No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS APPELLEE

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1 Case: , 08/17/2015, ID: , DktEntry: 42, Page 1 of 19 No IN THE UNITED STATES COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERRIELL ELLIOTT TALMORE, Defendant-Appellant. FOR THE NINTH CIRCUIT SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS APPELLEE APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA NO. 13-CR PJH MELINDA HAAG United States Attorney BARBARA J. VALLIERE Chief, Appellate Division Assistant United States Attorney MERRY JEAN CHAN Assistant United States Attorney 450 Golden Gate Avenue, 11th Floor San Francisco, California Telephone: (415) Dated: August 17, 2015 Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA

2 Case: , 08/17/2015, ID: , DktEntry: 42, Page 2 of 19 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii SUPPLEMENTAL BRIEF... 1 STATEMENT OF RELATED CASES... 7 CERTIFICATE OF COMPLIANCE... 8 CERTIFICATE OF SERVICE... 9 ADDENDUM...10 i

3 Case: , 08/17/2015, ID: , DktEntry: 42, Page 3 of 19 TABLE OF AUTHORITIES FEDERAL CASES Gall v. United States, 552 U.S. 38 (2007)... 4 Johnson v. United States, 135 S. Ct (2015)... 2, 3, 4 Nguyen v. United States, 539 U.S. 69 (2003)... 3 Peugh v. United States, 133 S. Ct (2013)... 4 United States v. Dominguez Benitez, 542 U.S. 74 (2004)... 5 United States v. Johnson, 130 F.3d 1352 (9th Cir. 1997)... 4 United States v. Marcus, 560 U.S. 258 (2010)... 4 United States v. Park, 649 F.3d 1175 (9th Cir. 2011)...1, 2 United States v. Replogle, 678 F.3d 940 (8th Cir. 2012)... 3 United States v. Spencer, 724 F.3d 1133 (9th Cir. 2013)... 4 United States v. Tapia, 665 F.3d 1059 (9th Cir. 2011)... 5 United States v. Vargem, 747 F.3d 724 (9th Cir. 2014)... 5 United States v. Willis, F.3d, 2015 WL (9th Cir. July 29, 2015)... 4 FEDERAL STATUTES AND SENTENCING GUIDELINES 18 U.S.C , 4 USSG 2K , 5 USSG 3E USSG 4B , 2, 4 ii

4 Case: , 08/17/2015, ID: , DktEntry: 42, Page 4 of 19 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERRIELL ELLIOTT TALMORE, Defendant-Appellant. SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS APPELLEE Defendant-Appellant Gerriell Elliott Talmore s ( Talmore ) post-plea adjusted offense level was 5 levels higher than it otherwise would have been, based on the district court s finding that Talmore had committed his offense of conviction (being a felon in possession of a firearm) subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense under United States Sentencing Guidelines ( Guidelines or USSG ) 2K2.1(a)(4)(A). The district court found that under United States v. Park, 649 F.3d 1175 (9th Cir. 2011), Talmore s prior conviction for California first-degree burglary categorically qualified as a crime of violence under the residual clause of USSG 4B1.2(a), in that, by its nature, it presented a serious potential risk of

5 Case: , 08/17/2015, ID: , DktEntry: 42, Page 5 of 19 physical injury to another. USSG 4B1.2 cmt. n.1. Talmore appealed, arguing that a trio of Supreme Court cases decided subsequent to Park could be read as undermining Park, and that under the narrow reading of the residual clause prescribed by those Supreme Court cases, the elements of California first-degree burglary did not categorically present a serious potential risk of physical injury to another. He did not argue that the residual clause was unconstitutionally vague. On October 23, 2015, this panel affirmed in an unpublished memorandum opinion. The mandate issued on December 15, Talmore petitioned the Supreme Court for a writ of certiorari on February 27, On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct (2015), holding that the Armed Career Criminal Act s ( ACCA ) residual clause, i.e., the provision that defines a violent felony to include an offense that otherwise involves conduct that presents a serious potential risk of physical injury to another, 18 U.S.C. 924(e)(2)(B)(ii), is vague in every application and, therefore, imposing an increased ACCA sentence under the residual clause violates the Constitution s guarantee of due process. On June 30, 2015, the Supreme Court granted Talmore s petition for a writ of certiorari, vacated his judgment, and remanded his case to this Court for further consideration in light of Johnson. This panel ordered the parties to submit supplemental briefs addressing the impact of Johnson on this appeal. 2

