Case: Document: 48 Filed: 09/15/2015 Pages: 23. No UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

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1 No UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. DARRYL ROLLINS, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin Case No. 10-CR-186 The Honorable Judge Rudolph T. Randa PETITION FOR PANEL REHEARING AND REHEARING EN BANC FEDERAL PUBLIC DEFENDER THOMAS W. PATTON CENTRAL DISTRICT OF ILLINOIS Federal Public Defender 300 West Main Street Urbana, Illinois PETER W. HENDERSON Telephone: (217) Assistant Federal Public Defender Fax: (217) Attorneys for Defendant-Appellant, DARRYL ROLLINS

2 Appellate Court No: Short Caption: United States v. Rollins CIRCUIT RULE 26.1 DISCLOSURE STATEMENT To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement stating the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): Darryl W. Rollins (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Peter W. Henderson, Thomas W. Patton, Jonathan E. Hawley, and Johanna M. Christiansen of the Federal Public Defender for the Central District of Illinois; Douglas M. Bihler, Bihler & Kuehl SC, Greenfield, WI; and Mark S. Rosen, Rosen & Holzman Ltd., Waukesha, WI (3) If the party or amicus is a corporation: N/A i) Identify all its parent corporations, if any; and ii) N/A list any publicly held company that owns 10% or more of the party s or amicus stock: N/A =========================================================================== Attorney's Signature: s/ Peter W. Henderson Date: 09/15/15 Attorney's Printed Name: Peter W. Henderson Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No Address: 300 W. Main Street Urbana, Illinois Phone Number: (217) Fax Number: (217) Address: Peter_Henderson@fd.org ii

3 TABLE OF CONTENTS PAGE CIRCUIT RULE 26.1 DISCLOSURE STATEMENT... ii TABLE OF AUTHORITIES... iv Cases... iv Statutes... v Other Authorities... v FEDERAL RULE OF APPELLATE PROCEDURE 35(b)(1) STATEMENT REGARDING REASONS FOR REHEARING EN BANC... 1 INTRODUCTION... 1 REASONS FOR GRANTING PANEL REHEARING... 4 I. Due to the government s misleading statement of position, the panel misapprehended the parties agreement that the residual clause to U.S.S.G. 4B1.2(a)(2) is unconstitutionally vague II. The panel overlooked relevant Supreme Court authority III. The panel erred in limiting the remand for resentencing REASON FOR GRANTING REHEARING EN BANC The decision in United States v. Raupp, the primary authority relied upon by the panel, conflicts with numerous other decisions of this Court, and the full court should resolve the conflict CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULES 32, 35, AND 40 AND FED. RS. APP. P. 32, 35, AND iii

4 TABLE OF AUTHORITIES iv PAGE Cases Camreta v. Greene, 131 S. Ct (2011)... 7 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)... 9 Demaree v. United States, 459 F.3d 791 (7th Cir. 2006) Easley v. Reuss, 532 F.3d 592 (7th Cir. 2008)... 5 Johnson v. United States, 134 S. Ct (Apr. 21, 2014)... 2 Johnson v. United States, 135 S. Ct. 939 (Jan. 9, 2015)... 3 Johnson v. United States, 135 S. Ct (2015)...passim Mistretta v. United States, 488 U.S. 361 (1989) Peugh v. United States, 133 S. Ct (2013)... 1, 7, 8, 13 Ramirez v. United States, F.3d (7th Cir. Aug. 25, 2015) Stinson v. United States, 508 U.S. 36 (1993)... 2, 9, 14 United States v. Brazeau, 237 F.3d 842 (7th Cir. 2001)... 1, 15 United States v. Evans, 576 F.3d 766 (7th Cir. 2009) United States v. Falor, - F.3d - (7th Cir. Sep. 1, 2015) United States v. Kappes, 782 F.3d 828 (7th Cir. 2015) United States v. Leshen, 453 F. App x 408 (4th Cir. 2011)... 8 United States v. McMillian, 777 F.3d 444 (7th Cir. 2015)... 7, 13 United States v. Merced, 603 F.3d 203 (3d Cir. 2010) United States v. Miller, 721 F.3d 435 (7th Cir. 2013)...passim United States v. Moore, 788 F.3d 693 (7th Cir. 2015) United States v. Poke, 793 F.3d 759 (7th Cir. 2015) United States v. Raupp, 677 F.3d 756 (7th Cir. 2012)...passim United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)...passim

