                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)

                                     File Name: 19a0002p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 16-3855
          v.                                             │
                                                         │
                                                         │
 LE’ARDRUS BURRIS,                                       │
                                Defendant-Appellant.     │
                                                         ┘

                         Appeal from the United States District Court
                          for the Northern District of Ohio at Akron.
                     No. 5:15-cr-00245-6—James S. Gwin, District Judge.

                                  Argued: October 6, 2017

                             Decided and Filed: January 3, 2019

Before:        COLE, Chief Judge; MERRITT, BATCHELDER, MOORE, CLAY, GIBBONS,
               ROGERS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH,
               DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.
                                   _________________

                                         COUNSEL

ARGUED EN BANC: Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for
Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee. ON SUPPLEMENTAL BRIEF: Craig M. Sandberg, MUSLIN & SANDBERG,
Chicago, Illinois, for Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee.

       BATCHELDER, J., announced the judgment of the court and delivered the majority
opinion with regard to Anderson and the principal opinion with regard to all other issues, in
which SUTTON, GRIFFIN, THAPAR, BUSH, and NALBANDIAN, JJ., joined. THAPAR, J.
(pp. 26–30), delivered a separate concurring opinion, in which BATCHELDER, GRIFFIN,
BUSH, and NALBANDIAN, JJ., joined. ROGERS, J. (pg. 31), delivered a separate opinion
concurring in part and in the judgment, in which GIBBONS, COOK, and LARSEN, JJ., joined.
KETHLEDGE, J. (pg. 32), delivered a separate opinion concurring only in the judgment. COLE,
 No. 16-3855                        United States v. Burris                               Page 2


C.J. (pp. 33–45), delivered a separate opinion concurring in the majority’s holding in regards to
Anderson and dissenting from the principal opinion, in which MERRITT, MOORE, CLAY,
WHITE, STRANCH, and DONALD, JJ., joined.

                                      _________________

                                           OPINION
                                      _________________

       ALICE M. BATCHELDER, Circuit Judge. Federal law imposes longer prison sentences
on certain violent career criminals. As relevant here, both the Armed Career Criminal Act
(“ACCA”) and the United States Sentencing Guidelines (“Guidelines”) impose longer prison
sentences on certain defendants who have a criminal record containing multiple previous violent
felonies. See 18 U.S.C. § 924(e)(1), (e)(2)(B); USSG §§ 4B1.1, 4B1.2(a)(1). And both contain
an identical so-called “elements clause” describing certain eligible violent-felony predicates:
felonies that “ha[ve] as an element the use, attempted use, or threatened use of physical force
against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); USSG § 4B1.2(a)(1).

       The question in this case is whether convictions of Ohio felonious assault and Ohio
aggravated assault qualify as violent-felony predicates under the ACCA and Guidelines elements
clauses. In 2012, a panel of this court held that both Ohio felonious assault and Ohio aggravated
assault qualify as violent-felony predicates under the ACCA elements clause. See United States
v. Anderson, 695 F.3d 390, 399–402 (6th Cir. 2012). That conclusion was disputed then, see id.
at 406 (White, J., concurring), and has been disputed since, see, e.g., Williams v. United States,
875 F.3d 803, 809 (6th Cir. 2017), reh’g en banc granted, vacated by, 882 F.3d 1169 (6th Cir.
2018) (Moore, J., concurring) (“we ought to reconsider Anderson en banc”); id. at 810 (Merritt,
J., dissenting) (“the Anderson court did not follow the analytical procedure or reasoning process
now established by the Supreme Court”). Still, subsequent panels of this court have considered
themselves bound by Anderson. See id. at 805 (majority opinion). Among those was the panel
in this case, which held that Ohio felonious assault qualifies as a violent-felony predicate under
the Guidelines elements clause. See United States v. Burris, No. 16-3855, 2017 WL 6368852, at
*2 (6th Cir. Dec. 13, 2017), reh’g en banc granted, vacated by, Order (6th Cir. Feb. 26, 2018)
(No. 16-3855); accord United States v. Hibbit, 514 F. App’x 594, 597 (6th Cir. 2013).
 No. 16-3855                         United States v. Burris                               Page 3


       We granted en banc review to examine whether Anderson still binds this court. We first
conclude that Ohio felonious assault and Ohio aggravated assault are too broad to always (or
categorically) qualify as violent-felony predicates—they each criminalize more conduct than is
described in the ACCA and Guidelines elements clauses. We next conclude that both Ohio’s
felonious-assault and aggravated-assault statutes are divisible—they each set out two separate
crimes, one of which qualifies as a violent-felony predicate under the ACCA and the Guidelines
and the other which does not. Because the Anderson court did not conduct an overbreadth
analysis, and because subsequent Supreme Court precedent requires a divisibility analysis that
Anderson lacks, we conclude that Anderson no longer binds this court. Still, based on the facts
in this case and the applicable standard of review, we conclude that Burris is not eligible for
relief. We AFFIRM the judgment of the district court.

                                                I.

       Le’Ardrus Burris was charged with one count of conspiracy to possess with the intent to
distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B) and (b)(1)(C), 846;
one count of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C); and two counts of using a communication facility to facilitate a drug trafficking
offense, in violation of 21 U.S.C. § 843(b) and (d)(1). A jury found Burris guilty on all counts.

       Burris had a criminal record containing two previous Ohio felony convictions: a 2005
conviction for complicity in trafficking in drugs, in violation of Ohio Revised Code §§ 2923.02,
2925.03; and a 2007 conviction for felonious assault, in violation of Ohio Revised Code
§ 2903.11(A)(2). See Burris, 2017 WL 6368852, at *1, 2. The district court relied on these
felonies to sentence Burris as a career offender under the Guidelines. Id. at *1; see USSG
§§ 4B1.1, 4B1.2(a)(1). Burris objected to the career-offender classification, arguing that it
overstated his actual criminal history, but Burris did not argue that his Ohio felonies were not
violent-felony predicates under the Guidelines. See Burris, 2017 WL 6368852, at *1. The
district court ultimately granted Burris a significant downward variance from the applicable 210-
to-262-month Guidelines range, sentencing him to 90 months’ imprisonment. See id.
 No. 16-3855                               United States v. Burris                                        Page 4


        On appeal, Burris argued that neither of his Ohio felonies qualified as violent-felony
predicates under the Guidelines. See id. at *1–2. The panel rejected both arguments. See id. In
rejecting Burris’s argument regarding his Ohio felonious-assault conviction, the panel relied on
Anderson and another recent Sixth Circuit case, Williams, 875 F.3d at 805–06. See Burris,
2017 WL 6368852, at *2 (“Anderson and Williams are binding precedent that resolve this
issue.”). We subsequently granted en banc review in Williams and in this case.

                                                        II.

        This area of federal sentencing law is complicated. Members of the Supreme Court have
described aspects of it as a “time-consuming legal tangle,” Mathis v. United States, 136 S. Ct.
2243, 2264 (2016) (Breyer, J., dissenting), and as a “mess,” id. at 2269 (Alito, J., dissenting).
Before turning to the merits of Burris’s arguments, therefore, we begin by describing (1) the
operation of the ACCA and the Guidelines, (2) Ohio’s felonious assault and aggravated assault
statutes, and (3) our cases interpreting those statutes in the ACCA and Guidelines context.

                                                        A.

        The ACCA imposes a fifteen-year mandatory-minimum prison sentence on persons who
violate 18 U.S.C. § 922(g), the federal felon-in-possession-of-a-firearm statute, and who have
three previous state or federal convictions for “violent felon[ies] or serious drug offense[s].” See
18 U.S.C. § 924(e)(1). A “violent felony” is a felony that, as relevant here, “has as an element
the use, attempted use, or threatened use of physical force1 against the person of another.” Id.
§ 924(e)(2)(B)(i). This clause is commonly called the ACCA “elements clause.” See, e.g.,
United States v. Patterson, 853 F.3d 298, 302 (6th Cir. 2017). Similarly, the Guidelines advise
enhanced sentences for “career offenders,” adults who commit a “felony that is either a crime of
violence or a controlled substance offense” and who have “at least two prior felony convictions
of either a crime or violence or a controlled substance.” See USSG § 4B1.1(a). A “crime of
violence” is a felony that, as relevant here, “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” Id. § 4B1.2(a)(1). This clause is

          1“[P]hysical force,” as used here, 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) (“Johnson I”).
 No. 16-3855                        United States v. Burris                               Page 5


commonly called the Guidelines “elements clause.” See, e.g., United States v. Harris, 853 F.3d
318, 320 (6th Cir. 2017). Because the text of the ACCA and Guidelines elements clauses are
identical, we typically interpret both elements clauses “the same way.” See id.

       Since 1990, the Supreme Court has instructed federal sentencing courts to use the
“categorical approach” to determine whether a defendant’s previous state or federal felony
convictions “ha[ve] as an element the use, attempted use, or threatened use of physical force
against the person of another.” See Descamps v. United States, 570 U.S. 254, 260–61 (2013)
(citing Taylor v. United States, 495 U.S. 575, 600 (1990)) (“Taylor adopted a ‘formal categorical
approach’” in the ACCA context); see also United States v. Ford, 560 F.3d 420, 421-22 (6th Cir.
2009) (citing Taylor, 495 U.S. at 602) (“we apply a ‘categorical’ approach” in the Guidelines
context). The categorical approach prohibits federal sentencing courts from looking at the
particular facts of the defendant’s previous state or federal felony convictions; rather, federal
sentencing courts “may ‘look only to the statutory definitions’—i.e., the elements—of a
defendant’s prior offenses.” Descamps, 570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). The
question for the sentencing court in the elements-clause context 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 have been convicted, not whether the
particular defendant actually used, attempted to use, or threatened to use physical force against
the person of another in that particular case. See generally Mathis, 136 S. Ct. at 2249; see
Harris, 853 F.3d at 320. If the answer to that question is “no,” and the statute forming the basis
for the defendant’s previous state or federal felony conviction criminalizes conduct that does not
involve “the use, attempted use, or threatened use of physical force against the person of
another,” then a conviction under that statute may not serve as a violent-felony predicate under
the elements clause, assuming that statute is an “‘indivisible’ statute—i.e., one not containing
alternative elements.” See Descamps, 570 U.S. at 258. Importantly, this has been true since at
least 1990. See Taylor, 495 U.S. at 600–02.

       Some state and federal criminal statutes, however, are “divisible” statutes—i.e., ones
which “set[] out one or more elements of the offense in the alternative,” “thereby defin[ing]
multiple crimes.”   Descamps, 570 U.S. at 257; Mathis, 136 S. Ct. at 2249.           Legislatures
 No. 16-3855                              United States v. Burris                                       Page 6


sometimes enact divisible statutes “to create two different offenses, one more serious than the
other.” Mathis, 136 S. Ct. at 2249. If at least one of the statute’s alternative sets of elements
categorically matches the ACCA or Guidelines elements clauses and at least one of the sets of
elements does not, the “modified categorical approach” allows sentencing courts “to consult a
limited class of documents . . . to determine which alternative formed the basis of the defendant’s
prior conviction.” Descamps, 570 U.S. at 257. This limited class of documents—so-called
“Shepard documents”—includes “the indictment, jury instructions, or plea agreement and
colloquy.” Mathis, 136 S. Ct. at 2249. Once the federal sentencing court has determined under
which alternative set of elements the defendant was convicted, it may then “do what the
categorical approach demands: compare the elements of the crime of conviction (including the
alternative element used in the case)” with the ACCA or Guidelines elements clause. Descamps,
570 U.S. at 257; Mathis, 136 S. Ct. at 2249. But the modified categorical approach applies only
to statutes that list multiple alternative sets of elements, not statutes that list multiple alternative
factual means of committing a single element. See Mathis, 136 S. Ct. at 2249.

        When faced with a state or federal statute in the elements-clause context, therefore, we
must conduct two analyses. One is an overbreadth analysis to determine whether the statute in
question is too broad to categorically qualify as a violent-felony predicate because it criminalizes
more conduct than is described in the ACCA and Guidelines elements clauses. The other is a
divisibility analysis to determine whether the statute in question is divisible because it sets out
multiple separate crimes and if so, whether any of those separate crimes qualifies as a violent-
felony predicate under the ACCA and Guidelines elements clauses.

                                                       B.

