United States v. Jesse Pawlak

III. CONCLUSION above,

For all of the reasons set forth judgment of the dis- REVERSE REMAND

trict court and the ease for consistent this proceedings

further

opinion. America,

UNITED STATES

Plaintiff-Appellee, PAWLAK,

Jesse J. Defendant-

Appellant.

No. 15-3566. of Appeals,

United States Court

Sixth Circuit.

Argued: Jan. 2016. May

Decided and Filed: shielding decisions

prior longer are no vagueness challenges precedent. consistent with sentence therefore vacate defendant’s We resentencing. and remand for I. fire-

After defendant Jesse Pawlak sold on four arms to an undercover officer occa- sions, jury him on four grand a indicted Malone, Vanessa Office ARGUED: a firearm or ammuni- possessing counts of Cleveland, Defender, Public the Federal felon, as a in violation of 18 U.S.C. tion Katz, Ohio, M. Unit- Appellant. for Jason guilty § on all 922(g)(1). pleaded He Office, Attorney’s Youngstown, ed States sentencing, At the district court counts. Ohio, BRIEF: ON Wendi Appellee. for pursu- calculated a base offense level of 26 Public Overmyer, Office of the Federal L. 2K2.1(a)(l) § because the ant to U.S.S.G. Cleveland, Ohio, Defender, Appellant. for a “semiautomatic firearm offenses involved Katz, Attorney’s M. United States Jason capable accepting large capaci- that is Ohio, Office, Appellee. for Youngstown, prior had two ty magazine,” and Pawlak BOGGS, GIBBONS, and Before: of either a crime of “felony convictions GRIFFIN, Judges. Circuit or a controlled substance offense.” violence 2K2.1(a)(l). § One of Pawlak’s U.S.S.G. GRIFFIN, J., opinion delivered the an qualifying felony convictions was two BOGGS, J., joined, and in the court which offense, a third-degree burglary Ohio GIBBONS, J., I-III. joined in Parts violence,” see “crime of 913-14), GIBBONS, (pp. delivered J. Cir.2011) Coleman, concurring opinion. separate third-degree burglary (holding that Ohio’s OPINION felony a violent under statute constituted clause of the Armed Career the residual GRIFFIN, Judge. Circuit Act). qualifying con- Absent Criminal case, consider whether the In this we viction, have offense level would his base in holding Supreme Court’s 2K2.1(a)(3). § The dis- 22. U.S.S.G. been — -, to the base added two levels trict court (2015), 2K2.1(b)(l)(A) be- offense level under Act’s “residual Armed Career Criminal possessed six firearms. cause Pawlak com unconstitutionally vague, clause” is enhance- applied also a four-level an “resid same result for identical pels the 2K2.1(b)(5) trafficking for ment Sentencing in the U.S. Guide ual clause” deducting three levels firearms. After given light In lines. Pawlak’s total acceptance responsibility, frame of the Guidelines as the legal force history with a criminal offense level was 29 majority sentencing, join we work for IV, advisory in an resulting category of invalidating circuits of our sister in- of 121-151 months of range as unconstitu “residual clause” Guidelines’ varied downward The court carceration. so, recognize vague. doing tionally “regained based on Pawlak’s by four levels expressly dis prior that our case law law,” making the new respect for the However, be a conclusion. claimed such months, Paw- and sentenced range 84-105 interpreting the legal landscape cause months. considerably, our lak to 105 changed Guidelines has II. III. A. appeal presents matter of

