No EE IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. UNITED STATES OF AMERICA, Plaintiff/appellee,

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1 No EE IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/appellee, v. CALVIN MATCHETT, Defendant/appellant. On Appeal from the United States District Court for the Southern District of Florida PETITION FOR REHEARING EN BANC OF THE APPELLANT CALVIN MATCHETT MICHAEL CARUSO Federal Public Defender BRENDA G. BRYN ANDREW L. ADLER Assistant Federal Public Defenders Attorneys for Appellant One East Broward Boulevard Suite 1100 Fort Lauderdale, FL (954) THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL)

2 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT United States v. Calvin Matchett Case No EE Appellant, Calvin Matchett, files this Certificate of Interested Persons and Corporate Disclosure Statement, listing the parties and entities interested in this appeal, as required by 11th Cir. R Abraham, Timothy J., Assistant United States Attorney Adler, Andrew L., Assistant Federal Public Defender Becker, Abigail, Assistant Federal Public Defender Bryn, Brenda G., Assistant Federal Public Defender Caruso, Michael, Federal Public Defender Coats, Benjamin C., Assistant United States Attorney DiRosa, Phillip, Assistant United States Attorney Ferrer, Aimee A., Assistant Federal Public Defender Ferrer, Wifredo A., United States Attorney Garber, Hon. Barry L., United States Magistrate Judge Matchett, Calvin, Defendant/Appellant Moore, Hon. K. Michael, United States District Judge O Connor, Christine, Assistant Federal Public Defender Salyer, Kathleen M., Assistant United States Attorney C-2 of 2

3 Smachetti, Emily, Assistant United States Attorney Snyder, Vanessa Sisti, Assistant United States Attorney Torres, Hon. Edwin G., United States Magistrate Judge C-3 of 2

4 STATEMENT OF COUNSEL I express a belief, based on a reasoned and studied professional judgment, that this appeal involves the following question of exceptional importance: Does Johnson s holding that the language of the ACCA s residual clause is unconstitutionally vague apply to the identically-worded and interchangeably-interpreted residual clause of the Career Offender provision of the Sentencing Guidelines, USSG 4B1.2(a)(2)? I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions of the Supreme Court of the United States and the precedents of this Circuit, and that full consideration by the full Court is necessary to security and maintain uniformity of decisions in this Court: Johnson v. United States, 135 S. Ct (2015) Peugh v. United States, 133 S. Ct (2013) United States v. Inclema, 363 F.3d 1177 (11 th Cir. 2004) United States v. Rolande-Gabriel, 938 F.3d 1231 (11 th Cir. 1991) s/brenda G. Bryn Attorney of Record for Calvin Matchett ii

5 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS C-1 STATEMENT OF COUNSEL ii STATEMENT OF THE ISSUE MERITING EN BANC REVIEW COURSE OF PROCEEDINGS AND DISPOSITION OF THE CASE ARGUMENT AND CITATIONS OF AUTHORITY The question of whether Johnson applies to the Sentencing Guidelines should be reconsidered and determined by the en banc Court because it is one of exceptional importance, the panel s decision contravenes Supreme Court and prior Circuit precedent, and it is creating unwarranted sentencing disparities A. The panel s decision contravenes both Peugh and Johnson by adopting the reasoning of the Seventh Circuit in Tichenor and the Eighth Circuit in Wivell B. The panel s decision contravenes Johnson by misstating that the vagueness doctrine rests only upon notice concerns, and improperly ignoring arbitrary judicial enforcement C. The panel s decision contravenes Johnson by instructing sentencing courts to adhere to the very ACCA residual clause precedents Johnson abrogated iii

6 D. The panel s decision contravenes prior Circuit precedent by failing to apply the rule of lenity to a guideline whose language is, at minimum, hopelessly ambiguous E. The panel s decision will create unwarranted sentencing disparities and chaos at all stages of criminal proceedings in this Circuit if not immediately vacated CONCLUSION ADDENDUM Addendum 1: United States v. Calvin Matchett, F.3d, 2015 WL (11 th Cir. Sept. 21, 2015) Addendum 2: The Panel s July 30, 2015 Request for Supplemental Briefing Addendum 3: Government s August 27, 2015 Supplemental Letter Brief Addendum 4: Matchett s September 2, 2015 Supplemental Brief and Appendix Addendum 5: Matchett s September 21, 2015 Rule 28(j) letter CERTIFICATE OF SERVICE iv

