UNITED STATES of America, Appellee, v. Keyon A. TAYLOR, a/k/a Key, a/k/a Keyon Taylor, Defendant, Appellant.
No. 15-1764
United States Court of Appeals, First Circuit.
February 8, 2017
848 F.3d 476
THOMPSON, Circuit Judge.
Keyon Taylor ( Taylor ) shot and beat a postal worker, and then hijacked his truck in a botched robbery scheme. The ordeal finally came to an end when the worker popped the truck s rear gate and jumped out of the moving vehicle to try and save his own skin. Taylor was convicted of multiple federal crimes arising from this episode, then sentenced to just shy of thirty years in prison. Taylor now appeals. We affirm on all points but one: Taylor s Guidelines sentencing range was incorrectly calculated, and so we remand for the limited purpose of permitting the trial court judge to reconsider Taylor s sentence.
Randall E. Kromm, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for Appellee.
Karen A. Pickett and Pickett Law Offices, P.C., Boston, MA, on brief for Appellant.
The Facts
Taylor raises many challenges to his conviction and sentence on appeal, but the sufficiency of the evidence is not one of them. So, we give a balanced presentation of those facts necessary to understand the parameters of this appeal and our disposal of it. See United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015), cert. denied, --- U.S. ---, 136 S.Ct. 599, 193 L.Ed.2d 479 (2015).1 The details of the crime and the police investigation are important to our analysis of Taylor s claims on appeal, so bear with us as we spell them out.
On December 20, 2013, around 6:00 pm, a United States Postal Service letter carrier named Fai Wu was out delivering pack
Eventually the armed attacker ordered Wu to strip off his uniform, to hand over his truck keys, and not to look at him. The assailant then took the uniform and mopped up some of Wu s blood from the front of the truck before driving it away with Wu still in the back. Wu seized his opportunity to escape when the attacker slowed down to turn a corner: clad only in a sweatshirt, long underwear, and socks, Wu popped the tailgate, jumped off the back of the truck, and hightailed it down the street. As he ran, yelling for help, a still-bleeding Wu spotted the same white van he had previously observed and inadvertently brushed up against it. Wu kept going until he came across a group of pedestrians who called 911.
According to witnesses, the attacker crashed the truck into a snow bank and fled the scene, leaving a visible trail of boot prints and blood behind. Investigators later followed that trail and found, amongst other crime-related items, blood on two chain-link fences; scraps of purple nitrile gloves, including one piece that was stuck to a fence in the blood; and a blood-smeared backyard recycling bin containing Wu s uniform.
After learning of the attack, postal inspectors and police canvassed the area looking for more clues. Witnesses reported that a white U-Haul van was behind the mail truck before and after Wu was attacked. Investigators discovered that a corner market near the crime scene caught the white van on camera: the market s surveillance footage showed the mail truck driving down the block at 5:57 pm, and as soon as the mail truck passed by, a white U-Haul van turned its headlights on and followed the mail truck around the corner and through a red light.
Later in the evening, when postal inspectors were still out pursuing their investigation, they spotted a white cargo U-Haul van fitting witnesses descriptions a short distance from the kidnapping scene. They followed it to a gas station and within moments noticed two blood smudges on the outside of the van and a purple nitrile glove in a cup holder. The inspectors learned Maurice Gittens was the driver and Kemron Roache the passenger. When asked what he was doing with the van, Gittens told the postal inspectors he was living in it (though the rear compartment was nearly empty). Both men were transported to the police station for questioning. While there, Gittens told the police, in pertinent part, the following: the purple glove was not his, but was left in his car by a man named Kurt (whose last name and whereabouts Gittens did not know); yes, he
With his consent, police searched Gittens phone and found he had called Cam, later determined to be Roache s nickname—around 6:12 pm that night, and that a few minutes later Cam texted Ima hit you wen to come threw. At 6:31 pm, Cam texted Where key at. After obtaining a warrant, police searched the van and found several items, including more purple nitrile gloves, an ID card belonging to Sabrina Ramsey—a woman later determined to be Taylor s girlfriend—and a U-Haul rental agreement in the name of Maurice Williams but bearing Ramsey s address. When questioned, Ramsey told police that she was with Taylor and Gittens in the white van until 5:00 or 5:30 pm that day, Taylor did not return to her place until 8:00 or 9:00 pm, and Gittens showed up around 4:00 am (after he was questioned) looking for Taylor.