5 United States v. Upton, 512 F.3d 394 (7th Cir. 2008)... 1 United States v. Woods, 576 F.3d 400 (7th Cir. 2009)... 1, 11, 12 Statutes 18 U.S.C. 16(b) U.S.C. 924(e)...passim 18 U.S.C. 924(e)(2)(B) U.S.C. 841(a)(1) U.S.C. 841(b)(1)(C) U.S.C. 5845(a) U.S.C. 994(p)... 13, 14 Sentencing Reform Act Other Authorities 68 Fed. Reg. 75,340 (Dec. 30, 2003) Circuit Rule 40(e) Fed. R. App. P. 40(a)(2)... 4 Gov t Br., United States v. Gillespie, No (7th Cir. Sep. 14, 2015)... 5, 8 Gov t Supp. Br., United States v. Grayer, 2015 WL , at *4 8 (6th Cir. Aug. 20, 2015)... 6 Letter Br. of the United States, United States v. Zhang, No (2d Cir. Aug. 13, 2015)... 5 Supp. Br. for the United States, United States v. Pagan-Soto, No (1st Cir. Aug. 11, 2015)... 5 Supp. Br. for the United States, United States v. Talmore, No (9th Cir. Aug. 17, 2015)... 6 Supp. Br. of United States, United States v. Goodwin, No (10th Cir. Aug. 21, 2015)... 6 v

6 Supp. Letter Br. for the United States, United States v. Matchett, No (11th Cir. Aug. 27, 2015)... 6 Supp. Letter Br. for the United States, United States v. Townsend, No (3d Cir. Aug. 28, 2015)... 5 U.S.S.G. 4B U.S.S.G. 4B1.2...passim U.S.S.G. 4B1.2(a)... 8, 11 U.S.S.G. 4B1.2(a)(2)...passim U.S.S.G. App. C, amend vi

7 FEDERAL RULE OF APPELLATE PROCEDURE 35(b)(1) STATEMENT REGARDING REASONS FOR REHEARING EN BANC The Court should grant rehearing en banc because the Court s decision in United States v. Raupp, 677 F.3d 756 (7th Cir. 2012), which proved dispositive to the outcome of this appeal, conflicts with other decisions of this Court, including United States v. Woods, 576 F.3d 400 (7th Cir. 2009), and represents a line of reasoning that has been disavowed by the Supreme Court in Peugh v. United States, 133 S. Ct (2013). The full court should reaffirm its holdings in the Woods line of cases and overturn or limit Raupp. INTRODUCTION 1 Darryl Rollins was convicted on two counts of distributing crack cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(c). Slip op. at 4 5. On March 29, 2013, he was sentenced to concurrent terms of 84 months imprisonment due in part to his status as a career offender under U.S.S.G. 4B1.1. Id. at 5 6. The career offender designation was based in part on Mr. Rollins prior Wisconsin conviction for possessing a shortbarreled shotgun. Id. at 4. Due to existing circuit precedent, see United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008); United States v. Brazeau, 237 F.3d 842, 844 (7th Cir. 2001), Mr. Rollins had no cause in the district court to object to the classification of that prior offense as a crime of violence under the residual clause to U.S.S.G. 4B1.2(a)(2), and so it is unsurprising that he did not raise such a challenge. See slip op. at 4, 7. Three months after Mr. Rollins was sentenced, however, the Court reversed course and held unequivocally that possession of a sawed-off shotgun does not present 1 In this petition, the record below is referenced as R. ; documents filed on appeal, Ct. App. R. ; and the panel s opinion, Slip op. 1

8 a serious potential risk of physical injury to another, as contemplated by the language of 18 U.S.C. 924(e)(2)(B), which is identical to that in the residual clause of U.S.S.G. 4B1.2(a)(2): We simply don t think that the latent risks inherent in the offense of possessing a short-barreled shotgun are sufficient to qualify for the residual clause when the crimes from which we are instructed to guide our determination -burglary, arson, extortion, and crimes involving the use of explosives -all are inherently risky without that extra step required for the risk to manifest. United States v. Miller, 721 F.3d 435, 443 (7th Cir. 2013). In his opening brief, filed October 30, 2013, Mr. Rollins relied on Miller to argue that he had been incorrectly characterized as a career offender, because his conviction for possessing a short-barreled shotgun no longer presented a serious potential risk of physical injury to another and therefore did not qualify as a crime of violence under U.S.S.G. 4B1.2(a)(2). Opening Br. at The government s principal response invoked Application Note 1 to 4B1.2, which states that [u]nlawfully possessing a firearm described in 26 U.S.C. 5845(a) (e.g., a sawed-off shotgun...) is a crime of violence. Gov t Br. at Mr. Rollins responded that, pursuant to Stinson v. United States, 508 U.S. 36, (1993), an application note cannot trump the text of a guideline itself. Reply Br. at 2 3. Three months after the oral argument in this case, the Supreme Court granted a writ of certiorari in Johnson v. United States, 134 S. Ct (Apr. 21, 2014), as to the question presented in Miller of whether possession of a short-barreled shotgun constitutes a violent felony under 924(e). Johnson was initially argued in November 2

