625 Fed.Appx. 840 (10th Cir. 2015), 13-1466, United States v. Goodwin
|Citation:||625 Fed.Appx. 840|
|Opinion Judge:||JEROME A. HOLMES, Circuit Judge|
|Party Name:||UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RANDY GOODWIN, Defendant - Appellant|
|Attorney:||For United States of America, Plaintiff - Appellee: James C. Murphy, Office of the United States Attorney, District of Colorado, Denver, CO. For Randy Goodwin, Defendant - Appellant: Robert Seldis Berger, Robert S. Berger, P.C., Denver, CO.|
|Judge Panel:||Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.|
|Case Date:||September 04, 2015|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
(D.C. No. 1:12-CR-00100-MSK-1). (D. Colo.).
For United States of America, Plaintiff - Appellee: James C. Murphy, Office of the United States Attorney, District of Colorado, Denver, CO.
For Randy Goodwin, Defendant - Appellant: Robert Seldis Berger, Robert S. Berger, P.C., Denver, CO.
Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT [*]
JEROME A. HOLMES, Circuit Judge
Randy Goodwin was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1). On appeal, Mr. Goodwin contends that his sentencing range, calculated pursuant to the United States Sentencing Guidelines (" U.S.S.G." or " the Guidelines" ), was incorrectly adjusted upward because his prior conviction for first-degree criminal trespass under Colo. Rev. Stat. § 18-4-502 was not a " crime of violence" within the meaning of U.S.S.G. § 2K2.1(a)(4)(A). Exercising our jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we reverse the district court's sentencing order and remand the case with instructions to re-sentence Mr. Goodwin without the crime-of-violence enhancement.
The sole question before us is whether Mr. Goodwin's prior Colorado criminal-trespass offense constitutes a crime of violence under the so-called residual clause of U.S.S.G. § 4B1.2(a)(2), see, e.g., United States v. Duran, 696 F.3d 1089, 1091 (10th Cir. 2012) (resolving dispute involving the " residual clause" ); this Guidelines provision supplies the controlling crime-of-violence definition for U.S.S.G. § 2K2.1(a)(4)(A)--the specific Guidelines section applicable to Mr. Goodwin and under which the district court enhanced his sentence. Under this residual clause, a prior offense may qualify as a crime of violence if it " otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2).1
In its answer brief, the government--the party that bears the burden of proof regarding the enhancement, see, e.g.,
United States v. Thomas, 749 F.3d 1302, 1317 (10th Cir. 2014); United States v. Gambino-Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008)--vigorously argued that Mr. Goodwin's offense qualified as a crime of violence under § 4B1.2(a)(2)'s residual clause. However, in light of the Supreme Court's recent decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015)--which was issued after all briefing had initially concluded in this case--the government has abandoned this position.
In Johnson, the Court held that " imposing an increased sentence under the residual clause of the Armed Career Criminal Act[, or " ACCA," ] violates the Constitution's guarantee of due process." Johnson, 135 S.Ct. at 2563. More specifically, the Court explained that a " combin[ation of] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the
crime to qualify as a violent felony" rendered the ACCA's residual clause unconstitutionally void for vagueness. Id. at 2558; see also United States v. Snyder, 793 F.3d 1241, 1246 (10th Cir. 2015) (stating, in an ACCA case, " Johnson is binding on us[; ] . . . . the Court's opinion is clear that applying the residual clause violates due process in all instances" ).
The language of the ACCA's now-void residual clause is essentially...
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