UNITED STATES of America, Appellee, v. Brima WURIE, Defendant, Appellant.
No. 15-1395
United States Court of Appeals, First Circuit.
August 8, 2017
867 F.3d 28
c) The Johnson II Error
That leaves one final issue: Bauzó‘s claim under Johnson II. Remember, Bauzó argues that his prior convictions do not qualify under ACCA‘s force clause, so the sentencing court must have counted them under the residual clause, but the residual clause is now invalid, and so Bauzó is entitled to resentencing.15 In light of our finding above—that it was not a clear or obvious error for the sentencing court to count at least three of Bauzó‘s priors as predicates under the force clause—this argument is dead on arrival. In any case, on plain-error review the defendant bears the burden of showing that this error occurred. See United States v. Reed, 830 F.3d 1, 7 (1st Cir. 2016). As Bauzó himself frames the argument, the court‘s career-criminal finding was “implicitly premised” on the residual clause—in other words, there‘s no express indication in the record that this is what the court did. Nor does he argue that he admitted to his career-of-fender status because he believed that his prior convictions counted as ACCA predicates under the residual clause, or point to any case under which his prior convictions were found to be predicates under the residual clause. Under these circumstances, Bauzó has not demonstrated that the court committed a Johnson II error, let alone a clear or obvious one, or that any error affected his substantial rights.
Conclusion
The district court did not abuse its discretion in admitting the letter, the judicial-notice jury instruction was not plain or obvious error, and even if Bauzó‘s sentencing arguments are not waived, he has not shown any clear or obvious error that impacted his substantial rights. We affirm Bauzó‘s conviction and his sentence.
Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.
TORRUELLA, Circuit Judge.
Defendant-Appellant, Brima Wurie (“Wurie“), who was sentenced as a career offender under
I. Background
Wurie was convicted of distribution of five grams or more of cocaine base, in violation of
The district court determined at sentencing that Wurie had at least two prior convictions for “crime[s] of violence,” as that term is defined in
On appeal, Wurie concedes that the offenses for which he had been convicted previously have been “held to be crimes of violence under the [Guidelines‘] residual clause.” He initially argued, however, that the residual clause of section 4B1.2(a)(2), defining “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another,” is unconstitutionally vague following the Supreme Court‘s ruling in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (”Johnson II“), which held that the identically worded residual clause in the definition of “violent felony” under the Armed Career Criminal Act (“ACCA“) was void for vagueness under the Fifth Amendment Due Process Clause. Id. at 2557. The government initially conceded that in light of Johnson II, the Guidelines’ residual clause was unconstitutionally vague, but argued that Wurie was correctly sentenced as a career offender because his prior convictions could also be classified as crimes of violence under section 4B1.2(a)(1) of the Guidelines (commonly referred to as the Guidelines’ “force clause“), inasmuch as the offenses of conviction have “as an element the use, attempted use, or threatened use of physical force against the person of another.”
While this appeal was pending, however, the Supreme Court handed down Beckles v. United States, which held that Johnson II does not apply to the career offender guideline because the Guidelines, unlike the ACCA, are advisory, not mandatory, and thus are not subject to a vagueness challenge on due process grounds. — U.S. —, 137 S.Ct. 886, 892, 197 L.Ed.2d 145 (2017). Our decision in United States v. Thompson, then held that, in circumstances like these, we will not accept the government‘s concession on appeal that Johnson II invalidated the residual clause of the Guidelines. 851 F.3d 129, 130-31 (1st Cir. 2017). Beckles thus foreclosed Wurie‘s initial argument.
Faced with this, Wurie modified his argument and claimed that although his constitutional challenge for vagueness was foreclosed by Beckles, the application of the Guidelines’ residual clause to particular offenses must still be reconsidered in light of Johnson II. This, Wurie contends, is so because the language of the Guidelines’ residual clause is identical to and suffers from the same deficiencies that led the Supreme Court to invalidate the ACCA‘s residual clause on due process grounds. In the alternative, Wurie requests that his case be remanded to the district court for resentencing in light of Amendment 798 to the Guidelines, which narrowed the definition of “crime of violence” by eliminating the residual clause, among other changes.
A. Guidelines’ Residual Clause
We review de novo preserved objections to the classification of a prior offense as a “crime of violence” under the Guidelines. See United States v. Velázquez, 777 F.3d 91, 94 (1st Cir. 2015). Because under
In 2009, we held in United States v. Glover, that Massachusetts ABDW is a crime of violence under
to qualify as a crime of violence under the residual clause, the offense at issue must also “(i) pose a degree of risk that is similar to the degree of risk posed by the enumerated offenses—namely, arson, burglary, extortion, and offenses involving the use of explosives—and (ii) be similar ‘in kind’ to those offenses.”
