United States v. Le'Ardrus Burris ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0689n.06
FILED
No. 16-3855 Dec 13, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
LE’ARDRUS BURRIS, )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellant. )
)
)
BEFORE: MERRITT, MOORE, and ROGERS, Circuit Judges.
ROGERS, J., delivered the opinion of the court in which MERRITT and MOORE, JJ.,
joined. MERRITT, J. (p. 7), delivered a separate concurring opinion in which MOORE, J.,
joined.
ROGERS, Circuit Judge. This case presents the question of whether the district court
properly treated defendant Burris’s prior Ohio conviction for complicity to traffic drugs as a
“controlled substance offense” for purposes of applying the Career Offender guideline, U.S.S.G
§ 4B1.2(b), to Burris’s sentence below for conspiring to possess with intent to distribute and to
distribute heroin. The Ohio complicity statute sets forth four different ways in which a defendant
may be convicted of complicity: solicitation, aiding and abetting, conspiracy, and causing an
innocent person to commit the offense. Ohio Rev. Code § 2923.03. Burris argues that the
elements of solicitation in connection with drug trafficking do not meet the Career Offender
definition of a “controlled substance offense,” such that conviction under the complicity statute
No. 16-3855, United States v. Burris
as a whole is categorically excluded from serving as a predicate for Career Offender status. That
argument fails, however, because conviction for complicity to drug trafficking requires that the
State prove all the elements of the underlying substantive drug trafficking offense, Ohio Rev.
Code § 2925.03, which has been found to categorially qualify as a Guidelines controlled
substance offense. Burris’s other arguments on appeal are without merit.
Following a jury trial, Burris was convicted of four counts, including conspiring to
possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846.
At sentencing, the district court held that Burris was a career offender, and therefore subject to a
higher Sentencing Guidelines offense level, based upon Burris’s prior Ohio convictions for
complicity to drug trafficking in 2005 and felonious assault in 2007. Burris acknowledged the
two earlier convictions, but he objected to the career offender classification because, according
to Burris, it overstated his actual criminal history. He did not, however, argue that his prior
convictions were not career-offender predicate offenses. After weighing all relevant
circumstances, the court varied downward from the advisory Guidelines range of 210 to 262
months, and imposed a 90-month term of incarceration on the first two counts of the indictment,
a concurrent 12-month term of incarceration on the remaining two counts, followed by a three-
year term of supervised release and a $400 special assessment.
Burris’s contention that his prior Ohio conviction for complicity to drug trafficking does
not qualify as a controlled substance offense fails because each alternative enumerated in Ohio
Rev. Code § 2923.03 satisfies the Guideline definition of a controlled substance offense. In
Ohio, to be convicted of complicity to drug trafficking under Ohio Rev. Code § 2923.03, the
State must prove the elements of the underlying Ohio drug trafficking statute, Ohio Rev. Code
§ 2925.03(A)(1). Indeed, the statute makes clear that it is not a crime itself to be complicit, as
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one is only complicit in the commission of an underlying substantive offense. As the Ohio
Supreme Court has stated, “in order to convict an offender of complicity, the state need not
establish the principal’s identity . . . the state need only prove that a principal committed the
offense.” State v. Perryman, 358 N.E.2d 1040, 1048–49 (Ohio 1976), judgment vacated on
other grounds, 438 U.S. 911 (1978); see also State v. Coleman, 525 N.E.2d 792, 796 (Ohio
1988). Indeed, the 1973 Ohio Legislative Service Commission Comment to § 2923.03 makes
clear that “[a]n offense must actually be committed . . . before a person may be convicted as an
accomplice.” Section 2923.03 describes four alternatives for violating a substantive criminal
statute beyond acting as a principal offender, and Burris’s conviction for complicity required
proof that the elements of the drug trafficking statute as well as one or more of § 2923.03’s
alternatives were violated. Because Ohio’s drug trafficking statute has been found to
“categorically qualif[y] as a controlled substance offense” under the Guidelines, United States v.