Pawlak’s the residual impression: first whether The Due Clause of the Fifth Process 4B1.2(a) (career provides person of- Amendment that “[n]o clause U.S.S.G. life, deprived liberty, shall be of or fender), provisions and other Guidelines property, process without due law.” definition, are incorporating its unconstitu- Const, Among U.S. amend. V. other tionally Supreme the vague after Court’s things, prohibits this clause the enforce States, decision in v. United overly vague ment of criminal laws. The textually which invalidated a S.Ct. Supreme explained gov Court has identical residual clause in the Armed Ca- guarantee by ernment taking “violates this (“ACCA”), reer Criminal Act 18 U.S.C. life, away liberty, property someone’s or 924(e). § Although parties the acknowl- a criminal vague under law so that it fails edge previously that we have held the give ordinary people fair notice of the susceptible “are not to a vague- it punishes, conduct or so standardless ness attack” because “there is no constitu- arbitrary invites enforcement.” right sentencing guidelines,” tional Johnson, (citing 135 S.Ct. at 2556 Kolen Smith, United States v. Lawson, 352, 357-58, der v. 461 U.S. (6th Cir.1996) (quoting 1417-18 (1983)). L.Ed.2d 903 “The Salas, 1994 WL prohibition vagueness .of criminal stat 1994) (un- at *2 Jan. Cir. well-recognized requirement, utes ‘is a decision)), published they agree table ordinary consonant alike with notions of Supreme Court undermined our play law,’ fair and the settled rules of prior precedent in its intervening deci- a statute that flouts it ‘violates the first ” Accordingly, parties sions. process.’ maintain essential of due Id. at 2556-57 Co., (quoting Connally v. Gen. Constr. reasoning that Johnson’s applies equally to 385, 391, 46 S.Ct. 70 L.Ed. 322 Guidelines, and Pawlak’s sentence (1926)). principles apply only “These not agree.1 should be vacated. We crimes, defining to statutes elements parties disagree regarding Pawlak’s but also to statutes sentences.” Id. second claim of error —that the district at 2557. erroneously applied en- four-level Johnson, Supreme invali- trafficking hancement for firearms dated the ACCA’s residual clause as un- 2K2.1(b)(5) § because Pawlak did constitutionally vague. The Act increases know or have reason to believe that his sentences for offenders who have three conduct would result the transfer of a previous convictions for violent or felonies possession firearm to an individual “whose drug serious offenses. 18 U.S.C. receipt or of the firearm would be unlaw- 924(e)(1). It felony” defines “violent ful,” 13(A)(ii)(I). § 2K2.1 cmt. n. ad-We “any punishable by crime imprisonment each dress issue in turn. exceeding year for a term one that ... 40, 58, Although parties agree 1. that the residual 392 U.S. 88 S.Ct. 20 L.Ed.2d 1.2(a) States, clause of 4B Young U.S.S.G. is unconstitu- v. United “ tionally vague, judgments prece- 'our are 86 L.Ed. 832 dents, (1942)). proper and the administration of the We therefore [our] "conduct own merely criminal underlying law cannot be left to the examination” of the merits ” York, stipulation parties.’ parties arguments. Sibron v. New Id. use, use, attempted has as an element the reach of the doctrine. Given physical against or threatened use of force identical, that the residual clauses are another; burglary, or ... person only reason Johnson would not compel the arson, extortion, involves use of same result is if the Guidelines were im- explosives, or otherwise involves conduct vagueness challenges. mune from presents potential a serious risk analysis begins Our with the function of injury physical another...” the Guidelines. In Peugh v. United 924(e)(2)(B) added). (emphasis The em- Court held that the phasized words have come to be known as subject are to constitutional E.g., the Act’s “residual clause.” challenge “notwithstanding the fact that sentencing courts possess discretion to de- The Johnson Court observed that “[t]wo viate from the recommended conspire features of the residual clause — range.” -, U.S. first, unconstitutionally vague”: make it (2013). case, In that grave uncertainty the clause “leaves about the Court considered whether the Ex Post posed by how to estimate the risk a crime” Facto is Clause violated when a defendant by tying judicial “the assessment risk to is sentenced under Guidelines providing judicially imagined ‘ordinary case’ of a higher advisory sentencing range than the crime, statutory not to real-world facts or Guidelines in effect at the time of the elements”; second, and it “leaves uncer- offense. at explained Id. 2081. The Court tainty about how much risk it takes for a post-Booker that federal sentencing “[t]he crime to as a qualify felony.” violent Id. scheme to uniformity by aims achieve en- Moreover, at 2557-58. the Court observed suring sentencing that decisions are an- “repeated attempts that its and repeated principled objective failures to craft a and they chored the Guidelines and that confirm standard out of the residual clause meaningful remain a benchmark through hopeless indeterminacy.” its Id. at 2558. process appellate the review.” Id. “pro- The