Petition for Writ of Certiorari — Le'Ardrus Burris, Petitioner v. United States

Supreme Court briefMay 20, 2019

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IN THE

SUPREME COURT OF THE UNITED STATES

_____________

LE’ARDRUS BURRIS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

Craig M. Sandberg

MUSLIN & SANDBERG

19 S. LaSalle Street, Suite 700

Chicago, Illinois 60603-1491

Tel: (312) 263-7249

E-Mail: craig@muslin-sandberg.com

Counsel for Le’Ardrus Burris

QUESTIONS PRESENTED

(1)

Whether the Sixth Circuit’s divisibility analysis ignores this Court’s

decision in Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243 (2016) and Ohio

Supreme Court precedent in State v. Harris, 911 N.E.2d 882, 886 (Ohio 2009) that

definitively confirms that Ohio Revised Code § 2903(A) states only one crime and

that its two subsections are merely “allied offenses of similar import”.

PARTIES TO THE PROCEDINGS

The names of all parties to the proceeding in the court below whose judgment

is sought to be reviewed are contained in the caption of this case. Rule 14.1(b).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED …………………………………………………

Page

PARTIES TO THE PROCEDINGS.........................................................

TABLE OF CONTENTS............................................................................

iii

INDEX TO APPENDIX..............................................................................

TABLE OF AUTHORITIES......................................................................

PETITION FOR WRIT OF CERTIORARI.............................................

OPINION BELOW......................................................................................

JURISDICTION.........................................................................................

CONSTITUIONAL AND STATUTORY PROVISIONS INVOLVED.

STATEMENT OF THE CASE...................................................................

Proceedings in the District Court…………………………………

II.

Proceedings in the Court of Appeals…………………………….

REASONS FOR GRANTING THE PETITION.....................................

Ohio’s Felonious Assault Statute Is Indivisible.………………

II.

Ohio’s Felonious Assault Statute Is Overbroad……………….

III.

Ohio’s Felonious Assault Statute Fell Under The Residual

Clause……………………………………………………………………..

CONCLUSION............................................................................................

INDEX TO APPENDIX

Attached to Brief

APPENDIX A. Opinion of the United States Court of Appeals

for the Sixth Circuit (Jan. 3, 2019); United States v. Burris,

912 F.3d 386 (6th Cir. 2019) (en banc)………………………………………..

Page

TABLE OF AUTHORITIES

CASES

Page(s)

Apprendi v. New Jersey, 530 U.S. 466 (2000)………………………..

11, 16

Beckles v. United States, 137 S. Ct. 886 (2017)………………………

Cradler v. United States, 891 F.3d 659 (6th Cir. 2018)…………….

Descamps v. United States, 570 U.S. 254 (2013)…………………….

passim

James v. United States, 550 U.S. 192, 208 (2007), overruled

on other grounds by Johnson v. United States,

135 S. Ct. 2551 (2015)……………………………………………

19-21

Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243 (2016)………

passim

Nijhawan v. Holder, 557 U.S. 29 (2009)………………………………

Shepard v. United States, 544 U.S. 13 (2005)………………………..

State v. Betters, No. 17AP-901, 2018 WL 4896813

(Ohio Ct. App. Oct. 9, 2018)…………………………………….

State v. Brown, 895 N.E.2d 149 (Ohio 2008)…………………………

passim

State v. Deem, 533 N.E.2d 294 (Ohio 1988)…………………………..

State v. Harris, 911 N.E.2d 882, 886 (Ohio 2009)……………………

State v. Kennedy, No. 8-18-01, 2018 WL 4961487

(Ohio Ct. App. Oct. 15, 2018)……………………………………

State v. Mundy, No. 05CA0025-M, 2005 WL 3416186

(Ohio Ct. App. Dec. 14, 2005)……………………………………

State v. Perry, No. 17CO0009, ___ N.E.3d ___,

2018 WL 4677661 (Ohio Ct. App. September 24, 2018)…….

Stokeling v. United States, 586 U.S. ___, 139 S. Ct. 544 (2019)……

Taylor v. United States, 495 U.S. 575 (1990)…………………………

9, 12

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Anderson, 695 F.3d 390 (6th Cir. 2012)…………..

3, 6

United States v. Burris, 912 F.3d 386 (6th Cir. 2019)………………

passim

United States v. Degeare, 884 F.3d 1241 (10th Cir. 2018)………….

United States v. Denson, 728 F.3d 603 (6th Cir. 2013)……………..

United States v. Goodson, 700 F. App’x 417 (6th Cir. 2017)……….

United States v. Harris, 853 F.3d 318 (6th Cir. 2017)………………

United States v. House, 872 F.3d 748 (6th Cir. 2017)………………

United States v. Mayer, 560 F.3d 948 (9th Cir. 2009)………………

United States v. Morris, 885 F.3d 405 (6th Cir. 2018)………………

United States v. Ritchey, 840 F.3d 310 (6th Cir. 2016)……………..

United States v. Smith, 881 F.3d 954 (6th Cir. 2018)………………

United States v. Stitt, 860 F.3d 854 (6th Cir. 2017)…………………

Welch v. United States, 136 S. Ct. 1257 (2016)………………………

Williams v. United States, 875 F.3d 803 (6th Cir. 2017),

reh’g en banc granted, vacated by 882 F.3d 1169

(6th Cir. 2018)…………………………………………………….

STATUTES

18 U.S.C. § 924……………………………………………………………

21 U.S.C. § 841……………………………………………………………

21 U.S.C. § 843……………………………………………………………

21 U.S.C. § 846……………………………………………………………

vii

TABLE OF AUTHORITIES—continued

Page(s)

O.R.C. § 2903.11………………………………………………………….

passim

O.R.C. § 2903.12………………………………………………………….

passim

SENTENCING GUIDELINES

USSG § 4B1.2……………………………………………………………..

OTHER AUTHORITIES

Ohio Jury Instruc., Part II Crim. Instruc., 503.11………………….

PETITION FOR A WRIT OF CERTIORARI

_____________

Petitioner, Le’Ardrus Burris, respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Sixth Circuit in

this case. Burris asked the court of appeals to vacate his sentence and remand his

case for re-sentencing because he did not qualify as “career offender” under the

United States Sentencing Commission Guidelines (“USSG” or “Guidelines”) because

his Ohio felonious assault conviction is not a crime of violence. On appeal, Burris

showed how the elements of that statute, Ohio Revised Code (“O.R.C.” or “R.C.”) §

2903.11(A), encompass causing both physical and mental harms and the relevant

Ohio case law that makes clear that a defendant can be convicted of felonious

assault without proof that he used violent physical force against the victim, but only

that his conduct caused a mental illness. Also, on appeal, Burris demonstrated that

the statute was indivisible. As set forth in greater detail below, Ohio’s felonious

assault statute is categorically overbroad and indivisible, and, thus, did not

constitute a crime of violence under the Guidelines or a violent felony under the

Armed Career Criminal Act (“ACCA”). The pertinent provision of the Guidelines is

identical to the ACCA’s force clause. Compare USSG § 4B1.2(a)(1), with 18 U.S.C. §

924(e)(2)(B)(i).

The Sixth Circuit issued an en banc opinion reassessing whether Ohio’s

felonious-assault statute qualifies as violent-crime predicates under the “elements

clause” of the Armed Career Criminal Act and the Career Offender guideline. The

court unanimously held that the statute did not categorically qualify because it was

overly-broad and permitted conviction based on conduct that did not require violent

conduct. The Court found that the statute, as a whole, was “too broad to

categorically qualify as [a] violent-felony predicate[] under the ACCA and

Guidelines elements clauses.” United States v. Burris, 912 F.3d 386, 399 (6th Cir.

2019). However, the Court was sharply divided over whether the statute was

divisible, ultimately holding that it was. Burris, 912 F.3d at 405.

As this Court has clearly set forth, “divisible” statutes are statutes which

“set[] out one or more elements of the offense in the alternative,” “thereby defin[ing]

multiple crimes.” Descamps v. United States, 570 U.S. 254, 257, 133 S. Ct. 2276

(2013); Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243, 2249 (2016). Ohio’s

felonious-assault and aggravated-assault statutes create nearly identical crimes,

except that Ohio aggravated assault includes a mitigating element of provocation.

See State v. Deem, 533 N.E.2d 294, 299 (Ohio 1988). As the Ohio Supreme Court

described in State v. Brown, 895 N.E.2d 149 (Ohio 2008) when discussing

aggravated assault, subsection (A)(1) and (A)(2) of O.R.C. § 2903.12 “set forth two

means of committing the same offense”. Brown, 895 N.E.2d at 156. The Ohio

Supreme Court concluded that convictions under subsection (A)(1) and (A)(2) could

result in only one punishment under Ohio law because “the General Assembly did

not intend violations [of both subsections] to be separately punishable when the

offenses result from a single act undertaken with a single animus.” Brown, 895

N.E.2d at 156. The Ohio Supreme Court determined that aggravated assault under

subsection (A)(1) and aggravated assault under subsection (A)(2) were “allied

offenses of similar import” under O.R.C. § 2941.25 and precluded cumulative

punishments for the same conduct. Brown, 895 N.E.2d at 156–57. As such, the

statute was indivisible.

Nevertheless, the court of appeals found the statute divisible and held

subsection (A)(1) and subsection (A)(2) each set forth separate crimes. Burris, 912

F.3d at 405. Because the court found the statute to be too broad under subsection

(A)(1), it then considered whether subsection (A)(2), which makes it a crime to

knowingly cause physical harm “by means of a deadly weapon or dangerous

ordnance[,]” qualifies as a violent felony. O.R.C. § 2903.11(A)(2). Focusing on the

“deadly weapon rule”, the court of appeals found that this disposes of the analysis:

“‘When a felony must be committed with a deadly weapon and involves some degree

or threat of physical force, it is a crime of violence under the elements clause.’”

Burris, 912 F.3d at 405 (quoting United States v. Harris, 853 F.3d 318, 321 (6th Cir.

2017). The court of appeals, thus, held that “[i]f the defendant was convicted under

the (A)(1) version of [the felonious assault statute], that offense does not qualify as a

violent-felony conviction under the ACCA or Guidelines elements clauses. If a

defendant was convicted under the (A)(2) version of [the statute], that offense does

qualify as a violent-felony predicate under the ACCA and Guidelines elements

clauses.” Burris, 912 F.3d at 406.

Although the lead opinion correctly overruled United States v. Anderson, 695

F.3d 390 (6th Cir. 2012), the majority opinion incorrectly applied the proper

divisibility analysis of the statute and did so secondarily, instead of primarily.

Burris challenges the court of appeals’ decision holding regarding the divisibility

analysis and, then, how the divisibility analysis proceeds and whether the statute’s

“(A)(1)” and “(A)(2)” clauses were divisible under Mathis v. United States, __ U.S. __,

136 S. Ct. 2243 (2016). Ohio courts have issued clear guidance that the statute is

not divisible, and that any lack of clarity should weigh in favor of indivisibility.

Further, the dissent correctly concluded that the Ohio felonious-assault statute

would fall under the residual clause of the Guidelines.

OPINION BELOW

The Sixth Circuit’s opinion (App., infra, 1a) is reported at United States v.

Burris, 912 F.3d 386 (6th Cir. 2019) (en banc).

JURISDICTION

The court of appeals entered its judgment on January 3, 2019. This petition is

filed within 90 days of the judgment. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Ohio Revised Code § 2903.11. Felonious Assault.

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s

unborn;

(2) Cause or attempt to cause physical harm to another or to

another’s unborn by means of a deadly weapon or dangerous

ordnance.

***********************

O.R.C. § 2903.11.

Ohio Revised Code § 2903.12. Aggravated Assault.

(A) No person, while under the influence of sudden passion or in a

sudden fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the

person into using deadly force, shall knowingly:

(1) Cause serious physical harm to another or to another’s

unborn;

(2) Cause or attempt to cause physical harm to another or to

another’s unborn by means of a deadly weapon or dangerous

ordnance, as defined in section 2923.11 of the Revised Code.

***********************

O.R.C. § 2903.12.

STATEMENT OF THE CASE

Proceedings In The District Court.

Following a jury trial, Le’Ardrus Burris was convicted of conspiring to

possess with intent to distribute heroin (Count 1), in violation of 21 U.S.C. § 846,

one count of possession with intent to distribute heroin (Count 10), in violation of 21

U.S.C. § 841(b)(1)(C) and (a)(1), and two counts of use of a communication facility to

facilitate a drug trafficking offense (Counts 49-50) in violation of 21 U.S.C. § 843(b),

(d)(1). At sentencing, the district court held that Burris was a career offender and,

therefore, subject to a higher Sentencing Guidelines offense level, based upon

Burris’s two prior Ohio convictions for (1) complicity to drug trafficking in 2005 and

(2) felonious assault in 2007. The effect of the district court’s use of the “career

offender” enhancement to Burris was to increase his offense level from 18 to 32 and

the Criminal History category from VI to V, and increase his Guideline range from

51-63 months to 210-262 months. After weighing all relevant circumstances, the

district court varied downward from the Guidelines range of 210 to 262 months, and

imposed a 90-month term of incarceration on the first two counts of the indictment,

a concurrent 12-month term of incarceration on the remaining two counts, followed

by a three-year term of supervised release and a $400 special assessment.

II.

Proceedings In The Court of Appeals.

The court of appeals issued its opinion in Petitioner’s case on January 3,

2019. (Appx., infra, 1a; United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en

banc)).

The Sixth Circuit issued an en banc opinion reassessing whether Ohio’s

felonious-assault statute qualifies as violent-crime predicates under the “elements

clause” of the Armed Career Criminal Act (“ACCA”) and the Career Offender

guideline and overruling United States v. Anderson, 695 F.3d 390 (6th Cir. 2012).

The Sixth Circuit unanimously held that the statute did not categorically qualify

because it was overly-broad and permitted conviction based on conduct that did not

require violent conduct. However, the Court was sharply divided over whether the

statute was divisible, ultimately holding that it was.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to clarify and resolve the uncertainty

about whether, when courts are faced with an alternatively-phrased statute, the

first task is to (a) conduct a divisibility analysis or (b) to determine whether the

statute is “overbroad”. By granting certiorari, the Supreme Court will afford more

certainty and clarity as to those issues.

Although Burris understands this Court explicitly stated that a divisibility

analysis of a statute should be conducted first, Mathis, 136 S. Ct. at 2256 (“The first

task for a sentencing court faced with an alternatively phrased statute is [] to

determine whether its listed items are elements or means.”), as pointed out by the

dissenting opinion from Chief Judge Cole in Burris, that is not what the court of

appeals did below. Burris, 912 F.3d at 411 (“In a footnote, the lead opinion notes

that it expresses ‘no opinion as to the order in which these two issues should be

addressed in other cases, noting only that in this case, addressing overbreadth first

is the more useful approach.’ Lead Op. 396, n.6.”).

If the primary analysis is divisibility, then if a statute is not divisible (i.e.,

indivisible and/or constitutes “allied offenses of similar import”) and, also,

categorically overbroad (as the court of appeals found O.R.C. § 2903(A)(1)), then a

conviction under either O.R.C. § 2903(A)(1) or § 2903(A)(2) does not qualify as a

“crime of violence” for sentencing enhancement purposes. That is the conclusion

that the Sixth Circuit did not reach but, given Ohio Supreme Court precedent (i.e.,

Brown), that is the conclusion the Sixth Circuit was obligated to conclude. The

effect on Burris (and similarly-situated individuals) cannot be understated and

must not permitted to stand.

The Guidelines’ career-offender provision applies a sentencing enhancement

only if, as relevant here, 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 of Burris’s sentencing, the Guidelines defined a “crime of violence” as any

crime punishable by over one-year imprisonment that:

(1) Has as an element the use, attempted use, or threatened use of

physical force against the person of another [often called the “the

elements clause” or the “force clause”]; or

(2) is burglary of a dwelling, arson, or extortion, involves use of

explosives [the “enumerated clause”], or otherwise involves conduct

that presents a serious potential risk of physical injury to another [“the

residual clause”].

U.S.S.G. § 4B1.2(a)(2015); Stokeling v. United States, 586 U.S. ___, 139 S. Ct. 544

(2019). Two weeks after Burris was sentenced, the Guidelines were amended and

the residual clause was removed. See U.S.S.G. § 4B1.2(a); see also United States v.

Smith, 881 F.3d 954, 959 n.1 (6th Cir. 2018) (“In 2016, the U.S. Sentencing

Commission removed the residual clause and replaced it with a fuller list of

enumerated offenses.”).

Ohio’s Felonious Assault Statute Is Indivisible.

As this Court held in both Descamps. v. United States, 570 U.S. 254 (2013)

and Mathis v. United States, 136 S. Ct. 2243 (2016), a statute must meet the strict

standard to be truly divisible. Further, this Court has explicitly stated, a divisibility

analysis of a statute should be conducted first. See Mathis, 136 S. Ct. at 2256 (“The

first task for a sentencing court faced with an alternatively phrased statute is [] to

determine whether its listed items are elements or means.”). The lead opinion in

Burris, however, did not follow this Court’s directives when considering divisibility.

