United States v. Malik Squaer ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0053n.06
No. 17-3051 FILED
Jan 29, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE
)
NORTHERN DISTRICT OF
MALIK SQUAER, )
OHIO
)
Defendant-Appellant. )
OPINION
)
)
BEFORE: NORRIS, BATCHELDER, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Malik Squaer pled guilty to a single count of
being a felon in possession of a firearm under 18 U.S.C. § 922(g). Squaer’s sentence was
enhanced pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924, and he was
sentenced to 200 months of imprisonment. Squaer appeals this sentence arguing that his two
prior Ohio convictions for aggravated robbery do not qualify as violent felonies and cannot serve
as predicate offenses under ACCA. We disagree and AFFIRM Squaer’s sentence.
I. BACKGROUND
The parties do not dispute the material facts in this case. In March of 2016, the Ohio
Adult Parole Authority (APA) received a Transfer Investigation Request as a result of Squaer’s
moving his residence from Cleveland, Ohio to Lorain, Ohio. Parole officers Jeffrey Jones and
Susan Kahoun unsuccessfully tried to contact Squaer and then went to Squaer’s proposed Lorain
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residence. (Id.) Squaer answered the door, the officers identified themselves, and Squaer
allowed them to enter. The officers smelled marijuana and Squaer admitted that he had recently
been smoking marijuana. The officers conducted a “security sweep” of the apartment and
observed a bag of marijuana and a digital scale. After Jones obtained Squaer’s wife’s permission
to search the apartment, Squaer informed Jones that there was a firearm in the back bedroom; a
subsequent search yielded a Glock 23, .40 caliber pistol. Additionally, the officers located
slightly more than a quarter ounce of marijuana as well as small quantities of fentanyl and
cocaine. Squaer also had $764 on his person.
On June 14, 2016, Squaer was indicted and charged with a single count of being a felon
in possession of a firearm under 18 U.S.C. § 922(g)(1). (Squaer had previously been convicted
of four felonies that are relevant to this appeal: 1) Felonious Assault in violation of Ohio Revised
Code (O.R.C.) 2903.11 in 2000; 2) Conspiracy and Possession with Intent to Distribute Cocaine
Base in violation of 21 U.S.C. § 846 in 2001; 3) Aggravated Robbery with Firearm Specification
in violation of O.R.C. 2911.01(A)(1) in 2009, relating to a 2007 offense; 4) Aggravated Robbery
with Firearm Specification in violation of O.R.C. 2901.01(A)(1) in 2009, relating to a 2008
offense.
Squaer’s Presentence Investigative Report determined that based on these prior felony
convictions his sentence should be enhanced under the ACCA. Squaer filed a sentencing
memorandum objecting to the armed career criminal designation in December 2016. In January
2017, the district court held a sentencing hearing and concluded that Squaer did meet the criteria
for the armed career criminal designation and imposed a sentence of 200 months of
imprisonment, followed by three years of supervised release. Squaer timely appealed that
sentence.
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II. STANDARD OF REVIEW
We review “de novo a district court's determination that an offense constitutes a ‘violent
felony’ under the ACCA.” United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014)
(quoting United States v. Benton, 639 F.3d 723, 729 (6th Cir. 2011)). We review sentencing
determinations under an abuse of discretion standard. United States v. Solano-Rosales, 781 F.3d
345, 351 (6th Cir. 2015). Our review of sentences has a procedural and substantive component.
Id. A sentence is procedurally reasonable when the advisory Guidelines are properly calculated,
the district court adequately considers the 18 U.S.C. § 3553(a) factors, and the sentencing court
articulates its reasoning for imposing a particular sentence. United States v. Adams, 873 F.3d
512, 517 (6th Cir. 2017). In evaluating the substantive reasonableness of a sentence, we give
deference to the sentence imposed and “we must ‘take into account the totality of circumstances,
including the extent of any variance from the Guidelines range.’” Id. (quoting United States v.
Bolds, 511 F.3d 568, 581 (6th Cir. 2007)).
III. ANALYSIS
A. ACCA Requirements
The Armed Career Criminal Act provides that any individual convicted of being a felon
in possession of a firearm under 18 U.S.C. § 922(g), who has previously been convicted of three
violent felonies or serious drug offenses, or a combination of both, shall be imprisoned for a term
of not less than 15 years. 18 U.S.C. § 924(e)(1). As originally drafted, the ACCA provided
three avenues by which an offense could constitute a violent felony. The so-called elements
clause provides that any offense that “has as an element the use, attempted use, or threatened use
of physical force against the person of another” constitutes a violent felony.
