United States v. Chappelle

• Decision Date: 21 July 2022
• Docket Number: 20-3835,August Term, 2021
• Parties: UNITED STATES of America, Appellant, v. Damon CHAPPELLE, aka D, Defendant-Appellee, Tyrone Davis, Charles Bonner, aka H, Jamil Speller, Raheem Jefferson, Zykia Speller, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

41 F.4th 102

UNITED STATES of America, Appellant,

v. Damon CHAPPELLE, aka D, Defendant-Appellee,Tyrone Davis, Charles Bonner, aka H, Jamil Speller, Raheem Jefferson, Zykia Speller, Defendants.

No. 20-3835

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: December 2, 2021

Decided: July 21, 2022

Jacob R. Fiddelman (Edward B. Diskant, Won S. Shin, on the brief), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellant.

Steven Y. Yurowitz, Newman & Greenberg LLP, New York, NY, for Defendant-Appellee.

Before: Calabresi, Chin, and Nardini, Circuit Judges.

William J. Nardini, Circuit Judge:

This appeal requires us to decide whether Hobbs Act robbery is categorically a "crime of violence" under the career offender provision of the United States Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual § 4B1.2(a) (Nov. 2018) (U.S.S.G.).¹ Joining the seven other Courts of Appeals that have considered the issue,² we conclude that it is not. That is because Hobbs Act robbery can be committed based solely on violence against property, whereas a "crime of violence" under § 4B1.2 must be based on violence against people.

Chappelle was convicted of conspiracy to commit Hobbs Act robbery. Application Note 1 to § 4B1.2 provides that, among other things, a conspiracy to commit a crime of violence is itself a crime of violence. The United States District Court for the Southern District of New York (Laura Taylor Swain, Judge ) held that it was not obligated to defer to Application Note 1 because it was inconsistent with § 4B1.2(a).³ It therefore held that Chappelle's conspiracy conviction was not a "crime of violence," calculated Chappelle's advisory Sentencing Guidelines without reference to the career offender provisions, and sentenced him to time served followed by supervised release. The Government appealed.

We need not rule upon the validity of Application Note 1 in this context because the object of Chappelle's conspiracy offense (Hobbs Act robbery) was not a crime of violence as defined by § 4B1.2. And if the object of the conspiracy is not a crime of violence, then the conspiracy itself cannot be one either (at least, not by virtue of Application Note 1). Accordingly, we AFFIRM the judgment of the district court.

I. Background

On December 18, 2013, Chappelle was charged in a three-count indictment with conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count One), conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count Two), and possession of a firearm during a crime of violence or drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three). On December 23, 2014, Chappelle pled guilty to Counts Two and Three of the indictment pursuant to a plea agreement specifying that the § 924(c) charge was predicated solely on Count Two. In the plea agreement, Chappelle stipulated that he was a career offender under § 4B1.1 and waived his right to appeal or collaterally attack any sentence of 327 months in prison or less.

Prior to Chappelle's original sentencing, the United States Probation Office calculated Chappelle's Guidelines range to be 262 to 327 months of imprisonment, just as the parties had stipulated in the plea agreement. During Chappelle's original sentencing hearing on September 21, 2015, the district court agreed and determined that (under the 2014 U.S. Sentencing Guidelines) Chappelle's conviction for Hobbs Act robbery conspiracy qualified as a crime of violence under § 4B1.2, and therefore (in conjunction with certain of Chappelle's prior convictions) triggered application of the career offender Guideline in § 4B1.1. As a career offender, Chappelle's total offense level would normally have been 29 and his criminal history category would have been VI by virtue of § 4B1.1(b) (yielding an advisory range of 151 to 188 months), but his § 924(c) conviction triggered a higher range of 262 to 327 months under § 4B1.1(c)(3). The defense did not object but requested a below-Guidelines sentence for certain reasons unrelated to Chappelle's status as a career offender. The district court sentenced Chappelle to 120 months in prison on Count Two, plus 60 months on Count Three, to run consecutively, followed by five years of supervised release. The court also granted the Government's motion to dismiss Count One of the indictment (the drug trafficking charge).

