Todd D'Antoni v. United States, 916 F.3d 658

916 F.3d 658

7th Cir.

2019

*1 Before F LAUM , B ARRETT , and S CUDDER , Circuit Judges . F LAUM , Circuit Judge . Todd D’Antoni received an en- hanced sentence under the career-o ﬀender provision of the 1990 United States Sentencing Guidelines, based on a prior felony drug conviction and a prior felony “crime of violence” conviction. See U.S.S.G. § 4B1.1 (1990). Relevant here, the pro- vision’s “crime of violence” deﬁnition included a residual clause, encompassing any felony “involv[ing] conduct that *2 presеnt[ed] a serious potential risk of physical injury to an- other.” Id. § 4B1.2(1)(ii). The Guidelines were mandatory as applied to D’Antoni because he was sentenced well before the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005), which held the Guidelines must be advisory to comply with the Constitution.

Following Johnson v. United States , 135 S. Ct. 2551 (2015), in which the Supreme Court held the identical Armed Career Criminal Act (“ACCA”) residual clause “violent felony” deﬁ- nition was unconstitutionally vague, D’Antoni brought a 28 U.S.C. § 2255 motion seeking resentencing. He argued Johnson applied to make § 4B1.2’s residual clause “crime of violence” deﬁnition unconstitutionally vague, and he claimed the sentencing court considered one of his predicate convic- tions—conspiracy to kill a government witness—a crime of violence only under the residual clause. Although in Beckles v. United States , 137 S. Ct. 886 (2017), the Supreme Court held that Johnson did not extend to the post- Booker advisory Guide- lines residual clause, in Cross v. United States , 892 F.3d 288 (7th Cir. 2018), we held that Johnson did render the pre- Booker man- datory Guidelines residual clause unconstitutionally vague.

At issue in this case is whether D’Antoni’s sеntence should nevertheless be aﬃrmed because “conspiracy,” “murder,” and “manslaughter” were listed as crimes of violence in the application notes to the 1990 version of § 4B1.2. Our unani- mous en banc decision in United States v. Rollins , 836 F.3d 737 (7th Cir. 2016), answers this question: The application notes’ list of qualifying crimes is valid only as an interpretation of § 4B1.2’s residual clause, and because invalidated that residual clause, the aрplication notes no longer have legal force. Accordingly, D’Antoni is entitled to resentencing.

I. Background

A. Convictions and Sentences In 1987, the government charged D’Antoni with selling co- caine to a juvenile resulting in her death, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 845(a). While in jail pending charges, D’ Antoni oﬀered an other inmate $4,000 and two ounces of cocaine to kill a government witness related to the cocaine charge. The inmate agrеed, and D’Antoni gave him instructions to contact D’Antoni’s brother and a code- fendant. However, instead of following D’Antoni’s instruc- tions, the inmate went to the police and agreed to cooperate. The government then charged D’Antoni with conspiracy to kill a government witness, in violation of 18 U.S.C. § 371.

D’Antoni simultaneously pleaded guilty to both the co- caine distribution charge and the conspiracy charge, and in December 1987, he was sentenced in both cases. The district court imposed a 35-year term of imprisonment on the drug charge and a consecutive 5-year term of imprisonment on the conspiracy charge. We aﬃrmed th ose convictions and sen- tences. United States v. D’Antoni , 856 F.2d 975 (7th Cir. 1988).

In October 1990, the government charged D’Antoni with conspiracy to distribute LSD while in jail, in violation of 21 U.S.C. § 846. A jury convicted D’Antoni in February 1991. Pursuаnt to the drug-quantity Guideline, U.S.S.G. § 2D1.1 (1990), the presentence report calculated a mandatory Guide- lines range of 51–63 months’ imprisonment.

