No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT UNITED STATES SUPPLEMENTAL BRIEF

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1 Appellate Case: Document: Date Filed: 08/21/2015 Page: 1 No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT UNITED STATES OF AMERICA, v. Plaintiff-Appellee, RANDY GOODWIN, Defendant-Appellant. UNITED STATES SUPPLEMENTAL BRIEF ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO The Honorable Marcia S. Krieger, Chief Judge D.C. No. 12-cr-100-MSK JOHN F. WALSH United States Attorney JAMES C. MURPHY Assistant U.S. Attorney th Street, Suite 700 Denver, CO (303) Attorneys for Plaintiff-Appellee United States of America August 21, 2015

2 Appellate Case: Document: Date Filed: 08/21/2015 Page: 2 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES... II SNYPOSIS... 1 ISSUE... 1 CASE STATEMENT... 1 ARGUMENT... 2 MR. GOODWIN SHOULD BE RESENTENCED... 2 A. The Issue Below... 3 B. Standard of Review... 4 C. The Residual Clause of the Sentencing Guidelines Is Unconstitutionally Vague; Mr. Goodwin s Prior Conviction Is Not Otherwise A Crime of Violence Under USSG 4B D. Mr. Goodwin s Case Should Be Remanded For Resentencing... 9 CONCLUSION CERTIFICATE OF DIGITAL SUBMISSION CERTIFICATE OF SERVICE i

3 Appellate Case: Document: Date Filed: 08/21/2015 Page: 3 TABLE OF AUTHORITIES FEDERAL CASES ii Page No. Griffith v. Kentucky, 479 U.S. 314 (1987)...3 Henderson v. United States, 133 S. Ct (2013)... 3, 4 Johnson v. United States, 135 S. Ct (June 26, 2015)... 1, 2, 3 Peugh v. United States, 133 S. Ct (2013)...9 Taylor v. United States, 495 U.S. 575 (1990)...6 United States v. Armijo, 651 F.3d 1226 (10thCir.2011)... 6, 8 United States v. Charles, 576 F.3d 1060 (10th Cir.2009)...8 United States v. Darden, 605 Fed.Appx. 545 (6th Cir.2015)(unpublished)...9 United States v. Dennis, 551 F.3d 986 (10th Cir.2008)...8 United States v. Dewberry, 790 F.3d 1022 (10th Cir. 2015) United States v. Harbin, Fed.Appx., 2015 WL (6th Cir.2015) (unpublished)...9 United States v. Huizar, 688 F.3d 1193 (10th Cir.2012)... 6, 7, 9

4 Appellate Case: Document: Date Filed: 08/21/2015 Page: 4 United States v. Kelly, 1 F.3d 1137 (10th Cir.1993)...8 United States v. Olano, 507 U.S. 725 (1993)...4 United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir.2009)... 7, 8 United States v. Snyder, F.3d, 2015 WL (10th Cir. July 20, 2015)...9 United States v. Thomas, 643 F.3d 802 (10th Cir.2011)...8 United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)...8 United States v. Todd, 515 F.3d 1128 (10th Cir.2008)...9 United States v. Venegas-Ornelas, 348 F.3d 1273 (10th Cir.2003)... 3, 6 United States v. Williams, 559 F.3d 1143 (10th Cir.2009)...8 FEDERAL STATUTES, RULES & GUIDELINES 18 U.S.C. 16(b) U.S.C. 922(g)(1) U.S.C. 924(e) U.S.C. 924(e)(2)(B) U.S.C. 924(e)(2)(B)(ii)...2 iii

5 Appellate Case: Document: Date Filed: 08/21/2015 Page: 5 21 U.S.C. 841(a)(1) U.S.C. 841(b)(1)(C)...1 Fed.R.Crim.P. 52(b)...4 USSG 2K2.1(a)(4) USSG 2K2.1(a)(4)(A)... 2, 3 USSG 2K2.1(a)(6) USSG 4B , 8, 9 USSG 4B1.2(a)...5 USSG 4B1.2(a)(2)... 6, 7, 9 USSG 5K USSG 5K STATE STATUTES Colo.Rev.Stat.Ann , 5, 6 iv

