Sunday, August 09, 2015

Crimes of Violence Determined Under Shepard

The Sixth Circuit determined that Tennessee’s aggravated burglary statute is divisible and, further, may constitute a “crime of violence.” In United States v. Ozier, the Court used the modified categorical approach to determine whether the defendant committed a breed of aggravated burglary that constitutes a crime of violence under Section 4B1.2(a)(2) of the United States Sentencing Guidelines. The decision demonstrates the continued viability of Descamps and Shepard when determining career offender status (and potentially the ACCA) following Johnsonv. United States.

In Ozier, the District Court concluded that Ozier had committed one of the enumerated offenses (burglary of a dwelling) in Section 4B1.2(a)(2).  In conducting its analysis, the Sixth Circuit first determined (under Descamps) that Tennessee’s aggravated burglary statute is divisible. Having established that the statute is divisible, the Court then analyzed the plea colloquy underlying the state conviction (under Shepard), which confirmed the District Court’s conclusion. Because the underlying crime fell within the enumerated offenses, the Court declined to consider whether Johnson invalidated an analysis under the residual clause.

The case is United States v. Ozier, 14-6439 (6th Cir. August 5, 2015).

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