The government objected. It argued D’Antoni should re- ceive an enhanced sentence under the Guidelines career-of- fender provision. The Guidelines classiﬁ ed a defendant as a career oﬀender if: (1) he is at least eighteen years old when he *4 committed thе instant oﬀense; (2) the “instant oﬀense of con- viction is a felony that is either a crime of violence or a con- trolled substance oﬀense ” ; and (3) he “has at least two prior felony convictions of either a crime of violence or a controlled substance oﬀense. ” Id. § 4B1.1. The 1990 Guidelines deﬁned “crime of violence” as follows:

(1) The term “crime of violence” means any of- fеnse under federal or state law punishable by imprisonment for a term exceeding one year that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extor- tion, involves use of explosives, or other- wise involves conduct that presents a serious ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ potential risk of physical injury tо another . Id. § 4B1.2(1) (emphasis added). Section 4B1.2(1)(i) is referred to as the “elements clause,” the nonemphasized text in § 4B1.2(1)(ii) is referred to as the “ enumerated oﬀenses clause,” and the emphasized text in § 4B1.2(1)(ii) is referred to as the “residual clause.” Also relevant are application notes 1 and 2 to the 1990 version of § 4B1.2, which state:

1.The terms “crime of violence” and “controlled substance oﬀensе ” include the oﬀenses of aid- ing and abetting, conspiring, and attempting to commit such oﬀenses.

2.“Crime of violence” includes murder, man- slaughter , [and other oﬀenses]. *5 5

Id. § 4B1.2 cmt. nn.1, 2. ^[1] The government argued D’Antoni was a career oﬀender because his cocaine conviction was a controlled substance oﬀense and his conspiracy to kill a gov- ernment witness conviction was a crime of violence.

The district court agreed. Pursuant to § 4B1.1, it calculated D’Antoni’s mandatory Guidelines range as 262–327 months’ imprisonment. The court imposed a 264-month sentence, to be served consecutively with the prior 40-year sentence. In de- ciding that the conspiracy to kill a government witness con- viction was a “crime of violence,” the court did not explain its reasoning ; i t did not specify whether it relied on § 4B1.2’s rе- sidual clause, elements clause, commentary, or some combi- nation of those parts of the provision. D’Antoni appealed, contending the court erred in classifying him as a career of- fender because his two prior convictions were “related” and should not have been counted separately. We disagreed and aﬃrmed t he sentence. United States v. D’Antoni , 980 F.2d 733, 1992 WL 357229 (7th Cir. Dec. 3, 1992) (unpublished).

B. First 28 U.S.C. § 2255 Motion On October 26, 2010, D’Antoni filed a § 2255 mоtion to va- cate his sentence, arguing his career-offender sentence was determined without prior notice of the underlying convic- tions, in violation of 21 U.S.C. § 851. The district court denied *6 the motion as untimely and denied a certificate of appealabil- ity. We also denied a certificate of appealability.

C. Successive 28 U.S.C. § 2255 Motion On June 26, 2015, the Supreme Court held the ACCA re- sidual clause deﬁnition of “violent fеlony,” 18 U.S.C. § 924(e)(2)(B)(ii)—which is identical to the Guidelines resid- ual clause “crime of violence” deﬁnition —unconstitutionally vague. Johnson , 135 S. Ct. at 2556–60. Less than a year later, the Court held that “ Johnson announced a substantive rule that has retroactive eﬀect in cases on collateral review. ” Welch v. United States , 136 S. Ct. 1257, 1268 (2016). In light of Johnson and Welch , we granted D’ Antoni permission to ﬁle a succes- sive § 2255 motion. He maintained his career- oﬀender sen- tence was invalid because: (1) Johnson applied to invalidate § 4B1.2’s residual clause as unconstitutionally vague; and (2) his prior conviction for conspiracy to kill a government witness could only be considered a crime of violence under the residual clause and thus no longer qualiﬁe d as a predicate oﬀense. The district court stayed the proceedings until the Su- preme Court decided Beckles on March 6, 2017. In Beckles , the Court held that the advisory Sentencing Guidelines are not subject to vagueness challenges, and therefore, at least the post- Booker advisory version of § 4B1.2(a)’s residual clause is not void for vagueness. 137 S. Ct. at 893–95.