6 Appellate Case: Document: Date Filed: 08/21/2015 Page: 6 SNYPOSIS In Johnson v. United States, 135 S.Ct (June 26, 2015), the Supreme Court held that the residual clause of the Armed Career Criminal Act of 1984 [ACCA] is unconstitutionally vague. Mr. Goodwin s sentence was enhanced below based upon a prior conviction which the government had maintained was a crime of violence under the residual clause of the United States Sentencing Guidelines. The Guidelines residual clause is identical to that of the ACCA. And in past cases, this court has consistently applied ACCA analysis to the Guidelines. The United States thus concedes that the reasoning of Johnson requires that Mr. Goodwin s sentence be vacated. Because findings will need to be made regarding the correct sentencing range, the case should be remanded for resentencing. ISSUE Whether Johnson v. United States requires that Mr. Goodwin be resentenced. CASE STATEMENT Mr. Goodwin entered guilty pleas, in the District of Colorado, to being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1), and to distribution of less than 5 grams of methamphetamine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(c). Vol. 1 at 56. His sentence was increased, over his objection, when the district court found he had a prior felony conviction 1

7 Appellate Case: Document: Date Filed: 08/21/2015 Page: 7 for a crime of violence: First Degree Criminal Trespass, in violation of C.R.S See Vol. 4 at 72; USSG 2K2.1(a)(4)(A). The district court sentenced Mr. Goodwin to concurrent terms of 99 months imprisonment on each count. Vol. 4 at 75. Mr. Goodwin appealed, claiming that his prior conviction should not have been deemed a crime of violence under the Sentencing Guidelines. This court heard argument on September 30, On June 26, 2015, the Supreme Court issued its decision in Johnson v. United States, holding that the residual clause of the of the Armed Career Criminal Act of 1984 [ACCA] is unconstitutionally vague. This court has ordered supplemental briefing on the impact, if any, of Johnson on Mr. Goodwin s appeal. ARGUMENT MR. GOODWIN SHOULD BE RESENTENCED In Johnson, the Court examined 18 U.S.C. 924(e)(2)(B)(ii). This portion of the ACCA contains enumerated offenses which Congress defines as violent felonies. What follows is the residual clause, which includes within the definition of a violent felony any crime punishable by imprisonment for a term exceeding one year, that otherwise involves conduct that presents a serious potential risk of physical injury to another Overruling its prior 1 An offense may still qualify as a violent felony under 924(e)(2)(B) if the offense is enumerated or contains an element of physical force used, 2

8 Appellate Case: Document: Date Filed: 08/21/2015 Page: 8 case law, the Court held that two features of the residual clause render it unconstitutionally vague. First, the residual clause requires judges to assess risk based upon an imagined ordinary case of the offense in question, rather than upon real-world facts or statutory elements. 135 S.Ct. at Second, the residual clause leaves too much uncertainty surrounding the degree of risk an offense must pose to qualify as a violent felony. Id. at Johnson applies to cases pending on direct appeal at the time of the decision. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987); Henderson v. United States, 133 S.Ct. 1121, 1126 (2013). A. The Issue Below Mr. Goodwin s sentence was not enhanced under the ACCA, but under the Sentencing Guidelines, on the ground that he committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.... See USSG 2K2.1(a)(4)(A). Following the recommendation of the presentence report, vol. 3 at 42, the district court concluded that Mr. Goodwin s prior conviction for residential criminal trespass was a crime of violence. Vol. 4 at 72. The district court relied in part upon this court s decision in United States v. Venegas- Ornelas, 348 F.3d 1273 (10th Cir.2003), where the court held this offense to attempted, or threatened, against the person of another. Johnson does not affect these provisions of the statute. 135 S.Ct. at

9 Appellate Case: Document: Date Filed: 08/21/2015 Page: 9 be a crime of violence under 18 U.S.C. 16(b). 2 The briefing in this appeal has heretofore focused upon whether the offense in question is also a crime of violence under the Guidelines. B. Standard of Review Although Mr. Goodwin argued below that his criminal trespass conviction was not a crime of violence, vol. 4 at 64, he did not argue that the Guidelines residual clause was unconstitutionally vague. Hence, review is for plain error. See Fed.R.Crim.P. 52(b). Plain error review requires a defendant to show: (1) an error, (2) that is plain (at the time of review), and (3) that affects a defendant s substantial rights. If these elements are satisfied, this court has discretion to correct the error if failure to do so would seriously affect the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, (1993). Even when, as here, a new rule of law is issued while a case is pending on appeal, Rule 52(b) does not give a court of appeals authority to overlook a failure to object unless an error affects the defendant s substantial rights and also seriously affects the fairness, integrity or public reputation of the judicial proceedings. Henderson v. United States, 133 S.Ct. 1121, 1126 (2013). 2 The language of 16(b) differs from the residual clauses of the ACCA and USSG, and the United States maintains that Johnson s holding has no direct application to 16(b). But that issue is not before this court. 4