9 2014 in the Supreme Court, but the Court ordered reargument and new briefing as to whether the residual clause in 924(e) was unconstitutionally vague. Johnson v. United States, 135 S. Ct. 939 (Jan. 9, 2015). Following reargument, the Court held 6-3 that the residual clause - or otherwise involves conduct that presents a serious potential risk of physical injury to another -was indeed unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). Following Johnson, this Court requested position statements from both parties as to the effect of Johnson on Mr. Rollins case. Mr. Rollins asserted that [l]ogically, this Court should find that the residual clause to the career offender definition of crime of violence is as vague as the identical clause in 924(e), and therefore Mr. Rollins prior conviction should not have been used to enhance his sentence. Ct. App. R.42 at 4. Nevertheless, acknowledging circuit precedent holding that the guidelines are not susceptible to vagueness challenges, see United States v. Tichenor, 683 F.3d 358, 364 (7th Cir. 2012), Mr. Rollins urged the Court to resolve the matter in his favor without unnecessarily reaching broader constitutional questions. Id. at 4 5. The government, after seeking and receiving an extension of time to file a position statement in order to seek guidance on issues arising from Johnson from the United States Department of Justice, Ct. App. R.40 at 3 4, argued that Johnson in effect overruled the analytical framework behind Miller. Ct. App. R.43 at 4 6. Importantly, the government voiced its support for the holding in Tichenor that the guidelines were not susceptible to a vagueness challenge. Id. at 6 7 (extensively quoting Tichenor). One month later, the panel issued a final opinion holding that possession of a 3

10 sawed-off shotgun still qualifies as a crime of violence, because the application note controls. Slip op. at 12. The panel relied principally on United States v. Raupp, 677 F.3d 756, (7th Cir. 2012), for the proposition that the application notes are authoritative and receive broad deference. Slip op. at 3, According to the panel, Mr. Rollins argument -sensible as a matter of language and logic -was foreclosed by the expansive language of Raupp, because the Court there noted that the Sentencing Commission is free to go its own way; it can classify as crimes of violence offenses that are not violent felonies under 924(e), though it is not free to do so by application notes that contradict the text of the Guideline. Slip op. at 10, quoting Raupp, 677 F.3d at 760. The panel, bowing to the wide deference afforded the Sentencing Commission s application notes, found that the contradiction between Miller and Application Note 1 established that the district court did not plainly err in treating the conviction as a crime of violence. Slip op. at 12. Nevertheless, the panel vacated the sentence and remanded because the district court made an error in calculating the guidelines term of supervised release. Slip op. at However, the opinion specified that the remand was limited only to the issue of supervised release. Id. at 14. REASONS FOR GRANTING PANEL REHEARING Panel rehearing is appropriate if this Court overlooked or misapprehended a point of law or fact. Fed. R. App. P. 40(a)(2). A petition for panel rehearing should alert the panel to specific factual or legal matters that the party raised, but that the panel may have failed to address or may have misunderstood. Easley v. Reuss, 532 F.3d 592, 593 4