Id. at 80 (quoting United States v. Almenas, 553 F.3d 27, 34 (1st Cir. 2009)). We noted that the ABDW “statute applies to an individual who ‘commits an assault and battery upon another by means of the dangerous weapon.‘” Id. at 80-81 (quoting
We took a similar approach in United States v. Hart, where we held that a conviction for ABDW was a predicate offense under the ACCA‘s residual clause.4 674 F.3d 33, 44 (1st Cir. 2012). There, Hart urged us to reconsider our holding in Glover in light of the Supreme Court‘s decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) and our decision in United States v. Holloway, 630 F.3d 252 (1st Cir. 2011), and hold
After Glover and Hart were decided, the Supreme Court handed down Johnson II, in which it invalidated the ACCA‘s residual clause, finding it unconstitutionally vague. Johnson II, 135 S.Ct. at 2563. Because the ACCA‘s and the Guidelines’ residual clauses were identically worded, the government conceded in many cases, including this one, that the Guidelines’ residual clause was also unconstitutionally vague and urged the courts to find that ABDW was a crime of violence under the Guidelines’ force clause. See, e.g., United States v. Tavares, 843 F.3d 1, 9 (1st Cir. 2016). In light of the government‘s concession, in Tavares, this court assumed without deciding that the Guidelines’ residual clause was unconstitutionally vague and analyzed ABDW convictions under the force clause,
After Beckles was issued, this court decided Thompson, which affirmed the district court‘s sentencing of Thompson as a career offender relying in part on a Massachusetts ABDW conviction that it deemed a crime of violence under the residual clause of
Wurie urges us to depart from this precedent. Despite Beckles‘s clarification that the holding in Johnson II does not apply to the Guidelines’ residual clause, Wurie argues that our precedent is no longer good law and should be reconsidered in light of Johnson II because both the Guidelines’ and the ACCA‘s residual clauses are identically worded and thus section 4B1.2(a)(2) implicates many of the same concerns identified in Johnson II. Specifically, Wurie argues that Beckles did not discuss how the Guidelines’ residual clause should be interpreted in light of Johnson II, or what criteria must be employed in determining whether any particular offense qualifies as a “crime of violence” under the Guidelines’ residual clause.
Wurie, however, does not convincingly explain how we can overcome the law of the circuit rule and thus depart from our precedent, in light of his acknowledgement that neither Beckles nor Johnson II dis-
The law of the circuit rule (a branch of the stare decisis doctrine) holds that “newly constituted panels in a multi-panel circuit court are bound by prior panel decisions that are closely on point.” San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010). “Although this rule is not ‘immutable,’ the exceptions are extremely narrow and their incidence is hen‘s-teeth-rare.” Id. (internal citation omitted). These “exceptions come into play only when the holding of the prior panel is ‘contradicted by controlling authority, subsequently announced (say, a decision of the authoring court en banc, a Supreme Court opinion directly on point, or a legislative overruling).‘” Id.; see also United States v. Montoya, 844 F.3d 63, 73 n.5 (1st Cir. 2016) (quoting United States v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)). An even less common exception has been recognized in those “rare instances in which authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind.” Rodríguez, 527 F.3d at 225 (quoting Williams v. Ashland Eng‘g Co., 45 F.3d 588, 592 (1st Cir. 1995)).
Here, there has been no en banc decision from this court contradicting our holding in Glover. Also, there has been no statutory overruling. Although the United States Sentencing Commission eliminated the residual clause from the Guidelines through Amendment 798, as will be discussed infra, Amendment 798 was not made retroactive. Furthermore, as Wurie himself concedes, Beckles, which dealt with the Guidelines’ residual clause and refused to extend Johnson II‘s holding to the Guidelines, did not specify how Johnson II, which dealt with the ACCA‘s residual clause, affects the interpretation of the Guidelines’ residual clause. Thus there is no Supreme Court opinion directly on point contradicting our precedent. We are thus left to consider the only remaining exception to the law of the circuit rule—whether Johnson II, although not directly controlling, offers a sound reason for believing that the Glover panel would change its collective mind.
