USA v. Antonio Rodriguez
OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. Martha Craig Daughtrey, Karen Nelson Moore, Jane Branstetter Stranch (AUTHORING), Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0321p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-3867
ANTONIO B. RODRIGUEZ,
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 05-00434-001—David D. Dowd, Jr., District Judge.
Argued: June 8, 2011
Decided and Filed: December 21, 2011
Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.
ARGUED: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant. Daniel J. Riedl, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Jeffrey B. Lazarus,
FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Daniel
J. Riedl, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
JANE B. STRANCH, Circuit Judge. Antonio Rodriguez appeals the district
court’s sentence imposed under the career offender guideline. He argues that the district
court should not have counted as predicate offenses any of the Ohio felony convictions
listed in the Presentence Report (PSR).
United States v. Rodriguez
We conclude that Rodriguez’s felony conviction in Ohio for aggravated assault
qualifies as a crime of violence under the career offender guideline. We also conclude
that Rodriguez may not collaterally attack in this appeal his felony conviction in Ohio
for felonious assault. Because these two prior crimes of violence support the district
court’s finding of career offender status, we AFFIRM the sentence.
I. PROCEDURAL HISTORY
A grand jury indicted Rodriguez in 2005 for aiding and abetting possession with
intent to distribute 500 grams or more of a substance containing a detectable amount of
cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Rodriguez pleaded
guilty to the charge pursuant to a written plea agreement with the Government. The plea
agreement stated that the parties believed Rodriguez qualified for sentencing under the
career offender guideline, USSG § 4B1.1 (Nov. 2004). Rodriguez reserved his right to
appeal the sentence imposed.
In preparing the PSR, the probation officer applied the career-offender guideline,
noting that Rodriguez’s criminal history included prior felony convictions for aggravated
robbery and aggravated assault in Ohio in 1995, as well as a prior felony conviction for
felonious assault in Ohio in 1999.1 With a total adjusted offense level of 34 and a
criminal history category of VI, the applicable guideline range was 262 to 327 months.
Rodriguez did not file any objections to the PSR.
At sentencing, the district court adopted the guideline calculation in the PSR.
The Government then moved under USSG § 5K1.1 for a four-level downward departure
to reward Rodriguez for his substantial assistance. The district court granted a six-level
reduction, which lowered the offense level to 28 and the applicable guideline range to
140 to 175 months. The district court sentenced Rodriguez to serve 144 months of
In assigning three criminal history points to the 1999 conviction for felonious assault, the
probation officer specified that additional counts for aggravated burglary and having weapons under
disability were dismissed. PSR ¶ 36.
Rodriguez argues for the first time on appeal that the 1995 conviction for aggravated robbery was
also dismissed. PSR ¶ 32. He filed a motion asking this Court to take judicial notice of his state criminal
records. The motion is denied. Because Rodriguez qualified for career offender status due to his prior
felony convictions for aggravated assault and felonious assault, we need not consider whether he was
convicted of aggravated robbery in 1995.
United States v. Rodriguez
imprisonment and eight years of supervised release. Rodriguez did not object to the
sentence as imposed.
A. Standard of Review
We review de novo whether Rodriguez’s Ohio felony conviction for aggravated
assault qualifies as a “crime of violence” under the career offender guideline because the
Government has not asked us to apply the plain-error standard in light of Rodriguez’s
failure to object below. See Appellee’s Br. at 12; United States v. Williams, 641 F.3d
758, 763–64 (6th Cir. 2011) (declining to apply plain-error standard where Government
did not request its application); United States v. Wynn, 579 F.3d 567, 570 (6th Cir. 2009)
(stating de novo standard ordinarily applies to determination whether an offense is a
“crime of violence”).
The parties agree that the plain-error standard applies to Rodriguez’s second
argument, also raised for the first time on appeal, that his Ohio felony conviction for
felonious assault was void ab initio and could not support sentencing under the career
offender guideline. Rodriguez must show (1) an error; (2) the error was plain; and
(3) the error affected substantial rights. See United States v. Richards, 659 F.3d 527, 546
(6th Cir. 2011). If these three conditions are met, this Court may exercise its discretion
to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. (citations and internal quotation marks
B. The Ohio aggravated assault conviction is a “crime of violence”
To qualify as a career offender, a defendant must be at least eighteen years of
age, the instant offense must be a felony that is either a “crime of violence” or a
controlled substance offense, and the defendant must have “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” USSG
§ 4B1.1(a). A “crime of violence” is defined as:
United States v. Rodriguez
any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, thatS
has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
USSG § 4B1.2(a). The crime of “aggravated assault” is one of the enumerated “crimes
of violence” listed in Application Note 1 to USSG § 4B1.2. In listing the enumerated
“crimes of violence,” the guideline does not distinguish between degrees of offenses.
