NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0324n.06

No. 18-3791

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PHILIP SMITH,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO

BEFORE: BATCHELDER, GRIFFIN, and DONALD, Circuit Judges.

PER CURIAM. Philip Smith challenges the procedural and substantive reasonableness of 

his 77-month sentence. As set forth below, we AFFIRM Smith’s sentence. 

Smith pleaded guilty to possession of a firearm and ammunition by a felon, in violation of 

18 U.S.C. § 922(g)(1). Smith’s presentence report set forth a base offense level of 24 on the basis 

that he had two prior felony convictions for a crime of violence—his 2004 and 2010 Ohio 

convictions for felonious assault. See USSG § 2K2.1(a)(2). Smith received a 3-level reduction 

for acceptance of responsibility. See USSG § 3E1.1. Smith’s total offense level of 21 and criminal 

history category of VI corresponded to a guidelines range of 77 to 96 months of imprisonment. 

Smith objected to the presentence report’s guidelines calculation, asserting that his 2010 

felonious-assault conviction, a violation of Ohio Revised Code § 2903.11(A)(1), should not count 

as a crime of violence. Smith pointed out that this court had granted en banc review of this issue 

in two cases. See Williams v. United States, 875 F.3d 803 (6th Cir. 2017), vacated and reh’g en 
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banc granted, 882 F.3d 1169 (6th Cir. 2018); United States v. Burris, No. 16-3855, 2017 WL 

6368852 (6th Cir. Dec. 13, 2017), vacated and reh’g en banc granted (6th Cir. Feb. 26, 2018) 

(order). Smith did not object to his 2004 felonious-assault conviction counting as a crime of 

violence. In his written objection to the presentence report, Smith argued his base offense level 

should be 20, the base offense level for a defendant with one prior conviction for a crime of 

violence, see USSG § 2K2.1(a)(4)(A), resulting in a total offense level of 17 and a guideline range 

of 51 to 63 months of imprisonment.

At sentencing, the district court acknowledged Smith’s argument that this court had granted

en banc review as to whether felonious assault under Ohio law constitutes a crime of violence, but 

stated that it was required to follow this court’s most recent panel decision in United States v. 

Anderson, 695 F.3d 390 (6th Cir. 2012). The district court noted that, if Anderson remained “good 

law” and Ohio felonious assault constitutes a crime of violence, then Smith’s guidelines range 

would be 77 to 96 months of imprisonment. If the en banc court overruled Anderson, the district 

court stated, then Smith’s guidelines range would be 51 to 63 months of imprisonment. Both 

parties agreed with the district court’s analysis. In considering the sentencing factors under 18 

U.S.C. § 3553(a), the district court pointed out that Smith’s prior sentences of five years and six 

years had not deterred him from committing another offense and stated, “I’ve got to give you a 

longer sentence than you’ve served before to both punish and deter you.” The district court 

determined that the appropriate sentence was 77 months of imprisonment, “independent of either 

Guideline range.” The district court concluded, “I’ve got to give you a sentence of more than 72 

months as a proper punishment and deterrence. So I come out with 77 months’ custody of the 

Attorney General, regardless of the advisory range.” Smith timely appealed his sentence.

In the meantime, this court held in United States v. Burris, 912 F.3d 386 (6th Cir. 2019) 

(en banc), that Ohio’s felonious-assault statute is too broad to qualify categorically as a crime of 
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violence, overruling Anderson, but that the statute sets forth multiple separate crimes and is 

therefore divisible. 912 F.3d at 399, 405. A felonious-assault conviction under Ohio Revised 

Code § 2903.11(A)(1) does not qualify as a crime of violence because a defendant could violate

that subsection by causing mental, as opposed to physical, harm to another. 912 F.3d at 397-99. 

A felonious assault conviction under Ohio Revised Code § 2903.11(A)(2), which involves the use 

of a deadly weapon or dangerous ordnance, does qualify as a crime of violence. 912 F.3d at 405-

06.

On appeal, Smith argues that his sentence is (1) procedurally unreasonable because the 

district court incorrectly calculated his guidelines range and (2) substantively unreasonable 

because his 77-month sentence represents an exceptional variance from the properly calculated 

guidelines range. We review Smith’s sentence for procedural and substantive reasonableness 

under a deferential abuse-of-discretion standard. United States v. Battaglia, 624 F.3d 348, 350 

(6th Cir. 2010).

