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Pursuant to Sixth Circuit Rule 206

File Name: 11a0321p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

ANTONIO B. RODRIGUEZ,

 Defendant-Appellant.

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No. 09-3867

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 05-00434-001—David D. Dowd, Jr., District Judge.

Argued: June 8, 2011

Decided and Filed: December 21, 2011 

Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE,

Cleveland, Ohio, for Appellant. Daniel J. Riedl, ASSISTANT UNITED STATES

ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Jeffrey B. Lazarus,

FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Daniel

J. Riedl, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Antonio Rodriguez appeals the district

court’s sentence imposed under the career offender guideline. He argues that the district

court should not have counted as predicate offenses any of the Ohio felony convictions

listed in the Presentence Report (PSR).

1
No. 09-3867 United States v. Rodriguez Page 2

1

In assigning three criminal history points to the 1999 conviction for felonious assault, the

probation officer specified that additional counts for aggravated burglary and having weapons under

disability were dismissed. PSR ¶ 36.

Rodriguez argues for the first time on appeal that the 1995 conviction for aggravated robbery was

also dismissed. PSR ¶ 32. He filed a motion asking this Court to take judicial notice of his state criminal

records. The motion is denied. Because Rodriguez qualified for career offender status due to his prior

felony convictions for aggravated assault and felonious assault, we need not consider whether he was

convicted of aggravated robbery in 1995.

We conclude that Rodriguez’s felony conviction in Ohio for aggravated assault

qualifies as a crime of violence under the career offender guideline. We also conclude

that Rodriguez may not collaterally attack in this appeal his felony conviction in Ohio

for felonious assault. Because these two prior crimes of violence support the district

court’s finding of career offender status, we AFFIRM the sentence.

I. PROCEDURAL HISTORY

A grand jury indicted Rodriguez in 2005 for aiding and abetting possession with

intent to distribute 500 grams or more of a substance containing a detectable amount of

cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Rodriguez pleaded

guilty to the charge pursuant to a written plea agreement with the Government. The plea

agreement stated that the parties believed Rodriguez qualified for sentencing under the

career offender guideline, USSG § 4B1.1 (Nov. 2004). Rodriguez reserved his right to

appeal the sentence imposed.

In preparing the PSR, the probation officer applied the career-offender guideline,

noting that Rodriguez’s criminal history included prior felony convictions for aggravated

robbery and aggravated assault in Ohio in 1995, as well as a prior felony conviction for

felonious assault in Ohio in 1999.1

 With a total adjusted offense level of 34 and a

criminal history category of VI, the applicable guideline range was 262 to 327 months.

Rodriguez did not file any objections to the PSR.

At sentencing, the district court adopted the guideline calculation in the PSR.

The Government then moved under USSG § 5K1.1 for a four-level downward departure

to reward Rodriguez for his substantial assistance. The district court granted a six-level

reduction, which lowered the offense level to 28 and the applicable guideline range to

140 to 175 months. The district court sentenced Rodriguez to serve 144 months of
No. 09-3867 United States v. Rodriguez Page 3

imprisonment and eight years of supervised release. Rodriguez did not object to the

sentence as imposed.

II. ANALYSIS

A. Standard of Review

We review de novo whether Rodriguez’s Ohio felony conviction for aggravated

assault qualifies as a “crime of violence” under the career offender guideline because the

Government has not asked us to apply the plain-error standard in light of Rodriguez’s

failure to object below. See Appellee’s Br. at 12; United States v. Williams, 641 F.3d

758, 763–64 (6th Cir. 2011) (declining to apply plain-error standard where Government

did not request its application); United States v. Wynn, 579 F.3d 567, 570 (6th Cir. 2009)

(stating de novo standard ordinarily applies to determination whether an offense is a

“crime of violence”).

The parties agree that the plain-error standard applies to Rodriguez’s second

argument, also raised for the first time on appeal, that his Ohio felony conviction for

felonious assault was void ab initio and could not support sentencing under the career

offender guideline. Rodriguez must show (1) an error; (2) the error was plain; and

(3) the error affected substantial rights. See United States v. Richards, 659 F.3d 527, 546

(6th Cir. 2011). If these three conditions are met, this Court may exercise its discretion

to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings. Id. (citations and internal quotation marks

omitted).

B. The Ohio aggravated assault conviction is a “crime of violence”

To qualify as a career offender, a defendant must be at least eighteen years of

age, the instant offense must be a felony that is either a “crime of violence” or a

controlled substance offense, and the defendant must have “at least two prior felony

convictions of either a crime of violence or a controlled substance offense.” USSG

§ 4B1.1(a). A “crime of violence” is defined as:
No. 09-3867 United States v. Rodriguez Page 4

any offense under federal or state law, punishable by imprisonment for

a term exceeding one year, thatS

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.