As the Supreme Court held in Descamps, a court must first determine

whether a statute sets forth, by its elements, a crime that is a categorical match to

the definition of “violent felony” or sweeps more broadly. Descamps, 133 S. Ct. at

2283 (describing the central holding of Taylor v. United States, 495 U.S. 575 (1990)).

In Descamps, this Court again recognized, as it did in Taylor, that a statute might

set forth alternative elements – thus alternative crimes – requiring application of

the modified categorical approach to determine, based on a limited set of documents

from the record of conviction, which alternative crime was the defendant’s offense of

conviction. Descamps, 133 S. Ct. at 2283-84.

The modified categorical approach, the Court emphasized, acts not as an

exception to the categorical approach, but “as a tool.” Descamps, 133 S. Ct. at 2285.

The modified categorical approach “is a mechanism for making that comparison

[between the offense and the ACCA definition] when a statute lists multiple,

alternative elements, and so effectively creates ‘several different crimes.’”

Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 35 (2009)).

As this Court held in United States v. House, “[t]his approach requires sorting

through the alternative elements to analyze whether any of them ‘matches an

element in the generic offense,’ and if one does, ‘consult[ing] a limited class of

documents…to determine which alternative formed the basis of the defendant’s

prior conviction.’” United States v. House, 872 F.3d 748, 753 (6th Cir. 2017) (quoting

Descamps, 570 U.S. at 257).

Three years after Descamps, the Supreme Court decided Mathis and provided

further insight into determining whether a statute is divisible into separate crimes

with separate elements, as well as the proper application of the modified categorical

approach. The Mathis Court held Iowa’s burglary statute is not a violent felony

under the ACCA because it was categorically overbroad and indivisible. The Court

held the statute sets forth only one set of elements, though it includes multiple

alternative factual means for satisfying those elements. The Supreme Court, thus,

clarified that a statute containing alternative factual means for committing the

offense, some of which qualify as a violent felony and some that do not, does not

permit application of the modified categorical approach; an elements-based

approach remains for determining whether a statute is divisible and permits

application of the modified categorical approach. Mathis, 136 S. Ct. at 2257.

Ohio Supreme Court precedent definitively confirms that O.R.C. § 2903(A)

states only one crime, and that its two subsections are “allied offenses of similar

import,” thereby prohibiting a defendant from being convicted under both provisions

when both are based on the same instance of conduct. State v. Harris, 911 N.E.2d

882, 886 (Ohio 2009)). “[W]e affirm that convictions for felonious assault defined in

R.C. 2903.11(A)(1) and felonious assault defined in R.C. 2903.11(A)(2) are allied

offenses of similar import, and therefore a defendant cannot be convicted of both

offenses when both are committed with the same animus against the same victim.”

Harris, 911 N.E.2d at 886. In other words, under Ohio law, subsections (A)(1) and

(A)(2) of Ohio’s felonious assault statute provide two different means for committing

one crime and is, thus, indivisible. The prior year, in State v. Brown, the Ohio

Supreme Court similarly described subsections (A)(1) and (A)(2) as “set[ting] forth

two means of committing the same offense.” Brown, 895 N.E.2d 149, 156 (Ohio

2008).

Therefore, if a conviction under either O.R.C. § 2903(A)(1) or § 2903(A)(2)

does not qualify as a violent-felony predicate under the ACCA and Guidelines

elements clauses, no conviction under O.R.C. § 2903(A) ever qualifies as a violentfelony predicate under the ACCA and Guidelines elements clauses. Here, the court

of appeals erred in concluding, despite Ohio law to the contrary, that O.R.C. §

2903(A) was divisible.

II.

Ohio’s Felonious Assault Statute Is Overbroad.

The lead opinion below states that two analyses must be done in this case:

“One is an overbreadth analysis to determine whether the statute in question is too

broad to categorically qualify as a violent-felony predicate because it criminalizes

more conduct than is described in the ACCA and Guidelines…The other is a

divisibility analysis…” Burris, 912 F.3d at 393. In a footnote, the lead opinion notes

that it expresses “no opinion as to the order in which these two issues should be

addressed in other cases, noting only that in this case, addressing overbreadth first

is the more useful approach.” Burris, 912 F.3d at 396, n.6.

However, the Supreme Court has explicitly stated that the divisibility

analysis should be conducted first, Mathis, 136 S. Ct. at 2256, which makes sense

because as the so-called “overbreadth analysis” is necessarily dependent on the

divisibility analysis. Below, Chief Judge Cole stated that he “struggle[d] to see how

analyzing the statute in its entirety (as if the statute were indivisible) is the more

useful approach. The practical reality of doing so—as Judge Rogers [Burris, 912

F.3d at 410] and Judge Kethledge [Burris, 912 F.3d at 411] recognize—is that an

opinion can begin to look advisory.” Burris, 912 F.3d at 411 (Cole, C.J., concurring

in part and dissenting in part).

In reviewing potential predicate crimes, courts apply “a ‘categorical’ approach

to determine the nature of a prior conviction,” and whether it qualifies as a crime of

violence. United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013). “Under the

‘categorical approach,’ courts must compare the elements of the statute of conviction

to the elements of the generic definition of the offense.” Cradler v. United States,

891 F.3d 659, 667 (6th Cir. 2018) (citing Taylor v. United States, 495 U.S. 575, 599600 (1990)). Put another way, if the statute of conviction criminalizes more conduct

than a “crime of violence” as defined by the Guidelines, then the statute is deemed

“overbroad” and the conviction does not qualify as a “crime of violence” for

sentencing enhancement purposes. See id. (“If the statute of conviction criminalizes

more conduct than the generic definition [in the ACCA], then that conviction is not

the same offense enumerated in the ACCA’s ‘violent felony’ definition” and “is not a

violent felony for ACCA purposes.”). In applying the categorical approach, courts

are prohibited from looking to the particular facts underlying the conviction. See

Cradler, 891 F.3d at 667. In other words, how a defendant actually perpetrated the

crime “makes no difference.” Mathis, 136 S. Ct. at 2251.

Thus, despite the lead opinion’s contention to the contrary, whether a statute

is divisible or indivisible is a threshold issue. Id. (quoting Descamps, 570 U.S. at

263).

As the lead opinion below recognizes, the Sixth Circuit has never held

definitively in a published opinion whether Ohio’s felonious assault statute is

divisible or indivisible. To determine a statute’s divisibility, a court looks first to

state law, and then to the statute itself—namely the structure and whether

statutory alternatives carry different punishments. United States v. Ritchey, 840

F.3d 310, 318 (6th Cir. 2016). If these sources fail to provide a definitive answer,

then the court turns to the record of conviction. Id. (citing Mathis, 136 S. Ct. at

2256-57). Here, the question is whether Ohio's felonious assault statute lists

multiple elements disjunctively (divisible), or enumerates various factual means of

committing a single offense (indivisible).

The lead opinion below claimed that each factor supports a finding of

divisibility. Chief Judge Cole opined that the lead opinion acknowledged only the

factors

supporting

divisibility,

while

conveniently

ignoring

other

relevant

considerations. Importantly, after performing a divisibility analysis, if a court “still

cannot discern whether a statute presents elements or means, the statute is

indivisible.” United States v. Stitt, 860 F.3d 854, 862 (6th Cir. 2017), rev’d on other

grounds, 139 S. Ct. 399 (2018) (citing Mathis, 136 S. Ct. at 2257) (emphasis added);

see also Shepard v. United States, 544 U.S. 13, 21 (2005) (noting the “demand for

certainty” in the analysis as required by the Supreme Court in Taylor). Chief Judge

Cole wrote that the lead opinion acknowledged this demand for certainty in

principle, but fails to apply it in practice.

The first consideration under Mathis is seemingly dispositive: whether “a

state court decision definitively answers the question.” 136 S. Ct. at 2256. Mathis

explained that if a “ruling of that kind exists, a sentencing judge need only follow

what it says.” Id. In State v. Brown, the Ohio Supreme Court analyzed Ohio's

aggravated assault statute and definitively found that the two subdivisions “set

forth two means of committing the same offense[.]” 895 N.E.2d 149, 150 (Ohio

2008). The opinion contains additional language suggesting that the statute sets out

two means to commit the same crime. See Brown, 895 N.E.2d at 155 (“these two

alternate theories of aggravated assault”); id. (“these two forms of aggravated

assault”); id. at 156 (“subdivisions (1) and (2) set forth two means of committing the

offense”).

But the ultimate holding of the Ohio Supreme Court was as follows: “the

General Assembly did not intend violations of [O.]R.C. 2903.11(A)(1) and (A)(2) to

be separately punishable when the offenses result from a single act undertaken

with a single animus. Thus, aggravated assault in violation of [O.]R.C.

2903.12(A)(1) and (A)(2) are allied offenses of similar import.” Id. at 156. The

opinion makes clear that the purpose of the “allied offenses of similar import”

inquiry is to prevent a defendant from receiving cumulative sentences for a single

instance of conduct in violation of the Double Jeopardy Clause. Id. at 152; see also

O.R.C. § 2941.25(A) (“Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be

convicted of only one.”).

A survey of recent Ohio appellate cases similarly fails to provide certainty. It

is true that one could cite—as the lead opinion below did—numerous Ohio appellate

court decisions that show that defendants are regularly charged under only one of

the two felonious assault subsections, or, alternatively, under both subsections of

the statute separately. See Burris, 912 F.3d at 415. And these cases certainly lend

support to divisibility. But it is equally true that just as many recent Ohio appellate

court cases charge felonious assault as a single crime, without differentiating

between subsections, therefore supporting indivisibility. See, e.g., State v. Perry, No.

17CO0009, ___ N.E.3d ___, 2018 WL 4677661, at *1 (Ohio Ct. App. September 24,

2018) (defendant indicted on “one count of felonious assault, a felony of the second

degree in violation of [O.]R.C. 2903.11(A)”); State v. Kennedy, No. 8-18-01, 2018 WL

4961487, at *1 (Ohio Ct. App. Oct. 15, 2018) (defendant indicted for felonious

assault in violation of O.R.C. § 2903.11(A), without specifying a subsection); State v.

Betters, No. 17AP-901, 2018 WL 4896813, at *1 (Ohio Ct. App. Oct. 9, 2018)

(defendant indicted on “one count of felonious assault in violation of [O.]R.C.

2903.11”). Indeed, a case currently before this en banc court illuminates this very

principle. See Williams v. United States, 875 F.3d 803 (6th Cir. 2017), reh’g en banc

granted, vacated by 882 F.3d 1169 (6th Cir. 2018) (A grand jury indicted Williams

for one count of felonious assault under § 2903.11, charging that he “knowingly

cause[d] serious physical harm to [the victim] and/or did knowingly cause or

attempt to cause physical harm to [victim] by means of a deadly weapon or

dangerous ordnance[.]”) (emphasis added); (R. 39-3, PageID 227). The conflicting

cases demonstrate that this factor cannot “support” divisibility. Any assertion to the

contrary is disingenuous.

Because no conclusive state court decisions exist, the next look should be to

the additional factors as directed by Mathis. One such factor is the punishment

delineated in the statute: “[i]f statutory alternatives carry different punishments,

then under Apprendi [v. New Jersey, 530 U.S. 466, 489 (2000)] they must be

elements[,]” as opposed to means. Mathis, 136 S. Ct. at 2256. The lead opinion notes

that under O.R.C. § 2903.11(D)(1)(b), a mandatory prison term is imposed if a

defendant commits felonious assault against a “peace officer” who “suffer[s] serious

physical harm.” Burris, 912 F.3d 386 (at 22). The lead opinion finds that because

the term “serious physical harm” is found only in subsection (A)(1), the two

subsections carry different punishments, making the statute divisible.

Yet the two subsections of Ohio felonious assault do not carry different

punishments. It is true that felonious assault on a peace officer carries a mandatory

prison term if the officer suffers “serious physical harm,” but Ohio courts have

treated peace-officer felonious assault as an entirely different crime than ordinary

felonious assault. See, e.g., State v. Mundy, No. 05CA0025-M, 2005 WL 3416186, at

*1 (Ohio Ct. App. Dec. 14, 2005) (affirming conviction that included two counts of

peace-officer felonious assault and three counts of ordinary felonious assault);

O.R.C. § 2903.11(D)(1)(a) (specifying that “a violation of division (A)” constitutes a

felony in the first degree if the victim is a peace officer, as opposed to a felony in the

second degree if the victim is not a peace officer). Ironically, the lead opinion

seemingly recognizes that felonious assault against a peace officer is a separate

crime (and felony class), Burris, 912 F.3d at 416, but fails to recognize this

distinction in conducting the divisibility analysis. At base, that peace-officer

felonious

assault

carries

potentially

different

punishment

different

circumstances does not mean that punishment for ordinary felonious assault varies

based on whether a defendant is convicted under subsection (A)(1) or subsection

(A)(2). A defendant who commits felonious assault on an average citizen does not

face a longer (or a shorter) sentence if the crime resulted in “serious physical harm”

to the victim. Chief Judge Cole, similarly, found that the punishment factor did not

support divisibility.

Mathis also suggests that “a statute may itself identify which things must be

charged (and so are elements) and which need not be (and so are means).” Mathis,

136 S. Ct. at 2256. The lead opinion contends that “[e]ach of these statutes on its

face appears to be divisible” because “[e]ach appears to set forth one or more

elements of the offense in the alternative, thereby defining multiple crimes.” Burris,

912 F.3d 386 (at 21). The lead opinion fails to provide, however, any explanation, or

cite any case, supporting the idea that the statute is divisible “on its face.” To the

contrary, the statute does not explicitly identify whether the statute lists means or

elements, meaning this factor does not provide a clear answer to the divisibility

question.

With no definitive answer, courts are permitted to “peek at the record

documents,” such as an indictment and correlative jury instructions, for “the sole

and limited purpose of determining whether the listed items are elements of the

offense.” Mathis, 136 S. Ct. at 2256-57 (internal brackets and quotations omitted).

Here, Burris was specifically charged with O.R.C. § 2903.11(A)(2) and not

subsection (A)(1), which admittedly could support divisibility. But in looking at

Ohio’s pattern jury instructions, the divisibility analysis is once again muddied. As

the government noted in its brief(s), Ohio’s jury instructions provide alternative

instructions for felonious assault under the (A)(1) and (A)(2) subsections and direct

the court to select “the appropriate alternative.” Ohio Jury Instruc., Part II Crim.

Instruc., 503.11(A). Ohio courts, however, do not require a jury to unanimously

choose between the two subsections when charged in a single count. See Jackson,

2004 WL 1045402, at *3; Chappell, 2002 WL 337726, at *4. Often courts have not

considered which subsection formed the basis of the juries’ verdicts and instead

affirmed defendants’ convictions because the evidence was sufficient to convict

under either subsection. Id. This treatment of the subsections as alternative means

of committing the same crime is a hallmark of an indivisible statute. See Mathis,

136 S. Ct. at 2249, 2256 (finding state court decision “definitively answers” the

elements or means question when it holds that a jury need not unanimously decide

between two methods of committing the crime).

According to Mathis, employing the above tools should make answering the

divisibility question “easy.” Mathis, 136 S. Ct. at 2256. In a case such as this one,

though, where the answer remains uncertain, “Mathis makes [] clear what we must

do—or, more precisely, what we must not do: If state law fails to provide clear

answers and the record materials [don’t] speak plainly, then we won’t be able to

satisfy Taylor’s demand for certainty.” United States v. Degeare, 884 F.3d 1241,

1246 (10th Cir. 2018) (internal quotations omitted) (citing Mathis, 136 S. Ct. at

2257). In other words, a court must presume indivisibility without a clear answer.

Stitt, 860 F.3d at 862 (citing Mathis, 136 S. Ct. at 2257). The lead opinion below

ignores this presumption. In the absence of certainty, as Chief Judge Cole

acknowledged, it is a fundamental error—not to mention a miscarriage of justice—

to treat a defendant's prior conviction as a violent-felony predicate.

III.

Ohio’s Felonious Assault Statute Fell Under The Residual Clause.

The residual clause states that crimes of violence encompass those state

convictions that “otherwise involve[] conduct that presents a serious potential risk

of physical injury to another.” U.S.S.G. § 4B1.2 (2015). When analyzing a statute

under the residual clause, the inquiry differs from that of the elements and

enumerated clause analyses. The inquiry is “whether the conduct encompassed by

the elements of the offense, in the ordinary case, presents a serious potential risk of

[physical] injury to another.” James v. United States, 550 U.S. 192, 208 (2007),

overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015)

(emphasis added). Thus, we look at how Ohio courts ordinarily apply the statute in

practice. See Smith, 881 F.3d at 958.

