                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0962n.06

                                           No. 12-4346                                  FILED
                                                                                  Nov 07, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff- Appellee,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
GABRIEL BARNETT,                                      NORTHERN DISTRICT OF OHIO

       Defendant- Appellant.

                                               /




BEFORE:        MOORE, CLAY, and WHITE, Circuit Judges.

       CLAY, Circuit Judge. Defendant Gabriel Barnett appeals his 15-year sentence that was

imposed pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). He argues that

two of his prior offenses—Ohio domestic violence felonies—do not qualify as ACCA predicate

offenses because the original convictions were misdemeanors which were enhanced to felonies only

by virtue of a recidivism statute under Ohio law. However, as the district court held, our precedent

clearly establishes that such offenses, if sufficiently violent, can qualify as ACCA predicates.

       For the following reasons, we AFFIRM the Defendant’s sentence.
                                            No. 12-4346

                                         BACKGROUND

A.     Factual Background

       On November 1, 2011, Defendant Gabriel Barnett was approached by officers while standing

in a Cleveland, Ohio apartment complex widely known for drug trafficking. Officers asked

Defendant for his identification, which he provided. Defendant then admitted to possessing

marijuana, and when the police officers inquired further about whether Defendant had any other

contraband on his person, he admitted to possessing a firearm.

B.     Procedural History

       In December 2011, a federal grand jury returned a one-count indictment against Defendant

for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government

later filed an Information setting forth Defendant’s three prior state convictions that it contends

qualify as predicate offenses under the ACCA, 18 U.S.C. § 924(e): assault on a peace officer in May

2002, and two domestic violence convictions in August 2006 and September 2008. In June 2012,

Defendant pleaded guilty to the one-count indictment, conceding that he had been convicted of the

felony offenses set forth in the indictment, and that the firearm he possessed traveled in and affected

interstate commerce. Defendant’s Presentence Investigation Report (“PSR”) recommended the

ACCA enhancement, which mandates a minimum sentence of 15 years in prison.

       Defendant lodged several objections to the PSR, including two challenges to the ACCA

enhancement. Defendant argued that the enhancement did not apply because his domestic violence

charges under Ohio Revised Code § 2919.25 were originally misdemeanors enhanced to felonies

simply by a recidivism statute as opposed to more violent conduct, and because Ohio’s domestic



                                                  2
                                           No. 12-4346

violence statute does not require violent conduct akin to the enumerated offenses of the ACCA.

Second, Defendant argued that application of the ACCA’s 15-year mandatory minimum violated

the Eighth Amendment because he suffers from schizophrenia.

       The district court rejected both arguments. It found that our precedent plainly rejects

Defendant’s claim that the Eighth Amendment should bar application of the ACCA where the

defendant suffers from a mental disorder and, moreover, Defendant’s criminal history even without

the enhancement belied his gross-disproportionality claim. The district court also found that

precedent compelled its rejection of Defendant’s contention that convictions which are felonies only

by virtue of a recidivism statute cannot qualify as ACCA predicate felonies. The court applied a

modified categorical analysis to review the indictments for the domestic violence convictions, both

of which state that Defendant “knowingly cause[d] or attempt[ed] to cause physical harm to a family

or household member.” (R.30, Indictments, PID# 159, 163.) Based on the indictments, the district

court found that the convictions qualified as ACCA predicate offenses, and imposed the mandatory

minimum sentence of 15 years. On appeal, Defendant argues only that his domestic violence

convictions do not count as ACCA predicate offenses.

                                          DISCUSSION

       A.      Standard of Review and Statutory Framework

       This Court reviews the district court’s ACCA predicate offense determination de novo.

United States v. Benton, 639 F.3d 723, 729 (6th Cir. 2011). Although the maximum sentence for

a felon-in-possession charge under 18 U.S.C. § 922(g)(1) is typically ten years’ imprisonment, the

ACCA provides for a mandatory minimum sentence of fifteen years where a defendant has three or



                                                 3
                                            No. 12-4346

more prior convictions for a “violent felony” or a “serious drug offense.” Id. § 924(e)(1). The

ACCA defines a “violent felony” as

       any crime punishable by imprisonment for a term exceeding one year . . . that (i) has
       as an element the use, attempted use, or threatened use of physical force against the
       person of another; or (ii) is burglary, arson, or extortion, involves use of explosives,
       or otherwise involves conduct that presents a serious potential risk of physical injury
       to another.