USSG § 4B1.2(a). The crime of “aggravated assault” is one of the enumerated “crimes

of violence” listed in Application Note 1 to USSG § 4B1.2. In listing the enumerated

“crimes of violence,” the guideline does not distinguish between degrees of offenses.

See United States v. Wood, 209 F.3d 847, 850 (6th Cir. 2000). Application Note 1

further provides that a non-enumerated offense is a “crime of violence” if “(A) that

offense has as an element the use, attempted use, or threatened use of physical force

against the person of another, or (B) the conduct set forth (i.e. expressly charged) in the

count of which the defendant was convicted involved use of explosives . . . or, by its

nature, presented a serious potential risk of physical injury to another.”

To determine the nature of a prior conviction, this Court applies a “categorical”

approach, looking to the statutory definition of the crime of conviction and not the facts

underlying that conviction. United States v. Ruvalcaba, 627 F.3d 218, 221 (6th Cir.

2010). The Court does not concern itself with how a defendant may have committed the

crime on a specific occasion, but rather considers the offense generically to examine how

the law defines the offense. Id.

Under this Court’s interpretation of § 4B1.2 and its commentary, a prior felony

conviction can qualify as a “crime of violence” in one of three ways: (1) the conviction

is one of the crimes specifically enumerated in Application Note 1 to the career offender

guideline; (2) if not specifically enumerated, the crime has as an element the use,

attempted use, or threatened use of physical force; or (3) if the offense is not specifically

enumerated or does not include physical force as an element, the crime involved conduct

posing a serious potential risk of physical injury to another person. Id. (citing United

States v. Wilson, 168 F.3d 916, 927 (6th Cir. 1999)). This Court recently indicated that
No. 09-3867 United States v. Rodriguez Page 5

the term “aggravated assault” in the commentary to § 4B1.2 refers to “generic

aggravated assault.” United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010).

“Generic aggravated assault” is especially difficult to define because many states

categorize assault in degrees rather than by use of the terms “simple” or “aggravated,”

and “because some states still retain the common law distinction between assault and

battery.” Id. at 716–17. Under the Model Penal Code, a defendant is guilty of

aggravated assault “if he ‘(a) attempts to cause serious bodily injury to another, or causes

such injury purposely, knowingly, or recklessly under circumstances manifesting

extreme indifference to the value of human life; or (b) attempts to cause or purposely or

knowingly causes bodily injury to another with a deadly weapon.” Id. at 717 (quoting

Model Penal Code § 211.1(2)).

The Ohio fourth-degree aggravated assault statute at issue in this case, Ohio Rev.

Code § 2903.12, tracks the Model Penal Code formulation of aggravated assault, except

that the Ohio statute does not permit conviction for reckless conduct under

circumstances manifesting extreme indifference to the value of human life. See No. CR06-219-S-BLW, 2007 WL 4125785, at *3 & App’x (D. Idaho Nov. 16, 2007) (noting

Ohio is among thirty-one state jurisdictions that do not permit reckless conduct to

support an aggravated assault charge, citing Ohio Rev. Code § 2903.12), aff’d 557 F.3d

1019 (9th Cir. 2009). The Ohio statute is distinguishable from that in McFalls, because

there we determined that South Carolina’s common-law crime of assault and battery of

a high and aggravated nature did not categorically qualify as a “crime of violence”

because the offense included actions taken recklessly rather than intentionally. McFalls,

592 F.3d at 716.

By contrast to the offense discussed in McFalls, the Ohio aggravated assault

statute requires that the defendant act “knowingly.” Ohio Rev. Code § 2903.12(a). The

statute provides:

(A) No person, while under the influence of sudden passion or in a

sudden fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the person

into using deadly force, shall knowingly:
No. 09-3867 United States v. Rodriguez Page 6

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s

unborn by means of a deadly weapon or dangerous ordnance, as defined

in section 2923.11 of the Revised Code.

Under Ohio Revised Code § 2901.22(B),

[a] person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he

is aware that such circumstances probably exist.

Acting with knowledge “corresponds loosely with the concept of general intent[,]” while

acting purposefully “corresponds loosely with the common-law concept of specific

intent.” United States v. Bailey, 444 U.S. 394, 405 (1980). In unpublished cases, the

Ohio Court of Appeals has recognized that aggravated assault requires a knowing and

intentional act, State v. Murnahan, No. CA 1824, 1980 WL 354050, at *7 (Ohio Ct. App.

1980), and that Ohio statutory law categorizes aggravated assault as an “offense of

violence.” State v. Hernandez, No. 05AP-326, 2005 WL 3073371, at *1 (Ohio Ct. App.