        The relevant portions2 of Ohio’s felonious-assault and aggravated-assault statutes create
nearly identical crimes, except that Ohio aggravated assault includes a mitigating element of
provocation. See State v. Deem, 533 N.E.2d 294, 299 (Ohio 1988). Ohio felonious assault is a
second-degree felony unless the victim is a law-enforcement officer, in which case it is a first-

        2Ohio’s  felonious-assault statute also criminalizes certain kinds of sexual conduct by persons with AIDS,
see Ohio Rev. Code § 2903.11(B), but this portion of the statute is not at issue in this case. Each reference to
convictions under Ohio’s felonious-assault statute in this opinion refers only to subsection (A) convictions.
 No. 16-3855                         United States v. Burris                               Page 7


degree felony; Ohio aggravated assault is a fourth-degree felony.           See Ohio Rev. Code
§§ 2903.11(D)(1)(a), 2903.12(B).

       The relevant portion of Ohio’s felonious-assault statute is as follows:

       Ohio Revised Code § 2903.11 – Felonious Assault
       (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.
       ...
       (E) As used in this section:
       (1) “Deadly weapon” and “dangerous ordnance” have the same meanings as in
       section 2923.11 of the Revised Code.

       The relevant portion of Ohio’s aggravated-assault statute is as follows:

       Ohio Revised Code § 2903.12 – Aggravated Assault

       (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 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, as defined in section 2923.11
       of the Revised Code.

       Importantly, the Ohio Revised Code also contains statutory definitions for “physical
harm” and “serious physical harm,” as used in Ohio’s felonious-assault and aggravated-assault
statutes. These definitions are not cross-referenced from either of those statutes, though, and that
has caused difficulty in some of our prior cases, including the Anderson case. These definitions
are as follows:

       Ohio Revised Code § 2901.01 – Definitions
       (A) As used in the Revised Code:
       ...
       (3) “Physical harm to persons” means any injury, illness, or other physiological
       impairment, regardless of its gravity or duration.
       ...
 No. 16-3855                         United States v. Burris                               Page 8


       (5) “Serious physical harm to persons” means any of the following:
       (a) Any mental illness or condition of such gravity as would normally require
       hospitalization or prolonged psychiatric treatment;
       (b) Any physical harm that carries a substantial risk of death;
       (c) Any physical harm that involves some permanent incapacity, whether partial
       or total, or that involves some temporary, substantial incapacity;
       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;
       (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

       In 2012, a divided panel of this court held that both Ohio felonious assault and Ohio
aggravated assault qualify as violent-felony predicates under the ACCA elements clause. See
Anderson, 695 F.3d at 399–402. The panel correctly noted that it was required to apply the
categorical approach to determine whether convictions under Ohio’s felonious-assault and
aggravated-assault statutes qualified as violent felonies. See id. at 399. The panel also noted that
“[i]f it is possible to violate the statute in a way that would constitute a violent felony and in a
way that would not, a ‘court may consider the indictment, guilty plea, or similar documents to
determine whether they necessarily establish the nature of the prior conviction.’” Id. (quoting
United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010)); see Shepard v. United States,
544 U.S. 13, 26 (2005). The panel then analyzed Ohio’s aggravated-assault statute, and found
that it qualified as a violent-felony predicate under the ACCA elements clause because:

       We think it clear that the Ohio aggravated assault statute, which requires proof of
       “serious physical harm” or “physical harm . . . by means of a deadly weapon or
       dangerous ordnance,” Ohio Rev. Code § 2903.12(A)(1)-(2), necessarily requires
       proof that the defendant used “force capable of causing physical pain or injury.”
       [quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson I”).] We
       hold that one can “knowingly . . . [c]ause serious physical harm to another,” Ohio
       Rev. Code § 2903.12(A)(1), only by knowingly using force capable of causing
       physical pain or injury, i.e., violent physical force, in the context of determining
       what crime constitutes a “violent felony” under § 924(e)(2)(B)(i). . . . In sum,
       because the Ohio aggravated assault statue requires the state to show the
       defendant either knowingly caused serious physical harm to another or knowingly
       caused physical harm to another by means of a deadly weapon or ordnance, a
       conviction under that statute is a “violent felony” under § 924(e)(2)(B)(i).

Anderson, 695 F.3d at 400–01 (footnote omitted). The panel then went on to analyze Ohio’s
felonious-assault statute, concluding that convictions under subsection (A) of that statute also
 No. 16-3855                          United States v. Burris                                 Page 9


qualified as violent felonies under the ACCA elements clause, for all of the same reasons. See
id. at 402. Judge White did not join that portion of the opinion, and wrote separately to explain
that she did not agree that convictions under Ohio’s felonious-assault and aggravated-assault
statutes qualified as violent felonies under the ACCA elements clause; rather, she thought that
they qualified only under the ACCA residual clause.3 See id. at 403-06 (White, J., concurring).

       As we earlier noted, subsequent panels of this court have regularly applied Anderson’s
holding in the Guidelines context, finding that convictions under Ohio’s felonious-assault and
aggravated-assault statutes qualified as crimes of violence under the Guidelines as well. See,
e.g., Hibbit, 514 F. App’x at 597; Burris, 2017 WL 6368852, at *2. And despite dissatisfaction
with Anderson’s holding in 2012, and growing dissatisfaction since then as the Supreme Court
clearly laid out the operation of the categorical approach in cases such as Descamps and Mathis,
see, e.g., Williams, 875 F.3d at 809 (Moore, J., concurring); id. at 810 (Merritt, J., dissenting),
panels have continued to consider themselves bound by Anderson, see id. at 805 (majority
opinion).

                                                 III.

       Burris argued that Anderson is wrong and should be overruled, for two reasons. He first
pointed out that even if Ohio’s felonious assault and aggravated assault statutes might appear on
their faces to categorically require some form of physical harm, the Ohio Revised Code in fact
defines “serious physical harm” to include some forms of serious mental harm. See Ohio Rev.
Code § 2901.01(A)(5)(a). In failing to discuss this statutory definition, the Anderson panel
“failed to recognize that the statute is overbroad.” Burris also pointed out that the Supreme
Court issued Descamps and Mathis after the Anderson decision, and those two Supreme Court
cases “clarified how to apply the categorical approach when determining whether a statute is
divisible and how to apply the modified categorical approach if a statute is divisible.” “Without
the benefit of Descamps and Mathis,” Burris argued, “the Anderson panel did not properly
analyze Ohio’s felonious assault statute.”


        3The Supreme Court has since found the ACCA residual clause to be unconstitutionally vague. See
Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (“Johnson II”).
 No. 16-3855                                United States v. Burris                                       Page 10


         To obtain relief, Burris faces some obstacles. As the government pointed out in its
supplemental briefing,4 Burris failed to argue to the district court that his Ohio felonies were not
violent-felony predicates under the Guidelines. See Burris, 2017 WL 6368852, at *1. We may
therefore grant Burris relief only if he satisfies the plain-error standard. See United States v.
Olano, 507 U.S. 725, 732 (1993). This requires, in part, that Burris show that any error in his
case “affects [his] substantial rights.” See id.; Fed. R. Crim. Proc. 52(b). But as the government
has shown,5 the Shepard documents in this case indicate that Burris was convicted of the (A)(2)
variant of Ohio felonious assault, and not the potentially problematic (A)(1) variant. Any error
in treating Burris’s Ohio felonious-assault conviction could affect Burris’s substantial rights only
if (1) at least some part of the Ohio felonious-assault statute is too broad to categorically qualify
as a crime of violence under any then-valid Guidelines career-offender clause (the enumerated-
offense clause, the residual clause, or the elements clause) because it criminalizes knowingly
causing certain forms of serious mental harms; and (2) the Ohio felonious-assault statute is
indivisible and sets forth two factual means of committing Ohio felonious assault rather than two
alternative sets of elements. Even if both of these are true, and Burris is able to thereby show
that there is an error in his case which affects his substantial rights, Burris must also demonstrate
that the error is “plain” and that the plain error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 732 (citation omitted); Fed. R. Crim.
Proc. 52(b). He cannot do so. We explain why below.




         4We note that the government failed to point out the appropriate standard of review in this case in its
response to Burris’s request for rehearing en banc. It would be helpful if the government pointed out vehicle
problems such as these when it asks the en banc court to deny a request for rehearing en banc.
          5The government filed a motion asking us to take judicial notice of the Shepard documents in this case.
The government argues that it had no reason to produce these documents earlier in the case, since Anderson and its
progeny made clear that both (A)(1) and (A)(2) of Ohio’s felonious-assault and aggravated-assault statutes satisfied
the Guidelines elements clause. Now that Anderson’s holding is in jeopardy, the government argues that the
Shepard documents are necessary to resolve this case. We may take judicial notice “at any stage of the proceeding”
of “fact[s] that [are] not subject to reasonable dispute because [they] . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(d), (b)(2). We have taken
judicial notice of Shepard documents in similar circumstances before. See United States v. Adkins, 729 F.3d 559,
567 n.4 (6th Cir. 2013); United States v. Ferguson, 681 F.3d 826, 834–35 (6th Cir. 2012). For the reasons stated in
those opinions, we GRANT the government’s motion to take judicial notice.
 No. 16-3855                                United States v. Burris                                        Page 11


                                                         A.

         We begin by determining whether at least some part of Ohio’s felonious-assault and
aggravated-assault statutes is too broad to categorically qualify as a crime of violence under any
Guidelines career-offender clause that was in place at the time that the district court sentenced
Burris.6 In addition to the Guidelines elements clause, there are two other Guidelines career-
offender clauses under which an Ohio felonious-assault conviction might qualify as a crime of
violence: the enumerated-offense clause (which includes “aggravated assault”)7 and the residual
clause (felonies that “otherwise involve[] conduct that presents a serious potential risk of
physical injury to another”). See USSG § 4B1.2 Application Note 1, (a)(2) (2015).

         Each of these three Guidelines clauses focuses on “crime[s] of violence”—crimes
resulting in “physical” harms. The elements clause sweeps in felonies that “ha[ve] as an element
the use, attempted use, or threatened use of physical force against the person of another.” USSG
§ 4B1.2(a)(1) (2015). The enumerated offense of aggravated assault, under our precedent, is met
when a person:

         (a) attempts to cause serious bodily injury8 to another, or causes such injury
         purposely, knowingly, or recklessly under circumstances manifesting extreme
         indifference to the value of human life; or (b) attempts to cause or purposely or
         knowingly causes bodily injury9 to another with a deadly weapon.




         6We   express no opinion as to the order in which these two issues should be addressed in other cases, noting
only that in this case, addressing overbreadth first is the more useful approach.
         7“[A]ggravated   assault” is now listed in the main text of the Guidelines enumerated-offense clause. See
USSG § 4B1.2(a)(2). In the version of the Guidelines under which Burris was sentenced, however, “aggravated
assault” was listed only in Application Note 1. See United States v. Rodriguez, 664 F.3d 1032, 1036 (6th Cir. 2011);
USSG § 4B1.2 Application Note 1 (2015), available at https://www.ussc.gov/guidelines/2015-guidelines-
manual/2015-chapter-4. Still, courts followed the application notes, and Rodriguez held that Ohio aggravated
assault qualified as an enumerated crime of violence for purposes of the career-offender guidelines. See id. at 1036–
37.
         8Serious bodily injury means “bodily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of any bodily member or organ.” Model Penal
Code § 210.0(3).
         9Bodily injury means “physical pain, illness or any impairment of physical condition.” Model Penal Code
§ 210.0(2)
 No. 16-3855                                United States v. Burris                                        Page 12


United States v. McFalls, 592 F.3d 707, 717 (6th Cir. 2010) (quoting Model Penal Code
§ 211.1(2)), abrogated on other ground by United States v. Verwiebe, 874 F.3d 258, 262 (6th
Cir. 2017). And the residual clause swept10 in felonies that “otherwise involve[] conduct that
presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2) (2015).

