866 F.3d 32 (1st Cir. 2017), 16-1460, United States v. Ellison

Docket Nº:16-1460
Citation:866 F.3d 32
Opinion Judge:BARRON, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. DOUGLAS ELLISON, Defendant, Appellant
Attorney: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.
Judge Panel:Before Torruella, Thompson, and Barron, Circuit Judges.
Case Date:August 02, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

The First Circuit affirmed the ten-year prison sentence imposed by the district court for Defendant’s conviction of violating 18 U.S.C. 2113(a), the federal bank robbery statute. On appeal, Defendant challenged the district court’s determination that the offense for which he was convicted qualified as a crime of violence under the force clause of the career offender guideline. The First Circuit... (see full summary)

 
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Page 32

866 F.3d 32 (1st Cir. 2017)

UNITED STATES OF AMERICA, Appellee,

v.

DOUGLAS ELLISON, Defendant, Appellant

No. 16-1460

United States Court of Appeals, First Circuit

August 2, 2017

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Steven J. McAuliffe, U.S. District Judge.

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.

OPINION

Page 33

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

Page 34 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, 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...

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