2005) (citing Ohio Rev. Code § 2901.01(A)(9)(a)). This Court is bound by the Ohio

courts’ interpretation of its own state law, including the elements of a crime, although

whether an offense is a “crime of violence” under the career offender guideline is a

question of federal law. See Johnson v. United States, 130 S. Ct. 1265, 1269 (2010).

Because Ohio’s fourth-degree aggravated assault statute, § 2903.12, requires

knowing and intentional conduct, a felony conviction under § 2903.12 qualifies as an

enumerated “crime of violence” under Application Note 1 to USSG § 4B1.2 for purposes

of applying the career offender guideline. We reached the same conclusion in United

States v. Calloway, 189 F. App’x 486, 491 (6th Cir. 2006), where we held that Ohio’s

aggravated assault offense is a “crime of violence” for purposes of applying the career

offender guideline because it is an enumerated crime.

The Calloway court also commented, however: “There is no question that

causing or attempting to cause physical harm presents a serious risk of physical injury

to another under section 4B1.2(a)(2)[.]” Id. Section 4B1.2(a)(2) is the residual clause
No. 09-3867 United States v. Rodriguez Page 7

2

This clause is identical to the residual clause of the Armed Career Criminal Act (ACCA).

18 U.S.C. § 924(e)(2)(B)(ii).

3

The Supreme Court recently retreated from Begay’s “purposeful, violent, and aggressive”

standard, noting it had no “precise textual link to the residual clause” and was an addition to the statutory

text. Sykes v. United States, 131 S. Ct. 2267, 2275 (2011). Where a felony “is not a strict liability,

negligence, or recklessness crime” and is categorically similar in risk to the ACCA’s listed offenses, the

crime satisfies the ACCA residual clause and qualifies as a “violent felony.” Id. at 2276.

of the career offender guideline, which provides that an offense is a “crime of violence”

if it “otherwise involves conduct that presents a serious potential risk of physical injury

to another.”2 Because the Calloway court determined that aggravated assault was an

enumerated crime under the career offender guideline, under Wood the Court had no

need to resort also to the residual clause to decide the case. The residual clause is

pertinent only if the crime in question is not enumerated under the guideline and the

crime does not have as an element the use, attempted use, or threatened use of force. See

Wood, 209 F.3d at 850; United States v. Smith, 395 F. App’x 223, 234–35 (6th Cir.

2010) (following Wood to hold that attempted kidnaping is a “crime of violence”

because kidnaping is enumerated in the commentary to the career offender guideline and

the commentary further provides that an attempt to commit an enumerated crime is also

a “crime of violence”).

Rodriguez reminds us that, after Calloway, the Supreme Court issued its opinion

in Begay v. United States, 553 U.S. 137 (2008). In that case, the Supreme Court

examined whether a state conviction for driving under the influence (DUI) qualified as

a “violent felony” under the residual clause of the ACCA. Begay, 553 U.S. at 142–48.

The Court concluded that DUI is not a “violent felony” under the residual clause because

the offense is too dissimilar from the ACCA’s enumerated crimes of burglary, arson,

extortion, and offenses involving explosives, which typically involve “purposeful,

‘violent,’ and ‘aggressive’ conduct.” Id. at 144–45, 148. DUI, by comparison, is a

strict liability crime, requiring no criminal intent and no purposeful or deliberate conduct

at all.3

 Id. at 145.

Taking a cue from Begay, Rodriguez argues that a conviction under Ohio’s

aggravated assault statute does not constitute a “crime of violence” under the career
No. 09-3867 United States v. Rodriguez Page 8

offender guideline because the statute does not require purposeful, violent, and

aggressive conduct. We reject this argument for several reasons.

First, while we may apply an ACCA case like Begay to our analysis of whether

an offense is a “crime of violence” under the career offender guideline, see United States

v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir. 2011), Begay was decided under the

residual clause, and we need not reach the residual clause to resolve this case. As we

have explained, Rodriguez’s conviction counts as a “crime of violence” because

aggravated assault is one of the enumerated crimes of violence listed in Application Note

1 to the career offender guideline and the offense requires knowing and intentional

conduct. See Wood, 209 F.3d at 850; Murnahan, 1980 WL 354050, at *7. Cf. McFalls,

592 F.3d at 716. Under Wood, our analysis is complete. We need not consider whether

the crime has as an element the use, attempted use, or threatened use of force, cf.

McMurray, 653 F.3d at 374 n.6 (questioning, but not deciding, whether physical force

is an element of Tennessee’s aggravated assault offense where the statute can be violated

by causing serious bodily injury), or whether the crime fits within the residual clause

because it “otherwise involves conduct that presents a serious potential risk of physical

injury to another.” See Wood, 209 F.3d at 850.

Second, we have already shown that a defendant cannot be convicted of

aggravated assault in Ohio unless the prosecutor proves the defendant acted knowingly

and intentionally. The mens rea required by Ohio Rev. Code § 2903.12 is equivalent to

the mens rea of the offenses enumerated under the career offender guideline.

