United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE
me is Defendant Lawrence Walls objection in response to my
pre-trial classification of Defendant as an armed career
criminal under the Armed Career Criminal Act. (Doc. No. 73).
The government opposes reconsideration. (Doc. No. 78).
to the trial in April 2017, Defendant Lawrence Walls moved
for a pre-trial determination as to the application of the
Armed Career Criminal Act to his case. At issue were the
following three incidents and five resulting convictions: (1)
1992 aggravated assault under O.R.C. 2903.12; (2)1997
felonious aggravated assault with a firearm specification
under O.R.C. § 2903.12(A)(2); and (3) 2001 aggravated
robbery with a firearm specification under O.R.C.
§§ 2911.01(A)(1) & 2941.145, aggravated
burglary with firearm specification under O.R.C. §§
2911.11(A)(1) & 2941.145, and robbery under O.R.C. §
2911.02(A)(2). In the previous briefing, Walls conceded the
1997 and 2001 convictions qualified as two violent felonies
for purposes of the ACCA. (Doc. No. 22 at 5-6). With respect
to the 1992 conviction, Walls argued it should not be
considered the third offense for purposes of the ACCA because
(1) he was convicted under the 1992 version of the statute,
(2) the provocation element of the offense, and (3) the
conviction was incurred by Alford plea. Id.
at 3-5. Rejecting all three arguments, I found the 1992
conviction was a violent felony and that Walls was an armed
career criminal under the ACCA. (Doc. No. 27).
ACCA applies to defendants with three convictions for violent
felonies or serious drug offenses, incurred during three
separate incidents. 18 U.S.C. § 924(e). A violent felony
is “any crime punishable by imprisonment for a term
exceeding one year… that has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or is burglary.” Id. at
§ 924(e)(2)(B). Physical force under the statute means
“force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559
U.S. 133, 140 (2010). If the defendant has three convictions
that qualify as violent felonies or serious drug offenses
under the definition of the statute, he must be sentenced to
a minimum of fifteen years.
determine whether a crime is a violent felony under the ACCA,
the court uses the categorical approach. Johnson v.
United States, 135 S.Ct. 2551, 2557 (2015). The
categorical approach “examines ‘the statutory
definition of the offense and not the particular facts
underlying the conviction.'” United States v.
Anderson, 695 F.3d 390, 399 (6th Cir. 2012) (quoting
United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.
2010)). Shepard documents will only be considered
“[i]f it is possible to violate the statute in a way
that would constitute a violent felony and in a way that
would not.” Anderson, 695 F.3d. at 399 (citing
Gibbs, 626 F.3d at 352 and Shepard v. United
States, 544 U.S. 13, 26 (2005)).
government agrees that because Walls' 2001 convictions
were the result of one criminal episode, only one of the
three may count towards his classification as an armed career
criminal. (Doc. No. 21 at 9). Therefore, Walls will only be
classified as an armed career criminal if both of his
aggravated assault convictions, incurred in 1992 and 1997,
and at least one of his 2001 convictions are considered
violent felonies under the ACCA.
was convicted of aggravated assault in 1992 and felonious
aggravated assault with a firearm specification in 1997. Both
convictions were incurred under O.R.C. § 2903.12. In
1992, the statute read as follows:
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: (1) Cause serious physical harm to
another; (2) Cause or attempt to cause physical harm to
another by means of a deadly weapon or dangerous ordnance.
O.R.C. § 2903.12(A) (1992). The statute was amended in
1996, before Walls' 1997 conviction, to add the phrase
“or to another's unborn” in subparts (1)-(2).
The amendment did not alter the underlying elements of the
offense. Instead, it criminalized harm to