A qualified en-banc win on Ohio ACCA/career-offender predicates
In today’s Burris decision, the Sixth Circuit issued an en banc opinion finally reassessing whether Ohio’s aggravated-assault and felonious-assault statutes qualify 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 statutes did not categorically qualify because they are overly broad and permit conviction based on conduct that did not require violent conduct. However, the court was sharply divided over whether the statutes are divisible, ultimately holding that they are. This determination limits the potential benefits of the decision, and means that Mr. Burris himself will see no relief.
Several prior cases stood in the way of this decision, most notably United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which held that both statutes qualified under the elements clause. As countless post-Johnson petitioners pointed out, Anderson was decided without the benefit of Johnson, Descamps, Mathis, and many other cases that have dramatically changed the categorical analysis since 2012. The key concern regarding the two Ohio statutes is that both allow for conviction based on “serious physical harm” or “bodily injury” to the victim, but both define those terms to include some form of serious mental harm. Somewhat remarkably, Ohio courts have repeatedly upheld convictions where only serious mental harm occurred. Thus, both statutes sweep more broadly than the elements clause allows.
Unfortunately for Mr. Burris, the majority also held that the statute was divisible under Mathis, and that the divisibility was between the statutes’ “(A)(1)” and “(A)(2)” clauses, the latter of which could only be committed “by means of a deadly weapon.” In the post-Johnson world, the Sixth Circuit has recognized the “deadly weapon rule,” which means that a statute will meet the elements clause when it requires the combination of a deadly weapon and some degree or threat of physical force. Mr. Burris was convicted under the (A)(2) clause, and his conviction thus qualified under the elements clause.
A seven-judge minority (comprising the entirety of what some might label the court’s “liberal” wing) dissented on the divisibility analysis, noting that Ohio courts appeared to have issued clear guidance that the statute is not divisible, and that any lack of clarity should weigh in favor of indivisibility. In any event, the dissent believed that the Ohio felonious-assault statute would fall under the residual clause of the Guidelines.
In short, Burris is likely a big win for federal defendants with prior convictions under the “physical injury” prongs of these statutes, but likely not if they have prior convictions under the “deadly weapon” prongs.
Practitioners should stay tuned though: this case was consolidated for briefing with another case that addressed this same question in the habeas context. We are not betting people here at the Sixth Circuit Blog, but the Sixth Circuit has not been particularly habeas-friendly in the post-Johnson era, so we won’t hold our breath….