United States v. Green
| Decision Date | 08 July 2022 |
| Docket Number | 2:04-cr-0233 |
| Parties | UNITED STATES of America, v. Clarence M. GREEN, Jr., Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Adam N. Hallowell, James R. Wilson, Brendan T. Conway, US Govt Attys, United States Attorney's Office, Pittsburgh, PA, for United States of America.
Mark R. Hornak, Chief United States District Judge Sentencing in a criminal case is the most weighty and significant obligation of a federal trial court. The interests and issues involved are at the highest levels of importance and consequence. And many times, they implicate complex and convoluted questions of law.
This particular case involves several just such intricate questions, which the Court is obligated to consider and untangle in turn. To begin with, the Court must apply the nuanced and at times confounding1 "categorical approach" to determine whether the advisory "career offender" provisions of the federal Sentencing Guidelines apply to the Defendant in this case. But the Court's application of the categorical approach is further complicated here by the question of whether a decades-old precedential panel opinion of our Court of Appeals remains "good law" in the face of a more recent en banc decision of that same court that substantially reworked when and how a federal sentencing court is to consider the application notes—or "commentary"—to the Sentencing Guidelines. That later en banc decision appears to have knocked the proverbial pins out from under the prior panel opinion's reasoning—reasoning which already appeared for other reasons to run counter to a string of Supreme Court and Third Circuit decisions before and after that fall squarely on the same topic.
The defendant in this case, Clarence M. Green, Jr., was sentenced in 2006 to 300 months’ imprisonment for drug- and firearm-related offenses. (ECF No. 112.) In July of 2020, this Court determined that a portion of Mr. Green's sentence, specifically that part which related to an Armed Career Criminal Act ("ACCA") enhancement, was unconstitutional in light of Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and United States v. Mayo , 901 F.3d 218 (3d Cir. 2018). This Court granted Mr. Green's petition under 28 U.S.C. § 2255, vacated his sentence at Count 4, and determined that Mr. Green was entitled to a full resentencing hearing. (ECF Nos. 308–09.)
The Court then ordered an updated Presentence Investigation Report ("PSR") from the Probation Office, which was submitted in September of 2020 (ECF No. 316, "PSR Revisions"). The Government objected to the Probation Office's conclusion in the PSR Revisions that Mr. Green no longer qualified as a "career offender" under United States Sentencing Guidelines ("U.S.S.G.") §§ 4B1.1 and 4B1.2. (ECF No. 320.) The Parties submitted briefing on the matter, and then additional rounds of briefing regarding intervening developments at the Third Circuit and United States Supreme Court—namely, the decisions in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), and United States v. Nasir , 982 F.3d 144 (3d Cir. 2020),2 as well as developments on the Third Circuit's docket in United States v. Harris , No. 17-1861 (3d Cir. appeal docketed Apr. 18, 2017). (See ECF Nos. 318, 320, 322–23, 332–33, 335–37, 341.)
The Court has considered the thorough and reasoned filings of the parties and concludes that Mr. Green remains a "career offender" under the advisory Sentencing Guidelines. The Court's ultimate conclusion is consistent with that reached in a prior Third Circuit precedential panel opinion, United States v. McQuilkin , 97 F.3d 723 (3d Cir. 1996), which held that the same Pennsylvania aggravated assault provision at issue in this case, 18 Pa. Cons. Stat. § 2702(a)(1), constitutes a "crime of violence" under U.S.S.G. § 4B1.2. McQuilkin's holding is directly on point, and as a precedential opinion of our Court of Appeals, it is presumed to be binding on this Court unless overruled by that Court sitting en banc or by the Supreme Court. See Jakomas v. City of Pittsburgh , 342 F. Supp. 3d 632, 647 (W.D. Pa. 2018).
But as discussed below, while the holding of McQuilkin has never been explicitly overruled (at least not by name) by an en banc panel of the Court of Appeals or by the Supreme Court, this Court concludes that its reasoning has been so undermined by subsequent decisions of the Third Circuit, including most critically by its en banc decision in Nasir and the precedential panel opinion in United States v. Adair , 38 F.4th 341 (3d Cir. 2022), as well as by decisions of the Supreme Court, that it would be improvident to truncate this Court's analysis of the issues presented by the parties and rely on McQuilkin alone in deciding this case. Given the gravity of the matters involved and the high if not inevitable likelihood of an appeal by the disappointed party in this case, all coupled with the apparent sea change in the consideration of the application notes to the Sentencing Guidelines that was wrought by the Nasir decision as clarified by Adair , this Court has conducted anew a "categorical approach" analysis, in line with the methodology as it is currently prescribed by the Supreme Court and by the Third Circuit. Ultimately, this Court reaches the same result under that categorical approach analysis as was reached in McQuilkin —that is, that § 2702(a)(1) constitutes a "crime of violence" under U.S.S.G § 4B1.2.
