                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 17a0259p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 BRIAN D. WILLIAMS,                                       ┐
                                  Petitioner-Appellant,   │
                                                          │
                                                           >      No. 17-3211
        v.                                                │
                                                          │
                                                          │
 UNITED STATES OF AMERICA,                                │
                                 Respondent-Appellee.     │
                                                          ┘

                            Appeal from the United States District Court
                           for the Northern District of Ohio at Cleveland.
             Nos. 1:06-cr-00244-1; 1:16-cv-00520—Solomon Oliver Jr., District Judge.

                                    Argued: October 5, 2017

                             Decided and Filed: November 15, 2017

                   Before: MERRITT, MOORE, and ROGERS, Circuit Judges.

                                       _________________

                                           COUNSEL

ARGUED: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio,
for Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee. ON BRIEF: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S
OFFICE, Cleveland, Ohio, for Appellant. Robert E. Bulford, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee.

       ROGERS, J., delivered the opinion of the court in which MOORE, J., joined in the result.
MOORE, J. (pp. 6–9), delivered a separate opinion concurring in the judgment. MERRITT, J.
(pp. 10–11), delivered a separate dissenting opinion.
 No. 17-3211                        Williams v. United States                              Page 2


                                      _________________

                                           OPINION
                                      _________________

       ROGERS, Circuit Judge. In this case the district court denied Brian Williams’ motion to
vacate his sentence under 28 U.S.C. § 2255. Williams received an enhanced sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), and he petitioned for relief in light
of the Supreme Court’s decision in United States v. Johnson, 135 S. Ct. 2551 (2015) (“Johnson
II”), which struck down the residual clause of the ACCA as unconstitutional. Because binding
circuit precedent establishes that Williams necessarily qualified for the enhancement under the
ACCA elements clause, he is not entitled to relief.

       On July 28, 2006, Williams pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Williams had three prior convictions—one for attempted
felonious assault in violation of Ohio Revised Code §§ 2903.11 and 2923.02, one for domestic
violence in violation of Ohio Revised Code § 2919.25, and one for assault on a peace officer in
violation of Ohio Revised Code § 2903.13—which subjected him to a mandatory-minimum
sentence of 180 months’ imprisonment under the ACCA. Williams did not take a direct appeal,
but he has twice filed petitions under § 2255. Each was ultimately denied.

       In Johnson II the Supreme Court held the residual clause of the ACCA, 18 U.S.C.
§ 924(e)(2)(B)(ii), unconstitutional. 135 S. Ct. at 2563. In Welch v. United States, 136 S. Ct.
1257 (2016), the Supreme Court held that Johnson II had announced a new substantive rule of
constitutional law that courts must apply retroactively to cases on collateral review. Id. at 1268.
Based on Johnson II and Welch, Williams filed this § 2255 motion, his third, seeking to vacate
his sentence, arguing that after Johnson II his three convictions no longer count as predicate
offenses under the ACCA. The district court transferred this case to us on April 19 so that we
could decide whether to allow Williams’ successive § 2255 petition.

       On October 27, 2016, a panel of this court authorized the district court to consider
whether Williams’ conviction for Ohio felonious assault still qualifies as a violent felony under
 No. 17-3211                           Williams v. United States                                  Page 3


the ACCA. In re Brian D. Williams, No. 16-3411 (6th Cir. Oct. 27, 2016).1 We recognized our
decision in United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), as a binding precedent
which held that committing felonious assault in Ohio necessarily requires the use of physical
force and is therefore a predicate offense under the ACCA elements clause, id. at 402, but also
noted that “much has changed in the four years since we decided Anderson.” We suggested but
expressly did not hold that, because a conviction for felonious assault could be based on a
showing of purely mental injury, the offense might not necessarily entail the use of physical
force required by the elements clause. We instructed the district court to consider whether, in
light of intervening Supreme Court precedents, Anderson still controlled Williams’ case.

        The district court determined that Williams’ conviction for attempted felonious assault
remained a qualifying predicate offense under the elements clause. The district court reasoned
that Anderson was still controlling precedent that “squarely foreclose[d] Williams’s claim.” The
district court denied Williams’ motion to vacate his sentence but issued a certificate of
appealability. Williams now appeals.

        The district court was correct. As long as Anderson remains binding precedent, Williams
is not entitled to relief. Because there is no tenable basis for this panel to overrule Anderson, the
district court was correct to deny Williams’ motion.

