No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. UNITED STATES OF AMERICA, Plaintiff-Appellee

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1 Case: Document: Page: 1 Date Filed: 10/08/2015 No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAYMOND ESTRADA, Defendant-Appellant On Appeal from the United States District Court For the Southern District of Texas Corpus Christi Division, Criminal No. C-14-cr UNITED STATES UNOPPOSED MOTION TO REMAND FOR RESENTENCING IN LIGHT OF JOHNSON v. UNITED STATES, 135 S. Ct (2015) The United States of America, by and through the United States Attorney for the Southern District of Texas, respectfully files this unopposed motion to remand for resentencing in light of Johnson v. United States, 135 S. Ct (2015). I. On November 3, 2014, Raymond Estrada pled guilty to possession

2 Case: Document: Page: 2 Date Filed: 10/08/2015 with intent to distribute cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(b), without a plea agreement. ROA.25, Using the 2014 edition of the Sentencing Guidelines, the Presentence Report ( PSR ) recommended an offense level of 34 pursuant to U.S.S.G. 4B1.1, the career offender guideline, based upon Estrada s prior convictions for Texas assault on a peace officer and conspiracy to possess with intent to distribute cocaine. ROA.82; PSR 19. After decreasing Estrada s offense level by three levels for acceptance of responsibility, the PSR assessed a total offense level of 31 and a criminal history category of VI. ROA.82, 98; PSR 19, 21, 74. The advisory guideline range of imprisonment was 188 to 235 months. ROA.98; PSR Estrada filed a written objection in district court to the PSR s characterization of him as a career offender. ROA Estrada argued that his 1997 Texas conviction under Tex. Penal Code for assault on a peace officer did not qualify as a crime of violence because the residual clause of 4B1.2(a)(2) was void for vagueness. 1 The statutory minimum term of imprisonment was five years and the maximum term of imprisonment was 40 years, pursuant to 18 U.S.C. 841(b)(1)(B). ROA.98; PSR 73. 2

3 Case: Document: Page: 3 Date Filed: 10/08/2015 ROA , Estrada further argued that his prior conviction of assault on a peace officer did not qualify under 4B1.2(a) s elements or 4B1.2(b) s enumerated offense clauses. ROA In the sentencing hearing, Estrada re-urged his written objection to being classified as a career offender and the application of 4B1.1 and 4B1.2 to his offense level. ROA He argued that his prior Texas conviction for assault on a peace officer should not be characterized as a crime of violence under the career offender guideline because the residual clause was identical to the residual clause in the Armed Career Criminal Act ( ACCA ), 18 U.S.C. 924(e)(2)(B)(ii), and 4B1.2 s residual clause was void for vagueness because it suffered the same constitutional infirmities as that which was alleged against ACCA s residual clause in Johnson. ROA Secondly, Estrada argued that regardless of the validity of the residual clause, his prior conviction was still not a crime of violence because it could be violated by means beyond the generic, contemporary meaning of aggravated assault as was determined by this Court in United States v. Fierro- Reyna, 466 F.3d 324, 327 (5th Cir. 2006). 2 At the time (February 2015), Johnson was pending in the United States Supreme Court, as was acknowledged by all the parties at sentencing. ROA.60-67,

4 Case: Document: Page: 4 Date Filed: 10/08/2015 The Government urged that under this Court s precedent at that time, the prior conviction was a crime of violence, but it acknowledged that such cases relied upon the residual clause for their holdings. ROA The Government noted that the prior conviction here was for a simple assault, with the aggravating factor that the victim was a peace officer. ROA The district court had before it the state indictment and state judgment. ROA The district court overruled Estrada s objection. ROA.67. It found that Estrada s total offense level was 31 and his criminal history category was VI, resulting in an advisory guidelines range of 188 to 235 months of imprisonment. ROA.67. The Government requested a sentence at the low end of the guidelines, that is, 188 months of imprisonment. ROA.71. Estrada requested a downward variance and a sentence of 120 months imprisonment. ROA.73. The district court sentenced Estrada to 188 months in prison, to be followed by a five year term of supervised release, a $ special assessment, and no fine. ROA The district court also revoked Estrada s supervised release in his 2008 case and sentenced him to 24 months on each of two counts of conviction, to run concurrent with each other, but consecutive to the 188-month sentence in the present case. ROA.75. Estrada does not appeal the revocation. (Appellant s brief, p.7, n.2). 4

