Ohio Aggravated Robbery by Theft (§ 2911.01(A)(1) + § 2913.02) Categorically Matches Guidelines “Extortion,” and Therefore Is a Crime of Violence

Ohio Aggravated Robbery by Theft (§ 2911.01(A)(1) + § 2913.02) Categorically Matches Guidelines “Extortion,” and Therefore Is a Crime of Violence

Introduction

In United States v. Kenneth Evans, the Sixth Circuit addressed whether a prior Ohio conviction for aggravated robbery—specifically, Ohio Rev. Code § 2911.01(A)(1) when predicated on Ohio’s general theft statute, § 2913.02—qualifies as a “crime of violence” under the federal Sentencing Guidelines. The answer matters: labeling a prior conviction a crime of violence significantly raises the base offense level (and thus advisory range) for defendants convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).

Evans pleaded guilty to § 922(g)(1). The district court calculated his advisory range under the 2021 Guidelines, elevating his base offense level from 14 to 20 under U.S.S.G. § 2K2.1(a)(4)(A) based on a prior “crime of violence.” The court identified Evans’s Ohio aggravated-robbery conviction as that predicate. On appeal, Evans argued the enhancement was procedurally unreasonable because his aggravated-robbery conviction is not a “crime of violence” under either the elements clause or the enumerated-offenses clause of § 4B1.2(a). The Sixth Circuit affirmed, holding that § 2911.01(A)(1) aggravated robbery, when predicated on § 2913.02 theft, categorically matches the Guidelines enumerated offense of extortion and therefore qualifies as a crime of violence.

Summary of the Opinion

Writing for the panel, Judge Mathis held that Ohio aggravated robbery under § 2911.01(A)(1), as charged in Evans’s case and predicated on § 2913.02 theft, is a categorical match to “extortion” as that offense is enumerated in Guidelines § 4B1.2(a)(2) and defined in Application Note 1. The court therefore did not reach Evans’s alternative arguments under the elements clause or the enumerated offense of robbery.

Applying the categorical approach (and the modified categorical approach because the Ohio statute is “twice divisible”), the court compared the elements of Evans’s prior offense to generic Guidelines extortion: obtaining something of value from another by the wrongful use of force, fear of physical injury, or threat of physical injury. The panel concluded:

  • By committing § 2913.02 theft “with purpose to deprive” and “obtain[ing] or exert[ing] control over” another’s property or services, the offender necessarily “obtains something of value from another.”
  • By having and displaying/brandishing/indicating possession of/using a deadly weapon while committing or immediately fleeing from the theft, the offender necessarily uses, causes fear of, or threatens physical injury—satisfying extortion’s coercion requirement.

The panel rejected two defense theories: (1) that theft by deception undermines the coercion element (because aggravated robbery still requires weapon display/brandishing/use, which implies at least a threat of harm), and (2) that the “fleeing immediately after” clause is too temporally broad (because “immediately after” means without delay, and, in any event, Guidelines extortion has no concurrence requirement). The court affirmed the 57-month sentence and granted the government’s motion to take judicial notice.

