622 F. App'x 601
8th Cir.2015Background
- Laron Gray pleaded guilty to distributing ≥28 grams of cocaine base and was sentenced to 188 months after the district court applied the career-offender enhancement under U.S.S.G. § 4B1.1.
- The enhancement relied on three prior convictions: two aggravated assaults and one second-degree battery; government argued battery qualified under the Guidelines' "force" and "residual" clauses, assaults only under the residual clause.
- After Johnson invalidated the ACCA residual clause, this court had remanded in Taylor to consider whether the career-offender Guidelines' residual clause was similarly unconstitutional.
- The government conceded the assaults lacked an element of "force," so they could only qualify (if at all) via the residual clause; any error in applying the residual clause could be problematic post-Johnson.
- Gray also challenged counting the three priors under U.S.S.G. § 4A1.2(e) as too remote: his release from prison for those priors was Oct. 15, 1998, making the 15-year cut-off Oct. 15, 2013; Gray stipulated the instant offense date as Dec. 12, 2013.
- The district court found by a preponderance of the evidence that Gray's relevant conduct extended before Oct. 15, 2013, so the priors counted; because Gray’s Guidelines range would be the same without the career-offender enhancement, any residual-clause error was deemed harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the three prior convictions count in criminal history under § 4A1.2(e) (timeliness) | Gray: priors are too remote because instant offense date is Dec. 12, 2013, after the 15-year window closed Oct. 15, 2013 | Government: "commencement of the instant offense" includes relevant conduct; evidence shows relevant conduct before Oct. 15, 2013 | District court factual finding that relevant conduct predated Oct. 15, 2013 upheld (no clear error) |
| Whether the aggravated assaults qualify as crimes of violence under the career-offender "force" clause | Gray: assaults lack a force element and thus cannot qualify under "force" clause | Government: assaults qualify under the Guidelines' residual clause (alternative) | Government conceded assaults lacked force; they only relied on residual clause, which Johnson undermined |
| Validity of applying career-offender residual clause post-Johnson | Gray: residual clause is unconstitutionally vague (per Johnson) so enhancement invalid | Government: any residual-clause error is harmless because Guidelines range would be same without enhancement | Any residual-clause error was harmless; sentence affirmed |
| Standard of proof for relevant conduct at sentencing and admissible evidence | Gray: challenges district court's reliance on hearsay and proffer statements | Government: sentencing court may consider hearsay and uncorroborated statements with indicia of reliability; burden is preponderance | Court: district court acted within discretion; preponderance standard met; hearsay admissible at sentencing with reliability concerns considered |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause unconstitutionally vague)
- United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (post-Johnson remand holding residual clause issue required resentencing if it was sole basis for crime-of-violence determination)
- United States v. Stong, 773 F.3d 920 (8th Cir. 2014) (harmless-error analysis for Guidelines application)
- United States v. Howard, 759 F.3d 886 (8th Cir. 2014) (standard of review for relevant-conduct factual findings)
- United States v. Garcia, 774 F.3d 472 (8th Cir. 2014) (district court discretion to consider hearsay at sentencing)
- United States v. Thomas, 760 F.3d 879 (8th Cir. 2014) (relevant conduct at sentencing proven by preponderance of the evidence)