5 Case: Document: Page: 5 Date Filed: 10/08/2015 II. The first issue on appeal concerns the district court s application of the career offender enhancement under the guidelines. Estrada argues, as he did in district court below, that his prior Texas conviction for assault on a peace officer does not qualify as a crime of violence under U.S.S.G. 4B1.2(a). Specifically, he argues that the residual clause of 4B1.2(a)(2) is unconstitutional because the United States Supreme Court s recent holding in United States v. Johnson, 135 S. Ct (2015), regarding the unconstitutionality of ACCA s residual clause, applies to the identically worded clause of the career offender guideline. (Appellant s brief, pp. 9-29). He is correct: the career offender guideline s residual clause uses the same language that Johnson held was impermissibly vague and is therefore vague. Consequently, Estrada s prior Texas conviction for assault on a peace officer may not be construed as qualifying as a crime of violence under the residual clause of the career offender guideline. A. Johnson applies to the career offender guideline in light of the identical text of its residual clause. Estrada was charged by state indictment with intentionally and knowingly causing bodily injury to a peace officer by striking him with 5

6 Case: Document: Page: 6 Date Filed: 10/08/2015 his hand, in violation of Texas Penal Code Section ROA.110. That statute provides that a person commits an aggravated assault if he commits assault as defined in Section ( intentionally, knowingly, or recklessly causes bodily injury to another ), the person assaulted is a public servant acting in the lawful discharge of his official duty, and the actor knows it. Tex. Penal Code 22.02(b)(2) (West 1995). According to the state judgment, Estrada pled guilty to the offense of ASSAULT ON PEACE OFFICER pursuant to a plea agreement. ROA The judgment reflects that [e]vidence was submitted on the issues of guilt and punishment; but it does not affirmatively reflect that Estrada pled to the offense as alleged in the indictment. 4 Under this Court s precedent, the Texas offense of assault on a peace officer constitutes a crime of violence under the career offender guideline s residual clause, and Texas assault constitutes a violent felony under ACCA s residual clause. See, e.g., United States v. Anderson, 559 F.3d 348, (5th Cir. 2009)(holding that a conviction for assault on a public servant under Tex. Pen. Code 22.01(b) constitutes a crime of violence pursuant to U.S.S.G. 4 The record does not contain a state plea colloquy or other state judicial documents. 6

7 Case: Document: Page: 7 Date Filed: 10/08/2015 4B1.2(a) s residual clause); United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013)(holding that the defendant s conviction for reckless assault under Texas law was a violent felony pursuant to ACCA s residual clause). However, these cases were decided prior to the Supreme Court s decision in Johnson. In Johnson, 135 S. Ct. at 2563, the Supreme Court held that ACCA s residual clause, i.e., the provision that defines a violent felony to include an offense that involves conduct that presents a serious potential risk of physical injury to another, 18 U.S.C. 924(e)(2)(B)(ii), is impermissibly vague and, therefore, imposing an increased sentence under the residual clause violates the Constitution s guarantee of due process. The Court overruled its decisions in James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 131 S. Ct (2011), which previously rejected the contention of dissenting Justices that the residual clause was vague. Johnson, 135 S. Ct. at The career offender provision of the Sentencing Guidelines provides for enhanced sentences for certain defendants who have two prior convictions for a crime of violence or serious drug offense. U.S.S.G. 4B1.1. The definition of crime of violence in 4B1.2 7