         Both Ohio’s felonious-assault and aggravated-assault statutes criminalize, among other
things, “knowingly . . . [c]aus[ing] serious physical harm to another . . . .” See Ohio Rev. Code
§§ 2903.11(A)(1), 2903.12(A)(1). But “[s]erious physical harm” includes “[a]ny mental illness
or condition of such gravity as would normally require hospitalization or prolonged psychiatric
treatment.” Id. § 2901.01(A)(5)(a). On their faces, then, both statutes appear to criminalize
more conduct than is described in each of the Guidelines clauses—a person can at least
theoretically knowingly cause certain serious mental harms without using, attempting to use, or
threatening to use physical force against the person of another, see 18 U.S.C. § 924(e)(2)(B)(i);
USSG § 4B1.2(a)(1), or without causing bodily injury or without engaging in conduct that
presents a serious potential risk of physical injury to another, see McFalls, 592 F.3d at 717;
USSG § 4B1.2(a)(2) (2015). The Supreme Court has cautioned us, however, not to “apply legal
imagination to the state offense; there must be a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls outside” the conduct described in the
elements clauses. See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (internal quotation marks
and citation omitted); United States v. Southers, 866 F.3d 364, 368 (6th Cir. 2017) (“Moncrieffe
and its ‘realistic probability’ inquiry applies in the ACCA context.”). We therefore look to state
law to determine whether there is a realistic probability that Ohio would apply its felonious-
assault and aggravated-assault statutes to conduct that falls outside of the conduct described in
the Guidelines career-offender clauses. In doing so, we are bound by the Ohio Supreme Court’s
interpretation of its criminal law. See Southers, 866 F.3d at 368. “[A]fter a state supreme
court’s decisions, ‘intermediate state appellate court decisions constitute the next best indicia of

         10Although    the Supreme Court struck down the identically worded ACCA residual clause as
unconstitutionally void in Johnson II, 135 S. Ct. at 2563, it upheld the Guidelines residual clause against a void-for-
vagueness challenge, see Beckles v. United States, 137 S. Ct. 886, 890 (2017). The United States Sentencing
Commission removed the residual clause from the Guidelines after Johnson II, but we “consider § 4B1.2(a) ‘as it
existed at the time of [Burris’s] sentencing, giving effect to the residual clause.” United States v. Jackson, 704 F.
App’x 484, 487 (6th Cir. 2017) (quoting United States v. Tibbs, 684 F. App’x 456, 459-60 (6th Cir. 2017)); accord
Patterson, 853 F.3d at 305–06.
 No. 16-3855                         United States v. Burris                              Page 13


what state law is.’” Id. (quoting United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)
(alteration omitted)).

       The Ohio Supreme Court has described the purpose of both versions of Ohio aggravated
assault. They “serve the same purpose—preventing physical harm to persons.” State v. Brown,
895 N.E.2d 149, 150–51 (Ohio 2008). But we are aware of no Ohio Supreme Court cases that
purport to limit Ohio’s statutory definition of “serious physical harm” to only physical harms.
We therefore turn to Ohio’s intermediate appellate court decisions to determine whether there is
a realistic probability that Ohio would apply its felonious-assault and aggravated-assault statutes
to conduct that falls outside of the conduct described in the Guidelines career-offender clauses.

       These decisions confirm that there is such a realistic probability. Burris cites two cases
that confirm this, and the government cites an additional case. The first, State v. Elliot, involved
a man who was convicted of Ohio felonious assault after he killed his wife and then allowed his
six-year-old son to discover her lying dead in a pool of her own blood. 663 N.E.2d 412, 413
(Ohio Ct. App. 1995). The son suffered post-traumatic stress disorder (“PTSD”) as a result. Id.
at 415–16. In Elliot, the Ohio intermediate appellate court found that liability for violating
Ohio’s felonious-assault statute extends to a defendant’s “failure to act” to prevent serious
physical harm to a victim when the defendant has a legal duty to do so. Id. at 415. As relevant
in Elliot, “parents and guardians have a legal duty to protect their children from harm,” and the
father did not act to prevent his son’s discovery of the son’s dead mother. Id.

       The second, State v. Cooper, involved a mother who was involved in sexually abusing
and/or allowing others to sexually abuse her four children. 743 N.E.2d 427, 431 (Ohio Ct. App.
2000). Although the details of the mother’s involvement are not clear for each of the four
children, we know that the mother held down one of her daughters to allow her boyfriend to rape
the daughter, digitally raped that daughter herself by placing her fingers in her daughter’s vagina,
and placed her hand on the penis of one of her sons. Id. The children each displayed “a variety
of symptoms of mental illness.” Id. The mother was charged with committing felonious assault
against each of her four children “by means of many acts and omissions, including her assistance
in the rapes and sexual abuse and her failure to protect each child from physical and sexual abuse
over his or her lifetime.” Id. at 431–32. In Cooper, the Ohio intermediate appellate court found
 No. 16-3855                               United States v. Burris                                      Page 14


that liability for violating Ohio’s felonious-assault statute extends to a defendant’s series of acts
and failures to act which, taken together, cause serious physical harm to the victims (rather than a
single act or failure to act, as in Elliot). See id. at 433–35.

        The third, State v. Hodges, involved an Episcopal priest who counseled a parishioner,
who had a history of psychiatric illnesses, about her sexually abusive husband. 669 N.E.2d 256,
258 (Ohio Ct. App. 1995). The priest began hugging and kissing her during counseling sessions,
then groped her, and eventually engaged in oral sex and sexual intercourse with her, despite her
telling him, “No, this is wrong.” Id. at 258–59, 261. There is no indication in Hodges that the
priest used any physical force in any these encounters. The parishioner, however, later carved
“repent” into her arm with a razor blade, “apparently in response to her sexual encounter with
defendant,” and was hospitalized in a psychiatric unit. Id. at 259, 261. In Hodges, the Ohio
intermediate appellate court rejected the priest’s argument that he was entitled to a judgment of
acquittal on his felonious-assault charge, holding that reasonable minds could conclude that the
priest knowingly caused serious physical harm to the parishioner. Id. at 261.

        These cases confirm that there is at least a “realistic probability” that a person may be
convicted of Ohio felonious assault or Ohio aggravated assault11 after knowingly causing
“serious physical harm” in the form of certain serious mental harms without using physical force,
as defined in the ACCA and the Guidelines. “[P]hysical force,” as used here, means “violent
force—that is, force capable of causing physical pain or injury to another person.” Johnson I,
559 U.S. at 140. The father in Elliot did not have any physical contact with his son, but was
convicted of feloniously assaulting him. See Elliot, 663 N.E.2d at 413. There is no indication
that the mother in Cooper had physical contact with two of the four children she was convicted
of feloniously assaulting; and there is no allegation that the physical contact she had with her
other two children constituted “physical force” as Johnson I describes it.                         See Cooper,
743 N.E.2d at 431. Similarly, there is no indication that any of the physical contact the priest in
Hodges had with his parishioner constituted “physical force.” See Hodges, 669 N.E.2d at 258–
59. The fairest reading of these cases is that defendants in Ohio may be convicted of felonious

          11Although each of these was a felonious assault case, because the relevant elements are the same in both
statutes, we assume the Ohio courts would interpret them in the same way.
 No. 16-3855                                United States v. Burris                                        Page 15


assault or aggravated assault without any “physical force” whatsoever (or threat of such force, or
the attempted use of such force), so long as those defendants knowingly cause (by whatever
means) the serious mental harms included in Ohio’s statutory definition of “serious physical
harm.”     Ohio’s felonious-assault and aggravated-assault statutes are therefore too broad to
categorically qualify as violent-felony predicates under the ACCA and Guidelines elements
clauses.

         Defendants in Ohio may also be convicted of felonious assault or aggravated assault
without, as is required by the Guidelines enumerated-offense clause,12 causing any form of
“bodily injury”—“physical pain, illness or any impairment of physical condition”—much less
“serious bodily injury.” See Model Penal Code § 210.013; McFalls, 592 F.3d at 717. In Elliot
and Cooper, at least,14 there is no indication that the victims suffered bodily injury as defined in
the Model Penal Code, and it is clear in both that the jury punished the defendants for mental
harms suffered by the victims, not bodily ones. See Elliot, 663 N.E.2d at 413, 415; Cooper,
743 N.E.2d at 431, 433–35. Ohio’s felonious-assault and aggravated-assault are therefore too
broad to categorically qualify as violent-felony predicates under the Guidelines enumerated-
offense clause.15



         12The   ACCA enumerated-offense clause does not contain “aggravated assault.”                See 18 U.S.C.
§ 924(e)(2)(B)(ii).
         13The Model Penal Code defines “bodily injury” as “physical pain, illness or any impairment of physical
condition,” and “serious bodily injury” as “bodily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
Model Penal Code § 210.0.
         14The   defendant in Hodges was at least a but-for cause of “bodily injury,” whether or not his conduct met
the rest of elements of the generic aggravated-assault offense. See Hodges, 669 N.E.2d at 259, 261 (“based on a
reasonable degree of medical certainty, the sexual intercourse with the defendant caused serious physical harm” to
the victim, including her carving of “repent” into her arm).
         15The   Rodriguez panel held that Ohio’s aggravated-assault statute “qualifies as a ‘crime of violence’”
under the enumerated-offense clause. See 664 F.3d at 1039, 1038–39 (“We need not consider whether the crime has
as an element the use, attempted use, or threatened use of force, . . . or whether the crime fits within the residual
clause because it ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.”
(citations omitted)). The Rodriguez panel provided extensive analysis to support this conclusion, see id. at 1035–39,
but simply accepted the defendant’s concession that Ohio’s aggravated-assault statute “does require violence.” See
id. at 1039. But a defendant cannot establish the meaning of state law through concession, and, like the Anderson
panel, the Rodriguez panel did not refer to or analyze Ohio’s statutory definition of “serious bodily harm,” nor did it
perform the divisibility analysis now required by Descamps and Mathis.
 No. 16-3855                                United States v. Burris                                       Page 16


        Defendants in Ohio may also be convicted of felonious assault or aggravated assault
without, as is required by the Guidelines residual clause, engaging in conduct that presents a
serious potential risk of physical injury to another. See USSG § 4B1.2(a)(2) (2015). In Elliot
and Cooper, at least, the defendants engaged in conduct that Ohio juries thought could fairly be
described as presenting a serious potential risk of mental injury to another, but we do not think
that that conduct could fairly be described as presenting a serious potential risk of physical injury
to another, and it is clear in both that the jury punished the defendants for engaging in conduct
that presented a serious risk of mental injury, not physical injury. See Elliot, 663 N.E.2d at 413,
415; Cooper, 743 N.E.2d at 431, 433–35. Ohio’s felonious-assault and aggravated-assault are
therefore too broad to categorically qualify as violent-felony predicates under the Guidelines
residual clause.16

        The government argues that we should not allow “a few (potentially) outlier lower court
decisions” to “excuse thousands of violent career criminals” from the consequences imposed by
the ACCA and the Guidelines. In support of this position, the government quotes Perez v.
United States, 885 F.3d 984, 990 (6th Cir. 2018), in which a panel of this court accepted a
similar argument and found that New York’s second-degree robbery qualified as a violent felony
under the ACCA elements clause despite several New York intermediate appellate court cases in
which defendants were convicted without using “force capable of causing physical pain or injury
to another person.” Id. at 989–90 (quoting Johnson I, 559 U.S. at 140)). But in Perez, the panel
interpreted a more-recent decision by New York’s highest court to require at least “a threshold
level of force,” see id. at 988 (citing People v. Jurgins, 46 N.E.3d 1048, 1053 (N.Y. 2015)), and
found that “[t]he New York courts by and large have construed the statute to . . . include force
that would cause pain to another,” id. Here, by contrast, there is no such opinion from Ohio’s
highest court that appears to limit Ohio’s statutory definition of “serious physical harm” in such

        16Judge   White thought in Anderson, and another panel held shortly thereafter, that Ohio’s felonious-assault
and aggravated-assault statutes categorically qualified as violent-felony predicates under the identically worded
ACCA residual clause. See Anderson, 695 F.3d at 403–06 (White, J., concurring); United States v. Perry, 703 F.3d
906, 910 (6th Cir. 2013). Yet again, neither Judge White nor the Perry panel looked at or analyzed Ohio’s statutory
definition of “serious physical harm” rather than the ordinary meaning of “serious physical harm.” Because the
panel in Perry failed to do so, its conclusion that Ohio’s felonious-assault and aggravated-assault statutes
categorically qualified as violent-felony predicates under language of the ACCA residual clause is no longer good
law and should not be applied to the Guidelines context.
 No. 16-3855                               United States v. Burris                                      Page 17


a way that convictions of Ohio felonious assault and Ohio aggravated assault may categorically
qualify as violent-felony predicates under the ACCA and Guidelines elements clauses. We
therefore reject the government’s broad interpretation of Perez as inconsistent with the Supreme
Court’s categorical-approach jurisprudence. Some might think that Congress intended to impose
enhanced prison sentences under the ACCA and the Guidelines on the basis of state or federal
felony convictions that almost always, but do not quite always, involve the use, attempted use, or
threatened use of physical force against the person of another. See generally Mathis, 136 S. Ct.
at 2268 (Alito, J., dissenting) (lamenting that the Supreme Court’s categorical-approach
jurisprudence would result in “all burglary convictions in a great many States” being disqualified
as ACCA-predicates even though “Congress indisputably wanted burglary to count under
ACCA”). But we are a lower court, and we must follow the Supreme Court’s categorical-
approach jurisprudence here. That jurisprudence requires Burris only to point to “cases in which
the state courts in fact did apply the statute” to conduct falling outside the conduct described in
the ACCA and Guidelines elements clauses, and that is enough to establish a “realistic
probability” that Ohio would apply its felonious-assault and aggravated-assault statutes to
conduct that does not involve the use, attempted use, or threatened use of physical force against
the person of another. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see Moncrieffe,
569 U.S. at 191 (quoting Duenas-Alvarez, 549 U.S. at 193); Southers, 866 F.3d at 368
(“Moncrieffe and its ‘realistic probability’ inquiry applies in the ACCA context.”). Burris has
pointed to those cases,17 so Burris has established that Ohio’s felonious-assault and aggravated-
assault statutes are not a categorical match to the ACCA and Guidelines elements clauses.
Unless those statutes are divisible, therefore, convictions under those statutes do not qualify as
violent-felony predicates under the ACCA and Guidelines elements clauses. See Descamps, 570
U.S. at 258.