Detailed Analysis

1. Precedents and Authorities Driving the Outcome

  • Guidelines text and commentary:
    • U.S.S.G. § 2K2.1(a)(6) and (a)(4)(A) (2021): base offense level 14 for § 922(g), increased to 20 if there is a prior crime of violence.
    • U.S.S.G. § 4B1.2(a): “crime of violence” includes enumerated offenses such as robbery and extortion.
    • Application Note 1 to § 4B1.2: defines “extortion” as obtaining something of value from another by the wrongful use of force, fear of physical injury, or threat of physical injury; cited with approval in the Sixth Circuit’s en banc decision in United States v. Cervenak, 135 F.4th 311, 323 (6th Cir. 2025).
  • Categorical and modified categorical approach:
    • Mathis v. United States, 579 U.S. 500, 504–09 (2016); Descamps v. United States, 570 U.S. 254, 257 (2013): compare elements of the prior conviction with the generic offense; ignore facts; use modified approach if the statute is divisible.
    • United States v. Ivy, 93 F.4th 937, 943 (6th Cir. 2024): Ohio’s aggravated-robbery statute is “twice divisible”: first by aggravated-robbery subtype (A)(1)-(3), and second by which of the 30+ “theft offenses” in § 2913.01(K) underlies the conviction.
    • United States v. Adkins, 729 F.3d 559, 567–68 (6th Cir. 2013): Ohio state court “journal entry” qualifies as a Shepard document to identify the precise elements of conviction.
  • Ohio authorities clarifying elements and implications:
    • Ohio Rev. Code § 2911.01(A)(1) (aggravated robbery with a deadly weapon) and § 2913.02(A) (theft: knowingly obtaining or exerting control over property or services with purpose to deprive).
    • State v. Brown, 237 N.E.3d 162, 167 (Ohio 2024): displaying/brandishing/indicating possession of a deadly weapon in the context of a theft conveys an implied threat to inflict physical harm.
    • State v. Evans, 911 N.E.2d 889, 895 (Ohio 2009): robbery under § 2911.02(A)(2) (inflict/attempt/ threaten physical harm) is a lesser-included offense of § 2911.01(A)(1) aggravated robbery—supporting that aggravated robbery necessarily entails at least a threat of physical harm.
    • State v. Thomas, 832 N.E.2d 1190, 1192 (Ohio 2005): “immediately after” means without delay or lapse of time.
    • State v. Madera, No. 93764, 2010 WL 3910750, at *3–4 (Ohio Ct. App. Oct. 7, 2010): too much delay between the theft and harm breaks contemporaneity; no aggravated robbery if not part of a single continuous transaction.
  • Sixth Circuit decisions aligning Ohio robbery-type offenses with Guidelines extortion:
    • United States v. Rice, No. 23-3771, 2024 WL 3898564, at *5–6 (6th Cir. Aug. 22, 2024).
    • United States v. Mandela, No. 24-3718, 2025 WL 2181485, at *4–5 (6th Cir. Aug. 1, 2025).
    • United States v. Coleman, No. 23-3924, 2025 WL 2391391, at *7–8 (6th Cir. Aug. 18, 2025): rejects argument that “theft by deception” undermines the coercion element where § 2911.01(A)(1) requires displaying/brandishing/using a deadly weapon.
    • United States v. Carter, 69 F.4th 361, 364 (6th Cir. 2023), abrogated on other grounds by Cervenak, 135 F.4th 311: Guidelines “extortion” has no concurrence requirement; the threat and the obtaining need not be simultaneous.
  • Realistic probability limiting principle:
    • Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007): a defendant must show a realistic probability, not a theoretical possibility, that a state applies its statute to nongeneric conduct; mere hypotheticals are insufficient.

2. The Court’s Legal Reasoning

The court’s analysis proceeds in three structured steps: (1) identify the precise Ohio offense of conviction, (2) set the generic definition of Guidelines “extortion,” and (3) compare the elements categorically to decide if the Ohio offense is the same as or narrower than the generic offense.

Step One: Pinpointing the Ohio Conviction Using the Modified Categorical Approach

Ohio’s aggravated-robbery statute, § 2911.01(A), is divisible into subparts (A)(1), (A)(2), and (A)(3). It is also divisible by the “theft offense” that underlies the aggravated-robbery charge because § 2911.01(A) is triggered by “attempting or committing a theft offense, as defined in § 2913.01(K),” which lists more than 30 different theft-type crimes. Because Evans’s conviction could have rested on different elements depending on these alternatives, the court used Shepard documents—the state indictment and journal entry—to identify the precise elements of Evans’s conviction. Those documents showed he pleaded guilty to § 2911.01(A)(1) aggravated robbery, with the underlying theft offense specifically identified as § 2913.02 (the general theft statute).

Thus, the relevant elements here are: (a) committing or attempting to commit § 2913.02 theft (or fleeing immediately thereafter), and (b) having a deadly weapon on or about the offender’s person or under control, and either displaying it, brandishing it, indicating possession of it, or using it.

Step Two: Generic Guidelines “Extortion”

Per § 4B1.2 cmt. n.1 and Cervenak, the elements of Guidelines extortion are: (1) obtaining something of value from another, (2) by the wrongful use of force, fear of physical injury, or threat of physical injury. The Sixth Circuit treats this definition as authoritative for cases governed by the 2021 Guidelines.