ACCA’s residual clause thus system 2083. Whereas the “federal adopts unpredictability duces more and arbitrari- procedural measures intended to make the than ness the Due Process Clause toler- sentencing[,] Guidelines the lodestone of ates.” Id. ... retrospective [a] increase the Guide- range applicable lines to a defendant cre- B. higher ates sufficient risk of a sentence Since federal courts have to an post constitute ex violation.” facto grappled question with the unresolved Id. at 2084. whether the Guidelines’ residual clause is Although the Guidelines are not manda unconstitutionally vague. also The text of tory, emphasized the same, the two residual clauses is the com they that have considerable influence on 924(e)(2)(B)(ii) pare 18 U.S.C. with sentencing determinations because 4B1.2(a)(2), interpret U.S.S.G. and we procedures district courts must follow see, identically, e.g., them United States v. imposing sentences. “As we have de Ford, (6th Cir.2009). 420, 421 scribed, begin ‘district courts their must principal legal argument against ap analysis the Guidelines and remain plying the Guidelines is not cognizant throughout of them the sentenc meanings distinguishable their are but ” ing process.’ (quoting Id. at 2083 Gall v. advisory, op the Guidelines are as sentences,” 50 n. posed to “statutes U.S. (2007)). 586, 169 “Failing S.Ct. at and therefore outside the L.Ed.2d 445 S.Ct. stray they consult the Guidelines range must Guidelines the correct to calculate per- “A at their Id. dis Guideline sentences own error.” from procedural constitutes il, quasi-advisory a non-Guidelines contemplating making the Guidelines trict the extent of consider closer to a stat- bringing ‘must them sentence effect justification and ensure than a deviation fixes sentences sort ute which support sufficiently compelling effect, the Sentenc- suggested option. ” (quoting Id. of the variance.’ degree just or assist guide ing Guidelines do 586). Gall, they much sentence as judges on how to appro- deemed judges to sentences direct mean requirements ‘[i]n “These by. types in certain priate policy-makers judge will use sentencing, usual omitted)). (citation starting point range as the cases.” the Guidelines a sentence with analysis and impose in the judgment the Court’s Peugh reflects if range.’ in the Even subject to are constitu vary a reason judge sees challenges because tional Guidelines, uses the sentenc judge ‘if the mandatory starting point sen for are point explain beginning as the range ing courts and district tencing determinations it, from then the to deviate the decision failing correctly for can be reversed a real sense the basis are in judges’ discretion them apply despite Freeman v. sentence.’” range. from the recommended to deviate States, 564 Madrid, 2083; at at See 133 S.Ct. (2011) 2692, 180 2685, (plurali L.Ed.2d 519 reasoning in Supreme 1211. The Court’s (citation omitted)); see also ty opinion) very principles of on same Peugh rests — States, v. United Molina-Martinez avoiding arbitrary enforce fair notice and 1345-46, -, 1338, 194 136 S.Ct. U.S. pro the doctrine of due underlying ment (2016) (discussing the 444 “real L.Ed.2d Peugh, 133 S.Ct. at 2081- Compare cess. effect the Guidelines have pervasive meaning of the term “ex (discussing 82 “That a district court sentencing.”). law), facto,” English common post ultimately given sentence defendant may Florida, 423, 429, v. 482 U.S. and Miller de range does not outside (1987) 2446, 96 L.Ed.2d 351 107 S.Ct. force as the frame the Guidelines of prive (“[T]he Post Facto reason Ex Clauses Indeed, the rule sentencing. for work to included in the Constitution was were pro calculation is incorrect Guidelines an legislatures and state assure federal they remain error ensures that cedural enacting arbitrary or were restrained every sentencing calcula for starting point the Claus legislation!,] [and] vindictive system.” Id. In other in the federal tion concern, name a second es were aimed at mandatory words, are the “the Guidelines ‘give fair legislative enactments ly, determina starting point for permit individ warning of their effect tion; can be reversed for a district court meaning explicit until rely uals to on their despite correctly them failing apply ” Graham, v. changed.’ Weaver ly from the recom ability to later deviate 24, 28-29, 101 S.Ct. 67 450 U.S. Madrid, range.” United States mended (1981))), 135 with L.Ed.2d 17 (de (10th Cir.2015) (observing that a criminal law at 2556 S.Ct. residual clause un claring Guidelines’ it unconstitutionally vague when “fails constitutionally vague); see United States fair notice of the con ordinary people give 3:15-00021, F.Supp.3d Litzy, No. that it or so standardless punishes, it (S.D.W.Va. duct Oct. 2015 WL 5895199 enforcement”) arbitrary and Kolen invites 2015) may (“[Although judges decide to der, Guidelines, S.Ct. judges U.S. at not within the sentence (same). em- delegation legislative Given Court’s sive power or a on the role of the 'as the phasis violation of the separation-of-powers doc- legal trine); sentencing, States, framework would be Wade v. United 504 U.S. incongruous for us conclude these

