United States v. Rollins

• Decision Date: 29 August 2016
• Docket Number: No. 13–1731,13–1731
• Citation: 836 F.3d 737
• Parties: United States of America, Plaintiff–Appellee, v. Darryl Rollins, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

836 F.3d 737

United States of America, Plaintiff–Appellee,

v.Darryl Rollins, Defendant–Appellant.

No. 13–1731

United States Court of Appeals, Seventh Circuit.

Argued December 2, 2015

Decided August 29, 2016

Erica N. O'Neil, Benjamin W. Proctor, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before Wood, Chief Judge, and Posner, F laum, Easte rbroo k, Ka n ne, Rov ner, Wil liams, Sykes, and Hamilton, Circuit Judges.

Sykes

, Circuit Judge.

Darryl Rollins pleaded guilty to selling crack cocaine and was sentenced to 84 months in prison. This is our second time hearing his appeal. He challenges the calculation of his Sentencing Guidelines range—specifically, the district court's application of the career-offender guideline, which assigns a higher offense level if the defendant has two prior convictions for a “crime of violence.” See U.S.S.G. § 4B1.1(a)

. The term “crime of violence” 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 district judge classified Rollins as a career offender based in part on a prior conviction for possession of a sawed-off shotgun, a crime that qualifies (if at all) only under the residual clause of this definition. In United States v. Miller

, we held that possession of a short-barreled shotgun is not a predicate “violent felony” under the identically phrased residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). 721 F.3d 435, 437 (7th Cir. 2013). In the first go-round on this appeal, Rollins argued that because the two residual clauses are the same, Miller controls, notwithstanding application note 1 to § 4B1.2, which specifically lists possession of a sawed-off shotgun as a predicate crime of violence. A panel of the court rejected this argument based on United States v. Raupp, which holds that that the application note's list of qualifying crimes is a valid interpretation of the guideline's residual clause. 677 F.3d 756, 758–60 (7th Cir. 2012).

In the meantime, the government changed its position on two key questions lurking in the background: (1) Does the Supreme Court's holding in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

, apply to the residual clause in the career-offender guideline; and (2) should United States v. Tichenor , 683 F.3d 358 (7th Cir. 2012), be overruled? Johnson invalidated the ACCA's residual clause as unconstitutionally vague. 135 S.Ct. at 2563. Although Johnson logically applies to the mirror-image residual clause in § 4B1.2(a)(2), our decision in Tichenor categorically forecloses vagueness challenges to the Guidelines. 683 F.3d at 364–65. The government previously invoked Tichenor, and Rollins did not ask the court to revisit and overrule it.

After the panel issued its opinion, however, the government reversed course and now argues that Tichenor

should be overruled and that Johnson's constitutional holding applies to the residual clause in § 4B1.2(a)(2). In light of the government's concession, the panel vacated its opinion and granted rehearing.

In a separate decision also issued today, the en banc court overrules Tichenor

and holds that under Johnson, the residual clause in the career-offender guideline is unconstitutionally vague. United States v. Hurlburt , Nos. 14–3611 & 15–1686, 835 F.3d 715, 2016 WL 4506717 (7th Cir. Aug. 29, 2016). That decision undermines Raupp's rationale and is decisive here. Application note 1 has no legal force independent of the guideline itself; the note's list of qualifying crimes is valid (or not) only as an interpretation of § 4B1.2. See

Stinson v. United States , 508 U.S. 36, 41–42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). More to the point, when the Sentencing Commission says in application note 1 that possession of a sawed-off shotgun is a crime of violence, it is interpreting the residual clause in § 4B1.2(a)(2); no other part of the crime-of-violence definition applies. That was the basic premise of Raupp, which addressed the inchoate crime of conspiracy, another offense on the application note's list. 677 F.3d at 757–60.