See United States v. Wood, 209 F.3d 847, 850 (6th Cir. 2000). Application Note 1
further provides that a non-enumerated offense is a “crime of violence” if “(A) that
offense has as an element the use, attempted use, or threatened use of physical force
against the person of another, or (B) the conduct set forth (i.e. expressly charged) in the
count of which the defendant was convicted involved use of explosives . . . or, by its
nature, presented a serious potential risk of physical injury to another.”
To determine the nature of a prior conviction, this Court applies a “categorical”
approach, looking to the statutory definition of the crime of conviction and not the facts
underlying that conviction. United States v. Ruvalcaba, 627 F.3d 218, 221 (6th Cir.
2010). The Court does not concern itself with how a defendant may have committed the
crime on a specific occasion, but rather considers the offense generically to examine how
the law defines the offense. Id.
Under this Court’s interpretation of § 4B1.2 and its commentary, a prior felony
conviction can qualify as a “crime of violence” in one of three ways: (1) the conviction
is one of the crimes specifically enumerated in Application Note 1 to the career offender
guideline; (2) if not specifically enumerated, the crime has as an element the use,
attempted use, or threatened use of physical force; or (3) if the offense is not specifically
enumerated or does not include physical force as an element, the crime involved conduct
posing a serious potential risk of physical injury to another person. Id. (citing United
States v. Wilson, 168 F.3d 916, 927 (6th Cir. 1999)). This Court recently indicated that
United States v. Rodriguez
the term “aggravated assault” in the commentary to § 4B1.2 refers to “generic
aggravated assault.” United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010).
“Generic aggravated assault” is especially difficult to define because many states
categorize assault in degrees rather than by use of the terms “simple” or “aggravated,”
and “because some states still retain the common law distinction between assault and
battery.” Id. at 716–17. Under the Model Penal Code, a defendant is guilty of
aggravated assault “if he ‘(a) attempts to cause serious bodily injury 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 injury to another with a deadly weapon.” Id. at 717 (quoting
Model Penal Code § 211.1(2)).
The Ohio fourth-degree aggravated assault statute at issue in this case, Ohio Rev.
Code § 2903.12, tracks the Model Penal Code formulation of aggravated assault, except
that the Ohio statute does not permit conviction for reckless conduct under
circumstances manifesting extreme indifference to the value of human life. See No. CR06-219-S-BLW, 2007 WL 4125785, at *3 & App’x (D. Idaho Nov. 16, 2007) (noting
Ohio is among thirty-one state jurisdictions that do not permit reckless conduct to
support an aggravated assault charge, citing Ohio Rev. Code § 2903.12), aff’d 557 F.3d
1019 (9th Cir. 2009). The Ohio statute is distinguishable from that in McFalls, because
there we determined that South Carolina’s common-law crime of assault and battery of
a high and aggravated nature did not categorically qualify as a “crime of violence”
because the offense included actions taken recklessly rather than intentionally. McFalls,
592 F.3d at 716.
By contrast to the offense discussed in McFalls, the Ohio aggravated assault
statute requires that the defendant act “knowingly.” Ohio Rev. Code § 2903.12(a). The
(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:
United States v. Rodriguez
(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.
Under Ohio Revised Code § 2901.22(B),
[a] person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.
Acting with knowledge “corresponds loosely with the concept of general intent[,]” while
acting purposefully “corresponds loosely with the common-law concept of specific
intent.” United States v. Bailey, 444 U.S. 394, 405 (1980). In unpublished cases, the
Ohio Court of Appeals has recognized that aggravated assault requires a knowing and
intentional act, State v. Murnahan, No. CA 1824, 1980 WL 354050, at *7 (Ohio Ct. App.
1980), and that Ohio statutory law categorizes aggravated assault as an “offense of
violence.” State v. Hernandez, No. 05AP-326, 2005 WL 3073371, at *1 (Ohio Ct. App.
2005) (citing Ohio Rev. Code § 2901.01(A)(9)(a)). This Court is bound by the Ohio
courts’ interpretation of its own state law, including the elements of a crime, although
whether an offense is a “crime of violence” under the career offender guideline is a
question of federal law. See Johnson v. United States, 130 S. Ct. 1265, 1269 (2010).