So the police started looking for Taylor, too. In their investigation, they discovered that the then-twenty-year-old suspect worked in an office where purple nitrile gloves were used. They also obtained surveillance footage from the U-Haul rental center showing that Taylor and Gittens rented the white van the day before the attack on Wu. Several days later the police went to Taylor s mother s house, where they found Taylor and other evidence, including a black jacket with a stained sleeve.
DNA testing performed on several seized items showed a lot. Both Taylor and Wu s DNA were found on the black jacket. Wu s uniform retrieved from the recycling bin carried both Wu and Taylor s blood. The blood on the flight path fences and the recycling bin belonged to Taylor. And, the blood on the outside of the white van belonged to Wu.
Court Proceedings
Taylor and Gittens were indicted for (1) conspiracy to rob a postal worker under
Taylor opted for trial, wherein he essentially presented a misidentification defense based on how the crime unfolded. As a result of Wu s assailant wearing a mask during the assault and kidnapping, Wu was unable to identify his attacker. Pivoting off this identity problem and trying to sow seeds of reasonable doubt by labeling any evidence of his culpability inconclusive, Taylor argued that Roache better matched Wu s description of the assailant s height and build. And, that fact, coupled with the presence of Roache s fingerprints on the door of the white van and the recovery of Wu s wallet in a neighborhood near Roache s house, meant Roache had to be the person who robbed and shot Wu. To further support his him-not-me theory, Taylor wanted to use the following evidence: (1) a letter from the government
Sticking with a misidentification defense during his closing argument (which we will address momentarily), Taylor s lawyer gave the jury an alternative explanation of the evidence which described in detail how Roache was more probably the culprit. In response to the defense s closing, the prosecutor s rebuttal harped on why evidence did not support Taylor s Roache-blaming theory. He also emphasized that statements made by Taylor s attorney are not evidence. In the end the jury didn t buy Taylor s defense and convicted him on all counts.
Taylor s Presentence Investigation Report recommended a Guidelines sentencing range of 360 months (30 years) to life in prison, plus a mandatory consecutive ten-year term for Taylor s conviction on count six, using a firearm during a crime of violence. Objecting to the report in a presentencing filing and again during his sentencing hearing, Taylor claimed the Guidelines range was wrong for two reasons: his prior conviction for larceny from a person is not a crime of violence, and his criminal history score exaggerated the seriousness of his past crimes, most of which he committed as a teenager. The judge rejected Taylor s first argument but agreed with the second and sentenced Taylor to 235 months, plus ten years.
This appeal followed.
Taylor s Arguments
Taylor raises challenges to several trial happenings: (1) the trial court judge s exclusion of the Roache Letter and the Gittens Statement; (2) the prosecutor s closing argument, which Taylor claims was an improper comment on his failure to testify or present exculpatory evidence; (3) his conviction on count six, for using a firearm during a crime of violence, because he believes the predicate crimes are not crimes of violence under
The Evidence
Taylor objected to the exclusion of the Roache Letter and the Gittens Statement at trial, so we review both of these evidentiary rulings for abuse of discretion. See Burgos-Montes, 786 F.3d at 114. Abuse of discretion occurs when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales. United States v. Jimenez, 419 F.3d 34, 43 (1st Cir. 2005) (quoting United States v. Gilbert, 229 F.3d 15, 21 (1st Cir. 2000)).
If the trial court abuses its discretion, the burden falls to the government to show the error was harmless. Burgos-Montes, 786 F.3d at 114 (citing United States v. Meserve, 271 F.3d 314, 329 (1st Cir. 2001)). An error is harmless if it does not affect [a] substantial right[ ],
The Roache Letter
Taylor argues that the trial court abused its discretion in excluding the Roache Letter, a letter Taylor urges is admissible as a non-hearsay admission by the prosecution that Roache was a co-conspirator. See
- Roache did it, or at the very least, the evidence did not prove the perpetrator s identity beyond a reasonable doubt,
- the government s admission that Roache was a co-conspirator bolstered Taylor s defense that Roache was involved,
- so, the evidence was relevant and should have been admitted.
