United States Court of Appeals for the Sixth Circuit

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1 Case: Document: 22 Filed: 08/20/2015 Page: 1 No United States Court of Appeals for the Sixth Circuit UNITED STATES OF AMERICA, v. Plaintiff-Appellee, ANTHONY GRAYER, Defendant-Appellant. On Appeal from the United States District Court for the Western District of Tennessee No. 1:13-cr (Breen, C.J.) SUPPLEMENTAL BRIEF FOR PLAINTIFF-APPELLEE UNITED STATES For the Appellee: EDWARD L. STANTON III United States Attorney KEVIN G. RITZ Criminal Appellate Chief JAMES POWELL Assistant United States Attorney 109 South Highland Avenue, Suite 300 Jackson, Tennessee (731) James.Powell@usdoj.gov

2 Case: Document: 22 Filed: 08/20/2015 Page: 2 TABLE OF CONTENTS TABLE OF CONTENTS Table of Authorities... ii Issue Presented... 1 Supplemental Statement of the Case... 1 Summary of the Argument... 2 Argument... 3 I. In Johnson, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act s Violent Felony Provision II. Johnson applies to the residual clause of the Guidelines Crime of Violence Provision... 4 III. The calculation of Grayer s guidelines range was predicated on a residual clause crime of violence, and this Court should vacate and remand... 8 Conclusion Certificate of Compliance Designation of Relevant District Court Documents Certificate of Service... 13

3 Case: Document: 22 Filed: 08/20/2015 Page: 3 TABLE OF AUTHORITIES Cases Gall v. United States, 552 U.S. 38 (2007) Griffith v. Kentucky, 479 U.S. 314 (1987)... 8 Henderson v. United States, 133 S.Ct (2013)....8 Irizarry v. United States, 553 U.S. 708 (2008)... 6 James v. United States, 550 U.S. 192 (2007)....4, 5 Johnson v. United States, 135 S.Ct (2015)......passim Peugh v.united States, 133 S.Ct (2013)... 6, 7-8 Sykes v. United States, 564 U.S. 1 (2011)...4, 5 United States v. Alphas, 785 F.3d 775 (1st Cir. 2015).. 7 United States v. Bercian-Flores, 786 F.3d 309 (4th Cir. 2015) United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) ii

4 Case: Document: 22 Filed: 08/20/2015 Page: 4 United States v. Dominguez Benitez, 542 U.S. 74 (2004)... 8 United States v. Griffin, 652 F.3d 793 (7th Cir. 2011) United States v. Keigue, 318 F.3d 437 (2nd Cir. 2003)....9 United States v. Keys, 785 F.3d 1240 (8th Cir. 2015) 7 United States v. Kimbrough, 536 F.3d 463 (5th Cir. 2008).. 7 United States v. Meeks, 664 F.3d 1067 (6th Cir. 2012) United States v. Pirosko, 787 F.3d 358 (6th Cir. 2015)... 7 United States v. Prater, 766 F.3d 501 (6th Cir. 2014) United States v. Smith, 73 F.3d 1414 (6th Cir. 1996)...7 United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)... 7 United States v. Travis, 747 F.3d 1312 (11th Cir. 2014) United States v. Vargem, 747 F.3d 724 (9th Cir. 2014) United States v. Velázquez, 777 F.3d 91 (1st Cir. 2015)...4 iii

5 Case: Document: 22 Filed: 08/20/2015 Page: 5 United States v. Ward, 506 F.3d 468 (6th Cir. 2007)... 9 United States v. Wivell, 893 F.2d 156 (8th Cir. 1990).. 7 Rules Fed.R.App.P. Rule 28(j)....2 Fed.R.App.P. Rule 32(a)(7)(C)(i) 11 Sixth Circuit Rule 28(c)...12 Sixth Circuit Rule 30(b)...12 U.S.S.G. 2K , 9 U.S.S.G. 2K2.1, cmt. n. 1 4 U.S.S.G. 2K2.1(a).3, 10 U.S.S.G. 2K2.1(a)(2)..1 U.S.S.G. 2K2.1(a)(4)(A).9 U.S.S.G. 2K2.1(b)(1)(A) U.S.S.G. 4B1.1(a)... 4 U.S.S.G. 4B , 5, 9 U.S.S.G. 4B1.2(a)...4 U.S.S.G. 4B1.2(a)(1)...9 U.S.S.G. 4B1.2(a)(2)...1-5, 8 Statutes 18 U.S.C. 3553(a)... 3, 6, U.S.C. 922(g)...1, 3 18 U.S.C. 924(e)(1) 3 18 U.S.C. 924(e)(2)(B)(ii).. 2, 3 iv

