United States v. Christopher Hornyak
805 F.3d 196
5th Cir.
2015
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UNITED STATES of America, Plaintiff-Appellee v. Christopher Michael HORNYAK, also known as Christopher Hornyak, Defendant-Appellant.

No. 14-50299.

United States Court of Appeals, Fifth Circuit.

Oct. 30, 2015.

805 F.3d 196

We interpreted the district court‘s explanation to “suggest a finding of foreseeability ... but the court never connected the handgun to any particular co-participant.” . We stated that the relatively short distance between the transaction and the weapon might support “spatial connection,” but the fact that the weapon was not discovered until a subsequent search made the “tеmporal connection” uncertain. . We remanded so that the district court could sentence the defendant again and articulate a rationale with supporting findings should the same enhancement be applied.

Unlike Zapata-Lara, the district court here made detailed findings explaining the necessary connections. We conclude that the facts identified by the court plausibly establish a temporal and spatial relationship between the weapon, the drug trafficking activity, and Rodriguez-Guerrero or a coconspirator. When a district court‘s factual findings are plausible in light of the record as a whole, they will be upheld. .

First, it is undisputed that the house where the shotgun was found was a stash house used to package and transport bundles of marijuana. It was a drug warehouse, not someone‘s residence in which drugs were also stored. Second, bundles of marijuana were fоund in the master bedroom bathroom, making it plausible to find that either Rodriguez-Guerrero or another conspirator accessed the master bedroom where the shotgun wаs found. Third, the amount of ammunition suggests that the weapon belonged to the defendant or his coconspirators in connection with the drug trade. Fourth, the shotgun was found on the samе day that law enforcement observed Rodriguez-Guerrero and his coconspirators at the house.

Though nothing in the record links the shotgun to any particular conspiratоr, the evidence makes it plausible that a “weapon was present” and that one of the conspirators possessed it. U.S.S.G. § 2D1.1(b)(1), cmt. n. 11(A). Because the only purpose оf the house was for drugs, it was plausible to find that the only purpose of the weapon was to support the drug ‍​​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​​​​​‌‌​‌‌​​‌​​‌‌​​​‌​​​‍business. The possession of the weapon to further the drug consрiracy may be clear without there also being clarity as to which conspirator possessed it.

The sentencing enhancement reflects the “increased danger оf violence when drug traffickers possess weapons.” U.S.S.G. § 2D1.1(b)(1), cmt. n. 11(A). The mere fact that a weapon cannot be attributed to any specific drug trafficker does not deсrease the danger of violence. There was enough evidence to support that the weapon must have been possessed by one of the conspiratоrs in furtherance of the conspiracy. That is sufficient.

AFFIRMED.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Anto-nio, TX, for Plaintiff-Appellee.

William Jack Browning, Esq., Trial Attorney, Law Office of William J. Browning, Austin, TX, for Defendant-Appеllant.

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

COSTA, Circuit Judge:

We must decide whether a sentence imposed pursuant to the residual clause of the Armed Career Criminal Act (ACCA), which the Supreme Court recently found to be unconstitutiоnally vague, should be vacated on plain error review.

Hornyak pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). That offense ordinarily cаrries a maximum sentence of ten years. Id. But if the defendant has three previous convictions for a “violent felony or serious drug offense,” then ‍​​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​​​​​‌‌​‌‌​​‌​​‌‌​​​‌​​​‍the ACCA elevates the statutory sentencing range to a minimum of fifteen years and maximum of life. Id. § 924(e). The statute defines “violent felony” in two ways. A felony qualifies if it “has as an element the use, attempted use, or threatеned use of physical force against the person of another.” § 924(e)(2)(B)(i). It also qualifies if the felony “is burglary, arson, or extortion, involves use of explosives, or otherwise involvеs conduct that presents a serious risk of physical injury to another.” Id. § 924(e)(2)(B)(ii). The “otherwise involves conduct that presents a serious risk of physical injury to another” language, known as the “residual clause,” was held unconstitutionally vague in .

