United States v. Clarence Andrews
689 F. App'x 549
| 9th Cir. | 2017Background
- Clarence Andrews pleaded guilty to conspiracy to commit robbery (18 U.S.C. § 1951) and was sentenced to 210 months and ordered to pay $52,238.36 in restitution.
- Andrews did not object below to the restitution or to the factual basis for sentencing; he raised both issues for the first time on appeal.
- The government introduced evidence linking an additional robbery (within the conspiracy dates and matching the conspiracy's modus operandi) and sought restitution for victims of the entire scheme under § 3663A.
- The district court applied a career-offender enhancement under U.S.S.G. §§ 4B1.1 and 4B1.2, based on two prior California robbery convictions, increasing Andrews’ sentence.
- Andrews argued (1) plain-error challenge to restitution and (2) insufficient factual basis at sentencing; he also contended the Guidelines’ residual clause was unconstitutionally vague and sought judge reassignment.
- The Ninth Circuit affirmed the sentence, vacated the restitution order to correct a ten-cent clerical discrepancy (oral amount controls), and otherwise denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of restitution order (plain error) | Gov: Evidence proved the additional robbery was part of the conspiracy, so restitution for scheme victims is proper | Andrews: Disputed linking facts (e.g., rental vehicle color) undermine culpability for that robbery | No plain error as evidence met preponderance standard; restitution upheld but remanded to correct a $0.10 clerical discrepancy (oral pronouncement controls) |
| Sufficiency of factual basis for sentence (plain error) | Gov: PSR facts stand; defendant failed to object so district court need not make new findings | Andrews: District court misstated recruitment facts and lacked sufficient factual basis, possibly affecting sentence | No plain error — Andrews failed to show reasonable probability of a different sentence absent any alleged error |
| Career-offender designation and vagueness of residual clause | Gov: Guidelines apply; prior robberies qualify as crimes of violence | Andrews: Residual clause of U.S.S.G. §4B1.2(a)(2) is unconstitutionally vague | Court rejected vagueness challenge (Guidelines not subject to vagueness DP attack) and affirmed career-offender designation; Andrews waived some challenges to predicate convictions |
| Request for reassignment to different judge | N/A | Andrews requested reassignment | Denied |
Key Cases Cited
- United States v. Santiago, 466 F.3d 801 (9th Cir. 2006) (plain-error review when defendant fails to object below)
- United States v. Riley, 335 F.3d 919 (9th Cir. 2003) (restitution under § 3663A may cover all persons harmed by a conspiracy or scheme)
- United States v. Kuo, 620 F.3d 1158 (9th Cir. 2010) (oral restitution pronouncement controls over clerical judgment entry)
- United States v. Christensen, 732 F.3d 1094 (9th Cir. 2013) (defendant must show reasonable probability of different sentence on plain-error review)
- United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. 2009) (de novo review of career-offender designation)
- United States v. Kovac, 367 F.3d 1116 (9th Cir. 2004) (career-offender review standard)
- Beckles v. United States, 137 S. Ct. 886 (2017) (Guidelines not subject to vagueness challenges under the Due Process Clause)
- United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012) (waiver of appellate arguments when not preserved)