United States v. Leonard Ellis
815 F.3d 419
8th Cir.2016Background
- Defendant Leonard Ellis pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and was sentenced to 61 months’ imprisonment.
- The presentence calculation used USSG § 2K2.1, which sets a higher base offense level (20) if the defendant has a prior felony that is a “crime of violence,” otherwise base level is 14.
- The district court found Ellis’s prior Missouri felony conviction for resisting arrest by fleeing (Mo. Rev. Stat. § 575.150) qualified as a “crime of violence” under the guideline’s residual clause (§ 4B1.2(a)(2)), producing an advisory range of 51–63 months (after adjustments) and the court sentenced to 61 months.
- Ellis objected that the Missouri offense is not categorically a crime of violence; the court relied on precedent (United States v. Hudson and Hollis) holding felony § 575.150 convictions categorical crimes of violence because felony convictions require proof that the flight created a substantial risk of serious physical injury.
- On appeal Ellis raised, for the first time, two additional challenges: (1) that the residual clause of § 4B1.2(a)(2) is unconstitutionally vague under Johnson v. United States; and (2) that his prior resisting-arrest conviction should not have been counted because it received concurrent equal-length sentences and thus did not produce criminal history points under USSG § 4A1.2(a)(2).
- The panel affirmed: it rejected the categorical-ness objection (following Hudson), held that Johnson-based vagueness relief was not available under plain-error review because the question whether advisory guidelines can be attacked for vagueness was not an "obvious" error in this circuit, and declined to correct the concurrent-sentence counting issue under plain-error principles despite recognizing King v. United States had briefly supported the contrary view.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ellis’s Missouri felony conviction for resisting arrest by fleeing is categorically a "crime of violence" under USSG § 4B1.2(a)(2) | Ellis: Some § 575.150 violations (e.g., mere foot flight) lack the serious-risk element, so the offense is not categorically a crime of violence. | Govt: Precedent (Hudson, Hollis) holds felony § 575.150 requires proof of substantial risk and is categorical crime of violence. | Court: Affirmed district court; Hudson controls — felony § 575.150 is categorical crime of violence. |
| Whether the residual clause of § 4B1.2(a)(2) is unconstitutionally vague under Johnson v. United States | Ellis: By analogy to Johnson (ACCA residual clause), the guideline residual clause is void for vagueness. | Govt: Concedes vagueness but argues issue was forfeited; even if error, not plain and Ellis cannot show reasonable probability of a different sentence. | Court: No plain-error relief. Whether vagueness doctrine applies to advisory guidelines is not an "obvious" error in this circuit, so Johnson does not mandate relief on plain-error review. |
| Whether Ellis’s resisting-arrest conviction should count for base-level calculation when sentenced concurrently to an equal-term nonviolent offense | Ellis: When two concurrent sentences are equal, neither is the "longest sentence" under § 4A1.2(a)(2), so the resisting-arrest conviction should not count for points. | Govt: Argues that even if King supported Ellis, King was repudiated by other circuits, this court, and the Sentencing Commission; and Ellis cannot show a reasonable probability of a lower sentence. | Court: Declined to grant plain-error relief. Although King briefly accepted the argument, the better view rejects King; affirming the sentence does not constitute a miscarriage of justice. |
| Whether forfeited sentencing errors warrant plain-error reversal | Ellis: Seeks relief based on Johnson and King-derivative argument despite failing to raise them below. | Govt: Asserts forfeiture; urges plain-error standard and lack of reasonable probability of a different sentence. | Court: Applied plain-error framework and denied relief; errors (if any) were not plain or did not affect substantial rights such that relief is required. |
Key Cases Cited
- United States v. Hudson, 577 F.3d 883 (8th Cir. 2009) (holding felony violation of Mo. Rev. Stat. § 575.150 is categorically a crime of violence)
- United States v. Hollis, 447 F.3d 1053 (8th Cir. 2006) (per curiam) (construing resisting-arrest felony as crime of violence)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (Supreme Court holding ACCA residual clause unconstitutionally vague)
- United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (vacated sentence and remanded; left question of guideline residual clause's constitutionality to district court)
- United States v. Wivell, 893 F.2d 156 (8th Cir. 1990) (holding sentencing guidelines not subject to vagueness attack)
- King v. United States, 595 F.3d 844 (8th Cir. 2010) (panel held concurrent equal sentences could preclude counting, later treated as outlier)
- United States v. Williams, 753 F.3d 626 (6th Cir. 2014) (rejecting King and holding each concurrent conviction may count separately)
- Donnell v. United States, 765 F.3d 817 (8th Cir. 2014) (agreeing with Sixth Circuit that King was wrongly decided)