8 Case: Document: Page: 8 Date Filed: 10/08/2015 contains a residual clause that is identical to ACCA s residual clause. See 4B1.2(a)(2) (defining crime of violence to include an offense that otherwise involves conduct that presents a serious potential risk of physical injury to another ). Because that identical language is unconstitutionally vague under Johnson, a sentencing court may not classify a defendant as a career offender based on an offense that qualifies as a crime of violence under the residual clause. The career offender guideline s residual clause uses the same language that Johnson held was impermissibly vague because it produces more unpredictability and arbitrariness than the Due Process Clause tolerates. 135 S. Ct. at This Court s treatment of violent felony under ACCA is interchangeable with its treatment of crime of violence under U.S.S.G. 4B1.2(a). 5 See United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011); United States v. Mohr, 554 F.3d 604, 609 n.4 (5th Cir. 2009). The ACCA cases on which courts have relied to decide whether offenses fall within the guideline s residual clause are 5 A crime of violence is defined under U.S.S.G. 4B1.2(a) as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a potential risk of physical injury to another. 8

9 Case: Document: Page: 9 Date Filed: 10/08/2015 now overruled, leaving courts with no body of law to apply. After Johnson, judges attempting to determine whether a particular offense qualifies as a crime of violence under the residual clause would be forced to rely on guesswork and intuition. Johnson, 135 S. Ct. at This Court has permitted a conduct-based approach in determining whether a prior conviction satisfies the career offender guideline s residual clause under the commentary authorizing courts to consider the conduct set forth (i.e., expressly charged) in the defendant s count of conviction. U.S.S.G. 4B1.2, cmt. n.1; see, e.g., United States v. Jones, 752 F.3d 1039, (5th Cir. 2014); Anderson, 559 F.3d at 356; United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002)(en banc). Johnson, nevertheless, applies to the guideline in light of the identical text of its residual clause and the overruling of the ACCA precedents that previously governed courts residual-clause analysis. Application of a vague guideline conflicts with the proper role of the guidelines in providing a uniform baseline for sentencing. Under the advisory guidelines system, district courts are still required to 9

10 Case: Document: Page: 10 Date Filed: 10/08/2015 begin all sentencing proceedings by correctly calculating the applicable Guidelines range and to use the guidelines as the starting point and the initial benchmark for sentencing. Gall v. United States, 552 U.S. 38, 49 (2007); see Peugh v. United States, 133 S. Ct. 2072, 2083 (2013) ( That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing. ). A district court that incorrectly calculates the guidelines range is subject to reversal on appeal. Gall, 552 U.S. at 51; see Peugh, 133 S. Ct. at 2083 ( the rule that an incorrect Guidelines calculation is procedural error ensures that they remain the starting point for every sentencing calculation in the federal system ). Accordingly, the use of a vague sentencing guideline to calculate the defendant s guidelines range violates due process because it inevitably leads to unpredictable and arbitrary applications of the legal framework for sentencing. See Johnson, 135 S. Ct. at This Court has previously allowed defendants to raise a vagueness challenge to the guidelines. See, e.g., United States v. Mendez-Casarez, 624 F.3d 233, 241 n.7 (5th Cir. 2010)(rejecting vagueness challenge to definition of crime of violence in 2L1.2), abrogated on other grounds, United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013)(en banc). Although the Eleventh Circuit recently held that the vagueness doctrine of the Due Process Clause does not apply to the advisory sentencing guidelines, United States v. Matchett, 2015 WL (11th Cir. Sept. 21, 2015), 10

11 Case: Document: Page: 11 Date Filed: 10/08/2015 Consistent with sentencing courts discretion to sentence within or outside the advisory guideline range, the Supreme Court has held that no notice is required when a court imposes a sentence outside the guideline range based on the factors in 18 U.S.C. 3553(a), because defendants no longer have [a]ny expectation subject to due process protection that they will receive a sentence within the guideline range. Irizarry v. United States, 553 U.S. 708, 713 (2008). But the guidelines are unlike the broad sentencing factors in Section 3553(a), in that their function is to provide a precise starting point for sentencing. Courts have discretion to weigh the Section 3553(a) factors and determine the appropriate sentence, but they have no discretion about the proper legal interpretation of the guidelines. This is evidenced by the numerous appellate decisions, involving appeals brought by defendants and by the government, in which courts have applied de novo review to questions of guidelines interpretation. See, e.g., United States v. Kimbrough, 536 F.3d 463, 465 (5th Cir. 2008); United States v. Bercian-Flores, 786 F.3d 309, 311 (4th Cir. 2015); United States v. Keys, 785 F.3d 1240, 1242 (8th Cir. 2015); United States v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015). this Court is not bound by that decision, and the Government asserts that it was incorrectly decided and should not be followed. 11

