                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0042n.06

                                           No. 10-4480                                     FILED
                             UNITED STATES COURT OF APPEALS                           Jan 11, 2012
                                  FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk


UNITED STATES,                                           )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE NORTHERN
v.                                                       )        DISTRICT OF OHIO
                                                         )
MITCHELL LEMASTER,                                       )        OPINION
                                                         )
       Defendant-Appellant.                              )


BEFORE:     BATCHELDER, Chief Circuit Judge; MCKEAGUE and STRANCH, Circuit
            Judges.
       McKeague, Circuit Judge. Defendant Mitchell LeMaster pled guilty to violating 18 U.S.C.

§ 922(g)(1), the federal felon-in-possession-of-a-firearm statute. The district court found that

LeMaster was eligible for enhanced sentencing under the Armed Career Criminal Act (“ACCA”)

based on LeMaster’s three prior Ohio burglary convictions. LeMaster appeals the district court’s

application of the ACCA and requests remand for resentencing without application of the ACCA.

We AFFIRM.

                                       I. BACKGROUND

       On February 2, 2010, LeMaster was indicted on one charge of violating 18 U.S.C. §

922(g)(1). LeMaster pled guilty pursuant to a plea agreement that preserved his right to appeal the

district court’s criminal history determination, and the United States Probation Services prepared a

Presentence Investigation Report (“PSR”). The PSR assigned LeMaster a criminal history category

of V. Although the base offense level for violating 18 U.S.C. § 922(g)(1) is 24, the PSR reduced
No. 10-4480
United States v. Mitchell LeMaster

LeMaster’s adjusted offense level to 21 based on his acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1(a) and the government’s motion pursuant to U.S.S.G. § 3E.1.1(b). The PSR

applied an ACCA enhancement to LeMaster’s adjusted offense level based on his three prior Ohio

burglary convictions, including a burglary in Ashland County (the “Ashland burglary”) in violation

of Ohio Revised Code § 2911.12(A)(4) (“§ 2911.12(A)(4)”)1, which increased LeMaster’s adjusted

offense level to 33 pursuant to U.S.S.G. § 4B1.4. After the PSR deducted two points for acceptance

of responsibility and one point for cooperation, the PSR’s total offense level for LeMaster was 30

with a criminal history category of V.

       At sentencing, LeMaster objected to the PSR’s proposed ACCA enhancement, arguing that

the Ashland burglary was not a qualifying predicate offense. Specifically, LeMaster asserted that

it is possible to violate Ohio’s fourth-degree burglary statute, § 2911.12(A)(4), without committing

a violent crime. In support of this argument, LeMaster asserts that the particular facts of his crime

— burglary of an “uninhabitable” and “unoccupied structure” — were not violent.

       The district court rejected LeMaster’s arguments, finding that while § 2911.12(A)(4) “is not

a generic crime of violence, . . . the statute itself does fall under the residual clause [of the ACCA]

as involving conduct that represents a serious potential risk of physical injury.” R. 48 at 10-11. The

district court continued: “And beyond that, I am controlled by the Skipper case,” a Sixth Circuit

decision which held that Ohio’s fourth-degree burglary statute, § 2911.12(A)(4), “qualifies as a

crime of violence.” R. 48 at 11. Accordingly, the district court adopted the PSR’s finding that



       1
           § 2911.12(A)(4) was amended in 2011 and is now §2911.12

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United States v. Mitchell LeMaster

LeMaster was subject to the ACCA enhancement. After granting the government’s motion for a 4-

level reduction for substantial assistance pursuant to U.S.S.G. § 5K1.1 and § 18 U.S.C. § 3553(e),

the district court set LeMaster’s final offense level at 26 and the criminal history category at V,

resulting in a guideline calculation range of 110 to 137 months’ imprisonment. The district court

sentenced LeMaster to a below-Guidelines sentence of 105 months’ incarceration, and LeMaster

timely filed this appeal.

                                 II. STANDARD OF REVIEW

       This Court “review[s] de novo ‘a district court’s conclusion that a crime constitutes a violent

felony under the ACCA[.]’” United States v. Amos, 501 F.3d 524, 526 (6th Cir. 2007) (quoting

United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005)).

                                         III. ANALYSIS

       A defendant convicted under § 922(g)(1) with “three previous convictions . . . for a violent

felony” is eligible for enhanced sentencing under the ACCA. See 18 U.S.C. § 924(e)(1). The crime

of “burglary” is one of several enumerated violent felonies in § 924(e)(2)(B)(ii) of the ACCA, but

neither the ACCA nor its legislative history define the requisite elements for a qualifying burglary

offense. The Supreme Court’s statutory interpretation of “burglary” in the context of the ACCA,

however, provides the following guidance: “the generic, contemporary meaning of burglary contains

at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building

or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990)

(emphasis added).