10 Appellate Case: Document: Date Filed: 08/21/2015 Page: 10 The United States concedes, in light of Johnson, that Mr. Goodwin s criminal trespass conviction may no longer be deemed a crime of violence, i.e., that there is error and that the error is plain. Given the manner in which the sentence was computed, the United States also concedes that this error affected Mr. Goodwin s substantial rights and that failure to correct the error would seriously affect the fairness of these proceedings. C. The Residual Clause of the Sentencing Guidelines Is Unconstitutionally Vague; Mr. Goodwin s Prior Conviction Is Not Otherwise A Crime of Violence Under USSG 4B1.2. Section 2K2.1, Application note 1, provides that the term crime of violence has the meaning given it at USSG 4B1.2(a). Section 4B1.2 states: (a) The term crime of violence means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Mr. Goodwin s prior conviction is for first degree criminal trespass, under Colo.Rev.Stat.Ann , which provides: A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another or if such person enters any motor vehicle with intent to commit a crime therein. First degree criminal trespass is a class 5 felony. 5

11 Appellate Case: Document: Date Filed: 08/21/2015 Page: 11 Examining the statute in Venegas-Ornelas, this court observed: Because this statute reaches two different types of conduct by governing both entry or remaining in an automobile and entry or remaining in a dwelling, we can look to Defendant s charging papers to discern which section he was convicted under. Id. at See also United States v. Huizar, 688 F.3d 1193, 1194 (10th Cir.2012) (applying modified categorical approach in attempting to determine if defendant was convicted of burglary of a dwelling); United States v. Armijo, 651 F.3d 1226, 1230 (10thCir.2011) (applying modified categorical approach to determine if predicate felony was a crime of violence under Guidelines). Below, Mr. Goodwin plead guilty to an Information that charged he did unlawfully, feloniously and knowingly enter and remain in the dwelling of [name and address omitted]. See vol. 3 at 76, 86. The question then becomes whether this offense is a crime of violence. The statute in question does not contain an element involving the use, attempted use, or threatened use of physical force against the person of another. Hence, if the offense is to be deemed a crime of violence it must fall under the enumerated offenses or the residual clause of 4B1.2(a)(2). As to enumerated offenses, the only candidate here is burglary of a dwelling. In Taylor v. United States, 495 U.S. 575 (1990), the Court found that labels imposed by the states are not controlling, and that generic 6

12 Appellate Case: Document: Date Filed: 08/21/2015 Page: 12 burglary, for purposes of a sentence enhancement under 18 U.S.C. 924(e), requires the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Id. at 599 (emphasis added). Applying Taylor to sentence enhancements under the Guidelines, this court has acknowledged Taylor s definition and has further held that burglary of a dwelling includes burglary of any enclosed space that is used or intended for use as a human habitation. United States v. Rivera- Oros, 590 F.3d 1123, 1127, 1132 (10th Cir.2009). Mr. Goodwin s plea shows his offense was indeed committed in the dwelling of another. The plea papers also show that he knowingly and unlawfully entered and remained in that dwelling. However the statute does not require that an offender enter or remain in a dwelling with intent to commit a crime. Hence, the criminal trespass statute under consideration is not generic burglary as defined by the Supreme Court, and correspondingly, is not burglary of a dwelling under USSG 4B1.2(a)(2). See also United States v. Huizar, 688 F.3d at 1194 (considering Taylor s applicability to guideline enhancement for burglary of a dwelling). Hence, Mr. Goodwin s criminal trespass conviction may be classed as a crime of violence only if the Guidelines residual clause survives scrutiny. The United States maintains it does not. The language of the Guideline s residual clause is identical to ACCA s residual clause. And in numerous cases, this 7

13 Appellate Case: Document: Date Filed: 08/21/2015 Page: 13 court has observed that 4B1.2 is patterned after 924(e)(2)(B). See, e.g., United States v. Rivera-Oros, 590 F.3d at 1129; United States v. Armijo, 651 F.3d at 1231 n.3. 3 Understandably, this court has further concluded that the Supreme Court s analysis under the ACCA applies equally to the Sentencing Guidelines. See, e.g., United States v. Thomas, 643 F.3d 802, 805 (10th Cir.2011); United States v. Charles, 576 F.3d 1060, 1068 n. 2 (10th Cir.2009); United States v. Williams, 559 F.3d 1143, 1147 n. 7 (10th Cir.2009); United States v. Dennis, 551 F.3d 986, (10th Cir.2008). These holdings suggest that Johnson s reasoning also applies equally to the Guidelines. Given the identical language, the Guidelines residual clause necessarily suffers the same short-comings as the ACCA s residual clause in failing to provide adequate guidance to judges in assessing the risks posed by prior convictions. Although a few courts have held that advisory sentencing guidelines are not subject to constitutional vagueness challenges, see, e.g., United States v. Tichenor, 683 F.3d 358, 362 (7th Cir. 2012), this court is not one of them. Cf. United States v. Kelly, 1 F.3d 1137, (10th Cir.1993) (considering and rejecting vagueness challenge, pre-booker, to USSG 5K2.8). In any event, the reasoning of cases such as Tichenor appears to be at 3 As already discussed, the one exception, acknowledged by the court in Rivera-Oros, is ACCA s enumerated offense of burglary. In the Guidelines, the offense is stated as burglary of a dwelling. 8