7 TABLE OF CITATIONS CASES: Argersinger v. Hamlin, 407 U.S. 25 (1972) Bouie v. City of Columbia, 378 U.S. 347 (1964) Burgess v. United States, 553 U.S. 124 (2008) Carter v. Jury Comm n on Greene Cnty., 396 U.S. 320 (1970) Chambers v. United States, 55 U.S. 122 (2009) Chapman v. United States, 500 U.S. 453 (1991) Evitts v. Lucey, 469 U.S. 387 (1985) Irizarry v. United States, 553 U.S. 708 (2008) James v. United States, 550 U.S. 192 (2007) v

8 Johnson v. United States, 135 S. Ct (2015) ii, passim Miller v. Florida, 482 U.S. 423 (1987) Peugh v. United States, 133 S. Ct (2013) ii, 2, 4-8 Sykes v. United States, 564 U.S. 1 (2011) Townsend v. Burke, 334 U.S. 736 (1948) United States v. Batchelder, 442 U.S. 114 (1979) United States v. Benavides, No (9 th Cir. Sept. 21, 2015) United States v. Booker, 543 U.S. 220 (2005) United States v. Carthone, 726 F.3d 503 (4 th Cir. 2013) United States v. Darden, 605 Fed. Appx. 545 (6 th Cir. July 6, 2015) vi

9 United States v. Demaree, 459 F.3d 791 (7 th Cir. 2006) United States v. Goodwin, Fed. App x, 2105 WL (10 th Cir. Sept. 4, 2015) United States v. Grayer, No (6 th Cir. Sept. 17, 2015) United States v. Harbin, 610 Fed. Appx. 562 (6 th Cir. July 20, 2015) United States v. Herring, No (2 nd Cir. Sept. 9, 2015) United States v. Inclema, 363 F.3d 1177 (11 th Cir. 2004) ii, 13 United States v. Matchett, F.3d, 2015 WL (11 th Cir. Sept. 21, 2015) , passim United States v. McDonald, 592 F.3d 808 (7 th Cir. 2010) United States v. Pagan-Soto, No (1 st Cir. August 27, 2015) United States v. Rolande-Gabriel, 938 F.3d 1231 (11 th Cir. 1991) ii, 3 vii

10 United States v. Shannon, 631 F.3d 1187 (11 th Cir. 2011) United States v. Smith, 73 F.3d 1414 (6 th Cir. 1996) United States v. Smith, No (10 th Cir. Oct. 5, 2015) United States v. Talmore, No (9 th Cir. Aug. 24, 2015) United States v. Taylor, F.3d, 2015 WL (8 th Cir. Oct. 9, 2015) , 9-10 United States v. Tichenor, 683 F.3d 358 (7 th Cir. 2012) , 4-8, 10 United States v. Wetherald, 636 F.3d 1315 (11 th Cir. 2011) United States v. Whitson, 597 F.3d 1218 (11 th Cir. 2010) United States v. Williams, 559 F.3d 1143 (10 th Cir. 2009) United States v. Wivell, 893 F.2d 156 (8 th Cir. 1990) , 5, 7, 9-10 viii

11 United States v. Wright, 607 F.3d 708 (11 th Cir. 2010) STATUTORY AND OTHER AUTHORITY: U.S. Const. amend. V , 9 U.S. Const. art. I, 9, cl U.S.C. 3553(a) U.S.C. 3553(a)(6) U.S.C. 924(e)(2)(B)(ii) U.S.C. 994(h) USSG 2K USSG 2K1.3, cmt. n USSG 2K USSG 2K2.1(a) USSG 2K2.1(a)(2) USSG 2K2.1, comment. n USSG 2K2.1(a)(8) USSG 2S USSG 2S1.1, cmt. n USSG 4A1.1(e) USSG 4A1.2(p) ix

12 USSG 4B1.2(a)(2) ii, passim USSG 5K USSG 5K2.17, cmt. n USSG 7B1.1(a)(1) USSG 7B1.1, cmt. n U.S. Sentencing Comm n, Booker Report 2012, Part C: Career Offenders Johnson v. United States, No , Oral Arg. Tran., 2015 WL (Apr. 20, 2015) United States v. Gillespie, Gvt. Br., Case No (7 th Cir. Sept. 28, 2015) , 11 x

13 STATEMENT OF THE ISSUE MERITING EN BANC REVIEW Whether Johnson s holding that the language of the ACCA s residual clause is unconstitutionally vague applies to the identically-worded and interchangeably-interpreted residual clause in the Career Offender provision of the Sentencing Guidelines, USSG 4B1.2(a)(2)? COURSE OF PROCEEDINGS AND DISPOSITION OF THE CASE Except where noted, the underlying facts, procedural history and arguments in this case are adequately set forth in the panel s decision, United States v. Matchett, F.3d, 2015 WL (11 th Cir. Sept. 21, 2015) (Addendum 1). ARGUMENT AND CITATIONS OF AUTHORITY The question of whether Johnson applies to the Sentencing Guidelines should be reconsidered and determined by the en banc Court because it is one of exceptional importance, the panel s decision contravenes Supreme Court and prior Circuit precedent, and it is creating unwarranted sentencing disparities. The question of whether the Supreme Court s vagueness holding in Johnson v. United States, 135 S.Ct (2015) applies to the Career Offender provision of the Guidelines is one of far-reaching, national importance. The government, notably, agrees with Matchett that Johnson s holding that the language of the ACCA s residual clause is unconstitutionally vague applies equally to 4B1.2(a)(2) s identically-worded residual clause. Indeed, as pointed out in Matchett s supplemental brief (Addendum 4), the government has argued consistently and unequivocally to appellate courts throughout this country that Johnson has rendered 4B1.2(a)(2) s residual clause unconstitutionally vague, because: 1

14 (1) the residual clauses in 924(e)(2)(B)(ii) and 4B1.2(a)(2) are identically-worded and have always been interpreted interchangeably by the courts of appeals, including this Court, in scores of published opinions; (2) because Johnson effectively overruled all prior cases interpreting the identically-worded and applied residual clauses, the courts no longer have any body of law to apply; (3) the application of a vague Guideline conflicts with the proper role of the Guidelines in providing a uniform baseline for sentencing; (4) the courts of appeals again, including this Court have repeatedly resolved vagueness challenges to the advisory Guidelines on the merits, and thus have assumed that defendants may raise such a challenge to the Guidelines; and (5) most critically, the few circuits that had held the Guidelines were not subject to such a vagueness challenge (e.g., the Eighth Circuit in United States v. Wivell, 893 F.2d 156, (8 th Cir. 1990) and the Seventh Circuit in United States v. Tichenor, 683, F.3d 358, (7 th Cir. 2012)) had so held prior to Peugh v. United States, 133 S.Ct (2013), and their reasoning was squarely rejected by the Supreme Court in both Peugh and Johnson. Accordingly, it should not be followed. On September 21 st at 11:08 a.m., Matchett uploaded a Rule 28(j) letter notifying the panel that in United States v. Gillespie, Case No , the government had urged the Seventh Circuit to overrule Tichenor since its reasoning had been fatally undermined by Johnson and Peugh. Matchett attached the government s brief in Gillespie for the panel s review. (Addendum 5). Less than 10 minutes later, the panel issued its published decision adopting the fatally undermined reasoning in Tichenor without hesitation; holding that since advisory guidelines cannot be void for vagueness, 4B1.2(a)(2) s residual clause cannot be unconstitutionally vague; and underscoring that 2

15 it was not bound by the stipulation of the parties. Matchett, at **6-8. Other courts, by contrast to the panel here, have understood that the government s position is well-considered. As of this writing, the First, Second, Sixth, Eighth, Ninth, and Tenth Circuits have vacated and remanded defendants sentences enhanced under 4B1.2(a)(2) s residual clause in light of the government s concession that Johnson renders the identically-worded residual clause in 4B1.2(a)(2) unconstitutionally vague, and/or their own independent determination in that regard. 1 And notably, two of these circuits the Sixth and Eighth are among the four the panel identified as holding that the Guidelines cannot be unconstitutionally vague. Matchett, at *8. In neither Darden nor Harbin did the panels indicate concern about the Sixth Circuit s prior decision in United States v. Smith, 73 F.3d 1414, 1418 (6 th Cir. 1996). 2 The Eighth Circuit in Taylor did acknowledge Wivell s holding that guidelines cannot be unconstitutionally vague because they do not proscribe conduct, but found Wivell s reasoning which the panel here expressly adopted doubtful after Johnson. Taylor, 2015 WL at *1. 1 See United States v. Taylor, F.3d, 2015 WL (8 th Cir. Oct. 9, 2015); United States v. Smith, No (10 th Cir. Oct. 5, 2015); United States v. Benavides, No (9 th Cir. Sept. 21, 2015); United States v. Grayer, No (6 th Cir. Sept. 17, 2015); United States v. Herring, No (2 nd Cir. Sept. 9, 2015); United States v. Goodwin, Fed. App x, 2105 WL (10 th Cir. Sept. 4, 2015); United States v. Pagan-Soto, No (1 st Cir. August 27, 2015); United States v. Talmore, No (9 th Cir. Aug. 24, 2015); United States v. Harbin, 610 Fed. Appx. 562, 563 (6 th Cir. July 20, 2015); United States v. Darden, 605 Fed. Appx. 545, 546 (6 th Cir. July 6, 2015). 2 Notably, the Visiting Judge on the panel in Matchett s case was a member of the panel in Harbin that reached a contradictory conclusion. 3

16 This Court is steadily becoming an outlier among its sister courts as a result of the panel s decision to effectively disregard every point and authority the parties jointly emphasized to illustrate why Johnson s constitutional holding renders 4B1.2(a)(2) s identically-worded residual clause unconstitutionally vague. In district courts all over the country at this moment, defendants identically-situated to Calvin Matchett are being sentenced without crime of violence enhancements, because the government has rightly taken the position before those courts that 4B1.2(a)(2) s residual clause is unconstitutionally vague, and thus void, after Johnson. Such unwarranted sentencing disparities are contrary to Congress intent. See 18 U.S.C. 3553(a)(6). They will proliferate if the panel s decision is not vacated. A. The panel s decision contravenes both Peugh and Johnson by adopting the reasoning of the Seventh Circuit in Tichenor and the Eighth Circuit in Wivell In holding that the advisory Guidelines cannot be unconstitutionally vague, the panel reflexively and wrongly adopted the reasoning of the Seventh Circuit in Tichenor that the vagueness doctrine only applies to criminal statutes, and that [t]he sentencing judge s authority to exercise discretion distinguishes the Guidelines from criminal statutes in a significant and undeniable manner. Matchett, at *6 (citing Tichenor, 648 F.3d at 365). As the government and Matchett rightly argued, and the panel wrongly ignored, Tichenor s analysis has been fatally undermined by Peugh and Johnson. Notably, in reasoning that guideline provisions are not subject to constitutional vagueness challenges under the Due Process Clause, the Seventh Circuit had adopted 4

17 the Eighth Circuit s reasoning in Wivell that the then-mandatory Guidelines did not establish the illegality of any conduct, they are directives to judges for their guidance in sentencing convicted criminals, not to citizens at large, and they merely assist and limit the discretion of the sentencing judge. Tichenor, 683 F.3d at (citing Wivell, 893 F.2d at 160). That the Guidelines were rendered advisory in Booker bolstered Wivell s reasoning, the Seventh Circuit reasoned, since Booker demoted the Guidelines from rules to advice, and defendants cannot rely upon merely advisory Guidelines to communicate the sentence that the district court will impose. Tichenor, 683 F.3d at 364. The fundamental flaw in Tichenor s reasoning became apparent the very next year when the Supreme Court in Peugh squarely repudiated the Seventh Circuit s view that the advisory Guidelines simply structured sentencing court s discretion, and were merely guideposts that lacked the force and effect of laws. 133 S.Ct. at (citations omitted). In holding that Peugh was indeed protected from a retrospective increase in his advisory guideline range by the Ex Post Facto Clause, the Court identified numerous features of the post-booker sentencing regime that ensure the Guidelines, albeit now advisory, continue to have legal force. Id. at Specifically, the Court emphasized, the Guidelines remain the lodestone, framework, anchor, and in a real sense the basis of both sentencing and reasonableness review on appeal, even when district courts sentence outside the guideline range. Id. at , 2086 (citation and emphasis omitted). For that reason, 5

18 the Court squarely rejected the government s argument in Peugh that the advisory Guidelines did not have adequate legal force to constitute an impermissible ex post facto Law. See id. at In so doing, notably, the Court expressly abrogated United States v. Demaree, 459 F.3d 791 (7 th Cir. 2006), an ex post facto decision upon which the Seventh Circuit had relied in Tichenor. Peugh, 132 S. Ct. at 2079 & n.1; see Tichenor, 683 F.3d at Although Matchett argued in his supplemental brief that Tichenor was irreconcilable with Peugh, the panel ignored that argument. It cited Tichenor multiple times in the decision, but Peugh only once, and gave Peugh s analysis no weight. The panel minimized the advisory Guidelines role as merely the starting point and initial benchmark of federal sentencing, Matchett, at *6, when the Supreme Court in Peugh emphasized their role as not only the starting point but the framework for both sentencing and reasonableness review on appeal, in holding they indeed have sufficient force to be treated as Laws. 133 S.Ct. at 2083, The panel declared that [w]hether the Ex Post Facto Clause applies to the advisory guidelines in no way informs our analysis. Matchett, at *8 (emphasis added). However, it did not explain why the advisory Guidelines would have sufficient legal force to violate the Ex Post Facto Clause, but not the more fundamental Due Process Clause, which suffuses every 3 Notably, this Court rejected Demaree even before Peugh, reaching the same conclusion that the Supreme Court later would on the ex post facto issue. See United States v. Wetherald, 636 F.3d 1315, (11 th Cir. 2011). This Court correctly declined to follow the Seventh Circuit then; Peugh and Johnson preclude it from doing so now. 6

19 aspect of a criminal proceeding and whose protections have always applied at sentencings even under indeterminate regimes. 4 While the panel is correct that the Supreme Court has articulated different tests for when the Due Process Clause and Ex Post Facto Clause apply, Matchett, at *8, in Miller v. Florida, 482 U.S. 423 (1987) the Supreme Court confirmed the concerns underlying both clauses are the same. See id. at 429 (Ex Post Facto Clause guards against legislative arbitrariness by assuring fair notice and fair warning ). The panel improperly ignored that Peugh extended Miller s analysis to the Guidelines, see 133 S.Ct. at 2086, and that even earlier, in Bouie v. City of Columbia, 378 U.S. 347, (1964), the Supreme Court recognized that the vagueness doctrine and the Ex Post Facto Clause were grounded in similar considerations of fair notice and warning, and analyzed those principles in tandem. Although Matchett emphasized Bouie in his supplemental brief at 17, the panel gave Bouie no consideration. In Johnson, the Supreme Court dealt Tichenor its final and fatal blow by definitively rejecting the threshold assumption of the Eighth Circuit in Wivell (which the Seventh Circuit had previously adopted and continued to adhere to in Tichenor) that vagueness challenges are limited to criminal liability, not sentencing. See Tichenor, 683 F.3d at 364 (following Wivell, 893 F.2d at ). When the defendant in Tichenor 4 See, e.g., Argersinger v. Hamlin, 407 U.S. 25, 49 (1972)(Due Process is perhaps the most fundamental concept in our law ); Chapman v. United States, 500 U.S. 453, 465 (1991)(penalties based on an arbitrary distinction may violate Due Process); Townsend v. Burke, 334 U.S. 736, 737, (1948)(basing a sentence within the limits set by statute upon materially false criminal history violated Due Process). 7