6 Case: Document: 22 Filed: 08/20/2015 Page: 6 ISSUE PRESENTED Whether the residual clause of U.S.S.G. 4B1.2(a)(2) is invalid because it is unconstitutionally vague? SUPPLEMENTAL STATEMENT OF THE CASE Defendant pled guilty to being a felon in possession of firearms, in violation of 18 U.S.C. 922(g). (Indictment, RE 1, Page ID 1-2; Order on Change of Plea, RE 22, Page ID 29). At sentencing, the district court calculated defendant s base offense level as 24 under U.S.S.G. 2K2.1(a)(2), because defendant committed the crime after sustaining felony convictions for a controlled substance offense and a crime of violence. (Sentencing Hearing Transcript (SHTR), RE 40, Page ID 87-93, 101.) The defendant objected to the categorization of his Illinois conviction for aggravated fleeing as a crime of violence, arguing that the crime could have been committed recklessly. (SHTR, RE 40, Page ID 81-82, 91.) The district court overruled the objection and found that the conviction qualified under the residual clause of 4B1.2(a)(2). (SHTR, RE 40, Page ID 91-93; PSR, 45.) After application of a two-level number-of-firearms enhancement under 2K2.1(b)(1)(A) and full credit for acceptance of responsibility, defendant s total offense level was 23. (SHTR, RE 40, Page ID 101.) Defendant was in criminal history category VI, and his advisory guideline range was 92 to 115 months in 1

7 Case: Document: 22 Filed: 08/20/2015 Page: 7 prison. (SHTR, RE 40, Page ID ) He received a below-guidelines 84-month sentence. (SHTR, RE 40, Page ID 105.) In his initial brief on appeal, defendant challenged only the application of the number-of-firearms enhancement. He later filed a letter under Fed. R. App. P. 28(j), citing the still-pending case of Johnson v. United States, 135 S. Ct (2015), and arguing that the residual clause of 4B1.2(a)(2) is unconstitutionally vague. On June 26, 2015, after briefing in the present case was complete, the Supreme Court issued its decision in Johnson. This Court has ordered the parties to file supplemental briefs on the question whether the residual clause of 4B1.2(a)(2) is unconstitutionally vague. SUMMARY OF THE ARGUMENT In Johnson, the Supreme Court held that the Armed Career Criminal Act 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 unconstitutionally vague. Courts of appeals, including this Court, have 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. The residual clause of U.S.S.G. 4B1.2(a)(2) is unconstitutionally vague under Johnson, and a sentencing 2

8 Case: Document: 22 Filed: 08/20/2015 Page: 8 court may not use the residual clause to classify a prior conviction as a crime of violence. Grayer s sentence is unlawful as he no longer qualifies for an enhancement applied at his original sentencing pursuant to 4B1.2(a)(2) s residual clause. This Court should affirm the application of the number-of-firearms enhancement, vacate the judgment, and remand for correction of the base offense level under 2K2.1(a) and re-imposition of sentence pursuant to 18 U.S.C. 3553(a). ARGUMENT I. IN JOHNSON, THE SUPREME COURT INVALIDATED THE RESIDUAL CLAUSE OF THE ARMED CAREER CRIMINAL ACT S VIOLENT FELONY PROVISION. The Armed Career Criminal Act (ACCA) provides for a mandatory minimum sentence of 15 years of imprisonment for a defendant who violates 18 U.S.C. 922(g) and has three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. 924(e)(1). In Johnson, 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. 135 S. Ct. at The Court overruled 3

