UNITED STATES of America, Plaintiff-Appellee, v. Jason LEE, Defendant-Appellant.
No. 13-10517.
United States Court of Appeals, Ninth Circuit.
Filed May 6, 2016.
Argued and Submitted Sept. 11, 2014. Submission Vacated Jan. 16, 2015. Resubmitted April 28, 2016.
Ethan A. Balogh (argued), Coleman & Balogh LLP, San Francisco, CA, for Defendant-Appellant.
Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, Laurie Kloster Gray (argued), Assistant United States Attorney, San Francisco, CA, for Plaintiff-Appellee.
Before: CARLOS T. BEA, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.
OPINION
HURWITZ, Circuit Judge:
Jason Lee was convicted of distributing crack cocaine. He appeals only the resulting sentence. Because we find that the district court erred by imposing a career offender enhancement under
I.
Lee had two prior California drug convictions. In light of those convictions, after the jury found Lee guilty of distributing crack cocaine in violation of
On appeal, we held that only one of Lee‘s drug convictions qualified as a predicate “controlled substance offense” under the career offender enhancement. United States v. Lee (Lee I), 704 F.3d 785, 790-92 (9th Cir. 2012). We vacated Lee‘s sentence, but because the drug convictions were not Lee‘s only prior convictions, we remanded for the district court to “consider whether Lee‘s convictions under
On remand, the district court found that each conviction was for a “crime of violence.” Applying the career offender enhancement, the court calculated the Guidelines range as 360 months to life, but sentenced Lee to ten years in prison
II.
“All sentencing proceedings are to begin by determining the applicable Guidelines range.” United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). In calculating a sentence, the district court is required by
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The final clause in
“We review de novo a district court‘s interpretation of the Sentencing Guidelines and its determination that a defendant qualifies as a career offender under
III.
Lee contends that he is not a “career offender” because he does not have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
In interpreting the residual clause, our jurisprudence has been informed by cases interpreting an identical clause in the Armed Career Criminal Act (“ACCA“),
When a battery is committed against the person of a custodial officer as defined in Section 831 of the Penal Code, and the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties, and the custodial officer is engaged in the performance of his or her duties, the offense shall be punished by imprisonment....
Because
Under
The Fourth Circuit has persuasively rejected an identical argument, holding that a conviction for violating a Virginia statute prohibiting assault and battery on a police officer, which “may be accomplished by the slightest touching or without causing physical injury to another,” did not qualify as a crime of violence under the Guidelines. United States v. Carthorne, 726 F.3d 503, 514 (4th Cir. 2013).3 The Fourth Circuit reasoned that “because this physical contact element ... may be satisfied in a relatively inconsequential manner, that statute cannot, by reason of its elements, be viewed as presenting a serious potential risk of physical injury.” Id.
We agree. In doing so, we depart from the reasoning of the First Circuit in United States v. Dancy, which upheld the application of the Armed Career Criminal Act‘s residual clause based upon a Massachusetts conviction for battery on a police officer. 640 F.3d 455, 470 (1st Cir. 2011). The First Circuit relied on its earlier decision in United States v. Williams, which held that “battery of an armed on-duty police officer is a powder keg ... which always has the serious potential” to “explode into violence and result in physical injury to someone.” 559 F.3d 1143, 1149 (10th Cir. 2009) (citations and quotation marks omitted). Like the Fourth Circuit, we reject the “powder keg” theory as a “disservice to law enforcement officers,”
B.
Lee pleaded guilty to a criminal complaint alleging violation of both prongs of
We have not directly addressed in a published opinion whether a violation of the “actually resisting prong” of
IV.
Neither Lee‘s
Dissent by Judge IKUTA.