Relying on Beckles , the government argued Johnson did not apply retroactively to render the residual clause of the pre- Booker mandatory Guidelines unconstitutionally vague. Alter- natively, the government suggested that even if Johnson retro- actively voided the mandatory Guidelines residual clause, D’Antoni’s prior conviction for consрiring to kill a govern- ment witness still qualiﬁe d as a predicate oﬀense because *7 7 § 4B1.2’s application notes listed conspiracy, murder, and manslaughter as crimes of violence.

On January 17, 2018, the district court denied D’Antoni’s petition. It concluded that, based on Beckles , D’Antoni could not make a vagueness ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍challenge to the pre- Booker mandatory Guidelines, and therefore, his prior conspiracy conviсtion re- mained a crime of violence pursuant to the residual clause. However, t he court granted a certiﬁcate of appealability.

D. This Appeal

D’ Antoni timely ﬁled a notice of appeal, which we stayed pending our decision in Cross . In Cross , we held that “ Beckles applies only to advisory guidelines, not to mandatory sen- tencing rules,” and therefore, “the guidelines residual clause is unconstitutionally vague insofar as it dеtermined manda- tory sentencing ranges for pre- Booker defendants.” 892 F.3d at ; see also id. at 306 (“[U]nlike the advisory guidelines, the mandatory guidelines implicated the ‘twin concerns’ of the vagueness doctrine. The mandatory guidelines are thus sub- ject to attack on vagueness grounds. ” (citation omitted)). We also held that Johnson applies retroactively to § 2255 motions challenging the constitutionality of the mandatory Guidelines residual clause on cоllateral review. Id. at 306–07.

In light of Cross , on September 13, 2018, the government ﬁled a statement of position. It emphasized that did not “resolve the government’s argument … that D’Antoni re- mains a career oﬀender even after Johnson , based on the valid- ity of his conspiracy conviction as a listed oﬀense ” in § 4B1.2’s commentary. Additionally, the government pointed out that *8 “ Cross did not have occasion to address the speciﬁc retroac- tivity requirement for successive § 2255 motions like D’An- toni’s, which are governed by 28 U.S.C. § 2255(h)(2).”

II. Discussion

Because this appeal asks us to resolve a question of law, we review the district court’s denial of D’Antoni’s § 2255 mo- tion de novo. Delatorre v. United States , 847 F.3d 837, 843 (7th Cir. 2017).

The government emphasizes that the sentencing court did not mention the residual clause when it determined the con- spiracy to kill a government witness conviction qualiﬁed as a predicate crime of violence for purposes of considering D’An- toni a career oﬀender. It asks us to deny relief because, in its view, there is nothing in the record to show that D’Antoni was actually sentenced under the residual clause, as opposed to under the elements clause or § 4B1.2’s commentary. It points out that the application notes list conspiracy, murder, and manslaughter as examples of “crime[s] of violence,” and therefore asserts that “as applied to D’Antoni, the residual clause cannot be unconstitutionally vague.” We disagree. Given our holdings in Cross and Rollins , we must grant relief. ^[2]

The government insists that “the relevant commentary did not purport to interpret the former residual clause,” but in- stead “ sets out a deﬁnition of ‘crime of violence’ in addition to the deﬁnition in Section 4B1.2 ’s main text.” It thus clаims that “ the oﬀenses listed in the application notes … qualify as crimes of violence without determining whether each oﬀense satisﬁed a discrete portion of USSG § 4B1.2(1)’s deﬁnition. ” The government is wrong. Such a view of Guidelines com- mentary is expressly foreclosed by the Supreme Court’s deci- sion in Stinson v. United States , 508 U.S. 36 (1993), and our in- terpretation of Stinson in Rollins .