Stating that even if she assumed the Letter could have been admitted under
Our take: Assuming the Letter was admissible under
The Letter s exclusion also did not stop Taylor from pressing his him-not-me theory. On cross-examination of the government s witnesses, Taylor drew out the fact that Roache better matched the suspect s description, and that police did not test the seized evidence for Roache s DNA. Taylor called his own witnesses to testify that Wu s wallet was recovered near Roache s house, and that Roache s fingerprints were found on the van. Taylor then used his closing argument to try and tie Roache rather than himself to all of the prosecution s other evidence of the crime. For instance, Taylor argued that his DNA ended up along the attacker s flight path and on Wu s uniform because he met up with Roache by the recycling bin after Roache attacked Wu.
The prosecution s evidence, on the other hand, strongly pointed to Taylor. Taylor and Gittens were caught on camera renting the white cargo van together. Taylor worked in an office building that used purple nitrile gloves like the ones found stuck to the fence and in the van. When Wu s attacker fled the scene of the crime, he left a trail of blood leading to a blood-smeared recycling bin where the attacker dumped Wu s uniform mid-flight. The blood found on the flight path, the bin, and the uniform was Keyon Taylor s. Postal inspectors found a black jacket like the one worn by Wu s attacker in Taylor s mother s closet. That jacket contained Taylor s DNA and was stained with Wu s blood. Given the abundance of evidence inculpating Taylor, the government has shown it is highly probable that the exclusion of the Roache Letter did not contribute to the verdict. See Rose, 104 F.3d at 1414. Any error in excluding the Letter was harmless.2
The Gittens Statement
Taylor also claims the trial court abused its discretion in excluding Gittens statement that he picked up Roache at 6:00 pm (remember, the attack went down around that time). Here s how the issue of the Gittens Statement arose: at trial the prosecution was allowed to admit Gittens statement to police that he was living in the van as evidence that Gittens lied about why he rented the van. So, Taylor argued that this opened the door for him to introduce another statement Gittens made to police that night—his statement that he picked up Roache at 6:00 pm—as a statement against interest under
1. The 804(b)(3) Claim
Under
For our part, we need not decide today whether the Gittens Statement satisfied the self-inculpatory prong of the
The second prong of the
As we have explained, [t]he fear that inculpatory statements are unreliable stems largely from the presumption that such statements are self-serving, offered only to shift the blame from the declarant to another, thus we construe the corroboration requirement in such a manner as to effectuate its purpose of circumventing [such] fabrication. Barone, 114 F.3d at 1301 (citations omitted); see Williamson, 512 U.S. at 601-02. So a statement may be corroborated by the circumstances in which the statement was made if it is directly against the declarant s penal interest, made to a close associate or family member, or there is no indication that the speaker had motive to lie. Barone, 114 F.3d at 1301; see, e.g., Monserrate-Valentin, 729 F.3d at 53-55 (corroborating circumstances found where statements made to cousins and undercover agent); Pelletier, 666 F.3d at 8-9 (statements made to fellow inmate). On the other hand, statements made to law enforcement officers, or in an apparent attempt by the speaker to shift blame or otherwise diminish his role in the criminal activity described in the statements, may not necessarily be corroborated by the circumstances. Barone, 114 F.3d at 1301.
The Gittens Statement was made to police. And, as the government argued below, the Statement was made after Gittens was apprehended with Roache and the van on the night of the crime in an apparent attempt to establish an alibi for the time of the attack on Wu and to explain away the presence of the purple nitrile gloves in the van. These circumstances indicate that Gittens had motive to lie and was angling to diminish his role in the events of the evening—in other words, these are the type of circumstances that fail to corroborate.
Taylor does not now address the circumstances in which the Gittens Statement was made. Instead, as previously noted, he points to independent evidence that he claims supports the truth of the matter asserted by the hearsay statements. See Pelletier, 666 F.3d at 8 (quoting Barone, 114 F.3d at 1300). But the problem with his argument is that this type of corroboration requires indicia of trustworthiness of the specific, essential assertions, not merely of other facts contained in the statement. Mackey, 117 F.3d at 29 (quoting United States v. Zirpolo, 704 F.2d 23, 27 n.4 (1st Cir. 1983)); see, e.g., United States v. Millan, 230 F.3d 431, 437 (1st Cir. 2000). The essential assertion here, and the relevant fact that Taylor wanted to use the Statement to prove, is that Gittens picked up Roache around the time of the crime. Neither the fact that surveillance video showed the white van behind Wu s mail truck, nor the fact that the government said Roache was an unindicted co-conspirator, corroborates the assertion that Gittens, in fact, picked up Roache or that the two of them were together at 6:00 pm.3 Indeed, as the govern
2. The Doctrine of Completeness Claim
In addition to his
These evidentiary disputes resolved, we move on to Taylor s next claim of error.