constitutional concerns notice and arbi- (holding government’s refusal to trary if triggered only enforcement are file a substantial-assistance motion under vague provision also creates a sufficient subject judicial U.S.S.G. 5K1.1 is re- higher risk of a sentence. motive). view for unconstitutional And in Stinson, the Court explained that Guide- We conclude that it would be erroneous commentary, just lines agency’s as an in- Peugh after to view the Guidelines as so terpretation regulations, of its own is enti- distinguishable from “statutes sen- controlling tled to weight long as it tences,” Johnson, to be “does not violate the Constitution or a vagueness challenges immune from but not federal statute.” 508 other constitutional attacks. Post-John- Nothing suggests that it Peugh, son and the fact that the Guide- overrules these cases or limits vague- mandatory lines are not is a distinction ness doctrine to criminal In light statutes. view, without a difference. In our John- history, of this legal we see no basis for applies son’s rationale equal force to concluding that unique- the Guidelines are the Guidelines’ residual clause.

ly immune to challenges. C. D.

Moreover, Guidelines, whether mandatory advisory, always developments among Recent our have been sister subject to some constitutional circuits our support holding. limitations. In United Madrid, equivalent leg instance, The Guidelines “are the the Tenth adopted by agencies.” islative rules federal Circuit declared Johnson “unambiguous”: Stinson v. United the “vagueness only doctrine exists not (1993). 1913, 113 S.Ct. individuals, provide notice to but also to course, Agency regulations, subject of are prevent judges imposing arbitrary from challenge, to constitutional and the Su systematically inconsistent sentences.” preme regulations Court has invalidated Observing 805 F.3d at 1210. that it inter- See, vagueness grounds. on e.g., FCC v. prets by the Guidelines’ residual clause — Stations, Inc., Fox Television counterpart, reference to its ACCA -, 2307, 2320, 183 L.Ed.2d 234 court explained Madrid that the “concerns (2012). follows, therefore, It that because judicial inconsistency about that motivated “equivalent” regula the Guidelines are the Court in Johnson lead us to conclude tions, subject which are to constitutional that the residual clause of the Guidelines is challenges vagueness, such as the Guide unconstitutionally If vague. also one itera- subject lines should vagueness also be unconstitutionally tion of the clause is challenges. vague, so too is the other.” Id. The court Indeed, emphasized advisory that the nature of the Supreme Court resolved Guidelines did not alter its conclusion: challenges both constitutional to the “The has held that Guidelines Court whole and individual See, subject Guidelines are to constitutional provisions. e.g., Guidelines Mistretta 361, challenge ‘notwithstanding v. the fact United 488 U.S. (upholding sentencing possess 102 714 courts discretion to de- L.Ed.2d constitutional, sentencing Guidelines as not an from exces- viate the recommended 908 ” (7th Cir.2015) (same); v. United States Peugh, 133 856 (quoting at 1211

range.’ Id. Cir.2015) (8th (per 2082). “Further, F.3d 931 Taylor, the Guidelines 803 S.Ct. at curiam). for a starting point mandatory are the determination; a court district Johnson, affir only one circuit has Since correctly failing can reversed be are not matively that the Guidelines held ability to later despite the apply them in Eleventh Circuit United affected. The range.” from the recommended deviate to invalidate v. Matchett declined States 49-51, Gall, 128 at (citing Id. 4B1.2(a)(2) because, view, in its 586). are “Because the Guidelines vague susceptible are Guidelines sentencing determina- of all beginning challenges. 802 F.3d 1193-96 ness tions, un- light in of the ‘unavoidable Cir.2015). (11th premise adjudication of certainty and arbitrariness analysis court’s was clause,’ that the the residual hold “merely ... the initial benchmark” are 4B1.2(a)(2) is void for clause residual to assist sentencing, “designed 135 vagueness.” Id. determining sen sentencing judge in (citation 2562) omit- and footnote S.Ct. at tence,” “defendants which means cannot

