After Borden v. United States, Ohio robbery conviction is not a crime of violence under U.S.S.G. § 4B1.2(a)’s “elements clause”  

          David Butts pleaded guilty to a drug offense and two firearm possession offenses. At sentencing, he contended that Borden v. United States, 141 S.Ct. 1817 (2021) precluded the use of his prior Ohio robbery conviction as a career offender predicate offense. He argued that under Ohio law the robbery offense did not require proof of any state of mind when using force. United States v. Butts, --- F.4th --- (6th Cir. 2022).  

          The district court found that the conviction was a crime of violence for purposes of a career offender enhancement. The court, however, varied downward and sentenced Mr. Butts to concurrent terms of 60 months on the drug offense and one of the firearm offenses. He was also sentenced to a mandatory, consecutive term of 60 months on the other firearm offense for a total of 120 months. (18 U.S.C. § 924(c)(1)(A)).

           The question is whether after Borden the robbery conviction is a crime of violence under U.S.S.G. § 4B1.2(a)’s elements clause. The government conceded that it is not but the Sixth Circuit did its own analysis of the issue.

         The conviction was based on Ohio Revised Code § 2911.02(A)(2) which provides in relevant part: “No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall … Inflict, attempt to inflict, or threaten to inflict physical harm on another.” The statute does not specify the mental state the defendant must have to support a conviction.

          The Sixth Circuit noted that under Ohio law “a person could commit a theft offense … purposefully or knowingly while recklessly or negligently inflicting physical harm …” Butts, Slip Op. 7-8. Furthermore, there existed a “realistic probability” that the statute would be applied “to conduct that falls outside the generic definition of a crime.” Id. at 8. Significantly, “Ohio courts have upheld § 2911.02(A)(2) convictions involving an infliction of harm due to, at most, a reckless use of force against another person.” Id. Thus, under Borden, the Sixth Circuit concluded that a robbery conviction under Ohio Revised Code § 2911.02(A)(2) “-at least one predicated on an unspecified § 2913.02 theft offense-is not a crime of violence under the elements clause of § 4B1.2(a) of the Guidelines.” Id.

          The court then considered whether the career offender designation made a difference in the sentence.  The drug conviction carried a mandatory minimum of 60 months as did the § 924(c) firearm conviction which had to run consecutively for total of 120 months. Since the district court could not have imposed a lower sentence, the error was harmless.  

          Note – The Sixth Circuit previously held in United States v. Johnson, 933 F.3d 540, 546 (6th Cir. 2019) that a conviction under Ohio Revised Code § 2911.02(A)(2) is a crime of violence under the Guidelines. The court rejected the argument that recklessness is an insufficient mental state for a conviction to qualify as a crime of violence but it did not take a position on the state of mind required for a § 2911.02(A)(2) conviction. However, the Sixth Circuit now recognizes that to “the extent that Johnson conflicts with Borden, its holding no longer controls.” Butts, Slip Op. 4, n.3.            

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