United States v. Thompson, 851 F.3d 129

851 F.3d 129

1st Cir.

2017

UNITED STATES of America, Appellee, v. Trezjuan THOMPSON, Defendant, Appellant.

No. 13-1822

United States Court of Appeals, First Circuit.

March 22, 2017

129

cause defendants “pled guilty to one count of mail fraud that also alleged a fraudulent scheme,” the amount of the single mailing “does not adequately account for the proceeds obtained from their crime of conviction“); see also United States v. Fruchter, 411 F.3d 377, 384 (2d Cir. 2005) (holding, under RICO forfeiture provisions, that “proceeds derived from conduct forming the basis of a charge of which the defendant was acquitted can be counted as ‘proceeds’ of racketeering activity“). We agree with this reading of the forfeiture statutes and find that it applies here.

As we already have held, the district court properly concluded by a preponderance of the evidence that all of the uncharged and acquitted conduct was part of the same scheme to defraud. Although Cox asserts that, for purposes of forfeiture, the court was required to find beyond a reasonable doubt that the uncharged conduct was part of the same scheme, we disagree. We have previously observed that a forfeiture award “is a part of the sentence rather than the substantive offense.” United States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir. 2004); see also Libretti v. United States, 516 U.S. 29, 38-39, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995). As such, the preponderance of the evidence standard applies. See Munyenyezi, 781 F.3d at 544; see also Hasson, 333 F.3d at 1277 (“[C]riminal forfeiture is part of sentencing where the preponderance standard governs.“).

Hence, the district court did not err in including the proceeds of the uncharged relevant conduct in its forfeiture award.

Affirmed.

Mary Davis, with whom Tisdale & Davis, P.A., Portland, ME, was on brief, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before HOWARD, Chief Judge, LYNCH and BARRON, Circuit Judges.

PER CURIAM.

Defendant-Appellant Trezjuan Thompson pled guilty to drug conspiracy and arson charges. Before sentencing, he moved to withdraw his plea, primarily arguing that he did not have the opportunity to review personally certain discovery materials.

The district court denied Thompson‘s motion, United States v. Thompson, No. 2:10-cr-200-DBH, 2013 WL 1809659 (D. Me. Apr. 29, 2013), and sentenced him to 327 months’ imprisonment based, in part, on its finding that Thompson was a career offender under the sentencing guidelines. See U.S.S.G. § 4B1.1. One of the predicate offenses supporting Thompson‘s career offender designation was a 2006 Massachusetts conviction for assault and battery with a dangerous weapon (“ABDW“). See Mass. Gen. Laws ch. 265, § 15A(b). The court held that the ABDW conviction qualified as a “crime of violence” under the so-called “residual clause” of U.S.S.G. § 4B1.2(a)(2).¹

Thompson‘s opening brief raises only a single issue, namely, the correctness of the district court‘s denial of the motion to withdraw his guilty plea.² This challenge need not detain us long. In short, we perceive no abuse of discretion in the district court‘s thorough treatment of the matter. See United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013). And, contrary to his contention on appeal, Thompson was not entitled to a hearing because “[t]he district judge had everything that he needed in the paper record” to dispose of the motion. United States v. Chambers, 710 F.3d 23, 30 (1st Cir. 2013).

During the pendency of Thompson‘s appeal, another issue arose. The Supreme Court, in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), held that the residual clause of the Armed Career Criminal Act‘s (“ACCA“) definition of “violent felony” was unconstitutionally vague. The district court‘s finding that Thompson qualified as a career offender was predicated upon the applicable guideline‘s identical residual clause. Thompson‘s opening brief, which was filed before Johnson, did not challenge any aspect of his sentence, much less argue that the residual clause was unconstitutionally vague. Thompson raised the issue for the first time in a citation of supplemental authority pursuant to Federal Rule of Appellate Procedure 28(j), requesting remand in light of Johnson. We ordered supplemental briefing. In response, the government conceded that Johnson invalidated the career offender guideline‘s residual clause, but argued that Thompson‘s ABDW conviction fell within the separate “elements” or “force” clause.³

Subsequently, in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), the Supreme Court squarely held that Johnson does not apply to the career offender guideline.⁴ This is because the sentencing guidelines, unlike the ACCA, “are not subject to a vagueness challenge under the Due Process Clause.” Id. at 892, 2017 WL 855781 at *5. We are not bound by the government‘s concession, which, while understandable before Beckles, turned out to be incorrect. See United States v. Sánchez-Berríos, 424 F.3d 65, 81 (1st Cir. 2005) (“A concession by either party in a criminal case as to a legal conclusion is not binding on an appellate court.“). In deciding whether to accept a concession, we consider: (1) “whether the issue is recurrent so [a] decision would give guidance to the district courts“; (2) “whether it would be unseemly to accept, even arguendo, a mistaken legal proposition and reason from it to decide the case“; and (3) “whether the issues are technical and complex and not explored carefully in existing decisions so that adversary briefing would be critical.” United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004). Johnson‘s applicability to the career offender guideline has proven to be a frequently recurring issue in this circuit and, in light of Beckles, the proper resolution of this issue is crystal clear. Accordingly, we “ignore the government‘s concession” and “follow [the Supreme Court‘s] clear precedent.” United States v. Vega-Ortiz, 425 F.3d 20, 22 (1st Cir. 2005).⁵

For the foregoing reasons, we AFFIRM Thompson‘s convictions and sentence.

Notes

The relevant subsection defined “crime of violence” to include an offense that “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.” U.S.S.G. § 4B1.2(a)(2) (2013) (emphasis added). The underscored language, often referred to as the residual clause, has since been stricken from the guideline. See Sentencing Guidelines for United States Courts, 81 Fed. Reg. 4741, 4742 (Jan. 27, 2016).

Thompson has also filed a supplemental pro se brief. Because the claims raised therein “lack arguable merit,” we decline to address them specifically. .

The force clause includes any offense punishable by imprisonment for more than one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1).

The Supreme Court‘s decision in resolved a four to one circuit split on ‘s applicability to the career offender guideline. Four circuits had applied , while only one had declined to do so. See (applying ); (same); (same); (unpublished) (same). But see (declining to apply ). And, in the lone decision holding that did not apply, four judges dissented from the court‘s subsequent denial of rehearing en banc. See generally . Moreover, prior to , several district courts in our circuit had applied to the career offender guideline. See, e.g., ; ; (noting “growing consensus” in favor of applying ); (“assum[ing] without deciding” that applied).

Indeed, it is worth noting that in itself the government “agree[d] ... that the Guidelines are subject to vagueness challenges.” , 2017 WL 855781 at *6. This concession did not prevent the Court from holding to the contrary.

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