        Anderson wrongly held that convictions under Ohio’s felonious-assault and aggravated-
assault statutes categorically qualify as violent-felony predicates. See Anderson, 695 F.3d at


        17True,   these are Ohio intermediate appellate court decisions and not decisions from the Ohio Supreme
Court. But “Moncrieffe only looked to state intermediate appellate decisions,” Southers, 866 F.3d at 368, and those
were sufficient to allow the Supreme Court to determine what state law was. Elliot, Cooper, and Hodges are
therefore sufficient to allow us to determine what Ohio law is.
 No. 16-3855                         United States v. Burris                              Page 18


399–402. The Anderson panel apparently did so because it analyzed only the ordinary meaning
of “serious physical harm” rather than Ohio’s statutory definition for “serious physical harm.”
But because that statutory definition includes certain serious mental harms, and because state
courts in fact do apply the statute to conduct that does not involve the use, attempted use, or
threatened use of physical force against the person of another—and did at the time Anderson was
decided; Elliot, Cooper, and Hodges were all decided before Anderson—Burris is correct that
Anderson was wrongly decided and should be overruled on that basis.

                                                B.

       We next determine whether Ohio’s felonious-assault and aggravated-assault statutes are
divisible because they set out multiple separate crimes and if so, whether either of those separate
crimes qualifies as a violent-felony predicate under the ACCA and Guidelines elements clauses.

       Supreme Court cases decided after Anderson make clear that, if a statute is too broad to
qualify categorically as a violent-felony predicate under the ACCA and Guidelines elements
clauses, we should next look at whether that statute is “divisible.” “[D]ivisible” statutes, as a
reminder, are statutes which “set[] out one or more elements of the offense in the alternative,”
“thereby defin[ing] multiple crimes.” Descamps, 570 U.S. at 257; Mathis, 136 S. Ct. at 2249.

       The Supreme Court in Mathis described several ways to determine whether a state statute
is divisible, each of which is based in state law. There may be “a state court decision” that
“definitively answers the question.” Mathis, 136 S. Ct. at 2256. Or “the statute on its face may
resolve the issue.” Id. Specifically, “[i]f statutory alternatives carry different punishments, then
under Apprendi they must be elements.” Id. And some statutes even “identify which things
must be charged (and so are elements) and which need not be (and so are means.)” Id. But “if a
statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of
commission,” and is not divisible. Id.

       Where state law is unclear on whether a state statute is divisible, we may “peek at the
record documents” for “the sole and limited purpose of determining whether the listed items are
elements of the offense.” Id. at 2256–57 (alterations and citation omitted). If the indictment and
jury instructions use all the terms from a state law, “[t]hat is as clear an indication as any that
 No. 16-3855                         United States v. Burris                              Page 19


each alternative is only a possible means of commission, not an element that the prosecutor must
prove to a jury beyond a reasonable doubt.” Id. at 2257. But the indictment and jury instructions
conversely might “indicate, by referencing one alternative term to the exclusion of all others, that
the statute contains a list of elements, each one of which goes toward a separate crime,” and not
merely a list of factual means by which a person might satisfy a single element. Id.

       Where both state law and the record documents are unclear, “a sentencing judge will not
be able to satisfy ‘Taylor’s demand for certainty’ when determining whether a defendant was
convicted of a” qualifying predicate offense. Id.

       We have not before definitively answered the question of whether Ohio’s felonious-
assault and aggravated-assault statutes are divisible. Anderson did not address this question, at
least regarding subsections (A)(1) and (A)(2) of each statute. See Anderson, 695 F.3d at 399-
402.   Since Anderson, we seem to have treated the Ohio felonious-assault statute both as
divisible, see Miller v. United States, 561 F. App’x 485, 492 (6th Cir. 2014) (Ohio Revised Code
§ 2903.11 “is a divisible statute”); United States v. Denson, 728 F.3d 603, 613 (6th Cir. 2013)
(listing subsections (A)(1) and (A)(2) as separate offenses), and as indivisible, see Person v.
Sheets, 527 F. App’x 419, 424 & n.4 (6th Cir. 2013) (“the subdivisions ‘set forth two means of
committing the same offense’” (quoting Brown, 895 N.E.2d at 156)).

       Turning to Ohio state law, then, each of the three ways Mathis describes to determine
whether a statute is divisible points in the same direction: Ohio’s felonious-assault and
aggravated-assault statutes are both divisible, for the following reasons.

       The first way Mathis describes to determine whether a statute is divisible is to look to see
if “a state court decision” “definitively answers the question.” Mathis, 136 S. Ct. at 2256. We
are aware of no state court decision that does so. But we note that, as relevant here, the regular
practice in Ohio state courts appears to involve charging defendants with only one subsection of
Ohio’s felonious-assault and aggravated-assault statutes, or of charging defendants with separate
counts of Ohio aggravated assault or Ohio felonious assault under both subsections of the
relevant statute. This regular practice indicates that Ohio state courts view Ohio’s felonious-
 No. 16-3855                                United States v. Burris                                       Page 20


assault and aggravated-assault statutes as divisible, setting out different crimes and not merely
different factual means of accomplishing the same crime.

         It is true that in Brown, the Ohio Supreme Court describes subsections (A)(1) and (A)(2)
as “set[ting] forth two means of committing the same offense.” 895 N.E.2d at 156. It is this
language on which the panel in Person relied when treating Ohio’s felonious-assault statute as
indivisible. See Person, 527 F. App’x at 424 & n.4. But the Ohio Supreme Court in Brown and
the panel in Person were dealing with double-jeopardy issues, and a deeper dive into Brown
reveals that it does not definitively answer the question of whether Ohio’s felonious-assault and
aggravated-assault statutes are divisible for ACCA and Guidelines purposes. In Brown, the Ohio
Supreme Court was determining whether aggravated assault under subsection (A)(1) and
aggravated assault under subsection (A)(2) are “allied offenses of similar import” under Ohio
Revised Code § 2941.25, “a legislative attempt to codify the judicial doctrine of merger,” which
precludes cumulative punishments for the same conduct. 895 N.E.2d at 156–57. The defendant
in Brown had been charged with, and ultimately convicted of, one count of aggravated assault
under subsection (A)(1) and one count of aggravated assault under subsection (A)(2). See id. at
154. “[E]ach conviction” arose from a single stabbing wound that the defendant inflicted on the
victim. Id. The Ohio Supreme Court ultimately concluded that these two convictions could
result in only one punishment under Ohio Revised Code § 2941.25 because “the General
Assembly did not intend violations [of both subsections] to be separately punishable when the
offenses result from a single act undertaken with a single animus.” Id. at 156.18

         In so holding, however, the Ohio Supreme Court did not prohibit prosecutors from
charging a defendant with violating both subsections of a statute such as Ohio’s felonious-assault
and aggravated-assault statutes where the defendant either committed the crimes separately or
had a separate animus for each violation. See id. at 153–54. Nor did it prohibit prosecutors from


         18Along   the way, the Ohio Supreme Court used some additional language that, taken out of context, could
seem to indicate that Ohio’s felonious-assault and aggravated-assault statutes are indivisible. See id. at 155 (“these
two alternate theories of aggravated assault”); id. (“these two forms of aggravated assault”); id. at 156
(“subdivisions (1) and (2) set forth two means of committing the offense”); id. (“[t]hese subdivisions set forth two
different forms of the same offense”). But read in context, the Ohio Supreme Court is referring to occasions such as
the one in Brown where a prosecutor charges a defendant with committing aggravated assault under both
subsections despite only one instance of conduct that might constitute aggravated assault.
 No. 16-3855                         United States v. Burris                                Page 21


charging a defendant with violating only a single subsection of a statute such as Ohio’s
felonious-assault and aggravated-assault statutes. See id. at 456 (“[t]he choice is given to the
prosecution to pursue one offense or the other”). And a survey of recent Ohio intermediate
appellate court decisions shows that persons are regularly charged under only one of the two
subsections of Ohio’s felonious-assault and aggravated-assault statutes or under both subsections
of the relevant statute separately. See, e.g., State v. Harwell, No. 27658, 2018 WL 2277772, at
*1 (Ohio Ct. App. May 18, 2018) (defendant was charged with two separate counts of felonious
assault under Ohio Revised Code § 2903.11(A)(2) and one count of felonious assault under Ohio
Revised Code § 2903.11(A)(1)); State v. Perez, No. WD-17-017, 2018 WL 2278169, at *1 (Ohio
Ct. App. May 18, 2018) (“An indictment for felonious assault in violation of [Ohio Revised
Code §] 2903.11(A)(1) . . . was filed against appellant.”); State v. Collins, No. 106050, 2018 WL
2149204, at *1 (Ohio Ct. App. May 10, 2018) (defendant was charged with two separate counts
of felonious assault under Ohio Revised Code § 2903.11(A)(2) and two separate counts of
felonious assault under Ohio Revised Code § 2903.11(A)(1)); State v. Johnson, No. L-16-1282,
2018 WL 1989582, at *3 (Ohio Ct. App. Apr. 27. 2018) (grand jury “indicted Jawaun of . . .
felonious assault, in violation of [Ohio Revised Code §] 2903.11(A)(2)”).

       We recognize that the stray language from the Ohio Supreme Court’s opinion in Brown,
taken out of context, could be viewed as indicating that Ohio’s felonious-assault and aggravated-
assault statutes are indivisible. But that case was about a wholly different issue, and we therefore
will not permit it to outweigh the more-recent regular practice in the Ohio state courts.

       The second way Mathis describes to determine whether a statute is divisible is to look to
see if “the statute on its face [] resolve[s] the issue.” Mathis, 136 S. Ct. at 2256. Each of these
statutes on its face appears to be divisible. Each appears to set forth one or more elements of the
offense in the alternative, thereby defining multiple crimes. See Descamps, 570 U.S. at 257;
Mathis, 136 S. Ct. at 2249. Using Ohio’s felonious-assault statute as an example, Ohio Revised
Code § 2903.11(A)(1) criminalizes (1) “knowingly” (2) “[c]aus[ing]” (3) “serious physical
harm” (4) “to another or another’s unborn.” Ohio Revised Code § 2903.11(A)(2), by contrast,
criminalizes (1) “knowingly” (2) “[c]aus[ing] or attempt[ing] to cause” (3) “physical harm”
(4) “to another or another’s unborn” (5) “by means of a deadly weapon or dangerous ordnance.”
 No. 16-3855                              United States v. Burris                         Page 22


These appear to be alternative elements, not alternative factual means of satisfying a single set of
elements.

       The third, albeit related, way Mathis describes to determine whether a statute is divisible
is to look to see “[i]f statutory alternatives carry different punishments,” because if they do,
“then under Apprendi19 they must be elements.” Mathis, 136 S. Ct. at 2256. Again using Ohio’s
felonious-assault statute as the example, Ohio Revised Code § 2903.11(D)(1)(a) increases the
seriousness of felonious assault from a second-degree felony to a first-degree felony if the victim
is a “peace officer,” regardless of whether the defendant is convicted under subsection (A)(1) or
subsection (A)(2). But Ohio Revised Code § 2903.11(D)(1)(b) imposes an additional mandatory
prison term if the victim both is a “peace officer” and “suffer[s] serious physical harm.” Accord
Ohio Revised Code § 2903.12(B) (similarly imposing a mandatory prison term where the victim
is a peace officer and suffers serious physical harm). A conviction under subsection (A)(1) of
each statute, where the victim is a “peace officer,” carries a different and greater punishment
than does a conviction under subsection (A)(2) of each statute where the victim is a “peace
officer.” And, under Mathis, that means the subsections must be elements. 136 S. Ct. at 2256.
In sum, Ohio’s felonious-assault and aggravated-assault statutes are divisible; subsection (A)(1)
and subsection (A)(2) of each statute set forth a separate crime. Having previously established
that subsection (A)(1) is too broad to qualify as a violent-felony predicate, we now turn to
examining subsection (A)(2).

