NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0152n.06 No. 12-3131 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. CARLOS HIB BIT, Defendan t-Appellant. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE NORTHERN DISTRICT O F OHIO

BEFORE: CLAY, COOK , and ROT H, Circuit Judges. * CLAY, Circuit Judge. Def endant Carlos Hibbit was indicted along with twenty -four others in a fifty -nine count indictment for crimes arising out of a conspiracy to distribute cra ck cocaine. After pleading g uilty to conspirac y to possess with the intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1), 841(b)( 1)(A) , & 846, the district court senten ce d De fendant to 144 months’ imprisonment to be followed by three y ear s of supervised rele ase. Def endant appea ls his sentenc e

on the g rounds that h e was inappropriately classified as a car eer offe nder. For the rea sons that follow, we AF F IRM Def endant’ s sentence

.

The Honora

ble J ane R. Roth, Senior Circuit Judge for the United States Court of Appea ls * for the T hird Circuit, sitti ng by desig nation.No. 12-3131 BACK GR OUND On Marc h 2, 2011, a fede ral g rand jury for the Norther n District of Ohio indicted Def endant, char g ing him with one count of conspirac y to possess with the intent to distribute five kilogr ams or

more of coca ine and/or fifty g rams or more of coca ine base, in violation of 21 U.S.C. §§ 841(a) (1), 841(b)( 1)(A) , & 846; and two counts of use of a communication faci l i t y t o fa ci litate a drug

traff icking offe nse, in violation of 21 U.S.C. § 843(b). Def endant pleade d g uilty to the conspirac y char g e. Prior to sentenc ing, a presentence repor t (“PSR”) was prepa

red for Defe n d an t

. T h e PSR

rec ommended that Def

endant be sentenc ed as a car eer offe nder pursuant to U.S.S.G. § 4B1.1, which provides: A def endant is a c are er of

fende r if (1) the defe ndant was at least eighteen year s old at the time the defe ndant committed the instant offe nse of conviction; (2) the instant offe nse of conviction is a felony that is either a crime o f v i olence or a controlled substance offe nse; and (3) the defe ndant has at least two prior felony convictions of either a crime of violence or

a contr olled substance of fense

. The predic ate offe nses for this finding wer e his 2002 Ohio conviction for felonious assault and his 2004 Ohio conviction for ag g ravated burg lary

. The car eer -off ender enhanc ement place d Def endant in Criminal History Categ ory VI (as oppose d to Criminal Hist ory Categ ory I I I ). Coupled with his total offe nse level of 27, the P S R calc ulated Def endant’ s Guidelines rang e as 130–162 months’ imprisonment. The district court sentenc ed Def endant to 144 months’ imprisonment to be followed by three y ear s of supervise d rele ase. STANDARD OF REVIEW We g ener ally revie w sentenc es for “re asonable ness under an abuse of discretion standard,”

ev al uating both the proce dural and substantive rea sonablene ss of the sentenc e. United St a t es v.

2No. 12-3131

Brown , 579 F.3d 672, 677 (6th Cir. 2009). I n doing so, we revie w the district court’s leg al conclusions de novo and its finding s of fac t for clea r err or. Id

. Whether a prior conviction qualifies

as a “cr ime of violence ” is a leg al conclusion revie wed de novo . United States v. Mee ks , 664 F.3d 1067, 1069 (6th Cir. 2012). Howeve r, wher e, as here , a defe ndant fa i l s t o o b ject to his sentenc e, revie w is limit ed to plain err or. United States v. Herrera- Zuniga , 571 F.3d 568, 589 (6th Cir. 2009);

see also Fe d. R. Crim. P. 52(b). Plain err or require s that the defe n d an t s h o w (1) err or, (2) that is clea r or obvious, and (3) that aff ects his “substantial rig hts”; (4) if those elements are satisfied, this Court may exercise its discretion to reme dy the err or if it “ser iously aff ects the fairne ss, integ rity or public reputation of judicial proce eding s.” Puck ett v. United States , 556 U.S. 129, 135 (2009). DISCUSSIO N Def endant’ s Criminal History Categ ory was raised based on the district c ourt’s application of the car eer -off

