Sixth Circuit En Banc Oral Argument Set in Challenge to Whether a Conviction Under Ohio’s Felonious Assault Statute Qualifies as a "Crime of Violence" Under the Sentencing Guidelines

For Immediate Release: February 26, 2018

Contact: Craig M. Sandberg, 833.726.3237, craig@sandberglaw.com

Cincinnati, OH – Le’Ardrus Burris petitioned the United States Court of Appeals for the Sixth Circuit for a rehearing en banc. In his direct appeal, Burris challenged, inter alia, his 90-month Armed Career Criminal Act sentence. The prior conviction at issue in the petition was his conviction under Ohio’s felonious assault statute, Ohio Revised Code § 2903.11(A), which he maintained is overbroad and no longer a violent felony as it does not contain an element of force as defined by 18 U.S.C. § 924(e)(2). The panel affirmed his conviction and sentence, finding this Court’s prior holdings in United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) and Williams v. United States, 875 F.3d 803, Sixth Circuit Case No. 17-3211 (6th Cir. 2017), controlled. See United States v. Burris, Sixth Circuit Case No. 16-3855, p5 (6th Cir. Dec. 13, 2017).

A rehearing en banc was necessary for two reasons. First, there is a conflict in case law within this Circuit as to whether Ohio’s felonious assault statute is a violent felony after Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015). Compare United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) with United States v. Perry, 703 F.3d 906 (6th Cir. 2013). Additionally, Mr. Sandberg alleged that Anderson no longer remains good law in light of the Supreme Court’s rulings in Mathis v. United States, __ U.S. __, 136 S. Ct. 2243 (2016) and Descamps v. United States, __ U.S. __, 133 S. Ct. 2276 (2013).

Second, whether Ohio’s felonious assault statute is a violent felony under the Guidelines is a question of exceptional importance, as its determination will significantly affect the sentencing ranges for defendants in the future. In fact, in addition to Burris and Williams, this Court has two other cases currently pending that concern whether Ohio’s felonious assault statute is a violent felony or crime of violence. See United States v. Davison, Case No. 16-4732 (6th Cir.) (argued 10/12/17); United States v. Bellard, Case No. 16-4092 (6th Cir.) (still in briefing).

This case is notable because very few petitions are granted. The reason for this is the very high threshold.  FRAP 35(a) provides that en banc hearing is not favored and ordinarily will not be ordered unless (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance. Additionally, 6 Cir. I.O.P. 35(a) emphasizes the extraordinary nature of a petition for rehearing "intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent." As Sixth Circuit Judge Karen Moore emphasized in her oft-cited dissent in Bell v. Bell, 512 F.3d 223, 250 (6th Cir. 2008), a panel “getting it wrong” does not qualify as a matter exceptional public importance.  In addition, Judge Jeffrey S. Sutton observed that saving en banc review for “the rarest of cases...reflects a sound, collegial attitude.”  Mitts v. Bagley (Case No. 05-4420, 6th Cir. Dec. 3, 2010) (Sutton, J., concurring) (citation omitted).

Statistically speaking, a party may have a greater shot at having the U.S. Supreme Court grant their cert petition (the odds are around 1%) than the Sixth Circuit granting their petition for rehearing en banc. The Sixth Circuit, historically, hears en banc cases at two sittings each year, in June and December. For instance, during the 12-month period ending September 30, 2017, the Sixth Circuit issued only two en banc opinions. Out of total number of appeals disposed of on the merits by the Sixth Circuit (3,742), 433 (11.5%) were given oral argument and only two (0.05%) were en banc.

A court sitting “en banc” means that the court has heard the case that includes every judge who currently sits on that court.  The phrase “en banc” is French, and it means “on the bench”. The U.S. Court of Appeals for the Sixth Circuit is composed of 16 judges.

WHAT: Oral arguments begin in United States v. Burris (Docket No. 16-3855)

WHO: Craig M. Sandberg will argue for the defendant before the United States Court of Appeals for the Sixth Circuit sitting en banc

WHEN: Wednesday, June 13, 2018 at 1:30 p.m.

WHERE: United States Court of Appeals for the Sixth Circuit, Potter Stewart U.S. Courthouse, 100 East Fifth Street, Courtroom 403, Cincinnati, Ohio