UNITED STATES v. FINLEY (2017)

ORDER

Russell Lee Finley, a federal prisoner proceeding through counsel, appeals his designation as a career offender under United States Sentencing Guideline § 4B1.1. The parties have waived oral argument, and this panel unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In April 2015, Finley pleaded guilty to two counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and one count of bank robbery, in violation of 18 U.S.C. § 2113. The presentence report calculated his guidelines range of imprisonment of 151 to 188 months. Finley was also determined to be a career offender, USSG § 4B1.1, based on prior robbery convictions in Ohio and Tennessee.

In June 2015, the Supreme Court decided Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), holding that the residual clause of the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. In light of Johnson, Finley objected to his designation as a career offender, arguing that his 2000 Ohio conviction for robbery did not qualify as a predicate offense under the career-offender Guideline because it was not an enumerated offense, it did not require the use of violent force, and it could not be counted under the residual clause of the Guidelines, which was similar to the newly-invalidated residual clause of the ACCA. After consideration of the objections, the Probation Officer determined that Finley’s 2000 robbery conviction qualified as a predicate offense, noting that we had already determined that the infliction or attempted infliction of physical harm constituted the use of force. See United States v. Evans, 699 F.3d 858, 862 (6th Cir. 2012). The district court overruled Finley’s objection, concluding that robbery under Ohio Revised Code § 2911.01(A)(2) required the use of force. The district court subsequently imposed a term of imprisonment of 156 months.

Finley now appeals. He argues that Ohio robbery does not require the type of violent force that is contemplated under the use-of-force clause of the career-offender Guideline and that it does not qualify as an enumerated offense.

Although Finley’s appellate waiver arguably precludes his appeal, he was nevertheless properly sentenced as a career offender. We review de novo whether a prior conviction constitutes a crime of violence. Evans, 699 F.3d at 862. The Sentencing Guidelines increase the sentencing range of a defendant who has “at least two prior felony convictions of ․ a crime of violence or a controlled substance offense.” USSG § 4B1.1(a). “[A]ny offense under federal or state law” for which an offender can be imprisoned for more than one year is a crime of violence if it (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (use-of-force clause). USSG § 4B1.2(a)(1).

For an offense to qualify under this clause, the Supreme Court has held that it must involve “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Finley was convicted of robbery in Ohio under § 2911.02(A)(2), which prohibits a person, by attempting or committing a theft offense, to “inflict, attempt to inflict, or threaten to inflict physical harm on another.” Ohio Rev. Code § 2911.02(A)(2). We have held that a person knowingly causes physical harm to another “only by knowingly using force capable of causing physical pain or injury, i.e., violent physical force,” reasoning that proof of physical injury or pain under the state statute necessarily requires proof of violent physical force. United States v. Anderson, 695 F.3d 390, 400-01 (6th Cir. 2012) (analyzing “physical harm” in the context of Ohio’s felonious assault statute); see also Evans, 699 F.3d at 863. Finley’s prior robbery conviction therefore qualifies as a predicate offense for career-offender purposes under the use-of-force clause. It is therefore unnecessary to address Finley’s claim that Ohio robbery does not qualify as an enumerated offense.

We AFFIRM the judgment of the district court.