Id. § 924(e)(2)(B). In other words, a prior offense that is punishable by more than one year of

imprisonment must fall within one of three categories to qualify as an ACCA predicate offense:

crimes having an element of “physical force”—“force capable of causing physical pain or injury”—

as in subsection (i), Johnson v. United States, 559 U.S. 133, 140 (2010); crimes that are one of the

enumerated offenses in subsection (ii); or crimes that present a “potential risk of physical injury

similar to that presented by” the enumerated offenses of subsection (ii). Sykes v. United States, 131

S. Ct. 2267, 2277 (2011).

       To determine whether a prior conviction qualifies as an ACCA predicate offense, we employ

what is called the “categorical approach” to determine whether the crime falls under one of the

above-mentioned categories. See Taylor v. United States, 495 U.S. 575, 600-02 (1990). If,

however, it is possible to violate the statute in a way that would constitute a “violent felony” and in

way that would not, we then apply the “modified categorical approach,” in which we consider

certain judicial records—such as the indictment, jury instruction, plea agreement, and plea

colloquy—to assess whether the defendant pleaded guilty to a narrowed charge that would qualify

as a violent felony. See United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010) (citing Shepard

v. United States, 544 U.S. 13, 26 (2005)). These documents are used “to determine which crime


                                                  4
                                           No. 12-4346

within a statute the defendant committed, not how he committed the crime.” United States v. Soto-

Sanchez, 623 F.3d 317, 320 (6th Cir. 2010) (emphasis in original, quotation marks omitted); see also

Descamps v. United States, 133 S. Ct. 2276, 2283-85 (2013).

       B.      Analysis

       Defendant’s challenge on appeal is two-fold. He claims that his domestic violence

convictions under Ohio Revised Code § 2919.25 do not qualify as violent felonies under the ACCA

because: 1) misdemeanor crimes enhanced to felonies by virtue of a recidivism statute as opposed

to more violent conduct do not qualify as ACCA predicate offenses; and 2) the statutory definition

of domestic violence under Ohio law does not require sufficiently violent conduct to fall under one

of the three ACCA categories. We address each assertion in turn.

               1.      Recidivism Enhancements and the ACCA

       As noted by the district court, we have already rejected Defendant’s first argument. In

United States v. Kearney, 675 F.3d 571 (6th Cir. 2012), the defendant’s domestic violence

convictions under Michigan law were originally misdemeanors, carrying a maximum possible prison

term of only 93 days, that were enhanced to felonies with a two-year maximum sentence due to a

recidivism statute under Michigan law. Id. at 573. The defendant in Kearney similarly argued that

the felony enhancements should be disregarded for purposes of the ACCA and that those convictions

should be considered as though he was sentenced only on the base offense conduct, i.e., the

misdemeanor offense. Id. We relied on United States v. Rodriquez, 553 U.S. 377 (2008), to hold

that Congress likely took into consideration pre-existing sentencing schemes such as state recidivism

statutes when it drafted the ACCA and, thus, it defined the ACCA predicate offenses with reference


                                                 5
                                          No. 12-4346

to such enhancements. Kearney, 675 F.3d at 576-77. Although Rodriquez held that felony

enhancements that applied to drug offenses under state recidivism statutes were properly considered

when assessing whether such offenses were “serious drug offenses” under the ACCA, we held in

Kearney that Rodriquez nonetheless guided our ruling because the ACCA’s violent felony provision

closely tracked the language of the serious drug offense provision. See id.

       Defendant’s reliance on the Supreme Court’s decision in Johnson v. United States, 559 U.S.

133 (2010), to assert that Kearney was wrongly decided is also without merit. Johnson cautions

courts not to equate the common law meaning of “physical force,” which includes mere touching,

with the ACCA’s meaning of “physical force” to define a violent felony. See Johnson, 559 U.S. at

141-42. However, Johnson did not hold that conduct which defines a misdemeanor offense could

not rise to the level of “physical force” as defined under the ACCA if such an offense is enhanced

to a felony. As we explained in Kearney, close adherence to Supreme Court precedent defining

violent felonies under the ACCA should prevent courts from improperly counting convictions as

ACCA predicate offenses.        Kearney, 675 F.3d at 578. What the Johnson Court left

undecided—whether felonies resulting from recidivism statutes should qualify under the

ACCA—this Court in Kearney expressly answered in the affirmative, and this panel is bound by that

decision. See, e.g., United States v. Simpson, 520 F.3d 531, 540-41 (6th Cir. 2008).

