The Sixth Circuit Once More Analyzes Whether Ohio State Law Convictions Are “Crimes Of Violence” Under The Guidelines

The Sixth Circuit waded once more into the question of whether state convictions qualified as crimes of violence under U.S.S.G. § 2K2.1(a)(2) in United States v. Johnson. At issue were convictions under Ohio law for robbery and for complicity to commit aggravated robbery.
The defendant, Lawrence Johnson, was convicted of one count of being a felon in possession of a firearm. He had at least four prior felony convictions in Ohio, in 1982 for attempted robbery, for robbery in 1983 and in 1997, and in 2005 for complicity to commit aggravated robbery. A prior appeal had successfully vacated a district court finding that Johnson was subject to the Armed Career Criminal Act and a statutory minimum sentence of 15 years. United States v. Johnson, 708 Fed.Appx. 245 (6th Cir. 2017). On remand, however, the district court determined that the 1997 robbery conviction, which was under a different statutory subsection than the 1983 robbery conviction, and the 2005 conviction for complicity to commit aggravated robbery did constitute “crimes of violence” under the guidelines, a finding that increased his base offense level. A sentence of 71 months, one at the top end of guidelines range, was imposed and appealed.   
The Sixth Circuit held that the 1997 robbery conviction qualified as a “crime of violence” because the relevant statute, ORC § 2911.02(A)(2), “requires violent force, that is, force capable of inflicting pain or injury.” This requirement was drawn from Johnson v United States, 559 U.S. 133, 141-42 (2010), where the Supreme Court defined “physical force” under the ACCA to mean “force capable of causing physical pain or injury to another person” and the incorporation of that definition for guidelines analysis by the Sixth Circuit in United States v. Evans, 699 F.3d 858, 863 (6thCir. 2012), abrogated on other grounds by United States v. Havis, 927 F.3d 382 (6th Cir. 2019)(en banc)(per curiam). Furthermore, the court noted that a conviction driven by a reckless use of force could still qualify as a crime of violence.
The Sixth Circuit also held that the 2005 conviction for complicity to commit aggravated robbery qualified as a crime of violence. First, the court noted a prior decision, United States v Patterson, 853 F.3d 298 (6th Cir. 2017) holding that an Ohio conviction for aggravated robbery under the relevant statutory subsection qualified as a crime of violence under the ACCA and, therefore, also under the guidelines. The real question was whether the conviction “of complicity to commit aggravated robbery makes a difference.”
This Sixth Circuit noted that Ohio law equated complicity with aiding or abetting another in committing the offense and that the underlying substantive offense “must have been either attempted or completed for a complicity conviction to stand.” Since the underlying offense, aggravated robbery, included the element of “use, attempted use, or threatened use of physical force” a conviction for complicity likewise included that element.
As a final point, the Sixth Circuit rejected Johnson’s argument “that the guidelines commentary is what brings [his] aiding and abetting offense” in as a “crime of violence” under § 4B1.2(a) of the guidelines. Indeed, the commentary does advise that a crime of violence “includes ‘the offenses of aiding and abetting.’” U.S.S.G. § 4B1.2, Application Note 1 (2015). But this, as the court noted, was of no matter and the en banc court’s caution in United States v. Havis about over-reliance on guidelines commentary immaterial because the “express text” of § 4B1.2(a) compelled the result.