NOT FOR PUBLICATION File Name: 17a0117n.06 15
- 3088 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff
- Appellee,

v. MICHAEL ALEXANDER, JR., Defendant
- Appellant. ORDER

BEFORE: NORRIS , CLAY, and COOK , Circuit Judges. Defendant Michael Alexander, Jr. appeals the final judgment of conviction and sentence of the district court resentencing Alexander to 151 months’ incarceration for possession with intent to distribute hero in, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The Supreme Court granted certiorari to consider Alexander’s claims in Alexander v. United States , 137 S. Ct. 295 (2016 ). Consequently, the Supreme Court vacated our judgment in United States v. Alexander , 642 F. App’x 506 (6th Cir. 2016), and remanded back to the Sixth Circuit for further consideration in light of Mathis v. United States , 136 S. Ct. 2243 (2016). Having reviewed the relevant legal authorit y and the record herein, we hereby determi ne that this case shall be REMANDED to the district court for resentencing for the reasons set forth below

. Alexander was originally sentenced as a career offender under the United States Sentencing Guidelines because of his prior convictions for , inter alia , gross sexual imposition, in violation of Ohio Rev. Code § 2907.05. We determined that Ohio’s aforementioned gross sexualNo. 15

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- imposition statute that had as an element “the use, attempted use, or threatened use of physical force” and was, therefore, a cri me of violence as defined in U.S.S.G. § 4B1.2(a). In light of Mathis , however, that conclusion is no longer valid. When determining whic h crimes fall within § 4B1.2(a) , federal courts use the “categorical approach.” United States v. Covington , 738 F.3d 759, 762 (6th Cir. 2014). This approach requires a court to look only to the fact of conviction and the statutory definition of the prior offense and not to the particular facts underlying that conviction. See United States v. Mitchell , 743 F.3d 1054, 1058 (6th Cir. 2014) (citing Taylor v. United States , 495 U.S. 575 (1990) )

. As t he Supreme Court explained in Descamps v. United States , 133 S. Ct. 2276, 2284 (2013) , in cases where a statute lists alternative elements, the statute is divisible. When faced wit h a divisible statute , where one alternative will qualify as a predicate offense and another will not, courts should apply the “modified categorical approach” and “look beyond the statutory elements to ‘the charging paper and jury instructions’ used in a c ase.” Id. at 2283

– 84 (quoting Taylor , 495 U.S. at 602). In examining Ohio’s gross sexual imposition statute, we determined that the statute was divisible and applied the modified categorical approach. In applying the modified categorical approach, may loo k beyond the statutory elements only in order to determine wh ich version of the crime a defendant violated, and not to determine the facts underlying the actual conviction. Covington , 738 F.3d at 762

– 63. The court must then ask whether the defendant’s offe nse of conviction , as a category, is a crime of violence. Descamps , 133 S. Ct. at 2287 (noting that the statute functions as an “on

- off switch, directing that a prior crime would qualify as a predicate offense in all cases or in none.”). If th at offense “sweeps more broadly” and “criminalizes a broader swath of conduct” th a n wo u ld meet the use, attempted use, or threatened use of physical force prong, th e n the offense as category, is not aNo. 15

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- crime of violence. Covington , 738 F.3d at 764 (quoting De scamps , 133 S. Ct. at 2281, 2283)

. As Mathis reaffirms, it is “impermissible for ‘a particular crime [to] sometimes count towards enhancement and sometimes not, depending on the facts of the case.’” Mathis , 136 S. Ct . at 2251 (quoting Taylor , 495 U.S. at 6 01). With respect to Ohio’s gross sexual imposition statute, we examined the charging documents and concluded that Alexander pleaded guilty to the less er included offense of “purposely compel[ling] the other person, or one of the other persons, to submit by force or threat of force.” Ohio Rev. Code § 2907.0 5 (A)( 1 ). There are a number of cases arising in the Ohio courts that have affirmed convictions for gr oss sexual imposition whe re actual physical force is not implicated. See , e.g., State v. Dye , 695 N.E.2d 763, 768 (Ohio 1998) (explaining that “force or threat of force” may sometimes be found “without evidence of express threat of harm or evidence of sign ificant physical restraint.”) ; State v. Eskridge , 526 N.E.2d 304 (Ohio 1998) (finding that force “need not be overt and physically brutal, but can be subtle and psychological ”) (emphasis added). Although none of the cases 1 cited by Alexander contain facts similar to those of his predicate conviction , the Supreme Court has unequivocally held that this Court must only look at the offense and determine whether as a category, all convictions under the statute qualify as crimes of violence. And upon our review o f the case law, we cannot say that all convictions for the crime of gross sexual imposition constitute crime s of violence. Therefore, we conclude that gross sexual imposition does not qualify as a predicate offense

1 Alexander cites State v. Fortson , No. 92337, 2010 WL 2106010 (Ohio Ct. App. May 27, 2010 ) (finding that a corrections officer can be convicted for the use or threatened use of psychological force) ; State v. Garner , No. 89840, 2008 WL 1822413 (Ohio Ct. App . Apr. 24, 2008) (finding that a lesser showing of force may be sufficient given the inherent coercion in parental authority when a parent abuses his or her child) ; State v. Milam , No. 86268, 2006 WL 2639448 (Ohio Ct. App. Sept. 14, 2006 ) (applying the sam e to a rape involving the defendant’s son’s thirteen

- year old friend) ; State v. Riggs , Nos. 04AP

– 1279, 04AP

– 1280, 2005 WL 2403963 (Ohio Ct. App. Sept 30, 2005 ) (implying the use of force when a step

- grandfather asked step

- granddaughter, who was under the a ge of thirteen, to touch his genitals).No. 15

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- under the Guidelines, and REMAND to the d istrict court for resentencing in a manner not inconsistent with this order.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk