United States v. Fallin
| Decision Date | 14 July 2022 |
| Docket Number | 20-7702 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERICK FALLIN, a/k/a Black, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Shawn Hogbin, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW, Morgantown West Virginia, for Appellant.
Jonathan Scott Tsuei, OFFICE OF THE UNITED STATES ATTORNEY Greenbelt, Maryland, for Appellee.
ON BRIEF:
Lawrence D. Rosenberg, Washington, D.C., Stephen C. Scott, JONES DAY, Pittsburgh, Pennsylvania, for Appellant.
Erek L. Barron, United States Attorney, Baltimore, Maryland, David I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Unpublished opinions are not binding precedent in this circuit.
Derick Fallin challenges his designation as a career criminal offender on the theory that United States v. Davis, 139 S.Ct. 2319 (2019), invalidated the residual clause of the United States Sentencing Guidelines (U.S.S.G) ("Sentencing Guidelines"), § 4B1.2(a)(2). Because the Supreme Court, in Beckles v. United States, 137 S.Ct. 886 (2017), held that § 4B1.2(a)(2) is not subject to a same constitutional Due Process Clause challenge as the one raised in Davis, Fallin's argument is foreclosed. Moreover, because Fallin has not articulated an alternative basis for challenging the constitutionality of the § 4B1.2(a)(2)'s residual clause, his petition is denied. Accordingly, the district court's judgment is affirmed.
From the mid-1990s until the late-2000s, Fallin, along with his co-conspirators, operated a large drug trafficking organization which distributed large quantities of heroin, cocaine, and marijuana. In 2008, Fallin learned that Wayne England and Calvin Sanders robbed approximately $250,000 from one of Fallin's stash houses. As a result, Fallin conspired to murder England and Sanders and placed bounties on them. Though members of Fallin's drug organization tried to kill England and Sanders, they failed. Later, police officers discovered that one of the victims was found to be shot fifteen times but survived.
On June 28, 2011, Fallin was named in an eleven-count indictment charging him with multiple drug, racketeering, and conspiracy offenses. On May 22, 2012, Fallin pled guilty to Conspiracy to Participate in Racketeering Enterprise, in violation of 18 U.S.C. § 1962(d) (Count One), and Conspiracy to Commit Murder, in violation of 18 U.S.C. § 1959 (a)(5) (Count Two). On August 20, 2012, the district court designated Fallin a career offender and calculated his final offense level as 36 and criminal history of VI. Fallin's advisory Sentencing Guideline range was 324 to 405 months. In all, the district court sentenced Fallin to a total term of 180 months' imprisonment, consisting of 180 months on Count One and 120 months on Count Two, to run concurrently. Fallin did not directly appeal his sentence.
Later, Fallin filed several Motions to Vacate under 28 U.S.C. § 2255, but they were all voluntarily withdrawn or dismissed.[1] Most recently, and at issue in this appeal, on June 1, 2020, Fallin filed a § 2255 motion alleging that (1) his designation as a career offender was improper because his conspiracy offenses no longer qualify as "crimes of violence" or "controlled substance offenses" in light of Davis, and (2) that the district court erred in calculating his points-based criminal history score and category in light of the "Recency 2 pt. provision being removed and the career offender status being invalidate[d]." J.A. 106-10. On October 26, 2020, the district court denied Fallin's motion on grounds that Davis does not impact Fallin's convictions because his career offender designation "is not subject to the Due Process vagueness challenge he advances." J.A. 130.
Fallin timely appealed and we review the district court's denial of his § 2255 motion de novo. United States v. Jones, 914 F.3d. 893, 899 (4th Cir. 2019).[2]
We begin with a discussion of the residual clauses found in the Sentencing Guidelines and those in the in the criminal code, which the Supreme Court has invalidated.
Pursuant to U.S.S.G. § 4B1.1 (the "Career Offender Guideline"), 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. At the time that Fallin was sentenced in 2012, "crime of violence" was defined as:
U.S.S.G. § 4B1.2(a) (2012) (emphasis added). The clause beginning with "or otherwise" is known as the residual clause.
The Armed Career Criminal Act of 1984 ("ACCA") also contains a similarly worded residual clause and applies a fifteen-year mandatory minimum sentence for a defendant convicted of possession of a firearm after three prior convictions "for a violent felony or a serious drug offense or both." 18 U.S.C. § 924(e)(1). The ACCA defined a violent felony as:
18 U.S.C. § 924(e)(2)(B) (emphasis added). On June 26, 2015, the Supreme Court held that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." United States v. Johnson, 576 U.S. 591, 606 (2015). The Supreme Court reasoned that § 924(e)(2)(B) required judges to imagine the kind of conduct that would qualify under the residual clause in a typical case. Id. at 597. This process, however, was untethered to actual elements or facts of the defendant's case and lead to unpredictable results. Accordingly, the residual clause violated the Due Process Clause which prohibits the government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Id.
Then, in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), the Supreme Court also invalidated the similarly worded residual clause found in 18 U.S.C. § 16 because it was unconstitutionally vague as it required judges to use a categorical approach that obligated them to "'imagine' an 'idealized ordinary case of the crime'-or otherwise put, the court had to identify the 'kind of conduct the ordinary case of a crime involves.'" Dimaya, 138 S.Ct. at 1213-14 ().[3] As noted by the Supreme Court in Johnson, and adopted by Dimaya, these residual clauses required judges to use a categorical approach that "combin[ed] 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, [which, thus...] produce[s] more unpredictability and arbitrariness than the Due Process Clause tolerates." Johnson, 576 U.S. at 598. Such "unpredictability and arbitrariness," implicates the "twin constitutional pillars of due process and separation of powers." Davis, 139 S.Ct. at 2325.
After Johnson and Dimaya, we held that a similarly worded residual clause in § 924(c)(3)(B) was also unconstitutionally vague and violated the Due Process Clause. United States v. Simms, 914 F.3d 229, 236 (4th Cir. 2019). Then, in United States v. Davis the Supreme Court, agreed with Simms, and held that the similarly worded residual clause of § 924(c)(3)(B) was unconstitutionally vague. 139 S.Ct. at 2336. Consistent with Johnson and Dimaya, Davis clarified that the residual clause in § 924(c)(3)(B) was also unconstitutionally vague because it required judges to use a categorical approach to determine whether a petitioner's offense qualified as a violent felony or crime of violence. See Davis, 139 S.Ct. at 2329. To save § 924(c)(3)(B)'s residual clause from being stricken down as unconstitutionally vague, the Government offered a case-specific approach that asked judges to examine the defendant's actual conduct in the predicate offense. However, the Supreme Court rejected this approach because § 924(c)(3)(B)'s residual clause was "nearly identical" to the one found in § 924(e)(2)(B) and § 16(b), which Johnson and Dimaya found as unconstitutionally vague because it undoubtably...
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