IKUTA, Circuit Judge, dissenting:
The Ninth Circuit has a knack for disregarding the Supreme Court. Sometimes it simply ignores the Supreme Court. See Harrington v. Richter, 562 U.S. 86, 92, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (“[J]udicial disregard [for the Supreme Court‘s habeas jurisprudence] is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.“). Other times it reads the decisions of the Supreme Court in such a peculiar manner that no “fair-minded jurist” could agree. See Nevada v. Jackson, — U.S. —, 133 S.Ct. 1990, 1993, 186 L.Ed.2d 62 (2013) (“No fair-minded jurist could think that [the Supreme Court case at issue] clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution.“). Occasionally it even thinks it is the Supreme Court. See Lopez v. Smith, — U.S. —, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (scolding the Ninth Circuit for granting habeas relief based on its own precedent, where AEDPA requires that a state court decision violate clearly established federal law as established by the Supreme Court, “not by the courts of appeals“). But this is the first time I‘ve seen the Ninth Circuit decide a criminal defendant‘s direct appeal based on law that the Supreme Court has just overruled without even considering whether the new rule applies.
In Johnson v. United States, the Supreme Court held that the residual clause in the Armed Career Criminal Act (ACCA),
I
Before Johnson v. United States, we expressly relied on the Supreme Court‘s interpretation of the ACCA residual clause to interpret the substantially identical residual clause in
In Johnson, the Supreme Court overruled its four cases interpreting the ACCA residual clause because it concluded that the clause was unconstitutionally vague. 135 S.Ct. at 2557-60. Johnson explained that the void-for-vagueness doctrine is based on the Due Process Clause of the Fifth Amendment. Id. at 2556-57. According to Johnson, “[t]he Fifth Amendment provides that ‘[n]o person shall ... be deprived of life, liberty, or property, without due process of law,‘” and “the Government violates this guarantee by taking away someone‘s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id. at 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). Although the Court initially framed the void for vagueness doctrine as applying only to substantive criminal laws, it later held the doctrine also applied to mandatory sen-
Applying this doctrine, Johnson determined that the ACCA residual clause was void for vagueness. First, Johnson explained that “trying to derive meaning from the residual clause” was a “failed enterprise,” and interpretations of the clause amounted to little more than guesswork. 135 S.Ct. at 2560. Referencing the four Supreme Court precedents interpreting the residual clause, Johnson described them as “repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause that confirm its hopeless indeterminacy.” Id. at 2558. According to Johnson, courts have no reliable way to estimate the risks posed by the defendant‘s predicate offense, id. at 2557-58, or to determine “how much risk it takes for a crime to qualify as a violent felony,” id. at 2558. This indeterminacy caused the two evils that trigger the void for vagueness doctrine: (1) it “denie[d] fair notice to defendants” and (2) it “invite[d] arbitrary enforcement by judges.” Id. at 2557. Accordingly, Johnson concluded that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution‘s guarantee of due process.” Id. at 2563. In light of this conclusion, Johnson expressly overruled the Court‘s prior interpretations of the residual clause in Sykes, 564 U.S. 1, 131 S.Ct. 2267, and James, 550 U.S. 192, 127 S.Ct. 1586, and implicitly overruled Chambers, 555 U.S. 122, 129 S.Ct. 687, and Begay, 553 U.S. 137, 128 S.Ct. 1581.
