United States v. Ellison

• Decision Date: 02 August 2017
• Docket Number: No. 16-1460,16-1460
• Citation: 866 F.3d 32
• Parties: UNITED STATES of America, Appellee, v. Douglas ELLISON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

866 F.3d 32

UNITED STATES of America, Appellee,

v.Douglas ELLISON, Defendant, Appellant.

No. 16-1460

United States Court of Appeals, First Circuit.

August 2, 2017

Bjorn Lange, Assistant Federal Public Defender, was on brief for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief for appellee.

Before Torruella, Thompson, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Douglas Ellison pled guilty to violating 18 U.S.C. § 2113(a), the federal bank robbery statute. In this appeal, he challenges his 10-year prison sentence. We affirm.

I.

On August 20, 2014, Ellison was indicted in the United States District Court for the District of New Hampshire on one count of violating § 2113(a). That provision reads:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—

Shall be fined under this title or imprisoned not more than twenty years, or both.

The indictment charged that Ellison "did knowingly and intentionally, by force and violence, or by intimidation , take from the person and presence of another currency belonging to and in the care, custody, control, management, and possession of the Northeast Credit Union ... [i]n violation of [ § 2113(a) ]." (emphasis added). On November 25, 2015, Ellison pled guilty to that count.

At the change-of-plea colloquy, the District Court explained the elements of the offense to which Ellison was pleading guilty. Those elements were that Ellison "intentionally took money from the Northeast Credit Union in Manchester from a bank employee," that Ellison "used intimidation or force and violence ... to obtain the money," and that "the deposits of the credit union were insured by the National Credit Union Administration." (emphasis added).

Prior to the sentencing hearing, the probation office prepared a presentence investigation report ("PSR"). The PSR calculated the sentencing range applicable to Ellison under the United States Sentencing Guidelines. According to the PSR, Ellison was, in consequence of his prior convictions, in criminal history category VI. The PSR also determined that, under the guidelines, Ellison's total offense level was 29. The PSR then calculated the applicable guidelines sentencing range for Ellison to be 151 to 188 months' imprisonment.

Ellison filed an objection to the PSR. Ellison argued that the PSR wrongly based the determination that his total offense level was 29 on a finding that he was a career offender under U.S.S.G. § 4B1.1(a). The career offender guideline provides that:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). At the time that Ellison was sentenced, the career offender guideline defined a crime of violence as follows:

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.

U.S.S.G. § 4B1.2(a) (Nov. 1, 2015).¹

The first subpart of this definition is commonly referred to as the force clause. The trailing portion of the second subpart of the definition, which follows the list of enumerated qualifying offenses, is commonly referred to as the residual clause.

Ellison argued that, because the offense for which he was convicted could be committed by "intimidation," that offense did not have as an element the "use, attempted use, or threatened use of physical force against another." Accordingly, Ellison argued that the offense for which he was convicted did not qualify as a "crime of violence" under the force clause of the definition set forth in the career offender guideline. He also contended that, after the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the residual clause of the career offender guideline is void because it is unconstitutionally vague. Thus, Ellison argued, the offense for which he was convicted did not qualify as a "crime of violence."

Without the career offender designation, Ellison further argued, his applicable total offense level would have been 21, rather than 29. And, Ellison argued, if the career offender guideline enhancement had not been applied to him, his applicable guidelines range would have been 77 to 96 months' imprisonment, rather than 151 to 188 months' imprisonment, given that Ellison did not contest the PSR's statement that his criminal history category was VI.

Ellison's sentencing hearing was held on April 18, 2016. The District Court found that, as the government had argued, the offense for which Ellison was convicted did qualify as a crime of violence under the force clause of the career offender guideline. On that basis, the District Court concluded that, as the PSR had determined, Ellison's total offense level was 29 and that the applicable guidelines range for his sentence was 151 to 188 months' imprisonment. The District Court then sentenced Ellison to a term of 120 months' imprisonment.

Ellison now appeals the District Court's determination that the offense for which he was convicted qualified as a crime of violence under the career offender guideline. Ellison raised this same legal issue below, so we review the District Court's decision de novo. United States v. Collins , 811 F.3d 63, 66 (1st Cir. 2016).

II.

To challenge his career offender designation on appeal, Ellison initially argued both that the offense for which he was convicted did not qualify under the force clause of the career offender guideline and that the residual clause of the career offender guideline is void because it is unconstitutionally vague. After he filed his appellate brief, however, the Supreme Court decided Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). There, the Court ruled that advisory guidelines are not subject to constitutional vagueness challenges. Because the career offender guideline that was applied to Ellison was advisory, Ellison no longer presses the contention that the guideline's residual clause is unconstitutionally vague. Instead, in the wake of Beckles , Ellison submitted a supplemental brief in which he argues that, notwithstanding Beckles , Johnson established that "residual clause determinations are guesswork and the [residual clause] cannot be clearly and consistently interpreted and applied," such that "it is procedural error and an abuse of discretion to calculate the guideline range based on an attempt to interpret and apply the residual clause." (citing Johnson , 135 S.Ct. at 2558-60, 2562-63 ).

We need not decide here how the residual clause in the career offender guideline applies post- Beckles . For, as we will explain, the offense for which Ellison was convicted qualifies as a "crime of violence" under the career offender guideline's force clause. Thus, for that reason, the District Court did not err in applying the career offender guideline to Ellison.

III.

The parties agree that § 2113(a) sets forth as a separate offense "by force and violence, or by intimidation, tak[ing], or attempt[ing] to take, from the person or presence of another ... any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association," and that Ellison was convicted of this offense. Accordingly, the question for us is whether this offense—violating § 2113(a) by "force and violence, or intimidation"—qualifies as a crime of violence under the force clause of the career offender guideline. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

To resolve that question, we must determine whether violating § 2113(a) by "force and violence, or intimidation" has as an element "the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a). And, as the text of the guideline indicates, we thus must examine the elements of the offense, rather than the conduct that this particular defendant engaged in committing the offense. See United States v. Ramos-González , 775 F.3d 483, 504 (1st Cir. 2015). In undertaking that elements-based review, moreover, we must determine whether the least serious conduct that the offense's elements encompass would require such a use or threatened use of physical force. For, under the "categorical approach" that we must apply, the offense qualifies as a "crime of violence" only if the least serious conduct encompassed by the elements of the offense still falls within the guideline's force clause. United States v. Armour , 840 F.3d 904, 908 (7th Cir. 2016).

Ellison contends...