Following a jury trial in December of 2005, Mr. Green was found guilty of six (6) federal drug and firearms charges. (ECF No. 85.) In February of 2006, the Probation Office submitted a Presentence Investigation Report (PSR) classifying Mr. Green as a career offender under § 4B1.1 of the United States Sentencing Guidelines. Under U.S.S.G. § 4B1.1, a defendant is a career offender subject to a sentencing enhancement if the defendant was at least age eighteen at the time of the offense of conviction; the offense of conviction is a felony that is either a "crime of violence" or "controlled substance offense"; and the defendant has at least two prior felony convictions of either a "crime of violence" or of a qualifying controlled substance offense, both of which are defined in U.S.S.G. § 4B1.2.
Mr. Green's initial designation as a career offender under § 4B1.1 was based on one qualifying controlled substance offense—a 2002 conviction for delivery of cocaine (CC No. 200105010)—and one crime of violence—a 1989 conviction for aggravated assault involving an incident in which Mr. Green shot a victim in the thigh at close range after a verbal altercation (CC No. 198612106). (PSR ¶¶ 31, 32, 36.)3 The aggravated assault conviction was pursuant to 18 Pa. Cons, Stat. § 2702(a)(1). The PSR determined that these two prior felony convictions met the requirements of § 4B1.1 and concluded that Mr. Green should therefore be classified as a career offender, elevating his criminal history from category III to category VI. (PSR ¶¶ 23, 35–36.)4 The PSR also determined that Mr. Green qualified as a statutory "armed career criminal" offender under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and U.S.S.G. § 4B1.4, based on the same convictions as well as a felony conviction for delivery of cocaine from 1983 (CC No. 198209971). (Id. ¶ 23.)5 The Sentencing Guidelines advised a sentence of 360 months to life, (see ECF No. 109, at 4), and the sentencing judge imposed a term of imprisonment of 300 months on June 23, 2006, (ECF No. 110).6
Since then, this case has proceeded in a series of fits and starts that have been dictated by the changing legal landscape concerning ACCA and the rules defining career offender status under the Guidelines, along with corresponding needs to stay proceedings. Those changes to the legal landscape and the corresponding stays are outlined in detail in this Court's prior Opinion of July 2020, granting Mr. Green's Motion to Correct Sentence Under 28 U.S.C. § 2255 ("Motion to Vacate") and ordering resentencing. (See ECF No. 308, at 3–5.) For the purposes of the instant dispute, the Court will summarize the key legal developments involved here, beginning with some foundational terminology.
At the time Mr. Green was sentenced in 2006, there were, broadly defined, three avenues to classify a given crime as a "violent felony" (under ACCA) or "crime of violence" (under the career offender Guidelines) such that it would qualify as a predicate offense under those respective provisions. See 18 U.S.C. § 924(e)(2)(B) (2000) ; U.S.S.G. § 4B1.2(a) (2005).7 The first avenue is commonly called the "use of force" or "elements" clause; it includes felony offenses having "as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i) (2000) ; U.S.S.G. § 4B1.2(a)(1) (2005). The second is the "enumerated offense" clause, which lists certain specific crimes, such as arson, which if committed in their "generic form" constitute predicate violent offenses. 18 U.S.C. § 924(e)(2)(B)(ii) (2000) ; U.S.S.G. § 4B1.2(a)(2) (2005). The third is the "residual" clause, which covers other crimes "involv[ing] conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) (2000) ; U.S.S.G. § 4B1.2(a)(2) (2005). The contours of both the elements and residual clauses have shifted considerably since Mr. Green's original sentencing.
To begin with, in 2015, the Supreme Court ruled in Johnson v. United States that the residual clause of ACCA is unconstitutionally vague. 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Mr. Green filed his Motion to Vacate (ECF No. 247) in June of 2016, arguing that Johnson called into question both his designation as an "armed career criminal" under ACCA and U.S.S.G. § 4B1.4, as well as his status as a "career offender" under U.S.S.G. § 4B1.1, which at that time referenced an identical "residual"...
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