The Closing Arguments
Taylor argues his conviction should be reversed because the prosecutor s closing arguments were prejudicial. In his rebuttal argument, the prosecutor repeatedly stated that defense counsel cannot testify, or that defense counsel was in fact testifying, and that the evidence in the record did not support Taylor s lawyer s theories. This approach, according to Taylor, was an improper attack on defense counsel that amounted to commenting on Taylor s right not to testify and not to produce evidence.
Because Taylor did not object to the prosecutor s statements at trial, we review for plain error. See United States v. Wilkerson, 411 F.3d 1, 7 (1st Cir. 2005). This means we review to determine whether an error occurred which was clear or obvious and which not only affected the defendant s substantial rights but also seriously impaired the fairness, integrity, or public reputation of judicial proceedings. Id.
A prosecutor may not comment on the defendant s failure to testify in his own defense, nor may a prosecutor imply that the defendant has the burden to produce exculpatory evidence. United States v. Glover, 558 F.3d 71, 77 (1st Cir. 2009). A prosecutor s remarks violate a defendant s
But, where the defendant offers an alternate theory of the crime in his own defense, the government may comment on the plausibility of the defendant s theory, provided the comments are focused on the record evidence and not the defendant s failure to produce any. Glover, 558 F.3d at 78. Indeed, the prosecution may comment on the lack of evidence for a defense theory. United States v. Lyons, 740 F.3d 702, 730 (1st Cir. 2014) (finding no
Upon review of the statements, we cannot find Taylor s view—that the prosecutor was commenting on Taylor s failure to testify or produce evidence—is the only, or even a natural reading of the prosecutor s statements. Taylor used his closing argument to illustrate how Roache s involvement could explain the evidence that incriminated Taylor. And, the prosecutor commented on the plausibility of each explanation. For example, Taylor s lawyer said that the assailant s bloody clothes materialized in Taylor s mother s closet in Attleboro not because Taylor put them there, but because Gittens picked up Roache after Roache attacked and kidnapped Wu, then Gittens and Roache put the clothes in the closet. The prosecutor rebutted:
He s told you that Maurice Gittens picked up Roache, ... [and] went down to Attleboro. He told you that they put clothes there, clothes that [were] used in the shooting. Did you hear any evidence of that? None. He[, Taylor s attorney,] can t testify, ladies and gentlemen. He s not a witness.
In context, the prosecutor s arguments do not point to Taylor s failure to testify or present evidence; he is simply drawing the jury s attention to the balance of evidence on the contested issues. Niemi, 579 F.3d at 128-29 (quoting United States v. Stroman, 500 F.3d 61, 65 (1st Cir. 2007)).
The only instance that comes close to implicating Taylor s
So somebody crosses the intersection, they got a stripe on the jacket and automatically it must be Keyon Taylor. And he makes this leap. He says that Keyon Taylor is the person who walked down
Clermont Street, this incredible leap, incredible leap ... There is absolutely no evidence of that, ladies and gentlemen. He[, Taylor s lawyer,] cannot testify. Now, he says that the defendant was there. Really? Really. Did you hear any evidence to that point? He can t testify. He says the defendant wanted nothing to do with this. He leaves the van, he walks calmly down the street ... Really? What evidence of there is that. And he says, Well, you know, maybe he met up with Kemron Roache, maybe he took these articles, maybe it was a dumb decision. What evidence is there of that, ladies and gentlemen?
Arguably this comes closer to implicating Taylor s
But Taylor does not contend that the prosecutor s remarks resemble those in Desmond. Perhaps that is so because it is apparent on the record that there was someone other than himself whom the defendant could have called to fill the evidentiary gap. United States v. Ayewoh, 627 F.3d 914, 925 (1st Cir. 2010) (citations and internal quotation marks omitted). Here, that person is Roache.4 In any case, considered in context, the prosecutor s argument is not a comment on Taylor s failure to testify to explain his movements, or his failure to present exculpatory evidence. The prosecutor is, once again, commenting on the balance of the evidence, and the fact that none of it supports Taylor s theory. These comments are fair game.