Aggravated assault is thus unlike DUI. Cf. Begay, 553 U.S. at 148.

Third, Rodriguez concedes that § 2903.12 “does require violence,” in light of the

statute’s provision that the offender “cause serious physical harm or physical harm by

means of a deadly weapon.” Appellant’s Br. at 22. But he argues that provocation is an

element of Ohio’s aggravated assault crime, and the presence of this element strips the

offense of the purposeful and aggressive conduct contemplated by Begay. We do not

agree.
No. 09-3867 United States v. Rodriguez Page 9

In Ohio, provocation is not an element of aggravated assault that must be proved

by the prosecution. “[A]ggravated assault is the same conduct as felonious assault but

its nature and penalty are mitigated by provocation.” State v. Miller, No. 10A–632, 2011

WL 743226, at *6 (Ohio Ct. App. Mar. 3, 2011). The elements of felonious assault and

aggravated assault are exactly the same. Id. To mitigate felonious assault to aggravated

assault, the defendant must affirmatively prove by a preponderance of the evidence

either sudden passion or sudden fit of rage brought on by the victim’s serious

provocation reasonably sufficient to incite the defendant into using deadly force. Ohio

Rev. Code § 2901.05; State v. Deem, 533 N.E.2d 294, 299–300 (Ohio 1988) (concerning

provocation in aggravated assault); State v. Rhodes, 590 N.E.2d 261, 265 (Ohio 1992)

(examining same provocation language in voluntary manslaughter statute mitigating

murder); State v. Shane, 590 N.E.2d 272, 276–79 (Ohio 1992) (same); Rhodes v.

Brigano, 91 F.3d 803, 810–11 (6th Cir. 1996) (holding Ohio’s statutory scheme

requiring defendant to prove provocation does not violate due process). Under these

authorities, Rodriguez’s position is legally erroneous, so we will not adopt it.

For all of these reasons, we hold that Ohio’s fourth-degree aggravated assault

statute, Ohio Rev. Code § 2903.12, qualifies as a “crime of violence” and the district

court did not err in considering Rodriguez’s aggravated assault conviction as a predicate

offense when applying the career offender guideline.

C. Rodriguez may not collaterally attack his felonious assault conviction in this

appeal

Rodriguez has not developed an argument that his 1999 Ohio felonious assault

conviction does not qualify as “crime of violence.” Instead, he argues that this

conviction was void ab initio because the state trial court did not properly advise him at

sentencing of his post-release control obligations. See Ohio Rev. Code §§ 2929.19;

2967.28. Because the conviction is void, Rodriguez reasons, the district court could not

rely on it as a predicate offense to apply the career offender guideline. Rodriguez fails

to meet the plain error standard to prevail on this argument.
No. 09-3867 United States v. Rodriguez Page 10

In Custis v. United States, 511 U.S. 485, 497 (1994), the Supreme Court held

that the ACCA does not permit a defendant to use the federal sentencing forum to gain

collateral review of state convictions, except for those that were uncounseled. This

Court subsequently applied Custis to the federal sentencing guidelines. See United

States v. Bonds, 48 F.3d 184, 186 (6th Cir. 1995). Our Court also followed Custis to

resolve the same issue Rodriguez raises here–that a prisoner may not utilize the federal

sentencing proceeding to mount a collateral attack on his Ohio sentence as void ab initio

due to the state trial court’s failure to comply with statutory requirements for imposing

post-release control. United States v. Aguilar-Diaz, 626 F.3d 265, 269–71 (6th Cir.

2010). These cases direct the outcome of this case. We must reject Rodriguez’s

improper attempt to attack collaterally his felonious assault conviction in his federal

sentencing proceeding.

Rodriguez asserts that there is no longer available to him a channel to obtain state

court review of his felonious assault conviction, citing Daniels v. United States, 532 U.S.

374, 383 (2001). But we discounted a similar argument in Aguilar-Diaz, noting that the

defendant at one time had the opportunity to challenge the prior sentence, and that the

defendant could also obtain court review if he was incorrectly placed on post-release

control following release from prison. 626 F.3d at 270–71. Rodriguez’s argument fails

for the same reasons.

As to this issue, Rodriguez has not shown plain error warranting reversal. The

district court did not err in relying on the felonious assault conviction as a predicate

offense under the career offender guideline.

III. CONCLUSION

The Ohio aggravated assault conviction constitutes a “crime of violence” for

purposes of applying the career offender guideline. Rodriguez’s collateral attack on his

Ohio felonious assault conviction is prohibited by Custis and Aguilar-Diaz. Based on

these two prior felony “crimes of violence,” the district court properly sentenced

Rodriguez as a career offender. Accordingly, we AFFIRM.