United States v. Redrick, 14-3053

• Decision Date: 08 November 2016
• Docket Number: No. 14-3053,14-3053
• Citation: 841 F.3d 478
• Parties: United States of America, Appellee v. Roger Redrick, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

841 F.3d 478

United States of America, Appellee

v.Roger Redrick, Appellant

No. 14-3053

United States Court of Appeals, District of Columbia Circuit.

Argued September 7, 2016

Decided November 8, 2016

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

Sharon A. Sprague, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was Elizabeth Trosman, Assistant U.S. Attorney.

Before: Srinivasan and Wilkins, Circuit Judges, and Silberman, Senior Circuit Judge.

Silberman

, Senior Circuit Judge:

Appellant pleaded guilty to being a felon in unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

. Under the Armed Career Criminal Act (the “Act”), a felon so convicted is subject to a mandatory minimum of fifteen years imprisonment if he was previously convicted of three charges of either “violent felonies” or “serious drug offenses.”¹ The plea agreement recognized that appellant would be sentenced pursuant to this sentence enhancement, which raised his sentence from a maximum of ten years to a minimum of fifteen years imprisonment. (The court imposed a sentence of 188 months in accordance with the sentencing guidelines range.) Appellant now contests the applicability of the enhancement in light of an intervening Supreme Court opinion, Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

, which held that one of the Act's definitions of a violent felony—which appellant asserts the district court may have relied on—is unconstitutionally vague. We affirm the conviction because, whether or not the district judge relied on the unconstitutional provision, as a matter of law, another of the Act's definitions of “violent felony” applies and therefore the appellant's sentence remains valid.

I.

Appellant was indicted on three counts: possession with intent to distribute at least twenty-eight grams of cocaine base, unlawful possession of a firearm (and ammunition) by a convicted felon, and such possession during a drug trafficking offense.² In return for pleading guilty to simple possession of the firearm, the government dropped the other two counts. Four of Redrick's prior eleven convictions triggered the Act's mandatory minimum, raising his sentence from a maximum of ten years to a minimum of fifteen years imprisonment. They were: (1) a 1983 District of Columbia Armed Robbery conviction (“D.C. armed robbery”); (2) a 1985 Maryland Robbery with a Deadly Weapon conviction (“Maryland armed robbery”); (3) a 1989 Maryland Robbery with a Deadly Weapon conviction; and (4) a 1990 District of Columbia Possession with Intent To Distribute PCP and Possession with Intent To Distribute Marijuana conviction.

The Act defines a “violent felony” as an offense punishable by more than one year in prison that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or is the crime of burglary, arson, or extortion, involves use of explosives, or is an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” These three clauses³ are referred to as the force clause, the enumerated offense clause, and the residual clause. The residual clause, as is apparent, sweeps very broadly and, as we noted, in Johnson

the Supreme Court—after having twice affirmed its constitutionality—reversed itself and declared the clause unconstitutionally vague. 135 S.Ct. at 2557. After Johnson, a crime is a “violent felony” only if it meets the requirements of the force clause or the enumerated offense clause.

At the time of the plea agreement, it is fair to say that no one—the government, the judge, or the appellant—could reasonably have anticipated Johnson

. All parties believed that appellant was subject to the Act's enhancement before Johnson, although the record is unclear as to why the district court judge thought so. In any event, appellant agreed in his plea deal to “waive the right to appeal the sentence in this case ... except to the extent the Court sentences [him] above the statutory maximum or guidelines range determined by the Court, in which case [he] would have the right to appeal the illegal sentence or above-guidelines sentence.” (emphasis added).

II .

The only prior convictions in dispute are the two Maryland convictions for armed robbery. Appellant concedes that his drug conviction is a qualifying “serious drug offense,” and it is recognized by both parties that whether or not the D.C. armed robbery conviction meets the violent felony test it wouldn't be sufficient to trigger the enhancement without the Maryland convictions. It is also common ground that if the district judge had imposed what the government refers to as a “truly illegal sentence,” it should be vacated. By a truly illegal sentence, the government apparently means one that relies, and could only rely, on the unconstitutional residual clause. Yet the government asserts paradoxically that appellant has completely waived his right to appeal application of the Act because the “understanding” in the plea agreement that appellant was subject to the enhancement was part of the bargain by which the government dropped two counts. It should be obvious that the government's “truly illegal” concession is inconsistent with its argument that appellant gave up any chance to contest the application of the Act. Be that as it may, we have little difficulty in concluding that a fair reading of the plea agreement allows the appellant to challenge his sentence as illegal; i.e., in excess of the statutory maximum. The government's only response is to assert the sentence is not illegal—which, of course, is circular: the government's waiver argument assumes the merits.

Although the appellant did not waive his right to appeal the sentence, he did forfeit the argument that his sentence is illegal. It is well established that if a defendant forfeits an argument in a criminal case, a reviewing court should reverse only if there is “plain error.” FED. R. CRIM. P. 52(b)

. Moreover, the error must affect appellant's “substantial rights” and “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (alteration omitted). That limited scope of review discourages a defense counsel from sandbagging a district judge by holding in his pocket a legal argument. This case strains the doctrine because defense counsel, as well as the prosecutor and judge, would not reasonably have thought the residual clause had a constitutional infirmity after the Supreme Court had twice sanctioned it.⁴ Indeed, since it is also well established that a reviewing court must apply the law as it exists at the time of the appeal, Henderson v. United States , ––– U.S. ––––, 133 S.Ct. 1121, 1129, 185 L.Ed.2d 85 (2013),—in this case, after Johnson —it seems rather anomalous to ask whether the district court committed error—much less plain.

Assuming, however, that precedent calls for applying plain-error review, see, e.g. , Henderson , 133 S.Ct. at 1129

; Johnson v. United States , 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), we first ask whether there was “error” at all. The question before us is whether the two prior Maryland convictions qualify as violent felonies under the force clause. The key requirement is use of what the Supreme Court calls “violent force,” which is “force capable of causing physical pain or injury to another person.” Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (construing “physical force”).

* * *

Normally, in asking whether a prior crime qualifies as a violent felony, we look at the state or federal statute under which a defendant has been convicted and ask simply whether the elements of the prior crime meet the Act's definitions of a violent felony. If a prior conviction is based on a statute that sweeps more broadly than this federal definition—let us say, a conviction could be based on a minor battery—such a conviction cannot qualify as a violent felony under the force clause. See, e.g. , id . at 141, 130 S.Ct. 1265

; Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013).

This “categorical approach” to career criminal cases is normally rather mechanical, but it can become complicated when the prior conviction statute lists alternative elements and so “effectively” creates several different crimes. Descamps , 133 S.Ct. at 2285

. When we are dealing with a so-called “divisible” statute, we are to employ the “modified categorical approach” to determine which alternative crime the defendant committed. To do so, we look beyond the statute “to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, [the] defendant was convicted of.” Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). The modified categorical approach is, according to the Court, simply a “tool” to implement the categorical approach, not an exception to the elements-based approach. Descamps , 133 S.Ct. at 2285.

The Maryland convictions, however, present a rather unusual situation that does not fit squarely within either the categorical or modified categorical approaches. Robbery in Maryland is not a statutory crime; it retains its common law character.⁵ Under Maryland case law, simple robbery is “the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear .” Bowman v. State , 314 Md. 725, 552 A.2d 1303, 1305 (1989)

(emphasis added); see also

West v. State , 312 Md. 197, 539 A.2d 231, 234–35 (1988) (observing that Maryland simple robbery includes...