In overturning these cases, Johnson necessarily overruled the Ninth Circuit cases that relied on them. As we recognized in Nunez-Reyes v. Holder, a decision to overrule longstanding precedent also necessarily overrules “the same holding in those cases that, bound by stare decisis, followed the [previous] rule.” 646 F.3d 684, 690 (9th Cir. 2011) (en banc); see also Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993) (“[T]he [district] court relied on a case that was subsequently overruled by the Supreme Court. Therefore, the principle announced [by the overruled case] was no longer good law at the time of Appellant‘s lawsuit.“) (internal citations omitted). And to the extent Johnson did not directly overrule our cases, it “effectively overruled” them by “undercut[ting] the[ir] theory or reasoning ... in such a way that the cases are clearly irreconcilable.” See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
The cases that the majority uses to interpret
The majority cannot explain away its reliance on overruled case law by claiming to engage in constitutional avoidance. Maj. op. at 1127-28 n.2. In order to avoid a constitutional question, a court must have “some other ground upon which the case may be disposed of.” Pearson v. Callahan, 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)). The majority claims it can dispose
II
By declaring the ACCA residual clause unconstitutional, Johnson created “a new rule for the conduct of criminal prosecutions” applicable to sentencing proceedings. See United States v. Jordan, 256 F.3d 922, 928-29 (9th Cir. 2001) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Such rules must “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” Griffith, 479 U.S. at 328, 107 S.Ct. 708. Because Lee‘s case was pending on direct review at the time that Johnson was decided, we are bound to consider whether Lee is entitled to the benefit of Johnson‘s new rule. See Dimaya v. Lynch, 803 F.3d 1110, 1112 (9th Cir. 2015) (considering how Johnson applies to
It is not immediately obvious that Lee‘s sentence should be vacated because the Supreme Court‘s void for vagueness doctrine—which holds that a statute is void for vagueness if it fails to give fair notice of the conduct it punishes or invites arbitrary enforcement—is not directly applicable in the Sentencing Guidelines context. A criminal statute violates the “fair notice” requirement if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (internal quotation marks omitted). A statute violates the “arbitrary enforcement” requirement if it is “so indefinite
Unlike the mandatory sentencing schemes in Batchelder and Johnson, the Sentencing Guidelines are merely advisory and do not fix the penalty for any offense. See United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). While courts must “begin all sentencing proceedings by correctly calculating the applicable Guidelines range,” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (citing Rita v. United States, 551 U.S. 338, 347-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)), and while the Guidelines provide a framework and anchor for the court‘s exercise of discretion, see Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1345-46, 194 L.Ed.2d 444 (2016), a district court has broad discretion to impose a sentence inside or outside the recommended Guidelines range and there is no presumption that a sentence outside the range is unreasonable, Gall, 552 U.S. at 49,
Because a district court is not strictly bound by the Guidelines, but may exercise its discretion to impose a non-Guidelines sentence within the statutory framework, neither the fair notice concern nor the arbitrary enforcement concern giving rise to the void for vagueness doctrine is applicable in the Sentencing Guidelines context.
First, the Supreme Court has made clear that the Due Process Clause does not require a district court to give notice to a defendant before imposing a sentence outside the recommended Guideline range. See Irizarry v. United States, 553 U.S. 708, 713-14, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). As the Supreme Court acknowledged, Irizarry marked a departure from the Court‘s pre-Booker analysis. Id. at 713. In Burns v. United States, the Court had interpreted Rule 32 of the Federal Rules of Criminal Procedure as requiring a district court to notify a defendant before sua sponte departing upward from an applicable Guidelines sentencing range. 501 U.S. 129, 138, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). According to the Court, reading Rule 32 “to dispense with notice” would require the Court “to confront the serious question whether notice in this setting is mandated by the Due Process Clause.” Id. But in Irizarry, the Court concluded that interpreting Rule 32 as allowing the imposition of an above-Guidelines sentence without notice would no longer raise any Due Process Clause concern. See Irizarry, 553 U.S. at 713. Rather, “[a]ny expectation subject to due process protection at the time we decided Burns that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in [Booker].” Id. Once the Guidelines became merely advisory, the Court reasoned, “neither the Government nor the defendant may place the same degree of reliance on the type of ‘expectancy’ that gave rise to a special need for notice in Burns.” Id. at 713-14; see also United States v. Tichenor, 683 F.3d 358, 365 (7th Cir. 2012) (“Since the Guidelines are merely advisory, defendants cannot rely on them to communicate the sentence that the district court will impose.“). Accordingly, the Court concluded that a district court‘s imposition of an above-Guidelines sentence without giving notice to the defendant did not raise constitutional concerns. Irizarry, 553 U.S. at 714.2
