United States v. Soto-Rivera
2016 U.S. App. LEXIS 1111
1st Cir.2016Background
- Soto-Rivera pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); indictment also alleged the gun was a machinegun but he pleaded only to generic possession.
- Plea agreement and parties' calculations anticipated two possible Guidelines ranges depending on whether he qualified as a Career Offender; parties and district court treated him as a Career Offender at sentencing.
- District court concluded Soto-Rivera had two prior controlled-substance felonies and that the instant § 922(g)(1) offense was a "crime of violence," applying U.S.S.G. § 4B1.1 and sentencing him to 108 months.
- On appeal the government conceded the Guidelines' residual clause is invalid in light of Johnson v. United States and asked the Court to affirm on other grounds (relying on Application Note 1 to § 4B1.2).
- The First Circuit held that, with the residual clause excised, § 4B1.2(a) does not encompass mere passive possession (even of a machinegun) because possession lacks an element of use, attempted use, or threatened use of physical force and is not one of the enumerated offenses.
- The court rejected the government’s attempt to rely on Application Note 1 as an independent basis because doing so would be inconsistent with the Guidelines text post-Johnson; therefore Soto-Rivera’s Career Offender designation was improper and his sentence was vacated and remanded for resentencing without the Career Offender enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(1) felon-in-possession conviction is a "crime of violence" under U.S.S.G. § 4B1.2 so as to trigger Career Offender status | Government: the offense qualifies under the residual clause and, alternatively, Application Note 1 (because the gun was a machinegun) | Soto-Rivera: mere possession (of a generic firearm) lacks an element of force and does not present the sort of categorical risk covered by the Guideline once Johnson is applied | Court: With the residual clause invalidated (per government concession), § 4B1.2(a) does not cover passive possession; Application Note 1 cannot independently expand the text; Career Offender status improper |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
- Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative unless unconstitutional, statutory conflict, or plainly inconsistent with guideline text)
- Booker v. United States, 543 U.S. 220 (2005) (Sentencing Guidelines are advisory post-Booker)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (framework for Guidelines and ex post facto concerns)
- United States v. Serrano-Mercado, 784 F.3d 838 (1st Cir. 2015) (overview of how Guidelines inputs produce a sentencing range)
- United States v. Tavares, 705 F.3d 4 (1st Cir. 2013) (de novo review of Guidelines interpretation)