               2.     Ohio’s Domestic Violence Statute and the ACCA

       We now turn to evaluating whether Defendant’s domestic violence convictions qualify as

violent felonies. We hold that they do. The Ohio domestic violence statute at issue here

criminalizes in relevant part the following conduct:


                                                6
                                            No. 12-4346

       (A) “knowingly caus[ing] or attempt[ing] to cause physical harm to a family or
       household member”;

       (B) “recklessly caus[ing] serious physical harm to a family or household member”;
       and

       (C) “by threat of force, . . . knowingly caus[ing] a family or household member to
       believe that the offender will cause imminent physical harm to the family or
       household member.”

Ohio Rev. Code § 2919.25(A)-(C). While such conduct is generally a misdemeanor, see id. §

2919.25(D)(2), Ohio’s domestic violence statute has a recidivism provision through which a

defendant who has been convicted of two or more domestic violence offenses (or other listed

offenses), receives a third-degree felony conviction for a violation of subsection (A) or (B), see id.

§ 2919.25(D)(4). Under Ohio law, a third-degree felony conviction of this kind carries a maximum

term of thirty-six months in prison. See id. § 2929.14(A)(3)(b).

       In the instant case, Defendant had four domestic violence convictions arising from different

conduct on different dates: April 2002; June 2003; May 2006; and September 2007. Consequently,

the May 2006 and September 2007 offenses were enhanced to third-degree felonies pursuant to

Ohio’s recidivism provision.

       Looking first to the statutory elements under the categorical approach, see Descamps, 133

S. Ct. at 2283, we agree with the district court that the statute could be violated in a way that

satisfies the ACCA and in a way that does not. In order to satisfy clause (i) of the ACCA, the

“physical force” threatened, attempted or actualized must be violent force; that is, “force capable

of causing pain or injury to another person.” Johnson, 559 U.S. at 140. It is clear that Ohio Rev.

Code § 2919.25(A) and (C) meet this standard. While the statute does not expressly include



                                                  7
                                            No. 12-4346

physical force as a stand-alone element, subsection (A) does require a defendant to “knowingly

cause or attempt to cause physical harm to a family or household member.” Ohio Rev. Code

§ 2919.25(A).     “Physical harm” means “any injury, illness or other physiological impairment,

regardless of its gravity or duration.” Id. § 2901.01(A)(3). We recently held in the context of Ohio’s

aggravated assault statute, Ohio Rev. Code § 2903.12(A)(1)-(2), that the requirement of physical

harm under Ohio law necessarily requires proof that the defendant used violent force. United States

v. Anderson, 695 F.3d 390, 399-401 (6th Cir. 2012) (collecting cases) (explaining that even deceit

or fraud on the will of a victim, such as poisoning, is equivalent to the use of force); see also United

States v. Vinton, 631 F.3d 476, 485-86 (8th Cir. 2011) (concluding that second-degree-assault statute

under Missouri law, which similarly requires only that a defendant “attempted to cause, or

knowingly caused, physical injury to another person,” meets the “physical force” requirement of the

parallel sentencing Guideline). The rule in Anderson compels the conclusion that § 2919.25(A)

meets the “physical force” definition because the section’s requirement of a physiological

impairment, or showing that such an injury was attempted, necessarily requires the showing of a

force capable of causing pain or injury under Johnson.

       Section 2919.25(C) expressly requires a defendant to create a fear of “imminent physical

harm” through the “threat of force.” Because “threat of force” means to threaten “violence,

compulsion or constraint physically exerted by any means,” Ohio Rev. Code § 2901.01(A)(1), this

inquiry is even more clear. We cannot conceive of a situation where the threat of physical injury

by use of physical violence, compulsion or constraint would not meet the ACCA’s requirement of

physical force under clause (i). Cf. United States v. Melchor-Meceno, 620 F.3d 1180, 1186 (9th Cir.



                                                   8
                                            No. 12-4346

2010)1 (“One cannot knowingly place another in fear of being poisoned . . . without threatening to

force the poison on the victim.”); United States v. Forrest, 611 F.3d 908, 911 (8th Cir. 2010) (“A

threat that creates a fear ‘of imminent serious bodily injury’ is a threat of physical force.”).

       What prevents our inquiry from ending here is § 2919.25(B). Under subsection (B), Ohio

law criminalizes reckless conduct that leads to physical harm, which would not qualify as an ACCA

predicate offense. See United States v. McMurray, 653 F.3d 367, 375 (6th Cir. 2011) (“[W]e

conclude that the ‘use of physical force’ clause of the ACCA, § 924(e)(2)(B)(i), requires more than

reckless conduct.”) Accordingly, we must decide this case under the modified categorical approach.

