United States v. Cervenak, No. 23-3466 (6th Cir. 2024)
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Tyren Cervenak pleaded guilty to two counts of distributing crack cocaine and one count of possessing a firearm and ammunition as a convicted felon. Prior to this, Cervenak had been convicted of numerous crimes in Ohio state court, including two felony convictions: one in 2016 for two counts of robbery while using a firearm and another in 2020 for trafficking heroin. Prior to sentencing in the federal case, pretrial services recommended that the district court consider Cervenak a career offender under section 4B1.1 of the sentencing guidelines. Cervenak objected to his career-offender designation, arguing that a conviction under Ohio’s robbery statute does not qualify as a crime of violence under the sentencing guidelines.
The district court overruled Cervenak’s objection and accepted the guidelines calculations recommended by pretrial services. The court agreed with the government and imposed a total sentence at the high end of the guidelines range: 188 months. After the hearing, the court issued an order explaining its reasoning for applying the career-offender enhancement to Cervenak’s guidelines calculations. The district court concluded that a conviction under Ohio Revised Code § 2911.02(A)(2) (“Ohio robbery”) falls within the definition of “robbery” included among the enumerated offenses in U.S.S.G. § 4B1.2(a)(2), meaning that Ohio robbery qualifies as a crime of violence under the guidelines. Cervenak timely appealed.
The United States Court of Appeals for the Sixth Circuit affirmed the district court's decision. The court held that under its recent decision in United States v. Carter, a conviction for Ohio robbery qualifies as a crime of violence under the guidelines. The court found that Ohio robbery categorically matched generic “extortion,” which is also an enumerated offense under U.S.S.G. § 4B1.2(a)(2). The court rejected Cervenak's arguments that the Carter panel erred by failing to conduct the double-divisibility analysis mandated by Butts and Wilson and by assuming that “theft offense” under the Ohio statute categorically matches the “obtaining” element of generic extortion. The court concluded that Cervenak’s conviction for Ohio robbery qualifies as a crime of violence.
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