20 emphasized that in United States v. Batchelder, 442 U.S. 114, 123 (1979), the Supreme Court had expressly recognized that vague sentencing provisions may pos[e] constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute, the Seventh Circuit dismissed that isolated comment from Batchelder as mere dictum. 683 F.3d at 365. But even if the Seventh Circuit were correct at that time that the above statement in Batchelder was dictum, it is no longer dictum. In Johnson, the Supreme Court held that vagueness principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. 135 S.Ct. at 2557 (citing Batchelder, 442 U.S. at 123). And, Peugh s reasoning renders those principles equally applicable to the advisory Guidelines. The panel misreads Johnson entirely in inferring from the Court s recognition that the vagueness doctrine applies to statutes fixing sentences that its vagueness holding extends only to the ACCA s residual clause, and not to the identically-worded residual clause in the Guidelines. See Matchett, at *6. The Supreme Court held that the ACCA s residual clause was unconstitutionally vague because its language identical to that in 4B1.2(a)(2) was hopelessly indeterminate. See 135 S.Ct. at There would have been no reason for the Court to have cited so many Guideline residual clause cases (in fact, even more Guideline cases than ACCA cases) as confirming that [t]his Court is not the only one that has had trouble making sense of the residual clause, and that it 8

21 was nearly impossible to apply consistently, id. at 2560, 5 if only the ACCA s residual clause and not 4B1.2(a)(2) s identical residual clause produce[d] more unpredictability and arbitrariness than the Due Process Clause tolerates. Id. at The Eighth Circuit in Taylor understood exactly what the above discussion in Johnson meant for its prior reasoning in Wivell, although the panel here did not. The Eighth Circuit correctly recognized that the threshold premise of Wivell had been called into doubt by Johnson, and for that reason, Wivell did not foreclose Taylor s challenge to 4B1.2(a)(2) s residual clause as unconstitutionally vague. The Eighth Circuit s holding in that regard should itself call into doubt the panel s adoption of Wivell s reasoning including its troubling logic that, because there is no constitutional right to sentencing guidelines at all, the limitations the Guidelines place on a judge s discretion cannot violate a defendant s right to due process by reason of being vague. Matchett, at *7 (citing Wivell, 893 F.3d at 160). 6 While admittedly, the Eighth Circuit panel in Taylor split and the dissenting judge argued that whether Wivell remained good law should be considered by the en banc court, 2015 WL at **2-3, that simply 5 United States v. Carthone, 726 F.3d 503 (4 th Cir. 2013); United States v. Whitson, 597 F.3d 1218 (11 th Cir. 2010);United States v. McDonald, 592 F.3d 808 (7 th Cir. 2010); and United States v. Williams, 559 F.3d 1143 (10 th Cir. 2009) were Guideline cases. 6 As Matchett argued in his supplemental brief at 11-12, even if the Guidelines are not constitutionally required, that does not afford them constitutional immunity once they are put into place. See, e.g, Evitts v. Lucey, 469 U.S. 387, 393 (1985); Carter v. Jury Comm n on Greene Cnty., 396 U.S. 320, 330 (1970). The reasoning in Wivell adopted by the panel would permit the Commission to promulgate Guidelines that discriminate on the basis of a protected class, penalize the exercise of constitutional rights, and bear no rational relationship to the goals of sentencing. That cannot be the law. 9

22 bolsters the need for consideration of that issue by our en banc Court. For indeed, at the current time this Circuit and not the Eighth must follow Wivell. B. The panel s decision contravenes Johnson by misstating that the vagueness doctrine rests only upon notice concerns, and improperly ignoring arbitrary judicial enforcement. The panel erroneously states that the vagueness doctrine rests exclusively on notice considerations. Matchett, at *7. Johnson made clear, however, that the vagueness doctrine not only ensures fair notice to defendants, but also prevents arbitrary enforcement by judges. 135 S. Ct. at And indeed, the Supreme Court devoted the majority of its discussion in Johnson to the problem of arbitrary judicial enforcement posed by its continued inability to provide a workable interpretation of the language of the residual clause, which had resulted in decisions that had proved anything but evenhanded, predictable, or consistent. Id. at Ignoring all of the concerns the Court had expressed about arbitrary enforcement in Johnson, the panel (following Tichenor s lead) focused on notice concerns alone. It mistakenly suggested that the inapposite decision in Irizarry v. United States, 553 U.S. 708, (2008), holding merely that, after Booker rendered the Guidelines advisory, defendants no longer have [a]ny expectation subject to due process protection that they will receive a sentence within the advisory guideline range, somehow confirmed its holding that advisory Guidelines cannot be unconstitutionally vague. Matchett, at *7. As the government rightly explained in its post-johnson briefs, 10