18 U.S.C. § 924(e)(2)(B)(i). Violent felonies also include certain enumerated offenses including
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“burglary, arson, or extortion, [or offenses] involv[ing the] use of explosives. . . ”
18 U.S.C. § 924(e)(2)(B)(ii) (enumerated offenses clause). Finally, the Act’s so-called residual
clause also provides that any offense that “otherwise involves conduct that presents a serious
potential risk of physical injury to another” is a violent felony. 18 U.S.C. § 924(e)(2)(B)(ii).
The Supreme Court, however, invalidated the residual clause in Johnson v. United States, 135 S.
Ct. 2551, 2563 (2015), holding that the clause was unconstitutionally vague. As a result, to
qualify as a predicate offense for ACCA, the prior conviction must satisfy the requirements of
either the elements clause or the enumerated offenses clause.
B. ACCA predicate offenses
We have previously concluded that O.R.C. Section 2911.01(A)(1) constitutes an ACCA
predicate offense under the elements clause. United States v. Patterson, 853 F.3d 298, 303 (6th
Cir. 2017). See also United States v. Patterson, --- F.3d ---, No. 17-3706, 2017 WL 6506582, at
*1 (6th Cir. Dec. 20, 2017). Section 2911.01(A)(1) provides that:
(A) No person, in attempting or committing a theft offense, as defined in section
2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the
offender's control and either display the weapon, brandish it, indicate that the
offender possesses it, or use it;
O.R.C. § 2911.01(A)(1). To determine if Squaer’s armed robbery convictions qualify as violent
felonies, we utilize the categorical approach and “look only to the statutory definition of the
offense rather than to the facts underlying the conviction to determine whether it counts as a
crime of violence.” United States v. Verwiebe, 874 F.3d 258, 260 (6th Cir. 2017) (citing Taylor
v. United States, 495 U.S. 575 (1990)). As we noted in Patterson, the Ohio Supreme Court has
definitively ruled that Section 2911.01(A)(1) has an element that the offense includes the “use,
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attempted use, or threatened use of physical force.” The Ohio Supreme Court held that under
Section 2911.01(A)(1)
One cannot display, brandish, indicate possession of, or use a deadly weapon in
the context of committing a theft offense without conveying an implied threat to
inflict physical harm. It is the very act of displaying, brandishing, indicating
possession, or using the weapon that constitutes the threat to inflict harm because
it intimidates the victim into complying with the command to relinquish property
without consent.
State v. Evans, 911 N.E.2d 889, 894 (Ohio 2009). As we ruled in Patterson, this unequivocal
statement means that Section 2911.01(A)(1) constitutes a crime of violence for the purposes of
ACCA.
Squaer, however, requests that we revisit the ruling in Patterson and argues that
“additional consideration should be given to what constitutes physical force . . . .” We find this
argument unavailing as Patterson adequately analyzed and resolved this issue. See Patterson,
853 F.3d at 303–06. We are, moreover, bound by previously published precedent, absent an
intervening Supreme Court decision modifying the governing law or an en banc decision
overruling prior precedent. See United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014).
C. Procedural and substantive reasonableness
Squaer argues that his sentence is unreasonable because the district court “erred in
calculating his applicable advisory sentencing range under the United States Sentencing
Guidelines.” He contends that his sentence is substantively unreasonable because the district
court sentenced him under the provisions of the ACCA that triggered the Guidelines’
enhancements to his offense level and criminal history categorization.
The ACCA establishes a mandatory minimum sentence of 15 years of imprisonment
where the defendant has previously been convicted of three prior violent felonies or serious drug
offenses. See 18 U.S.C. § 924(e). Section 4B1.4 of the United States Sentencing Guidelines
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(USSG) enhances both the offense level and the criminal history category for purposes of
calculating the advisory Guidelines. As in the ACCA, Section 4B1.4’s provisions are triggered
when a defendant has three prior convictions for violent felonies or controlled substance
offenses. See § 4B1.4(a). Section 4B1.4 also utilizes the same standard as the ACCA for
determining whether an offense constitutes a violent felony. United States v. Prater, 766 F.3d
501, 508 (6th Cir. 2014). Therefore, our conclusion that the district court properly determined
that Squaer’s prior convictions triggered the provisions of ACCA necessarily means that his
prior convictions triggered the enhancements in Section 4B1.4. See id. Squaer’s total offense
level was 31 and he had a criminal history category of VI, yielding an advisory Guidelines range
of 188 to 235 months. By imposing a 200 month sentence, the district court entered a within-
Guidelines sentence, which we presume to be reasonable. United States v. Vonner, 516 F.3d
382, 389 (6th Cir. 2008) (en banc). Squaer’s contention that his sentence is substantively
unreasonable, thus, stands or falls with his argument that his aggravated robbery convictions do
not constitute violent felonies. We have rejected that argument and concluded that the district
court did not err. Squaer’s sentence was not substantively unreasonable.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the decision of the district court.
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