USA v. Gary Leasure
OPINION: the decision of the district court is AFFIRMED, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Circuit Judge; Julia Smith Gibbons, AUTHORING Circuit Judge and Raymond M. Kethledge, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0827n.06
Dec 12, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
GARY J. LEASURE,
LEONARD GREEN, Clerk
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
Before: MARTIN, GIBBONS, KETHLEDGE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Gary Leasure appeals the
sentencing decision of the district court classifying his prior convictions for aggravated burglary and
fourth-degree burglary under Ohio law as violent felonies under the Armed Career Criminal Act
(“ACAA”), 18 U.S.C. § 924(e)(1). For the reasons below, we affirm.
On May 15, 2010, Leasure was at a cookout with friends and was drinking. An individual
stopped by with a shotgun and asked if anyone wanted to buy it. Leasure said that he knew someone
who would buy it and took possession of the shotgun. Soon thereafter, Leasure left with the shotgun
and was arrested by an off-duty police officer who saw him carrying the shotgun behind his back.
Leasure offered no resistance.
United States v. Leasure
On July 27, 2010, Leasure pled guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). Prior to Leasure’s plea, the government notified Leasure that it would seek
to classify him as an armed career criminal under the sentencing enhancement provisions of the
ACCA, 18 U.S.C. § 924(e)(1), and listed the following predicate felonies: (1) aggravated burglary
(two separate counts); (2) fourth-degree burglary; and (3) domestic violence. On the basis of these
predicate felonies, the district judge considered Leasure an armed career criminal and sentenced him
to 180 months of imprisonment, the statutory minimum, plus five years of supervised release. On
appeal, Leasure contests only the government’s reliance upon the aggravated burglary and fourthdegree burglary convictions as predicate felonies; he does not object to the classification of his
domestic violence conviction.
The district court had subject matter jurisdiction over this federal criminal prosecution
pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction to review Leasure’s sentence under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Generally, we review de novo a district court’s determination that a prior conviction qualifies
as a “violent felony” under the ACCA. United States v. Benton, 639 F.3d 723, 729 (6th Cir. 2011).
However, when a party fails to object to application of the ACCA, we review the district court’s
decision for plain error. See United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en
banc). To establish plain error, one must show (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Hunter, 558 F.3d
United States v. Leasure
495, 501 (6th Cir. 2009). Leasure did contest the applicability of the ACCA at sentencing, but only
on the grounds that two of his predicate convictions were void under Ohio law. He did not object
at sentencing to the finding that his predicate convictions qualified as violent felonies under the
ACCA—the argument he now advances on appeal—despite the opportunity to do so. Because
Leasure did not object to the classification of his predicate offenses as violent felonies before the
district court, he failed to “object with that reasonable degree of specificity which would have
adequately apprised the trial court of the true basis for his objection.” United States v. Bostic, 371
F.3d 865, 871 (6th Cir. 2004) (citations and internal quotation marks omitted). In so doing, he failed
to provide the district court “with an opportunity to address the error in the first instance.” See id.
Thus, we review for plain error.
The ACCA provides that a defendant convicted under the felon-in-possession-of-a-firearm
statute, 18 U.S.C. § 922(g), who has three previous convictions for violent felonies or serious drug
offenses, must be sentenced to a minimum of fifteen years of imprisonment. Id. § 924(e). Under
the ACCA, a “violent felony” is “any crime punishable by imprisonment for a term exceeding one
year” that “(i) has as an element the use, attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.” Id. §
924(e)(2)(B) (emphasis added). In determining whether a prior conviction qualifies as a violent
felony, this court applies a “categorical approach” and examines “the statutory definition of the
offense and not the particular facts underlying the conviction.” United States v. Gibbs, 626 F.3d 344,
United States v. Leasure
352 (6th Cir. 2010) (internal quotation marks omitted). If it would be possible to violate the statute
in a way that would constitute a violent felony and in a way that would not, the court may consider
the indictment, guilty plea, or similar documents to determine whether they necessarily establish the
nature of the prior conviction. Id.