        Williams bases his § 2255 motion on Johnson II, but his case is not affected by that
holding. Section 2255 motions based on Johnson II are appropriate where “the sentencing court
may have relied on the residual clause in imposing [the defendant’s] sentence.” In re Rogers,
825 F.3d 1335, 1338 (11th Cir. 2016) (quoting In re Adams, 825 F.3d 1283, 1286 (11th Cir.
2016)). But when binding precedent clearly establishes that a violent felony used to enhance the
movant’s sentence under the ACCA qualifies as a predicate offense under a separate provision of
the ACCA, like the elements clause, the holding of Johnson II is not implicated because the
enhancement would survive without the residual clause. That is the case here: Anderson, a
published and binding circuit precedent, unambiguously held that the Ohio felonious assault

        1
         The panel held that Williams’ convictions for domestic violence and assault on a peace officer
“fall squarely under the elements clause,” 18 U.S.C. § 924(e)(2)(B)(i), so those convictions are not before
us.
 No. 17-3211                         Williams v. United States                               Page 4


statute, Ohio Rev. Code § 2901.01(A)(5), qualifies as a violent felony under the elements clause.
See 695 F.3d at 402. As long as Anderson remains binding, Williams appropriately received an
enhanced sentence irrespective of the now-unconstitutional residual clause.

       Williams’ motion therefore rises or falls with Anderson, but his arguments to overrule
that case are not persuasive. Because Anderson is a published decision, we are bound by it
unless the Supreme Court or our court sitting en banc has issued a new inconsistent decision.
See Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir. 2002) (citing Salmi v. Sec’y of Health
& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). Nothing requires that result here.

       First, Williams mentions that our previous panel “questioned whether Anderson remained
authoritative” when it authorized his motion, but that fact is of little import here. The prima
facie showing for a second or successive § 2255 motion is minimal. See In re Embry, 831 F.3d
377, 381 (6th Cir. 2016).      Williams’ arguments are not frivolous, so that panel properly
permitted the district court to consider them. But that panel expressly stated that it “need not
decide” the question currently before us: whether Anderson remains binding. In re Brian D.
Williams, No. 16-3411, at 5 (6th Cir. Oct. 27, 2016).

       Second, there is no conflict between Anderson and our later decision in United States v.
Perry, 703 F.3d 906 (6th Cir. 2013). Williams implies that we must overrule one or the other,
but that is not so. As noted above, Anderson held that Ohio felonious assault is a violent felony
under the elements clause. See 695 F.3d at 402. Perry, however, held the same crime to be a
predicate offense under the residual clause. 703 F.3d at 910. Contrary to Williams’ argument, it
is not correct to read into Perry an implicit rejection of Anderson, i.e., a negative implication that
felonious assault’s being a predicate offense under the residual clause precludes its being a
predicate offense under the elements clause. The residual clause was broad and amorphous
(indeed, unconstitutionally so) and therefore unsurprisingly covered offenses that would also
have qualified under another provision of the ACCA. The passage Williams quotes from our
decision in United States v. Rodriguez, 664 F.3d 1032, 1038 (6th Cir. 2011) (“The residual
clause is pertinent only if the crime in question is not enumerated under the guideline and the
crime does not have as an element the use, attempted use, or threatened use of force.”), does not
establish a rule to the contrary. The above-quoted language in Rodriguez merely describes why
 No. 17-3211                         Williams v. United States                              Page 5


one of our prior unpublished opinions had no need to “resort also to the residual clause to decide
the case.” Id. Because Perry says nothing about whether Ohio felonious assault qualifies as a
violent felony under the elements clause, it does not undermine Anderson.

       Third and finally, neither Descamps v. United States, 133 S. Ct. 2276 (2013), nor Mathis
v. United States, 136 S. Ct. 2243 (2016), is relevant here because neither case has anything to do
with the significant part of our holding in Anderson.         Descamps holds that the modified
categorical approach is only appropriate for divisible statutes, 133 S. Ct. at 2283–84, and Mathis
instructs courts how to determine divisibility, 136 S. Ct. at 48–49, 56. But whether or not Ohio’s
felonious assault statute is divisible makes no difference to Williams’ case because, under
Anderson, it was impossible for him to have violated the statute in a nonviolent way. In other
words, regardless of the statute’s divisibility (which is the only thing that Descamps and Mathis
can influence), Williams’ claim would still necessarily require this panel to overrule Anderson,
which held that both parts of the statute require the use of physical force and are therefore violent
felonies under the ACCA elements clause. See 695 F.3d at 400. The Anderson court said, “[the
statute] requires proof of serious physical harm or physical harm . . . by means of a deadly
weapon or dangerous ordnance, [which] necessarily requires proof that the defendant used force
capable of causing physical pain or injury.” Id. (internal quotations omitted). None of the
intervening cases pointed to by Williams provides any reason to question Anderson’s holding.
At bottom, Williams’ arguments against Anderson are nothing more than disagreement with that
case on its own terms.