6 Case: , 08/17/2015, ID: , DktEntry: 42, Page 6 of 19 Talmore did not challenge his sentence on vagueness grounds in either his opening or reply brief. After this Court affirmed the district court, Talmore petitioned the Supreme Court for a writ of certiorari, arguing that his California first-degree burglary conviction did not qualify as a crime of violence under the residual clause in the career-offender provision of the Guidelines, and arguing for the first time that the residual clause was unconstitutionally vague. Talmore Supplemental Brief, Exh. A; see cf. Nguyen v. United States, 539 U.S. 69, (2003) (deciding case on ground that court of appeals panel included a non-article III judge, where that ground was raised for first time in petition for writ of certiorari). In light of the government s request that Talmore s petition be held pending the Supreme Court s resolution of Johnson, which may shed light on whether petitioner s advisory sentencing range was permissibly enhanced, Talmore s Supplemental Brief, Exh. A, and the Supreme Court s remand, the government believes that this Court may evaluate Talmore s vagueness challenge under the plain error standard. Compare with United States v. Replogle, 678 F.3d 940, 942 (8th Cir. 2012) (seeing no compelling reason to exercise its discretion to consider argument raised for first time in petition for writ of certiorari, where remand was based on government s acquiescence that court of appeals was bestpositioned to determine in first instance whether Replogle had forfeited his claim). 3

7 Case: , 08/17/2015, ID: , DktEntry: 42, Page 7 of 19 Under the plain error standard, this Court may not reverse unless there is error that is plain (i.e., clear or obvious, rather than subject to reasonable dispute), that affected the appellant s substantial rights, and seriously affected the fairness, integrity or public reputation of judicial proceedings. United States v. Marcus, 560 U.S. 258, 262 (2010). The government concedes that Johnson applies to the identically-worded residual clause of USSG 4B1.2(a). This Court has held that ACCA s residual clause and the Guidelines residual clause must be interpreted in the same way and have applied decisions interpreting the two provisions interchangeably. United States v. Willis, F.3d, 2015 WL (9th Cir. July 29, 2015); United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013). Johnson has invalidated the ACCA residual clause as unconstitutionally vague. While the Guidelines were mandatory, this Court found the Guidelines subject to vagueness challenges. United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997). The advisory Guidelines also appear to be subject to vagueness challenges. Peugh v. United States, 133 S. Ct. 2072, 2078 (2013) (holding that Ex Post Facto Clause applies to advisory guidelines); Gall v. United States, 552 U.S. 38, 49 (2007) (requiring sentencing courts to begin by correctly calculating applicable Guidelines range, and to use it as starting point and benchmark for sentencing). Thus, Talmore s conviction of California first-degree burglary does not qualify as a crime of violence, and his base offense level should be 14 under USSG 4

8 Case: , 08/17/2015, ID: , DktEntry: 42, Page 8 of 19 2K2.1(a)(6), instead of 20 under USSG 2K2.1(a)(4). His adjusted offense level should be 12 after applying USSG 3E1.1(a), instead of 17, and his advisory Guidelines range should be 15 to 21 months imprisonment, instead of 30 to 37 months imprisonment. Given that the district court imposed a mid-range Guidelines sentence, there is a reasonable probability that the sentence would have been different absent the error. See United States v. Dominguez Benitez, 542 U.S. 74, (2004) (explaining that defendant s substantial rights are affected by error where there is reasonable probability that but for claimed error, result of proceeding would have been different). Because the error may have increased the length of [Talmore s] sentence, the fourth prong of the plain error standard is also satisfied. United States v. Tapia, 665 F.3d 1059, 1063 (9th Cir. 2011); see United States v. Vargem, 747 F.3d 724, 732 (9th Cir. 2014) (finding that fairness of judicial proceedings affected by error that may well have resulted in a longer sentence ). // // // // 5

9 Case: , 08/17/2015, ID: , DktEntry: 42, Page 9 of 19 Talmore s anticipated release date under his present 33-month sentence is October 12, This Court should therefore remand the case to the district court for resentencing, forthwith. Dated: August 17, 2015 Respectfully submitted, MELINDA HAAG United States Attorney BARBARA J. VALLIERE Assistant United States Attorney Chief, Appellate Division /s/ Merry Jean Chan MERRY JEAN CHAN Assistant United States Attorney Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA 6

10 Case: , 08/17/2015, ID: , DktEntry: 42, Page 10 of 19 STATEMENT OF RELATED CASES The government is aware of the following case pending in this Circuit that is related to this appeal in that it raises a substantially similar legal issue: United States v. Benavides, No Dated: August 17, 2015 /s/ Merry Jean Chan Merry Jean Chan Assistant United States Attorney 7

