UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 23-3466 v. │ │ │ TYREN L. CERVENAK, │ Defendant-Appellant. │ ┘

On Petition for Rehearing En Banc United States District Court for the Northern District of Ohio at Cleveland. No. 1:22-cr-00204-1—John R. Adams, District Judge.

Argued En Banc: December 11, 2024

Decided and Filed: April 2, 2025

Before: SUTTON, Chief Judge; MOORE, CLAY, GILMAN, McKEAGUE, GRIFFIN, KETHLEDGE, STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY, DAVIS, MATHIS, BLOOMEKATZ, and RITZ, Circuit Judges. _________________

COUNSEL ARGUED EN BANC: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Jason Manion, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON SUPPLEMENTAL BRIEF: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Jason Manion, James A. Ewing, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

MATHIS, J., delivered the opinion of the court, in which SUTTON, C.J., and MOORE, CLAY, GILMAN, KETHLEDGE, STRANCH, LARSEN, DAVIS, and BLOOMEKATZ, JJ., joined in full, and BUSH, NALBANDIAN, MURPHY, and RITZ, JJ., joined in part. NALBANDIAN, J. (pp. 23–28), delivered a separate opinion concurring in all but Part IV.A.2 and footnote 2, in which BUSH and MURPHY, JJ., joined. RITZ, J. (pp. 29–36), delivered a separate opinion concurring in part and dissenting in part, in which GRIFFIN and READLER, No. 23-3466 United States v. Cervenak Page 2

JJ., joined in Parts I–IV. GRIFFIN, J. (pp. 37–40), delivered a separate dissenting opinion in which THAPAR, J., joined. THAPAR, J. (pp. 41–84), delivered a separate dissenting opinion in which McKEAGUE, GRIFFIN, and READLER, JJ., joined. _________________

OPINION _________________

MATHIS, Circuit Judge. Congress instructed the Sentencing Commission to enhance the Sentencing Guidelines range for individuals convicted of a crime of violence or a controlled substance offense after having been previously convicted of two or more such offenses. 28 U.S.C. § 994(h). The Commission created the career-offender guideline in response to Congress’s directive.

We must decide if the district court properly increased Tyren Cervenak’s Guidelines range under the career-offender guideline. Specifically, we consider whether Cervenak’s prior convictions for robbery under Ohio law are “crimes of violence,” as the Guidelines use that term. Because we hold that they are not, we vacate Cervenak’s sentence.

I.

In 2022, a grand jury indicted Cervenak on two counts of distributing controlled substances, see 21 U.S.C. § 841(a)(1), (b)(1)(C), and on one count of being a felon in possession of a firearm and ammunition, see 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2021). Cervenak pleaded guilty as charged.

Cervenak had multiple prior felony convictions. One of th