       None of Williams’ arguments permits this panel to overrule Anderson. For that reason,
the holding of Johnson II is not implicated in this case because Williams’ sentence under the
ACCA was appropriate apart from its now-unconstitutional residual clause.

       We affirm the judgment of the district court.
 No. 17-3211                               Williams v. United States                                        Page 6


                            ________________________________________

                                 CONCURRING IN THE JUDGMENT
                            ________________________________________

         KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree that
Williams’s motion rises or falls with United States v. Anderson, 695 F.3d 390 (6th Cir. 2012),
and that no intervening decision of either the United States Supreme Court or our court sitting en
banc authorizes us to depart from its holding, see Salmi v. Sec’y of Health & Human Servs.,
774 F.2d 685, 689 (6th Cir. 1985). Even if, for example, we understood United States v. Perry,
703 F.3d 906 (6th Cir. 2013), to be inconsistent with Anderson, “we must defer to a prior case
when two panel decisions conflict,” Kovacevich v. Kent State Univ., 224 F.3d 806, 822 (6th Cir.
2000). Accordingly, because Anderson held that both prongs of Ohio’s felonious assault statute,
Ohio Rev. Code § 2903.11—just like both prongs of its functionally equivalent aggravated
assault statute, Ohio Rev. Code § 2903.12—“necessarily require[] proof that the defendant used
‘force capable of causing physical pain or injury,’” Anderson, 695 F.3d at 400 (quoting Johnson
v. United States (Johnson I), 559 U.S. 133, 140 (2010)); see id. at 402, nothing has changed to
free us (or, more importantly, Williams) from Anderson’s power. Because Anderson has not
fallen, Williams’s motion does.

         I write separately to emphasize my agreement with those who have already ably
explained why Anderson should fall.21 The Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e), seeks to punish and deter, of course, armed career criminals. To do that, it prescribes
enhanced sentences for people who unlawfully possess firearms under 18 U.S.C. § 922(g) and
have “three previous convictions . . . for a violent felony or a serious drug offense,” 18 U.S.C.
§ 924(e)(1). When we analyze a state criminal statute to determine whether a conviction under it
qualifies as predicate crime for purposes of the ACCA, we employ, as the Supreme Court
requires, the “categorical approach.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).

         1
           Williams’s briefing, Judge Merritt’s dissent, and our court’s prior order authorizing Williams’s motion, In
re Williams, No. 16-3411, at 2–4 (6th Cir. Oct. 27, 2016), also indicate that Anderson is suspect. The crux of the
problem is compellingly foreshadowed by Judge White’s concurrence in Anderson itself. See United States v.
Anderson, 695 F.3d 390, 403–06 (6th Cir. 2012) (White, J., concurring) (arguing that Ohio’s aggravated assault and
felonious assault statutes qualify as ACCA predicate offenses only under the then-permissible residual clause rather
than the elements clause).
 No. 17-3211                               Williams v. United States                                         Page 7


We “focus solely on whether the elements of the crime of conviction sufficiently match the
elements of [the relevant ACCA provision], while ignoring the particular facts of the case.” See
id.; Johnson I, 559 U.S. at 138. If the state statute sweeps “more broadly than” what the ACCA
points to, then “no conviction under that law [can] count as an ACCA predicate.” Mathis, 136 S.
Ct. at 2248–49.

         If a statute “list[s] elements in the alternative, and thereby define[s] multiple crimes,” we
“look[] to a limited class of documents (for example, the indictment, jury instructions, or plea
agreement and colloquy) to determine what crime, with what elements, a defendant was
convicted of.” Id. at 2249; see also Shepard v. United States, 544 U.S. 13, 26 (2005). And if we
can tell the answer to that question, we “can then compare that crime, as the categorical approach
commands, with the relevant generic offense.” See Mathis, 136 S. Ct. at 2249. But if “nothing
in the record” allows us “to conclude that [the defendant’s conviction] rested upon anything
more than the least of [the potential alternative crimes],” then “his conviction was a predicate
conviction” under the ACCA only if even the most questionable element passes muster. See
Johnson I, 559 U.S. at 137 (citation omitted). The core analytical process, in other words, is the
same: for any set of crime-defining elements under which a defendant’s judgment of conviction
might have been entered, those elements must sweep no further than the ACCA’s borders, or else
there is a categorical mismatch and the conviction cannot serve as a predicate offense. See, e.g.,
Mathis, 136 S. Ct. at 2248–49; Johnson I, 559 U.S. at 136–37.