The Supreme Court has articulated previously the difficulty of this analysis,

albeit in the context of the ACCA, with defining the “ordinary” case:

[T]he residual clause leaves grave uncertainty about how to estimate

the risk posed by a crime. It ties the judicial assessment of risk to a

judicially imagined “ordinary case” of a crime, not to real-world facts or

statutory elements. How does one go about deciding what kind of

conduct the “ordinary case” of a crime involves? “A statistical analysis

of the state reporter? A survey? Expert evidence? Google? Gut

instinct?” United States v. Mayer, 560 F.3d 948, 952 (9th Cir. 2009)

(Kozinski, C.J., dissenting from denial of rehearing en banc). To take

an example, does the ordinary instance of witness tampering involve

offering a witness a bribe? Or threatening a witness with violence?

Critically, picturing the criminal's behavior is not enough; as we have

already discussed, assessing “potential risk” seemingly requires the

judge to imagine how the idealized ordinary case of the crime

subsequently plays out.

Johnson, 135 S. Ct. at 2557-58. Due to these deficiencies, the Supreme Court

ultimately held that the residual clause of the ACCA violated the Constitution’s

guarantee of due process and overruled James. Id. at 2563. But shortly thereafter,

the Supreme Court held that the residual clause of the Guidelines was still valid,

due to the Guidelines’ advisory nature. Beckles v. United States, 137 S. Ct. 886

(2017).

In light of Beckles, the Sixth Circuit held that the ordinary-case standard

articulated in James “remains good law for purposes of the Guidelines.” United

States v. Smith, 881 F.3d 954, 957 (6th Cir. 2018) (quoting United States v.

Goodson, 700 F. App’x 417, 423 (6th Cir. 2017)); United States v. Morris, 885 F.3d

405, 412 (6th Cir. 2018) (“Although Johnson abrogated [James] for purposes of

ACCA, the case remains good law for purposes of analyzing the residual clause of

the Guidelines.”). Thus, a court must determine whether Ohio felonious assault

involves a “serious potential risk of physical injury” in an “idealized ordinary case of

the crime.” Welch v. United States, 136 S. Ct. 1257, 1262 (2016) (citation omitted);

see also Beckles, 137 S. Ct. at 892.

Under James, “[t]he mere possibility that a person could, conceivably, commit

the offense without creating a serious risk of physical injury to another is not

enough to exclude the offense from the ambit of the Guidelines’ residual clause.”

Goodson, 700 F. App’x at 424; see also James, 550 U.S. at 208 (“One can always

hypothesize unusual cases in which even a prototypically violent crime might not

present a genuine risk of injury[.]”). Individuals committing felonious assault in

Ohio without creating a serious risk of physical injury to another is not a mere

possibility or a hypothetical. It is a certainty. Nevertheless, it appears that

“ordinary” felonious assault in Ohio likely poses serious risk of physical injury,

sufficient to conclude that O.R.C. § 2903.11 is a crime of violence under the residual

clause of the Guidelines.

This case should have been remanded to give the district court the

opportunity to consider the amendment eliminating the residual clause—a task

that was previously futile under Anderson, which is now overruled by United States

v. Burris, 912 F.3d 386 (6th Cir. 2019).

CONCLUSION

The petition for a writ of certiorari should be granted for the reasons given

above.

Respectfully submitted,

By:

____________________________________

Craig M. Sandberg

MUSLIN & SANDBERG

19 S. LaSalle Street, Suite 700

Chicago, Illinois 60603-1491

Tel: (312) 263-7249

E-Mail: craig@muslin-sandberg.com

Counsel for Le’Ardrus Burris

Dated: May 20, 2019

CERTIFICATE OF COMPLIANCE

This brief has been prepared, pursuant to SUPREME COURT RULE 33(1)(b),

using:

Twelve point, proportionally spaced, serif typepace.

Microsoft® Word 2008 for Mac in 12-point Century Schoolbook.

EXCLUSIVE of the questions presented, the list of parties and the corporate

disclosure statement, the table of contents, the table of cited authorities, the listing

of counsel at the end of the document, or any appendix; and the certificate of

service, the brief contains, pursuant to SUPREME COURT RULE 33(1)(2) and (2)(b):

22 Pages (give specific number of words; may not exceed 40 pages for

petition or opposition brief or 15 pages for reply brief).

I understand that a material misrepresentation can result in the Court’s striking

the brief and imposing sanctions. If the Court so directs, I will provide an electronic

version of the brief and/or copy of the word or line print-out.

By:

Dated: May 20, 2019

____________________________________

Craig M. Sandberg

INDEX TO APPENDIX

Page

Attached to Brief

APPENDIX A. Opinion of the United States Court of Appeals

for the Sixth Circuit (Jan. 3, 2019); United States v. Burris,

912 F.3d 386 (6th Cir. 2019) (en banc)………………………………………..

APPENDIX A

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RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 19a0002p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

LE’ARDRUS BURRIS,

Defendant-Appellant.

│

┘

No. 16-3855

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 5:15-cr-00245-6—James S. Gwin, District Judge.

Argued: June 13, 2018

Decided and Filed: January 3, 2019

Before:

COLE, Chief Judge; MERRITT, BATCHELDER, MOORE, CLAY, GIBBONS,

ROGERS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH,

DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED EN BANC: Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for

Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,

for Appellee. ON SUPPLEMENTAL BRIEF: Craig M. Sandberg, MUSLIN & SANDBERG,

Chicago, Illinois, for Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY’S

OFFICE, Cleveland, Ohio, for Appellee.

BATCHELDER, J., announced the judgment of the court and delivered the majority

opinion with regard to Anderson and the principal opinion with regard to all other issues, in

which SUTTON, GRIFFIN, THAPAR, BUSH, and NALBANDIAN, JJ., joined. THAPAR, J.

(pp. 26–30), delivered a separate concurring opinion, in which BATCHELDER, GRIFFIN,

BUSH, and NALBANDIAN, JJ., joined. ROGERS, J. (pg. 31), delivered a separate opinion

concurring in part and in the judgment, in which GIBBONS, COOK, and LARSEN, JJ., joined.

KETHLEDGE, J. (pg. 32), delivered a separate opinion concurring only in the judgment. COLE,

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United States v. Burris

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C.J. (pp. 33–45), delivered a separate opinion concurring in the majority’s holding in regards to

Anderson and dissenting from the principal opinion, in which MERRITT, MOORE, CLAY,

WHITE, STRANCH, and DONALD, JJ., joined.

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. Federal law imposes longer prison sentences

on certain violent career criminals. As relevant here, both the Armed Career Criminal Act

(“ACCA”) and the United States Sentencing Guidelines (“Guidelines”) impose longer prison

sentences on certain defendants who have a criminal record containing multiple previous violent

felonies. See 18 U.S.C. § 924(e)(1), (e)(2)(B); USSG §§ 4B1.1, 4B1.2(a)(1). And both contain

an identical so-called “elements clause” describing certain eligible violent-felony predicates:

felonies that “ha[ve] as an element the use, attempted use, or threatened use of physical force

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); USSG § 4B1.2(a)(1).

The question in this case is whether convictions of Ohio felonious assault and Ohio

aggravated assault qualify as violent-felony predicates under the ACCA and Guidelines elements

clauses. In 2012, a panel of this court held that both Ohio felonious assault and Ohio aggravated

assault qualify as violent-felony predicates under the ACCA elements clause. See United States

v. Anderson, 695 F.3d 390, 399–402 (6th Cir. 2012). That conclusion was disputed then, see id.

at 406 (White, J., concurring), and has been disputed since, see, e.g., Williams v. United States,

875 F.3d 803, 809 (6th Cir. 2017), reh’g en banc granted, vacated by, 882 F.3d 1169 (6th Cir.

2018) (Moore, J., concurring) (“we ought to reconsider Anderson en banc”); id. at 810 (Merritt,

J., dissenting) (“the Anderson court did not follow the analytical procedure or reasoning process

now established by the Supreme Court”). Still, subsequent panels of this court have considered

themselves bound by Anderson. See id. at 805 (majority opinion). Among those was the panel

in this case, which held that Ohio felonious assault qualifies as a violent-felony predicate under

the Guidelines elements clause. See United States v. Burris, No. 16-3855, 2017 WL 6368852, at

*2 (6th Cir. Dec. 13, 2017), reh’g en banc granted, vacated by, Order (6th Cir. Feb. 26, 2018)

(No. 16-3855); accord United States v. Hibbit, 514 F. App’x 594, 597 (6th Cir. 2013).

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We granted en banc review to examine whether Anderson still binds this court. We first

conclude that Ohio felonious assault and Ohio aggravated assault are too broad to always (or

categorically) qualify as violent-felony predicates—they each criminalize more conduct than is

described in the ACCA and Guidelines elements clauses. We next conclude that both Ohio’s

felonious-assault and aggravated-assault statutes are divisible—they each set out two separate

crimes, one of which qualifies as a violent-felony predicate under the ACCA and the Guidelines

and the other which does not. Because the Anderson court did not conduct an overbreadth

analysis, and because subsequent Supreme Court precedent requires a divisibility analysis that

Anderson lacks, we conclude that Anderson no longer binds this court. Still, based on the facts

in this case and the applicable standard of review, we conclude that Burris is not eligible for

relief. We AFFIRM the judgment of the district court.

Le’Ardrus Burris was charged with one count of conspiracy to possess with the intent to

distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B) and (b)(1)(C), 846;

one count of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(C); and two counts of using a communication facility to facilitate a drug trafficking

offense, in violation of 21 U.S.C. § 843(b) and (d)(1). A jury found Burris guilty on all counts.

Burris had a criminal record containing two previous Ohio felony convictions: a 2005

conviction for complicity in trafficking in drugs, in violation of Ohio Revised Code §§ 2923.02,

2925.03; and a 2007 conviction for felonious assault, in violation of Ohio Revised Code

§ 2903.11(A)(2). See Burris, 2017 WL 6368852, at *1, 2. The district court relied on these

felonies to sentence Burris as a career offender under the Guidelines. Id. at *1; see USSG

§§ 4B1.1, 4B1.2(a)(1). Burris objected to the career-offender classification, arguing that it

overstated his actual criminal history, but Burris did not argue that his Ohio felonies were not

violent-felony predicates under the Guidelines. See Burris, 2017 WL 6368852, at *1. The

district court ultimately granted Burris a significant downward variance from the applicable 210to-262-month Guidelines range, sentencing him to 90 months’ imprisonment. See id.

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On appeal, Burris argued that neither of his Ohio felonies qualified as violent-felony

predicates under the Guidelines. See id. at *1–2. The panel rejected both arguments. See id. In

rejecting Burris’s argument regarding his Ohio felonious-assault conviction, the panel relied on

Anderson and another recent Sixth Circuit case, Williams, 875 F.3d at 805–06. See Burris,

2017 WL 6368852, at *2 (“Anderson and Williams are binding precedent that resolve this

issue.”). We subsequently granted en banc review in Williams and in this case.

II.

This area of federal sentencing law is complicated. Members of the Supreme Court have

described aspects of it as a “time-consuming legal tangle,” Mathis v. United States, 136 S. Ct.

2243, 2264 (2016) (Breyer, J., dissenting), and as a “mess,” id. at 2269 (Alito, J., dissenting).

Before turning to the merits of Burris’s arguments, therefore, we begin by describing (1) the

operation of the ACCA and the Guidelines, (2) Ohio’s felonious assault and aggravated assault

statutes, and (3) our cases interpreting those statutes in the ACCA and Guidelines context.

The ACCA imposes a fifteen-year mandatory-minimum prison sentence on persons who

violate 18 U.S.C. § 922(g), the federal felon-in-possession-of-a-firearm statute, and who have

three previous state or federal convictions for “violent felon[ies] or serious drug offense[s].” See

18 U.S.C. § 924(e)(1). A “violent felony” is a felony that, as relevant here, “has as an element

the use, attempted use, or threatened use of physical force1 against the person of another.” Id.

§ 924(e)(2)(B)(i). This clause is commonly called the ACCA “elements clause.” See, e.g.,

United States v. Patterson, 853 F.3d 298, 302 (6th Cir. 2017). Similarly, the Guidelines advise

enhanced sentences for “career offenders,” adults who commit a “felony that is either a crime of

violence or a controlled substance offense” and who have “at least two prior felony convictions

of either a crime or violence or a controlled substance.” See USSG § 4B1.1(a). A “crime of

violence” is a felony that, as relevant here, “has as an element the use, attempted use, or

threatened use of physical force against the person of another.” Id. § 4B1.2(a)(1). This clause is

1“[P]hysical force,” as used here, means “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) (“Johnson I”).

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commonly called the Guidelines “elements clause.” See, e.g., United States v. Harris, 853 F.3d

318, 320 (6th Cir. 2017). Because the text of the ACCA and Guidelines elements clauses are

identical, we typically interpret both elements clauses “the same way.” See id.

Since 1990, the Supreme Court has instructed federal sentencing courts to use the

“categorical approach” to determine whether a defendant’s previous state or federal felony

convictions “ha[ve] as an element the use, attempted use, or threatened use of physical force

against the person of another.” See Descamps v. United States, 570 U.S. 254, 260–61 (2013)

(citing Taylor v. United States, 495 U.S. 575, 600 (1990)) (“Taylor adopted a ‘formal categorical

approach’” in the ACCA context); see also United States v. Ford, 560 F.3d 420, 421-22 (6th Cir.

2009) (citing Taylor, 495 U.S. at 602) (“we apply a ‘categorical’ approach” in the Guidelines

context). The categorical approach prohibits federal sentencing courts from looking at the

particular facts of the defendant’s previous state or federal felony convictions; rather, federal

sentencing courts “may ‘look only to the statutory definitions’—i.e., the elements—of a

defendant’s prior offenses.” Descamps, 570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). The

question for the sentencing court in the elements-clause context is whether every defendant

convicted of that state or federal felony must have used, attempted to use, or threatened to use

physical force against the person of another in order to have been convicted, not whether the

particular defendant actually used, attempted to use, or threatened to use physical force against

the person of another in that particular case. See generally Mathis, 136 S. Ct. at 2249; see

Harris, 853 F.3d at 320. If the answer to that question is “no,” and the statute forming the basis

for the defendant’s previous state or federal felony conviction criminalizes conduct that does not

involve “the use, attempted use, or threatened use of physical force against the person of

another,” then a conviction under that statute may not serve as a violent-felony predicate under

the elements clause, assuming that statute is an “‘indivisible’ statute—i.e., one not containing

alternative elements.” See Descamps, 570 U.S. at 258. Importantly, this has been true since at

least 1990. See Taylor, 495 U.S. at 600–02.

Some state and federal criminal statutes, however, are “divisible” statutes—i.e., ones

which “set[] out one or more elements of the offense in the alternative,” “thereby defin[ing]

multiple crimes.”

Descamps, 570 U.S. at 257; Mathis, 136 S. Ct. at 2249.

Legislatures

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sometimes enact divisible statutes “to create two different offenses, one more serious than the

other.” Mathis, 136 S. Ct. at 2249. If at least one of the statute’s alternative sets of elements

categorically matches the ACCA or Guidelines elements clauses and at least one of the sets of

elements does not, the “modified categorical approach” allows sentencing courts “to consult a

limited class of documents . . . to determine which alternative formed the basis of the defendant’s

prior conviction.” Descamps, 570 U.S. at 257. This limited class of documents—so-called

“Shepard documents”—includes “the indictment, jury instructions, or plea agreement and

colloquy.” Mathis, 136 S. Ct. at 2249. Once the federal sentencing court has determined under

which alternative set of elements the defendant was convicted, it may then “do what the

categorical approach demands: compare the elements of the crime of conviction (including the

alternative element used in the case)” with the ACCA or Guidelines elements clause. Descamps,

570 U.S. at 257; Mathis, 136 S. Ct. at 2249. But the modified categorical approach applies only

to statutes that list multiple alternative sets of elements, not statutes that list multiple alternative

factual means of committing a single element. See Mathis, 136 S. Ct. at 2249.

When faced with a state or federal statute in the elements-clause context, therefore, we

must conduct two analyses. One is an overbreadth analysis to determine whether the statute in

question is too broad to categorically qualify as a violent-felony predicate because it criminalizes

more conduct than is described in the ACCA and Guidelines elements clauses. The other is a

divisibility analysis to determine whether the statute in question is divisible because it sets out

multiple separate crimes and if so, whether any of those separate crimes qualifies as a violentfelony predicate under the ACCA and Guidelines elements clauses.

The relevant portions2 of Ohio’s felonious-assault and aggravated-assault statutes create

nearly identical crimes, except that Ohio aggravated assault includes a mitigating element of

provocation. See State v. Deem, 533 N.E.2d 294, 299 (Ohio 1988). Ohio felonious assault is a

second-degree felony unless the victim is a law-enforcement officer, in which case it is a first2Ohio’s felonious-assault statute also criminalizes certain kinds of sexual conduct by persons with AIDS,

see Ohio Rev. Code § 2903.11(B), but this portion of the statute is not at issue in this case. Each reference to

convictions under Ohio’s felonious-assault statute in this opinion refers only to subsection (A) convictions.