                                                      C.

       Subsection (A)(2) prohibits “[c]aus[ing] or attempt[ing] to cause physical harm to
another or to another’s unborn by means of a deadly weapon or dangerous ordinance.”
O.R.C. § 2903.11(A)(2).        Ohio statutorily defines a “[d]eadly weapon” as “any instrument,
device, or thing capable of inflicting death, and designed or specifically adapted for use as a
weapon, or possessed, carried, or used as a weapon.” O.R.C. § 2923.11(A). “Physical harm” is
defined by Ohio as “any injury, illness, or other physiological impairment, regardless of its
gravity or duration.” O.R.C. § 2901.01(A)(3). Since the use of a “deadly weapon” or “dangerous

       19Apprendi   v. New Jersey, 530 U.S. 466, 489 (2000).
 No. 16-3855                                United States v. Burris                                        Page 23


ordinance” while “[c]aus[ing] or attempt[ing] to cause physical harm” is necessary for a
conviction under subsection (A)(2), it follows logically that using a device “capable of inflicting
death” satisfies the element clause’s use, attempted use, or threatened use of violent physical
force.

         However, we need not even rely on logic and common sense because this court has
already answered this question several times and come to the same conclusion. The Sixth Circuit
has adopted, as have other circuits,20 what is colloquially called the “deadly weapon rule” that is
dispositive for this analysis unless applicable state law demands otherwise (here it does not):
“When a felony must be committed with a deadly weapon and involves some degree or threat of
physical force, it is a crime of violence under the elements clause.” Harris, F.3d at 321. It is
worth noting that “the degree or threat of physical force” contemplated by the offense need be no
greater than that of common law battery. Id. We find no basis in the statutory language or
relevant case law to distinguish between the “deadly weapon” and “dangerous ordinance.”

         Tellingly, Burris does not cite (nor can we find) a single instance of Ohio courts’
applying subsection (A)(2) to conduct that does not qualify under the Guidelines elements
clause. Given the statutory language, Ohio case law, and our own precedents, we find that a
conviction under subsection (A)(2) qualifies as a violent-felony predicate under the Guidelines.

                                                          D.

         The subsection (A)(1) version of each offense is too broad to qualify categorically as a
violent-felony predicate under the ACCA and Guidelines elements clauses. Therefore,
sentencing courts should employ the modified categorical approach to determine whether a
defendant was convicted of the (A)(1) version of the offense or the (A)(2) version of the offense.
If the defendant was convicted under the (A)(1) version of either offense, that offense does not
qualify as a violent-felony conviction under the ACCA or Guidelines elements clauses. 21 If a
defendant was convicted under the (A)(2) version of either offense, that offense does qualify as a

         20See e.g., United States v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015); United States v. Herrera-
Alvarez, 753 F.3d 132, 138 (5th Cir. 2014); United States v. Ramon Silva, 608 F.3d 663, 670 (10th Cir. 2010).
         21And, as discussed above, that offense does not qualify under either the Guidelines enumerated-offense
clause or the Guidelines residual clause, for those persons sentenced while the Guidelines still had a residual clause.
 No. 16-3855                          United States v. Burris                           Page 24


violent-felony predicate under the ACCA and Guidelines elements clauses. Burris does not
argue otherwise. And if the Shepard documents in a particular case do not make clear under
which subsection of the relevant statute a defendant was convicted, sentencing courts must
“presume that the conviction rested upon nothing more than the least of the acts criminalized,”
Moncrieffe, 569 U.S. at 190–91, which means that the conviction does not qualify as a predicate
under either the ACCA or the Guidelines elements clauses.

       Anderson did not engage in this divisibility analysis, see Anderson, 695 F.3d at 399–402,
probably because the Supreme Court opinions most clearly setting forth this required analysis,
Descamps and Mathis, had not yet been decided. This divisibility analysis is nevertheless now
clearly required under the Supreme Court’s categorical-approach and modified-categorical-
approach jurisprudence.     Still, even after Descamps and Mathis, panels of this court have
considered themselves bound by Anderson. See, e.g., Williams, 875 F.3d at 805. After all, our
longstanding rule is that “[a] panel of this Court cannot overrule the decision of another panel.
The prior decision remains controlling authority unless an inconsistent decision of the United
States Supreme Court requires modification of the decision or this Court sitting en banc
overrules the prior decision.” See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689
(6th Cir. 1985) (citation omitted).

       We now hold that, for two reasons, Anderson is no longer binding law. First, Anderson
was wrongly decided because it failed to recognize that Ohio’s statutory definition of “serious
physical harm” includes certain serious mental harms, and because state courts in fact do apply
Ohio’s felonious-assault and aggravated-assault statutes to conduct that does not involve the use,
attempted use, or threatened use of physical force against the person of another. Second, in the
post-Anderson cases of Descamps and Mathis the Supreme Court has made it clear that federal
sentencing courts must conduct a divisibility analysis, and the Anderson majority—albeit
understandably—did not do so. With those mistakes now obvious, it is untenable to allow
Anderson to continue both to require the district courts in this circuit to enhance defendants’
prison sentences based on criminal convictions that we know do not qualify under the ACCA
and Guidelines elements clauses, and to require panels of this court to affirm those incorrectly
enhanced sentences. Cf. Hicks v. United States, 137 S. Ct. 2000, 2001 (2017) (Gorsuch, J.,
 No. 16-3855                              United States v. Burris                                      Page 25


concurring) (“For who wouldn’t hold a rightly diminished view of our courts if we allowed
individuals to linger longer in prison than the law requires only because we were unwilling to
correct our own obvious mistakes.”).

        Having concluded that (1) Ohio’s felonious-assault and aggravated-assault statutes are
too broad to qualify categorically as violent-felony predicates under the ACCA and Guidelines
elements clauses, (2) that both statutes are divisible, and (3) that only the (A)(2) version of each
statute qualifies as a violent-felony predicate under the ACCA and Guidelines elements clauses,
we conclude the analysis. The Shepard documents in this case22 make clear that Burris was
sentenced for the (A)(2) version of Ohio felonious assault. Burris is therefore unable to show
that any error in his case, even if it was plain or obvious or clear, affected his substantial rights.

                                                       IV.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




         22We have held that Ohio state-court journal entries, such as the ones the government has submitted here,
constitute valid Shepard documents. See United States v. Adkins, 729 F.3d 559, 567–68 (6th Cir. 2013)
 No. 16-3855                         United States v. Burris                             Page 26


                                      _________________

                                       CONCURRENCE
                                      _________________

       THAPAR, Circuit Judge, concurring.         After leading police on a high-speed chase,
Le’Ardrus Burris rammed his vehicle into a police officer, “throwing him backwards for
15 feet.” R. 496, Pg. ID 3684. As a result of this action, an Ohio jury convicted Burris of
felonious assault. A casual reader of today’s decision might struggle to understand why we are
even debating if ramming a vehicle into a police officer is a crime of violence. The reader’s
struggle would be understandable. The time has come to dispose of the long-baffling categorical
approach. My colleagues have repeatedly said as much, and I urge any frustrated readers of
today’s decision—particularly Congress or the Sentencing Commission—to read and heed their
words. See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2266–71 (2018) (Alito, J., dissenting);
Cradler v. United States, 891 F.3d 659, 672 (6th Cir. 2018) (Kethledge, J., concurring); United
States v. Valdivia-Flores, 876 F.3d 1201, 1210–11 (9th Cir. 2017) (O’Scannlain, J., specially
concurring); United States v. Davis, 875 F.3d 592, 595, 604 (11th Cir. 2017) (Ed Carnes, C.J.);
United States v. Chapman, 866 F.3d 129, 136–39 (3d Cir. 2017) (Jordan, J., concurring); United
States v. Faust, 853 F.3d 39, 60–61 (1st Cir. 2017) (Lynch, J., concurring); United States v.
Tavares, 843 F.3d 1, 19 (1st Cir. 2016) (Kayatta, J.); United States v. Doctor, 842 F.3d 306,
312–19 (4th Cir. 2016) (Wilkinson, J., concurring). I write to join them and to suggest a possible
path forward.

       As the jurists before me have explained, there are two big problems with the categorical
approach. First, the categorical approach is an elements lottery that leads to arbitrary results.
Second, it is very difficult to administer. Both problems are on display here.

       The elements lottery. Under the categorical approach, whether a prior state conviction
qualifies as a crime of violence is a matter of chance that depends on how a state legislature and
its judiciary have defined and interpreted the crime. This leads to some absurd results. For
example, a North Carolina conviction for “knowingly discharging a firearm into an occupied
building” or for raping a “mentally disabled person” is not a crime of violence. Doctor, 842 F.3d
 No. 16-3855                         United States v. Burris                              Page 27


at 315 (Wilkinson, J., concurring). In Florida, a conviction for attempted second degree murder
is not a crime of violence, and in Oklahoma, a conviction for kidnapping is not. Id.

       The absurd results are even more apparent in our circuit. As the majority opinion
correctly notes, if you are in Cincinnati, Ohio, and you “cause serious physical harm to another,”
it is not a crime of violence. But if you drive one mile across the Ohio River and commit the
very same crime in Kentucky, it is a crime of violence—all because the analogous statute in
Kentucky defined serious physical harm a little differently. See Ky. Rev. Stat. Ann. § 508.040;
United States v. Maynard, 894 F.3d 773, 775 (6th Cir. 2018); United States v. Colbert, 525 F.
App’x 364, 369–70 (6th Cir. 2013). So an increased sentence in this circuit turns not on whether
a defendant’s aggravated assault was actually violent, but on where the assault took place. In the
future, those who have prior convictions for aggravated assault under subsection (A)(1) in Ohio
will not be labeled a career offender, but those who have an identical conviction in Kentucky for
the exact same conduct will be.

       But the arbitrariness does not stop there. Each circuit decides for itself whether a crime
qualifies as a crime of violence. For example, subsection (A)(1) of the Ohio felonious assault
statute is no longer a crime of violence in this circuit, but it may still be a crime of violence in
other circuits. United States v. Clark, 131 F. App’x 29, 30 (4th Cir. 2005) (per curiam). In other
words, whether a defendant commits felonious assault in Ohio could matter less than where he
commits a later crime. Id.; see also, e.g., United States v. Harris, 844 F.3d 1260, 1262 (10th Cir.
2017) (observing that of eleven circuits to have considered whether robbery is a “violent felony,”
five say no, and six say yes), cert. denied, 138 S. Ct. 1438 (2018); compare United States v.
Fluker, 891 F.3d 541, 549 (4th Cir. 2018) (holding that Georgia’s robbery statute is indivisible
and not a crime of violence), with United States v. Cooper, 689 F. App’x 901, 906–07 (11th Cir.
2017) (holding that Georgia’s robbery statute is divisible and thus that robbery by sudden
snatching is a crime of violence). So here again, geography matters more than actual violence
under the categorical approach.

       And yet arbitrariness abounds even within single states. In Ohio, subsection (A)(1) of the
felonious and aggravated assault statutes is no longer a crime of violence, but subsection (A)(2)
is. As the majority opinion properly explains, these subsections set forth separate but similar
 No. 16-3855                         United States v. Burris                              Page 28


crimes. Each prohibits knowingly causing physical harm to another. The difference is that
subsection (A)(1) applies when the defendant caused serious physical harm, and subsection
(A)(2), requiring only physical harm, applies when the defendant used a deadly weapon or
dangerous ordnance. Compare Ohio Rev. Code Ann. § 2903.11(A)(1), with id. § 2903.11
(A)(2). After today’s decision, a person’s prior conviction for felonious assault would not be a
violent felony if he had caused the victim to have a seizure and a serious brain injury by violently
striking her dozens of times with his fists. See State v. Perez, No. WD-17-017, 2018 WL
2278169, at *1 (Ohio Ct. App. May 18, 2018). But if he had instead caused a bruise on the
victim’s leg by striking her with a crowbar, it likely would be a violent felony. See State v.
Smith, No. 14 CA 83, 2015 WL 1884222, at *2 (Ohio Ct. App. Apr. 24, 2015). One must accept
some level of arbitrariness with any law, but not the amount here, which a fact-based approach
would avoid.