         Relevant to our purposes here, the ACCA states that a crime can qualify as a “violent
felony” under § 924(e)(1) if it “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. § 924(e)(2)(B)(i).32 And the U.S. Supreme
Court has made clear that in referring to “physical force,” Congress “mean[t] violent force—that

         2
          This provision is known as the “force clause” or the “elements clause,” in light of its defining a particular
element—violent physical force—that must be present. A crime can also qualify as a predicate offense if it “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). This provision is known as the
“enumerated clause,” in light of its enumerating generic crimes that qualify as predicate offenses. See, e.g., United
States v. Maldonado-Palma, 839 F.3d 1244, 1246–47 (10th Cir. 2016), cert. denied, 137 S. Ct. 1214 (2017). As
Judge Rogers’s opinion notes, the once-permissible residual clause—the erstwhile third means by which a
conviction could qualify as an ACCA predicate—was struck down by the Supreme Court in United States v.
Johnson (Johnson II), 135 S. Ct. 2551 (2015).
 No. 17-3211                         Williams v. United States                             Page 8


is, force capable of causing physical pain or injury to another.” Johnson I, 559 U.S. at 140; see
also id. at 138 (“The adjective ‘physical’ is clear in meaning . . . . It plainly refers to force
exerted by and through concrete bodies—distinguishing physical force from, for example,
intellectual force or emotional force.”).

        This definition makes sense, since the ACCA exists to punish people who are armed
career criminals: it sweeps in, for example, people who repeatedly commit acts of violent force
against others. That definition does not include, however, someone who touches another “on the
shoulder without consent.” Id. at 138 (citation omitted). Nor, we must assume, does the
definition include “a person who surreptitiously poisons another, or removes the brakes from
another’s car,” or “a parent who continues to feed his or her child a steady diet of junk food until
the child suffers the heart damage that doctors promised,” see Anderson, 695 F.3d at 404 (White,
J., concurring), or a person who mercilessly mocks and taunts another until he suffers a nervous
breakdown. These acts are likely punishable under other statutes, but they are not properly
understood as acts of “violent force.” See Johnson I, 559 U.S. at 140. That is, they are not the
kinds of bad acts that Congress targeted in enacting § 924(e). See id.

        At least one prong of Ohio’s felonious assault and aggravated statutes seems to suffer
from this same, categorical flaw: it sweeps in conduct that Congress did not target in enacting
§ 924(e). Ohio Rev. Code § 2903.11(A) declares that no one shall “knowingly”:

        (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.

Id.   But what constitutes “serious physical harm” within the meaning of § 2903.11(A)(1)?
Section 2901.01(A)(5) tells us. It declares that “‘[s]erious physical harm” means any of five
possibilities. And one of those possibilities is “[a]ny mental illness or condition of such gravity
as would normally require hospitalization or prolonged psychiatric treatment.” Ohio Rev. Code
§ 2901.01(A)(5)(a). This, as Williams points out, creates a categorical mismatch: “the elements
of Ohio’s felonious assault statute may be met without any physical touching or physiological
impairment, but only by the defendant causing the victim a mental illness.” Appellant’s Br. at 8.
And the Ohio courts have, in fact, interpreted the statute this way. See State v. Hunter, 2005-
 No. 17-3211                        Williams v. United States                              Page 9


Ohio-443, 2005 WL 281159, at ¶ 18 (Ohio Ct. App. Feb. 4, 2005) (“[F]elonious assault could be
committed without the commission of an assault where the only ‘serious physical harm’ to the
victim was mental harm.”); State v. Cooper, 743 N.E.2d 427, 434 (Ohio Ct. App. 2000) (“Not
only may a person commit felonious assault by perpetrating an act causing mental illness, but a
person may commit felonious assault when his or her failure to act causes mental illness.”); State
v. Elliott, 663 N.E.2d 412, 415 (Ohio Ct. App. 1995) (holding that § 2903.11(A) “is drafted so
broadly as to encompass a failure to act which results in serious physical harm” when that
physical harm is “defendant’s failure to act to prevent [his child] from discovering his mother’s
[dead] body”).