.ted). acknowl- Finally, the Tenth Circuit communicate the sentence rely on them to among there exists a “conflict edged that impose.” will Id. that the district regard in to whether the circuits omitted). (internal marks quotation 1194 challenged vague- on may be uni court cited a support, For limited the cases distinguished grounds,” ness but from cir pre-Peugh cases other verse vagueness shielding the Guidelines there is no con holding cuits that because they pre-dated challenges on basis sentencing guidelines, right stitutional Madrid, 1211 n. 9 805 F.3d at Peugh. ju place the Guidelines the limitations cases). (collecting cannot violate defendants’ dicial discretion has also invalidated The Third Circuit by being rights process to due reason unconsti- residual clause as the Guidelines’ (citing vague. at 1194-95 tutionally vague after Johnson. (7th Tichenor, F.3d Townsend, Fed. Cir.2012) Wivell, and United States n. Appx. WL Cir.1990)). (“We (3d 2015) are *4 Cir. Dec. & n. deci- intervening Supreme But case, circuit by our guided, this own both sions have undermined Wivell clauses interpreting the residual precedent First, That rests Tichenor. Wivell. case light and the ACCA assumption doc- on the wording and the Govern- their identical liability, not sentenc- trine was limited should concession that Townsend ment’s disputes F.2d at 159-60. No one ing. 893 resentenced.”). have ac- Other courts be has since clarified that that Johnson that cepted government’s concession only “not to statutes de- doctrine extends have applies and remanded crimes, but also to stat- fining elements See, v. resentencing. e.g., United 135 S.Ct. at 2557. utes sentences.” 12-3487-cr, Maldonado, 636 Fed. No. faulty that on the notion It also rests (2d 229833, 807, 810, at *3 Appx. WL right to is no constitutional because “there 2016) 20, (proceeding “on the Cir. Jan. limitations, sentencing guidelines^] rea- Court’s assumption place judge’s on a the Guidelines discretion residual respect to the ACCA’s soning with right due cannot defendant’s violate identically worded applies clause to the being vague.” 4B1.2(a)(2)’s clause”); process by reason residual Guideline But, appellant persua- States, F.2d at 160. as the v. Ramirez United Johnson). court, into doubt after sively argued to Matchett Wivell Sec “[t]hat ond, fundamentally mistakenly flawed. Even it reasoning Irizarry relied on constitutionally if are not 553 U.S. 128 S.Ct. (2008). required, that does not afford them consti- On this immunity they put tutional once are into point, only brief mention that merits/ Indeed, place. reasoning Wivell’s would Irizarry implicates distinguishable notice permit promulgate the Commission to interest from the one at issue here. Both that discriminated on the basis the Matchett and Tichenor courts cited class, protected penalized of a the exercise Irizarry proposition any for the that ex rights, of constitutional or bore no rational pectation that a defendant would receive a relationship goals sentencing. to the sentence within the presumptively applica “ That cannot be the law.” Appellant Suppl. range ble Guidelines ‘did not survive ’” Br., *11-12, Matchett, decision in United States v. [the] Booker. (11th 14-10396, No. 2015 WL 5175083 Cir. Matchett, 802 F.3d at 1194 Irizar 2015) (footnote omitted). Sept. It ry, 2198); 553 U.S. at see that Eighth makes sense Circuit itself Tichenor, Irizarry 683 F.3d at 364.- But question has since called Wivell into when does not establish that the substance of vacating remanding light a sentence provide Guidelines need not notice of (“The Taylor, of Johnson. 803 F.3d at 933 Rather, sentencing. the basis for it re reasoning guidelines Wivell that solved a question. different notice unconstitutionally vague cannot be because Due Process consists of sepa Clause two they proscribe do not conduct is doubtful first, requirements: rate notice Johnson.”). after public law inform the of what conduct is

Second, There, Tichenor. the Seventh prohibited consequences and the of such vagueness principles (“ex Circuit reasoned that notice”), sée, conduct ante e.g., Lan inapplicable are to the Guidelines because 451, 453, Jersey, zetta v. New the Guidelines do not function like statutes (1939); second, L.Ed. they merely judge’s, structure a clearly public even if the law notifies the year discretion. 683 F.3d at 364. But a conduct, prohibited process requires due later, Peugh rejected government’s as- provide a defendant merely sertion that the Guidelines were allegations oppor with notice of the and an “guideposts” that lacked the “force and (“adversarial notice”), tunity respond laws,” effect of explaining that the Guide- see, e.g., Mullane v. Cent. Hanover Bank lines “anchor both the district court’s dis- Co., & Tr. appellate process.”

cretion and the review (1950). 94 L.Ed. 865 See Brief of Law 133 S.Ct. at 2085-87. And to the extent Support Professors as Amicus Curiae in that Tichenor relied on United States v. (“Law Defendant-Appellant Professors’ (7th Demaree, Cir.2006), 459 F.3d 791 Brief’), *8-10, Amicus United States distinguish the Guidelines from criminal Matchett, 2015 WL 6723558 statutes, very post is the ex case facto 15, 2015); Oct. see also Cir. Carissa Peugh abrogated. Hessick, Byrne F. Pro Hessick & Andrew Rights Sentencing, cedural 90 Notre analysis

