United States v. Hurlburt

• Decision Date: 29 August 2016
• Docket Number: No. 15–1686,No. 14–3611,14–3611
• Citation: 835 F.3d 715
• Parties: United States of America, Plaintiff–Appellee, v. Tony A. Hurlburt, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Joshua Gillespie, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

835 F.3d 715

United States of America, Plaintiff–Appellee,

v.Tony A. Hurlburt, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Joshua Gillespie, Defendant–Appellant.

No. 14–3611

No. 15–1686

United States Court of Appeals, Seventh Circuit.

Argued December 2, 2015

Decided August 29, 2016

Elizabeth Altman, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff–Appellee.

Kelly A. Welsh, Shelley M. Fite, Attorneys, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendants–Appellants.

Before Wood, Chief Judge, and Posner, Flaum, Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

Sykes

, Circuit Judge.

Tony Hurlburt and Joshua Gillespie pleaded guilty in separate cases to unlawfully possessing a firearm as a felon. See18 U.S.C. § 922(g)(1)

. Their appeals raise the same legal issue, so we've consolidated them for decision. To calculate the Sentencing Guidelines range in each case, the district court began with U.S.S.G. § 2K2.1(a), which assigns progressively higher offense levels if the defendant has one or more prior convictions for a “crime of violence.” The term “crime of violence” is defined in the career-offender guideline and includes “any offense ... that ... 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)(2) (2014) (emphasis added). The highlighted text is known as the “residual clause.”

The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g)

violations. 18 U.S.C. § 924(e)(2)(B). One year ago the Supreme Court invalidated the ACCA's residual clause as unconstitutionally vague. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). The question here is whether Johnson 's holding applies to the parallel residual clause in the career-offender guideline. An emerging consensus of the circuits holds that it does. See

infra pp. 724 – 25.

In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent—namely, United States v. Tichenor , 683 F.3d 358, 364–65 (7th Cir. 2012)

—holds that the Guidelines are not susceptible to challenge on vagueness grounds. But Tichenor was decided before Johnson and Peugh v. United States , ––– U.S. ––––, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), which have fatally undermined its reasoning. Accordingly, we now overrule Tichenor. Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

I. Background

Tony Hurlburt was charged in a two-count indictment with possessing a firearm as a felon, see § 922(g)(1)

, and possessing a short-barreled shotgun, see 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). He pleaded guilty to the felon-in-possession count; the second count was dismissed.

Under the Sentencing Guidelines, the offense level for the crime of unlawful firearm possession depends in part on the defendant's criminal history. For Hurlburt's crime the base offense level ordinarily is 18. § 2K2.1(a)(5)

. But if the defendant has a prior conviction for a “crime of violence or a controlled substance offense,” the base offense level is 22. § 2K2.1(a)(3). For a defendant with two or more prior convictions of either type, the base offense level jumps to 26. § 2K2.1(a)(1).

Application Note 1 to § 2K2.1

incorporates the “crime of violence” definition in the career-offender guideline, which reads:

(a) The term “crime of violence” means 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)

(emphasis added). The highlighted text is known as the “residual clause.”

Hurlburt has a prior conviction for armed burglary, and at sentencing he conceded that this conviction qualifies as a predicate crime of violence. The government argued that another of Hurlburt's prior convictions—for discharging a firearm into a building or vehicle, see WIS. STAT. § 941.20

—should also count as a crime of violence. More particularly, the government argued that this second conviction qualified under § 4B1.2(a)(2)' s residual clause. Over Hurlburt's objection the district judge accepted this argument.

With two predicate convictions for crimes of violence, Hurlburt's base offense level was 26, and the recommended sentencing range was 84–105 months. The judge imposed a below-range sentence of 72 months. Without the second career-offender predicate, the Guidelines range drops to 57–71 months.

In an unrelated case in the same district, Joshua Gillespie was indicted for unlawfully possessing a firearm as a felon, and he too pleaded guilty. Gillespie has a prior conviction for fleeing an officer. See id. § 346.04(3). The district judge counted this conviction as a predicate crime of violence under the residual clause, which increased Gillespie's base offense level to 20. § 2K2.1(a)(4)

. The resulting Guidelines range was 92–115 months, and the judge imposed a below-range sentence of 84 months. Without the career-offender predicate in the mix, the Guidelines range drops to 51–63 months.