Wurie‘s main contention on this point is that Johnson II overruled James, which had set out the “ordinary case” analysis used in Glover. According to Wurie, this analysis, which looks at “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another,” James, 550 U.S. at 208, was in turn relied on by this court in holding in Glover that Massachusetts ABDW is a crime of violence under the Guidelines’ residual clause. But, according to the government, this does not satisfy the law of the circuit exception because Johnson II does not mandate the conclusion that the “ordinary case” analysis is invalid in all its applications. The government argues that Johnson II identified the “ordinary case” analysis as only one part of its conclusion as to why the residual clause of the ACCA was unconstitutionally vague. It posits that the Supreme Court ultimately ruled that the ACCA‘s residual clause was unconstitutionally vague because it both failed to give fair notice to the defendants and led to arbitrary enforcement by judges. The government argues, however, that these same concerns cannot be translated into a Guidelines case and that the Supreme Court already rejected in Beckles that the
We find the government‘s arguments more persuasive. We do not read Johnson II as necessarily rejecting the “ordinary case” analysis in all of its applications. Instead, we infer from Johnson II that the analysis applied in James does not provide clarity to the facially ambiguous language of the ACCA‘s residual clause. Because the Supreme Court has given different treatment to the exact same language in the ACCA‘s and the Guidelines’ residual clause due to the inherent differences of both provisions—the former being mandatory while the latter is not—see Beckles, 137 S.Ct. at 892, we are not persuaded that Johnson II “offers a sound reason for believing” that the panel in Glover “would change its collective mind” in light of Johnson II. Rodríguez, 527 F.3d at 225 (quoting Williams, 45 F.3d at 592). Even Wurie concedes that “[w]ith James... overruled, whether the ordinary case analysis remains viable, and, if so, how the ordinary case should be defined, is unclear.” Accordingly, we do not believe that the standard set in Rodríguez has been met and thus decline Wurie‘s invitation to reconsider our precedent.
Applying our on-point precedent, we hold that Wurie‘s two prior convictions for ABDW under Massachusetts law qualify as crimes of violence under the Guidelines’ residual clause.5 See Glover, 558 F.3d at 80; see also Hart, 674 F.3d at 44.6
B. Amendment 798
As a fallback argument, Wurie argues that his case should be remanded to the district court for resentencing in light of Amendment 798 to the Guidelines, which narrowed the definition of “crime of violence” under
In Godin, the United States District Court for the District of Maine, upon learning that Godin had committed two prior crimes of violence, deemed her a career offender and sentenced her to 262 months. 522 F.3d at 133-34. On appeal, Godin challenged the district court‘s determination that she was a career offender. Id. at 134. While Godin‘s appeal was pending, the Sentencing Commission amended the rules for determining when multiple
But Godin and Ahrendt both treat the issue as discretionary for this court. United States v. Adams, 640 F.3d 41, 43 (1st Cir. 2011) (per curiam). We have not always chosen to exercise that discretion. See id. (declining to exercise discretion to remand in light of a later amendment to the Guidelines when “the district court was made aware at sentencing of the proposed guideline amendment“). We find the instant case to be more analogous to the more recent case of United States v. Matos, 611 F.3d 31 (1st Cir. 2010). In Matos, the defendant, like Wurie, asserted that the court should remand his case to the district court for resentencing consistent with Godin and Ahrendt, so that the district court could decide whether Amendment 709 needed to be considered in determining his sentence. Id. at 38-39. We concluded, however, that the resentencing process upon remand for Matos would be much more complex than that of Godin and Ahrendt—in those cases, it was “evident” that, if the amended Guidelines had been in effect at the time the defendants were sentenced, “the offenses at issue would have been counted as one” and the defendants would not be subject to the career offender enhancement. Id. at 39. In Matos, it was much less clear whether Amendment 709 would apply or change Matos’ status as a career offender. Id.
Likewise here, although Amendment 798 eliminates the residual clause of the Guidelines, there still remains a significant possibility that Wurie would be subject to the career offender enhancement under the force clause. Under Amendment 798, the Sentencing Commission revised the definition of “crime of violence” as defined in
III. Conclusion
Because Beckles did not extend the ruling of Johnson II to the Guidelines, the Guidelines’ residual clause, as it stood at the time of sentencing, is still a lens through which Wurie‘s prior convictions may be judged. Under the Guidelines’ residual clause, Wurie‘s ABDW convictions were for “crime[s] of violence.” Accordingly, he was correctly sentenced as a career offender.
Affirmed.
UNITED STATES of America, Appellee, v. Christian DENT, Defendant, Appellant.
No. 16-2005
United States Court of Appeals, First Circuit.
August 8, 2017
Notes
At the relevant time, the Guidelines defined “crime of violence” as:
[A]ny 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.