The remainder of Tichenor’s is First, (discussing Dame L. Rev. 187 Iri- unpersuasive. likewise it relied significance in manda zarry’s process the due assumption same as Wivell that the tory discretionary vagueness liability, doctrine is limited to schemes). 363-64; sentencing. not See 683 F.3d at It is clear that the void-for- Taylor, (calling vagueness see also 803 F.3d at 933 doctrine derives from the first more, even if there are current requires it the What is notice because category of notify public of what the adequately law to that are insuffi- or future Guidelines penalties and the prohibited conduct is is well- ciently precise, the Commission See Law Pro- in such conduct. engaging ambiguity. that As situated to resolve Brief, Irizarry at *10. fessors’ Amicus noted, Supreme Court has the Sen- the of notice be- the second kind implicated ongoing.” tencing work is “Commission’s sentencing court was it held that a cause States, Rita United defen- required notify particular to not (2007). 2456, 168 L.Ed.2d 203] S.Ct. [127 might that it particular in a case dant Sentencing regularly It amends sentence. 553 impose an above-Guidelines response evolving in to con- Irizarry is U.S. cerns, about how including disagreement Peugh, it is our inapposite. After thus apply guidelines. certain interpret reasoning flawed that Tichenor’s is view Summers, See, e.g., court was mistaken and that the Matchett (11th Cir.1999) rely (Carnes, on it. (“When J., ambiguity an ... dissenting) E. differing applications in results disagree with Finally, respectfully guideline, same the Commission has exposing Matchett court authority, perhaps duty, clarify vagueness challenges will Guidelines to matters.”). sentencing regime.” our “upend Indeed, already the Commission has First, at 1196. Court dis- 4131.2(a)(2) § taken action to amend very missed this concern Johnson. The that, explained unlike the ACCA’s Johnson; it the wake of United States v. clause, “requires application which residual given requested public notice and potential of the ‘serious risk’ standard proposed on a amendment to comment crime,” ordinary an idealized case replace the residual clause and it delete poten- the laws cited predicate a finite list of offenses. tially vague (using terms like “substantial Sentencing for the United risk,” risk,” “grave and “unreasonable 49,314 Courts, Reg. 80 Fed. risk”) “require gauging are laws (2015). effect, If takes this amendment an riskiness of conduct which individual 4131.2(a)(2) sufficiently precise will be engages particular on a occasion.” 135 any vagueness concerns. so as to avoid matter, general at 2561. “As a we do decision Consequently, constitutionality of laws that not doubt 4131.2(a)(2) unconstitutionally vague qualitative of a application call for the standard such as ‘substantial risk’ to real- hardly “upend sentencing re would our conduct; the law is full of instances world entirely con gime.” Rather would be depends where a man’s fate on his estimat- Sentencing sistent with what the Com degree.” some matter of ing rightly already acknowledged mission has —that Nash 4131.2(a)(2) is flawed and should 780, 57 L.Ed. 1232 calcu continue to inform the Guidelines (1913)). words, In other laws sen- lation in its current form. tences that are based on “real-world con- unlikely vague- duct” are to raise the same Brief, at *14. Law We Professors’Amicus concerns. ness grounded approach compel- find this more ling than the Matchett court’s concern Second, noted in the Matchett as amicus subjecting the Guidelines case: our lines. challenges “upend Accordingly, would we hold that the resid- 4B1.2(a) regime,” § 802 F.3d at 1196.2 ual clause of U.S.S.G. is uncon- stitutionally vague. F. third-degree Because Pawlak’s Ohio reasons, part we must also For the same burglary longer qualifying offense is no a In ways precedent. with our own conviction, Coleman, see 655 F.3d at Smith, 73 F.3d Cir. he must be resentenced. 1996),we held the Guidelines were not that In susceptible doing attacks. IV. so, exclusively on our unpub we relied Next, argues Pawlak the district Salas, lished decision of United States v. applying court erred in a four-level en- (unpublished 1994 WL 24982 table deci hancement for sion), Wivell, trafficking firearms because which followed 893 F.2d at the facts are insufficient to establish that the aforementioned case that the Eighth question Circuit has now called into he knew or had reason to believe Taylor, pub in 803 F.3d at 933. a recipient While firearms a person pos- was whose lished decision of our court binds subse unlawful, session firearms would be quent panels, intervening when an decision 2K2.1(b)(5). required by U.S.S.G. Supreme of the United States Court re apply clearly-erroneous a “[W]e decision, quires prior modification of our standard of review to the district court’s longer by precedent. we are no bound our fact, findings of the determination of [but] Elbe, United States v. 774 F.3d specific actually whether facts constitute (6th Cir.2014). stated, For the reasons question [the enhancement] is mixed legal hold that the landscape surrounding fact and law that we review de novo.” Guidelines, by as announced the Su Bazazpour, United States v. Court, sufficiently preme changed (6th Cir.2012). “The district court is precedent longer our can no stand. required supporting to find the facts this disputes After no one provision by preponderance of the evi language that the identical of the Guide Freeman, dence.” United States implicates lines’ residual clause the same (6th Cir.2011) (discussing constitutional concerns as the ACCA’s re 2K2.1(b)(5)). sidual clause. the words of the Tenth 2K2.1(b)(5), Under U.S.S.G. “defen- Circuit, “[g]iven our reliance on the ACCA engagefs] trafficking dant in the [who] 4B1.2, guidance interpreting § subject to a four-level en- firearms” is credulity say that stretches we could prove must hancement. The apply the residual clause of the Guidelines (1) trans- “transported, that the defendant constitutional, way in a that is when courts ferred, disposed or otherwise of two or cannot do so the context of the ACCA.” individual,” to another more firearms Madrid, reading F.3d at 1211. Our or had reason to believe that “knew the current state of the law as established transport, such conduct would result compels holding our transfer, of a firearm to an disposal applies the rationale of Johnson (a) possession or re- equally to the residual clause of the Guide- individual” “whose ii, 2016), adopted pro- http://www.ussc.gov/sites/ 2. The Commission has since its Gan. posed default/files/pdf/amendment-process/reader- amendment to the definition of “crime (effec- friendly-amendments/20160108_RF.pdf of violence" in the Guidelines. Amendment 1, 2016). Sentencing (Preliminary) Aug. to the tive t-H Oi buyer or same on four occasions within would be unlawful”

