#### UNITED STATES of America, Plaintiff-Appellee, v. Jon HERRING, Jr., Defendant-Appellant.

No. 16-3382

United States Court of Appeals, Sixth Circuit.

Filed March 22, 2017

*425Laura McMullen Ford, Assistant U.S. Attorney, Phillip J. Tripi, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee

Catherine Jean Adinaro, Federal Public Defender’s Office, Cleveland, OH, for Defendant-Appellant

BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges.

COOK, Circuit Judge.

Defendant Jon Herring, Jr., pleaded guilty to one count of conspiring to possess ■with intent to distribute cocaine base. The district court sentenced Herring as a career offender to 120 months in prison after concluding that Herring’s prior Ohio aggravated assault conviction constituted a crime of violence under the Sentencing Guidelines. Herring appeals his sentence, and we AFFIRM.

A defendant qualifies as a career offender if the crime of conviction “is a felony that is either a crime of violence or a controlled substance offense” and “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG § 4B1.1(a). The only question is whether Herring’s Ohio aggravated assault conviction constitutes a “crime of violence.”

The Guidelines define “crime of violence” as an offense that: “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “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)(1) & (2) (2015).1 Ohio’s aggravated assault statute provides that no person shall cause “serious physical harm to another” or “cause or attempt to cause physical harm ... by' means of a deadly weapon.” Ohio Rev. Code §' 2903.12(A)(1)-(2).

In *United States v. Perry,*703 F.3d 906 (6th Cir. 2013), we held that under the Armed Career Criminal Act (ACCA)’s residual clause, Ohio aggravated assault qualifies as a violent felony because it “proscribes conduct that presents a serious potential risk of physical injury to another.”2*Id.*at 910 (quotation marks omitted); *see also United States v. Anderson,*695 F.3d 390, 406 (6th Cir. 2012) (White, J., concurring) (noting that Ohio aggravated assault convictions qualify as violent felonies under the ACCA residual clause). Though *Perry*applied the ACCA’s “violent felony” definition, the career-offender guideline in effect at Herring’s March 2016 sentencing employed identical language in defining “crime of violence,” so we interpret the two provisions similarly. *See United States v. Ford,*560 F.3d 420, 421 (6th Cir. 2009). Tracking *Perry,*we conclude that Herring’s aggravated assault convic*426tion falls within the Guidelines’ crime-of-violence residual clause.

Accordingly, we uphold the sentence imposed by the district court and AFFIRM Herring’s conviction.

1

. An August 2016 Amendment to the Sentencing Guidelines removed the residual clause from § 4B1.2. Since Herring was sentenced prior to the amendment, the residual clause still applies to. his case. *See*USSG § 1B1.11 (“The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.”).

2

. In *Johnson v. United States,*- U.S. -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), the Supreme Court held that the ACCA’s residual clause was unconstitutionally vague. We later held that *Johnson's*reasoning applies with equal force to the Guidelines' residual clause. *United States v. Pawlak,*822 F.3d 902, 904 (6th Cir. 2016). But the Supreme Court recently held that "the advisory Guidelines are not subject to vagueness challenges,” Bec*kles v. United States,*— U.S. —-, 137 S.Ct. 886, 889, 197 L.Ed.2d 145 (2017), thus abrogating *Pawlak,*and permitting the application of USSG § 4B1.2(a)’s residual clause.