Although “burglary” is an enumerated example of a violent felony under 18 U.S.C. §
924(e)(2)(B)(ii), the Supreme Court has distinguished between “generic” and “non-generic” burglary
statutes for sentencing enhancement purposes. Taylor v. United States, 495 U.S. 575, 598–600
(1990). To automatically “qualify as a burglary under ACCA, a defendant’s prior conviction must
be for ‘generic burglary,’” i.e., “‘an unlawful or unprivileged entry into, or remaining in, a building
or other structure, with intent to commit a crime.’” United States v. Holycross, 333 F. App’x 81, 85
(6th Cir. 2009) (quoting Taylor, 495 U.S. at 598). If a defendant’s conviction falls under a nongeneric burglary statute—which is broader than generic burglary and may, for example, include entry
into structures other than buildings or not require criminal intent—it does not automatically qualify
for sentence-enhancement purposes. See Taylor, 495 U.S at 599. The Ohio burglary statute in
question is non-generic, as it was in 1991 when Leasure was convicted of aggravated burglary and
in 2002 when he was convicted of fourth-degree burglary. Holycross, 333 F. App’x at 85; United
States v. Lane, 909 F.2d 895, 902 (6th Cir. 1990).
Nonetheless, a conviction under a non-generic burglary statute, though not automatically
considered a predicate violent felony conviction under the ACCA, may be classified as such if it
“otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii); see United States v. Coleman, 655 F.3d 480, 483 (6th Cir. 2011). To
United States v. Leasure
determine whether a conviction falls within this “otherwise clause,” courts consider “whether the
conduct encompassed by the elements of the offense, in the ordinary case, presents a serious
potential risk of injury to another.” James v. United States, 550 U.S. 192, 208 (2007). In addition,
the risk posed by violating the non-generic burglary statute must be “roughly similar, in kind as well
as in degree,” to the risk posed by generic burglary. Begay v. United States, 553 U.S. 137, 143
Leasure argues that his 2002 fourth-degree burglary conviction should not qualify as a
predicate offense under the “otherwise clause” of the ACCA. Under Ohio law, fourth-degree
burglary is defined as follows: “No person, by force, stealth, or deception, shall . . . (4) [t]respass in
a permanent or temporary habitation of any person when any person other than an accomplice of the
offender is present or likely to be present.” Ohio Rev. Code Ann. § 2911.12(A)(4) (2002).
Under our clear precedent, a fourth-degree burglary conviction under Ohio law is a violent
felony under the ACCA. See United States v. Skipper, 552 F.3d 489, 493 (6th Cir. 2009).2 Leasure
Leasure repeatedly urges that this court, when evaluating the kind and degree of risk, look
to whether the conduct proscribed under the statute is “purposeful, violent, and aggressive.” But the
“phrase ‘purposeful, violent, and aggressive’ has no precise textual link” to the otherwise clause; it
is a “formulation . . . used in [Begay] to explain the result.” Sykes v. United States, 131 S. Ct. 2267,
2275–76 (2011). In light of Sykes, we have held that “the absence of a statutory element requiring
proof of [purposeful, violent, and aggressive] conduct is not by itself a ground for concluding that
an offense is not categorically violent.” See Coleman, 655 F.3d at 484–85 (citing Sykes, 131 S. Ct
at 2275–76). Leasure’s emphasis on this phraseology—instead of the similar-in-kind, similar-indegree inquiry—is accordingly misplaced.
Skipper involved a case under the armed career criminal provisions of the Sentencing
Guidelines, U.S.S.G. § 4B1.1(a). That distinction is unimportant, however, as “[w]hether a
United States v. Leasure
argues that Skipper was incorrectly decided and that other courts have found that certain degrees of
burglary in Ohio do not qualify as violent felonies under the ACCA. See, e.g., United States v.
Lewis, 330 F. App’x 353, 358–64 (3d Cir. 2009). However, Skipper is a published opinion of this
court, and thus cannot be overruled “absent en banc review or an intervening and binding change in
the state of the law.” Bennett v. MIS Corp., 607 F.3d 1076, 1095 (6th Cir. 2010). As there has been
no intervening and binding change in the state of the law, Skipper is determinative and Leasure’s
fourth-degree burglary conviction was properly considered a violent felony under the ACCA.