Upon review of the indictments in both the May 2006 and September 2007 offenses, we note that

Defendant pleaded guilty to charges that he “knowingly caused or attempted to cause physical harm

to . . . a family or household member.” (R.30, PID# 159, 163.) These charges track the language

of § 2919.25(A), which falls under clause (i) of the ACCA to qualify both domestic violence offense

convictions as predicate offenses. Accordingly, we find that Defendant’s sentence was properly

enhanced under the ACCA.

       For the foregoing reasons, we AFFIRM Defendant’s sentence.




       1
         Although United States v. Melchor-Meceno, 620 F.3d 1180 (9th Cir. 2010) considered
“crime of violence” in the context of the United States Sentencing Guideline § 2L1.2, the
Guidelines definition tracks in pertinent part that of a violent felony under the ACCA. See United
States v. Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012).

                                                  9
                                          No. 12-4346

       KAREN NELSON MOORE, concurring. I write separately because I do not believe that

an individual necessarily uses physical force when causing a physical injury. See United States v.

McMurray, 653 F.3d 367, 374 n.6 (6th Cir. 2011). Accordingly, I subscribe to the analysis set forth

in Judge White’s concurring opinion. However, because I believe this panel is bound by United

States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which held that “one can knowingly cause serious

physical harm to another only by knowingly using force capable of causing physical pain or injury,”

id. at 400 (internal quotation marks omitted), I join the majority opinion. The Supreme Court has

granted a writ of certiorari in United States v. Castleman, 695 F.3d 582 (6th Cir. 2012), cert.

granted, 81 U.S.L.W. 3672 (2013), and may resolve the difficult questions that this case poses.




                                                10
                                            No. 12-4346

       HELENE N. WHITE, Circuit Judge, concurring. Although I agree with the majority that

Barnett’s domestic violence felonies are violent felonies under the Armed Career Criminal Act

(ACCA), I write separately to express my disagreement with the majority’s conclusion that “the

requirement of physical harm under Ohio law necessarily requires proof that the defendant used

violent force.” Maj. Op. at 8.

       Ohio’s domestic violence statute requires that an individual “knowingly cause or attempt to

cause physical harm,” or threaten “imminent physical harm” to a family or household member.

Ohio Rev. Code § 2919.25(A), (C). “Physical harm to persons” is defined as “any injury, illness,

or other physiological impairment, regardless of its gravity or duration.” Ohio Rev. Code

§ 2901.01(A)(3). In order to satisfy the first prong of the ACCA, the use, threatened use or

attempted use of physical force must be an element of the offense. 18 U.S.C. § 924(e)(2)(B)(i).

However, in Johnson v. United States, the Supreme Court stated that “it [is] clear that in the context

of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is,

force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010)

(emphasis in original). As I explained in my concurrence in United States v. Anderson, 695 F.3d

390, 403–406 (6th Cir. 2012), although serious physical injury often results from the use of physical

force, it can also occur in the absence of any physical force being used. For example, a surreptitious

poisoning by one spouse of another may cause an “injury” or “illness,” and therefore constitute

“physical harm” under the Ohio domestic violence statute without involving any physical force by




                                                  11
                                            No. 12-4346

the offender.1 See Ohio Rev. Code §§ 2901.01(A)(3); 2919.25(A), (C). Thus, Ohio’s domestic

violence statute can be violated in a way that does not require violent physical force, and therefore

Barnett’s domestic violence convictions are not “violent felon[ies]” under 18 U.S.C.

§ 924(e)(2)(B)(i).

       Nevertheless, I agree that Barnett’s domestic violence convictions are violent felonies under

the ACCA’s residual clause because they involve “conduct that presents a serious potential risk of

physical injury to another.” Id. § 924(e)(2)(B)(ii). As stated above, Ohio’s domestic violence

statute requires that the offender “knowingly cause or attempt to cause physical harm,” or threaten

“imminent physical harm” to a family or household member. Ohio Rev. Code § 2919.25(A), (C).

Such conduct presents a “serious potential risk of physical injury to another” as it requires “physical

harm” to either be caused, attempted, or threatened. Further, the domestic violence statute involves

the type of purposeful, violent and aggressive conduct required by Begay v. United States, 553 U.S.

137, 144–45 (2008). Thus, Barnett’s domestic violence convictions are properly classified as

“violent felon[ies]” under 18 U.S.C. § 924(e)(2)(B)(ii).

       Accordingly, I concur.




       1
        For the reasons I discussed in Anderson, I do not find persuasive the majority’s citation to
cases discussing deceit or fraud on the will of a victim as equivalent to the use of violent force.
Anderson, 695 F.3d at 404–05.

                                                  12