In reviewing for procedural reasonableness, we must ensure that the district court correctly 

calculated the applicable guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). For the 

first time on appeal, Smith contends that his 2004 and 2010 convictions for felonious assault were 

both violations of Ohio Revised Code § 2903.11(A)(1) and that neither constitutes a crime of 

violence based on Burris. With no prior conviction for a crime of violence, Smith now argues his 

base offense level should be 14, see USSG § 2K2.1(a)(6), and his guidelines range should be 30 

to 37 months of imprisonment. But Smith asserted in his objections to the presentence report that 

his guidelines range should be 51 to 63 months of imprisonment and at sentencing agreed with the 

district court that, if this court were to overrule Anderson, his applicable guidelines range would 

be 51 to 63 months of imprisonment. Because Smith explicitly agreed with the district court’s 

alternative guidelines range of 51 to 63 months of imprisonment, which was based on his 2004 
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felonious-assault conviction qualifying as a crime of violence, he has waived any claim that the 

district court erred in making that alternative calculation. See United States v. Mabee, 765 F.3d 

666, 671 (6th Cir. 2014) (“[W]here the defendant has ‘explicitly agreed’ that a particular guideline 

calculation or enhancement applies to his sentence, any challenge to that enhancement on appeal 

is waived.”).

Even without that waiver, Smith’s challenge to the district court’s alternative guidelines 

calculation would fail because he had a prior conviction for a crime of violence aside from his 

felonious-assault convictions. Smith’s 2004 conviction included one count of felonious assault 

and one count of aggravated robbery with firearm specifications. Both counts of the 2004 

conviction were included in the presentence report, but the report only referenced the feloniousassault count as qualifying as a crime of violence. The government has filed an unopposed motion 

to take judicial notice of state court documents from Smith’s prior criminal cases. See Fed. R. 

App. P. 10(e)(3). Federal Rule of Evidence 201 allows a court to take judicial notice, at any stage 

of the proceeding, of “a fact that is not subject to reasonable dispute because it . . . can be accurately 

and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 

Evid. 201(b); see Fed. R. Evid. 201(d). The indictment from Smith’s prior criminal case satisfies 

this standard. See United States v. Ferguson, 681 F.3d 826, 833-35 (6th Cir. 2012). The indictment 

charged Smith with aggravated robbery, in violation of Ohio Revised Code § 2911.01, for having 

“a dangerous ordnance, to-wit: firearm . . . on or about his person or under his control” while 

attempting or committing a theft offense. This court has held that aggravated robbery with a deadly 

weapon under Ohio law qualifies as a crime of violence. United States v. Patterson, 853 F.3d 298, 

305 (6th Cir. 2017). Because Smith’s 2004 aggravated robbery conviction qualifies as a crime of 
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violence, the district court’s alternative guidelines calculation of 51 to 63 months of imprisonment 

was correct independent of his felonious-assault convictions.1

“The essence of a substantive-reasonableness claim is whether the length of the sentence 

is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United 

States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). In reviewing for substantive 

reasonableness, we “take into account the totality of the circumstances, including the extent of any 

variance from the Guidelines range.” Gall, 552 U.S. at 51. But we “must give due deference to 

the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the 

variance.” Id. Smith argues that his 77-month sentence was more than double the high end of the 

applicable guidelines range. For the reasons discussed above, Smith’s applicable guidelines range 

was 51 to 63 months of imprisonment and not, as he now claims, 30 to 37 months of imprisonment. 

The district court pointed out that Smith’s prior sentences of five years and six years had not 

deterred him from committing another offense and determined that a sentence longer than he had 

served before was necessary to meet § 3553(a)’s goals of punishment and deterrence. The district 

court concluded that a 77-month sentence, representing “a slight upward variance” from the 51-to63-month range, was appropriate. Considering the totality of the circumstances and giving due 

deference to the district court’s sentencing decision, we find no abuse of discretion.

For these reasons, we GRANT the government’s motion to take judicial notice and

AFFIRM Smith’s sentence.

 

1 Furthermore, any error in the district court’s guidelines calculation would have been harmless. 

“A sentencing error is harmless if we are certain that the error did not affect the district court’s 

selection of the sentence imposed.” United States v. McCarty, 628 F.3d 284, 294 (6th Cir. 2010) 

(quoting United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008)). Even if the district court 

erred in calculating Smith’s guideline’s range, it did not affect his sentence because the district 

court determined that Smith’s sentence needed “to be a little longer than six years” and concluded 

that a 77-month sentence was appropriate, “regardless of the advisory range.”