This reasoning is equally applicable here. Because the defendant no longer has a protected expectation of being sentenced within the range recommended by the Guidelines, and the Due Process Clause does not require notice to the defendant that the district court intends to impose an above-Guidelines sentence, any vagueness in the Guidelines that could result in a higher recommended range does
Nor is the arbitrary enforcement concern giving rise to the constitutional void for vagueness doctrine applicable in the Sentencing Guidelines context. Because Booker eliminated the statutory provision making the Guidelines mandatory, a district court is bound only by the sentencing range set by Congress. While the Guidelines provide advice regarding the types of sentences normally imposed by district courts “based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions,” Gall, 552 U.S. at 46, 128 S.Ct. 586, a district court must ultimately exercise its discretion in imposing the sentence; there is no “unreasonableness presumption for sentences outside the Guidelines range,” id. at 38. Indeed, we do not even review whether a district court correctly applied the Guidelines’ direction for when a departure from a recommended range is appropriate, see
In light of the fact that the discretionary Sentencing Guidelines do not raise the same constitutional concerns as mandatory sentencing provisions, I would conclude that any vagueness in the
III
Because the Guidelines residual clause is not void for vagueness, we must still address whether Lee‘s convictions under sections 69 and 243.1 of the California Penal Code constitute crimes of violence under the Guidelines residual clause. Contrary to the majority, see Maj. op. at 1127-28 n. 2, we need not decide this question in the first instance. As the Supreme Court did in Welch, we may appropriately remand to the district court to consider whether “other grounds” exist to impose the Guidelines career offender enhancement that do not rely on the Supreme Court‘s prior residual clause cases. 136 S.Ct. at 1268. If we reached the issue, however, I would hold that given the residual clause‘s inscrutability in the ACCA context, application of the residual clause would violate the Supreme Court‘s instruction that the district court “begin all sentencing proceedings by correctly calculating the applicable Guidelines range,” Gall, 552 U.S. at 49, 128 S.Ct. 586 (citing Rita, 551 U.S. at 347-48). If Johnson so undermines the residual clause that it cannot be accurately interpreted, a district court would commit a procedural error and abuse its discretion if it used the Guidelines residual clause to calculate the Guidelines range. See Molina-Martinez, 136 S.Ct. at 1349; see also United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011).
The one thing that we cannot do, however, is rely on precedent that has been overruled and effectively rendered non-existent by the Supreme Court. Indeed, the Supreme Court has made clear that pre-Johnson case law cannot be applied even in cases pending on habeas review. Welch, 136 S.Ct. at 1265. By relying on overruled precedent and failing to consider whether Lee is entitled to the benefit of Johnson‘s new rule, the majority fails to rise to the challenge of deciding this case in a post-Johnson world. I dissent.
Alan G. GIMENEZ, Petitioner-Appellant, v. J.T. OCHOA, Warden; Kamala D. Harris, Attorney General, Respondents-Appellees.
No. 14-55681.
United States Court of Appeals, Ninth Circuit.
Filed May 9, 2016.
Argued and Submitted Oct. 22, 2015.
Notes
And, unlike our dissenting colleague, we fail to see how Johnson could have disadvantaged Lee. Johnson did not invalidate the use of the categorical approach. See 135 S.Ct. at 2562 (“declin[ing] the dissent‘s invitation” to “jettison for the residual clause the categorical approach adopted in Taylor“) (citing Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If Lee‘s convictions did not categorically constitute crimes of violence before Johnson, it is impossible to understand how that decision—which found a statute similar to the residual clause unconstitutionally vague—somehow transformed those crimes into ones that justify application of the Guidelines enhancement.
We decline to decide whether Johnson‘s reasoning extends to the Sentencing Guidelines, because even if it does not, we are left with the same result in this case: We must vacate and remand for resentencing because Lee‘s crimes are not categorical crimes of violence. Bearing in mind the “cardinal principle of judicial restraint” that “if it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment), we decline the dissent‘s invitation to answer a constitutional question unnecessary to the disposition of this case. Instead, we follow the guidance of the Supreme Court to avoid deciding questions on constitutional grounds if the case is otherwise determinable. See, e.g., Pearson v. Callahan, 555 U.S. 223, 241, 129 S.Ct. 808 (2009) (citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.“)).
Because Irizarry did not expressly overrule Burns, we remain bound by its interpretation of Rule 32 as requiring a district court to give a defendant notice of its decision of a departure from the Guidelines, where “‘departure’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.” United States v. Evans-Martinez, 530 F.3d 1164, 1169 (9th Cir. 2008). We nevertheless recognized that “[i]n light of Irizarry, it is arguable that the due process concerns that led to the promulgation of Rule 32(h) are now equally inapplicable to sentencing departures.” Id.