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United States v. Denson

United States Court of Appeals, Sixth Circuit

August 29, 2013

United States of America, Plaintiff-Appellee,
v.
Demario Denson, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:12-cr-00021-1, James S. Gwin, District Judge.

ON BRIEF:

Brian R. McGraw, Cleveland, Ohio, for Appellant.

Duane J. Deskins, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Demario Denson's sentencing appeal presents two issues. The first is whether a conviction for inciting to violence, see Ohio Rev. Code § 2917.01(A), is a crime of violence under the career-offender provisions of the sentencing guidelines. We hold that it is not, but that the facts of Denson's conviction necessarily establish that the species of incitement to which he pled guilty is a crime of violence. The second question is whether the district court erred when it declined to apply an acceptance-of-responsibility adjustment based on a presentence report that showed Denson was charged with a new state firearm offense while awaiting sentencing in this case. We conclude that it did not. As a result, we AFFIRM.

I. BACKGROUND

Demario Denson was indicted in January 2012 on a charge of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). One month later, Denson was detained again for allegedly supplying a shotgun to a police informant who planned to commit a robbery. Denson pled guilty to the felon-in-possession charge in February 2012.

Denson's probation officer prepared a presentence investigation report for his sentencing on the earlier charge. The report identified two prior state felony convictions that increased the base-offense level used to calculate Denson's guidelines range because they were crimes of violence. See U.S.S.G. §§ 2K2.1(a)(2), 4B1.1, 4B1.2. Denson objected to the inclusion of an Ohio conviction for inciting to violence as a predicate crime of violence, see Ohio Rev. Code § 2917.01(A), arguing that the incitement statute could be violated without any violence actually occurring. The district court overruled the objection. It reasoned that the Ohio incitement statute meets the career-offender guideline's requirement that a qualifying prior offense must contain "the use, attempted use, or threatened use of physical force against the person of another" as an element because the threatened use of violence is sufficient to commit the state crime. See U.S.S.G. § 4B1.2(a)(1). The court thus concluded that Denson's incitement conviction constituted a crime of violence under the career-offender guideline.

The district court also rejected Denson's argument that his sentencing range should be reduced because Denson accepted responsibility for his crime. See U.S.S.G. § 3E1.1. Denson contended that he was "cloaked with the presumption of innocence" with respect to the unadjudicated shotgun-supplying charge, which the court should not consider against him. Finding it "hard to imagine something" that could "negate[]" Denson's acceptance of responsibility more than another firearm offense involving the sale of a shotgun to a would-be felon, the court declined to apply the reduction.

The district court sentenced Denson to a 72-month term of imprisonment.

II. ANALYSIS

Denson appeals two facets of the calculation of his sentence, which we review pursuant to 28 U.S.C. ยง 1291. First, he contends that his Ohio felony conviction for inciting to violence is not a crime of violence under the career-offender guideline. Second, Denson argues the district ...


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