by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that because Ohio’s aggravated robbery statute, Ohio Revised Code § 2911.01(A), does not contain a mens rea requirement of knowing and purposeful use, attempted use, or threatened use of physical force, a conviction under that statute can be a violent felony for purposes of the Armed Career Criminal Act (“ACCA”) only if the underlying theft in the robbery requires knowing and purposeful use, attempted use, or threatened use of physical force.

Jamael White pleaded guilty to being a felon in possession of a firearm. The Government asked the U.S. District Court for the Southern District of Ohio to classify White as an armed career criminal, alleging that White had been convicted of seven armed robberies in violation of O.R.C. § 2911.01(A). White’s initial Guidelines imprisonment range was 135 months to 168 months, but because the District Court found him to be an armed career criminal, White was sentenced to the mandatory 15-year minimum under 18 U.S.C. § 924(e).

On appeal, White argued that none of his Ohio aggravated robbery convictions qualified as violent felonies for ACCA purposes “because the physical force element of the offense can be committed with a mens rea less than purposeful or knowing conduct, in violation of Borden v. United States, 141 S. Ct. 1817 (2021). Because White failed to object on those grounds in the District Court, the Sixth Circuit reviewed for plain error. United States v. Farrad, 895 F.3d 859 (6th Cir. 2018). To prevail, White had to establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Southers, 866 F.3d 364 (6th Cir. 2017). The Court may then grant relief “only if (4) the error affects the fairness, integrity or public reputation of judicial proceedings.” Id. If the error is based on new or intervening law that became effective while on appeal, plain error is judged by the law at the time of appellate review. United States v. Woodruff, 735 F.3d 445 (6th Cir. 2013).

The ACCA imposes a mandatory minimum 15-year term of imprisonment for certain firearm offenses if the defendant “has three previous convictions … for a violent felony or serious drug offense, or both, committed on occasions different from one another.” § 924(e)(1). A “violent felony” is “any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). “[U]se of physical force against the person of another” in the ACCA’s elements clause “covers purposeful and knowing acts, but excludes reckless conduct.” Borden. “The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual.” Id. Reckless conduct “is not aimed in that prescribed manner.” Id.

Courts use the “categorical approach” to determine if a previous conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” United States v. Burris, 912 F.3d 386 (6th Cir. 2019). Under the categorical approach, the court “looks only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575 (1990). The court then asks “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.” Burris. “Following Borden, [the Court] conclude[s] [its] analysis by asking whether the prior statute of conviction requires the defendant to have used, attempted to use, or threatened to use such physical force with a mens rea greater than recklessness.” Borden.

In United States v. Patterson, 853 F.3d 298 (6th Cir. 2017), the court held that a conviction under O.R.C. § 2911.01(A)(1) categorically qualifies as a violent felony under the ACCA because the statute requires the defendant to commit theft as defined in O.R.C. § 2913.01 and to have “a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.” O.R.C. § 2911.01(A)(1). But the Court noted that Patterson was decided before Borden. And in State v. Lester, 916 N.E.2d 1038 (Ohio 2009), the Ohio Supreme Court stated “[w]e are persuaded that the General Assembly, by not specifying a mens rea in § 2911.01(A)(1), plainly indicated its purpose to impose strict liability as to the element of displaying, brandishing, indicating possession of, or using a deadly weapon.” Thus, the Court concluded that O.R.C. § 2911.01(A) does not have a culpability requirement, i.e., does not require the use, attempted use, or threatened use of physical force (the displaying, brandishing, indicating possession of, or using a deadly weapon) to be done purposefully and knowingly. 

But the Court explained “‘[w]ithout a state of mind linked to the physical injury element of a [§ 2911.01(A)(1)] conviction, we must ask whether a theft offense underlying the conviction necessarily involved’ … the knowing or purposeful ‘use, attempted use, or threatened use of physical force against the person of another.’” United States v. Butts, 40 F.4th 766 (6th Cir. 2022). If the underlying theft offense does not require the knowing or purposeful use, attempted use, or threatened use of force when a person displayed, brandished, indicated possession of, or used a deadly weapon, then a conviction under § 2911.01(A)(1) does not qualify as a violent felony under the categorical approach. Id. A “theft offense” under § 2911.01(A) is any one of the 31 offenses identified in § 2913.01. Because § 2911.01(A)’s theft element is divisible as defined in United States v. Wilson, 978 F.3d 990 (6th Cir. 2020), the Court looked to the Shepard documents (from Shepard v. United States, 544 U.S. 13 (2005)) to determine which theft offenses served as predicates for White’s convictions. (Note: broadly speaking, the “divisible” theft element means basically that a theft can be committed by completion of various elements or combinations of elements in the statute(s) – some of which may satisfy the force clause of the ACCA and some of which may not.)

After examining the available documents, the Court determined that nothing revealed which theft offense(s) served as the underlying crime in White’s aggravated robbery convictions. Thus, the Court ruled that “applying the law as it exists at the time of our review, i.e., applying Borden, we conclude that on the record before it, the district court plainly erred in finding that White’s aggravated-robbery convictions qualify as violent felonies.”

Accordingly, the Court vacated White’s sentence and remanded for resentencing consistent with its opinion. See: United States v. White, 58 F.4th 889 (6th Cir. 2023).  

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