Taylor s argument that the prosecutor s remarks improperly impugned the integrity or institutional role of defense counsel, Bennett, 75 F.3d at 46, fails for the same reasons. Taken in context, the prosecutor s statements that defense counsel cannot testify do not amount to an attack on Taylor s attorney. The comments simply state the incontrovertible truth—
Plain error is a high bar to clear. Here there was no error, so Taylor s argument falls flat.
The ACCA Conviction
Taylor raises a slew of challenges to his conviction under
The issue underlying Taylor s
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
We need not, and so do not, decide whether the
The Assault Predicate
Physical force under the ACCA means violent force—that is, force capable of causing physical pain or injury to another person. Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). To determine whether a crime requires the use, attempted use, or threatened use of violent force, we apply a categorical approach. That means we consider the elements of the crime of conviction, not the facts of how it was committed, and assess whether violent force is an element of the crime. United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014). For those not in the know, the [e]lements are the constituent parts of a crime s legal definition—the things the prosecution must prove to sustain a conviction. At a trial, they are what the jury must find beyond a reasonable doubt to convict the
Some crimes are defined broadly enough to cover some conduct that meets the force clause definition and some conduct that does not. For example, in Massachusetts, the broad definition of simple assault and battery encompasses both a devastating beating and a tap on the shoulder. Fish, 758 F.3d at 5. (A tap on the shoulder, of course, is not capable of causing physical pain or injury and so does not require violent force.) See id.; Johnson, 559 U.S. at 140. Using the element-based analysis, our goal is to determine whether the conduct criminalized by the statute, including the most innocent conduct, requires the use of violent force. Id. If not, the crime cannot support a conviction under the ACCA. See id.
Subsection (a) of
As between subsections (a) and (b), the statute is plainly divisible: the subsections are set out in the alternative and each carries its own penalties. See Mathis, 136 S.Ct. at 2256. Subsection (a) is likewise divisible because it sets out elements in the alternative—a defendant can be convicted of simple assault under
In assessing whether the enhanced versions of
First, the elements of the unenhanced offense. The government must show that the defendant acted forcibly under
We need not dwell on
The first enhanced version of
As we recently observed in assessing Massachusetts Assault with a Dangerous Weapon statute: the harm threatened by an assault is far more violent than offensive touching when committed with a weapon that is designed to produce or used in a way that is capable of producing serious bodily harm or death. As a result, the element of a dangerous weapon imports the violent force required by Johnson into the otherwise overbroad simple assault statute. United States v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015), cert. dismissed, --- U.S. ---, 137 S.Ct. 23, 195 L.Ed.2d 896 (2016), and cert. denied, --- U.S. ---, 137 S.Ct. 179, 196 L.Ed.2d 147 (2016); accord United States v. Hudson, 823 F.3d 11, 18 (1st Cir. 2016). The same logic applies here. It is possible to commit simple assault under
The second enhanced version of
Attempting to forestall this conclusion, Taylor argues that to qualify as a crime of violence,
The Constructive Amendment
Finally, even if
[A] constructive amendment occurs when the charging terms of an indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them. United States v. McIvery, 806 F.3d 645, 652 (1st Cir. 2015) (quoting United States v. Brandao, 539 F.3d 44, 57 (1st Cir. 2008)), cert. denied, --- U.S. ---, 137 S.Ct. 44, 196 L.Ed.2d 51 (2016). The indictment did not include assault in the list of predicate crimes, but the jury instructions did. This literal alteration of the charging terms is a constructive amendment. But, that is as far as Taylor s argument takes him. We consider Taylor s constructive amendment claim forfeited. See United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). That means we review for plain error, but Taylor has not shown the constructive amendment affected his substantial rights. See United States v. Vizcarrondo-Casanova, 763 F.3d 89, 99-100 (1st Cir. 2014), cert. denied, --- U.S. ---, 135 S.Ct. 307, 190 L.Ed.2d 223 (2014), and cert. denied sub nom. Aponte-Sobrado v. United States, --- U.S. ---, 136 S.Ct. 260, 193 L.Ed.2d 192 (2015), and cert. denied sub nom. Díaz-Colón v. United States, --- U.S. ---, 136 S.Ct. 30, 193 L.Ed.2d 45 (2015); Brandao, 539 F.3d at 60.