9 Case: Document: 22 Filed: 08/20/2015 Page: 9 its decisions in James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 564 U.S. 1 (2011), which previously rejected the contention of dissenting Justices that the residual clause was vague. Johnson, 135 S. Ct. at II. JOHNSON APPLIES TO THE RESIDUAL CLAUSE OF THE GUIDELINES CRIME OF VIOLENCE PROVISION. The definition of crime of violence in U.S.S.G. 4B1.2(a) contains a residual clause that is identical to ACCA s residual clause. This definition of crime of violence is incorporated into several other guidelines provisions, including the career offender provision, 4B1.1(a), and (as is relevant here) the firearms guideline, 2K2.1 & cmt. n.1. Because the exact language of 4B1.2 s residual clause is unconstitutionally vague under Johnson, a sentencing court may not classify a prior conviction as a crime of violence under the residual clause. Section 4B1.2(a)(2) 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 Courts of appeals, including this Court, have 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. See, e.g., United States v. Velázquez, 777 F.3d 91, & n.1 (1st Cir. 2015) (interpreting guideline using ordinary case analysis that Johnson found speculative and unreliable); United 4

10 Case: Document: 22 Filed: 08/20/2015 Page: 10 States v. Travis, 747 F.3d 1312, & n.2 (11th Cir. 2014) (applying James and Sykes in interpreting guideline); United States v. Boose, 739 F.3d 1185, 1187 n.1 (8th Cir. 2014) (court construes ACCA violent felony and guidelines crime of violence as interchangeable ); United States v. Meeks, 664 F.3d 1067, & n.1 (6th Cir. 2012) (same analysis applies to ACCA and guidelines); United States v. Griffin, 652 F.3d 793, 802 (7th Cir. 2011) ( the definition of violent felony under the ACCA is the same as the definition of crime of violence in section 4B1.2 of the guidelines, and it would be inappropriate to treat identical texts differently just because of a different caption ) (internal punctuation marks and citation omitted). The ACCA cases on which courts have relied to decide whether offenses fall within the guidelines residual clause are now overruled, leaving courts with no body of law to apply. After Johnson, courts attempting to determine whether a particular offense qualifies as a crime of violence under the residual clause of 4B1.2(a)(2) would be forced to rely on guesswork and intuition. Johnson, 135 S. Ct. at Moreover, 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 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. 5

11 Case: Document: 22 Filed: 08/20/2015 Page: 11 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 ( [T]he rule that an incorrect Guidelines calculation is procedural error ensures that they remain the starting point for every sentencing calculation in the federal system. ). 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 range. Irizarry v. United States, 553 U.S. 708, 713 (2008). But the guidelines are nonetheless unlike the broad sentencing factors in 3553(a), in that their function is to provide a precise starting point for sentencing. Courts have discretion to weigh the 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 decisions of this Court and other courts, involving appeals brought 6

12 Case: Document: 22 Filed: 08/20/2015 Page: 12 by defendants and by the government, applying de novo review to questions of guidelines interpretation. See, e.g., United States v. Pirosko, 787 F.3d 358, 372 (6th Cir. 2015); 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); United States v. Kimbrough, 536 F.3d 463, 465 (5th Cir. 2008). 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 (explaining that 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). Finally, this Court, along with two other circuits, previously held that guidelines provisions are not subject to constitutional vagueness challenges, because they do not establish the illegality of any conduct and are directives only to judges, not citizens. See United States v. Tichenor, 683 F.3d 358, (7th Cir. 2012); United States v. Smith, 73 F.3d 1414, (6th Cir. 1996); United States v. Wivell, 893 F.2d 156, (8th Cir. 1990). But that precedent predated, and is undermined by, Peugh and Johnson. For example, in Peugh, the Court emphasized the guidelines critical role as the starting point and lodestone of sentencing

13 Case: Document: 22 Filed: 08/20/2015 Page: 13 S. Ct. at And in Johnson, the Court explained that vagueness principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. 135 S. Ct. at For all of these reasons, Johnson applies to the residual clause of 4B1.2(a)(2). Also, Johnson applies to cases pending on direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). III. THE CALCULATION OF GRAYER S GUIDELINES RANGE WAS PREDICATED ON A RESIDUAL CLAUSE CRIME OF VIOLENCE, AND THIS COURT SHOULD VACATE AND REMAND. As noted in the government s opening brief, Grayer did not raise his claim that the residual clause of 4B1.2(a)(2) is void for vagueness below, so this Court should review it for plain error. See United States v. Prater, 766 F.3d 501, 507 (6th Cir. 2014). The plainness of the error is judged at the time of appeal. Henderson v. United States, 133 S. Ct. 1121, (2013). Where there is a guidelines error, a defendant will never be able to show that he was ineligible for the sentence he received (as long as it was within the statutory maximum). To establish plain error, the defendant has to show a reasonable probability that his sentence would have been different absent the error. See United States v. Dominguez Benitez, 542 U.S. 74, (2004). In most cases, the disparity between a defendant s erroneous crime of violence guidelines range and 8