Step Three: Element-by-Element Match

The court found a categorical match on both prongs of extortion:

  • Obtaining something of value from another. The Ohio theft statute, § 2913.02(A), requires that the offender, with purpose to deprive, knowingly obtain or exert control over another’s property or services. That conduct is the functional equivalent of “obtaining something of value from another.” Sixth Circuit decisions have repeatedly recognized that depriving someone of property or services under § 2913.02 satisfies the “value” component of extortion because “property or services” are “something of value.” The government need not prove any particular market value; the statute’s premise is that the thing taken has value to its owner.
  • By wrongful use of force, fear of physical injury, or threat of physical injury. Section 2911.01(A)(1) requires that the offender have a deadly weapon and display/brandish/indicate possession of/use it during the theft or immediately thereafter. The Ohio Supreme Court in Brown held that displaying or brandishing a deadly weapon in the context of a theft communicates an implied threat of physical harm. In addition, Ohio’s § 2911.02(A)(2) robbery (inflict/attempt/ threaten physical harm) is a lesser-included offense of § 2911.01(A)(1) aggravated robbery (Evans), which confirms that aggravated robbery necessarily entails at least a communicated threat of physical harm. Either way, the offense satisfies the coercion element of extortion.

Defense Arguments Rejected

  • Theft by deception theory. Evans argued that because § 2913.02 can be committed by deception, aggravated robbery does not necessarily entail force, fear, or threat of injury. The court disagreed: § 2911.01(A)(1) adds the deadly-weapon display/brandishing/use element. Even if the manner of obtaining is deceptive, the brandishing or use of a weapon during the theft inherently communicates at least a threat of harm, which suffices for extortion. As Coleman observed, it “stretches credulity” to imagine aggravated robbery with a weapon not involving actual, feared, or threatened force.
  • Flight/temporal concurrence theory. Evans posited that aggravated robbery sweeps in people who only later acquire and display a weapon during flight, potentially severing any nexus between the theft and the coercion. The statute’s text and Ohio case law foreclose this argument: the “fleeing” covered must occur “immediately after” the theft, meaning without delay or lapse; Ohio courts decline to apply aggravated-robbery liability when the harm is not contemporaneous or part of a continuous transaction. Additionally, under Sixth Circuit law (Carter), Guidelines extortion has no “concurrence” requirement—the threat need not be simultaneous with the obtaining—so even if Ohio permitted a slight temporal separation, extortion’s scope would be broader, not narrower, maintaining the categorical match. Finally, under Duenas-Alvarez, Evans offered no cases demonstrating a realistic probability that Ohio applies § 2911.01(A)(1) to the far-removed scenario he hypothesized.

3. Impact and Implications

This decision cements an important pathway for treating Ohio aggravated robbery as a crime of violence in the Sixth Circuit—through the enumerated offense of “extortion,” not only through the elements clause or the enumerated offense of “robbery.” Key impacts include:

  • Sentencing consequences for Ohio offenders. Defendants with prior convictions under § 2911.01(A)(1) predicated on § 2913.02 theft will face higher base offense levels under § 2K2.1(a)(4)(A) in felon-in-possession cases. The same reasoning is likely relevant to the career-offender guideline (§ 4B1.1) and other contexts where “crime of violence” under § 4B1.2(a) matters.
  • Strategic charging and bargaining. Prosecutors and defense counsel should recognize that the “twice divisible” structure allows resort to Shepard documents to identify the underlying theft offense. Where the record shows § 2913.02 as the predicate and the aggravated-robbery subtype is (A)(1), the categorical match to extortion will be difficult to avoid. Counsel may focus on limiting the record of conviction or distinguishing the aggravated-robbery subtype and predicate theft offense where possible.
  • Doctrinal streamlining. By confirming an extortion-based route, the court reduces the need to litigate whether Ohio aggravated robbery necessarily involves “violent force” under the elements clause or whether it matches generic robbery—issues that have generated extensive nationwide litigation. The extortion analysis relies on the implied threat created by weapon display/brandishing/use and the “obtaining something of value” built into § 2913.02 theft.
  • Potential reach and limits. The holding is tailored: the match is for § 2911.01(A)(1) aggravated robbery as predicated on § 2913.02 theft. Because § 2911.01(A) is twice divisible, other combinations (e.g., different aggravated-robbery subparts or different “theft offenses” under § 2913.01(K)) will require separate analysis. Still, the court’s reasoning—weapon-based implied threats and the absence of an extortion concurrence requirement—will predictably influence those analyses.
  • Alignment with Sixth Circuit precedent on extortion’s definition. The decision leverages Cervenak’s endorsement of the extortion definition in § 4B1.2’s commentary and Carter’s recognition that extortion does not require simultaneity between the threat and the obtaining. Within the Sixth Circuit, parties should treat that definition as controlling for cases governed by the pre-amendment Guidelines text used here.