At Hornyak‘s sentencing hearing, which took place prior to Johnson, the district court found that three convictions implicated the ACCA: two serious drug offenses and a conviction for evading arrest or detention with a vehicle under Texas Penal Code § 38.04.1 We had previously found that this Texas “evading arrest” offense counted as a “violent felony” under the ACCA‘s residual clause. . Hornyak objected in the district court, arguing that the Texas statute did not meet the residual clause standard as it did not require use of a motor vehicle but could instead be committed when a suspect flees on a bicycle. He did not argue that the residual clause is unconstitutional. The district court overruled Hornyak‘s objection, which Harrimon foreclosed, and sentenced Hornyak to a prison term of 188 months.

On appeal, Hornyak raised two arguments. He again argued that the Texas offense ‍​​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​​​​​‌‌​‌‌​​‌​​‌‌​​​‌​​​‍did not qualify under the residual clause and asked us to reconsider Harrimon in light of . He then for the first time argued that the residual clause is void for vagueness. Recognizing that both Supreme Court and circuit precedent foreclosed the cоnstitutional issue, Hornyak noted that he was raising it solely “to preserve [it] for possible further review by the Supreme Court.” The United States filed an unopposed motion for summary affirmаnce,

which we granted. .

Hornyak filed a petition for certiorari. After it decided Johnson, the Supreme Court granted Hornyak‘s petition, vacated our ruling, and remanded. .

Because Hornyak did not raise a vagueness challenge to the residual clause in the sentencing court, we review the issue for plain error. To demonstrate plain error, Hornyak must show a forfeited error that is clear or obvious and that affects his substаntial rights. See . If he makes such a showing, we have the discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proсeedings. See

Johnson establishes that it was error to sentence Hornyak under ACCA‘s mandatory minimum provision when one of his qualifying convictions satisfied only the residual clause. See (holding that the residual clause is unconstitutionally vague). That error was plain and obvious, even though precedent foreclosed it at the time of sentencing, because the error became clear in light of a decision announced while this case was still on direct appeal. . And the error substantially affected Hornyak‘s substantial rights. He recеived a sentence 68 months above the maximum that applies in the absence of the ACCA enhancement. See (finding that because error “added 60 months to [the defendant‘s] sentence, we ‍​​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​​​​​‌‌​‌‌​​‌​​‌‌​​​‌​​​‍have little trouble determining that it affected [his] substantial rights“).

That leaves the question of whether the Johnson error seriously affected the fairness, integrity, or public reputation of the proceeding, in which case we have discretion to correct it. Although that standard is not met every time an error affects a defendant‘s substantial rights, , it is in this case. Keeping a defendant in prison for аt least an extra 68 months because of a clause in a statute declared unconstitutionally void during his direct appeal would cast significant doubt on the fairness of the сriminal justice system in such a case. We have found this final plain error inquiry satisfied on numerous occasions when a higher sentence resulted not from an unconstitutional statute, but from misapplication of the Sentencing Guidelines within a lawful statutory maximum. See, e.g., (finding plain error in a sentence 12 months outside of the correct Guidelines range); (finding that the 19 month “substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error“); (finding plain error in the imposition of a sentence 21 months outside of the correct Guidelines range). An error of constitutional magnitude that transforms a ten-year maximum sentencе into a fifteen-year minimum sentence presents an easier call than those cases. Cf. (holding that failure to vacate a conviction pursuant to a statute later held to violate the Commerce Clause “would seriously affect the fairness, integrity, and public reputation of judicial proceedings“). We thus conclude that the error in using the ACCA‘s now-void residual clause to set a fifteen-year minimum sentence satisfies all four of the conditions necessary for us to have discretion to correct it.

We elect to exercise that discretion to correct the error. The judgment of the district ‍​​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​​​​​‌‌​‌‌​​‌​​‌‌​​​‌​​​‍court therefore is VACATED and the case is REMANDED for resentencing in light of Johnson.

Notes

1
The Probation Office initially classified Hornyak‘s California burglary conviction as a “violent felony,” but then agreed with Hornyak‘s objection that it should not be treated as such under . That left only three qualifying convictions.
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