11 (7th Cir. 2008). I. Due to the government s misleading statement of position, the panel misapprehended the parties agreement that the residual clause to U.S.S.G. 4B1.2(a)(2) is unconstitutionally vague. The Court appears to have misapprehended the positions of the parties with regard to the continued vitality of United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012). The misapprehension stems primarily from a misrepresentation of the Department of Justice s position with regard to Tichenor. In its statement of position, the United States enthusiastically quotes the Court s holding that the Guidelines are not susceptible to attack under the vagueness doctrine. Ct. App. R.43 at 7. [T]he residual clause is an unconstitutionally vague statute. But it does not moot the issue in this case. Unlike the residual clause of the ACCA, the residual clause of U.S.S.G. 4B1.2 is not susceptible to a vagueness challenge. See United States v. Tichenor, 683 F.3d 358 (2012). Simply, the advisory Guidelines serve a different purpose, and interpretation of the Guidelines is guided by different principles. Id. at 6 7. The Court reasonably understood this to mean that the government found no fault in Tichenor s logic following Johnson. See slip op. at 12. The Department of Justice, however, has filed documents in many federal courts of appeals (including this Court) disavowing the holding of Tichenor. See Gov t Br., United States v. Gillespie, No (7th Cir. Sep. 14, 2015); see also Supp. Br. for the United States, United States v. Pagan-Soto, No (1st Cir. Aug. 11, 2015); Letter Br. of the United States, United States v. Zhang, No (2d Cir. Aug. 13, 2015); Supp. Letter Br. for the United States, United States v. Townsend, No (3d Cir. Aug. 28, 2015); Gov t Supp. Br., United States v. Grayer, 2015 WL , at *4 8 (6th Cir. Aug. 5

12 20, 2015); Supp. Br. for the United States, United States v. Talmore, No (9th Cir. Aug. 17, 2015); Supp. Br. of United States, United States v. Goodwin, No (10th Cir. Aug. 21, 2015); Supp. Letter Br. for the United States, United States v. Matchett, No (11th Cir. Aug. 27, 2015). In Gillespie, the United States has conceded: Johnson v. United States... applies to the identically-worded residual clause definition of crime of violence in U.S.S.G. 4B1.2(a)(2). The government agrees with the defendant that under Johnson, the guidelines residual-clause definition of crime of violence is unconstitutionally vague, and also agrees that the Court should overrule United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012). Gov t Br. at 7 (emphasis added). In cases across the country, the United States has repeated the mantra that the residual clause to 4B1.2 is as unconstitutionally vague as the identical clause in 924(e). That squarely contradicts Tichenor s holding that, as a categorical matter, the Guidelines are not susceptible to vagueness challenges. See slip op. at 12. The panel could not have known that from the government s position statement filed in this case. Here, the United States affirmatively relied on the continued vitality of Tichenor in urging the Court to affirm the term of imprisonment. Ct. App. R.43 at 6 7. The United States made that representation despite its receipt of an extension of time to ensure that the United States presents a consistent position on similar issues across the country. Ct. App. R.40 at 4. Due to its misstatement of the Department s official position and its misrepresentation that Tichenor remains good law in the eyes of the Department, the United States created a misapprehension as to its true position on appeal. For that reason alone, the Court should grant the petition for rehearing. 6

13 Mr. Rollins, for his part, noted that Tichenor was likely no longer good law, based upon Johnson and Peugh v. United States, 133 S. Ct (2013). Ct. App. R.42 at 4 5. Invoking the canon of constitutional avoidance, however, Mr. Rollins encouraged the Court to leave Tichenor for another day, because possession of a sawed-off shotgun plainly does not otherwise involve[] conduct that presents a serious potential risk of physical injury to another. Id. at 5 6; United States v. Miller, 721 F.3d 435, (7th Cir. 2013); see Camreta v. Greene, 131 S. Ct. 2020, 2044 (2011) (Kennedy, J., dissenting) (referencing that older, wiser judicial counsel not to pass on questions of constitutionality... unless such adjudication is unavoidable. ). Mr. Rollins did not concede that Tichenor remained good law; rather, he relied upon the well-established rule that [w]hen an application note clashes with the guideline, the guideline prevails. Ct. App. R.42 at 5 6; United States v. McMillian, 777 F.3d 444, 450 (7th Cir. 2015). Both parties, therefore, no longer believe that Tichenor is valid in light of Johnson and / or Peugh, contrary to what the panel may have assumed. And Tichenor is vital to the holding in the panel s opinion. As the panel correctly noted, possession of a sawedoff shotgun only possibly qualifies as a crime of violence under the residual clause of 4B1.2(a)(2). Slip op. at 8. If the residual clause is void for vagueness, as both parties agree it is, there is no other provision in 4B1.2 designating possession of a sawed-off shotgun as a crime of violence. Therefore, contrary to the panel s conclusion, the application note does contradict the guideline, because no constitutionally-valid provision possibly designates possession of a sawed-off shotgun as a crime of violence. Mr. Rollins understands that the government still maintains that Application 7

