USA v. Abdul Glover

Filing

OPINION filed : The sentence imposed by the district court is AFFIRMED, decision not for publication. Gilbert S. Merritt, Circuit Judge; Deborah L. Cook, Circuit Judge and David W. McKeague, Circuit Judge (Authoring).

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0136n.06
Case No. 16-3775

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
ABDUL GLOVER,
Defendant-Appellant.

Mar 03, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION

BEFORE: MERRITT, COOK, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. In April of 2016, Abdul Glover pled guilty to one count
of felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court determined that Glover qualified for an enhanced sentence under the Armed Career
Criminal Act (ACCA) because he had three convictions for ACCA predicate offenses. The
result was a mandatory minimum sentence of 180 months’ imprisonment. Glover appeals,
asserting that the district court erred by counting his 1996 conviction for “Assault on a Peace
Officer” as an ACCA predicate offense. For the following reasons, we affirm Glover’s sentence.
I
The relevant facts are straightforward. In 2016, Abdul Glover pled guilty to felonious
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His presentence investigation
report identified offenses in Glover’s criminal history as ACCA predicate offenses. With three

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predicates, the report classified Glover as an “armed career criminal” subject to an increased
minimum sentence. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4. Over Glover’s objection, the
district court adopted the classification and imposed the minimum—fifteen years’ imprisonment.
This appeal challenges that sentence. Glover does not contest that two of his prior
convictions, Delivery of Cocaine and Conspiracy to Possess Cocaine, qualify as predicate
offenses under the ACCA. See R. 87, PSR, PID 85, 86.

Instead, the only issue on appeal is

whether the district court erred by determining that Glover’s 1996 conviction for “Assault on a
Peace Officer” in violation of § 2903.13 of the Ohio Revised Code qualifies as a “violent felony”
under the ACCA. 18 U.S.C. § 924(e)(1). We review that determination de novo. United States
v. Evans, 699 F.3d 858, 862 (6th Cir. 2012).
II
The ACCA mandates a minimum sentence of fifteen years’ imprisonment for an offender
with three previous convictions for “a violent felony or a serious drug offense, or both.”
18 U.S.C. §924(e)(1). “[V]iolent felony” means any crime punishable by more than one year
imprisonment that “has as an element the use, attempted use, or threatened use of physical force
against the person of another,” or is one of four enumerated offenses. 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii); see also Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) (finding
the ACCA’s residual clause to be unconstitutionally vague). Because it is not an enumerated
offense, “Assault on a Peace Officer” qualifies as a violent felony only if it includes “as an
element” the use of “physical force.” See 18 U.S.C. § 924(e)(2)(B)(i)-(ii); U.S.S.G. § 4B1.4.1
“Physical force” 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) (emphasis in
1

The meaning of “violent felony” as used in § 4B1.4 of the Sentencing Guidelines is derived from 18
U.S.C. § 924(e)(2). See U.S.S.G. § 4B1.4, n.1.

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original). In order to determine whether an offense requires such “physical force,” we look to
the underlying state law defining the offense. See, e.g., United States v. Priddy, 808 F.3d 676,
685–86 (6th Cir. 2015); Evans, 699 F.3d 858, 862 (6th Cir. 2012).
Under Ohio law, assault on a peace officer is a related offense to the state’s general
“assault” offense, which makes it unlawful for a person to “knowingly cause or attempt to cause
physical harm” to another. Ohio Rev. Code § 2901.01(A)(1). An assault constitutes a fourthdegree felony if, as with Glover’s conviction, the victim is a peace officer. Id. at § 2903.13; (R.
18, PSR, PID 83–84). Ohio law defines “physical harm” as “any injury, illness, or other
physiological impairment, regardless of its gravity or duration.”

Ohio Rev. Code

§ 2901.01(A)(3). Glover asserts that this broad language prohibits conduct that does not qualify
as “violent force,” and so his conviction cannot be classified as a violent felony under the ACCA.
See Johnson, 559 U.S. at 140.
But this is not the first time this court has considered Ohio’s assault on a peace officer
statute as it relates to the meaning of “physical harm.” See Evans, 699 F.3d 858. There, two
years after Johnson defined physical force under the ACCA, the court made clear that a
conviction under Ohio’s assault on a peace officer offense requires “physical force” as the phrase
is used in U.S.S.G. § 4B1.2:
One can knowingly cause or attempt to cause physical harm—i.e., physical
injury—to another only by knowingly using or attempting to use physical force—
i.e., force capable of causing physical injury. Conviction under the Ohio statute,
§ 2903.13(A), therefore, necessarily requires proof that a defendant knowingly
used, or attempted to use, physical force capable of causing physical pain or
injury and, accordingly, qualifies as a crime of violence under [U.S.S.G.]
§ 4B1.2(a)(1).
Evans, 699 F.3d at 863.