14 Case: Document: 22 Filed: 08/20/2015 Page: 14 his range without the enhancement will suffice to establish the required reasonable probability. See United States v. Vargem, 747 F.3d 724, 732 (9th Cir. 2014) (where error may well have resulted in a longer sentence, it also affected the fairness of the judicial proceedings ); see also United States v. Keigue, 318 F.3d 437, 446 (2nd Cir. 2003) (court need not resolve unpreserved guideline claim where the same sentence would (not could) have been imposed under either of two overlapping ranges ); cf. United States v. Ward, 506 F.3d 468, (6th Cir. 2007) (noting that guideline errors that do not affect a defendant s sentence are harmless and do not require a remand for re-sentencing, and finding harmless error where district court stated it would have imposed the same sentence regardless of the enhancement at issue ). Here, at the sentencing hearing, the calculation of Grayer s base offense level under 2K2.1 was increased to 24 based in part on the determination that he had a prior crime of violence namely, an Illinois conviction for aggravated fleeing. That conviction qualified only under the residual clause and does not qualify as a crime of violence under either the use of physical force clause, 4B1.2(a)(1), or the enumerated offenses listed in the commentary to 4B1.2. Given that the residual clause is invalid under Johnson, Grayer s correctly-calculated base offense level should be 20, pursuant to USSG 2K2.1(a)(4)(A). See PSR 20, 38. The 9

15 Case: Document: 22 Filed: 08/20/2015 Page: 15 change results in a lower advisory guideline range than the district court used at sentencing, and this Court should vacate the sentence and remand. CONCLUSION For the foregoing reasons, this Court should affirm the district court s ruling on the issue presented in Grayer s original appellate brief (the number-of-firearms enhancement), vacate the judgment, and remand for resentencing. The United States respectfully requests that resentencing be limited to correction of the base offense level under 2K2.1(a) and re-imposition of sentence pursuant to 18 U.S.C. 3553(a). Respectfully submitted, EDWARD L. STANTON III United States Attorney s/ Kevin G. Ritz KEVIN G. RITZ, AUSA Criminal Appellate Chief s/ James W. Powell JAMES W. POWELL Assistant United States Attorney 109 South Highland Avenue, Suite 300 Jackson, Tennessee (731)

16 Case: Document: 22 Filed: 08/20/2015 Page: 16 CERTIFICATE OF COMPLIANCE I, James W. Powell, Assistant United States Attorney for the Western District of Tennessee, hereby certify that in accordance with FRAP 32(a)(7)(C)(i), this brief complies with the type-volume limitation and further state that this brief contains 2,145 total words. s/ James W. Powell JAMES W. POWELL Assistant United States Attorney 11

17 Case: Document: 22 Filed: 08/20/2015 Page: 17 DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS Appellee, pursuant to Sixth Circuit Rules 28(c) & 30(b), hereby designates the following filings in the District Court s record as entries that are relevant to this appeal: DESCRIPTION OF ENTRY RECORD ENTRY NO. PAGE I.D. Indictment Order on Change of Plea , 87-93, Sentencing Hearing Transcript , 105 Presentence Report 20, 38, 45 12

18 Case: Document: 22 Filed: 08/20/2015 Page: 18 CERTIFICATE OF SERVICE I, James W. Powell, Assistant United States Attorney for the Western District of Tennessee, hereby certify that I have served a copy of the foregoing Brief of the United States upon counsel for the defendant in this cause by United States Mail, first-class postage prepaid, addressed as follows: Randolph W. Alden Assistant Federal Public Defender 200 Jefferson Avenue, Suite 200 Memphis, Tennessee this 20th day of August, s/ James W. Powell JAMES W. POWELL Assistant United States Attorney 13