ceipt of the firearm (3) (double (b) of the mar- dispose days); price to use or “who intended and 13(A). value). unlawfully.” emt. n. firearm Additionally, the undercover ket “ possession or An whose re- ‘[individual that he left his “truck officer told Pawlak firearm would be unlawful’ ceipt of the because, uh, running something in case (i) prior a an individual who means it,” wrong implying I have to dash for goes violence, a con- for a crime of conviction from prohibited purchasing that he was offense, or a misdemean- trolled substance the firearms. (ii) violence; or at the or crime of domestic to estab- We find these facts sufficient under a criminal time of the offense was likely it more than not lish that is sentence, pa- justice including probation, buy- that the Pawlak had reason to believe release, role, imprisonment, supervised black obtaining firearms on the er was release, cmt. escape work or status.” Id. the usual cost because he market double 13(B). assessing a defendant’s n. In purchasing firearms prohibited was “sentencing permit- a court is knowledge, especially given the by legal means — common-sense inferences ted to make the “dash for it” heavily price inflated and from the circumstantial evidence.” United context, the “dash for it” comment. (5th Juarez, States the offi- strongly suggests comment Cir.2010) (internal quotation marks omit- very of firearms was ille- possession cer’s ted) (affirming application of an enhance- was made gal. Although comment 2K2.1(b)(5)); ment under see United sale, the fourth and final that trans- during Ruth, 95-5977, 1996 WL firearms, action involved two so would 1996) Apr. (unpub- Cir. enhancement support application of the decision) (“[CJircumstantial ev- lished table previous without reference to the three by itself to convict may idence be sufficient 2K2.1(b)(5) n. sales. cmt. See U.S.S.G. defendant, certainly sufficient to a and is firearms”). 13(A)(i)(“two or more enhancement, which support proof.” a much burden of carries lower is that the argument appeal Pawlak’s omitted)). (internal emphasis citation and any failed to introduce evi- “government to show the [confidential informant] dence case, main In this require- or met [undercover officer] the[ ] circumstantial evi following tains that the possession a person ments” of whose by preponderance dence establishes 2K2.1(b)(5). be unlawful under would that Pawlak had reason to the evidence interpret argument We his be possession of firearms believe required to establish that government was offi confidential informant and undercover actually recipient prohibit- the firearm was (1) the cer would have been unlawful: But that possessing ed from firearms.3 surreptitious (wrapping nature of the sales misstates That government’s burden. paper bag, in a blanket or con firearms an undercover officer recipient was privacy in the of Paw- ducting transactions actually unlawful possession whose was bedroom, refusing to count the lak’s and immaterial if the defendant “had reason outside); money “quantity possession the officer’s to believe” (selling of the firearms six semi quality” if the facts were ammunition to the would been unlawful guns automatic with have recipient applies argues the enhancement 3. Pawlak that the confidential infor- because buyer recipient was not a or mant respect the undercover officer who we need not resolve whether firearms. But undisputedly buyer recipient. was buyer the confidential informant was a as the defendant understood them. Unit- reason to believe that the individual to Henry, ed States v. 819 F.3d whom the firearm was had transferred (6th 1392480,at 2016 WL *9 Cir. certain prior convictions or is under a 8, 2016); Apr. see also United States v. justice criminal sentence. See