In Rollins , we considered “whether [a] conviction counts as a predicate crime of violence bаsed on [an] application note alone. ” 836 F.3d at 742. We began by explaining that there are “‘three varieties’ of text in the Guidelines”: (1) the “‘guideline provision[s] [themselves],’” which “‘are the equivalent of leg- islative rules adopted by federal agencies’” and must be “sub- mitted to Congress ” for review and approval; (2) “the Sen- tencing Commission’s policy statements, which have much the same eﬀect as the Guidelines themselves”; and (3) “the Commission’s commentary,” which “interpret[s] the Guide- lines and explain[s] how they are to be applied.” Id. (quoting and citing Stinson , 508 U.S. at 41–42, 45). We thus reasoned that “application notes are interpretations of , not additions to , the Guidelines themselves,” and “an application note has no independent force.” Id. Consequently, “the list of qualifying crimes in application note 1 to § 4B1.2 is enforceable only as 307 (holding that we treat Johnson as “retroactive[] when applied to the mandatory guidelines”). Thus, the government admits that it “asserts the argument solely to preserve it for any potential further review.” *10 an interpretation of the deﬁnition of the term ‘crime of vio- lence’ in the guideline itself,” and “[ m]ore speciﬁcally, ” as an interpretation of § 4B1.2’s “ residual clause. ” Id.

The government next maintains that even if the commen- tary was “intended to interpret the former residual clause, [its] terms still defeаt a vagueness challenge” because it “spe- ciﬁcally identiﬁes oﬀenses that qualify as crimes of violence .” Therefore, according to the government, D’Antoni was not “deprived of fair ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍notice or subjected to arbitrary enforcement by the straightforward application of the commentary’s ex- press terms.” Put another way, the government contends that “[ a]pplying the clearly stated oﬀense s in the commentary … produces none of the constitutional concerns that the vague- ness doctrine is designed to prevent.”

Cross and Rollins together preclude this approach. In , we excised the residual clause from the pre- Booker Guidelines as unconstitutionally vague. 892 F.3d at 306. And in Rollins , we explained that Guidelines commentary “has no legal force standing alone.” 836 F.3d at 742. Thus, once “the residual clause drops out,” the apрlication note’s list of crimes is no longer interpreting any part of § 4B1.2’s deﬁnition of “crime of violence.” Id. It is therefore “ in eﬀect adding to the deﬁni- tion[,] [a]nd that’s necessarily inconsistent with the text of the guideline itself.” Id. ; see also United States v. Soto-Rivera , 811 F.3d 53, 60 (1st Cir. 2016) (“There is simply no mechanism or textual hook in the Guideline that allows us to import oﬀenses not speciﬁcally listed therein into § 4B1.2(a)’s deﬁnition of ‘crime of violence.’ With no such path available …, doing so would be inconsistent with the text of the Guideline. ”); United States v. Bell , 840 F.3d 963, 968 (8th Cir. 2016) (same), overruled *11 11 on other grounds by United States v. Swopes , 886 F.3d 668 (8th Cir. 2018) (en banc). ^[3]

The government seeks to get around Rollins by arguing that, after Beckles , we are no longer bound by its holding. It *12 suggests we should instead rely on our 2012 decision in United States v. Raupp , in which we held that conspiracy to commit robbery is a “crime of violence” because “conspiracy” is listed in § 4B1.2’s commentary, and “the text of § 4B1.2(a) does not tell u s, one way or another, whether inchoate oﬀenses are in- cluded or excluded.” 677 F.3d 756, 759 (7th Cir. 2012).

To be sure, we decided Rollins in conjunction with United States v. Hurlburt , 835 F.3d 715 (7th Cir. 2016) (en banc), where we held that after Johnson , the post- Booker advisory Guide- lines residual clause is unconstitutionally vague. Id. at 721. And Beckles expressly abrogated Hurlburt . Indeed, while we overruled Raupp in Rollins , see 836 F.3d at 743, in Hill v. United States , we commented that Beckles ’s “[e]limination of vague- ness challenges to the Guidelines undermines Rollins as well as Hurlburt , so we treat Raupp … as having unimpaired prec- edential force.” 877 F.3d 717, 719 (7th Cir. 2017).