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See Ohio Rev. Code

§§ 2903.11(D)(1)(a), 2903.12(B).

The relevant portion of Ohio’s felonious-assault statute is as follows:

Ohio Revised Code § 2903.11 – Felonious Assault

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by

means of a deadly weapon or dangerous ordnance.

...

(E) As used in this section:

(1) “Deadly weapon” and “dangerous ordnance” have the same meanings as in

section 2923.11 of the Revised Code.

The relevant portion of Ohio’s aggravated-assault statute is as follows:

Ohio Revised Code § 2903.12 – Aggravated Assault

(A) No person, while under the influence of sudden passion or in a sudden fit of

rage, either of which is brought on by serious provocation occasioned by the

victim that is reasonably sufficient to incite the person into using deadly force,

shall knowingly:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by

means of a deadly weapon or dangerous ordnance, as defined in section 2923.11

of the Revised Code.

Importantly, the Ohio Revised Code also contains statutory definitions for “physical

harm” and “serious physical harm,” as used in Ohio’s felonious-assault and aggravated-assault

statutes. These definitions are not cross-referenced from either of those statutes, though, and that

has caused difficulty in some of our prior cases, including the Anderson case. These definitions

are as follows:

Ohio Revised Code § 2901.01 – Definitions

(A) As used in the Revised Code:

...

(3) “Physical harm to persons” means any injury, illness, or other physiological

impairment, regardless of its gravity or duration.

...

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(5) “Serious physical harm to persons” means any of the following:

(a) Any mental illness or condition of such gravity as would normally require

hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

or total, or that involves some temporary, substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that

involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to result in

substantial suffering or that involves any degree of prolonged or intractable pain.

In 2012, a divided panel of this court held that both Ohio felonious assault and Ohio

aggravated assault qualify as violent-felony predicates under the ACCA elements clause. See

Anderson, 695 F.3d at 399–402. The panel correctly noted that it was required to apply the

categorical approach to determine whether convictions under Ohio’s felonious-assault and

aggravated-assault statutes qualified as violent felonies. See id. at 399. The panel also noted that

“[i]f it is possible to violate the statute in a way that would constitute a violent felony and in a

way that would not, a ‘court may consider the indictment, guilty plea, or similar documents to

determine whether they necessarily establish the nature of the prior conviction.’” Id. (quoting

United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010)); see Shepard v. United States,

544 U.S. 13, 26 (2005). The panel then analyzed Ohio’s aggravated-assault statute, and found

that it qualified as a violent-felony predicate under the ACCA elements clause because:

We think it clear that the Ohio aggravated assault statute, which requires proof of

“serious physical harm” or “physical harm . . . by means of a deadly weapon or

dangerous ordnance,” Ohio Rev. Code § 2903.12(A)(1)-(2), necessarily requires

proof that the defendant used “force capable of causing physical pain or injury.”

[quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson I”).] We

hold that one can “knowingly . . . [c]ause serious physical harm to another,” Ohio

Rev. Code § 2903.12(A)(1), only by knowingly using force capable of causing

physical pain or injury, i.e., violent physical force, in the context of determining

what crime constitutes a “violent felony” under § 924(e)(2)(B)(i). . . . In sum,

because the Ohio aggravated assault statue requires the state to show the

defendant either knowingly caused serious physical harm to another or knowingly

caused physical harm to another by means of a deadly weapon or ordnance, a

conviction under that statute is a “violent felony” under § 924(e)(2)(B)(i).

Anderson, 695 F.3d at 400–01 (footnote omitted). The panel then went on to analyze Ohio’s

felonious-assault statute, concluding that convictions under subsection (A) of that statute also

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qualified as violent felonies under the ACCA elements clause, for all of the same reasons. See

id. at 402. Judge White did not join that portion of the opinion, and wrote separately to explain

that she did not agree that convictions under Ohio’s felonious-assault and aggravated-assault

statutes qualified as violent felonies under the ACCA elements clause; rather, she thought that

they qualified only under the ACCA residual clause.3 See id. at 403-06 (White, J., concurring).

As we earlier noted, subsequent panels of this court have regularly applied Anderson’s

holding in the Guidelines context, finding that convictions under Ohio’s felonious-assault and

aggravated-assault statutes qualified as crimes of violence under the Guidelines as well. See,

e.g., Hibbit, 514 F. App’x at 597; Burris, 2017 WL 6368852, at *2. And despite dissatisfaction

with Anderson’s holding in 2012, and growing dissatisfaction since then as the Supreme Court

clearly laid out the operation of the categorical approach in cases such as Descamps and Mathis,

see, e.g., Williams, 875 F.3d at 809 (Moore, J., concurring); id. at 810 (Merritt, J., dissenting),

panels have continued to consider themselves bound by Anderson, see id. at 805 (majority

opinion).

III.

Burris argued that Anderson is wrong and should be overruled, for two reasons. He first

pointed out that even if Ohio’s felonious assault and aggravated assault statutes might appear on

their faces to categorically require some form of physical harm, the Ohio Revised Code in fact

defines “serious physical harm” to include some forms of serious mental harm. See Ohio Rev.

Code § 2901.01(A)(5)(a). In failing to discuss this statutory definition, the Anderson panel

“failed to recognize that the statute is overbroad.” Burris also pointed out that the Supreme

Court issued Descamps and Mathis after the Anderson decision, and those two Supreme Court

cases “clarified how to apply the categorical approach when determining whether a statute is

divisible and how to apply the modified categorical approach if a statute is divisible.” “Without

the benefit of Descamps and Mathis,” Burris argued, “the Anderson panel did not properly

analyze Ohio’s felonious assault statute.”

3The Supreme Court has since found the ACCA residual clause to be unconstitutionally vague. See

Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (“Johnson II”).

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To obtain relief, Burris faces some obstacles. As the government pointed out in its

supplemental briefing,4 Burris failed to argue to the district court that his Ohio felonies were not

violent-felony predicates under the Guidelines. See Burris, 2017 WL 6368852, at *1. We may

therefore grant Burris relief only if he satisfies the plain-error standard. See United States v.

Olano, 507 U.S. 725, 732 (1993). This requires, in part, that Burris show that any error in his

case “affects [his] substantial rights.” See id.; Fed. R. Crim. Proc. 52(b). But as the government

has shown,5 the Shepard documents in this case indicate that Burris was convicted of the (A)(2)

variant of Ohio felonious assault, and not the potentially problematic (A)(1) variant. Any error

in treating Burris’s Ohio felonious-assault conviction could affect Burris’s substantial rights only

if (1) at least some part of the Ohio felonious-assault statute is too broad to categorically qualify

as a crime of violence under any then-valid Guidelines career-offender clause (the enumeratedoffense clause, the residual clause, or the elements clause) because it criminalizes knowingly

causing certain forms of serious mental harms; and (2) the Ohio felonious-assault statute is

indivisible and sets forth two factual means of committing Ohio felonious assault rather than two

alternative sets of elements. Even if both of these are true, and Burris is able to thereby show

that there is an error in his case which affects his substantial rights, Burris must also demonstrate

that the error is “plain” and that the plain error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Olano, 507 U.S. at 732 (citation omitted); Fed. R. Crim.

Proc. 52(b). He cannot do so. We explain why below.

4We note that the government failed to point out the appropriate standard of review in this case in its

response to Burris’s request for rehearing en banc. It would be helpful if the government pointed out vehicle

problems such as these when it asks the en banc court to deny a request for rehearing en banc.

5The government filed a motion asking us to take judicial notice of the Shepard documents in this case.

The government argues that it had no reason to produce these documents earlier in the case, since Anderson and its

progeny made clear that both (A)(1) and (A)(2) of Ohio’s felonious-assault and aggravated-assault statutes satisfied

the Guidelines elements clause. Now that Anderson’s holding is in jeopardy, the government argues that the

Shepard documents are necessary to resolve this case. We may take judicial notice “at any stage of the proceeding”

of “fact[s] that [are] not subject to reasonable dispute because [they] . . . can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(d), (b)(2). We have taken

judicial notice of Shepard documents in similar circumstances before. See United States v. Adkins, 729 F.3d 559,

567 n.4 (6th Cir. 2013); United States v. Ferguson, 681 F.3d 826, 834–35 (6th Cir. 2012). For the reasons stated in

those opinions, we GRANT the government’s motion to take judicial notice.

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We begin by determining whether at least some part of Ohio’s felonious-assault and

aggravated-assault statutes is too broad to categorically qualify as a crime of violence under any

Guidelines career-offender clause that was in place at the time that the district court sentenced

Burris.6 In addition to the Guidelines elements clause, there are two other Guidelines careeroffender clauses under which an Ohio felonious-assault conviction might qualify as a crime of

violence: the enumerated-offense clause (which includes “aggravated assault”)7 and the residual

clause (felonies that “otherwise involve[] conduct that presents a serious potential risk of

physical injury to another”). See USSG § 4B1.2 Application Note 1, (a)(2) (2015).

Each of these three Guidelines clauses focuses on “crime[s] of violence”—crimes

resulting in “physical” harms. The elements clause sweeps in felonies that “ha[ve] as an element

the use, attempted use, or threatened use of physical force against the person of another.” USSG

§ 4B1.2(a)(1) (2015). The enumerated offense of aggravated assault, under our precedent, is met

when a person:

(a) attempts to cause serious bodily injury8 to another, or causes such injury

purposely, knowingly, or recklessly under circumstances manifesting extreme

indifference to the value of human life; or (b) attempts to cause or purposely or

knowingly causes bodily injury9 to another with a deadly weapon.

6We express no opinion as to the order in which these two issues should be addressed in other cases, noting

only that in this case, addressing overbreadth first is the more useful approach.

7“[A]ggravated assault” is now listed in the main text of the Guidelines enumerated-offense clause.

See

USSG § 4B1.2(a)(2). In the version of the Guidelines under which Burris was sentenced, however, “aggravated

assault” was listed only in Application Note 1. See United States v. Rodriguez, 664 F.3d 1032, 1036 (6th Cir. 2011);

USSG § 4B1.2 Application Note 1 (2015), available at https://www.ussc.gov/guidelines/2015-guidelinesmanual/2015-chapter-4. Still, courts followed the application notes, and Rodriguez held that Ohio aggravated

assault qualified as an enumerated crime of violence for purposes of the career-offender guidelines. See id. at 1036–

37.

8Serious bodily injury means “bodily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of any bodily member or organ.” Model Penal

Code § 210.0(3).

9Bodily injury means “physical pain, illness or any impairment of physical condition.” Model Penal Code

§ 210.0(2)

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United States v. McFalls, 592 F.3d 707, 717 (6th Cir. 2010) (quoting Model Penal Code

§ 211.1(2)), abrogated on other ground by United States v. Verwiebe, 874 F.3d 258, 262 (6th

Cir. 2017). And the residual clause swept10 in felonies that “otherwise involve[] conduct that

presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2) (2015).

Both Ohio’s felonious-assault and aggravated-assault statutes criminalize, among other

things, “knowingly . . . [c]aus[ing] serious physical harm to another . . . .” See Ohio Rev. Code

§§ 2903.11(A)(1), 2903.12(A)(1). But “[s]erious physical harm” includes “[a]ny mental illness

or condition of such gravity as would normally require hospitalization or prolonged psychiatric

treatment.” Id. § 2901.01(A)(5)(a). On their faces, then, both statutes appear to criminalize

more conduct than is described in each of the Guidelines clauses—a person can at least

theoretically knowingly cause certain serious mental harms without using, attempting to use, or

threatening to use physical force against the person of another, see 18 U.S.C. § 924(e)(2)(B)(i);

USSG § 4B1.2(a)(1), or without causing bodily injury or without engaging in conduct that

presents a serious potential risk of physical injury to another, see McFalls, 592 F.3d at 717;

USSG § 4B1.2(a)(2) (2015). The Supreme Court has cautioned us, however, not to “apply legal

imagination to the state offense; there must be a realistic probability, not a theoretical possibility,

that the State would apply its statute to conduct that falls outside” the conduct described in the

elements clauses. See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (internal quotation marks

and citation omitted); United States v. Southers, 866 F.3d 364, 368 (6th Cir. 2017) (“Moncrieffe

and its ‘realistic probability’ inquiry applies in the ACCA context.”). We therefore look to state

law to determine whether there is a realistic probability that Ohio would apply its feloniousassault and aggravated-assault statutes to conduct that falls outside of the conduct described in

the Guidelines career-offender clauses. In doing so, we are bound by the Ohio Supreme Court’s

interpretation of its criminal law. See Southers, 866 F.3d at 368. “[A]fter a state supreme

court’s decisions, ‘intermediate state appellate court decisions constitute the next best indicia of

10Although

the Supreme Court struck down the identically worded ACCA residual clause as

unconstitutionally void in Johnson II, 135 S. Ct. at 2563, it upheld the Guidelines residual clause against a void-forvagueness challenge, see Beckles v. United States, 137 S. Ct. 886, 890 (2017). The United States Sentencing

Commission removed the residual clause from the Guidelines after Johnson II, but we “consider § 4B1.2(a) ‘as it

existed at the time of [Burris’s] sentencing, giving effect to the residual clause.” United States v. Jackson, 704 F.

App’x 484, 487 (6th Cir. 2017) (quoting United States v. Tibbs, 684 F. App’x 456, 459-60 (6th Cir. 2017)); accord

Patterson, 853 F.3d at 305–06.

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what state law is.’” Id. (quoting United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)

(alteration omitted)).

The Ohio Supreme Court has described the purpose of both versions of Ohio aggravated

assault. They “serve the same purpose—preventing physical harm to persons.” State v. Brown,

895 N.E.2d 149, 150–51 (Ohio 2008). But we are aware of no Ohio Supreme Court cases that

purport to limit Ohio’s statutory definition of “serious physical harm” to only physical harms.

We therefore turn to Ohio’s intermediate appellate court decisions to determine whether there is

a realistic probability that Ohio would apply its felonious-assault and aggravated-assault statutes

to conduct that falls outside of the conduct described in the Guidelines career-offender clauses.

These decisions confirm that there is such a realistic probability. Burris cites two cases

that confirm this, and the government cites an additional case. The first, State v. Elliot, involved

a man who was convicted of Ohio felonious assault after he killed his wife and then allowed his

six-year-old son to discover her lying dead in a pool of her own blood. 663 N.E.2d 412, 413

(Ohio Ct. App. 1995). The son suffered post-traumatic stress disorder (“PTSD”) as a result. Id.

at 415–16. In Elliot, the Ohio intermediate appellate court found that liability for violating

Ohio’s felonious-assault statute extends to a defendant’s “failure to act” to prevent serious

physical harm to a victim when the defendant has a legal duty to do so. Id. at 415. As relevant

in Elliot, “parents and guardians have a legal duty to protect their children from harm,” and the

father did not act to prevent his son’s discovery of the son’s dead mother. Id.

The second, State v. Cooper, involved a mother who was involved in sexually abusing

and/or allowing others to sexually abuse her four children. 743 N.E.2d 427, 431 (Ohio Ct. App.

2000). Although the details of the mother’s involvement are not clear for each of the four

children, we know that the mother held down one of her daughters to allow her boyfriend to rape

the daughter, digitally raped that daughter herself by placing her fingers in her daughter’s vagina,

and placed her hand on the penis of one of her sons. Id. The children each displayed “a variety

of symptoms of mental illness.” Id. The mother was charged with committing felonious assault

against each of her four children “by means of many acts and omissions, including her assistance

in the rapes and sexual abuse and her failure to protect each child from physical and sexual abuse

over his or her lifetime.” Id. at 431–32. In Cooper, the Ohio intermediate appellate court found

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that liability for violating Ohio’s felonious-assault statute extends to a defendant’s series of acts

and failures to act which, taken together, cause serious physical harm to the victims (rather than a

single act or failure to act, as in Elliot). See id. at 433–35.

The third, State v. Hodges, involved an Episcopal priest who counseled a parishioner,

who had a history of psychiatric illnesses, about her sexually abusive husband. 669 N.E.2d 256,

258 (Ohio Ct. App. 1995). The priest began hugging and kissing her during counseling sessions,

then groped her, and eventually engaged in oral sex and sexual intercourse with her, despite her

telling him, “No, this is wrong.” Id. at 258–59, 261. There is no indication in Hodges that the

priest used any physical force in any these encounters. The parishioner, however, later carved

“repent” into her arm with a razor blade, “apparently in response to her sexual encounter with

defendant,” and was hospitalized in a psychiatric unit. Id. at 259, 261. In Hodges, the Ohio

intermediate appellate court rejected the priest’s argument that he was entitled to a judgment of

acquittal on his felonious-assault charge, holding that reasonable minds could conclude that the

priest knowingly caused serious physical harm to the parishioner. Id. at 261.