Evans, 699 F.3d 858, 868 (6th Cir. 2012), complicity to drug trafficking also qualifies as a
controlled substance offense.
The Sixth Circuit employed similar reasoning in United States v. Gloss to find that a
conviction under Tennessee law for facilitation of aggravated robbery constituted a conviction of
a violent felony, for purposes of sentencing under the Armed Career Criminal Act (“ACCA”).
661 F.3d 317 (6th Cir. 2011). The court in Gloss reasoned that “[i]f a conviction for facilitation
or conspiracy requires the government to prove the elements of the underlying violent felony,
such a conviction will itself qualify as a violent felony under the first clause of [18 U.S.C.]
§ 924(e)(2)(B).” Id. at 319. Thus, Burris’s argument that soliciting the distribution of drugs may
include activity that is not a controlled substance offense is without merit. Whether a defendant
solicits the principal, aids or abets the principal, conspires with the principal, or causes an
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innocent person to engage in drug trafficking, the State is still required to prove the elements of
the underlying substantive offense, which categorically qualifies as a controlled substance
offense, see Evans, 699 F.3d at 868. Therefore, § 2923.03 also categorically qualifies as a
controlled substance offense under U.S.S.G. § 4B1.2(b). See Gloss, 611 F.3d at 319.
Burris’s citation of United States v. Dolt, 27 F.3d 235 (6th Cir. 1994), which interpreted
Florida’s drug solicitation statute, does not weaken this analysis because Ohio’s complicity
statute is meaningfully different. Unlike Ohio Rev. Code § 2923.03, “the Florida solicitation
statute does not require completion or commission of the offense.” Id. at 238. Florida’s
solicitation statute could not categorically qualify as a controlled substance offense under our
reasoning in Gloss because the substantive offense need not be proven in Florida, but Dolt does
not stand for the proposition that any statute that punishes solicitation cannot qualify as a
controlled substance offense. Thus, because § 2923.03 requires that the substantive offense be
committed or attempted before a person can be found complicit under any of the complicity
alternatives, including solicitation, Dolt is not applicable.
In his substitute brief, Burris additionally argues on appeal that Ohio’s felonious assault
statute, Ohio Rev. Code § 2903.11, is not a predicate violent felony offense under the Sentencing
Guidelines, but that argument is in direct contradiction with binding circuit precedent. In United
States v. Anderson, 695 F.3d 390, 400, 402 (6th Cir. 2012), this court held that committing
felonious assault in Ohio necessarily requires the use of physical force and is therefore a
predicate “violent felony” under the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Indeed, Anderson held
that both subsections (1) and (2) of Ohio Rev. Code §§ 2903.11(A) constitute a crime that “has
as an element the use, attempted use, or threatened use of physical force against another,” and,
thus, an ACCA force-clause predicate offense. 695 F.3d at 400, 402. The pertinent provision of
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the Guidelines is identical to the ACCA’s force clause. Compare U.S.S.G. § 4B1.2(a)(1), with
18 U.S.C. § 924(e)(2)(B)(i). Anderson was recently followed in Williams v. United States,
875 F.3d 803, 805–07 (6th Cir. 2017). Thus, Anderson and Williams are binding precedent that
resolve this issue.
Finally, notwithstanding Burris’s remaining argument, there was sufficient evidence to
support Burris’s conviction for conspiring to possess with intent to distribute heroin.
Drug Enforcement Administration special agent Daniel Wehrmeyer testified that when
Emery Lee, a major heroin dealer in the area, ran into supply issues with his source in New York
City, he began purchasing heroin from Burris’s sister-in-law, Ailyson Clipper. Task force
members testified that they observed Clipper meet with Lee, complete a drug transaction, and
then drive away to meet with Burris in a Bob Evans parking lot. There, Burris left his own car,
entered Clipper’s for approximately one minute, and then returned to his car and left. Members
of the drug task force also intercepted several electronic communications between Burris,
Clipper, and Antoine Dortch, Burris’s brother and Clipper’s husband, in which Clipper or Dortch
called or texted Burris’s cellphone to request specific amounts of heroin for a prearranged price.