14 Note 1 supplements 4B1.2 and has independent force to define possession of a sawedoff shotgun as a crime of violence, regardless of whether the residual clause survives or not. See Ct. App. R.43 at 7 8. But that is incorrect; commentary to the guidelines does not have freestanding definitional power, and can only interpret or explain the text of the guideline itself. United States v. Leshen, 453 F. App x 408, (4th Cir. 2011) (unpublished). As Raupp itself makes clear, the Sentencing Commission cannot define as crimes of violence offenses that do not qualify under the text of the guideline itself. Slip op. at 10; Raupp, 677 F.3d at 760. At the very least, the United States assumption should be tested by granting this petition and ordering the preparation of supplemental briefs. Neither party believes that the residual clause to 4B1.2 is still constitutional. Both parties agree that Tichenor no longer represents good law. Mr. Rollins should not have to serve an extended term of imprisonment because his was the only case in the country in which the United States Attorney did not confess error. Therefore, the panel should grant the petition for rehearing and order the parties to brief two questions: (1) Whether, in light of Johnson and Peugh, the residual clause to U.S.S.G. 4B1.2(a)(2) is unconstitutionally vague? 2 and (2) Whether, assuming the residual clause to U.S.S.G. 4B1.2(a)(2) is unconstitutionally vague, the Sentencing Commission can classify an offense as a crime of violence through an application note, when the offense would not otherwise qualify under the valid portions of 4B1.2(a)? 2 This issue is also pending before the Court in at least two other cases apart from Gillespie: United States v. McGuire, No (opening brief filed Aug. 28, 2015); and United States v. Hurlburt, No (opening brief filed Aug. 24, 2015). 8

15 II. The panel overlooked relevant Supreme Court authority. The rule of Stinson is clear: if an application note is inconsistent with the text of the guideline, it is not authoritative and does not receive deference. 508 U.S. at 38. In this case, the Sentencing Commission s determination that possession of a sawed-off shotgun is a crime of violence is inconsistent with the text, because such possession does not present a serious potential risk of physical injury to another. Miller, 721 F.3d at Therefore, no deference is due to the application note, contrary to the panel s conclusion. Slip op. at 12. The panel overlooked Supreme Court authority in finding that judicial interpretations of the ACCA do not tie the hands of the Sentencing Commission. Slip op. at 11. As Mr. Rollins noted, Opening Br. at 17 18, 23, in Circuit City Stores, Inc. v. Adams, the Court concluded that its interpretation of a similar residual clause was directed by the text of the statute. 532 U.S. 105, 119 (2001). After Circuit City, it would be legally incorrect for any agency to say that the residual clause there meant something other than what the Supreme Court had determined the text signified. So too here. In Miller, the Court looked to the text of 924(e) identical to the text of 4B1.2 to reach the conclusion that the text did not include possession of a sawed-off shotgun. 721 F.3d at 442 (mere possession of sawed-off shotgun doesn t present a degree or type of risk of violence comparable to burglary, arson, extortion, or crimes involving the use of explosives ). The panel overlooked that the result in Miller resulted from the text of the residual clause; it was not an arbitrary judicial interpretation subject to alternative views. The panel should grant rehearing due to the oversight. 9

16 III. The panel erred in limiting the remand for resentencing. The panel vacated the sentence and remanded to the district court for further proceedings limited only to the issue of the term of supervised release. Slip op. at 14. But in the twenty months that this matter has been pending, the Court has repeatedly indicated that an error in determining the term and conditions of supervised release requires a full remand because reconsideration... may conceivably induce [a judge] to alter the prison sentence that he imposed. United States v. Thompson, 777 F.3d 368, 382 (7th Cir. 2015). The Court has thus ordered full remands because otherwise the balance struck by the sentencing judge might be disrupted to a degree where the judge would wish to alter the prison term and/or other conditions to ensure that the [statutory sentencing factors] are appropriately furthered by the overall sentence. United States v. Kappes, 782 F.3d 828, 867 (7th Cir. 2015). See also United States v. Falor, - F.3d -, 2015 WL , at *3 (7th Cir. Sep. 1, 2015); United States v. Moore, 788 F.3d 693, 696 (7th Cir. 2015); United States v. Poke, 793 F.3d 759, 760 (7th Cir. 2015). Because of the delay between briefing and disposition in this case, the panel (and the parties) overlooked intervening authority holding that there might properly be an interplay between prison time and the term and conditions of supervised release. Kappes, 782 F.3d at 867. Mr. Rollins was subject to the standard conditions that have since been disapproved of, and the district court on remand will have to address the term of supervised release. R.54 at 3 4. In order to ensure conformity with this Court s precedent, the panel should amend its opinion and order a remand for a full resentencing hearing. 10

