United States v. Litzy
2015 WL 5895199
W.D. Va.2015Background
- Defendant Jazzmyn Litzy pleaded guilty to possession with intent to distribute heroin; sentencing contested application of the Guidelines career‑offender enhancement under U.S.S.G. § 4B1.1.
- Probation recommended career‑offender status based on two prior felony convictions: a 2001 Ohio robbery (O.R.C. § 2911.02(A)(3)) and a 2006 drug trafficking conviction.
- Litzy objected, arguing the Ohio robbery conviction is not a "crime of violence" under § 4B1.2(a)’s force clause, the residual clause (which she argued is void for vagueness), nor under the commentary enumerating robbery.
- The Court applied the categorical approach to compare Ohio robbery to the Guidelines definition(s) and the generic robbery definition (Model Penal Code), and considered Supreme Court precedent on "physical force" and vagueness.
- The Court concluded the Ohio statute is broader than the force Johnson decisions and the MPC/generic robbery definition allow, and that the Guidelines’ residual clause is unconstitutionally vague; it therefore sustained Litzy’s objection and declined to apply the career‑offender enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether O.R.C. § 2911.02(A)(3) qualifies as a "crime of violence" under the force clause (§ 4B1.2(a)(1)) | Gov’t: Ohio robbery is robbery and involves force, so it meets the force clause | Litzy: Ohio "force" can be satisfied by nonviolent compulsion/constraint or force against things, thus it does not require violent force capable of causing physical injury | Held: Ohio statute allows nonviolent force; does not meet Johnson standard for "physical force," so it fails force clause |
| Whether the residual clause (§ 4B1.2(a)(2)) may be used to find a crime of violence after Johnson (2015) | Gov’t: residual clause mirrors ACCA and has been used historically; some circuits uphold it | Litzy: Johnson (ACCA) renders identical residual clause unconstitutionally vague; thus it cannot be relied on | Held: Court applies Johnson and concludes the Guidelines’ residual clause is unconstitutionally vague and will not be used |
| Whether the Guidelines’ commentary enumerating "robbery" supplies an independent basis to treat the Ohio conviction as a crime of violence | Gov’t: commentary lists robbery among crimes of violence, so Ohio robbery should qualify | Litzy: enumeration does not control when a state statute is idiosyncratic or broader than the generic offense | Held: Court applies Taylor/Peterson two‑step test using MPC generic definition and finds Ohio robbery categorically broader; commentary does not save the conviction |
| Net effect on career‑offender enhancement | N/A | Litzy: without the Ohio robbery as a predicate, only one qualifying prior remains; career‑offender enhancement should not apply | Held: Sustained—Ohio robbery does not qualify, so career‑offender enhancement cannot be applied to Litzy |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing physical harm)
- Johnson v. United States, 576 U.S. 591 (2015) (ACCA residual clause is unconstitutionally vague)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for predicate offenses)
- Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative absent inconsistency with text)
- United States v. Peterson, 629 F.3d 432 (4th Cir. 2011) (two‑step approach for commentary‑enumerated offenses)
- United States v. Shell, 789 F.3d 335 (4th Cir. 2015) (§4B1.2(a) must be read by its text; commentary cannot override textual limits)
- United States v. Montes‑Flores, 736 F.3d 357 (4th Cir. 2013) (Fourth Circuit follows ACCA force interpretation when construing §4B1.2)
- United States v. Evans, 576 F.3d 766 (7th Cir. 2009) (state battery statute that permits only offensive touching may fail force clause)