       Administrative problems. The arbitrariness of the categorical approach ties in with its
second flaw: the costs of administering the approach outweigh its benefits. Some initially
thought that avoiding an inquiry into the facts of a prior conviction would be easier for judges.
Taylor v. United States, 495 U.S. 575, 601 (1990). And, to be sure, looking into the facts behind
a prior conviction could be difficult in some cases where state records are unclear. This was
particularly so in the pre-digital age in which the categorical approach emerged, when electronic
filing was not commonplace. But whatever administrative difficulty a factual approach still
hazards, the categorical approach ups the ante. By “simply swapp[ing] factual inquiries for an
endless gauntlet of abstract legal questions,” the categorical approach requires judges to throw
away common sense. Doctor, 842 F.3d at 313 (Wilkinson, J., concurring); see Davis, 875 F.3d
at 595. Each categorical-approach case (and there is no shortage of them) instead requires the
judge to (1) mull through any number of hypothetical ways to commit a crime that have nothing
to do with the facts of the prior conviction; (2) mine electronic databases for state court cases
(precedential or not) depicting non-violent ways of commission; and (3) scrutinize those state
court cases, some of which are old and predate the categorical approach, to determine their
import. See Doctor, 842 F.3d at 313 (Wilkinson, J., concurring). Here, this meant that our court
(1) considered hypothetical ways to feloniously assault someone without actually striking them,
such as by exposing a child to his mother’s dead body; (2) poured over countless Ohio Court of
 No. 16-3855                          United States v. Burris                                 Page 29


Appeals decisions, some decades-old, e.g., State v. Elliott, 663 N.E.2d 412 (Ohio Ct. App. 1995);
and (3) tried to decide if one or two of those decisions, almost all involving violence,
nevertheless demonstrate that Ohio felonious assault can be committed nonviolently. No judge
who has engaged in this “Rube Goldberg jurisprudence” or traveled to this “pretend place”
leaves thinking that life has been made easier. Davis, 875 F.3d at 595; Tavares, 843 F.3d at 19.
And any judge who could end the matter upon finding that a defendant actually committed a
violent act would find that task more administrable. This is particularly so when—as here—that
question is undisputed.

       In light of these problems, I join others in proposing an alternative approach. That
approach would permit judges to deem a prior conviction a crime of violence if the underlying
criminal conduct was actually violent. If the government can prove that the state court record
establishes violent conduct, end the inquiry there. See Mathis, 136 S. Ct. at 2269–70 (Alito, J.,
dissenting). If the government cannot, or if the record is insufficient to sustain the government’s
burden of proof, then the prior conviction does not count. See id. (Alito, J., dissenting).

       I recognize that a fact-based approach is not without its own potential problems. Any
difficulty in proving the facts underlying a past conviction would inure to the benefit of the
defendant, meaning a defendant’s career-offender status could turn not on the violence of his
conduct, but on record-keeping. But it is incumbent on the government to keep good records
whenever the government asks a court to put a defendant in prison, and it should be no different
here. United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003) (observing that the government
must prove whether a sentencing enhancement applies). And in the new world of electronic
filing, many of the records will be readily available going forward. In addition, requiring
sentencing courts to probe the facts underlying a conviction could pose Sixth Amendment
problems, at least in the ACCA context. See Mathis, 136 S. Ct. at 2259 (Thomas, J., concurring).
But whatever the difficulty of those problems under the ACCA, the Sixth Amendment presents
no obstacle under the advisory Sentencing Guidelines. United States v. Sanders, 406 F. App’x
995, 997–98 (6th Cir. 2011); cf. Beckles v. United States, 137 S. Ct. 886, 892 (2017) (“Unlike the
ACCA, however, the advisory Guidelines do not fix the permissible range of sentences.”).
Therefore, Congress and the Sentencing Commission are well-positioned to make a change for
 No. 16-3855                         United States v. Burris                           Page 30


the better. I urge them to consider such a change so courts no longer have to “delve into
pointless abstract questions” when determining whether striking a police officer with a car is a
crime of violence. See Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).

       I respectfully concur.
 No. 16-3855                        United States v. Burris                            Page 31


               _____________________________________________________

                   CONCURRING IN PART AND IN THE JUDGMENT
               _____________________________________________________

       ROGERS, Circuit Judge. I concur in the result, and in the following parts of the lead
opinion: Parts I and II, all but the last sentence of Part III.B, and Part III.C. For the reasons
given by Judge Kethledge, we ought not address in this case whether United States v. Anderson,
695 F.3d 390 (6th Cir. 2012), was rightly decided. The problematic part of Anderson poses no
problem for the defendant before the court. To resolve this appeal, we need only conclude that
Ohio Rev. Code § 2903.11(A) is divisible and that § 2903.11(A)(2) describes a crime of violence
under the Armed Career Criminal Act and the Guidelines. The lead opinion rightly resolves
these issues, and I join the portions of the lead opinion that so hold. Burris was properly
sentenced as a career offender.
 No. 16-3855                          United States v. Burris                              Page 32


                          __________________________________________

                              CONCURRING IN THE JUDGMENT
                          __________________________________________

        KETHLEDGE, Circuit Judge, concurring in the judgment. The idea of judicial restraint
encompasses not only the content of our decisions, but also whether we should make them in the
first place. Advisory opinions, everyone agrees, are out of bounds. See, e.g., Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101 (1998); Hayburn’s Case, 2 U.S. 408 (1792). And
dictum is usually a bad idea, because judges think differently—more carefully, more focused,
more likely to think things through—when our words bring real consequences to the parties
before us. (The same criticism goes for alternative holdings.) Yet when judges do indulge in
dictum, at least, it typically amounts to only a stray comment or two on matters incidental to the
real issue in the case.

        But here, respectfully, dictum is the raison d’être for the plurality’s opinion. We reheard
this case en banc to revisit our decision in United States v. Anderson, 695 F.3d 390 (6th Cir.
2012), which most of the en banc court agrees was mistaken to the extent it held that Ohio Rev.
Code § 2903.11(A)(1) describes a “crime of violence” under the Armed Career Criminal Act.
That part of Anderson’s holding, of course, would have real consequences in a case where the
defendant’s sentence was enhanced as a result of a prior conviction under § 2903.11(A)(1). But
Burris instead has a prior conviction under § 2903.11(A)(2), which does describe a crime of
violence under the ACCA. Thus we could decide this case simply by holding (as the plurality
correctly holds) that § 2903.11(A) is divisible and that the particular crime of which Burris was
previously convicted—namely § 2903.11(A)(2)—is a crime of violence. That is reason enough
to deny him relief.       The question whether § 2903.11(A)(1) describes a crime of violence,
therefore, is not a matter in controversy in this case. Hence the court’s discussion of that issue is
dictum—indeed dictum so central to the court’s opinion as to render it nearly advisory. See, e.g.,
Chafin v. Chafin, 568 U.S. 165, 172 (2013).

        I therefore concur only in the judgment.
 No. 16-3855                          United States v. Burris                             Page 33


               _______________________________________________________

                  CONCURRING IN PART AND DISSENTING IN PART
               _______________________________________________________

       COLE, Chief Judge, concurring in part, dissenting in part. Despite growing concerns
regarding mass incarceration, federal law imposes longer prison sentences on certain individuals
deemed “career criminals.” Although a seemingly simple concept, courts across the country
have struggled to determine which crimes qualify as violent offenses under both the ACCA and
the Guidelines. This is one such case.

       Here, the court asks whether a conviction under Ohio’s felonious assault statute qualifies
as a violent-felony predicate under the Guidelines and the ACCA. As the lead opinion notes, in
2012, a panel of this court held that both Ohio felonious assault and aggravated assault qualify as
violent-felony predicates under the ACCA. See United States v. Anderson, 695 F.3d 390, 399–
402 (6th Cir. 2012). But in the time since Anderson was decided, the Supreme Court has
clarified the appropriate analysis for reviewing whether certain convictions qualify as violent
offenses for sentencing enhancements. See Mathis v. United States, 136 S. Ct. 2243, 2248–49
(2016). In light of these developments, we granted en banc review to revisit Anderson. While I
concur in the lead opinion’s holding that Anderson was wrongly decided and should be
overruled, my agreement ends there.

                                                 I.

       The lead opinion states that two analyses must be done in this case:            “One is an
overbreadth analysis to determine whether the statute in question is too broad to categorically
qualify as a violent-felony predicate because it criminalizes more conduct than is described in the
ACCA and Guidelines . . . . The other is a divisibility analysis . . . .” Lead Op. 6. In a footnote,
the lead opinion notes that it expresses “no opinion as to the order in which these two issues
should be addressed in other cases, noting only that in this case, addressing overbreadth first is
the more useful approach.” Lead Op. 11, n.6. I disagree. The Supreme Court has explicitly
stated that the divisibility analysis should be conducted first. See Mathis, 136 S. Ct. at 2256
(“The first task for a sentencing court faced with an alternatively phrased statute is [] to
 No. 16-3855                                 United States v. Burris                                         Page 34


determine whether its listed items are elements or means.”). This makes sense, as the so-called
“overbreadth analysis” is necessarily dependent on the divisibility analysis. I thus struggle to see
how analyzing the statute in its entirety (as if the statute were indivisible) is the more useful
approach. The practical reality of doing so—as Judge Rogers and Judge Kethledge recognize—
is that an opinion can begin to look advisory. With that said, in performing the “overbreadth
analysis,” the lead opinion correctly overrules Anderson and I concur in the stated reasons for
doing so. As a matter of practicality and common-sense, however, and for the reasons described
below, I would conduct the divisibility analysis first, and then turn to the analysis of the statute at
issue.1

                                                          A.

    The Guidelines’ career-offender provision applies a sentencing enhancement if, as relevant
here, the defendant has at least two prior felony convictions of either a “crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). At the time of Burris’s sentencing, the
Guidelines defined a “crime of violence” as any crime punishable by over one-year
imprisonment that:



          1Some   might find it strange to engage in a divisibility analysis when Burris was convicted of an identified
subsection of the felonious assault statute. Why not simply ask whether that subsection satisfies the elements
clause? We must first ask the divisibility question because it tells us whether the identification of the specific
subsection is significant. As explained in Mathis, if the aggravated assault and felonious assault statutes are
divisible, Burris’s conviction of subsection (A)(2) tells us that the jury necessarily found each of the elements of that
subsection. But if the offenses are not divisible, Burris’s conviction of a specific subsection simply tells us the
“brute facts” of his offense, not the elements. Mathis, 136 S. Ct. at 2248 (internal quotation marks omitted). In the
latter case, the situation is analogous to the hypotheticals discussed by the dissenting justices in Mathis—Shepard
documents that unequivocally establish that the defendant was convicted of breaking into a building, not a boat or
tent. Notwithstanding these arguments, the Mathis majority held that if the offense is not divisible, the facts, or
means, are irrelevant. Because the divisibility analysis (see infra pp. 37–42) reveals that Ohio sometimes treats the
aggravated assault and felonious assault offenses as divisible and sometimes treats them as setting forth alternative
means of committing a single offense, the concerns animating the Court’s decision in Mathis are applicable. Indeed,
in Burris’s direct appeal of his felonious assault conviction, the Ohio Court of Appeals erroneously stated,
“Felonious assault under [O.]R.C. 2903.11(A)(2) provides that no person shall knowingly cause serious physical
harm to another,” State v. Burris, No. 24088, 2008 WL 4151321, at *3 (Ohio Ct. App. Sept. 10, 2008), thus
supporting that the Ohio courts sometimes merge or conflate the two subsections and do not consistently treat them
as setting forth distinct offenses. See, e.g., State v. Jackson, No. 82724, 2004 WL 1045402, at *3 (Ohio Ct. App.
May 6, 2004) (holding that “trial court did not err by failing to issue separate instructions” for each subsection
because “the evidence presented in this case was sufficient . . . to find the [defendant] guilty of felonious assault
under either applicable code section”); State v. Chappell, No. 79589, 2002 WL 337726, at *4 (Ohio Ct. App. Feb.
21, 2002) (same).
 No. 16-3855                         United States v. Burris                                Page 35


   (1) Has as an element the use, attempted use, or threatened use of physical force
       against the person of another [“the elements clause”]; or
   (2) is burglary of a dwelling, arson, or extortion, involves use of explosives [the
       “enumerated clause”], or otherwise involves conduct that presents a serious
       potential risk of physical injury to another [“the residual clause”].