Leasure also argues that his two aggravated burglary convictions from 1991 should not be
considered violent felonies under the ACCA. Ohio defined aggravated burglary in 1991 as follows:
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure
. . . or in a separately secured or separately occupied portion thereof, with purpose to
commit therein any theft offense, . . . or any felony, when any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance . . . on or about his
person or under his control;
(3) The occupied structure involved is the permanent or temporary habitation of any
person, in which at the time any person is present or likely to be present.
Ohio Rev. Code Ann. § 2911.11 (1991).
Leasure asserts that his two aggravated burglary convictions should not be considered violent
felonies for a host of reasons. He notes that he was convicted under § 2911.11(A)(2) of the
aggravated burglary statute, and that a conviction under that section, unlike § 2911.11(A)(3) of that
conviction is a ‘violent felony’ under the ACCA is analyzed in the same way as whether a conviction
is a ‘crime of violence’ under the United States Sentencing Guidelines.” United States v. McMurray,
653 F.3d 367, 371 n.1 (6th Cir. 2011).
United States v. Leasure
statute or § 2911.12(A)(4) of the fourth-degree burglary statute, does not require that a “person is
present or likely to be present.” He further argues that an “occupied structure” under Ohio law does
not require the actual presence of a person, that the term “deadly weapon” under Ohio law is defined
very broadly and can include commonplace items, and that the term “force” does not necessarily
mean violence. Given these definitions, Leasure contends that the statute does not fall within the
“otherwise clause” of 18 U.S.C. § 924(e)(2)(B)(ii).
Our precedent once again squarely forecloses Leasure’s claims. In Coleman, we analyzed
the Ohio third-degree burglary statute and held that a conviction thereunder qualified as a violent
felony under the “otherwise clause” because it presents a serious risk of physical harm that is similar
in kind and degree to the risk posed by generic burglary. 655 F.3d at 483–84. In so holding, we
expressly rejected many of the arguments that Leasure now advances. See id. Further, the thirddegree burglary statute at issue in Coleman tracks almost verbatim the language of the aggravated
burglary statute at issue here; the only difference is that aggravated burglary includes an additional
element that makes the crime more serious.3 Given Coleman’s holding that third-degree burglary
The relevant portion of the Ohio third-degree burglary statute analyzed in Coleman provides
that “[n]o person, by force, stealth or deception, shall . . . [t]respass in an occupied structure or in
a separately secured or separately occupied portion of an occupied structure, with purpose to commit
in the structure or separately secured or separately occupied portion of the structure any criminal
offense . . . .” Ohio Rev. Code Ann. § 2911.12(A)(3) (2002). The relevant portion of the 1991 Ohio
aggravated burglary statute provides that “[n]o person, by force, stealth, or deception, shall trespass
in an occupied structure . . . or in a separately secured or separately occupied portion thereof, with
purpose to commit therein any theft offense, . . . or any felony, when any of the following [elements]
apply . . . .” Ohio Rev. Code Ann. § 2911.11(A) (1991). These elements are that the defendant
inflict or attempt to inflict physical harm, carry a dangerous weapon, or enter into a habitation where
a person is or is likely to be present. Id. § 2911.11(A)(1)–(3).
United States v. Leasure
in Ohio was a violent felony under § 924(e)(2)(B)(ii), it easily follows that the charge here—for the
more serious crime of aggravated burglary—also qualifies. Accordingly, Leasure’s 1991 aggravated
burglary convictions were properly considered violent felonies under the “otherwise clause” of the
Leasure finally asserts that his case should be remanded pursuant to Shepard v. United States,
544 U.S. 13 (2005). As explained above, both fourth-degree burglary and aggravated burglary
qualify as violent felonies under the “otherwise” clause contained in § 924(e)(2)(B)(ii), and it is
therefore not necessary that the district court hold a Shepard hearing.
For the reasons above, we affirm the decision of the district court.
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