United States v. Ball

• Decision Date: 30 August 2017
• Docket Number: No. 16-1526.,16-1526.
• Parties: UNITED STATES of America, Appellee, v. Lonnie BALL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

870 F.3d 1

UNITED STATES of America, Appellee,

v.Lonnie BALL, Defendant, Appellant.

No. 16-1526.

United States Court of Appeals, First Circuit.

August 30, 2017

David R. Beneman, Federal Public Defender, for Appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, and Renée M. Bunker, Assistant United States Attorney, Appellate Chief, were on brief, for Appellee.

Before Lynch, Baldock,^* and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

Defendant Lonnie Ball challenges the district court's enhancement of his sentence under the career offender guideline based on the court's determination that Ball's prior conviction for Pennsylvania second-degree robbery qualifies as a "crime of violence" as defined in § 4B1.2(a) of the U.S. Sentencing Guidelines Manual (U.S.S.G.) (U.S. Sentencing Comm'n 2015).¹ The parties, operating under the assumption that the so-called "residual clause" of the crime of violence definition was void, trained their arguments on the "force clause" of that definition. When intervening developments in the law put the residual clause back in play, we called for supplemental briefing on whether the robbery offense at issue qualifies as a crime of violence under that clause. Unpersuaded by the position Ball takes in his supplemental submission, we find that it does.

I.

On November 16, 2015, Ball pled guilty to a single-count indictment that charged him with unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(1). The U.S. Probation Office's presentence report assigned Ball a base offense level of twenty-four, citing one prior conviction that qualified as a "controlled substance offense" and a 2009 conviction for Pennsylvania second-degree robbery under 18 Pa. Cons. Stat. § 3701(a)(1)(iv) that qualified as a "crime of violence." See U.S.S.G. § 2K2.1(a)(2) (applying a base offense level of twenty-four "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense"). Ball did not dispute that he had been convicted of a controlled substance offense. He challenged, instead, the report's classification of his Pennsylvania robbery conviction as a crime of violence. Pennsylvania defines that offense as "inflict[ing] bodily injury upon another or threaten[ing] another with or intentionally put[ting] him in fear of immediate bodily injury" in the course of committing a theft. 18 Pa. Cons. Stat. § 3701(a)(1)(iv). If Ball is correct that that offense does not fit the guideline's definition of a crime of violence, then the proper base offense level for sentencing purposes would be reduced by four levels. See U.S.S.G. § 2K2.1(a)(4).

The district court ordered the parties to brief whether that robbery offense qualifies as a crime of violence, a term defined in the 2015 Guidelines Manual as

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.

Id. § 4B1.2(a). The district court also heard argument on that question during the sentencing hearing on May 5, 2016. It ultimately decided that the presentence report's designation of the robbery offense as a crime of violence was correct. The district court therefore adopted the report's total offense level of twenty-five, which reflected a base offense level of twenty-four, id. § 2K2.1(a)(2), plus four levels for an obliterated serial number on the firearm Ball possessed, id. § 2K2.1(b)(4)(B), less three levels for acceptance of responsibility, id. § 3E1.1(a)–(b). Had the district court agreed with Ball that the robbery offense did not qualify as a crime of violence, Ball's total offense level would have been twenty-one. See id. § 2K2.1(a)(4).

The total offense level of twenty-five, together with the recommended criminal history category of VI, yielded a guidelines sentencing range of 110 to 137 months, rather than the range of 77 to 96 months that would have applied using the lower total offense level of twenty-one. Id. ch. 5, pt. A (Sentencing Table). The district court lowered the top of the range from 137 to 120 months on account of the statute's ten-year maximum sentence. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Additionally, because it found that a criminal history category of VI "overrepresent[ed]" Ball's criminal history, the district court granted a departure from category VI to category V, resulting in an adjusted range of 100 to 120 months. After considering the relevant sentencing factors, the district court varied downward to impose a 96–month sentence, to be followed by three years of supervised release. Ball timely appealed.

II.