ender enhanc ement under U.S.S.G. § 4B1.1. At issu e i n t his appea l is whether Def endant’ s 2002 Ohio conviction for felonious assault qualifies as a predic ate “cr ime of violence.” The Sentenc ing G

uidelines define a “c rime of violenc e” a s any offe nse under fede ral or state law, pun i s h ab l e by imprisonment for a term exceedingone y ear , that— (1) has as an element the us e, att empted use, or threa tened use of phy sical forc e ag ainst the person of another , or (2) is burg lary of a dwelling , arson, or extorti on, involves use of explos ives, or otherwise involv es co n duct that prese nts a serious potential risk of phy sical injury

to another. U.S.S.G. § 4B1.2( a). Under this definition, a prior felony conviction can qualify as a “cr ime of violence” in one of three way s: (1) the co n v i ct i on is one of the crimes specific ally enumer ated in

3No. 12-3131

Application Note 1 to U.S.S.G. § 4B1.2 ; (2) if not specifi ca l l y en u m er ated, the crime has “as an 1 element the use, attempted use, or threa tened use of phy si ca l force” pursuant to U.S.S.G. § 4B1.2( a)( 1); or (3) if the offe nse is not specific ally enumer ated or does not include phy sical forc e

as an element, t h e crime involved conduct posing a “ser ious potential risk of phy sical injury to another ” person pursuant to U.S.S.G. § 4B1.2( a)( 2). United States v. Rodriguez , 6 6 4 F. 3 d 1032, 1036 (6th Cir. 2011). In deter mining whether a prior offe nse q u al i fi es as a “cr ime of violence,” we use the cate g orica l and modified cate g orica l approa ches from Taylor v. United States , 495 U.S. 575 (1990), and Shepard v. United States , 544 U.S. 13 (2005), and their prog eny . Mee ks , 6 6 4 F. 3 d at 1070. First, this Court applies a “ca teg orica l approa ch,” under which it looks to the statutory definition of the prior offe nse and not to the pa rticular f acts unde rlying the defe ndant’s convic tion to see if that conduct fits into any of the “cr ime of violence” cate g ories. Id. I f, howeve r, “it is possible to violate the statute in a way that would constitute a crime of violence and in a way that would not, the court may consider the indictment, g uilty plea, or simil ar documents to deter mine whether they nece ssarily establish the nat u re o f t h e prior conviction.” Id

. (interna l quotation marks omi tted). This second step is ref err ed to as the “modified cate g orica l approa ch.” United States v. Kearney , 675 F.3d 571, 574 (6th Cir. 2012) (internal quotation marks omitted). Be cause the definition of a “cr ime of violence” under U.S.S.G. § 4B1.1 is near ly identical to the definition of a “violent felony ” under the Ar m ed Caree r Criminal Act (“A CCA”), 18 U.S.C. § 924(e) , we treat a holding that a crime is
Ap p l i cation Note 1 to U.S.S.G. § 4B1.2 enumer ates the following crimes as crimes of 1 v i o l en ce: “murde r, manslaug hter, kidnapping , ag g rava ted assault, forc ible sex offe nses, robber y , arson, e x tortion, ex tortionate extension of cre dit, and burg lary of a dw elling.” 4No. 12-3131

ca t egorically a violent felony under the ACCA as controlling as to whether that same crim e i s a crime of violence under § 4B1.1. See United States v. Ford , 560 F.3d 420, 421–22 (6th Cir. 2009). Def endant wa s convicted of

felonious assault under

an Ohio statute that provide s: (A) N o person sha ll knowingly do either of

the following : (1) Cause serious phy sical har m to another or to a

nother’s unbor

n; (2) Cause or attempt to cause phy sical harm to another or to another ’s unborn by means of a

deadly wea pon or dang erous or dnance

. (B ) No person, with knowledg e that the person has tested positive as a carrier of a virus that cause s acquire d immunodeficienc y sy ndrome, shall knowing ly

do any of the following : (1) Eng ag e in sexual conduct with another person without disclosing t h at knowledg e to the other

person pr ior to eng ag ing in the se x ual conduc t; (2) Eng ag e in sexual conduct with a person whom the offe nder knows or has rea sonable cause to believe lacks the mental capa city to appre ciate the signific ance of the knowledg e that the offe nder has tested positive as a car rier of a virus that cause s acquire d immunodeficienc y sy ndrome; (3) Eng ag e in sexual conduct with a person under eig hteen y ear s of ag e who is not the spouse of the off ender