These cases confirm that there is at least a “realistic probability” that a person may be

convicted of Ohio felonious assault or Ohio aggravated assault11 after knowingly causing

“serious physical harm” in the form of certain serious mental harms without using physical force,

as defined in the ACCA and the Guidelines. “[P]hysical force,” as used here, means “violent

force—that is, force capable of causing physical pain or injury to another person.” Johnson I,

559 U.S. at 140. The father in Elliot did not have any physical contact with his son, but was

convicted of feloniously assaulting him. See Elliot, 663 N.E.2d at 413. There is no indication

that the mother in Cooper had physical contact with two of the four children she was convicted

of feloniously assaulting; and there is no allegation that the physical contact she had with her

other two children constituted “physical force” as Johnson I describes it.

See Cooper,

743 N.E.2d at 431. Similarly, there is no indication that any of the physical contact the priest in

Hodges had with his parishioner constituted “physical force.” See Hodges, 669 N.E.2d at 258–

59. The fairest reading of these cases is that defendants in Ohio may be convicted of felonious

11Although each of these was a felonious assault case, because the relevant elements are the same in both

statutes, we assume the Ohio courts would interpret them in the same way.

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assault or aggravated assault without any “physical force” whatsoever (or threat of such force, or

the attempted use of such force), so long as those defendants knowingly cause (by whatever

means) the serious mental harms included in Ohio’s statutory definition of “serious physical

harm.”

Ohio’s felonious-assault and aggravated-assault statutes are therefore too broad to

categorically qualify as violent-felony predicates under the ACCA and Guidelines elements

clauses.

Defendants in Ohio may also be convicted of felonious assault or aggravated assault

without, as is required by the Guidelines enumerated-offense clause,12 causing any form of

“bodily injury”—“physical pain, illness or any impairment of physical condition”—much less

“serious bodily injury.” See Model Penal Code § 210.013; McFalls, 592 F.3d at 717. In Elliot

and Cooper, at least,14 there is no indication that the victims suffered bodily injury as defined in

the Model Penal Code, and it is clear in both that the jury punished the defendants for mental

harms suffered by the victims, not bodily ones. See Elliot, 663 N.E.2d at 413, 415; Cooper,

743 N.E.2d at 431, 433–35. Ohio’s felonious-assault and aggravated-assault are therefore too

broad to categorically qualify as violent-felony predicates under the Guidelines enumeratedoffense clause.15

12The

ACCA enumerated-offense clause does not contain “aggravated assault.”

§ 924(e)(2)(B)(ii).

See 18 U.S.C.

13The Model Penal Code defines “bodily injury” as “physical pain, illness or any impairment of physical

condition,” and “serious bodily injury” as “bodily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Model Penal Code § 210.0.

14The defendant in Hodges was at least a but-for cause of “bodily injury,” whether or not his conduct met

the rest of elements of the generic aggravated-assault offense. See Hodges, 669 N.E.2d at 259, 261 (“based on a

reasonable degree of medical certainty, the sexual intercourse with the defendant caused serious physical harm” to

the victim, including her carving of “repent” into her arm).

15The Rodriguez panel held that Ohio’s aggravated-assault statute “qualifies as a ‘crime of violence’”

under the enumerated-offense clause. See 664 F.3d at 1039, 1038–39 (“We need not consider whether the crime has

as an element the use, attempted use, or threatened use of force, . . . or whether the crime fits within the residual

clause because it ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.”

(citations omitted)). The Rodriguez panel provided extensive analysis to support this conclusion, see id. at 1035–39,

but simply accepted the defendant’s concession that Ohio’s aggravated-assault statute “does require violence.” See

id. at 1039. But a defendant cannot establish the meaning of state law through concession, and, like the Anderson

panel, the Rodriguez panel did not refer to or analyze Ohio’s statutory definition of “serious bodily harm,” nor did it

perform the divisibility analysis now required by Descamps and Mathis.

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Defendants in Ohio may also be convicted of felonious assault or aggravated assault

without, as is required by the Guidelines residual clause, engaging in conduct that presents a

serious potential risk of physical injury to another. See USSG § 4B1.2(a)(2) (2015). In Elliot

and Cooper, at least, the defendants engaged in conduct that Ohio juries thought could fairly be

described as presenting a serious potential risk of mental injury to another, but we do not think

that that conduct could fairly be described as presenting a serious potential risk of physical injury

to another, and it is clear in both that the jury punished the defendants for engaging in conduct

that presented a serious risk of mental injury, not physical injury. See Elliot, 663 N.E.2d at 413,

415; Cooper, 743 N.E.2d at 431, 433–35. Ohio’s felonious-assault and aggravated-assault are

therefore too broad to categorically qualify as violent-felony predicates under the Guidelines

residual clause.16

The government argues that we should not allow “a few (potentially) outlier lower court

decisions” to “excuse thousands of violent career criminals” from the consequences imposed by

the ACCA and the Guidelines. In support of this position, the government quotes Perez v.

United States, 885 F.3d 984, 990 (6th Cir. 2018), in which a panel of this court accepted a

similar argument and found that New York’s second-degree robbery qualified as a violent felony

under the ACCA elements clause despite several New York intermediate appellate court cases in

which defendants were convicted without using “force capable of causing physical pain or injury

to another person.” Id. at 989–90 (quoting Johnson I, 559 U.S. at 140)). But in Perez, the panel

interpreted a more-recent decision by New York’s highest court to require at least “a threshold

level of force,” see id. at 988 (citing People v. Jurgins, 46 N.E.3d 1048, 1053 (N.Y. 2015)), and

found that “[t]he New York courts by and large have construed the statute to . . . include force

that would cause pain to another,” id. Here, by contrast, there is no such opinion from Ohio’s

highest court that appears to limit Ohio’s statutory definition of “serious physical harm” in such

16Judge White thought in Anderson, and another panel held shortly thereafter, that Ohio’s felonious-assault

and aggravated-assault statutes categorically qualified as violent-felony predicates under the identically worded

ACCA residual clause. See Anderson, 695 F.3d at 403–06 (White, J., concurring); United States v. Perry, 703 F.3d

906, 910 (6th Cir. 2013). Yet again, neither Judge White nor the Perry panel looked at or analyzed Ohio’s statutory

definition of “serious physical harm” rather than the ordinary meaning of “serious physical harm.” Because the

panel in Perry failed to do so, its conclusion that Ohio’s felonious-assault and aggravated-assault statutes

categorically qualified as violent-felony predicates under language of the ACCA residual clause is no longer good

law and should not be applied to the Guidelines context.

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a way that convictions of Ohio felonious assault and Ohio aggravated assault may categorically

qualify as violent-felony predicates under the ACCA and Guidelines elements clauses. We

therefore reject the government’s broad interpretation of Perez as inconsistent with the Supreme

Court’s categorical-approach jurisprudence. Some might think that Congress intended to impose

enhanced prison sentences under the ACCA and the Guidelines on the basis of state or federal

felony convictions that almost always, but do not quite always, involve the use, attempted use, or

threatened use of physical force against the person of another. See generally Mathis, 136 S. Ct.

at 2268 (Alito, J., dissenting) (lamenting that the Supreme Court’s categorical-approach

jurisprudence would result in “all burglary convictions in a great many States” being disqualified

as ACCA-predicates even though “Congress indisputably wanted burglary to count under

ACCA”). But we are a lower court, and we must follow the Supreme Court’s categoricalapproach jurisprudence here. That jurisprudence requires Burris only to point to “cases in which

the state courts in fact did apply the statute” to conduct falling outside the conduct described in

the ACCA and Guidelines elements clauses, and that is enough to establish a “realistic

probability” that Ohio would apply its felonious-assault and aggravated-assault statutes to

conduct that does not involve the use, attempted use, or threatened use of physical force against

the person of another. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see Moncrieffe,

569 U.S. at 191 (quoting Duenas-Alvarez, 549 U.S. at 193); Southers, 866 F.3d at 368

(“Moncrieffe and its ‘realistic probability’ inquiry applies in the ACCA context.”). Burris has

pointed to those cases,17 so Burris has established that Ohio’s felonious-assault and aggravatedassault statutes are not a categorical match to the ACCA and Guidelines elements clauses.

Unless those statutes are divisible, therefore, convictions under those statutes do not qualify as

violent-felony predicates under the ACCA and Guidelines elements clauses. See Descamps, 570

U.S. at 258.

Anderson wrongly held that convictions under Ohio’s felonious-assault and aggravatedassault statutes categorically qualify as violent-felony predicates. See Anderson, 695 F.3d at

17True, these are Ohio intermediate appellate court decisions and not decisions from the Ohio Supreme

Court. But “Moncrieffe only looked to state intermediate appellate decisions,” Southers, 866 F.3d at 368, and those

were sufficient to allow the Supreme Court to determine what state law was. Elliot, Cooper, and Hodges are

therefore sufficient to allow us to determine what Ohio law is.

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399–402. The Anderson panel apparently did so because it analyzed only the ordinary meaning

of “serious physical harm” rather than Ohio’s statutory definition for “serious physical harm.”

But because that statutory definition includes certain serious mental harms, and because state

courts in fact do apply the statute to conduct that does not involve the use, attempted use, or

threatened use of physical force against the person of another—and did at the time Anderson was

decided; Elliot, Cooper, and Hodges were all decided before Anderson—Burris is correct that

Anderson was wrongly decided and should be overruled on that basis.

We next determine whether Ohio’s felonious-assault and aggravated-assault statutes are

divisible because they set out multiple separate crimes and if so, whether either of those separate

crimes qualifies as a violent-felony predicate under the ACCA and Guidelines elements clauses.

Supreme Court cases decided after Anderson make clear that, if a statute is too broad to

qualify categorically as a violent-felony predicate under the ACCA and Guidelines elements

clauses, we should next look at whether that statute is “divisible.” “[D]ivisible” statutes, as a

reminder, are statutes which “set[] out one or more elements of the offense in the alternative,”

“thereby defin[ing] multiple crimes.” Descamps, 570 U.S. at 257; Mathis, 136 S. Ct. at 2249.

The Supreme Court in Mathis described several ways to determine whether a state statute

is divisible, each of which is based in state law. There may be “a state court decision” that

“definitively answers the question.” Mathis, 136 S. Ct. at 2256. Or “the statute on its face may

resolve the issue.” Id. Specifically, “[i]f statutory alternatives carry different punishments, then

under Apprendi they must be elements.” Id. And some statutes even “identify which things

must be charged (and so are elements) and which need not be (and so are means.)” Id. But “if a

statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of

commission,” and is not divisible. Id.

Where state law is unclear on whether a state statute is divisible, we may “peek at the

record documents” for “the sole and limited purpose of determining whether the listed items are

elements of the offense.” Id. at 2256–57 (alterations and citation omitted). If the indictment and

jury instructions use all the terms from a state law, “[t]hat is as clear an indication as any that

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each alternative is only a possible means of commission, not an element that the prosecutor must

prove to a jury beyond a reasonable doubt.” Id. at 2257. But the indictment and jury instructions

conversely might “indicate, by referencing one alternative term to the exclusion of all others, that

the statute contains a list of elements, each one of which goes toward a separate crime,” and not

merely a list of factual means by which a person might satisfy a single element. Id.

Where both state law and the record documents are unclear, “a sentencing judge will not

be able to satisfy ‘Taylor’s demand for certainty’ when determining whether a defendant was

convicted of a” qualifying predicate offense. Id.

We have not before definitively answered the question of whether Ohio’s feloniousassault and aggravated-assault statutes are divisible. Anderson did not address this question, at

least regarding subsections (A)(1) and (A)(2) of each statute. See Anderson, 695 F.3d at 399402.

Since Anderson, we seem to have treated the Ohio felonious-assault statute both as

divisible, see Miller v. United States, 561 F. App’x 485, 492 (6th Cir. 2014) (Ohio Revised Code

§ 2903.11 “is a divisible statute”); United States v. Denson, 728 F.3d 603, 613 (6th Cir. 2013)

(listing subsections (A)(1) and (A)(2) as separate offenses), and as indivisible, see Person v.

Sheets, 527 F. App’x 419, 424 & n.4 (6th Cir. 2013) (“the subdivisions ‘set forth two means of

committing the same offense’” (quoting Brown, 895 N.E.2d at 156)).

Turning to Ohio state law, then, each of the three ways Mathis describes to determine

whether a statute is divisible points in the same direction: Ohio’s felonious-assault and

aggravated-assault statutes are both divisible, for the following reasons.

The first way Mathis describes to determine whether a statute is divisible is to look to see

if “a state court decision” “definitively answers the question.” Mathis, 136 S. Ct. at 2256. We

are aware of no state court decision that does so. But we note that, as relevant here, the regular

practice in Ohio state courts appears to involve charging defendants with only one subsection of

Ohio’s felonious-assault and aggravated-assault statutes, or of charging defendants with separate

counts of Ohio aggravated assault or Ohio felonious assault under both subsections of the

relevant statute. This regular practice indicates that Ohio state courts view Ohio’s felonious-

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assault and aggravated-assault statutes as divisible, setting out different crimes and not merely

different factual means of accomplishing the same crime.

It is true that in Brown, the Ohio Supreme Court describes subsections (A)(1) and (A)(2)

as “set[ting] forth two means of committing the same offense.” 895 N.E.2d at 156. It is this

language on which the panel in Person relied when treating Ohio’s felonious-assault statute as

indivisible. See Person, 527 F. App’x at 424 & n.4. But the Ohio Supreme Court in Brown and

the panel in Person were dealing with double-jeopardy issues, and a deeper dive into Brown

reveals that it does not definitively answer the question of whether Ohio’s felonious-assault and

aggravated-assault statutes are divisible for ACCA and Guidelines purposes. In Brown, the Ohio

Supreme Court was determining whether aggravated assault under subsection (A)(1) and

aggravated assault under subsection (A)(2) are “allied offenses of similar import” under Ohio

Revised Code § 2941.25, “a legislative attempt to codify the judicial doctrine of merger,” which

precludes cumulative punishments for the same conduct. 895 N.E.2d at 156–57. The defendant

in Brown had been charged with, and ultimately convicted of, one count of aggravated assault

under subsection (A)(1) and one count of aggravated assault under subsection (A)(2). See id. at

154. “[E]ach conviction” arose from a single stabbing wound that the defendant inflicted on the

victim. Id. The Ohio Supreme Court ultimately concluded that these two convictions could

result in only one punishment under Ohio Revised Code § 2941.25 because “the General

Assembly did not intend violations [of both subsections] to be separately punishable when the

offenses result from a single act undertaken with a single animus.” Id. at 156.18

In so holding, however, the Ohio Supreme Court did not prohibit prosecutors from

charging a defendant with violating both subsections of a statute such as Ohio’s felonious-assault

and aggravated-assault statutes where the defendant either committed the crimes separately or

had a separate animus for each violation. See id. at 153–54. Nor did it prohibit prosecutors from

18Along the way, the Ohio Supreme Court used some additional language that, taken out of context, could

seem to indicate that Ohio’s felonious-assault and aggravated-assault statutes are indivisible. See id. at 155 (“these

two alternate theories of aggravated assault”); id. (“these two forms of aggravated assault”); id. at 156

(“subdivisions (1) and (2) set forth two means of committing the offense”); id. (“[t]hese subdivisions set forth two

different forms of the same offense”). But read in context, the Ohio Supreme Court is referring to occasions such as

the one in Brown where a prosecutor charges a defendant with committing aggravated assault under both

subsections despite only one instance of conduct that might constitute aggravated assault.

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charging a defendant with violating only a single subsection of a statute such as Ohio’s

felonious-assault and aggravated-assault statutes. See id. at 456 (“[t]he choice is given to the

prosecution to pursue one offense or the other”). And a survey of recent Ohio intermediate

appellate court decisions shows that persons are regularly charged under only one of the two

subsections of Ohio’s felonious-assault and aggravated-assault statutes or under both subsections

of the relevant statute separately. See, e.g., State v. Harwell, No. 27658, 2018 WL 2277772, at

*1 (Ohio Ct. App. May 18, 2018) (defendant was charged with two separate counts of felonious

assault under Ohio Revised Code § 2903.11(A)(2) and one count of felonious assault under Ohio

Revised Code § 2903.11(A)(1)); State v. Perez, No. WD-17-017, 2018 WL 2278169, at *1 (Ohio

Ct. App. May 18, 2018) (“An indictment for felonious assault in violation of [Ohio Revised

Code §] 2903.11(A)(1) . . . was filed against appellant.”); State v. Collins, No. 106050, 2018 WL

2149204, at *1 (Ohio Ct. App. May 10, 2018) (defendant was charged with two separate counts

of felonious assault under Ohio Revised Code § 2903.11(A)(2) and two separate counts of

felonious assault under Ohio Revised Code § 2903.11(A)(1)); State v. Johnson, No. L-16-1282,

2018 WL 1989582, at *3 (Ohio Ct. App. Apr. 27. 2018) (grand jury “indicted Jawaun of . . .

felonious assault, in violation of [Ohio Revised Code §] 2903.11(A)(2)”).