The rule against constructive amendments exists to preserve the defendant s
To support that claim, Taylor relies on Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). But Stirone does not help Taylor. In Stirone, the defendant was indicted on a charge of interfering with Pennsylvania s inbound sand trade, but the government presented evidence that he also interfered with the state s outbound steel trade, and the trial court permitted the jury to convict on either basis. 361 U.S. at 217. Because of the constructive amendment, the Court reversed the defendant s conviction. Id. at 219. In United States v. Brandao, 539 F.3d at 60, we confronted the question of whether or not constructive amendments are prejudicial per se and determined they are not, distinguishing Stirone over the defendant s ob
Here, Taylor did not object at trial, so under Brandao, plain error review applies. And a look at the indictment might explain why Taylor did not object: the grand jury indicted Taylor for using a firearm during the assault. So, even though the assault was not listed as a predicate to the
Because the enhanced assault conviction under
The Sentence
In his final claim on appeal, Taylor challenges the procedural reasonableness of his sentence.9 Over two objections, which we address in turn, Taylor was sentenced to about thirty years in prison. His sentence includes a downward variance, but from a Guidelines range that Taylor argues was erroneously adopted by the trial court. On this argument, Taylor gains some traction at last. As we describe below, Taylor challenges his sentence on a ground not raised to the district court, so Taylor bears the burden of showing plain error, see United States v. Marchena-Silvestre, 802 F.3d 196, 200 (1st Cir. 2015), which as we have noted is a not-so-defendant-friendly standard, see United States v. Williams, 717 F.3d 35, 42 (1st Cir. 2013).
Taylor objected to his Guidelines sentencing range below, claiming his prior conviction for larceny from the person is not a crime of violence under the categorical approach mandated by Fish, 758 F.3d at 5, and the Presentence Investigation Report erroneously categorized it as such by considering the facts of the offense rather than the elements of the crime. The trial court judge rejected this argument, finding she was bound by this Court s holdings to find that larceny from the person was a crime of violence under the Guidelines career offender residual clause. As a result, Taylor was sentenced as a career offender with a base offense level of 37 and a total criminal history score of 13. By the sentencing math, his Guidelines
Taylor also argued below that a downward departure was warranted because his criminal history category overstated the seriousness of his past crimes and the likelihood that he would commit other crimes in the future. For instance, Taylor noted that two of his criminal history points were for minor offenses committed when he was very young: he accrued one point for disorderly conduct because he was caught carrying a BB gun when he was sixteen; he accrued another point for receiving a stolen motor vehicle when he was seventeen, though he claimed he was using a friend s vehicle at the time so it was essentially a Use Without Authority case. Taylor also pointed out that he was prosecuted as an adult for four offenses committed when he was seventeen, but Massachusetts law has since changed—under today s law those crimes would be juvenile offenses and likely subject to a diversionary program in lieu of incarceration. Taylor received a total of six points for those offenses.
Taylor found a more receptive audience on this front: the trial judge agreed that Taylor s criminal history was overstated, estimated that if the offenses he committed at age seventeen were treated as juvenile offenses he would have 11 criminal history points instead of 13, and found Taylor would not be a career offender because only adult felony convictions are predicates for career offender status, so his offense level would be 34. By this hypothetical straight non-career offender scoring, the trial court judge estimated Taylor s Guidelines range would be 235 to 293 months.
In the end, the trial court judge refused to adopt a lower Guidelines range. Nevertheless, she varied from the calculated range of 360 months to life and instead sentenced Taylor to 235 months, plus 120 months for his conviction under
On appeal, Taylor now argues that his Guidelines range was wrong because Massachusetts crime of larceny from the person is a crime of violence only under the now-unconstitutional residual clause. The government concedes the point, and agrees that counting the larceny conviction as a crime of violence was a clear or obvious error. See Marchena-Silvestre, 802 F.3d at 200. To be entitled to relief on plain error review, then, Taylor must show that the error impacted his substantial rights, and that it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. (citation omitted). According to the government, it did neither because the record makes clear that Taylor s sentence was not imposed as a result of the error. We disagree.