But the residual clause in § 4B1.2(a)(2) is invalid, so Raupp

's premise no longer holds. The panel circulated a new opinion to the full court proposing to overrule Raupp.See 7TH CIR. R. 40(e). An en banc vote followed, and the court approved, making this the opinion of the full court. See

Buchmeier v. United States , 581 F.3d 561 (7th Cir. 2009) (using the same procedure). Accordingly, we now vacate Rollins's sentence and remand for resentencing.

I. Background

Rollins sold crack cocaine to confidential informants on four separate occasions in 2009 and 2010, and these sales led to his eventual indictment on four counts of drug distribution. See 21 U.S.C. § 841(a)(1)

. The government initially sought a statutory sentencing enhancement, see id. § 851, based on Rollins's 2005 Wisconsin felony drug conviction. Pursuant to plea negotiations, Rollins pleaded guilty to two counts and agreed for purposes of sentencing that he was responsible for the drug quantities involved in the other two sales. In exchange the government dropped the two remaining counts and withdrew its request for the § 851 enhancement.

Rollins's presentence report initially calculated a Guidelines sentencing range of 188–235 months based on an adjusted offense level of 31 and criminal history category VI. To reach this offense level, the probation officer classified Rollins as a career offender, which gave him a base offense level of 34, see U.S.S.G. § 4B1.1(b)(2)

, then deducted three points for acceptance of responsibility, see id. § 3E1.1. The career-offender guideline assigns higher base offense levels if the defendant has “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” § 4B1.1(a). A “crime of violence” is defined as:

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.

§ 4B1.2(a) (emphasis added). Subsection (1) is sometimes called the “elements” clause; the highlighted text in subsection (2) is the residual clause.

Rollins's 2005 drug conviction supplied the first predicate for the career-offender designation. Rollins also has a prior conviction for possession of a sawed-off shotgun, see WIS. STAT. § 941.28

, and application note 1 to § 4B1.2 lists this offense as a qualifying crime of violence: “For purposes of this guideline[,] ... [u]nlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of violence.’ ” The judge accordingly accepted the probation officer's recommendation and classified Rollins as a career offender.

Rollins initially faced a mandatory five years in prison and a maximum term of 40 years, but the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372,

reduced the statutory range to no minimum and a 20-year maximum.¹ The Act also reduced the statutory minimum term of supervised release from four years to three; the government alerted the judge to this change.

By reducing the maximum prison term, the Fair Sentencing Act also affected the sentencing range under the Guidelines. Rollins's adjusted offense level dropped from 31 to 29, which reduced the Guidelines range to 151–188 months. The parties agreed that this was the correct range. Without the career-offender designation, the Guidelines range drops to 130–162 months.

Regarding the recommended term of supervised release, although the government had alerted the court to the Act's reduction in the statutory minimum, no one told the judge that the recommended term of supervised release under the Guidelines was now three years rather than four to five years.

At sentencing the government recommended a below-Guidelines sentence of 87 months based on Rollins's substantial assistance, see U.S.S.G. § 5K1.1

, and in recognition of the 18 months he had spent in state custody. Rollins argued for a 57-month sentence. The judge imposed a sentence of 84 months in prison and four years of supervised release.

Rollins appealed, arguing that the judge improperly applied the career-offender guideline and misapprehended the effect of the Fair Sentencing Act on the recommended term of supervised release under the Guidelines. His first argument hinged on our decision in Miller

, which held that possession of a sawed-off shotgun is not a predicate violent felony under the ACCA's residual clause. 721 F.3d at 437. Because the residual clause in § 4B1.2(a)(2) mirrors the residual clause in the ACCA, Rollins urged us to apply Miller to the career-offender guideline, notwithstanding application note 1. That is, he asked us to disregard the application note because it contradicted the text of the residual clause in § 4B1.2(a)(2).

After the panel heard argument, the Supreme Court issued its decision in Johnson

invalidating the ACCA's residual clause on vagueness grounds. 135 S.Ct. at 2563. The panel ordered supplemental briefing to address the effect of Johnson on this case. The government argued that Tichenor blocked application of Johnson to the career-offender guideline. See

Tichenor , 683 F.3d at 364 (holding that the Guidelines are not susceptible to vagueness challenges)....