11 Case: , 08/17/2015, ID: , DktEntry: 42, Page 11 of 19 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit Rule 32-1 I certify that: (check appropriate option(s)) _X_ Pursuant to Fed. R. App. P. 32 (a)(7)(c) and Ninth Circuit Rule 32-1, the attached supplemental brief is: X Proportionately spaced, has a typeface of 14 points or more and contains 1,032 words and is no more than 10 pages (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words); or, Monospaced, has 10.5 or fewer characters per inch, and contains words or lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text). Dated: August 17, 2015 /s/ Merry Jean Chan Merry Jean Chan Assistant United States Attorney 8

12 Case: , 08/17/2015, ID: , DktEntry: 42, Page 12 of 19 CERTIFICATE OF SERVICE I, Hui Chen, certify that I am an employee of the Office of the United States Attorney, Northern District of California, a person over 18 years of age and not a party to the within action. I certify that on August 17, 2014, I electronically submitted the Supplemental Brief for the United States as Appellee in the case of United States v. Gerriell Talmore, No , with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: August 17, 2015 /s/ Hui Chen Hui Chen, Paralegal 9

13 Case: , 08/17/2015, ID: , DktEntry: 42, Page 13 of 19 ADDENDUM 10

14 Case: , 08/17/2015, ID: , DktEntry: 42, Page 14 of 19 TABLE OF CONTENTS 18 U.S.C. 924(e) USSG 4B

15 Case: , 08/17/2015, ID: , DktEntry: 42, Page 15 of 19 Effective: October 6, 2006 United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part I. Crimes (Refs & Annos) Chapter 44. Firearms (Refs & Annos) 924. Penalties. (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). (2) As used in this subsection-- (A) the term serious drug offense means-- (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law; (B) the term violent felony means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or 12

16 Case: , 08/17/2015, ID: , DktEntry: 42, Page 16 of 19 (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and (C) the term conviction includes a finding that a person has committed an act of juvenile delinquency involving a violent felony. 13

17 Case: , 08/17/2015, ID: , DktEntry: 42, Page 17 of 19 United States Code Annotated Federal Sentencing Guidelines (Refs & Annos) Chapter Four. Criminal History and Criminal Livelihood (Refs & Annos) Part B. Career Offenders and Criminal Livelihood 4B1.2. Definitions of Terms Used in Section 4B1.1 (a) The term crime of violence means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-- (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. (b) The term controlled substance offense means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. (c) The term two prior felony convictions means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of 4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere. COMMENTARY <Application Notes:> <1. For purposes of this guideline-- Crime of violence and controlled substance offense include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.> 14

18 Case: , 08/17/2015, ID: , DktEntry: 42, Page 18 of 19 < Crime of violence includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as crimes of violence if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.> < Crime of violence does not include the offense of unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. 5845(a). Where the instant offense is the unlawful possession of a firearm by a felon, 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provides an increase in offense level if the defendant had one or more prior felony convictions for a crime of violence or controlled substance offense; and, if the defendant is sentenced under the provisions of 18 U.S.C. 924(e), 4B1.4 (Armed Career Criminal) will apply.> <Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a controlled substance offense. > <Unlawfully possessing a firearm described in 26 U.S.C. 5845(a) (e.g., a sawedoff shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a crime of violence.> <Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a controlled substance offense. > <Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. 856) is a controlled substance offense if the offense of conviction established that the underlying offense (the offense facilitated) was a controlled substance offense. > <Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. 843(b)) is a controlled substance offense if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a controlled substance offense. > 15

19 Case: , 08/17/2015, ID: , DktEntry: 42, Page 19 of 19 <A violation of 18 U.S.C. 924(c) or 929(a) is a crime of violence or a controlled substance offense if the offense of conviction established that the underlying offense was a crime of violence or a controlled substance offense. (Note that in the case of a prior 18 U.S.C. 924(c) or 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be counted as a single sentence under 4A1.2 (Definitions and Instructions for Computing Criminal History).)> < Prior felony conviction means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).> <2. Section 4B1.1 (Career Offender) expressly provides that the instant and prior offenses must be crimes of violence or controlled substance offenses of which the defendant was convicted. Therefore, in determining whether an offense is a crime of violence or controlled substance for the purposes of 4B1.1 (Career Offender), the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of inquiry.> <3. The provisions of 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under 4B1.1.> 16