An error affects the defendant s substantial rights if it is prejudicial, and in the sentencing context prejudice means there is a reasonable likelihood that, but for the error, the district court would have imposed a different, more favorable sentence. Marchena-Silvestre, 802 F.3d at 200 (quoting United States v. Ortiz, 741 F.3d 288, 293-94 (1st Cir. 2014)). In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable
The government can counter by pointing to a clear statement by the [sentencing] court that would be sufficient to diminish the potential of the [Guideline Sentencing Range] to influence the sentence actually imposed. Hudson, 823 F.3d at 19 (quoting Marchena-Silvestre, 802 F.3d at 201). A sentencing court might, for example, make it clear that it was aware of a possible flaw in its calculation of a guideline sentencing range, and explain that its sentence would nevertheless be the same under an alternative analysis pressed by the party that ultimately appealed. Marchena-Silvestre, 802 F.3d at 201. In those circumstances, we typically look for an indication that the trial court intended to untether the sentence from the Guidelines range. Hudson, 823 F.3d at 19. For instance, in United States v. Tavares, 705 F.3d 4, 27 (1st Cir. 2013), the parties disputed whether Tavares criminal history category was five or six, and the district court clearly erred in failing to choose. But, believing either potentially-applicable range too lenient, the trial court threw the Guidelines out the window and imposed the statutory maximum sentence. Under these circumstances we found the error was harmless because the sentencing Guidelines did not matter or impact the sentence imposed. Id. at 25; see also United States v. Romero-Galindez, 782 F.3d 63, 70 (1st Cir. 2015) (Guidelines irrelevant where trial court gave a higher statutory sentence). But absent a clear statement in the record showing the Guidelines error did not influence the sentence imposed, a Guidelines error is a prejudicial error. See Hudson, 823 F.3d at 19-20; United States v. McGhee, 651 F.3d 153, 159 (1st Cir. 2011) (remanding for resentencing even though defendant was sentenced below the Guidelines range where the transcript did not show that the career offender designation was entirely irrelevant ).
Taylor s starting point was wrong: the trial court judge adopted the Guidelines range set out in the Presentence Investigation Report, which counted Taylor s larceny from the person conviction as a crime of violence. In most cases that would be enough to show a reasonable probability of a different outcome. Molina-Martinez, 136 S.Ct. at 1346. The government contends this is not most cases because the trial court judge made a clear statement showing she based Taylor s sentence on factors independent of the Guidelines: she said she would have imposed the same sentence regardless of Taylor s career offender status, a fact she believed implicit in her statement of reasons.
We do not agree that this statement was clear enough to show the erroneously calculated Guidelines range did not influence the sentence ultimately imposed. It is true that the trial court judge estimated a
In any case, the statement of reasons does not show that the Guidelines were irrelevant, or that the trial court judge intended to untether Taylor s sentence from the Guidelines range. The statement only shows the trial court judge started from the wrong starting point, then varied downward from that starting point for a reason unrelated to the error that made the starting point wrong to begin with. The fact that she varied downward for an unrelated reason does not eliminate the potential influence of the incorrectly calculated Guidelines range, even though the sentence she imposed is within the correct range. Even if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence. Molina-Martinez, 136 S.Ct. at 1345 (quoting Peugh v. United States, --- U.S. ---, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013)). On this record, it is not clear to us that the Guidelines range did not influence the sentence the trial court judge ultimately imposed. Taylor has therefore shown that the improperly calculated Guidelines range was prejudicial, and so had an impact on his substantial rights. See id. at 1347.
That leaves only the question of whether the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Marchena-Silvestre, 802 F.3d at 200. We believe that the district court s application of an erroneously-inflated Guidelines range, and the possibility that Taylor s sentence was inflated as a result, compromised the fairness and integrity of his sentencing. Accord id.; United States v. Torres-Rosario, 658 F.3d 110, 117 (1st Cir. 2011) (remanding for resentencing to avoid a miscarriage of justice where error resulted in difference in potential jail time ); cf. Hudson, 823 F.3d at 20 (where Guidelines range was wrong, remanding for resentencing without addressing fourth prong of plain error). We therefore exercise our discretion to correct this error and vacate the sentence. See Marchena-Silvestre, 802 F.3d at 202.
[r]esentencing in this instance requires no additional evidence and is only a small administrative burden. Even small adjustments could make a lot of difference to the defendant. Above all, the great latitude possessed by the district court in deciding how far to depart makes it all the more important that the district judge exercise a fully informed discretion.
We thus remand to permit the trial court judge to conduct a new sentencing hearing wherein she may, with the benefit of our thinking, exercise her fully informed discretion. Id.
The End
We affirm Taylor s conviction, but remand this case to the district court for reconsideration of Taylor s sentence.