U.S.S.G. § 4B1.2(a)(2015).      Two weeks after Burris was sentenced, the Guidelines were
amended and the residual clause was removed. See U.S.S.G. § 4B1.2(a); see also United States
v. Smith, 881 F.3d 954, 959 n.1 (6th Cir. 2018) (“In 2016, the U.S. Sentencing Commission
removed the residual clause and replaced it with a fuller list of enumerated offenses.”).

       In reviewing potential predicate crimes, courts apply “a ‘categorical’ approach to
determine the nature of a prior conviction,” and whether it qualifies as a crime of violence.
United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013). “Under the ‘categorical approach,’
courts must compare the elements of the statute of conviction to the elements of the generic
definition of the offense.” Cradler v. United States, 891 F.3d 659, 667 (6th Cir. 2018) (citing
Taylor v. United States, 495 U.S. 575, 599–600 (1990)). Put another way, if the statute of
conviction criminalizes more conduct than a “crime of violence” as defined by the Guidelines,
then the statute is deemed “overbroad” and the conviction does not qualify as a “crime of
violence” for sentencing enhancement purposes.           See id. (“If the statute of conviction
criminalizes more conduct than the generic definition [in the ACCA], then that conviction is not
the same offense enumerated in the ACCA’s ‘violent felony’ definition” and “is not a violent
felony for ACCA purposes.”). In applying the categorical approach, courts are prohibited from
looking to the particular facts underlying the conviction. See Cradler, 891 F.3d at 667. In other
words, how a defendant actually perpetrated the crime “makes no difference.” Mathis, 136 S. Ct.
at 2251.

       The comparison of elements under the categorical approach involves a straightforward
analysis “when a statute sets out a single (or ‘indivisible’) set of elements to define a single
crime.” Id. at 2248. If a statute is indivisible, a court need only line up the crime’s statutory
elements alongside those of the Guidelines’ elements and see if they match. See id. But, as the
Supreme Court has recognized, some statutes’ structures are more complicated, making the
comparison of elements more difficult. Id. at 2249. At times, a “defendant’s prior conviction is
 No. 16-3855                             United States v. Burris                           Page 36


based on a statute that sets out one or more elements of the offense in the alternative, thereby
defin[ing] multiple crimes.” Cradler, 891 F.3d at 668 (citations and quotations omitted). These
statutes, referred to as “divisible statutes,” add an additional level of analysis for courts when
determining “which set of statutory elements the defendant violated.” Id.

       Mindful of such situations, the Supreme Court has “suggested that courts may need to ‘go
beyond the mere fact of conviction’ and look to the facts underlying a conviction in order to
determine which element or set of elements was the basis of the defendant’s conviction.” Id.
(citing Taylor v. United States, 495 U.S. 575, 602 (1990)). In these circumstances—where a
statute contains multiple alternative elements—the “modified categorical approach” should be
utilized. Mathis, 136 S. Ct. at 2249. Under this approach, a court may look to a limited class of
documents, such as the indictment, jury instructions, or plea agreement, “to determine what
crime, with what elements, a defendant was convicted of.” Id.; see also Descamps v. United
States, 570 U.S. 254, 257 (2013) (“[T]he modified categorical approach permits sentencing
courts to consult a limited class of documents, such as indictments and jury instructions, to
determine which alternative formed the basis of the defendant’s prior conviction.”).

       This court recently explained the interplay of the modified categorical approach and the
categorical approach:

       When we speak of the “modified approach,” we simply refer to this additional
       analytical step in cases involving divisible statutes. After utilizing this additional
       step to determine which elements in the statute formed the basis of the
       defendant’s prior conviction, courts resume their application of the categorical
       approach as they would in any other case. “[T]he modified approach merely
       helps implement the categorical approach when a defendant was convicted of
       violating a divisible statute. The modified approach thus acts not as an exception,
       but instead as a tool. It retains the categorical approach’s central feature: a focus
       on the elements, rather than the facts, of a crime.” [Descamps, 570 U.S.] at 263.

Cradler, 891 F.2d at 668. Put simply, the modified categorical approach is to be used only when
a statute is deemed divisible. See id.

       Thus, despite the lead opinion’s contention to the contrary, whether a statute is divisible
or indivisible is a threshold issue. Id. (quoting Descamps, 570 U.S. at 263).
 No. 16-3855                                 United States v. Burris                                         Page 37


                                                           B.

         As the lead opinion recognizes, this court has never held definitively in a published
opinion whether Ohio’s felonious assault statute is divisible or indivisible. Lead Op. 19. I agree
with the lead opinion that the time has come to provide a clear answer. Regrettably, I disagree
with the answer provided.

         To determine a statute’s divisibility, we look first to state law, and then to the statute
itself—namely the structure and whether statutory alternatives carry different punishments.
United States v. Ritchey, 840 F.3d 310, 318 (6th Cir. 2016). If these sources fail to provide a
definitive answer, we turn to the record of conviction. Id. (citing Mathis, 136 S. Ct. at 2256–57).
Here, the question is whether Ohio’s felonious assault statute lists multiple elements
disjunctively (divisible), or enumerates various factual means of committing a single offense
(indivisible).

         The lead opinion claims that each factor supports a finding of divisibility. I disagree.
The lead opinion acknowledges only the factors supporting divisibility, while conveniently
ignoring other relevant considerations. Importantly, after performing a divisibility analysis, if a
court “still cannot discern whether a statute presents elements or means, the statute is
indivisible.” United States v. Stitt, 860 F.3d 854, 862 (6th Cir. 2017), rev’d on other grounds,
139 S. Ct. 399 (2018) (citing Mathis, 136 S. Ct. at 2257) (emphasis added); see also Shepard v.
United States, 544 U.S. 13, 21 (2005) (noting the “demand for certainty” in the analysis as
required by the Supreme Court in Taylor). The lead opinion acknowledges this demand for
certainty in principle, Lead Op. 19, but fails to apply it in practice.

         The first consideration under Mathis is seemingly dispositive: whether “a state court
decision definitively answers the question.” 136 S. Ct. at 2256. Mathis explained that if a
“ruling of that kind exists, a sentencing judge need only follow what it says.” Id. In State v.
Brown, the Ohio Supreme Court analyzed Ohio’s aggravated assault statute2 and stated that the

         2Because  the aggravated assault statute is nearly identical to the felonious assault statute, the reasoning and
holding in cases analyzing one statute have been found to apply equally to both statutes. See Person v. Sheets,
527 F. App’x 419, 424, n.4 (6th Cir. 2013) (applying Brown’s interpretation of Ohio’s aggravated assault statute to
Ohio’s felonious assault statute because the relevant subdivisions “are identical under both statutes”).
 No. 16-3855                          United States v. Burris                             Page 38


two subdivisions “set forth two means of committing the same offense[.]” 895 N.E.2d 149, 150
(Ohio 2008). The opinion contains additional language suggesting that the statute sets out two
means to commit the same crime. See Brown, 895 N.E.2d at 155 (“these two alternate theories
of aggravated assault”); id. (“these two forms of aggravated assault”); id. at 156 (“subdivisions
(1) and (2) set forth two means of committing the offense”).

       But the ultimate holding of the Ohio Supreme Court was as follows: “the General
Assembly did not intend violations of [O.]R.C. 2903.11(A)(1) and (A)(2) to be separately
punishable when the offenses result from a single act undertaken with a single animus. Thus,
aggravated assault in violation of [O.]R.C. 2903.12(A)(1) and (A)(2) are allied offenses of
similar import.” Id. at 156. The opinion makes clear that the purpose of the “allied offenses of
similar import” inquiry is to prevent a defendant from receiving cumulative sentences for a
single instance of conduct in violation of the Double Jeopardy Clause. Id. at 152; see also
O.R.C. § 2941.25(A) (“Where the same conduct by defendant can be construed to constitute two
or more allied offenses of similar import, the indictment or information may contain counts for
all such offenses, but the defendant may be convicted of only one.”). Thus, while the language
in Brown at least seems to suggest that Ohio’s felonious assault and aggravated assault statutes
contain two means of committing the same offense—making the statutes indivisible—I
recognize the lead opinion’s notion that the context of the case casts some doubt as to whether
the Ohio Supreme Court definitively answered the question as Mathis requires. To say this factor
supports divisibility, though, is misleading, at best.

       A survey of recent Ohio appellate cases similarly fails to provide certainty. It is true that
one could cite—as the lead opinion does—numerous Ohio appellate court decisions that show
that defendants are regularly charged under only one of the two felonious assault subsections, or,
alternatively, under both subsections of the statute separately. See Lead Op. 21. And these cases
certainly lend support to divisibility. But it is equally true that just as many recent Ohio
appellate court cases charge felonious assault as a single crime, without differentiating between
subsections, therefore supporting indivisibility. See, e.g., State v. Perry, No. 17CO0009, __
N.E.3d __, 2018 WL 4677661, at *1 (Ohio Ct. App. September 24, 2018) (defendant indicted on
“one count of felonious assault, a felony of the second degree in violation of [O.]R.C.
 No. 16-3855                         United States v. Burris                             Page 39


2903.11(A)”); State v. Kennedy, No. 8-18-01, 2018 WL 4961487, at *1 (Ohio Ct. App. Oct. 15,
2018) (defendant indicted for felonious assault in violation of O.R.C. § 2903.11(A), without
specifying a subsection); State v. Betters, No. 17AP-901, 2018 WL 4896813, at *1 (Ohio Ct.
App. Oct. 9, 2018) (defendant indicted on “one count of felonious assault in violation of
[O.]R.C. 2903.11”). Indeed, a case currently before this en banc court illuminates this very
principle. See Williams v. United States, 875 F.3d 803 (6th Cir. 2017), reh’g en banc granted,
vacated by 882 F.3d 1169 (6th Cir. 2018) (A grand jury indicted Williams for one count of
felonious assault under § 2903.11, charging that he “knowingly cause[d] serious physical harm
to [the victim] and/or did knowingly cause or attempt to cause physical harm to [victim] by
means of a deadly weapon or dangerous ordnance[.]”) (emphasis added); (R. 39-3, PageID 227).
The conflicting cases demonstrate that this factor cannot “support” divisibility. Any assertion to
the contrary is disingenuous.

       Because I believe no conclusive state court decisions exist, I would next look to the
additional factors as directed by Mathis. One such factor is the punishment delineated in the
statute: “[i]f statutory alternatives carry different punishments, then under Apprendi [v. New
Jersey, 530 U.S. 466, 489 (2000)] they must be elements[,]” as opposed to means. Mathis,
136 S. Ct. at 2256. The lead opinion notes that under O.R.C. § 2903.11(D)(1)(b), a mandatory
prison term is imposed if a defendant commits felonious assault against a “peace officer” who
“suffer[s] serious physical harm.” Lead Op. 22. The lead opinion finds that because the term
“serious physical harm” is found only in subsection (A)(1), the two subsections carry different
punishments, making the statute divisible.

       Yet the two subsections of Ohio felonious assault do not carry different punishments.
It is true that felonious assault on a peace officer carries a mandatory prison term if the officer
suffers “serious physical harm,” but Ohio courts have treated peace-officer felonious assault as
an entirely different crime than ordinary felonious assault.      See, e.g., State v. Mundy, No.
05CA0025-M, 2005 WL 3416186, at *1 (Ohio Ct. App. Dec. 14, 2005) (affirming conviction
that included two counts of peace-officer felonious assault and three counts of ordinary felonious
assault); O.R.C. § 2903.11(D)(1)(a) (specifying that “a violation of division (A)” constitutes a
felony in the first degree if the victim is a peace officer, as opposed to a felony in the second
 No. 16-3855                             United States v. Burris                                   Page 40


degree if the victim is not a peace officer). Ironically, the lead opinion seemingly recognizes that
felonious assault against a peace officer is a separate crime (and felony class), Lead Op. 7, but
fails to recognize this distinction in conducting the divisibility analysis. At base, that peace-
officer felonious assault carries a potentially different punishment in different circumstances
does not mean that punishment for ordinary felonious assault varies based on whether a
defendant is convicted under subsection (A)(1) or subsection (A)(2). A defendant who commits
felonious assault on an average citizen does not face a longer (or a shorter) sentence if the crime
resulted in “serious physical harm” to the victim. Accordingly, I do not see how the punishment
factor supports divisibility.