United (11th Fields, Fed.Appx. 608 812-13 Asante, States 643-44 Cir.2015) curiam) (“Because (per nothing (11th Cir.2015) (holding that govern the commentary in the suggests prove ment failed to ac defendant’s true, defendant’s belief must be Fields’s tions fell under possession the unlawful focus on the fact he transferred firearms “[bjecause prong the Government failed to solely to an undercover officer unpersua- present any evidence that [the defendant] sive.”); Asante, see United States v. 782 knew that his conduct would result in a (11th Cir.2015) (for purposes F.3d 644 being firearm to” an transferred individual 2K2.1(b)(5), §of a court looks to the cir- falling guidelines’ under the narrow defini defendant”). cumstances as “known to the tion of an posses individual in unlawful repeating It bears sion); Howard, United States v. 539 Fed. only required was to establish that Pawlak (10th Cir.2013) Appx. (holding had “reason recipient’s to believe” that the that the defendant’s actions fell unlawful, possession would be if the facts possession unlawful prong where the de were as Pawlak understood them. The fendant transferred least one firearm to government met this burden. felon); a known United States v. Richard The district court did not err in applying son, (7th Fed.Appx. 523-24 Cir. the firearms-trafficking enhancement on 2011) (holding that the district court erred recipient’s the basis of the pos- unlawful because it applied the enhancement with conclusion, session firearms. Given our taking out into account whether the defen argu- we need not reach the alternative dant knew or should have posses known ment that recipient’s intended use of unlawful); sion would be the firearms was unlawful. Green, Fed.Appx. Cir. 2010) (vacating the in light sentence V. government’s concession that there was no III, For the reasons stated in Part receiving evidence that the individuals vacate Pawlak’s sentence. Because Paw- firearms “had a relevant criminal convic third-degree burglary lak’s offense is no justice tion or under a criminal [were] longer qualifying felony purposes offense”). sentence the time of the But 2K2.1(a)(l), he must be re- see Pepper, sentenced consistent with this decision. (8th Cir.2014) (holding that both the remand for resentencing. We possession unlawful and unlawful use GIBBONS, prongs noting were met and fire JULIA SMITH Circuit Judge, concurring. arm transferred to the individual “was not registered, making pos [the individual’s] I in full in concur Parts I—III of the unlawful”). necessarily session of it In TV, I opinion. respect With Part would stead, stronger argu I believe that against deciding caution this case on the supporting ment the enhancement is the majority rationale utilized government’s' argument alternative opinion. opinion correctly "While the —that recipi Pawlak had reason to know that the possession states that the individual’s ent intended unlawful use of the firearm. in question the firearm need not be actual- unlawful, ly support The facts relied on the inference it overlooks the fact that the knowledge defendant must have had the defendant had reason to know unlaw- possession was recipient’s an intended obviously support more ful use.

unlawful reason, the case I would resolve this

For use, pos- unlawful on unlawful

based

session, our affirmance or at least base grounds.

both America,

UNITED STATES

Plaintiff-Appellee, BARNES, Allen Defendant-

Lester

Appellant.

No. 15-5237. Appeals, Court of

United States Circuit.

Sixth 10, 2016.

Argued: March May Filed:

Decided and

Case Details

Case Name: United States v. Jesse Pawlak

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 13, 2016

Citation: 822 F.3d 902

Docket Number: 15-3566

Court Abbreviation: 6th Cir.