As D’Antoni aptly observes, however, “ Beckles does not touch Rollins’ [s] holding about the role of Guidelines com- mentary.” The government toо concedes that “ Beckles did not reach the commentary issue.” And moreover, our statement in Hill is not controlling because it suggested that Beckles broadly eliminated all vagueness challenges. But we decided Hill before , and in Cross , we revived vagueness chal- lenges—like the one here—to the pre- Booker residual clause. 892 F.3d at 306. While we recognize other circuits have held to the contrary and concluded, post- Beckles , that post-convic- tion relief is not available to defendants sentenced under the *13 13 mandatory Guidelines residual clause, ^[4] we are, of course, bound by Cross .

In short, after , for cases involving defendants sen- tenсed pursuant to the pre- Booker mandatory Guidelines, we face the same situation we faced in Rollins . In such instances, “our holding in Raupp has lost its tether to the text of the ca- reer- oﬀender guideline, ” and “ Raupp ’s premise”—“that the application note’s list of qualifying crimes is a valid interpre- tation of the guideline’s residual clause”—“has been undone by intervening legal developments.” Rollins , 836 F.3d at 739, 743. Rather, “because the residual clause in § 4B1.2[(1)(ii) (1990)] is unconstitutional, the application note’s list of quali- fying crimes is inoperable and cannot be the basis for apply- ing the career- oﬀender enhancement. ” See id. at 742.

Finally, the government argues the sentencing court may have considered D’Antoni’s conspiracy to kill a government witness conviction a crime of violence under § 4B1.2’s ele- ments clause because the object of the conspiracy ﬁts within that clause. W hether a crime ﬁts within the elements clause “begins and ends with the elements of the crime.” Flores v. Ashcroft , 350 F.3d 666, 671 (7th Cir. 2003) (discussing the iden- tical elements clause in 18 U.S.C. § 16(a)). D’Antoni was con- victed of conspiracy under 18 U.S.C. § 371, which required the *14 government to prove three elements: “(1) an agreement to ac- complish an illeg al objective against the United States; (2) ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ one or more overt acts in furtherance of the illegal purpose; and (3) the intent to commit the substantive oﬀense. ” United States v. Hills , 618 F.3d 619, 637 (7th Cir. 2010) (quoting United States v. Cyprian , 23 F.3d 1189, 1201 (7th Cir. 1994)). Critically, none of those elements required the government to prove “the use, attempted, use, or threatened use of physical force. ” U.S.S.G. § 4B1.2(1)(i) (1990) ; c f. Bush v. Pitzer , 133 F.3d 455, 457 (7th Cir. 1997) (“An oﬀense such as conspiracy [does not have] the use of physical force as an element … .”). Thus, § 371 conspiracy is not a “crime of violence” as deﬁned by the elements clause. ^[5]

In sum, because D’Antoni’s conspiracy conviction did not include force as an element, its only possible connection to § 4B1.2’ s deﬁnition of “crime of violence” was the residual clause. But as noted above, Cross excised the residual clause from the pre- Booker mandatory Guidelines, and without the residual clause, the application notes have no legal force. D’Antoni is therefore entitled to resentencing.

III. Conclusion

For thе foregoing reasons, we R EVERSE the judgment of the district court and R EMAND with instructions to grant D’An- toni’s successive § 2255 motion and for resentencing in ac- cordance with this opinion.

Notes

[1] Section 4B1.2 has been subsequently amended. Until 2016, there were no substantive changes, but the provision was renumbered (e.g., § 4B1.2(1)(ii) was relabeled § 4B1.2(a)(2)) and the contents of 1990 applica- tion notes 1 and 2 were combined into application notе 1. In 2016, the Sen- tencing Commission removed the residual clause and added a speciﬁc list of crimes.