. Ohio Rev. Code. § 2903.11. We have rec ently addre ssed this statute in United States v. Anderson , 695 F.3d 390 (6th Cir. 2012). In that case , we held that “a conviction under Ohio Revised Code § 2903.11(A) qualifies as

a v i olent felony” under the AC CA beca use i t has t he phy sical-f

orce element defined in 18 U. S

. C

. § 924(e) (2)( B) (i). Id

. at 402; see also U.S.S.G. § 4B1.2( a)( 1) (def ining a “cr ime of violence” as one that has t he same phy sical-f orce element as § 924(e) (2)( B) (i))

. I n t h e co u rse of concluding that a conviction under s u b s ec t i on (A) was a violent felony , the Anderson court did, howeve r, st ate that Ohio Rev. Code § 2903.11(B ) “does not rea dily qualify as a violent felony .” Anderson , 6 9 5 F.3d
at 4 0 2

. T h ere fore , beca

use we held in Anderson that subsection A is a violent felony and since a crime that is held to be viol ent felony under the ACCA is also a crime of vi olence under § 4B1.1, 5No. 12-3131

see Ford , 560 F.3d at 421–22, if Def endant was convicted under subsection A, he was appropr iately classified a s a ca

ree r off ender under § 4B 1.1. Deter mination of this question require s us to look to s o -ca lled Shepard documents to deter mine whet her those documents establish under which subsection Def endant was convicted. Mee ks , 664 F.3d at 1070. The indictment in this case conclusivel y s hows that Def endant was 3 convicted under subsection A. The indictment states, Def endant “unlawf

ully did knowing ly cause serious phy sical harm to Richard J ohnson.” This languag e trac ks the statutory languag e of Ohio Rev. Code § 2 9 0 3

. 1 1(A)( 1) in that the indictment char g es what subsection (A)( 1) proscr ibes—“knowing ly caus[ing] serious phy sical harm.” “Where the char g ing document closely
trac ks the statutor y l an gu age of the rele vant subsection, the fac t that the subsection is not also identified by its number does not cre ate any rea sonable doubt about wh i ch subsection has been char g ed.” United St ates v. Robinson , 333 F. Ap p ’x 33, 36 (6th Cir. 2009) (emphasis in orig inal); accord United States v. Ramon Silva , 608 F.3d 663, 669 n.3 (10th Cir. 2010), Un i t ed States v. Pulliam , 566 F.3d 784, 788 (8th Cir. 2009). There fore , we conclude that Def endant was convicted

The g overnme nt has made a motion for this Court to take judicial notice of cer tain 3 documents from Def

endant’ s 2002 felonious assault case . This motion is unopposed by Def endant with respe ct to the indictment from that case . Fe dera l Rule of Evidence 201(b) allows a court to take judicial notice of “a fac t that is not subject to rea sonable dispute beca use it

. . . can be acc urate ly and rea dily deter

mined from source s whose acc urac y cannot rea so n ably be questioned”; this is true whether the re quest is made “in the tr ial court or on appea l.” United States v. Fe rguson , 681 F.3d 826, 834 (6th Cir. 2012) (quoting Fe d. R. Evid. 201(f) advisory committee’s note (1972)) (interna l quotation marks omitted). We conclude that Def endant’ s 2002 indictment meets this standard and there fore GRANT in par

t the g overnme nt’s motion to t ake judicia l notice.

6No. 12-3131

under subsection A and acc ording ly , was ap propriate ly classified as a car eer offe nder under 4 U.S.S.G. § 4B1.1. CONCLUSION For the fore g oing r easons, we AF F IRM Def endant’ s sentence

.

Having conclude d that the indictment conclusively est abli shes under Shepard that 4 Def endant was convicted under Ohio Rev. Code § 2903.11(A), we now DENY AS MO OT in pa rt the g overnme nt’s motion to t ake judicia l notice with respe ct to the journal e ntries. 7