Because Ohio’s fourth-degree aggravated assault statute, § 2903.12, requires
knowing and intentional conduct, a felony conviction under § 2903.12 qualifies as an
enumerated “crime of violence” under Application Note 1 to USSG § 4B1.2 for purposes
of applying the career offender guideline. We reached the same conclusion in United
States v. Calloway, 189 F. App’x 486, 491 (6th Cir. 2006), where we held that Ohio’s
aggravated assault offense is a “crime of violence” for purposes of applying the career
offender guideline because it is an enumerated crime.
The Calloway court also commented, however: “There is no question that
causing or attempting to cause physical harm presents a serious risk of physical injury
to another under section 4B1.2(a)(2)[.]” Id. Section 4B1.2(a)(2) is the residual clause
United States v. Rodriguez
of the career offender guideline, which provides that an offense is a “crime of violence”
if it “otherwise involves conduct that presents a serious potential risk of physical injury
to another.”2 Because the Calloway court determined that aggravated assault was an
enumerated crime under the career offender guideline, under Wood the Court had no
need to resort also to the residual clause to decide the case. The residual clause is
pertinent only if the crime in question is not enumerated under the guideline and the
crime does not have as an element the use, attempted use, or threatened use of force. See
Wood, 209 F.3d at 850; United States v. Smith, 395 F. App’x 223, 234–35 (6th Cir.
2010) (following Wood to hold that attempted kidnaping is a “crime of violence”
because kidnaping is enumerated in the commentary to the career offender guideline and
the commentary further provides that an attempt to commit an enumerated crime is also
a “crime of violence”).
Rodriguez reminds us that, after Calloway, the Supreme Court issued its opinion
in Begay v. United States, 553 U.S. 137 (2008). In that case, the Supreme Court
examined whether a state conviction for driving under the influence (DUI) qualified as
a “violent felony” under the residual clause of the ACCA. Begay, 553 U.S. at 142–48.
The Court concluded that DUI is not a “violent felony” under the residual clause because
the offense is too dissimilar from the ACCA’s enumerated crimes of burglary, arson,
extortion, and offenses involving explosives, which typically involve “purposeful,
‘violent,’ and ‘aggressive’ conduct.” Id. at 144–45, 148. DUI, by comparison, is a
strict liability crime, requiring no criminal intent and no purposeful or deliberate conduct
at all.3 Id. at 145.
Taking a cue from Begay, Rodriguez argues that a conviction under Ohio’s
aggravated assault statute does not constitute a “crime of violence” under the career
This clause is identical to the residual clause of the Armed Career Criminal Act (ACCA).
18 U.S.C. § 924(e)(2)(B)(ii).
The Supreme Court recently retreated from Begay’s “purposeful, violent, and aggressive”
standard, noting it had no “precise textual link to the residual clause” and was an addition to the statutory
text. Sykes v. United States, 131 S. Ct. 2267, 2275 (2011). Where a felony “is not a strict liability,
negligence, or recklessness crime” and is categorically similar in risk to the ACCA’s listed offenses, the
crime satisfies the ACCA residual clause and qualifies as a “violent felony.” Id. at 2276.
United States v. Rodriguez
offender guideline because the statute does not require purposeful, violent, and
aggressive conduct. We reject this argument for several reasons.
First, while we may apply an ACCA case like Begay to our analysis of whether
an offense is a “crime of violence” under the career offender guideline, see United States
v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir. 2011), Begay was decided under the
residual clause, and we need not reach the residual clause to resolve this case. As we
have explained, Rodriguez’s conviction counts as a “crime of violence” because
aggravated assault is one of the enumerated crimes of violence listed in Application Note
1 to the career offender guideline and the offense requires knowing and intentional
conduct. See Wood, 209 F.3d at 850; Murnahan, 1980 WL 354050, at *7. Cf. McFalls,
592 F.3d at 716. Under Wood, our analysis is complete. We need not consider whether
the crime has as an element the use, attempted use, or threatened use of force, cf.
McMurray, 653 F.3d at 374 n.6 (questioning, but not deciding, whether physical force
is an element of Tennessee’s aggravated assault offense where the statute can be violated
by causing serious bodily injury), 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.” See Wood, 209 F.3d at 850.
Second, we have already shown that a defendant cannot be convicted of
aggravated assault in Ohio unless the prosecutor proves the defendant acted knowingly
and intentionally. The mens rea required by Ohio Rev. Code § 2903.12 is equivalent to
the mens rea
of the offenses enumerated under the career offender guideline.
