UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

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

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:22-cr-00204-1—John R. Adams, District Judge.

Decided and Filed: April 26, 2024

Before: GILMAN, McKEAGUE, and THAPAR, Circuit Judges.

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COUNSEL ON BRIEF: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Jason Manion, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

McKEAGUE, J., delivered the opinion of the court in which THAPAR, J., joined. THAPAR, J. (pp. 15–22), delivered a separate concurring opinion. GILMAN, J. (pp. 23–43), delivered a separate dissenting opinion. _________________

OPINION _________________

McKEAGUE, Circuit Judge. Tyren Cervenak challenges his 188-month sentence. Specifically, he challenges the district court’s application of a career-offender enhancement that increased the advisory sentencing guidelines range for his convictions. Cervenak argues that the No. 23-3466 United States v. Cervenak Page 2

district court erred by determining one of his prior state convictions—an Ohio robbery— qualified as a crime of violence under the sentencing guidelines.

Binding precedent forecloses Cervenak’s challenge to the career-offender enhancement. Under this precedent, his Ohio robbery conviction is a crime of violence. We AFFIRM.

I.

On August 11, 2022, Tyren Cervenak pleaded guilty in federal court to two counts of distributing crack cocaine and one count of possessing a firearm and ammunition as a convicted felon. Previously, Cervenak had been convicted of numerous crimes in Ohio state court. Relevant here are 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. In the recommendation, pretrial services explained that two of Cervenak’s state convictions qualified as “either a crime of violence or a controlled substance offense.” Because Cervenak had at least two such convictions, he qualified as a career offender. 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. See Ohio Rev. Code § 2911.02(A)(2); U.S.S.G. §§ 4B1.1(a), 4B1.2(a). He did not dispute that his heroin conviction could serve as a predicate offense for the enhancement.

At the sentencing hearing, the court overruled Cervenak’s objection, stating it would set out the reasons for its decision in a forthcoming order. The court then accepted the guidelines calculations recommended by pretrial services: with an offense level of 29 and a crimina