Shortly after these communications were intercepted the task force would observe Clipper or
Dortch arrive at Burris’ mother’s home, stay for a short time, and then depart. Moreover, agents
executing warrant-based searches of Burris’s apartment and his mother’s home, with Burris’s
cooperation, found approximately 43 grams of heroin in a plastic bucket in the kitchen,
$2,000 cash, and a digital scale. Burris stated that he had purchased 28 grams of heroin a day
earlier; the additional approximately 15 grams was surplus he already had. Burris also told
officers that he had purchased 500 to 600 grams of heroin approximately six months earlier, in
November 2014, from LeVar Fellows, and had delivered $30,000 to an individual in Indiana at
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No. 16-3855, United States v. Burris
Fellows’s request. Burris’s trip to Indiana was confirmed by GPS records from his cellphone.
Burris accordingly admits that “the government produced circumstantial evidence that could lead
a finder-of-fact to conclude that Burris sold heroin to his sister-in-law (Clipper) and his brother
(Dortch).”
This was sufficient to support the jury’s finding that Burris was a member of a conspiracy
to possess and distribute heroin. “To prove a conspiracy under 21 U.S.C. § 846, the government
was required to prove, beyond a reasonable doubt, (1) an agreement to violate drug laws,
(2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” United
States v. Pritchett, 749 F.3d 417, 431 (6th Cir. 2014) (citation and internal quotation marks
omitted).
Burris claims that the government did not produce any direct evidence of a sale from
Burris to anyone and failed to produce sufficient evidence that could allow a finder-of-fact to
conclude that he voluntarily joined a conspiracy. But Burris’s argument fails because “[t]he
existence of a conspiracy may be inferred from circumstantial evidence that can reasonably be
interpreted as participation in the common plan.” United States v. Martinez, 430 F.3d 317, 330
(6th Cir. 2005) (citation and internal quotation marks omitted). Once the government establishes
a conspiracy beyond a reasonable doubt, “a defendant’s connection to the conspiracy need only
be slight.” Id. Here the trial testimony was sufficient to establish that a conspiracy to distribute
heroin existed and that Burris was a co-conspirator.
For the foregoing reasons, the district court correctly held that Burris’s prior convictions
for complicity to drug trafficking and felonious assault qualified as career-offender predicate
offenses under the Guidelines, and that his current conviction for conspiracy to possess and
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distribute heroin is supported by substantial evidence. The judgment of conviction and the
sentence imposed by the district court are affirmed.
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MERRITT, Circuit Judge, concurring. I join the Court in affirming Burris’s sentence.
I agree with the Court that Burris’s case is distinguished from U.S. v. Dolt, 27 F.3d at 235, by the
fact that no person may be convicted under any theory of the Ohio complicity statute “unless an
offense is actually committed.” Ohio Rev. Code Ann. § 2923.03(C).
The Florida solicitation statute in Dolt required “only that the defendant make some
statement which might lead to another person’s commission of the crime.” Dolt, 27 F.3d at 238.
This Court’s decision in Dolt prevented the unjust expansion of the § 4B1.2(b) controlled-
substance offense definition to include the act of merely speaking about a crime which never
actually occurred.
No such injustice occurs in Burris’s case. In Ohio, a defendant convicted for solicitation
is held culpable for the completion of a crime which his or her words set in motion. Conviction
requires proof that the defendant “act[ed] with the kind of culpability required for the
commission of [the underlying] offense.” Ohio Rev. Code Ann. § 2923.03(A).
Therefore, I agree with the majority that the statute in Dolt and the statute here are
“meaningfully different,” supra at 4, and that an Ohio conviction for complicity qualifies as a
controlled-substance offense under the U.S. Sentencing Guidelines § 4B1.2(b).
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