United States v. Taylor

• Decision Date: 12 December 2016
• Docket Number: No. 16-7028,16-7028
• Citation: 843 F.3d 1215
• Parties: United States of America, Plaintiff–Appellee, v. Tommy Louis Taylor, a/k/a Tommy Lewis Taylor, a/k/a Tommy Taylor, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

843 F.3d 1215

United States of America, Plaintiff–Appellee,

v.Tommy Louis Taylor, a/k/a Tommy Lewis Taylor, a/k/a Tommy Taylor, Jr., Defendant–Appellant.

No. 16-7028

United States Court of Appeals, Tenth Circuit.

FILED December 12, 2016

Barry L. Derryberry, Research & Writing Specialist (Julia L. O'Connell, Federal Public Defender, and Scott A Graham, Assistant Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Tulsa, Oklahoma, for Defendant–Appellant.

Linda A. Epperly, Assistant United States Attorney (Mark F. Green, United States Attorney, and Edward Snow, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff–Appellee.

Before BRISCOE, EBEL and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Tommy Taylor was convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2), and was sentenced to 110 months' imprisonment. On direct appeal, this court remanded for resentencing because Taylor's sentence was based in part on the application of the residual clause of U.S.S.G. § 4B1.2(a)(2), which has been held to be unconstitutionally vague. On remand, the district court sentenced Taylor to a term of imprisonment of 87 months. Taylor again appeals, arguing that the district court incorrectly calculated his base and total offense levels by improperly treating a prior state conviction as a "crime of violence" pursuant to U.S.S.G. §§ 4B1.2(a)(1) and 2K2.1(a)(4)(A). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject Taylor's arguments and affirm his sentence.

I

In August 2014, Taylor was convicted by a jury of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2). The district court sentenced Taylor to a term of imprisonment of 110 months, to be followed by a three-year term of supervised release. In doing so, the district court concluded that Taylor "ha[d] two prior [Oklahoma state] felony convictions," one for assault and battery with a dangerous weapon and the other for failure to stop at a roadblock, that qualified as "crimes of violence" under U.S.S.G. § 4B1.2(a) and that warranted an enhanced base offense level under U.S.S.G. § 2K2.1(a)(2). ROA, Vol. 3 at 5.

Taylor filed a direct appeal challenging the district court's treatment of his prior conviction for failure to stop at a roadblock as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2)'s residual clause. While Taylor's direct appeal was pending, we held § 4B1.2(a)(2)'s residual clause to be unconstitutionally vague in light of the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (holding that the definition of "violent felony" contained in the Armed Career Criminal Act's residual clause was unconstitutionally vague). United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015). When we considered Taylor's appeal, we applied that holding to his case, seeGriffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding "that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final"), and remanded to the district court with directions to vacate Taylor's sentence and resentence him. United States v. Taylor, 630 Fed.Appx. 879, 881 (10th Cir. 2015) (Taylor I).

On remand, a revised presentence investigation report (PSR) was prepared and submitted to the district court and parties. The revised PSR set forth a base offense level of 20 pursuant to U.S.S.G. § 2K2.1, noting that Taylor "ha[d] one prior felony conviction for a crime of violence ...: Assault and Battery with a Dangerous Weapon in Muskogee County District Court." ROA, Vol. 3 at 109 (revised PSR at 3). The revised PSR concluded that no other adjustments were necessary to the base offense level, and consequently arrived at a total offense level of 20. When combined with a criminal history score of 17 and a criminal history category of VI, Taylor's advisory Guidelines sentencing range was 70 to 87 months. Id. at 117 (revised PSR at 11).

Neither party objected to the revised PSR, and the district court adopted the sentencing calculations contained therein. ROA, Vol. 4 at 12. The district court in turn resentenced Taylor to a term of imprisonment of 87 months, to be followed by a three-year term of supervised release. Id. at 14.

Following the entry of final judgment, Taylor filed a timely notice of appeal.

