Ohio Rev. Code Ann. § 2911.02(A)(3) in such a way that criminalizes a level of

force lower than the type of violent force required by Johnson. As a consequence, Yates’s

conviction under that statute does not constitute a crime of violence under the guidelines’ force

clause, meaning that he is entitled to be resentenced. See Moncrieffe v. Holder, 133 S. Ct. 1678,

1684 (2013).

Because we hold that Ohio Rev. Code Ann. § 2911.02(A)(3) does not require proof of

sufficient physical force to constitute a crime of violence under U.S.S.G. § 4B1.2(a)(1), we have

no need to address Yates’s alternative argument that the Ohio robbery statute also lacks as an

element sufficient mens rea to qualify as a crime of violence under the guidelines. We instead

turn to the government’s alternative argument under U.S.S.G. § 4B1.2(a)(2).

2. Yates’s conviction under Ohio Rev. Code Ann. § 2911.02(A)(3) does

not qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(2).

The government argues, in the alternative, that Yates’s conviction under Ohio Rev. Code

Ann. § 2911.02(A)(3) qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(2) (the

enumerated-offenses clause). True enough, the 2016 edition of the guidelines defines a “crime

of violence” to include “murder, voluntary manslaughter, kidnapping, aggravated assault, a

forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm . . .

or explosive material.” U.S.S.G. § 4B1.2(a)(2) (2016) (emphasis added). But at the time of

Yates’s sentencing, robbery was not included in the list of enumerated offenses deemed to be

No. 16-3997 United States v. Yates Page 13

crimes of violence. Instead, the enumerated-offenses clause listed only “burglary of a dwelling,

arson, . . . extortion, [or the] use of explosives” as crimes of violence. U.S.S.G. § 4B1.2(a)(2)

(2009).

Although robbery was not an enumerated offense at the time of Yates’s sentencing, it has

since been added to the enumerated clause by a 2016 Amendment that applies retroactively. See

United States v. Kennedy, No. 15-1456, --- F. App’x ---, 2017 WL 1078552, *8 (6th Cir. Mar.

22, 2017). Yates may therefore be subject to a career-offender enhancement if his prior

convictions under Ohio Rev. Code Ann. § 2911.02(A)(3) fall within the generic definition of

robbery, “which is found by surveying how the crime is described across jurisdictions, as well as

consulting sources such as the Model Penal Code.” See United States v. Rede-Mendez, 680 F.3d

552, 556 (6th Cir. 2012). If the Ohio statute criminalizes conduct “broader than the generic

definition” by “reach[ing] conduct outside the scope of that covered by the generic definition,”

however, then that statute cannot constitute a crime of violence under § 4B1.2. See United States

v. Cooper, 739 F.3d 873, 880 (6th Cir. 2014).

This circuit has not yet adopted a definition for generic robbery. Other circuits, however,

have observed that “the generic form of robbery ‘may be thought of as aggravated larceny,’

containing at least the elements of ‘misappropriation of property under circumstances involving

immediate danger to the person.’” United States v. Santiesteban-Hernandez, 469 F.3d 376, 380

(5th Cir. 2006) (brackets omitted) (quoting Wayne R. LaFave, Substantive Criminal Law § 20.3

intro., (d)(2) (2d ed. 2003)), abrogated on other grounds by United States v. Rodriguez, 711 F.3d

541 (5th Cir. 2013). And the Fifth Circuit has noted that this “immediate danger element” is

what differentiates robbery from larceny and extortion and “has been implemented by the states

in two main ways.” Id. Compare id. (“The majority of states require property to be taken from a

person or a person’s presence by means of force or putting in fear.”), with United States v.

Lockley, 632 F.3d 1238, 1243 (11th Cir. 2011) (“A small minority of states and the Model Penal

Code, however, ‘define ‘robbery’ in terms of ‘bodily injury’ or ‘committing violence’ or

‘physical harm,’’ or some amalgam of those terms and the majority definition.”).