23 and Matchett reiterated, it is one thing to recognize that advisory Guidelines do not guarantee a particular sentence given the discretion afforded to judges under 18 U.S.C. 3553(a); it is another to preclude defendants from understanding how the guideline range the baseline of the proceeding will be calculated, and to require judges to resort to guesswork to make that legal determination. In any event, the notice concerns addressed in Irizarry are distinct from the danger of arbitrary enforcement by judges presented by the residual clause. See, e.g., Gillespie, Gov. Br. at 13 (Addendum 7). C. The panel s decision contravenes Johnson by instructing sentencing courts to adhere to the very ACCA residual clause precedents Johnson abrogated. The danger of arbitrary enforcement is particularly acute here, and is illustrated by the manner in which the panel ultimately chose to resolve Matchett s case. After discussing the many uncertainties inherent in each of its prior residual-clause cases, the Supreme Court stated in Johnson: Nine years experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. 135 S. Ct. at 2560; see id. at 2558 ( [T]his Court s repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy. ). All in all, the Court recognized, James, Chambers, and Sykes 7 failed to establish any generally applicable test that prevents the risk comparison 7 James v. United States, 550 U.S. 192 (2007); Chambers v. United States, 55 U.S. 122 (2009); and Sykes v. United States, 564 U.S. 1 (2011). 11

24 required by the residual clause from devolving into guesswork and intuition. Id. The panel disregarded the Supreme Court s holding in this regard completely. After erroneously declaring that 4B1.2(a)(2) s residual clause continued to stand after Johnson, it erred even further by instructing sentencing courts interpreting 4B1.2(a)(2) s residual clause that they must still adhere to the very Supreme Court decisions the Supreme Court had declared anything but evenhanded, predictable, or consistent. Matchett, at *8. Although the Supreme Court recognized that the ordinary case analysis in James and Sykes was unworkable and had resulted in arbitrary judicial enforcement by guesswork and intuition, the panel held these precise precedents made clear Matchett s convictions for burglary of unoccupied dwellings/curtilage were categorically crimes of violence within 4B1.2(a)(2) s residual clause. Matchett, at *9. In reviving precedents the Supreme Court itself declared unworkable and thus dead after Johnson, the panel has created a bizarre new sort of zombie jurisprudence for this Circuit. Its application of 4B1.2(a)(2) s residual clause in Matchett s case flouts Johnson and will create no less unpredictability and arbitrariness than the ACCA s identical residual clause. Id. at D. The panel s decision contravenes prior Circuit precedent by failing to apply the rule of lenity to a guideline whose language is, at minimum, hopelessly ambiguous. Irrespective of whether Johnson rendered the language of 4B1.2(a)(2) s residual clause unconstitutionally vague, Johnson confirmed it is incomprehensibly vague. By 12

25 characterizing the identical language in the ACCA s residual clause as a judicial morass that defies systemic solution, and a black hole of confusion and uncertainty that frustrates any effort to impart some sense of order and direction, 135 S.Ct. at 2560, the Supreme Court left no doubt that 4B1.2(a)(2) s residual clause is at minimum ambiguous. Because of that undeniable ambiguity, instead of instructing sentencing courts to adhere to James and Sykes in interpreting 4B1.2(a)(2), the panel should have instructed them to apply the rule of lenity. See Burgess v. United States, 553 U.S. 124, 135 (2008) (ambiguity alone is required for rule of lenity). This Court s interpretation of the Sentencing Guidelines is governed by traditional rules of statutory construction. United States v. Shannon, 631 F.3d 1187, 1189 (11 th Cir. 2011). And the rule of lenity is the traditional rule the Court has applied when other guides to Guideline construction fail to clarify an ambiguity. See United States v. Inclema, 363 F.3d 1177, 1182 (11 th Cir. 2004)(the rule of lenity must be applied if Guideline enhancements are capable of competing but equally rational constructions, [u]ntil the sentencing guidelines and accompanying commentaries are made to be more precise ); United States v. Rolande-Gabriel, 938 F.3d 1231, 1237 (11 th Cir. 1991). The author of the panel opinion has suggested in a prior case that whether the rule of lenity applies to the advisory Guidelines is an open question in this Circuit that warrants careful consideration when it is presented to this Court. United States v. Wright, 607 F.3d 708, 716 (11 th Cir. 2010) (William Pryor, J., concurring). Here, 13