        Mathis also suggests that “a statute may itself identify which things must be charged (and
so are elements) and which need not be (and so are means).” Mathis, 136 S. Ct. at 2256. The
lead opinion contends that “[e]ach of these statutes on its face appears to be divisible” because
“[e]ach appears to set forth one or more elements of the offense in the alternative, thereby
defining multiple crimes.” Lead Op. 21. The lead opinion fails to provide, however, any
explanation, or cite any case, supporting the idea that the statute is divisible “on its face.” To the
contrary, the statute does not explicitly identify whether the statute lists means or elements,
meaning this factor does not provide a clear answer to the divisibility question.

        With no definitive answer, courts are permitted to “peek at the record documents,” such
as an indictment and correlative jury instructions, for “the sole and limited purpose of
determining whether the listed items are elements of the offense.” Mathis, 136 S. Ct. at 2256–57
(internal brackets and quotations omitted). Here, Burris was specifically charged with O.R.C.
§ 2903.11(A)(2) and not subsection (A)(1), which admittedly could support divisibility. But in
looking at Ohio’s pattern jury instructions, the divisibility analysis is once again muddied. 3 As
the government notes, Ohio’s jury instructions provide alternative instructions for felonious
assault under the (A)(1) and (A)(2) subsections and direct the court to select “the appropriate
alternative.” Ohio Jury Instruc., Part II Crim. Instruc., 503.11(A). Ohio courts, however, do not
require a jury to unanimously choose between the two subsections when charged in a single

       3The jury instructions in Burris’s felonious assault case are not part of the record before this Court.
Consequently, we review Ohio’s jury instructions generally.
 No. 16-3855                                United States v. Burris                                       Page 41


count. See Jackson, 2004 WL 1045402, at *3; Chappell, 2002 WL 337726, at *4. Often courts
have not considered which subsection formed the basis of the juries’ verdicts and instead
affirmed defendants’ convictions because the evidence was sufficient to convict under either
subsection. Id. This treatment of the subsections as alternative means of committing the same
crime is a hallmark of an indivisible statute. See Mathis, 136 S. Ct. at 2249, 2256 (finding state
court decision “definitively answers” the elements or means question when it holds that a jury
need not unanimously decide between two methods of committing the crime).

         As a final aside, I note the parties’ own inconsistencies. The government argued before
the original panel that Ohio’s felonious assault statute was indivisible. (See Gov’t Br. 38–39
(noting that Anderson treated section 2903.11(A) as indivisible and arguing that “Ohio law
confirms that doing so was correct”); id. at 39 (arguing that “under Ohio law, subsections (A)(1)
and (A)(2) of Ohio’s felonious assault statute provide two different means for committing one
crime”); id. at 41 (arguing that “even if Section 2903.11(A) were divisible (which it is not)[,]”
Burris’s claims would still fail).) In its en banc brief, however, the government changed its tune:
“Having conducted a more thorough review of this sentencing concept, the structure of Ohio’s
statute, and the other factors identified in Mathis, the government now agrees with Burris’s
original position that subsection (A)(1) and (A)(2) require proof of different elements and are
divisible.” (Gov’t Supp. Br. 25.)4

         Burris’s position on divisibility has also evolved. In his opening brief before the original
panel he argued that “[b]ecause there are multiple ways to commit felonious assault, this is a
divisible statute.” (Pl. Br. 37.) Then, in his supplemental brief before the en banc court, Burris
stated that his “conviction does not qualify as a crime of violence whether the statute is
indivisible or divisible.”        (Pl. Supp. Br. 23.)          The parties’ inconsistent positions further
demonstrate that the divisibility analysis is far from clear.


         4One   could make a strong argument that the government has forfeited, or maybe even waived, its argument
that Ohio’s felonious statute is divisible. See, e.g., Miller v. Texas Tech Univ. Health Sci. Ctr., 421 F.3d 342, 348–
49 (5th Cir. 2005) (“The maxim is well established in this circuit that a party who fails to make an argument before
either the district court or the original panel waives it for purposes of en banc consideration.”); Ryan v. United
States, 688 F.3d 845, 848 (7th Cir. 2012) (holding that the reason a litigant comes to its decision to not assert an
argument “is irrelevant, and a mistake in reaching a decision to withhold a known defense does not make that
decision less a waiver”).
 No. 16-3855                                United States v. Burris                                       Page 42


        According to Mathis, employing the above tools should make answering the divisibility
question “easy.” Mathis, 136 S. Ct. at 2256. In a case such as this one, though, where the
answer remains uncertain, “Mathis makes [] clear what we must do—or, more precisely, what
we must not do: If state law fails to provide clear answers and the record materials [don’t] speak
plainly, then we won’t be able to satisfy Taylor’s demand for certainty.” United States v.
Degeare, 884 F.3d 1241, 1246 (10th Cir. 2018) (internal quotations omitted) (citing Mathis,
136 S. Ct. at 2257). In other words, we are to presume indivisibility without a clear answer.
Stitt, 860 F.3d at 862 (citing Mathis, 136 S. Ct. at 2257). The lead opinion ignores this
presumption. In the absence of certainty, I believe it would be a fundamental error—not to
mention a miscarriage of justice—to treat a defendant’s prior conviction as a violent-felony
predicate. I would, therefore, hold that the statute is indivisible.

                                                        II.

        Having analyzed divisibility, I would then look to whether Burris’s statute of conviction
qualifies as a “crime of violence” under the elements, enumerated, or residual clauses of the
Guidelines.     As mentioned, the lead opinion performs this analysis first.                     For the reasons
articulated, that approach makes little sense, but I agree that Ohio felonious assault criminalizes
more conduct than is described in both the elements and enumerated clauses of the Guidelines.5
I disagree, however, with the lead opinion’s conclusion that Ohio felonious assault is too broad
to categorically qualify under the Guidelines’ residual clause. Because the lead opinion reviews
the residual clause under an inaccurate standard, it is worth elaborating on the proper analysis.

        The residual clause states that crimes of violence encompass those state convictions that
“otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2 (2015). The government relies on this court’s precedent in United States v.
Perry, which held that Ohio’s aggravated assault statute was a crime of violence under the


        5In  analyzing the enumerated clause, the lead opinion notes that the panel in United States v. Rodriguez,
664 F.3d 1032 (6th Cir. 2011), “did not refer to or analyze Ohio’s statutory definition of ‘serious bodily harm,’ nor
did it perform the divisibility analysis now required by Descamps and Mathis.” Lead Op. 15, n. 15. Confusingly,
the lead opinion ended its discussion there. To the extent the panel’s decision in Rodriguez can be read as finding
that “serious physical harm” as used in Ohio’s aggravated assault and felonious assault statutes requires violence,
rather than note the error as the lead opinion does, I would overrule it.
 No. 16-3855                          United States v. Burris                              Page 43


residual clause of the ACCA. 703 F.3d 906, 910 (6th Cir. 2013). The Perry court held, albeit
with little explanation, that “[b]y its plain terms, [the Ohio aggravated assault statute] proscribes
conduct that presents a serious potential risk of physical injury to another.” Id. at 910 (internal
quotations omitted).    However, the Perry court failed (as did the court in Anderson and
Rodriguez) to recognize that “serious physical harm” is defined in Ohio to include not only
physical harm, but also mental harm. This flaw, however, is not fatal.

       When analyzing a statute under the residual clause, our inquiry differs from that of the
elements and enumerated clause analyses. The inquiry is not—as the lead opinion assumes
without citation, Lead Op. 16— whether it is possible for a defendant to commit a crime in any
way that would not be a violent felony. See United States v. Smith, 881 F.3d 954, 958 (6th Cir.
2018), cert. denied, No. 17-8857, 2018 WL 2163626 (U.S. Oct. 1, 2018). Rather, we ask
“whether the conduct encompassed by the elements of the offense, in the ordinary case, presents
a serious potential risk of [physical] injury to another.” James v. United States, 550 U.S. 192,
208 (2007), overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015)
(emphasis added). Thus, we look at how Ohio courts ordinarily apply the statute in practice.
See Smith, 881 F.3d at 958.

       Of course, we are still left with the essential question: how do we define the “ordinary”
case? The Supreme Court has articulated previously the difficulty of this analysis, albeit in the
context of the ACCA:

       [T]he residual clause leaves grave uncertainty about how to estimate the risk
       posed by a crime. It ties the judicial assessment of risk to a judicially imagined
       “ordinary case” of a crime, not to real-world facts or statutory elements. How
       does one go about deciding what kind of conduct the “ordinary case” of a crime
       involves? “A statistical analysis of the state reporter? A survey? Expert
       evidence? Google? Gut instinct?” United States v. Mayer, 560 F.3d 948, 952
       (C.A.9 2009) (Kozinski, C.J., dissenting from denial of rehearing en banc). To
       take an example, does the ordinary instance of witness tampering involve offering
       a witness a bribe? Or threatening a witness with violence? Critically, picturing
       the criminal’s behavior is not enough; as we have already discussed, assessing
       “potential risk” seemingly requires the judge to imagine how the idealized
       ordinary case of the crime subsequently plays out.
 No. 16-3855                         United States v. Burris                              Page 44


Johnson, 135 S. Ct. at 2557–58. Due to these deficiencies, the Supreme Court ultimately held
that the residual clause of the ACCA violated the Constitution’s guarantee of due process and
overruled James. Id. at 2563. But shortly thereafter, the Supreme Court held that the residual
clause of the Guidelines was still valid, due to the Guidelines’ advisory nature. Beckles v. United
States, 137 S. Ct. 886 (2017).

       In light of Beckles, this court has held that the ordinary-case standard articulated in James
“remains good law for purposes of the Guidelines.” Smith, 881 F.3d at 957 (brackets omitted)
(quoting United States v. Goodson, 700 F. App’x 417, 423 (6th Cir. 2017)); United States v.
Morris, 885 F.3d 405, 412 (6th Cir. 2018) (“Although Johnson abrogated [James] for purposes
of ACCA, the case remains good law for purposes of analyzing the residual clause of the
Guidelines.”). While we question the prudence of this standard (for all the reasons articulated in
Johnson), it is the law of the land. Thus, we must determine whether Ohio felonious assault
involves a “serious potential risk of physical injury” in an “idealized ordinary case of the crime.”
Welch v. United States, 136 S. Ct. 1257, 1262 (2016) (citation omitted); see also Beckles, 137 S.
Ct. at 892.

       Under James, “[t]he mere possibility that a person could, conceivably, commit the
offense without creating a serious risk of physical injury to another is not enough to exclude the
offense from the ambit of the Guidelines’ residual clause.” Goodson, 700 F. App’x at 424; see
also James, 550 U.S. at 208 (“One can always hypothesize unusual cases in which even a
prototypically violent crime might not present a genuine risk of injury[.]”). As the lead opinion
discusses, however, individuals committing felonious assault in Ohio without creating a serious
risk of physical injury to another, is not a mere possibility or a hypothetical. It is a certainty.
Nevertheless, it appears that “ordinary” felonious assault in Ohio likely poses serious risk of
physical injury, sufficient to conclude that O.R.C. § 2903.11 is a crime of violence under the
residual clause of the Guidelines. I therefore disagree with the lead opinion’s conclusion to the
contrary.
 No. 16-3855                        United States v. Burris                             Page 45


                                              III.

       Everyone agrees that we review the district court’s classification of Ohio felonious
assault as a “crime of violence” under the Guidelines for plain error. See Lead Op. 10. But,
because I believe Burris would not be subject to the career-offender enhancement in the absence
of the residual clause—and his sentencing guideline would be significantly lower without the
enhancement—the district court should be given an opportunity to consider Burris’s case in light
of the amendment that eliminated the residual clause just weeks after his sentencing. This court,
as well as courts across the country, have previously exercised the discretion to remand under
similarly unique circumstances. See United States v. Atkinson, 354 F. App’x 250, 254 (6th Cir.
2009) (per curiam); see also United States v. McMillan, 863 F.3d 1053, 1058–59 (8th Cir. 2017);
United States v. Frates, 896 F.3d 93, 102–04 (1st Cir. 2018). I believe we should do so again.

       To be clear, I would not hold that the district court erred—plainly or otherwise. See
Taylor, 648 F.3d at 428–29. But the decision to remand does not hinge solely on a showing of
plain error. United States v. Ahrendt, 560 F.3d 69, 80 (1st Cir. 2009) (“We d[o] not dwell on the
standard of review in our decision to remand for resentencing[.]”). And a remand would serve to
give the district court the opportunity to consider the amendment eliminating the residual
clause—a task that was previously futile under Anderson. Under these circumstances, prudence
dictates that the district court be given that opportunity.     I respectfully dissent from the
affirmance of Burris’s sentence.