17 REASON FOR GRANTING REHEARING EN BANC The decision in United States v. Raupp, the primary authority relied upon by the panel, conflicts with numerous other decisions of this Court, and the full court should resolve the conflict. In the original briefing, Mr. Rollins explained the history of inconsistent decisions in this circuit addressing the interplay of the identical residual clauses of 924(e) and 4B1.2. Opening Br. at 15, 19 21; Reply Br. at 4 5. In a majority of cases, the Court has treated the residual clauses of 924(e) and 4B1.2(a)(2) identically. United States v. Woods, 576 F.3d 400, (7th Cir. 2009); see Ramirez v. United States, F.3d, 2015 WL , at *9 (7th Cir. Aug. 25, 2015) (citing cases). The Court diverged from that line of cases, however, in United States v. Raupp, 677 F.3d 756, 760 (7th Cir. 2012), in which it specifically rejected a requirement that the Court s interpretation of 924(e) mirror that of 4B1.2(a)(2). The inconsistent holdings continue. Just recently, in Ramirez, the Court noted that the Court has interpreted both residual clauses identically, and so we proceed on the assumption that the Supreme Court s reasoning [in Johnson] applies to section 4B1.2 as well WL , at *9 (internal citations omitted). Here, in contrast, the panel treated the residual clauses as distinct and determined that the offense at issue did present a serious potential risk of physical injury to another under 4B1.2(a)(2), while acknowledging that the offense did not present such a risk under the identical text of 924(e). Slip op. at Because of Raupp, the panel s decision conflicts with a decision of the Court issued only one week earlier. The Court should resolve these divergent lines of precedent. 11

18 Both Woods and Raupp were controversial decisions. In Woods, now-chief Judge Wood, writing for the Court and taking note of the identity of language between the ACCA and 4B1.1 and 4B1.2, applied Supreme Court precedent relating to the interpretation of 924(e) to the identical language in 4B1.2(a)(2). 576 F.3d at Under Circuit Rule 40(e), then-chief Judge Easterbrook authored a dissent, joined by Judges Posner and Tinder. Id. at 413. Among other concerns, the dissent noted one deficiency it perceived in the Court s opinion: the identical treatment of 924(e) (along with 18 U.S.C. 16(b)) and 4B1.2. Id. at 417. The dissent suggested that the Court should abandon its treatment of the residual clauses as identical: [W]hen the prior conviction just affects an exercise of discretion, the approach should be more flexible: when selection of the sentence is not governed by rule, why employ elaborate rules... that the district judge may elect to bypass in the end? Id. at 418. The majority of the Court, under Circuit Rule 40(e), agreed with Chief Judge Wood s opinion in Woods, and so the Woods analysis should control. 576 F.3d at 413; see United States v. Evans, 576 F.3d 766, 771 (7th Cir. 2009) (Posner, J., concurring) ( [S]ince a majority of the court has voted not to rehear Woods, I bow to its precedential force. ). But Raupp undermined that precedent. Then-Chief Judge Easterbrook, joined by Judge Posner, held that the Court had no obligation to interpret the two identical clauses identically. 677 F.3d at 760. Chief Judge Wood dissented, noting that the holding was inconsistent with a long line of cases holding that the text of 4B1.2 and the nearly identical text in the ACCA have the same meaning. 677 F.3d at 761. Unfortunately, neither party petitioned for a rehearing en banc in Raupp, so the conflicting decisions 12