Aggravated assault is thus unlike DUI. Cf. Begay, 553 U.S. at 148.
Third, Rodriguez concedes that § 2903.12 “does require violence,” in light of the
statute’s provision that the offender “cause serious physical harm or physical harm by
means of a deadly weapon.” Appellant’s Br. at 22. But he argues that provocation is an
element of Ohio’s aggravated assault crime, and the presence of this element strips the
offense of the purposeful and aggressive conduct contemplated by Begay. We do not
United States v. Rodriguez
In Ohio, provocation is not an element of aggravated assault that must be proved
by the prosecution. “[A]ggravated assault is the same conduct as felonious assault but
its nature and penalty are mitigated by provocation.” State v. Miller, No. 10A–632, 2011
WL 743226, at *6 (Ohio Ct. App. Mar. 3, 2011). The elements of felonious assault and
aggravated assault are exactly the same. Id. To mitigate felonious assault to aggravated
assault, the defendant must affirmatively prove by a preponderance of the evidence
either sudden passion or sudden fit of rage brought on by the victim’s serious
provocation reasonably sufficient to incite the defendant into using deadly force. Ohio
Rev. Code § 2901.05; State v. Deem, 533 N.E.2d 294, 299–300 (Ohio 1988) (concerning
provocation in aggravated assault); State v. Rhodes, 590 N.E.2d 261, 265 (Ohio 1992)
(examining same provocation language in voluntary manslaughter statute mitigating
murder); State v. Shane, 590 N.E.2d 272, 276–79 (Ohio 1992) (same); Rhodes v.
Brigano, 91 F.3d 803, 810–11 (6th Cir. 1996) (holding Ohio’s statutory scheme
requiring defendant to prove provocation does not violate due process). Under these
authorities, Rodriguez’s position is legally erroneous, so we will not adopt it.
For all of these reasons, we hold that Ohio’s fourth-degree aggravated assault
statute, Ohio Rev. Code § 2903.12, qualifies as a “crime of violence” and the district
court did not err in considering Rodriguez’s aggravated assault conviction as a predicate
offense when applying the career offender guideline.
Rodriguez may not collaterally attack his felonious assault conviction in this
Rodriguez has not developed an argument that his 1999 Ohio felonious assault
conviction does not qualify as “crime of violence.” Instead, he argues that this
conviction was void ab initio because the state trial court did not properly advise him at
sentencing of his post-release control obligations. See Ohio Rev. Code §§ 2929.19;
2967.28. Because the conviction is void, Rodriguez reasons, the district court could not
rely on it as a predicate offense to apply the career offender guideline. Rodriguez fails
to meet the plain error standard to prevail on this argument.
United States v. Rodriguez
In Custis v. United States, 511 U.S. 485, 497 (1994), the Supreme Court held
that the ACCA does not permit a defendant to use the federal sentencing forum to gain
collateral review of state convictions, except for those that were uncounseled. This
Court subsequently applied Custis to the federal sentencing guidelines. See United
States v. Bonds, 48 F.3d 184, 186 (6th Cir. 1995). Our Court also followed Custis to
resolve the same issue Rodriguez raises here–that a prisoner may not utilize the federal
sentencing proceeding to mount a collateral attack on his Ohio sentence as void ab initio
due to the state trial court’s failure to comply with statutory requirements for imposing
post-release control. United States v. Aguilar-Diaz, 626 F.3d 265, 269–71 (6th Cir.
2010). These cases direct the outcome of this case. We must reject Rodriguez’s
improper attempt to attack collaterally his felonious assault conviction in his federal
Rodriguez asserts that there is no longer available to him a channel to obtain state
court review of his felonious assault conviction, citing Daniels v. United States, 532 U.S.
374, 383 (2001). But we discounted a similar argument in Aguilar-Diaz, noting that the
defendant at one time had the opportunity to challenge the prior sentence, and that the
defendant could also obtain court review if he was incorrectly placed on post-release
control following release from prison. 626 F.3d at 270–71. Rodriguez’s argument fails
for the same reasons.
As to this issue, Rodriguez has not shown plain error warranting reversal. The
district court did not err in relying on the felonious assault conviction as a predicate
offense under the career offender guideline.
The Ohio aggravated assault conviction constitutes a “crime of violence” for
purposes of applying the career offender guideline. Rodriguez’s collateral attack on his
Ohio felonious assault conviction is prohibited by Custis and Aguilar-Diaz. Based on
these two prior felony “crimes of violence,” the district court properly sentenced
Rodriguez as a career offender. Accordingly, we AFFIRM.
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