II

On appeal, Taylor argues that the district court erred in treating his prior Oklahoma state conviction for assault and battery with a dangerous weapon as a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) and imposing "an elevated base offense level pursuant to [U.S.S.G.] § 2K2.1(a)(4)(A)." Aplt. Br. at 8.

A

Generally speaking, we review for abuse of discretion a defendant's challenges to the procedural reasonableness of his sentence. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Worku, 800 F.3d 1195, 1201 (10th Cir. 2015). If, however, the issue is raised for the first time on appeal, we review it only for plain error. United States v. McComb, 519 F.3d 1049, 1054 (10th Cir. 2007).

Taylor argues that the abuse of discretion standard should apply in this appeal because he objected to the original PSR—the one that was issued prior to his original sentencing—"on the ground that his prior [state] conviction for assault and battery with a dangerous weapon was not a qualifying predicate conviction." Aplt. Br. at 8. Although Taylor concedes that he did not object to the revised PSR that was prepared on remand, he argues that "[a] second objection was not necessary to preserve the issue for review." Id. According to Taylor, the district court was aware of his position given his objection to the original PSR and further objection would have been futile.

We reject Taylor's arguments on this point. As noted, the original PSR treated two of Taylor's prior state convictions as "crimes of violence" under U.S.S.G. § 4B1.2 and, consequently, imposed a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). ROA, Vol. 3 at 5. Taylor filed a one-page objection to the original PSR stating he was "not convinced that the convictions that [we]re alleged to be crimes of violence ... me[t] the definitions of USSG Section 4 B1.2 [sic] or by way of the categorical or modified categorical approach." Id. at 15. The district court, however, overruled this objection at the time of sentencing. ROA, Vol. 2 at 14. We concluded on appeal that one of Taylor's prior state convictions—for failure to stop at a roadblock—should not have been treated as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2)'s residual clause. Taylor I, 630 Fed.Appx. at 879. On remand, the revised PSR treated only Taylor's remaining state conviction—for assault and battery with a dangerous weapon—as a "crime of violence" and, in turn, imposed a base offense level of 20. Taylor filed no written objection to the revised PSR. And, at the resentencing hearing, Taylor's counsel expressly stated on the record that he had no objections to the revised PSR. ROA, Vol. 4 at 12. Consequently, Taylor failed to alert the district court to the error that he now complains of on appeal. For this reason, we conclude that we are bound to apply the plain error standard to this appeal.

In reviewing for plain error, we have "discretion to remedy a forfeited error provided certain conditions are met."

Molina–Martinez v. United States, ––– U.S. ––––, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016). The defendant must establish (1) the existence of "an error that has not been intentionally relinquished or abandoned," (2) "the error must be plain—that is to say, clear or obvious," and (3) "the error ... have affected the defendant's substantial rights." Id."Once these three conditions have been met," we must "exercise [our] discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id.(quotation marks omitted).

B

Section 4B1.2(a)(1) of the United States Sentencing Guidelines, sometimes referred to as the "elements clause" of § 4B1.2(a), provides as follows:

(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....

U.S.S.G. § 4B1.2(a)(1). To determine whether a prior conviction fits within the elements clause, "we use one of two methods of analysis: the categorical or modified categorical approach." Madrid, 805 F.3d at 1207. The categorical approach focuses solely on "the elements of the statute forming the basis of the defendant's conviction." Descamps v. United States, –––U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). "[T]he modified categorical approach applies when the statute is ‘divisible’; that is, when it ‘lists multiple, alternative elements, and so effectively creates several different crimes.’ " Madrid, 805 F.3d at 1207 (quoting Descamps, 133 S.Ct. at 2285 ). "[T]he modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." Descamps, 133 S.Ct. at 2281.

It is undisputed that Taylor was previously convicted in Oklahoma state court of assault and battery with a dangerous weapon, in violation of Okla. Stat. tit. 21, § 645. See ROA, Vol. 3 at 5. At the time of Taylor's conviction, that statute provided as follows:

Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault, battery, or assault and battery upon the person of another with any sharp or

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