We recognize that the stray language from the Ohio Supreme Court’s opinion in Brown,

taken out of context, could be viewed as indicating that Ohio’s felonious-assault and aggravatedassault statutes are indivisible. But that case was about a wholly different issue, and we therefore

will not permit it to outweigh the more-recent regular practice in the Ohio state courts.

The second way Mathis describes to determine whether a statute is divisible is to look to

see if “the statute on its face [] resolve[s] the issue.” Mathis, 136 S. Ct. at 2256. Each of these

statutes on its face appears to be divisible. Each appears to set forth one or more elements of the

offense in the alternative, thereby defining multiple crimes. See Descamps, 570 U.S. at 257;

Mathis, 136 S. Ct. at 2249. Using Ohio’s felonious-assault statute as an example, Ohio Revised

Code § 2903.11(A)(1) criminalizes (1) “knowingly” (2) “[c]aus[ing]” (3) “serious physical

harm” (4) “to another or another’s unborn.” Ohio Revised Code § 2903.11(A)(2), by contrast,

criminalizes (1) “knowingly” (2) “[c]aus[ing] or attempt[ing] to cause” (3) “physical harm”

(4) “to another or another’s unborn” (5) “by means of a deadly weapon or dangerous ordnance.”

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These appear to be alternative elements, not alternative factual means of satisfying a single set of

elements.

The third, albeit related, way Mathis describes to determine whether a statute is divisible

is to look to see “[i]f statutory alternatives carry different punishments,” because if they do,

“then under Apprendi19 they must be elements.” Mathis, 136 S. Ct. at 2256. Again using Ohio’s

felonious-assault statute as the example, Ohio Revised Code § 2903.11(D)(1)(a) increases the

seriousness of felonious assault from a second-degree felony to a first-degree felony if the victim

is a “peace officer,” regardless of whether the defendant is convicted under subsection (A)(1) or

subsection (A)(2). But Ohio Revised Code § 2903.11(D)(1)(b) imposes an additional mandatory

prison term if the victim both is a “peace officer” and “suffer[s] serious physical harm.” Accord

Ohio Revised Code § 2903.12(B) (similarly imposing a mandatory prison term where the victim

is a peace officer and suffers serious physical harm). A conviction under subsection (A)(1) of

each statute, where the victim is a “peace officer,” carries a different and greater punishment

than does a conviction under subsection (A)(2) of each statute where the victim is a “peace

officer.” And, under Mathis, that means the subsections must be elements. 136 S. Ct. at 2256.

In sum, Ohio’s felonious-assault and aggravated-assault statutes are divisible; subsection (A)(1)

and subsection (A)(2) of each statute set forth a separate crime. Having previously established

that subsection (A)(1) is too broad to qualify as a violent-felony predicate, we now turn to

examining subsection (A)(2).

Subsection (A)(2) prohibits “[c]aus[ing] or attempt[ing] to cause physical harm to

another or to another’s unborn by means of a deadly weapon or dangerous ordinance.”

O.R.C. § 2903.11(A)(2).

Ohio statutorily defines a “[d]eadly weapon” as “any instrument,

device, or thing capable of inflicting death, and designed or specifically adapted for use as a

weapon, or possessed, carried, or used as a weapon.” O.R.C. § 2923.11(A). “Physical harm” is

defined by Ohio as “any injury, illness, or other physiological impairment, regardless of its

gravity or duration.” O.R.C. § 2901.01(A)(3). Since the use of a “deadly weapon” or “dangerous

19Apprendi v. New Jersey, 530 U.S. 466, 489 (2000).

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ordinance” while “[c]aus[ing] or attempt[ing] to cause physical harm” is necessary for a

conviction under subsection (A)(2), it follows logically that using a device “capable of inflicting

death” satisfies the element clause’s use, attempted use, or threatened use of violent physical

force.

However, we need not even rely on logic and common sense because this court has

already answered this question several times and come to the same conclusion. The Sixth Circuit

has adopted, as have other circuits,20 what is colloquially called the “deadly weapon rule” that is

dispositive for this analysis unless applicable state law demands otherwise (here it does not):

“When a felony must be committed with a deadly weapon and involves some degree or threat of

physical force, it is a crime of violence under the elements clause.” Harris, F.3d at 321. It is

worth noting that “the degree or threat of physical force” contemplated by the offense need be no

greater than that of common law battery. Id. We find no basis in the statutory language or

relevant case law to distinguish between the “deadly weapon” and “dangerous ordinance.”

Tellingly, Burris does not cite (nor can we find) a single instance of Ohio courts’

applying subsection (A)(2) to conduct that does not qualify under the Guidelines elements

clause. Given the statutory language, Ohio case law, and our own precedents, we find that a

conviction under subsection (A)(2) qualifies as a violent-felony predicate under the Guidelines.

The subsection (A)(1) version of each offense is too broad to qualify categorically as a

violent-felony predicate under the ACCA and Guidelines elements clauses. Therefore,

sentencing courts should employ the modified categorical approach to determine whether a

defendant was convicted of the (A)(1) version of the offense or the (A)(2) version of the offense.

If the defendant was convicted under the (A)(1) version of either offense, that offense does not

qualify as a violent-felony conviction under the ACCA or Guidelines elements clauses. 21 If a

defendant was convicted under the (A)(2) version of either offense, that offense does qualify as a

20See e.g., United States v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015); United States v. Herrera-

Alvarez, 753 F.3d 132, 138 (5th Cir. 2014); United States v. Ramon Silva, 608 F.3d 663, 670 (10th Cir. 2010).

21And, as discussed above, that offense does not qualify under either the Guidelines enumerated-offense

clause or the Guidelines residual clause, for those persons sentenced while the Guidelines still had a residual clause.

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violent-felony predicate under the ACCA and Guidelines elements clauses. Burris does not

argue otherwise. And if the Shepard documents in a particular case do not make clear under

which subsection of the relevant statute a defendant was convicted, sentencing courts must

“presume that the conviction rested upon nothing more than the least of the acts criminalized,”

Moncrieffe, 569 U.S. at 190–91, which means that the conviction does not qualify as a predicate

under either the ACCA or the Guidelines elements clauses.

Anderson did not engage in this divisibility analysis, see Anderson, 695 F.3d at 399–402,

probably because the Supreme Court opinions most clearly setting forth this required analysis,

Descamps and Mathis, had not yet been decided. This divisibility analysis is nevertheless now

clearly required under the Supreme Court’s categorical-approach and modified-categoricalapproach jurisprudence.

Still, even after Descamps and Mathis, panels of this court have

considered themselves bound by Anderson. See, e.g., Williams, 875 F.3d at 805. After all, our

longstanding rule is that “[a] panel of this Court cannot overrule the decision of another panel.

The prior decision remains controlling authority unless an inconsistent decision of the United

States Supreme Court requires modification of the decision or this Court sitting en banc

overrules the prior decision.” See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689

(6th Cir. 1985) (citation omitted).

We now hold that, for two reasons, Anderson is no longer binding law. First, Anderson

was wrongly decided because it failed to recognize that Ohio’s statutory definition of “serious

physical harm” includes certain serious mental harms, and because state courts in fact do apply

Ohio’s felonious-assault and aggravated-assault statutes to conduct that does not involve the use,

attempted use, or threatened use of physical force against the person of another. Second, in the

post-Anderson cases of Descamps and Mathis the Supreme Court has made it clear that federal

sentencing courts must conduct a divisibility analysis, and the Anderson majority—albeit

understandably—did not do so. With those mistakes now obvious, it is untenable to allow

Anderson to continue both to require the district courts in this circuit to enhance defendants’

prison sentences based on criminal convictions that we know do not qualify under the ACCA

and Guidelines elements clauses, and to require panels of this court to affirm those incorrectly

enhanced sentences. Cf. Hicks v. United States, 137 S. Ct. 2000, 2001 (2017) (Gorsuch, J.,

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concurring) (“For who wouldn’t hold a rightly diminished view of our courts if we allowed

individuals to linger longer in prison than the law requires only because we were unwilling to

correct our own obvious mistakes.”).

Having concluded that (1) Ohio’s felonious-assault and aggravated-assault statutes are

too broad to qualify categorically as violent-felony predicates under the ACCA and Guidelines

elements clauses, (2) that both statutes are divisible, and (3) that only the (A)(2) version of each

statute qualifies as a violent-felony predicate under the ACCA and Guidelines elements clauses,

we conclude the analysis. The Shepard documents in this case22 make clear that Burris was

sentenced for the (A)(2) version of Ohio felonious assault. Burris is therefore unable to show

that any error in his case, even if it was plain or obvious or clear, affected his substantial rights.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

22We have held that Ohio state-court journal entries, such as the ones the government has submitted here,

constitute valid Shepard documents. See United States v. Adkins, 729 F.3d 559, 567–68 (6th Cir. 2013)

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_________________

CONCURRENCE

_________________

THAPAR, Circuit Judge, concurring.

After leading police on a high-speed chase,

Le’Ardrus Burris rammed his vehicle into a police officer, “throwing him backwards for

15 feet.” R. 496, Pg. ID 3684. As a result of this action, an Ohio jury convicted Burris of

felonious assault. A casual reader of today’s decision might struggle to understand why we are

even debating if ramming a vehicle into a police officer is a crime of violence. The reader’s

struggle would be understandable. The time has come to dispose of the long-baffling categorical

approach. My colleagues have repeatedly said as much, and I urge any frustrated readers of

today’s decision—particularly Congress or the Sentencing Commission—to read and heed their

words. See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2266–71 (2018) (Alito, J., dissenting);

Cradler v. United States, 891 F.3d 659, 672 (6th Cir. 2018) (Kethledge, J., concurring); United

States v. Valdivia-Flores, 876 F.3d 1201, 1210–11 (9th Cir. 2017) (O’Scannlain, J., specially

concurring); United States v. Davis, 875 F.3d 592, 595, 604 (11th Cir. 2017) (Ed Carnes, C.J.);

United States v. Chapman, 866 F.3d 129, 136–39 (3d Cir. 2017) (Jordan, J., concurring); United

States v. Faust, 853 F.3d 39, 60–61 (1st Cir. 2017) (Lynch, J., concurring); United States v.

Tavares, 843 F.3d 1, 19 (1st Cir. 2016) (Kayatta, J.); United States v. Doctor, 842 F.3d 306,

312–19 (4th Cir. 2016) (Wilkinson, J., concurring). I write to join them and to suggest a possible

path forward.

As the jurists before me have explained, there are two big problems with the categorical

approach. First, the categorical approach is an elements lottery that leads to arbitrary results.

Second, it is very difficult to administer. Both problems are on display here.

The elements lottery. Under the categorical approach, whether a prior state conviction

qualifies as a crime of violence is a matter of chance that depends on how a state legislature and

its judiciary have defined and interpreted the crime. This leads to some absurd results. For

example, a North Carolina conviction for “knowingly discharging a firearm into an occupied

building” or for raping a “mentally disabled person” is not a crime of violence. Doctor, 842 F.3d

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at 315 (Wilkinson, J., concurring). In Florida, a conviction for attempted second degree murder

is not a crime of violence, and in Oklahoma, a conviction for kidnapping is not. Id.

The absurd results are even more apparent in our circuit. As the majority opinion

correctly notes, if you are in Cincinnati, Ohio, and you “cause serious physical harm to another,”

it is not a crime of violence. But if you drive one mile across the Ohio River and commit the

very same crime in Kentucky, it is a crime of violence—all because the analogous statute in

Kentucky defined serious physical harm a little differently. See Ky. Rev. Stat. Ann. § 508.040;

United States v. Maynard, 894 F.3d 773, 775 (6th Cir. 2018); United States v. Colbert, 525 F.

App’x 364, 369–70 (6th Cir. 2013). So an increased sentence in this circuit turns not on whether

a defendant’s aggravated assault was actually violent, but on where the assault took place. In the

future, those who have prior convictions for aggravated assault under subsection (A)(1) in Ohio

will not be labeled a career offender, but those who have an identical conviction in Kentucky for

the exact same conduct will be.

But the arbitrariness does not stop there. Each circuit decides for itself whether a crime

qualifies as a crime of violence. For example, subsection (A)(1) of the Ohio felonious assault

statute is no longer a crime of violence in this circuit, but it may still be a crime of violence in

other circuits. United States v. Clark, 131 F. App’x 29, 30 (4th Cir. 2005) (per curiam). In other

words, whether a defendant commits felonious assault in Ohio could matter less than where he

commits a later crime. Id.; see also, e.g., United States v. Harris, 844 F.3d 1260, 1262 (10th Cir.

2017) (observing that of eleven circuits to have considered whether robbery is a “violent felony,”

five say no, and six say yes), cert. denied, 138 S. Ct. 1438 (2018); compare United States v.

Fluker, 891 F.3d 541, 549 (4th Cir. 2018) (holding that Georgia’s robbery statute is indivisible

and not a crime of violence), with United States v. Cooper, 689 F. App’x 901, 906–07 (11th Cir.

2017) (holding that Georgia’s robbery statute is divisible and thus that robbery by sudden

snatching is a crime of violence). So here again, geography matters more than actual violence

under the categorical approach.

And yet arbitrariness abounds even within single states. In Ohio, subsection (A)(1) of the

felonious and aggravated assault statutes is no longer a crime of violence, but subsection (A)(2)

is. As the majority opinion properly explains, these subsections set forth separate but similar

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crimes. Each prohibits knowingly causing physical harm to another. The difference is that

subsection (A)(1) applies when the defendant caused serious physical harm, and subsection

(A)(2), requiring only physical harm, applies when the defendant used a deadly weapon or

dangerous ordnance. Compare Ohio Rev. Code Ann. § 2903.11(A)(1), with id. § 2903.11

(A)(2). After today’s decision, a person’s prior conviction for felonious assault would not be a

violent felony if he had caused the victim to have a seizure and a serious brain injury by violently

striking her dozens of times with his fists. See State v. Perez, No. WD-17-017, 2018 WL

2278169, at *1 (Ohio Ct. App. May 18, 2018). But if he had instead caused a bruise on the

victim’s leg by striking her with a crowbar, it likely would be a violent felony. See State v.

Smith, No. 14 CA 83, 2015 WL 1884222, at *2 (Ohio Ct. App. Apr. 24, 2015). One must accept

some level of arbitrariness with any law, but not the amount here, which a fact-based approach

would avoid.

Administrative problems. The arbitrariness of the categorical approach ties in with its

second flaw: the costs of administering the approach outweigh its benefits. Some initially

thought that avoiding an inquiry into the facts of a prior conviction would be easier for judges.

Taylor v. United States, 495 U.S. 575, 601 (1990). And, to be sure, looking into the facts behind

a prior conviction could be difficult in some cases where state records are unclear. This was

particularly so in the pre-digital age in which the categorical approach emerged, when electronic

filing was not commonplace. But whatever administrative difficulty a factual approach still

hazards, the categorical approach ups the ante. By “simply swapp[ing] factual inquiries for an

endless gauntlet of abstract legal questions,” the categorical approach requires judges to throw

away common sense. Doctor, 842 F.3d at 313 (Wilkinson, J., concurring); see Davis, 875 F.3d

at 595. Each categorical-approach case (and there is no shortage of them) instead requires the

judge to (1) mull through any number of hypothetical ways to commit a crime that have nothing

to do with the facts of the prior conviction; (2) mine electronic databases for state court cases

(precedential or not) depicting non-violent ways of commission; and (3) scrutinize those state

court cases, some of which are old and predate the categorical approach, to determine their

import. See Doctor, 842 F.3d at 313 (Wilkinson, J., concurring). Here, this meant that our court

(1) considered hypothetical ways to feloniously assault someone without actually striking them,

such as by exposing a child to his mother’s dead body; (2) poured over countless Ohio Court of

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Appeals decisions, some decades-old, e.g., State v. Elliott, 663 N.E.2d 412 (Ohio Ct. App. 1995);

and (3) tried to decide if one or two of those decisions, almost all involving violence,

nevertheless demonstrate that Ohio felonious assault can be committed nonviolently. No judge

who has engaged in this “Rube Goldberg jurisprudence” or traveled to this “pretend place”

leaves thinking that life has been made easier. Davis, 875 F.3d at 595; Tavares, 843 F.3d at 19.

And any judge who could end the matter upon finding that a defendant actually committed a

violent act would find that task more administrable. This is particularly so when—as here—that

question is undisputed.

In light of these problems, I join others in proposing an alternative approach. That

approach would permit judges to deem a prior conviction a crime of violence if the underlying

criminal conduct was actually violent. If the government can prove that the state court record

establishes violent conduct, end the inquiry there. See Mathis, 136 S. Ct. at 2269–70 (Alito, J.,

dissenting). If the government cannot, or if the record is insufficient to sustain the government’s

burden of proof, then the prior conviction does not count. See id. (Alito, J., dissenting).