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Ordinarily, our analysis would stop there. Whether a conviction is a “crime of violence”
in § 4B1.2(a) of the Sentencing Guidelines is subject to the same analysis as whether a
conviction is a “violent felony” under the ACCA. United States v. McMurray, 653 F.3d 367, n.1
(6th Cir. 2011). Accordingly, because Evans concluded that a conviction under Ohio Rev. Code
§ 2903.13 constitutes a crime of violence under U.S.S.G. § 4B1.2(a), such a conviction
necessarily qualifies as a violent felony under the ACCA. And we are bound to follow a prior
published decision, like Evans, absent either en banc reconsideration or an inconsistent decision
by the U.S. Supreme Court. See United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014).
But Glover asserts we are not bound by Evans because the decision “rests on flawed
reasoning and is no longer good law” in light of the Supreme Court’s decision in United States v.
Castleman, 134 S.Ct. 1405 (2014). (Appellant’s Br. at 8.) He argues that Castleman, which
interpreted “physical force” as used to define “misdemeanor crime of violence,” 18 U.S.C.
§ 921(a)(33)(A), invalidates Evans by further limiting what constitutes “physical force” in the
violent felony context, 18 U.S.C. § 924(e)(2)(B).
His argument is meritless. In Castleman, the Court did not in any way reconsider the
meaning of “physical force” as used in 18 U.S.C. § 924(e)(2)(B). Instead, the Court held that,
despite what the phrase may mean in the violent-felony section of the Code, it has a different
meaning and covers more conduct in § 921(a)(33)(A)’s domestic violence context.

See

Castleman 134 S.Ct. at 1412, n.4. Indeed, the Court made clear that it was not casting doubt on
Courts of Appeals decisions that had interpreted § 924(e)(2)(B) more narrowly than it was
interpreting § 921(a)(33)(A). See id. In essence, Glover relies on Castleman in an attempt to relitigate what this court already decided in Evans. But there is nothing in Castleman that
abrogates or invalidates Evans or its reasoning.

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Thus, we repeat what this circuit has already decided: a conviction under “Ohio Rev.
Code § 2903.13(A) requires a showing that the defendant knowingly caused or attempted to
cause a physical injury [which] necessarily has as an element the knowing use or attempted use
of physical force against another and thus categorically qualifies as a crime of violence under
§ 4B1.2(a)(1).” Evans, 699 F.3d at 864.
III
Because Castleman did not alter our holding in Evans, we need not consider Glover’s
arguments that it was wrongly decided. Those arguments rely on state court interpretations of
Ohio’s law that existed at the time Evans was decided, e.g., State v. Weiss, 2010 WL 3722275, at
*2 (Ohio Ct. App. 2010), and fail to consider more recent opinions confirming that the assault on
a peace officer offense requires more than offensive touching, e.g., State v. Sepulveda, 2016 WL
5873905 (Ohio Ct. App. 2016) (spitting on a police officer did not violate Ohio Rev. Code
§ 2903.13). Further, Glover’s insistence that In re: Williams, No. 16-3411 (6th Cir. Oct 27,
2016) calls for us to reassess Evans is unavailing. The Williams court agreed with Evans that a
conviction for “assault on a peace officer fall[s] squarely under the elements clause” and nothing
else in the opinion casts doubt on Evans.
Likewise, Glover’s reliance on Descamps v. United States, 133 S. Ct. 2276 (2013) is
misplaced.

That decision helped clarify the proper analysis when determining whether an

offense qualifies as one of ACCA’s so-called “enumerated” predicate offenses. Id. at 2283. But,
as Evans shows, Glover’s conviction for assault on a peace officer qualifies as an ACCA
predicate because it has as an element, “the use of physical force against another person.”
18 U.S.C. § 924(e)(2)(B); Evans, 699 F.3d at 863. Descamps does nothing to change that
analysis; Glover’s argument to the contrary fails.

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IV
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.

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