On May 18, 2020, this Court vacated Chappelle's conviction on Count Three under § 924(c) in light of our intervening decision in United States v. Barrett , 937 F.3d 126 (2d Cir. 2019), which held that conspiracy to commit Hobbs Act robbery is not a predicate crime of violence for purposes of § 924(c). We remanded the matter to the district court to determine whether to resentence Chappelle on Count Two—for Hobbs Act robbery conspiracy—in light of the vacatur of the § 924(c) conviction. On remand, the district court and the parties agreed that resentencing was appropriate.

At resentencing, the district court considered the Probation Office's updated Guidelines calculation. The Probation Office again concluded—this time under the 2018 Guidelines—that Chappelle was a career offender. Applying those Guidelines (this time without a § 924(c) conviction), the Probation Office suggested (and the Government agreed) that Chappelle's advisory Guidelines range was now 151 to 188 months, based on an offense level of 29 and a criminal history category VI.

Chappelle asserted on remand, however, that he was no longer a career offender because his conviction for Hobbs Act robbery is not a crime of violence under § 4B1.2. This argument hinged on the fact that the 2018 career offender Guideline was narrower than the 2014 version because in 2016, the residual catch-all provision had been removed.⁴ Specifically, Chappelle argued that Application Note 1, which provides that the definition of a "crime of violence" "include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses," U.S.S.G. § 4B1.2 cmt. n. 1 (2018), is now inconsistent with the Guidelines and therefore invalid. Accordingly, using the non-career offender Guidelines, Chappelle argued that his offense level should be 24 and his criminal history category should be III (based on his six criminal history points), resulting in a Guidelines range of 63 to 78 months.

During the resentencing hearing on September 9, 2020, the district court agreed with Chappelle that Application Note 1 was invalid to the extent it incorporated conspiracy offenses into § 4B1.2. The district court reasoned that, under the Supreme Court's decision in Stinson v. U.S. , 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), Application Note 1 is inconsistent with the Guideline it purports to interpret—§ 4B1.2—because it improperly expands the definition of a "crime of violence" under that section by adding certain inchoate offenses not otherwise encompassed by the definition set forth in the Guideline. Therefore, according to the district court, Application Note 1 is not entitled to the controlling weight afforded to Guidelines commentary that merely interpret or explain a Guideline provision. Accordingly, under the 2018 Guidelines, the district court determined that Chappelle was no longer a career offender. His adjusted offense level was therefore five points lower than at his original sentencing because ten points were subtracted by removing his status as a career offender, while five points were added under § 2B3.1(b)(2) because a firearm was used in connection with the offense. The district court reduced Chappelle's offense level by an additional point without objection from the parties because of a clerical error, resulting in a total offense level of 23. As a result, the district court determined that Chappelle's Guidelines range was 57 to 71 months, based on an adjusted offense level of 23 and a criminal history category III, and resentenced him principally to time served (about 82 months). The Government now appeals.

II. Discussion

On appeal, the Government argues that the district court's ruling about Application Note 1 is contrary to controlling precedent and incorrect on the merits. In response, Chappelle argues that: (1) the district court correctly held that Application Note 1 is inconsistent with the plain language of § 4B1.2(a) ; (2) the Government's argument ignores the distinction between a controlled substance offense and a crime of violence, certain Supreme Court case law, and the substantive changes to § 4B1.2(a) that occurred in 2016—after many of the cases cited by the Government; and (3) any error by the district court is harmless because substantive Hobbs Act robbery is not a "crime of violence" as that term is defined in § 4B1.2(a) and so, even assuming the applicability of Application Note 1, a conspiracy to commit that crime is not itself a crime of violence.

For the reasons discussed below, we agree with Chappelle's third argument that substantive Hobbs Act robbery is not a crime of violence as that term is currently defined under the career offender Guideline. It follows that conspiracy to commit that offense cannot be considered a crime of violence under Application Note 1. Accordingly, we need not—and do not—consider the district court's determination regarding whether Application Note 1 is consistent with § 4B1.2(a).

A. Standard of review

Appellate review of a district court's sentence "encompasses two components: procedural review and substantive review." United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc). "A district court commits procedural error" when, among other things, "it makes a mistake in its Guidelines calculation." Id. at 190. We review de novo a "district court's interpretation of the Guidelines," including "whether a particular crime is a ‘crime of violence.’ " United States v....