But “[t]he difference in the majority and minority definitions is slight.” Lockley,

632 F.3d at 1244; see also Santiesteban-Hernandez, 469 F.3d at 381 (noting that “the bodily

No. 16-3997 United States v. Yates Page 14

injury approach focuses on the realization of the immediate danger rather than the means by

which the immediate danger is created, but they are two sides of the same coin”). Professsor

LaFave in his treatise looks to the majority definition of robbery, listing as an element of the

offense “that the taking be accomplished by means of force or putting in fear.” LaFave, supra,

§ 20.3 intro. In discussing this element, he further observes that “robbery requires that the taking

be done by means of violence or intimidation.” Id. at § 20.3(d) (emphasis added). This mention

of violence indicates that the type of force contemplated by the generic definition of robbery is

more than minimal. See id. at § 20.3 intro. The Editors’ Notes to the Model Penal Code, which

reflects the minority definition of robbery, similarly comments that “[r]obbery is distinguished

from ordinary larceny by the presence of the victim and the use or threat of violence.” Model

Penal Code § 222.1.

Finally, precedent from this circuit supports the conclusion that generic robbery requires

a confrontation that at the very least implies the threat of violence. See United States v. Mitchell,

743 F.3d 1054 (6th Cir. 2014). In Mitchell, this court analyzed whether a conviction under the

Tennessee robbery statute qualified as a violent felony as defined by the ACCA. Although the

Mitchell court did not adopt a definition of generic robbery, it did discuss the degree of risk

posed by the Tennessee robbery statute. It observed that “[r]obbery presents an even greater

degree of risk of physical injury relative to [generic] burglary” because, “[w]hereas burglary

raises the mere possibility of confrontation, robbery is defined as to guarantee it.” Id. at 1062.

Professor LaFave summarized this body of law by noting that “[t]he great weight of

authority . . . supports the view that there is not sufficient force to constitute robbery when the

thief snatches property from the owner’s grasp so suddenly that the owner cannot offer any

resistance to the taking.” LaFave, supra, § 20.3(d)(1). Yet, as discussed above, Ohio caselaw

establishes that a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3) can result from such a

minimal use of force. See, e.g., State v. Juhasz, 2015-Ohio-3801, 2015 WL 5515826 (Ohio Ct.

App. 2015) (recognizing that that “the struggle [over a victim’s purse] need not be prolonged or

active; the act of forcibly removing a purse from an individual’s shoulder is sufficient” to

establish the element of force supporting a robbery conviction); In re Boggess, 2005-Ohio-6527,

2005 WL 3344502, at *1 (Ohio Ct. App. 2005) (upholding the defendant’s conviction for

No. 16-3997 United States v. Yates Page 15

robbery when he “ran up to [the victim], grabbed her purse, jerked her arm back, and kept

running”).

Generic robbery, in sum, constitutes the “misappropriation of property under

circumstances involving immediate danger to the person.” Santiesteban-Hernandez, 469 F.3d at

380 (brackets omitted) (quoting LaFave, supra, § 20.3 intro., (d)(2)). In rendering our holding

today, we need not decide whether to define the element of “immediate danger” with reference to

the serious bodily injury suffered by or threatened against the victim or with reference to the

force used by the defendant. Either way, Ohio Rev. Code Ann. § 2911.02(A)(3) “reaches

conduct outside the scope of that covered by the generic definition.” See Cooper, 739 F.3d at

880. Yates’s 1999 conviction for Ohio robbery therefore does not constitute a crime of violence

under the enumerated clause.

C. Yates’s challenge to the substantive reasonableness of his sentence

Because of our conclusion that Yates was improperly designated as a career offender

under the guidelines and is entitled to be resentenced, we decline to address his argument

concerning the substantive reasonableness of his sentence. That issue will have to await another

day.

III. CONCLUSION

For all of the reasons set forth above, we VACATE Yates’s sentence and REMAND the

case for resentencing.