        Properly understood, a statute “drafted so broadly as to encompass” harm through acts
that do not involve violent force, Elliott, 663 N.E.2d at 415, cannot qualify as a “violent felon[y]
under the force prong of the ACCA,” Anderson, 695 F.3d at 406 (White, J., concurring). When
“considering an ACCA enhancement under the categorical approach,” we “must take state law as
[we] find[] it, including state courts’ interpretations of state law.” United States v. Collier,
493 F.3d 731, 737 (6th Cir. 2007). Here, one prong of Ohio’s felonious assault statute, as
codified in the Ohio Revised Code and interpreted by Ohio courts, sweeps more broadly than
what the elements clause of the ACCA delimits. Because Anderson condones this impermissible
excursion beyond the ACCA’s categorical bounds, we ought to reconsider Anderson en banc.
Until we do, however, I agree that Anderson controls this case. I thus concur in the judgment;
we are not empowered under current binding Sixth Circuit caselaw to give Williams the relief
that he justifiably seeks.
 No. 17-3211                           Williams v. United States                             Page 10


                                         _________________

                                              DISSENT
                                         _________________

          MERRITT, Circuit Judge, dissenting. The defendant, Williams, pled guilty to one count
of possession of a firearm by a felon and was then sentenced to a mandatory minimum sentence
of 15 years under the Armed Career Criminal Act. I do not think that the United States v.
Anderson case, 695 F.3d 390 (6th Cir. 2012), relied upon by my colleagues, controls the
disposition of this case in light of the intervening case of Mathis v. United States, 136 S. Ct. 2243
(2016).

          The only question before us is whether Williams’ Ohio state conviction for “felonious
assault” should count as a “violent felony” under the federal Act, defined for purposes of this
case as “the use, attempted use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added).

          In my view, a divisible part of the Ohio “felonious assault” statute that Williams pled
guilty to is different from and less serious than the federal culpability requirement of committing
a “violent felony.” The Ohio statute allows punishment for causing “any mental illness . . . as
would normally require hospitalization or prolonged psychiatric treatment.” Ohio Rev. Code
Ann. § 2901.01(A)(5)(a). Thus under the Ohio statute verbal and other forms of non-physical
abuse are covered. We do not know precisely what the conduct that Williams pled guilty to was.

          When the prior panel remanded this case to the district court for review, we said clearly:

          [I]t is possible that a conviction for attempted felonious assault, because it allows
          for a showing of the broadly defined “serious physical harm” under subsection
          2901.01(A)(5), might be obtained without establishing any such physiological
          impairment, and thus might not “ha[ve] as an element the use, attempted use, or
          threatened use of physical force against the person of another,” as would be
          required to use the conviction as a prior conviction under the elements clause.
          18 U.S.C. § 924(e)(2)(B)(i).

In re Williams, No. 16-3411, at 3 (6th Cir. Oct. 27, 2016). We also said that the Anderson case
in which we had suggested that the Ohio statute met the “physical harm” requirement may not
apply because “much has changed in the four years since we decided Anderson.” Id. at 4.
 No. 17-3211                        Williams v. United States                             Page 11


       I agree with the earlier panel of our court that “much has changed” in the interpretation of
the mandatory penalties of the Armed Career Criminal Act since Anderson was decided. The
case of Mathis v. United States, 136 S. Ct. 2243 (2016), intervened.

       Because divisibility is a “threshold inquiry,” Mathis states that “[t]he first task for a
sentencing court faced with an alternatively phrased statute is thus to determine whether its listed
items are elements or means.” 136 S. Ct. at 2256. One of the divisible parts may be satisfied, as
stated above, by nonphysical abuse. Had the Court applied the Mathis analysis, it would have
inquired into how the Ohio legislature defined “serious physical harm.” The statute authorizes
punishment for “mental illness,” a type of harm that can be caused without the use of physical
force as required by the federal Act. The Anderson majority did not mention or analyze the
“mental harm,” as distinguished from the “physical harm,” section of the Ohio statute. Hence
the Anderson court did not follow the analytical procedure or reasoning process now established
by the Supreme Court in Mathis, “four years” after Anderson, as our earlier panel in this case
warned when we remanded Williams’ case to the district court. Like the Anderson court, the
district court continued to overlook the Mathis reasoning process. My colleagues are now
making the same mistake. I do not understand what they mean by disposing of this case with the
conclusion that Williams’ arguments “are nothing more than disagreement with that case
[Anderson] on its own terms.” Rather, Williams is arguing that the court below, like Anderson,
has not followed the “terms” set out in Mathis.

       Perhaps this confusion is not surprising because, as Justice Breyer said, the Armed Career
Criminal Act creates a “time-consuming legal tangle.” Mathis, 136 S. Ct. at 2264 (Breyer, J.,
dissenting). Justice Alito agreed and referred to the analytical process simply as a “mess.” Id. at
2269 (Alito, J., dissenting).