Hurlburt and Gillespie appealed and immediately asked us to suspend briefing to await the Supreme Court's decision in Johnson

, which raised the question whether the residual clause in the ACCA's definition of “violent felony”—a mirror image of the residual clause in § 4B1.2(a)(2) —is unconstitutionally vague. We held the cases for Johnson and reinstated briefing after the Supreme Court issued its opinion. A panel heard argument in both appeals on the same day.¹ The panel prepared an opinion proposing to overrule Tichenor and circulated it to the full court in accordance with Circuit Rule 40(e). An en banc vote followed, and a majority of the court approved. This, then, is the opinion of the en banc court.²

See

Buchmeier v. United States , 581 F.3d 561 (7th Cir. 2009) (using the same procedure).

II. Discussion

In Johnson

the Supreme Court held that the ACCA's residual clause is too vague to satisfy minimum requirements of due process. 135 S.Ct. at 2563. Hurlburt and Gillespie argue that Johnson's holding applies to the identically phrased residual clause in § 4B1.2(a)(2), which was used in their cases to increase the base offense level and thus the recommended sentencing range under the Guidelines. The Johnson argument is new on appeal, so our review is for plain error. Henderson v. United States , –––U.S. ––––, 133 S.Ct. 1121, 1124, 185 L.Ed.2d 85 (2013) ; FED. R. CRIM. P. 52(b). Under Rule 52(b) we may correct a forfeited error if (1) the error is “plain”; (2) affects the defendant's “substantial rights”; and (3) “seriously affects the fairness, integrity, or public reputation of [the] judicial proceedings.” Henderson , 133 S.Ct. at 1126–27 (quotation marks omitted).

Johnson

was not yet decided when the defendants were sentenced, but plain- error review asks whether the error is “plain” at the time of appellate review. Id. at 1130

. The defendants maintain that the Johnson error is plain: The two residual clauses are identical, and because the ACCA's residual clause is unconstitutionally vague, it necessarily follows that the residual clause in § 4B1.2(a)(2) is also unconstitutional.

The logic is compelling, but our decision in Tichenor

stands in the way. Tichenor held that the Guidelines cannot be challenged on vagueness grounds. 683 F.3d at 364–65. The defendants maintain that Tichenor has been fatally undermined by the Supreme Court's decisions in Johnson and Peugh. The government agrees, so the parties join forces in asking us to overrule Tichenor, apply Johnson, and invalidate the residual clause in § 4B1.2(a)(2) as unconstitutionally vague.

Of course the parties' agreement doesn't relieve us of our obligation to resolve the question ourselves. Sibron v. New York , 392 U.S. 40, 58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)

. Before proceeding, however, we pause to note two important recent developments. First, the Sentencing Commission has amended the Guidelines to delete § 4B1.2(a)(2)'s residual clause in light of Johnson ; the amendment became effective August 1, 2016. 81 Fed. Reg. 4741, 4742 (2016). Second, the Supreme Court has granted certiorari in a case on collateral review to address the precise question presented here: whether Johnson's holding applies to the residual clause in § 4B1.2(a)(2). Beckles v. United States , 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted , ––– U.S. ––––, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016) ). Beckles will be heard in the Court's upcoming term and raises additional issues unique to its facts and procedural posture. The Court's decision is many months away, so we think it best not to hold these cases for Beckles.

A. Johnson and § 4B1.2(a)(2)'s Residual Clause

The Due Process Clause³ prohibits the government from depriving a person of 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.” Johnson , 135 S.Ct. at 2556

. Johnson addressed persistent vagueness concerns about the residual clause in the ACCA's definition of “violent felony.” The Act increases the minimum and maximum penalties for various firearm-possession offenses if the defendant has three prior convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The Act defines the term “violent felony” as follows:

[A]ny crime punishable by

...