                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0346n.06

                                         Case No. 18-3570

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                    FILED
UNITED STATES OF AMERICA,                              )                       Jul 08, 2019
                                                       )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                             )
                                                       )         ON APPEAL FROM THE
v.                                                     )         UNITED STATES DISTRICT
                                                       )         COURT FOR THE NORTHERN
LAWRENCE WALLS,                                        )         DISTRICT OF OHIO
                                                       )
       Defendant-Appellant.                            )

                                                                                     OPINION


BEFORE: McKEAGUE, THAPAR, and MURPHY, Circuit Judges.

       McKEAGUE, Circuit Judge. On June 13, 2017, a jury found Lawrence Walls guilty of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). This was not Walls’

first criminal conviction. Three of his prior convictions, the district court concluded, were violent

felonies that made Walls an armed career criminal under the Armed Career Criminal Act

(“ACCA”). That finding triggered ACCA’s mandatory minimum 15-year sentence. 18 U.S.C.

§ 924(e). Applying that minimum, and considering all of the relevant sentencing factors, the

district court sentenced Walls to 216 months’ imprisonment. On appeal, Walls argues that none

of his prior convictions are violent-felony ACCA predicates. Because we cannot conclude, on the

record now before us, that Walls’ 1993 aggravated-assault conviction is a violent-felony ACCA

predicate, we VACATE and REMAND to the district court for further proceedings.
Case No. 18-3570, United States v. Walls


                                                 I

       ACCA imposes a 15-year minimum sentence if a defendant convicted of being a felon in

possession of a firearm also has at least three prior convictions for a “violent felony.” 18 U.S.C.

§ 924(e). A violent felony, according to ACCA’s “elements clause,” is a felony “that has as an

element the use, attempted use, or threatened use of physical force against the person of another.”1

Id. § 924(e)(2)(B)(i). Under ACCA, “the phrase ‘physical force’ means violent force—that is,

force capable of causing physical pain or injury to another person.” Johnson v. United States, 559

U.S. 133, 140 (2010).

       To determine whether a prior conviction satisfies the statute’s elements clause, courts use

what is known as the “categorical approach”—an approach that looks only to the statutory

elements of the defendant’s prior offense, “while ignoring the particular facts of the case.” Mathis

v. United States, 136 S. Ct. 2243, 2248 (2016). “The question for the sentencing court,” under the

categorical approach, “is 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 be convicted,” and not whether the particular defendant in fact used, attempted to use, or

threatened physical force. United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019) (en banc).

       Applying the categorical approach may be a fairly mundane task or an elaborate puzzle

depending on the structure of the statute under review. When the statute is indivisible—that is,

when it “sets out a single . . . set of elements to define a single crime”—the court’s analysis is

straightforward. Mathis, 136 S. Ct. at 2248. As long as the statute requires the use, attempted use,




1
 A felony may also be an ACCA predicate if it “‘is burglary, arson, or extortion, or involves use
of explosives’ (the ‘enumerated-offense clause’).” Davis v. United States, 900 F.3d 733, 735 (6th
Cir. 2018) (internal alterations omitted) (quoting 18 U.S.C. § 924(e)(2)(B)). The enumerated-
offense clause is not at issue in this case.
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Case No. 18-3570, United States v. Walls


or threatened use of physical force as defined by ACCA, a conviction under the statute qualifies

as an ACCA predicate; otherwise, it does not. Burris, 912 F.3d at 392. But divisible statutes—or

those that “list elements in the alternative, and thereby define multiple crimes”—require another

analytical step. Mathis, 136 S. Ct. at 2249. That’s because one of the statute’s multiple crimes

may list physical force as an element, making it an ACCA predicate, while the other may not

require physical force and thus not constitute an ACCA predicate. Burris, 912 F.3d at 393. For

divisible statutes, then, courts apply a “modified categorical approach.” Id. That approach allows

courts to examine a limited class of records, such as “the indictment, jury instructions, or plea

agreement and colloquy,” to determine which of the statute’s alternative offenses the defendant

actually committed. Mathis, 136 S. Ct. at 2249. (These documents are commonly called “Shepard

documents,” named after the case that authorized their use under the modified categorical

approach. See Shepard v. United States, 544 U.S. 13, 20–21 (2005).) Then, just as it would under

the categorical approach, the court answers whether every defendant convicted of the defendant’s

offense must have used, attempted to use, or threated to use physical force against another to be

convicted of that offense. Burris, 912 F.3d at 393–94.

