United States v. Burris

Burris was convicted of conspiracy to possess with the intent to distribute heroin, possession with intent to distribute heroin, and two counts of using a communication facility to facilitate a drug trafficking offense. Burris had a 2005 Ohio conviction for complicity in trafficking in drugs and a 2007 Ohio conviction for felonious assault. The district court relied on those felonies to sentence Burris as a career offender under the Guidelines, sections 4B1.1, 4B1.2(a)(1). Burris objected to the classification, arguing that it overstated his actual criminal history, but did not argue that his Ohio felonies were not violent-felony predicates under the Guidelines. The district court granted Burris a variance from the applicable 210-262-month Guidelines range, sentencing him to 90 months’ imprisonment. In 2012, a Sixth Circuit panel had held that both Ohio felonious assault and Ohio aggravated assault qualified as violent-felony predicates under the Armed Career Criminal Act (ACCA) elements clause. On en banc review of the Burris case, the Sixth Circuit held that both are too broad to always (categorically) qualify as violent-felony predicates; each criminalizes more conduct than described in the ACCA and Guidelines elements clauses. Both statutes are divisible; each sets out two separate crimes, one qualifies as a violent-felony predicate and the other does not. Burris is not eligible for relief because he was sentenced under the provision that is a violent felony. View "United States v. Burris" on Justia Law