United States v. Tichenor

• Decision Date: 13 June 2012
• Docket Number: No. 11–2433.,11–2433.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cristofer TICHENOR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

683 F.3d 358

UNITED STATES of America, Plaintiff–Appellee,

v.Cristofer TICHENOR, Defendant–Appellant.

No. 11–2433.

United States Court of Appeals,Seventh Circuit.

Argued April 9, 2012.

Decided June 13, 2012.

Brant Cook (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

Simon B. Auerbach (argued), Christopher W. Carmichael, Attorneys, Holland & Knight LLP, Chicago, IL, for Defendant–Appellant.

Before FLAUM and HAMILTON, Circuit Judges, and FEINERMAN, District Judge.^*

FLAUM, Circuit Judge.

Cristofer Tichenor pleaded guilty to armed robbery and discharging a firearm in connection with robbing a bank. Pursuant to his plea agreement, he retained the right to appeal certain issues, including the applicability of the career offender sentencing guideline at United States Sentencing Guideline (“U.S.S.G.”) § 4B1.1. Although Tichenor's counsel initially raised an objection to the application of the career offender guideline, he withdrew this objection at the sentencing hearing. The district court applied the career offender enhancement, based on Tichenor's prior convictions for dealing hash oil and resisting law enforcement, and sentenced him to 300 months' imprisonment.

Tichenor appeals his sentence by arguing that the career offender sentencing guideline is unconstitutionally vague and that the U.S. Sentencing Commission exceeded its authority in enacting the current definition of “crime of violence,” found at U.S.S.G. § 4B1.2(a). Although Tichenor likely waived these claims by withdrawing his objection to the application of the career offender guideline at sentencing, we proceed to address his claims because the government has waived the waiver argument. In accordance with our prior holdings on these issues, we conclude that the Sentencing Guidelines (“Guidelines”) are not susceptible to vagueness challenges and that the Sentencing Commission did not exceed its authority by promulgating the “crime of violence” definition. We therefore affirm the judgment of the district court.

I. Background

A. Factual Background

On the morning of February 18, 2009, a masked man, later identified as Cristofer Tichenor, robbed the Community Bank in Cicero, Indiana. He fired a gunshot into the ceiling and demanded that the bank tellers and the manager give him the “50's and 100's” out of the safe. He pointed a gun at them as he shouted these commands. He escaped with $52,900 in a small, silver car.

A nearby deputy in an unmarked car was notified about the robbery and attempted to follow the robber. The deputy saw the silver car, which appeared to be vacant. He guessed that the robber had switched cars into a car that had just traveled past him. The deputy pursued the “switch” car. After a car chase, the passenger, who matched the description of the bank robber, fled on foot. The deputy apprehended the driver and radioed for assistance.

Other officers arrived and established a perimeter to cut off escape routes. A bloodhound began to track the passenger and eventually led them to a home, where a resident reported hearing noises in her attic. The officers found and arrested Tichenor in the attic. Along the trail leading to the home, the officers discovered a black glove, a black ski mask, clothing, and a buried trash bag containing $52,900. Among the bills were “bait bills” with prerecorded serial numbers that indicated they were from the Community Bank. DNA testing of the glove and the shoe prints also tied Tichenor to the scene.

B. Procedural Background

Tichenor was indicted for one count of bank robbery under 18 U.S.C. § 2113(a) and (d) (Count One), and one count of discharging a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii) (Count Two). He entered into a plea agreement on December 4, 2010, and he entered his guilty plea before the district court two days later. Pursuant to the plea agreement, Tichenor retained the right to appeal certain issues, including the applicability of the career offender guideline at U.S.S.G. § 4B1.1.

The U.S. Probation Office recommended the application of U.S.S.G. § 4B1.1 based on Tichenor's prior Indiana convictions for felony resisting law enforcement (in 2002) and dealing in hash oil. Tichenor objected to the application of the career offender guideline, contending that resisting law enforcement should not be considered a crime of violence.¹

The district court sentenced Tichenor on June 17, 2011 to 300 months' imprisonment (180 months for Count One and the mandatory minimum of 120 months for Count Two). The court calculated an offense level of 26 for Count One, with a criminal history category of V. This yielded a recommended imprisonment term of 110 to 137 months under the Guidelines for Count One.