19 have existed side-by-side since. That conflict proved dispositive in the instant case by foreclosing Mr. Rollins argument, supported by logic and language (and this Court s own precedent), that possession of a sawed-off shotgun does not present a serious potential risk of physical injury to another. Slip op. at 8 9. Raupp also perpetuates a line of reasoning in this Court the Guidelines are not statutes, and so should not be treated as such that has been squarely rejected by the Supreme Court. See Demaree v. United States, 459 F.3d 791, 795 (7th Cir. 2006) ( We conclude that the ex post facto clause should apply only to laws and regulations that bind rather than advise. ), abrogated by Peugh v. United States, 133 S. Ct. 2072, 2084 (2013) (holding Guidelines subject to ex post facto clause because [t]he federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing ); see also United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), and related discussion, above, pp Raupp was wrongly decided, insofar as it grants the Sentencing Commission free reign to use the commentary to supersede the text of the guideline itself. See McMillian, 777 F.3d at 450. Commentary is treated differently from guideline text in part because of the different procedures each are subject to. The Sentencing Reform Act requires the Sentencing Commission to submit to Congress amendments to the guidelines at least six months before their effective date, and provides that Congress may modify or disapprove such amendments before their effective date. 28 U.S.C. 994(p). This requirement makes the Commission fully accountable to Congress. Mistretta v. United States, 488 U.S. 361, (1989). 13

20 Congress does not review amendments to the commentary under 28 U.S.C. 994(p), however, and did not expressly authorize the issuance of commentary at all. Stinson v. United States, 508 U.S. 36, (1993). Because the guidelines are promulgated pursuant to an express delegation of rulemaking authority by Congress, the commentary is the equivalent of legislative rules adopted by [other] federal agencies. Id. at Thus, as with other agencies interpretations of their own regulations, commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline. Id. at 38. Because Congress did not expressly authorize the issuance of commentary and does not review it, commentary is valid and authoritative only if it in fact interprets or explains a guideline and is not inconsistent with that guideline. Otherwise, the Commission could issue commentary carrying the same force as a guideline with no accountability to Congress. Thus, when commentary does not interpret the text of a guideline, or is inconsistent with or a plainly erroneous reading of the text of the guideline, the commentary is invalid and must be disregarded in favor of the guideline s text. Besides, the commentary is often simply a reflection of case law and does not merit the expansive deference Raupp gives it. There is an irony to the panel s broad deference to the Sentencing Commission here; in 2004, the Commission added the provision at issue because [a] number of courts have held that possession of... a sawed-off shotgun is a crime of violence due to the serious potential risk of physical 14

21 injury to another person. U.S.S.G. App. C, amend The Commission was referring to this Court s decision in United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001), in which the court held that possession of a sawed-off shotgun constituted a crime of violence under the residual clause to 4B1.2(a)(2), because it presents a serious potential risk of physical injury to another. See 68 Fed. Reg. 75,340, 75, (Dec. 30, 2003). Of course, Brazeau has since been repudiated by this Court. Miller, 721 F.3d at The panel opinion thus defers to the Sentencing Commission s deference to a case that has been overruled. That type of absurd result, reached by the panel in this case, is the result of Raupp s extension of Stinson-deference to a level of judicial self-abnegation. Cf. United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010). The Court should take this opportunity to reexamine Raupp in order to bring it into conformity with the commonsense precedent of this Court that the texts of the residual clauses of 924(e) and 4B1.2 are identical and should be treated as such. Respectfully submitted, THOMAS W. PATTON Federal Public Defender s/ Peter W. Henderson PETER W. HENDERSON Assistant Federal Public Defender Attorneys for Defendant-Appellant, DARRYL ROLLINS 15

22 CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULES 32, 35, AND 40 AND FED. RS. APP. P. 32, 35, AND 40 The undersigned certifies that this brief complies with the volume limitations of Circuit Rules 32, 35, and 40(b), and Fed. Rs. App. P. 32, 35(b)(2), and 40(b), in that it contains 15 pages in a proportionally-spaced type. s/ Peter W. Henderson PETER W. HENDERSON Dated: September 15,

23 No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. DARRYL ROLLINS, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin Case No. 10-CR-186 Hon. Rudolph T. Randa, United States District Judge, Presiding. NOTICE OF FILING AND PROOF OF SERVICE TO: Mr. Gino Agnello, Clerk, United States Court of Appeals, 219 South Dearborn Street, Chicago, Illinois Mr. Darryl Rollins, Reg. No , USP Marion, P.O. Box 1000, Marion, Illinois Mr. Benjamin W. Proctor, Office of the United States Attorney, 517 East Wisconsin Avenue, Room 530, Milwaukee, Wisconsin PLEASE TAKE NOTICE that on September 15, 2015, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing documents by First Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier within three calendar days, to the non-cm/ecf participants. s/ Peter W. Henderson PETER W. HENDERSON Assistant Federal Public Defender 300 W. Main Street Urbana, Illinois Phone: (217)