[2] The government also contends Cross does not apply because Cross “involved two initial § 2255 petitioners,” while D’Antoni is a successive petitioner. It points out that because this is a successive petition, D’Antoni can get relief only if the Supreme Court itself makes a previously unavail- able new rule of constitutional law retroactive to cases on collaterаl re- view. See 28 U.S.C. § 2255(h)(2). The government posits that no Supreme Court opinion has addressed the constitutionality of the residual clause in the pre- Booker mandatory Guidelines, so D’ Antoni cannot beneﬁt from Cross . However, as the government concedes, “the broadly worded rea- soning in precludes this particular argument.” See Cross , 892 F.3d at

[3] In United States v. Miller , 868 F.3d 1182 (10th Cir. 2017), the Tenth Circuit adopted the government’s view. That court declined to address the question we answered in —whether the pre- Booker Guidelines are amenаble to vagueness challenges—instead holding that regardless, the defendant could not “mount a vagueness challenge to his enhanced sen- tence, because the enumeration of [his prior conviction] in the commen- tary to the career- oﬀender guideline suﬃciently narrows the application of the residual clause to [the defendant’s] conduct.” Id. at 1187. The court explained that because the defendant’s “conduct was clearly proscribed, he [could] not complain he was denied fair notice of the possibility of en- hanced punishment,” and “there was no risk of arbitrary enforcement by judges.” Id. at 1189. Concurring in Beckles , Justices Ginsburg and So- tomayor also advocated for this method of analyzing vagueness chal- lenges to the Guidelines. See Beckles , 137 S. Ct. at 898 (Ginsburg, J., concur- ring) (“[B]ecause [the defendant’s] conduct wаs ‘clearly proscribed,’ he … ‘cannot complain of the vagueness of the [guideline] as applied to the con- duct of others.’” (last alteration in original) (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 18– 19 (2010))); id. (Sotomayor, J., concurring) (“[T]he commentary under which [the defendant] was sentenced was not unconstitutionally vague.”). The Tenth Circuit asserts that we erred in Rol- lins by “ ﬁrst excis[ing] the residual clause and then conclud[ing] the com- mentary listing [the prior сonviction] was not an interpretation of the ele- me nts or enumerated oﬀenses clause s.” Miller , 868 F.3d at 1188 n.4. In the Tenth Circuit’s view, our path “confuses the ‘normal order of operations’ in analyzing vagueness challenges,” as “the Supreme Court ‘has routinely rejected, in a variety of contexts, vagueness claims where a clarifying con- struction rendered an otherwise enigmatic provision clear as applied to the challenger.’” Id. at 1188 (quoting Beckles , 137 S. Ct. at 897 n.* (Ginsburg, J., concurring)). The government asks us to rely on the Tenth Circuit’s de- cision in Miller (and Justices Ginsburg’s and Sotomayor’s concurrences in Beckles ) to aﬃrm D ’Antoni’s sentence. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍We cannot do so, however, because Cross and Rollins foreclose this approach.

[4] See United States v. Pullen , 913 F.3d 1270, 1283–84 (10th Cir. 2019); United States v. Blackstone , 903 F.3d 1020, 1028 (9th Cir. 2018); Robinson v. United States , 736 F. App’x 599, 599 (6th Cir. 2018) (citing Raybon v. United States , 867 F.3d 625, 630 (6th Cir. 2017)); Russo v. United States , 902 F.3d 880, 883–84 (8th Cir. 2018); United States v. Green , 898 F.3d 315, 321–23 (3d Cir. 2018); Upshaw v. United States , 739 F. App’x 539, 541 (11th Cir. 2018) (per curiam) (citing In re Griﬃn , 823 F.3d 1350, 1354–56 (11th Cir. 2016) (per curiam)); United States v. Brown , 868 F.3d 297, 301–03 (4th Cir. 2017).

[5] We would reach a diﬀerent conclusion if the government had to prove the elements of the underlying oﬀense. See United States v. Gloss , 661 F.3d 317, 319 (6th Cir. 2011) (“If a conviction for … conspiracy requires the government to prove the elеments of the underlying violent felony, such a conviction will itself qualify as a violent felony under the [elements clause of the ACCA]. If, by contrast, the government may obtain a convic- tion by proving only that the defendant agreed to participate in violent crime or solicited it— and not that some person committed or attempted to commit the underlying oﬀense —conspiracy … tends to be outside the reach of the [elements clause], and generally will be deemed a violent fel- ony only if it qualiﬁes under the residual clause. ” (citations omitted)) .