"[T]here are three ways that an offense can constitute a 'crime of violence' " under the sentencing guidelines as they stood at the time Ball was sentenced. United States v. Giggey, 551 F.3d 27, 33 (1st Cir. 2008). First, the offense can satisfy the "force clause" of the crime of violence definition because it "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)(1). Second, the offense can be one of the offenses enumerated by name in § 4B1.2(a)(2) : "burglary of a dwelling, arson, or extortion, [or an offense that] involves use of explosives." Third, the offense can satisfy what was then the last clause of § 4B1.2(a)(2) (i.e., the "residual clause") through mechanisms we describe below.²

In proceedings before the district court, the parties advanced arguments with respect to the force clause only. Their appellate briefing likewise trained on that clause. That the parties submitted no briefing on either the enumerated offenses or the residual clause is unsurprising. The government conceded that the enumerated offenses do not encompass Ball's prior offense. And both parties apparently believed that the residual clause of the career offender guideline was void based on the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which declared unconstitutionally vague the identically worded residual clause in the Armed Career Criminal Act's definition of a "violent felony," see 18 U.S.C. § 924(e)(2)(B)(ii). Johnson, 135 S.Ct. at 2557.

As it happened, on the same day we heard oral argument in this case, the Supreme Court issued its decision in Beckles v. United States, –––U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). The Court held that the advisory guidelines—those under which Ball was sentenced—"are not subject to a vagueness challenge under the Due Process Clause." Id. at 892. Beckles put the residual clause back in play. We therefore ordered supplemental briefing from the parties. Our order stated as follows:

In light of Beckles v. United States[––– U.S. ––––], 137 S.Ct. 886 (2017), and our subsequent decision in United States v. Thompson, 851 F.3d 129 (1st Cir. 2017) (per curiam), the parties are hereby ordered to file ... simultaneous supplemental briefs ... addressing the following question: Whether 18 Pa. Cons. Stat. § 3701(a)(1)(iv) qualifies as a "crime of violence" under the residual clause of the career offender guidelines, including whether 18 Pa. Cons. Stat. § 3701(a)(1)(iv) falls within the generic definition of "robbery" as enumerated in the application note. See U.S.S.G. § 4B1.2, cmt. n.1.

Having now reviewed the parties' supplemental briefs, we affirm.

III.

A.

Ball devotes the majority of his supplemental brief to contending that the government has waived reliance on the residual clause by failing to raise any such argument before the district court and by making no such argument to this court until after we invited supplemental briefing. When we called for supplemental briefing, however, we pointed the parties not only to Beckles but also to our subsequent decision in United States v. Thompson, 851 F.3d 129 (1st Cir. 2017) (per curiam). In Thompson, as here, the government had "conceded that Johnson invalidated the career offender guideline's residual clause." Id. at 131. We nonetheless held that "[w]e [we]re not bound by the government's concession, which, while understandable before Beckles, turned out to be incorrect." Id. (footnote omitted). Explaining that an appellate court is not necessarily constrained by "[a] concession by either party in a criminal case as to a legal conclusion," id. (quoting United States v. Sánchez–Berríos, 424 F.3d 65, 81 (1st Cir. 2005) ), we disregarded the government's concession because, "in light of Beckles, the proper resolution of this issue is crystal clear," id. (citing United States v. Vega–Ortiz, 425 F.3d 20, 22 (1st Cir. 2005) ). By citing Thompson in our order calling for supplemental briefing, we deliberately directed the parties to circuit precedent rejecting a government concession just like the one at issue here.

In his supplemental brief, Ball is unable to offer any reason to distinguish Thompson or its progeny. See United States v. Wurie, No. 15-1395, 867 F.3d 28, 31–32, 2017 WL 3392673, at *2 (1st Cir. Aug. 8, 2017) ; United States v. Gonsalves, 859 F.3d 95, 114 n.9 (1st Cir. 2017) ; United States v. Nieves–Borrero, 856 F.3d 5, 8 (1st Cir. 2017). This is not surprising because no sound reason is apparent. We therefore follow Thompson, rejecting the government's concession and excusing its waiver. Furthermore, because neither party seeks remand to the district court, and because the issue at hand presents a purely legal question, see United States v. Tavares, 93 F.3d 10, 16 (1st Cir. 1996) ("Were the [sentencing issue] a purely legal matter, we might be able to resolve it ourselves, without the need to...