12 Case: Document: Page: 12 Date Filed: 10/08/2015 Moreover, the notice concerns addressed in Irizarry are distinct from the danger of arbitrary enforcement by judges presented by the residual clause. See Johnson, 135 S. Ct. at 2557; id. at 2556 (Fifth Amendment forbids application of a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement ) (emphasis added). Consequently, Johnson applies to the career offender guideline s residual clause. Because the district court applied the residual clause and this Court s residual-clause precedent to the prior conviction at issue here, this Court should remand for resentencing. B. Johnson does not affect other provisions of the career offender guideline Courts may still classify a defendant as a career offender based on an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Guidelines 4B1.2(a)(1). In addition, courts may still classify a defendant as a career offender based on an offense listed in the commentary to Section 4B1.2. See 4B1.2(a)(2) ( crime of violence means any offense * * * that * * * is burglary of a dwelling, arson, * * * extortion, [or] involves use of explosives ); id., comment. n.1 ( Crime of 12

13 Case: Document: Page: 13 Date Filed: 10/08/2015 violence includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. ); id. ( Unlawfully possessing a firearm described in 26 U.S.C. 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a crime of violence. ). Nevertheless, this Court has found that Texas aggravated assault on a peace officer does not have use of force as an element. See United States v. Villegas Hernandez, 468 F.3d 874, 882 (5th Cir. 2006); Fierro-Reyna, 466 F.3d at 327. Although Estrada has a lengthy criminal history, it appears from the PSR that he has only one controlled substance offense (conspiracy) and no other qualifying conviction under 4B1.2(a)(1), or the enumerated offenses under (a)(2). The district court did not rely on the 18 U.S.C. 3553(a) factors for an alternative sentence, and, in fact, denied Estrada s motion for a downward variance. So, the appropriate remedy is resentencing in light of Johnson. III. Because the Government concedes that remand for resentencing is appropriate, this Court need not address or resolve Estrada s second 13

14 Case: Document: Page: 14 Date Filed: 10/08/2015 issue, wherein he challenges a condition of supervised release in the present case, if the Court grants the Government s motion. IV. Estrada is represented on appeal by Assistant Federal Public Defender Laura Fletcher Leavitt. On October 8, 2015, Ms. Leavitt stated that she is unopposed to this motion. V. For these reasons the United States respectfully requests that this Court remand for resentencing in light of Johnson. If this Court denies this motion, the United States respectfully requests permission to file a brief fifteen days from the date of entry of this Court s order. Respectfully submitted, KENNETH MAGIDSON United States Attorney s/carmen Castillo Mitchell CARMEN CASTILLO MITCHELL Assistant United States Attorney Deputy Chief, Appellate Division United States Attorney s Office Southern District of Texas 1000 Louisiana, Suite 2300 Houston, Texas (713) ATTORNEYS FOR APPELLEE 14

15 Case: Document: Page: 15 Date Filed: 10/08/2015 Certificate of Service I, Carmen Castillo Mitchell, Assistant United States Attorney and Deputy Chief of the Appellate Division, hereby certify that on October 8, 2015, an electronic copy of the unopposed motion to remand for resentencing in light of Johnson was served by notice of electronic filing via this court s ecf system upon opposing counsel, Assistant Federal Public Defender Laura Fletcher Leavitt. s/carmen Castillo Mitchell CARMEN CASTILLO MITCHELL Assistant United States Attorney Deputy Chief, Appellate Division 15