26 however, Matchett squarely presented a rule of lenity question to the panel in his briefing. Initial Br. at 52-53; Reply Br. at 10. And the panel inexplicably failed to address or even acknowledge his properly-raised request for application of the rule of lenity, let alone afford it careful consideration. That warrants en banc review as well. E. The panel s decision will create unwarranted sentencing disparities and chaos at all stages of criminal proceedings in this Circuit if not immediately vacated. If left undisturbed, the panel s decision will not only create dramatic inequities nationwide. It will do so within the circuit since the same priors that no longer constitute violent felonies under the ACCA, will still constitute crimes of violence under 4B1.2(a)(2). And ultimately, the continued viability of 4B1.2(a)(2) s residual clause will infect every stage of criminal proceedings. Uncertainty about the applicability of the Career Offender enhancement, which catapults offenders to at or near the statutory maximum, 28 U.S.C. 994(h); see U.S.S.G. 4B1.1, will paralyze the plea-bargaining process, preclude reasonable pre-trial resolutions, and result in unnecessary additional trials. See Johnson, No , Oral Arg. Tran., 2015 WL at **42-43 (April 20, 2015)(Roberts, C.J.)(recognizing that vagueness prevents defense counsel from properly advising clients, and thus impedes plea bargaining). At sentencing, judges will be forced to engage in guesswork to interpret this shapeless provision, Johnson, 135 S. Ct. at , making a mockery of justice. And, on appeal, every sentence imposed pursuant to 4B1.2(a)(2) s residual clause will be challenged 14

27 as unreasonable, because calculating the guideline range and imposing a sentence based on a provision lacking in meaning cannot survive reasonableness review. These pervasive consequences will affect countless defendants in this Circuit. In 2011 alone, the Commission s statistics indicate there were 233 Career Offenders sentenced in this Circuit, representing more than 10% of all Career Offenders in the nation. U.S. Sentencing Comm n, Booker Report 2012, Part C: Career Offenders, at 50. And notably, 4B1.2(a)(2) s residual clause extends far beyond the Career Offender context, because several other Guidelines incorporate its crime of violence definition. See, e.g., USSG 2K1.3 & cmt. n.2 (explosive materials); 2K2.1 & cmt. n.1 (firearms); 2S1.1 & cmt. n.1 (money laundering); 4A1.1(e) & 4A1.2(p) (criminal history); 5K2.17 & cmt. n.1 (departure for semi-automatic firearms); 7B1.1(a)(1) & cmt. n.2 (probation and supervised release). Matchett s case illustrates the point, as he received a 4-level increase in his base offense level under 2K2.1(a)(2) because the district court found he committed two crimes of violence, as defined by 4B1.2(a). Notably, under 2K2.1, a defendant can receive up to an 18-level enhancement in his base offense level if he committed two crimes of violence. See USSG 2K2.1(a)(2), (8). Absent any coherent body of law to apply, district court judges will resort to guesswork and intuition, and sentencing in this Circuit will depend upon the capricious proclivities of individual judges. The panel s decision should be vacated. CONCLUSION The above arguments should be considered, and addressed, by the en banc Court. 15

28 Respectfully submitted, MICHAEL CARUSO Federal Public Defender /s Brenda G. Bryn BRENDA G. BRYN ANDREW L. ADLER Assistant Federal Public Defenders Attorneys for Appellant One East Broward Boulevard Suite 1100 Fort Lauderdale, FL (954)

29 CERTIFICATE OF SERVICE I CERTIFY that on this 13 th day of October, 2015, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day via CM/ECF on Philip DiRosa and Emily M. Smachetti, Assistant United States Attorneys, 99 N.E. 4th Street, Miami, Florida s/brenda G. Bryn Brenda G. Bryn 17