I recognize that a fact-based approach is not without its own potential problems. Any

difficulty in proving the facts underlying a past conviction would inure to the benefit of the

defendant, meaning a defendant’s career-offender status could turn not on the violence of his

conduct, but on record-keeping. But it is incumbent on the government to keep good records

whenever the government asks a court to put a defendant in prison, and it should be no different

here. United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003) (observing that the government

must prove whether a sentencing enhancement applies). And in the new world of electronic

filing, many of the records will be readily available going forward. In addition, requiring

sentencing courts to probe the facts underlying a conviction could pose Sixth Amendment

problems, at least in the ACCA context. See Mathis, 136 S. Ct. at 2259 (Thomas, J., concurring).

But whatever the difficulty of those problems under the ACCA, the Sixth Amendment presents

no obstacle under the advisory Sentencing Guidelines. United States v. Sanders, 406 F. App’x

995, 997–98 (6th Cir. 2011); cf. Beckles v. United States, 137 S. Ct. 886, 892 (2017) (“Unlike the

ACCA, however, the advisory Guidelines do not fix the permissible range of sentences.”).

Therefore, Congress and the Sentencing Commission are well-positioned to make a change for

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the better. I urge them to consider such a change so courts no longer have to “delve into

pointless abstract questions” when determining whether striking a police officer with a car is a

crime of violence. See Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).

I respectfully concur.

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_____________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT

_____________________________________________________

ROGERS, Circuit Judge. I concur in the result, and in the following parts of the lead

opinion: Parts I and II, all but the last sentence of Part III.B, and Part III.C. For the reasons

given by Judge Kethledge, we ought not address in this case whether United States v. Anderson,

695 F.3d 390 (6th Cir. 2012), was rightly decided. The problematic part of Anderson poses no

problem for the defendant before the court. To resolve this appeal, we need only conclude that

Ohio Rev. Code § 2903.11(A) is divisible and that § 2903.11(A)(2) describes a crime of violence

under the Armed Career Criminal Act and the Guidelines. The lead opinion rightly resolves

these issues, and I join the portions of the lead opinion that so hold. Burris was properly

sentenced as a career offender.

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__________________________________________

CONCURRING IN THE JUDGMENT

__________________________________________

KETHLEDGE, Circuit Judge, concurring in the judgment. The idea of judicial restraint

encompasses not only the content of our decisions, but also whether we should make them in the

first place. Advisory opinions, everyone agrees, are out of bounds. See, e.g., Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 101 (1998); Hayburn’s Case, 2 U.S. 408 (1792). And

dictum is usually a bad idea, because judges think differently—more carefully, more focused,

more likely to think things through—when our words bring real consequences to the parties

before us. (The same criticism goes for alternative holdings.) Yet when judges do indulge in

dictum, at least, it typically amounts to only a stray comment or two on matters incidental to the

real issue in the case.

But here, respectfully, dictum is the raison d’être for the plurality’s opinion. We reheard

this case en banc to revisit our decision in United States v. Anderson, 695 F.3d 390 (6th Cir.

2012), which most of the en banc court agrees was mistaken to the extent it held that Ohio Rev.

Code § 2903.11(A)(1) describes a “crime of violence” under the Armed Career Criminal Act.

That part of Anderson’s holding, of course, would have real consequences in a case where the

defendant’s sentence was enhanced as a result of a prior conviction under § 2903.11(A)(1). But

Burris instead has a prior conviction under § 2903.11(A)(2), which does describe a crime of

violence under the ACCA. Thus we could decide this case simply by holding (as the plurality

correctly holds) that § 2903.11(A) is divisible and that the particular crime of which Burris was

previously convicted—namely § 2903.11(A)(2)—is a crime of violence. That is reason enough

to deny him relief.

The question whether § 2903.11(A)(1) describes a crime of violence,

therefore, is not a matter in controversy in this case. Hence the court’s discussion of that issue is

dictum—indeed dictum so central to the court’s opinion as to render it nearly advisory. See, e.g.,

Chafin v. Chafin, 568 U.S. 165, 172 (2013).

I therefore concur only in the judgment.

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_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_______________________________________________________

COLE, Chief Judge, concurring in part, dissenting in part. Despite growing concerns

regarding mass incarceration, federal law imposes longer prison sentences on certain individuals

deemed “career criminals.” Although a seemingly simple concept, courts across the country

have struggled to determine which crimes qualify as violent offenses under both the ACCA and

the Guidelines. This is one such case.

Here, the court asks whether a conviction under Ohio’s felonious assault statute qualifies

as a violent-felony predicate under the Guidelines and the ACCA. As the lead opinion notes, in

2012, a panel of this court held that both Ohio felonious assault and aggravated assault qualify as

violent-felony predicates under the ACCA. See United States v. Anderson, 695 F.3d 390, 399–

402 (6th Cir. 2012). But in the time since Anderson was decided, the Supreme Court has

clarified the appropriate analysis for reviewing whether certain convictions qualify as violent

offenses for sentencing enhancements. See Mathis v. United States, 136 S. Ct. 2243, 2248–49

(2016). In light of these developments, we granted en banc review to revisit Anderson. While I

concur in the lead opinion’s holding that Anderson was wrongly decided and should be

overruled, my agreement ends there.

The lead opinion states that two analyses must be done in this case:

“One is an

overbreadth analysis to determine whether the statute in question is too broad to categorically

qualify as a violent-felony predicate because it criminalizes more conduct than is described in the

ACCA and Guidelines . . . . The other is a divisibility analysis . . . .” Lead Op. 6. In a footnote,

the lead opinion notes that it expresses “no opinion as to the order in which these two issues

should be addressed in other cases, noting only that in this case, addressing overbreadth first is

the more useful approach.” Lead Op. 11, n.6. I disagree. The Supreme Court has explicitly

stated that the divisibility analysis should be conducted first. See Mathis, 136 S. Ct. at 2256

(“The first task for a sentencing court faced with an alternatively phrased statute is [] to

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determine whether its listed items are elements or means.”). This makes sense, as the so-called

“overbreadth analysis” is necessarily dependent on the divisibility analysis. I thus struggle to see

how analyzing the statute in its entirety (as if the statute were indivisible) is the more useful

approach. The practical reality of doing so—as Judge Rogers and Judge Kethledge recognize—

is that an opinion can begin to look advisory. With that said, in performing the “overbreadth

analysis,” the lead opinion correctly overrules Anderson and I concur in the stated reasons for

doing so. As a matter of practicality and common-sense, however, and for the reasons described

below, I would conduct the divisibility analysis first, and then turn to the analysis of the statute at

issue.1

The Guidelines’ career-offender provision applies a sentencing enhancement if, as relevant

here, 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 of Burris’s sentencing, the

Guidelines defined a “crime of violence” as any crime punishable by over one-year

imprisonment that:

1Some might find it strange to engage in a divisibility analysis when Burris was convicted of an identified

subsection of the felonious assault statute. Why not simply ask whether that subsection satisfies the elements

clause? We must first ask the divisibility question because it tells us whether the identification of the specific

subsection is significant. As explained in Mathis, if the aggravated assault and felonious assault statutes are

divisible, Burris’s conviction of subsection (A)(2) tells us that the jury necessarily found each of the elements of that

subsection. But if the offenses are not divisible, Burris’s conviction of a specific subsection simply tells us the

“brute facts” of his offense, not the elements. Mathis, 136 S. Ct. at 2248 (internal quotation marks omitted). In the

latter case, the situation is analogous to the hypotheticals discussed by the dissenting justices in Mathis—Shepard

documents that unequivocally establish that the defendant was convicted of breaking into a building, not a boat or

tent. Notwithstanding these arguments, the Mathis majority held that if the offense is not divisible, the facts, or

means, are irrelevant. Because the divisibility analysis (see infra pp. 37–42) reveals that Ohio sometimes treats the

aggravated assault and felonious assault offenses as divisible and sometimes treats them as setting forth alternative

means of committing a single offense, the concerns animating the Court’s decision in Mathis are applicable. Indeed,

in Burris’s direct appeal of his felonious assault conviction, the Ohio Court of Appeals erroneously stated,

“Felonious assault under [O.]R.C. 2903.11(A)(2) provides that no person shall knowingly cause serious physical

harm to another,” State v. Burris, No. 24088, 2008 WL 4151321, at *3 (Ohio Ct. App. Sept. 10, 2008), thus

supporting that the Ohio courts sometimes merge or conflate the two subsections and do not consistently treat them

as setting forth distinct offenses. See, e.g., State v. Jackson, No. 82724, 2004 WL 1045402, at *3 (Ohio Ct. App.

May 6, 2004) (holding that “trial court did not err by failing to issue separate instructions” for each subsection

because “the evidence presented in this case was sufficient . . . to find the [defendant] guilty of felonious assault

under either applicable code section”); State v. Chappell, No. 79589, 2002 WL 337726, at *4 (Ohio Ct. App. Feb.

21, 2002) (same).

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(1) Has as an element the use, attempted use, or threatened use of physical force

against the person of another [“the elements clause”]; or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [the

“enumerated clause”], or otherwise involves conduct that presents a serious

potential risk of physical injury to another [“the residual clause”].

U.S.S.G. § 4B1.2(a)(2015).

Two weeks after Burris was sentenced, the Guidelines were

amended and the residual clause was removed. See U.S.S.G. § 4B1.2(a); see also United States

v. Smith, 881 F.3d 954, 959 n.1 (6th Cir. 2018) (“In 2016, the U.S. Sentencing Commission

removed the residual clause and replaced it with a fuller list of enumerated offenses.”).

In reviewing potential predicate crimes, courts apply “a ‘categorical’ approach to

determine the nature of a prior conviction,” and whether it qualifies as a crime of violence.

United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013). “Under the ‘categorical approach,’

courts must compare the elements of the statute of conviction to the elements of the generic

definition of the offense.” Cradler v. United States, 891 F.3d 659, 667 (6th Cir. 2018) (citing

Taylor v. United States, 495 U.S. 575, 599–600 (1990)). Put another way, if the statute of

conviction criminalizes more conduct than a “crime of violence” as defined by the Guidelines,

then the statute is deemed “overbroad” and the conviction does not qualify as a “crime of

violence” for sentencing enhancement purposes.

See id. (“If the statute of conviction

criminalizes more conduct than the generic definition [in the ACCA], then that conviction is not

the same offense enumerated in the ACCA’s ‘violent felony’ definition” and “is not a violent

felony for ACCA purposes.”). In applying the categorical approach, courts are prohibited from

looking to the particular facts underlying the conviction. See Cradler, 891 F.3d at 667. In other

words, how a defendant actually perpetrated the crime “makes no difference.” Mathis, 136 S. Ct.

at 2251.

The comparison of elements under the categorical approach involves a straightforward

analysis “when a statute sets out a single (or ‘indivisible’) set of elements to define a single

crime.” Id. at 2248. If a statute is indivisible, a court need only line up the crime’s statutory

elements alongside those of the Guidelines’ elements and see if they match. See id. But, as the

Supreme Court has recognized, some statutes’ structures are more complicated, making the

comparison of elements more difficult. Id. at 2249. At times, a “defendant’s prior conviction is

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based on a statute that sets out one or more elements of the offense in the alternative, thereby

defin[ing] multiple crimes.” Cradler, 891 F.3d at 668 (citations and quotations omitted). These

statutes, referred to as “divisible statutes,” add an additional level of analysis for courts when

determining “which set of statutory elements the defendant violated.” Id.

Mindful of such situations, the Supreme Court has “suggested that courts may need to ‘go

beyond the mere fact of conviction’ and look to the facts underlying a conviction in order to

determine which element or set of elements was the basis of the defendant’s conviction.” Id.

(citing Taylor v. United States, 495 U.S. 575, 602 (1990)). In these circumstances—where a

statute contains multiple alternative elements—the “modified categorical approach” should be

utilized. Mathis, 136 S. Ct. at 2249. Under this approach, a court may look to a limited class of

documents, such as the indictment, jury instructions, or plea agreement, “to determine what

crime, with what elements, a defendant was convicted of.” Id.; see also Descamps v. United

States, 570 U.S. 254, 257 (2013) (“[T]he modified categorical approach permits sentencing

courts to consult a limited class of documents, such as indictments and jury instructions, to

determine which alternative formed the basis of the defendant’s prior conviction.”).

This court recently explained the interplay of the modified categorical approach and the

categorical approach:

When we speak of the “modified approach,” we simply refer to this additional

analytical step in cases involving divisible statutes. After utilizing this additional

step to determine which elements in the statute formed the basis of the

defendant’s prior conviction, courts resume their application of the categorical

approach as they would in any other case. “[T]he modified approach merely

helps implement the categorical approach when a defendant was convicted of

violating a divisible statute. The modified approach thus acts not as an exception,

but instead as a tool. It retains the categorical approach’s central feature: a focus

on the elements, rather than the facts, of a crime.” [Descamps, 570 U.S.] at 263.

Cradler, 891 F.2d at 668. Put simply, the modified categorical approach is to be used only when

a statute is deemed divisible. See id.

Thus, despite the lead opinion’s contention to the contrary, whether a statute is divisible

or indivisible is a threshold issue. Id. (quoting Descamps, 570 U.S. at 263).

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As the lead opinion recognizes, this court has never held definitively in a published

opinion whether Ohio’s felonious assault statute is divisible or indivisible. Lead Op. 19. I agree

with the lead opinion that the time has come to provide a clear answer. Regrettably, I disagree

with the answer provided.

To determine a statute’s divisibility, we look first to state law, and then to the statute

itself—namely the structure and whether statutory alternatives carry different punishments.

United States v. Ritchey, 840 F.3d 310, 318 (6th Cir. 2016). If these sources fail to provide a

definitive answer, we turn to the record of conviction. Id. (citing Mathis, 136 S. Ct. at 2256–57).

Here, the question is whether Ohio’s felonious assault statute lists multiple elements

disjunctively (divisible), or enumerates various factual means of committing a single offense

(indivisible).

The lead opinion claims that each factor supports a finding of divisibility. I disagree.

The lead opinion acknowledges only the factors supporting divisibility, while conveniently

ignoring other relevant considerations. Importantly, after performing a divisibility analysis, if a

court “still cannot discern whether a statute presents elements or means, the statute is

indivisible.” United States v. Stitt, 860 F.3d 854, 862 (6th Cir. 2017), rev’d on other grounds,

139 S. Ct. 399 (2018) (citing Mathis, 136 S. Ct. at 2257) (emphasis added); see also Shepard v.

United States, 544 U.S. 13, 21 (2005) (noting the “demand for certainty” in the analysis as

required by the Supreme Court in Taylor). The lead opinion acknowledges this demand for

certainty in principle, Lead Op. 19, but fails to apply it in practice.

The first consideration under Mathis is seemingly dispositive: whether “a state court

decision definitively answers the question.” 136 S. Ct. at 2256. Mathis explained that if a

“ruling of that kind exists, a sentencing judge need only follow what it says.” Id. In State v.

Brown, the Ohio Supreme Court analyzed Ohio’s aggravated assault statute2 and stated that the

2Because the aggravated assault statute is nearly identical to the felonious assault statute, the reasoning and

holding in cases analyzing one statute have been found to apply equally to both statutes. See Person v. Sheets,

527 F. App’x 419, 424, n.4 (6th Cir. 2013) (applying Brown’s interpretation of Ohio’s aggravated assault statute to

Ohio’s felonious assault statute because the relevant subdivisions “are identical under both statutes”).

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two subdivisions “set forth two means of committing the same offense[.]” 895 N.E.2d 149, 150

(Ohio 2008). The opinion contains additional language suggesting that the statute sets out two

means to commit the same crime. See Brown, 895 N.E.2d at 155 (“these two alternate theories

of aggravated assault”); id. (“these two forms of aggravated assault”); id. at 156 (“subdivisions

(1) and (2) set forth two means of committing the offense”).

But the ultimate holding of the Ohio Supreme Court was as follows: “the General

Assembly did not intend violations of [O.]R.C. 2903.11(A)(1) and (A)(2) to be separately

punishable when the offenses result from a single act undertaken with a single animus. Thus,

aggravated assault in violation of [O.]R.C. 2903.12(A)(1) and (A)(2) are allied offenses of

similar import.” Id. at 156. The opinion makes clear that the purpose of the “allied offenses of

similar import” inquiry is to prevent a defendant from receiving cumulative sentences for a

single instance of conduct in violation of the Double Jeopardy Clause. Id. at 152; see also

O.R.C. § 2941.25(A) (“Where the same conduct by defendant can be construed to constitute two

or more allied offenses of similar import, the indictment or information may contain counts for

all such offenses, but the defendant may be convicted of only one.”). Thus, while the language

in Brown at least seems to suggest that Ohio’s felonious assault and aggravated assault statutes

contain two means of committing the same offense—making the statutes indivisible—I

recognize the lead opinion’s notion that the context of the case casts some doubt as to whether

the Ohio Supreme Court definitively answered the question as Mathis requires. To say this factor

supports divisibility, though, is misleading, at best.

