United States v. Pawlak

• Decision Date: 13 May 2016
• Docket Number: No. 15–3566.,15–3566.
• Citation: 822 F.3d 902
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesse J. PAWLAK, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

822 F.3d 902

UNITED STATES of America, Plaintiff–Appellee

v.Jesse J. PAWLAK, Defendant–Appellant.

No. 15–3566.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 27, 2016.

Decided and Filed: May 13, 2016.

ARGUED: Vanessa Malone, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Jason M. Katz, United States Attorney's Office, Youngstown, Ohio, for Appellee. ON BRIEF: Wendi L. Overmyer, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Jason M. Katz, United States Attorney's Office, Youngstown, Ohio, for Appellee.

Before: BOGGS, GIBBONS, and GRIFFIN, Circuit Judges.

GRIFFIN

, J., delivered the opinion of the court in which BOGGS, J., joined, and GIBBONS, J., joined in Parts I–III. GIBBONS, J. (pp. 913–14), delivered a separate concurring opinion.

OPINION

GRIFFIN

, Circuit Judge.

In this case, we consider whether the Supreme Court's holding in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

, that the Armed Career Criminal Act's “residual clause” is unconstitutionally vague, compels the same result for an identical “residual clause” in the U.S. Sentencing Guidelines. In light of Johnson, and given the legal force of the Guidelines as the framework for sentencing, we join the majority of our sister circuits in invalidating the Guidelines' “residual clause” as unconstitutionally vague. In doing so, we recognize that our prior case law expressly disclaimed such a conclusion. However, because the legal landscape interpreting the Guidelines has changed considerably, our prior decisions shielding the Guidelines from vagueness challenges are no longer consistent with Supreme Court precedent. We therefore vacate defendant's sentence and remand for resentencing.

I.

After defendant Jesse Pawlak sold firearms to an undercover officer on four occasions, a grand jury indicted him on four counts of possessing a firearm or ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1)

. He pleaded guilty on all counts. At sentencing, the district court calculated a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1) because the offenses involved a “semiautomatic firearm that is capable of accepting a large capacity magazine,” and Pawlak had two prior “felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(1). One of Pawlak's two qualifying felony convictions was an Ohio third-degree burglary offense, a “crime of violence,” see

United States v. Coleman, 655 F.3d 480, 481 (6th Cir.2011) (holding that Ohio's third-degree burglary statute constituted a violent felony under the residual clause of the Armed Career Criminal Act). Absent that qualifying conviction, his base offense level would have been 22. U.S.S.G. § 2K2.1(a)(3). The district court added two levels to the base offense level under § 2K2.1(b)(1)(A) because Pawlak possessed six firearms. The court also applied a four-level enhancement under § 2K2.1(b)(5) for trafficking in firearms. After deducting three levels for acceptance of responsibility, Pawlak's total offense level was 29 with a criminal history category of IV, resulting in an advisory Guidelines range of 121–151 months of incarceration. The court varied downward by four levels based on Pawlak's “regained respect for the law,” making the new range 84–105 months, and sentenced Pawlak to 105 months.

II.

Pawlak's appeal presents a matter of first impression: whether the residual clause in U.S.S.G. § 4B1.2(a)

(career offender), and other Guidelines provisions incorporating its definition, are unconstitutionally vague after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, which invalidated a textually identical residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Although the parties acknowledge that we have previously held the Guidelines “are not susceptible to a vagueness attack” because “there is no constitutional right to sentencing guidelines,” United States v. Smith, 73 F.3d 1414, 1417–18 (6th Cir.1996) (quoting United States v. Salas, No. 93–5897, 1994 WL 24982, at *2 (6th Cir. Jan. 27, 1994) (unpublished table decision)), they agree that the Supreme Court has undermined our prior precedent in its intervening decisions. Accordingly, the parties maintain that Johnson's reasoning applies equally to the Guidelines, and Pawlak's sentence should be vacated. We agree.¹

The parties disagree regarding Pawlak's second claim of error—that the district court erroneously applied a four-level enhancement for firearms trafficking under § 2K2.1(b)(5)

because Pawlak did not know or have reason to believe that his conduct would result in the transfer of a firearm to an individual “whose possession or receipt of the firearm would be unlawful,” § 2K2.1 cmt. n. 13(A)(ii)(I). We address each issue in turn.

III.

A.

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V

. Among other things, this clause prohibits the enforcement of overly vague criminal laws. The Supreme Court has explained that the government “violates this guarantee by 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.” Johnson, 135 S.Ct. at 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357–58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ). “The prohibition of vagueness in criminal statutes ‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,’ and a statute that flouts it ‘violates the first essential of due process.’ ” Id. at 2556–57 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) ). “These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.” Id. at 2557.

In Johnson, the Supreme Court invalidated the ACCA's residual clause as unconstitutionally vague. The Act increases sentences for offenders who have three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1)

. It defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another; or ... is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....” Id. § 924(e)(2)(B)

(emphasis added). The emphasized words have come to be known as the Act's “residual clause.” E.g.,

Johnson, 135 S.Ct. at 2556.

The Johnson Court observed that “[t]wo features of the residual clause conspire to make it unconstitutionally vague”: first, the clause “leaves grave uncertainty about how to estimate the risk posed by a crime” by tying “the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements”; and second, it “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2557–58

. Moreover, the Court observed that its “repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy.” Id. at 2558. The ACCA's residual clause thus “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id.

B.

Since Johnson, federal courts have grappled with the unresolved question of whether the Guidelines' residual clause is also unconstitutionally vague. The text of the two residual clauses is the same, compare 18 U.S.C. § 924(e)(2)(B)(ii)

with U.S.S.G. § 4B1.2(a)(2), and we interpret them identically, see, e.g.,

United States v. Ford, 560 F.3d 420, 421 (6th Cir.2009). The principal legal argument against applying Johnson to the Guidelines is not that their meanings are distinguishable but that the Guidelines are advisory, as opposed to “statutes fixing sentences,” 135 S.Ct. at 2557, and therefore outside the reach of the vagueness doctrine. Given that the residual clauses are identical, the only reason Johnson would not compel the same result is if the Guidelines were immune from vagueness challenges.

Our analysis begins with the function of the Guidelines. In Peugh v. United States, the Supreme Court held that the Guidelines are subject to constitutional challenge “notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range.” ––– U.S. ––––, 133 S.Ct. 2072, 2082, 186 L.Ed.2d 84 (2013)

. In that case, the Court considered whether the Ex Post Facto Clause is violated when a defendant is sentenced under Guidelines providing a higher advisory sentencing range than the Guidelines in effect at the time of the offense. Id. at 2081. The Court explained that “[t]he post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines and that they remain a meaningful benchmark through the process of appellate review.” Id. at 2083. Whereas the “federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing[,] ... [a] retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” Id. at 2084.

Although the Guidelines are not mandatory, the Supreme Court has emphasized that they have considerable influence on sentencing determinations because of the procedures district courts must follow in imposing sentences. “As we have described, ‘district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.’ ” Id. at 2083

(quoting Gall v. United States, ...