Panel Holds that Ohio Aggravated Burglary Statute Does Not Count as Predicate Violent Felony under ACCA.
Wednesday, February 15, 2023

About two weeks ago, the Sixth Circuit issued an important decision in United States v. White, No. 21-3209.  Judge White wrote the unanimous opinion for the Court, which was joined by Judge Moore and Judge Bush.  The Court held that an Ohio aggravated-robbery statute, R.C. § 2911.01(A)(1), does not qualify as a violent felony under the Armed Career Criminal Act (commonly referred to as “ACCA”).  The Sixth Circuit reversed the District Court’s contrary decision. 

The case is notable for a few reasons.  The Court acknowledged that it was departing from a prior panel’s decision, which had held that R.C. § 2911.01(A)(1) did qualify as a violent felony under ACCA.  See United States v. Patterson, 853 F.3d 298 (6th Cir. 2017).  But the Court was not constrained by Patterson because of the Supreme Court’s recent decision in Borden v. United States, 141 S. Ct. 1817 (2021).  In Borden, a plurality of the Supreme Court held that ACCA’s elements clause “covers purposeful and knowing acts, but excludes reckless conduct.” Id. at 1826.  And in United States v. Butts, 40 F.4th 766 (6th Cir. 2022), the Sixth Circuit read Borden as requiring a purposeful or knowing mens rea for offenses deemed violent felony predicate offenses.  See id. at 770. 

In White, the government relied on Patterson in arguing that the defendant’s prior aggravated burglary convictions counted as violent felony predicates under ACCA.  But Borden posed a problem for the government’s position.  As the Sixth Circuit explained, Patterson “did not consider, as Borden now requires, whether the offense’s force element has a mens rea greater than recklessness.”  Sixth Circuit Opinion at 8.  Borden’s mens rea requirement mattered here because, on its face, R.C. § 2911.01(A)(1) does not specify what mens rea the defendant must possess to commit the offense.  In other words, the statute does not say what state of mind the defendant must possess in displaying, brandishing, indicating possession of, or using a deadly weapon. 

Another strike against the government’s position was State v. Lester, 916 N.E.2d 1038 (Ohio 2009), which held that the deadly-weapon element in R.C. § 2911.01(A)(1) “does not have a culpability requirement.”  Sixth Circuit Opinion at 10.  The Sixth Circuit noted that the Ohio Supreme Court had reaffirmed that core holding of Lester “on multiple occasions.”  Id. (citing State v. Wesson, 999 N.E.2d 557, 567 (Ohio 2013); State v. Horner, 935 N.E.2d 26, 34 (Ohio 2010)).

Nor did the theft offenses underlying the defendant’s aggravated burglary convictions supply the purposeful or knowing mens rea necessary for those offenses to qualify as violent felonies under ACCA.  The records associated with the defendant’s prior convictions did not specify which of the more-than 31 possible theft offenses served as the basis for those convictions.  And without that specificity, the Court could not conclude that the defendant was convicted of an offense requiring a purposeful or knowing state of mind.  As a result, the Court vacated the defendant’s sentence and remanded for resentencing consistent with the Court’s opinion. 

Stephanie A. Darville also contributed to this article.

 

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