A survey of recent Ohio appellate cases similarly fails to provide certainty. It is true that

one could cite—as the lead opinion does—numerous Ohio appellate court decisions that show

that defendants are regularly charged under only one of the two felonious assault subsections, or,

alternatively, under both subsections of the statute separately. See Lead Op. 21. And these cases

certainly lend support to divisibility. But it is equally true that just as many recent Ohio

appellate court cases charge felonious assault as a single crime, without differentiating between

subsections, therefore supporting indivisibility. See, e.g., State v. Perry, No. 17CO0009, __

N.E.3d __, 2018 WL 4677661, at *1 (Ohio Ct. App. September 24, 2018) (defendant indicted on

“one count of felonious assault, a felony of the second degree in violation of [O.]R.C.

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2903.11(A)”); State v. Kennedy, No. 8-18-01, 2018 WL 4961487, at *1 (Ohio Ct. App. Oct. 15,

2018) (defendant indicted for felonious assault in violation of O.R.C. § 2903.11(A), without

specifying a subsection); State v. Betters, No. 17AP-901, 2018 WL 4896813, at *1 (Ohio Ct.

App. Oct. 9, 2018) (defendant indicted on “one count of felonious assault in violation of

[O.]R.C. 2903.11”). Indeed, a case currently before this en banc court illuminates this very

principle. See Williams v. United States, 875 F.3d 803 (6th Cir. 2017), reh’g en banc granted,

vacated by 882 F.3d 1169 (6th Cir. 2018) (A grand jury indicted Williams for one count of

felonious assault under § 2903.11, charging that he “knowingly cause[d] serious physical harm

to [the victim] and/or did knowingly cause or attempt to cause physical harm to [victim] by

means of a deadly weapon or dangerous ordnance[.]”) (emphasis added); (R. 39-3, PageID 227).

The conflicting cases demonstrate that this factor cannot “support” divisibility. Any assertion to

the contrary is disingenuous.

Because I believe no conclusive state court decisions exist, I would next look to the

additional factors as directed by Mathis. One such factor is the punishment delineated in the

statute: “[i]f statutory alternatives carry different punishments, then under Apprendi [v. New

Jersey, 530 U.S. 466, 489 (2000)] they must be elements[,]” as opposed to means. Mathis,

136 S. Ct. at 2256. The lead opinion notes that under O.R.C. § 2903.11(D)(1)(b), a mandatory

prison term is imposed if a defendant commits felonious assault against a “peace officer” who

“suffer[s] serious physical harm.” Lead Op. 22. The lead opinion finds that because the term

“serious physical harm” is found only in subsection (A)(1), the two subsections carry different

punishments, making the statute divisible.

Yet the two subsections of Ohio felonious assault do not carry different punishments.

It is true that felonious assault on a peace officer carries a mandatory prison term if the officer

suffers “serious physical harm,” but Ohio courts have treated peace-officer felonious assault as

an entirely different crime than ordinary felonious assault.

See, e.g., State v. Mundy, No.

05CA0025-M, 2005 WL 3416186, at *1 (Ohio Ct. App. Dec. 14, 2005) (affirming conviction

that included two counts of peace-officer felonious assault and three counts of ordinary felonious

assault); O.R.C. § 2903.11(D)(1)(a) (specifying that “a violation of division (A)” constitutes a

felony in the first degree if the victim is a peace officer, as opposed to a felony in the second

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degree if the victim is not a peace officer). Ironically, the lead opinion seemingly recognizes that

felonious assault against a peace officer is a separate crime (and felony class), Lead Op. 7, but

fails to recognize this distinction in conducting the divisibility analysis. At base, that peaceofficer felonious assault carries a potentially different punishment in different circumstances

does not mean that punishment for ordinary felonious assault varies based on whether a

defendant is convicted under subsection (A)(1) or subsection (A)(2). A defendant who commits

felonious assault on an average citizen does not face a longer (or a shorter) sentence if the crime

resulted in “serious physical harm” to the victim. Accordingly, I do not see how the punishment

factor supports divisibility.

Mathis also suggests that “a statute may itself identify which things must be charged (and

so are elements) and which need not be (and so are means).” Mathis, 136 S. Ct. at 2256. The

lead opinion contends that “[e]ach of these statutes on its face appears to be divisible” because

“[e]ach appears to set forth one or more elements of the offense in the alternative, thereby

defining multiple crimes.” Lead Op. 21. The lead opinion fails to provide, however, any

explanation, or cite any case, supporting the idea that the statute is divisible “on its face.” To the

contrary, the statute does not explicitly identify whether the statute lists means or elements,

meaning this factor does not provide a clear answer to the divisibility question.

With no definitive answer, courts are permitted to “peek at the record documents,” such

as an indictment and correlative jury instructions, for “the sole and limited purpose of

determining whether the listed items are elements of the offense.” Mathis, 136 S. Ct. at 2256–57

(internal brackets and quotations omitted). Here, Burris was specifically charged with O.R.C.

§ 2903.11(A)(2) and not subsection (A)(1), which admittedly could support divisibility. But in

looking at Ohio’s pattern jury instructions, the divisibility analysis is once again muddied. 3 As

the government notes, Ohio’s jury instructions provide alternative instructions for felonious

assault under the (A)(1) and (A)(2) subsections and direct the court to select “the appropriate

alternative.” Ohio Jury Instruc., Part II Crim. Instruc., 503.11(A). Ohio courts, however, do not

require a jury to unanimously choose between the two subsections when charged in a single

3The jury instructions in Burris’s felonious assault case are not part of the record before this Court.

Consequently, we review Ohio’s jury instructions generally.

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count. See Jackson, 2004 WL 1045402, at *3; Chappell, 2002 WL 337726, at *4. Often courts

have not considered which subsection formed the basis of the juries’ verdicts and instead

affirmed defendants’ convictions because the evidence was sufficient to convict under either

subsection. Id. This treatment of the subsections as alternative means of committing the same

crime is a hallmark of an indivisible statute. See Mathis, 136 S. Ct. at 2249, 2256 (finding state

court decision “definitively answers” the elements or means question when it holds that a jury

need not unanimously decide between two methods of committing the crime).

As a final aside, I note the parties’ own inconsistencies. The government argued before

the original panel that Ohio’s felonious assault statute was indivisible. (See Gov’t Br. 38–39

(noting that Anderson treated section 2903.11(A) as indivisible and arguing that “Ohio law

confirms that doing so was correct”); id. at 39 (arguing that “under Ohio law, subsections (A)(1)

and (A)(2) of Ohio’s felonious assault statute provide two different means for committing one

crime”); id. at 41 (arguing that “even if Section 2903.11(A) were divisible (which it is not)[,]”

Burris’s claims would still fail).) In its en banc brief, however, the government changed its tune:

“Having conducted a more thorough review of this sentencing concept, the structure of Ohio’s

statute, and the other factors identified in Mathis, the government now agrees with Burris’s

original position that subsection (A)(1) and (A)(2) require proof of different elements and are

divisible.” (Gov’t Supp. Br. 25.)4

Burris’s position on divisibility has also evolved. In his opening brief before the original

panel he argued that “[b]ecause there are multiple ways to commit felonious assault, this is a

divisible statute.” (Pl. Br. 37.) Then, in his supplemental brief before the en banc court, Burris

stated that his “conviction does not qualify as a crime of violence whether the statute is

indivisible or divisible.”

(Pl. Supp. Br. 23.)

The parties’ inconsistent positions further

demonstrate that the divisibility analysis is far from clear.

4One could make a strong argument that the government has forfeited, or maybe even waived, its argument

that Ohio’s felonious statute is divisible. See, e.g., Miller v. Texas Tech Univ. Health Sci. Ctr., 421 F.3d 342, 348–

49 (5th Cir. 2005) (“The maxim is well established in this circuit that a party who fails to make an argument before

either the district court or the original panel waives it for purposes of en banc consideration.”); Ryan v. United

States, 688 F.3d 845, 848 (7th Cir. 2012) (holding that the reason a litigant comes to its decision to not assert an

argument “is irrelevant, and a mistake in reaching a decision to withhold a known defense does not make that

decision less a waiver”).

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According to Mathis, employing the above tools should make answering the divisibility

question “easy.” Mathis, 136 S. Ct. at 2256. In a case such as this one, though, where the

answer remains uncertain, “Mathis makes [] clear what we must do—or, more precisely, what

we must not do: If state law fails to provide clear answers and the record materials [don’t] speak

plainly, then we won’t be able to satisfy Taylor’s demand for certainty.” United States v.

Degeare, 884 F.3d 1241, 1246 (10th Cir. 2018) (internal quotations omitted) (citing Mathis,

136 S. Ct. at 2257). In other words, we are to presume indivisibility without a clear answer.

Stitt, 860 F.3d at 862 (citing Mathis, 136 S. Ct. at 2257). The lead opinion ignores this

presumption. In the absence of certainty, I believe it would be a fundamental error—not to

mention a miscarriage of justice—to treat a defendant’s prior conviction as a violent-felony

predicate. I would, therefore, hold that the statute is indivisible.

II.

Having analyzed divisibility, I would then look to whether Burris’s statute of conviction

qualifies as a “crime of violence” under the elements, enumerated, or residual clauses of the

Guidelines.

As mentioned, the lead opinion performs this analysis first.

For the reasons

articulated, that approach makes little sense, but I agree that Ohio felonious assault criminalizes

more conduct than is described in both the elements and enumerated clauses of the Guidelines.5

I disagree, however, with the lead opinion’s conclusion that Ohio felonious assault is too broad

to categorically qualify under the Guidelines’ residual clause. Because the lead opinion reviews

the residual clause under an inaccurate standard, it is worth elaborating on the proper analysis.

The residual clause states that crimes of violence encompass those state convictions that

“otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2 (2015). The government relies on this court’s precedent in United States v.

Perry, which held that Ohio’s aggravated assault statute was a crime of violence under the

5In analyzing the enumerated clause, the lead opinion notes that the panel in United States v. Rodriguez,

664 F.3d 1032 (6th Cir. 2011), “did not refer to or analyze Ohio’s statutory definition of ‘serious bodily harm,’ nor

did it perform the divisibility analysis now required by Descamps and Mathis.” Lead Op. 15, n. 15. Confusingly,

the lead opinion ended its discussion there. To the extent the panel’s decision in Rodriguez can be read as finding

that “serious physical harm” as used in Ohio’s aggravated assault and felonious assault statutes requires violence,

rather than note the error as the lead opinion does, I would overrule it.

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No. 16-3855

Document: 88-2

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United States v. Burris

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residual clause of the ACCA. 703 F.3d 906, 910 (6th Cir. 2013). The Perry court held, albeit

with little explanation, that “[b]y its plain terms, [the Ohio aggravated assault statute] proscribes

conduct that presents a serious potential risk of physical injury to another.” Id. at 910 (internal

quotations omitted).

However, the Perry court failed (as did the court in Anderson and

Rodriguez) to recognize that “serious physical harm” is defined in Ohio to include not only

physical harm, but also mental harm. This flaw, however, is not fatal.

When analyzing a statute under the residual clause, our inquiry differs from that of the

elements and enumerated clause analyses. The inquiry is not—as the lead opinion assumes

without citation, Lead Op. 16— whether it is possible for a defendant to commit a crime in any

way that would not be a violent felony. See United States v. Smith, 881 F.3d 954, 958 (6th Cir.

2018), cert. denied, No. 17-8857, 2018 WL 2163626 (U.S. Oct. 1, 2018). Rather, we ask

“whether the conduct encompassed by the elements of the offense, in the ordinary case, presents

a serious potential risk of [physical] injury to another.” James v. United States, 550 U.S. 192,

208 (2007), overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015)

(emphasis added). Thus, we look at how Ohio courts ordinarily apply the statute in practice.

See Smith, 881 F.3d at 958.

Of course, we are still left with the essential question: how do we define the “ordinary”

case? The Supreme Court has articulated previously the difficulty of this analysis, albeit in the

context of the ACCA:

[T]he residual clause leaves grave uncertainty about how to estimate the risk

posed by a crime. It ties the judicial assessment of risk to a judicially imagined

“ordinary case” of a crime, not to real-world facts or statutory elements. How

does one go about deciding what kind of conduct the “ordinary case” of a crime

involves? “A statistical analysis of the state reporter? A survey? Expert

evidence? Google? Gut instinct?” United States v. Mayer, 560 F.3d 948, 952

(C.A.9 2009) (Kozinski, C.J., dissenting from denial of rehearing en banc). To

take an example, does the ordinary instance of witness tampering involve offering

a witness a bribe? Or threatening a witness with violence? Critically, picturing

the criminal’s behavior is not enough; as we have already discussed, assessing

“potential risk” seemingly requires the judge to imagine how the idealized

ordinary case of the crime subsequently plays out.

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Johnson, 135 S. Ct. at 2557–58. Due to these deficiencies, the Supreme Court ultimately held

that the residual clause of the ACCA violated the Constitution’s guarantee of due process and

overruled James. Id. at 2563. But shortly thereafter, the Supreme Court held that the residual

clause of the Guidelines was still valid, due to the Guidelines’ advisory nature. Beckles v. United

States, 137 S. Ct. 886 (2017).

In light of Beckles, this court has held that the ordinary-case standard articulated in James

“remains good law for purposes of the Guidelines.” Smith, 881 F.3d at 957 (brackets omitted)

(quoting United States v. Goodson, 700 F. App’x 417, 423 (6th Cir. 2017)); United States v.

Morris, 885 F.3d 405, 412 (6th Cir. 2018) (“Although Johnson abrogated [James] for purposes

of ACCA, the case remains good law for purposes of analyzing the residual clause of the

Guidelines.”). While we question the prudence of this standard (for all the reasons articulated in

Johnson), it is the law of the land. Thus, we must determine whether Ohio felonious assault

involves a “serious potential risk of physical injury” in an “idealized ordinary case of the crime.”

Welch v. United States, 136 S. Ct. 1257, 1262 (2016) (citation omitted); see also Beckles, 137 S.

Ct. at 892.

Under James, “[t]he mere possibility that a person could, conceivably, commit the

offense without creating a serious risk of physical injury to another is not enough to exclude the

offense from the ambit of the Guidelines’ residual clause.” Goodson, 700 F. App’x at 424; see

also James, 550 U.S. at 208 (“One can always hypothesize unusual cases in which even a

prototypically violent crime might not present a genuine risk of injury[.]”). As the lead opinion

discusses, however, individuals committing felonious assault in Ohio without creating a serious

risk of physical injury to another, is not a mere possibility or a hypothetical. It is a certainty.

Nevertheless, it appears that “ordinary” felonious assault in Ohio likely poses serious risk of

physical injury, sufficient to conclude that O.R.C. § 2903.11 is a crime of violence under the

residual clause of the Guidelines. I therefore disagree with the lead opinion’s conclusion to the

contrary.

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No. 16-3855

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III.

Everyone agrees that we review the district court’s classification of Ohio felonious

assault as a “crime of violence” under the Guidelines for plain error. See Lead Op. 10. But,

because I believe Burris would not be subject to the career-offender enhancement in the absence

of the residual clause—and his sentencing guideline would be significantly lower without the

enhancement—the district court should be given an opportunity to consider Burris’s case in light

of the amendment that eliminated the residual clause just weeks after his sentencing. This court,

as well as courts across the country, have previously exercised the discretion to remand under

similarly unique circumstances. See United States v. Atkinson, 354 F. App’x 250, 254 (6th Cir.

2009) (per curiam); see also United States v. McMillan, 863 F.3d 1053, 1058–59 (8th Cir. 2017);

United States v. Frates, 896 F.3d 93, 102–04 (1st Cir. 2018). I believe we should do so again.

To be clear, I would not hold that the district court erred—plainly or otherwise. See

Taylor, 648 F.3d at 428–29. But the decision to remand does not hinge solely on a showing of

plain error. United States v. Ahrendt, 560 F.3d 69, 80 (1st Cir. 2009) (“We d[o] not dwell on the

standard of review in our decision to remand for resentencing[.]”). And a remand would serve to

give the district court the opportunity to consider the amendment eliminating the residual

clause—a task that was previously futile under Anderson. Under these circumstances, prudence

dictates that the district court be given that opportunity.

affirmance of Burris’s sentence.

I respectfully dissent from the

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies the following: (1) that he

caused to filed an original and ten copies of the (a) motion for leave to proceed in

forma pauperis and (b) the petition for a writ of certiorari and appendix attached

thereto;

Clerk of the Supreme Court of the United States

1 First Street, NE

Washington, DC 20543

and (2) that he caused one copy of the motion for leave to proceed in forma pauperis

and foregoing brief with the required short appendix to be served on the following

counsel on this 20th day of May 2019:

Solicitor General of the United States

Room 5614

Department of Justice

950 Pennsylvania Avenue, N. W.

Washington, DC 20530-0001

(Attorney for the United States)

All parties required to be served have been served.

By:

____________________________________

Craig M. Sandberg

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.