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        In addition to enumerated violent felonies, the ACCA also contains a residual clause that

applies to any felony that “otherwise involves conduct that presents a serious potential risk of

physical injury to another . . . .” 18 U.S.C. § 924(e)(2)(B)(ii). To determine whether the residual

clause applies, a sentencing court must adopt “a formal categorical approach, looking only to the

statutory definitions of the propr offenses, and not to the particular facts underlying those

convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990); see also United States v. Arnold,

58 F.3d 1117, 1121 (6th Cir. 1995). If, however, “the state statute defines the crime more broadly

than the generic offense, . . . a modified categorical approach applies.” United States v. Soto-

Sanchez, 623 F.3d 317, 320 (6th Cir. 2010). Under this approach, “the court may look beyond the

statute and the fact of conviction to the indictment or information and jury instructions,” but “[t]he

court may use these additional materials only to determine which crime within a statute the defendant

committed, not how he committed that crime.” Id. (internal citations omitted).

        Section 2911.12(A)(4), Ohio’s fourth-degree burglary statute as it existed at the time of the

offense, mandates that: “No person, by force, stealth, or deception, shall . . .[t]respass in a permanent

or temporary habitation of any person when any person other than an accomplice of the offender is

present or likely to be present.” As we determined in United States v. Skipper, § 2911.12(A)(4) does

not constitute “generic burglary” as defined in Taylor “because it lacks the element of intent to

commit a crime within the habitation[,]” 552 F.3d 489, 492 (6th Cir. 2009), but we determined that

§ 2911.12(A)(4) is a qualifying predicate offense under the ACCA’s residual clause. In Skipper, we

relied on the United States Supreme Court’s decision in James v. United States in finding that fourth-

degree burglary as defined by Ohio law presents “a serious potential risk of injury to another.” Id.

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at 492. In James, the Supreme Court found that attempted burglary, as defined by Florida law,

presented a serious potential risk of injury to another because the “main risk of burglary arises not

from the simple physical act of wrongfully entering onto another’s property, but rather from the

possibility of a face-to-face confrontation between the burglar and a third party — whether an

occupant, a police officer, or a bystander — who comes to investigate.” James v. United States, 550

U.S. 192, 203 (2007). Similarly, we concluded in Skipper that “[t]he same risk is present with

respect to fourth-degree burglary as defined by Ohio law.” Skipper, 552 F.3d at 492. Because §

2911.12(A)(4) requires trespass in the “habitation” of another individual that is effected by “force,

stealth, or deception” while an innocent person is “present or likely to be present,” the offense “sets

forth a recipe for precisely the kind of surprise confrontation whose risk of physical injury underlay

the Supreme Court’s holding in James.” Id. at 493.

        Skipper is binding precedent on this case. See 6 Cir. R. 206(c); United States v. Moody, 306

F.3d 609, 615 (6th Cir. 2000) (“This panel may not overrule the decision of another panel; the

earlier determination is binding authority unless a decision of the United States Supreme Court

mandates modification or this Court sitting en banc overrules the prior decision.”). Here, the district

court properly followed Skipper and found that § 2911.12(A)(4) is a qualifying violent felony

predicate under the ACCA.

        LeMaster’s argument that the district court erred in relying on Skipper because the facts are

slightly different, and the district court applied a different standard of review, is without merit. First,

the fact that Skipper employed a different standard of review than this case is irrelevant. See United

States v. McBee, 364 F. App’x. 991, 991 (6th Cir. 2010) (“Skipper, it is true, involved plain-error

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United States v. Mitchell LeMaster

review . . . but step one of the plain-error inquiry turns on whether any error occurred, and we found

no error in treating § 2911.12(A)(4) as a crime of violence[.]”). Second, because this Court uses a

categorical approach to determine whether an offense is violent, the particular facts of LeMaster’s

case are irrelevant. United States v. Young, 580 F.3d 373, 377 (6th Cir. 2009) (citing Begay v.

United States, 553 U.S. 137, 141 (2008)); Skipper, 552 F.3d at 492 (citing James, 550 U.S. at 194).

       LeMaster’s assertion that the district court erred by focusing on Skipper instead of Begay is

also without merit. Not only does Skipper post-date Begay, but the categorical approach endorsed

in Skipper is consistent with the modified categorical approach in Begay. See Begay, 553 U.S. at

141 (“In determining whether this crime is a violent felony, we consider the offense

generically . . . we examine it in terms of how the law defines the offense and not in terms of how

an individual offender might have committed it on a particular occasion.”). Moreover, as required

by Begay, Ohio’s fourth-degree burglary statute is “roughly similar, in kind as well as in degree of

risk posed,” id. at 143, to the enumerated offense of burglary.

       LeMaster’s reliance on the Third Circuit’s interpretation of § 2911.12(A)(4) in United States

v. Lewis is therefore also unavailing. See 330 F. App’x 353 (3d. Cir. 2009) (concluding that the risk

of violence posed in violating § 2911.12(A)(4) was too remote to satisfy the ACCA’s residual

clause). Further, LeMaster’s contention that the facts of the Ashland burglary were not violent is

beside the point; because this Court has already categorized § 2911.12(A)(4) as a violent felony

predicate under the ACCA, we “may not consider the details of the defendant’s crime” when

employing the categorical approach. Soto-Sanchez, 623 F.3d at 320(citing Taylor, 495 U.S. at 600-



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01). Ultimately, the only relevant factor under Skipper is the charging statute, which is the same

statute at issue in this case: Ohio Revised Code § 2911.12(A)(4). Skipper, 552 F.3d at 491.



                                     IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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