                                                II

       We review de novo the district court’s legal determination that an offense constitutes a

violent felony under ACCA. United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014). But

“[f]actual conclusions, such as determining what offense [the defendant] was convicted of in [a

prior case], are reviewed under a clearly erroneous standard.” United States v. Sanders, 470 F.3d

616, 618 (6th Cir. 2006) (citing United States v. Graves, 60 F.3d 1183, 1185 (6th Cir. 1995);

United States v. Beasley, 442 F.3d 386, 394 (6th Cir. 2006)).




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Case No. 18-3570, United States v. Walls


       The district court concluded, over Walls’ objections, that three prior state convictions made

Walls an armed career criminal: (1) a 1993 aggravated assault conviction (Ohio Rev. Code

§ 2903.12); (2) a 1997 aggravated assault conviction (Ohio Rev. Code § 2903.12(A)(2)); and (3)

a 2001 aggravated robbery conviction (Ohio Rev. Code § 2911.11(A)(1)). On appeal, Walls

asserts that, for various reasons, none of his prior convictions satisfy ACCA’s elements clause.

                                                 A

       We begin with the first two convictions that the district court relied on for its armed-career-

criminal finding.2 In 1993 and 1997, Walls was convicted of aggravated assault under Ohio Rev.

Code § 2903.12. In 1993, the statute provided:

       (A) No person, while under the influence of sudden passion or in a sudden fit of
       rage, either of which is brought on by serious provocation occasioned by the victim
       that is reasonably sufficient to incite the person into using deadly force, shall
       knowingly:

       (1) Cause serious physical harm to another;

       (2) Cause or attempt to cause physical harm to another by means of a deadly
       weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code.

Ohio Rev. Code § 2903.12 (1993). Before Walls’ 1997 conviction, the statute was amended to

add “or to another’s unborn” in subparts (1) and (2), thereby additionally criminalizing harm done

to another’s unborn. Ohio Rev. Code § 2903.12(A) (1997). The statute otherwise remained the

same and the amendment therefore does not affect our analysis under ACCA’s elements clause.



2
  In his initial pre-trial motion for a determination of whether the ACCA applies to his case, Walls
conceded that the 1993 and 2001 convictions qualified as violent felonies under ACCA. In his
sentencing memorandum, Walls argued that none of the convictions qualified as violent felonies.
The district court did not address whether Walls had waived any of the new arguments presented
in his post-trial motion but instead ruled on all of them. Because Walls challenged all three of his
ACCA predicates prior to sentencing, we review his challenges de novo rather than for plain error.
See United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir. 2013).
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Case No. 18-3570, United States v. Walls


       At the time the district court made its ruling, it was clear that Walls’ aggravated assault

convictions qualified as violent felonies under ACCA. According to then-binding caselaw, Ohio’s

aggravated assault statute was categorically “a ‘violent felony’ under [ACCA] because it ‘has as

an element the use, attempted use, or threatened use of physical force against the person of

another.’” United States v. Anderson, 695 F.3d 390, 400 (6th Cir. 2012) (quoting 18 U.S.C.

§ 924(e)(2)(B)(i)). Anderson did not address whether the aggravated assault statute was divisible.

Regardless of the statute’s divisibility, it was “clear,” Anderson said, that the “statute, which

requires proof of ‘serious physical harm,’ or ‘physical harm . . . by means of a deadly weapon or

dangerous ordnance,’ necessarily requires proof that the defendant used ‘force capable of causing

physical pain or injury.’” Id. (quoting Ohio Rev. Code § 2903.12(A)).

       After the district court’s decision in Walls’ case, however, we overruled Anderson. See

Burris, 912 F.3d 386. In undoing Anderson, Burris made clear that Ohio’s aggravated-assault

statute is divisible—that is, subsections (A)(1) and (A)(2) of the statute list two alternative

aggravated assault offenses—and that only the (A)(2) offense constitutes a violent-felony ACCA

predicate. Id. at 402–07. For ease of reference, we will call the (A)(1) version of the offense,

which prohibits “caus[ing] serious physical harm to another,” the “serious-harm” offense. And

we will refer to the (A)(2) version of the offense, which prohibits “[c]aus[ing] or attempt[ing] to

cause physical harm to another by means of a deadly weapon or dangerous ordnance,” as the

“deadly-weapon” offense.