At the sentencing hearing, Tichenor withdrew his objection to the application of the career offender guideline, in light of Sykes v. United States, –––U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), which affirmed United States v. Sykes, 598 F.3d 334 (7th Cir.2010), and held that Indiana's resisting law enforcement by vehicular flight felony is a violent felony for purposes of 18 U.S.C. § 924(e)(2)(B)(ii). Thus, the district court applied the career offender guideline without objection. The enhancement yielded an offense level of 32 for Count One and a criminal history category of VI with a Guidelines imprisonment term of 210 to 262 months. SeeU.S.S.G. § 4B1.1(b). The government requested 240 months for Count One, incorporating a reduction for acceptance of responsibility.

Tichenor argued for a downward variance, claiming that the career offender guideline overstated the seriousness of his criminal history. He pointed to the compounding effect of the consecutive, mandatory minimum sentence for Count Two and the fact that the predicate offenses for the career offender status were “relatively insubstantial.” Judge Barker agreed and departed downward from the career offender guideline's recommendation:

I do think that there is an unfair compounding effect of the career offender status and the consecutive ... gun offense, the second count to which you've been found guilty, that requires ten years consecutive.

When you consider the career offender status and that add-on of ten years, it does catapult the sentencing options into a range that is probably, and I so find, greater than necessary to accomplish the other goals of 3553(a)....

... I will vary that sentence because of the unfair compounding effect of simply adding that penalty to the Count 2 mandatory consecutive penalty, and reduce the guideline range from 210 months to 262 months, which is the starting point, down to 180 months to offset the unfair effects of the compounding....

I also am willing to do that because I think that the career offender designation, while proper under law and under the guidelines, is premised on a series of less significant offenses.... [T]he underlying predicate offenses, serious as they are, are not the sorts of criminal conduct that ordinarily result in a ... career offender status.

By sentencing Tichenor to 180 months on Count One, the court departed downward substantially from the recommended range with the career offender enhancement, though the sentence was still substantially above the range without the enhancement. The district court also imposed the mandatory, consecutive sentence of 120 months on Count Two.

At the close of sentencing, defense counsel confirmed that neither he nor his client had any legal objections to the sentence. After the district court reminded defense counsel that he needed to preserve any issues that he planned to raise on appeal, he responded that Tichenor was preserving a motion to suppress and a motion to dismiss.

II. Discussion

Tichenor's primary challenge to his sentence is that the career offender sentencing guideline is unconstitutionally vague. We review legal questions, including constitutional challenges to sentences, de novo. United States v. Figueroa–Espana, 511 F.3d 696, 705 (7th Cir.2007). Similarly, we review a district court's legal interpretation of a Guidelines enhancement de novo, although we review any factual findings only for clear error. United States v. Miller, 601 F.3d 734, 737 (7th Cir.2010). Where, however, the defendant fails to properly raise his sentencing objection to the district court, we review only for plain error. See United States v. Perez, 581 F.3d 539, 546 (7th Cir.2009). Under plain error review, the defendant must establish “(1) an error or defect (2) that is clear or obvious (3) affecting the defendant's substantial rights (4) and seriously impugning the fairness, integrity, or public reputation of judicial proceedings.” United States v. Perez, 673 F.3d 667, 669 (7th Cir.2012) (quoting United States v. Anderson, 604 F.3d 997, 1002 (7th Cir.2010)).

A. Whether Tichenor Waived His Objections to the Application of the Career Offender Guideline

Pursuant to Tichenor's plea agreement, Tichenor retained the right to: (1) “object and appeal the applicability of the career offender guideline”; (2) appeal the denial of his motion to dismiss; (3) appeal the denial of his motion to suppress; and (4) file a claim of ineffective assistance of counsel. Prior to the sentencing hearing, Tichenor filed an objection to the application of the career offender guideline on the ground that resisting law enforcement should not be considered a crime of violence.

During the sentencing hearing, defense counsel objected to an enhancement based on Tichenor's supervisory role in the offense but noted that it no longer affected the ultimate calculation: “Given the recent ruling from the Supreme Court in Sykes versus United States, holding that Mr. Tichenor's prior conviction for fleeing from police, felony resisting is a violent felony, and therefore a crime of violence under the guidelines, the career offender guideline trumps the otherwise applicable guidelines calculation.”...