Complex Concepts Simplified

  • Categorical approach: Courts compare the elements of the prior state offense to the elements of a generic offense defined by federal law (here, Guidelines “extortion”). Facts of the prior case do not matter—only the statutory elements.
  • Divisible statutes: When a statute lists alternative elements that create multiple distinct crimes, it is “divisible.” If so, courts may use the “modified categorical approach.”
  • Modified categorical approach: Permits consulting a limited set of official records (Shepard documents) to identify which alternative elements formed the basis of the conviction. This still ends with an element-to-element comparison, not a fact-based inquiry.
  • Shepard documents: Charging instruments, plea agreements, plea colloquies, jury instructions, verdicts, and—in Ohio—journal entries documenting the conviction. These documents identify the precise offense of conviction and its elements.
  • Elements clause vs. enumerated-offenses clause: A prior conviction is a crime of violence if either (a) its elements require the use/attempted use/threatened use of physical force against a person (elements clause), or (b) it matches one of the offenses listed in the Guidelines (enumerated-offenses clause), such as “extortion.”
  • Generic “extortion” under the Guidelines: Obtaining something of value from another by wrongful use of force, fear of physical injury, or threat of physical injury. In the Sixth Circuit, this definition comes from § 4B1.2’s Application Note 1 and is authoritative for cases using the 2021 Guidelines.
  • “Concurrence requirement” (or lack thereof): Extortion does not require the threat and the obtaining to occur at the exact same time. A threat that induces the transfer can precede or follow the obtaining and still satisfy extortion’s coercion element.
  • “Realistic probability” test: A defendant who claims a state statute is broader than the generic offense must show real cases where the state actually applied the statute in the overbroad way—not just hypothetical possibilities.
  • Lesser-included offense: If offense B is a lesser-included offense of offense A, then A necessarily includes all elements of B plus something more. Here, Ohio robbery § 2911.02(A)(2) (threat/attempt/inflict harm) is lesser-included in § 2911.01(A)(1) aggravated robbery, reinforcing that aggravated robbery necessarily entails at least a threat of physical harm.
  • Weapon “display/brandish/indicate possession/use”: Ohio courts treat these as communicating at least an implied threat of physical harm when done in the context of a theft or immediate flight, thereby satisfying extortion’s coercion element.

Conclusion

United States v. Evans establishes a clear Sixth Circuit rule: Ohio aggravated robbery under § 2911.01(A)(1), when predicated on § 2913.02 theft, is categorically a crime of violence because it matches the Guidelines’ enumerated offense of extortion. The offense necessarily involves obtaining something of value from another (via the theft element) and, through the required display/brandishing/indication/use of a deadly weapon, the wrongful use of force, fear of physical injury, or threat of physical injury.

This holding reinforces a growing intra-circuit approach that channels Ohio robbery-type convictions through the “extortion” enumerated offense, reducing reliance on the often-contested elements-clause and generic-robbery arguments. Practically, the decision will raise advisory ranges for many defendants with Ohio aggravated-robbery histories in § 922(g) and other Guidelines contexts that incorporate § 4B1.2’s “crime of violence” definition. Because § 2911.01 is “twice divisible,” the precise subparagraph and the underlying theft offense still matter; but where, as here, the record shows § 2911.01(A)(1) with § 2913.02, the categorical match to extortion—and thus crime-of-violence status—is now firmly settled in the Sixth Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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