       Burris held that the (A)(1) serious-harm offense “is too broad to qualify categorically as a

violent-felony predicate.” 912 F.3d at 406. That’s because Ohio defines the “serious physical

harm” element of the offense to include “[a]ny mental illness or condition of such gravity as would

normally require hospitalization or prolonged psychiatric treatment.” Id. at 397 (emphasis added)



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Case No. 18-3570, United States v. Walls


(quoting Ohio Rev. Code § 2901.01(A)(5)(a)). The court held that, because the serious-harm

offense encompasses non-physical harm, it does not comport with ACCA’s elements clause, which

encompasses only physical harms. Id. at 402. Therefore, it is not an ACCA predicate offense. Id.

       On the other hand, Burris continued, the (A)(2) deadly-weapon offense does constitute an

ACCA predicate. Burris explained that under “what is colloquially called the ‘deadly weapon

rule,’” a felony that “must be committed with a deadly weapon and involves some degree or threat

of physical force . . . is a crime of violence” under ACCA. Id. at 406 (quoting United States v.

Harris, 853 F.3d 318, 321 (6th Cir. 2017)). That rule settled the issue—the deadly-weapon offense

is a violent-felony ACCA predicate. Id.

       All of this means that, after Burris, it is essential that a sentencing court “employ the

modified categorial approach to determine” if a defendant was convicted of the serious-harm

offense in (A)(1) or the deadly-weapon offense in (A)(2). Id. at 406. The district court did not

make such a determination before it sentenced Walls. It can’t be blamed for that, of course—the

court had no reason to do so because Anderson was then the law of the circuit. Now that Burris

controls, though, “the government bears the burden of proving that [Walls] was convicted of” the

deadly-weapon form of aggravated assault and that the conviction thereby qualifies as a violent-

felony ACCA predicate. United States v. Bain, 874 F.3d 1, 30 (1st Cir. 2017) (internal citations

omitted); see also Sanders, 470 F.3d at 618.

       For Walls’ 1997 conviction, the government’s task is easy. As Walls’ plea agreement and

judgment show,3 he pleaded guilty to the deadly-weapon form of aggravated assault under Ohio




3
  In a sur-reply brief before the district court, the government submitted Shepard documents and
stated that if a divisibility analysis had been required, those documents demonstrated that the 1993
and 1997 convictions were for deadly-weapon aggravated assault but the district court did not
address that argument.
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Case No. 18-3570, United States v. Walls


Rev. Code § 2903.12(A)(2). In light of Burris, Walls’ 1997 conviction is therefore an ACCA

predicate.

          For Walls’ 1993 conviction, the government’s case is a harder one to make.            The

government says that Walls’ indictment and plea agreement and the Ohio court’s judgment prove

that Walls pleaded guilty to the deadly-weapon form of aggravated assault. In reality the

documents are not so clear. The indictment shows that Walls was charged with felonious assault

under Ohio Rev. Code § 2903.11, a parallel provision to aggravated assault under § 2903.12.4 The

felonious assault provision contains the same alternative serious-harm and deadly-weapon

offenses as the aggravated assault provision but leaves out the aggravated assault mitigating factor

that the defendant committed the offense while in the heat of passion or under provocation.

Compare Ohio Rev. Code. § 2903.11, with id. § 2903.12. Because the felonious assault statute is

nearly identical to the aggravated assault statute, Burris analyzed the statutes in tandem and ruled

that, for the same reasons, both statutes are divisible with only the deadly-weapon offense

qualifying as an ACCA predicate. Burris, 912 F.3d at 393–406. Walls’ indictment charges him

with committing the deadly-weapon version of felonious assault, the ACCA-predicate version of

the offense. Id. at 405–06.




4
    The full text of the felonious-assault provision states:

          (A) No person shall knowingly do either of the following:
          (1) Cause serious physical harm to another or to another’s unborn;
          (2) Cause or attempt to cause physical harm to another or to another’s unborn by
              means of a deadly weapon or dangerous ordnance.

    Ohio Rev. Code § 2903.11.



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Case No. 18-3570, United States v. Walls


       But the plea agreement and judgment demonstrate that Walls eventually pleaded guilty to

the separate crime of aggravated assault under § 2903.12. And neither of those Shepard documents

specify which subsection of the aggravated assault statute formed the basis of Walls’ conviction.

So, even though it’s clear that Walls was charged with a violent-felony ACCA predicate, Burris,

912 F.3d at 407, it’s unclear whether he pleaded to one. See United States v. Bernal-Aveja, 414

F.3d 625, 627–28 (6th Cir. 2005) (stating that a charging document may fill in gaps in a plea

agreement only when “the crime charged was the same crime for which the defendant was

convicted” (quoting United States v. Spell, 44 F.3d 936, 940 (11th Cir. 1995)).