14 Appellate Case: Document: Date Filed: 08/21/2015 Page: 14 odds with both Johnson and Peugh v. United States, 133 S.Ct. 2072, 2083 (2013) (Ex Post Facto Clause applies to advisory sentencing guidelines). Although this court has not yet considered Johnson s application to the Guidelines, the court recently acknowledged Johnson in United States v. Snyder, -- F.3d --, 2015 WL (10th Cir. July 20, 2015), where the court vacated a sentence imposed under the ACCA s residual clause and remanded for resentencing. The Sixth Circuit, in two per curiam orders, has held that Johnson applies to sentences imposed under USSG 4B1.2, and has vacated the sentences and remanded for reconsideration. United States v. Darden, 605 Fed.Appx. 545 (6th Cir.2015)(unpublished); United States v. Harbin, Fed.Appx., 2015 WL (6th Cir.2015) (unpublished). The United States thus concedes that the residual clause of the Sentencing Guidelines, contained at 4B1.2(a)(2), is unconstitutionally vague and may not serve as a basis for enhancing Mr. Goodwin s sentence. D. Mr. Goodwin s Case Should Be Remanded For Resentencing When an error exists in imposing sentence, remand is necessary unless this court determines the error did not affect the sentence imposed, or it is clear what sentence the court would impose on remand. United States v. Huizar, 688 F.3d at 1197; United States v. Todd, 515 F.3d 1128, (10th Cir.2008). The United States concedes that remand is necessary. 9

15 Appellate Case: Document: Date Filed: 08/21/2015 Page: 15 Mr. Goodwin was convicted of two counts and sentenced to 99 months imprisonment on each count, imposed to run concurrently. Vol. 4 at 75. The prior conviction for criminal trespass apparently added 6 points to the base offense level. Cf. USSG 2K2.1(a)(4) & (a)(6);vol. 3 at 42. With the conviction, the sentencing court found the total offense level to be 25, the criminal history category to be VI, and the advisory imprisonment range to be months. 4 The district court did not find what the offense level would have been without the prior conviction, but it appears that the total offense level would be 19, which in criminal history category VI, yields an advisory imprisonment range of months. The sentence imposed below also reflects a departure below the advisory range: the district court s discretionary grant of a government motion under USSG 5K1.1. In some cases, the imposition of a concurrent sentence, which is unaffected by the sentencing error, may avoid the need for remand. See, e.g., United States v. Dewberry, 790 F.3d 1022, (10th Cir. 2015) (discussing but declining to apply concurrent-sentence doctrine). That is not the case here. The two counts of conviction formed a single group for sentencing, see vol. 3 at 42, 16, and the sentencing range found by the court below for each count was affected by the error. See vol. 4 at Without 4 As to count 1, the advisory range was limited by the statutory maximum to months. 10

16 Appellate Case: Document: Date Filed: 08/21/2015 Page: 16 the prior conviction, the sentencing range for count two would also likely be months imprisonment. Ultimately, these matters can be determined only by additional findings, which need to be made in the first instance by the sentencing court. CONCLUSION Mr. Goodwin s case should be remanded for resentencing. Respectfully Submitted, John F. Walsh United States Attorney s/ James C. Murphy James C. Murphy Assistant U.S. Attorney th Street, Suite 700 Denver, Colorado (303) USACO.ECFAppellate@usdoj.gov; James.Murphy3@usdoj.gov 11

17 Appellate Case: Document: Date Filed: 08/21/2015 Page: 17 CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1) all required privacy redactions have been made; (2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3) The digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, TREND MICRO Office Scan for Windows, Version , Engine Version , Virus Pattern File , dated 8/20/15, and according to the program are free of viruses. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. s/ Ma-Linda La-Follette Ma-Linda La-Follette U.S. Attorney s Office CERTIFICATE OF SERVICE I hereby certify that on August 21, 2015, I electronically filed the foregoing UNITED STATES SUPPLEMENTAL BRIEF, using the CM/ECF system, which will send notification of such filing to the following address: Robert Seldis Berger robberger@qwestoffice.net s/ Ma-Linda La-Follette Ma-Linda La-Follette U.S. Attorney s Office 12

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