       The parties had no incentive to more fully develop the record before the district court, when

Anderson was still the law of the circuit. It therefore makes sense to allow them to do so on remand,

permitting the district court to consider whether it can reasonably construe the Shepard documents

to determine Walls’ offence of conviction. See Sanders, 470 F.3d at 623; United States v. Faust,

853 F.3d 39, 50, 60 (1st Cir. 2017). But only if any of Walls’ 2001 convictions also qualify as

violent-felony ACCA predicates.

                                                 B

       At least one of Walls’ 2001 convictions constitutes an ACCA predicate. In 2001, Walls

was convicted of three crimes arising from a single event: (1) aggravated robbery (Ohio Rev. Code

§ 2911.01(A)(1)), (2) aggravated burglary (Ohio Rev. Code § 2911.11(A)(1)), and (3) robbery

(Ohio Rev. Code § 2911.02(A)(2)). Because “a defendant’s prior felony convictions” under

ACCA “must involve separate criminal episodes,” we may count only one of Walls’ 2001

convictions as an ACCA predicate. United States v. Martin, 526 F.3d 926, 938–39 (6th Cir. 2008)

(citation omitted). The district court turned first to Walls’ aggravated robbery conviction and

concluded that it qualified. So we begin with that conviction as well.



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Case No. 18-3570, United States v. Walls


       Ohio’s aggravated robbery statute provides, in relevant part:

       (A) No person, in attempting or committing a theft offense, . . . or in fleeing
       immediately after the attempt or offense, shall do any of the following:

       (1) 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;

Ohio Rev. Code Ann. § 2911.01.

       Does a conviction under that provision qualify as an ACCA predicate? Yes. We held that

it does in United States v. Patterson, 853 F.3d 298 (6th Cir. 2017). In so holding, Patterson relied

chiefly on an Ohio Supreme Court case concluding that Ohio’s aggravated robbery statute

punished defendants who “convey[ed] an implied threat to inflict physical harm” by “displaying,

brandishing, indicating possession [of], or using [a deadly] weapon” while committing a theft

offense. Id. at 302–03 (quoting State v. Evans, 122 Ohio St.3d 381, 911 N.E.2d 889, 894 (2009)).

According to Patterson, that implied threat was “enough to show that” an “aggravated robbery

conviction[] require[s] proof of ‘the use, attempted use, or threatened use of physical force against

the person of another,’” and therefore constitutes a violent felony under ACCA’s elements clause.

Id. at 303 (quoting 18 U.S.C. § 924(e)(2)(B)(i)).

       Walls counters that Ohio’s aggravated robbery statute lacks the mens rea necessary to

qualify as a violent-felony ACCA predicate. But Patterson considered and rejected that very

argument. Patterson explained that for that argument to carry the day, there must be a “realistic

probability, not a theoretical possibility, that [Ohio] would apply [the aggravated robbery] statute

to” accidental, rather than intentional or reckless uses of force. Patterson, 853 F.3d at 302 (quoting

Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). We held that there was no realistic probability

of that occurring in Ohio because “Ohio . . . interprets aggravated robbery with a deadly weapon

in every case to require an ‘implied threat to inflict physical harm’ to the victim.” Id. at 305

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Case No. 18-3570, United States v. Walls


(quoting Evans, 911 N.E.2d at 894). Moreover, the defendant in Patterson could point to no Ohio

case where a defendant was convicted of the aggravated robbery offense even though the defendant

never actually “threaten[ed] a victim with the deadly weapon.” Id. at 304. Without any case like

that, Patterson concluded, there was “every reason to treat” Ohio’s aggravated robbery offense “as

a crime of violence” under ACCA. Id.

       Patterson applies in full force to this case. Walls does not point to any Ohio cases

demonstrating that Ohio has ever applied its aggravated robbery statute to defendants who use

force accidentally. Instead, Walls reiterates the same arguments that the court rejected in

Patterson. Walls thus fails to show that the district court erred in finding that his aggravated

robbery conviction is an ACCA predicate.

                                        *       *      *

       Walls certainly has two prior convictions that count as ACCA predicates. The question is

whether he has the required three. We remand to the district court to answer that question.

                                               III

       Accordingly, we VACATE and REMAND this case to the district court for further

proceedings consistent with this opinion.




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