United States v. Wurie

• Decision Date: 08 August 2017
• Docket Number: No. 15-1395,15-1395
• Citation: 867 F.3d 28
• Parties: UNITED STATES of America, Appellee, v. Brima WURIE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

867 F.3d 28

UNITED STATES of America, Appellee,

v.Brima WURIE, Defendant, Appellant.

No. 15-1395

United States Court of Appeals, First Circuit.

August 8, 2017

Judith H. Mizner, Assistant Federal Public Defender, was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Torruella, Lynch, and Kayatta, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant-Appellant, Brima Wurie ("Wurie"), who was sentenced as a career offender under section 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), challenges the classification of his prior Massachusetts convictions—which include convictions for assault and battery with a dangerous weapon ("ABDW"), resisting arrest, larceny from the person, and assault and battery on a police officer—as "crime[s] of violence" under the residual clause of U.S.S.G. § 4B1.2(a)(2). After careful consideration, we affirm.

I. Background

Wurie was convicted of distribution of five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).¹ At the time of the sentencing hearing on March 16, 2015, Wurie had a number of prior convictions under Massachusetts law, including: two convictions for ABDW, one conviction for larceny from the person, one conviction for resisting arrest, and one conviction for assault and battery on a police officer.

The district court determined at sentencing that Wurie had at least two prior convictions for "crime[s] of violence," as that term is defined in U.S.S.G. § 4B1.2(a)(2), which rendered him a career offender under U.S.S.G. § 4B1.1(a).² Wurie's total offense level of thirty-two and his classification as a career offender yielded a Guidelines sentencing range ("GSR") of 210 to 240 months of imprisonment.³ After considering all the 18 U.S.C. § 3553(a) sentencing factors, the district court imposed a downwardly variant sentence of 168 months of imprisonment, to be followed by seven years of supervised release, because it considered that Wurie's recent conduct showed that he was "turn[ing] [his] life around."

On appeal, Wurie concedes that the offenses for which he had been convicted previously have been "held to be crimes of violence under the [Guidelines'] residual clause." He initially argued, however, that the residual clause of section 4B1.2(a)(2), defining "crime of violence" as an offense that "involves conduct that presents a serious potential risk of physical injury to another," is unconstitutionally vague following the Supreme Court's ruling in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II "), which held that the identically worded residual clause in the definition of "violent felony" under the Armed Career Criminal Act ("ACCA") was void for vagueness under the Fifth Amendment Due Process Clause. Id. at 2557. The government initially conceded that in light of Johnson II , the Guidelines' residual clause was unconstitutionally vague, but argued that Wurie was correctly sentenced as a career offender because his prior convictions could also be classified as crimes of violence under section 4B1.2(a)(1) of the Guidelines (commonly referred to as the Guidelines' "force clause"), inasmuch as the offenses of conviction have "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). Wurie disputes that his prior convictions were for crimes of violence under the Guidelines' force clause.

While this appeal was pending, however, the Supreme Court handed down Beckles v. United States , which held that Johnson II does not apply to the career offender guideline because the Guidelines, unlike the ACCA, are advisory, not mandatory, and thus are not subject to a vagueness challenge on due process grounds. ––– U.S. ––––, 137 S.Ct. 886, 892, 197 L.Ed.2d 145 (2017). Our decision in United States v. Thompson , then held that, in circumstances like these, we will not accept the government's concession on appeal that Johnson II invalidated the residual clause of the Guidelines. 851 F.3d 129, 130-31 (1st Cir. 2017). Beckles thus foreclosed Wurie's initial argument.

Faced with this, Wurie modified his argument and claimed that although his constitutional challenge for vagueness was foreclosed by Beckles , the application of the Guidelines' residual clause to particular offenses must still be reconsidered in light of Johnson II . This, Wurie contends, is so because the language of the Guidelines' residual clause is identical to and suffers from the same deficiencies that led the Supreme Court to invalidate the ACCA's residual clause on due process grounds. In the alternative, Wurie requests that his case be remanded to the district court for resentencing in light of Amendment 798 to the Guidelines, which narrowed the definition of "crime of violence" by eliminating the residual clause, among other changes.

II. Discussion

A. Guidelines' Residual Clause

We review de novo preserved objections to the classification of a prior offense as a "crime of violence" under the Guidelines. See United States v. Velázquez , 777 F.3d 91, 94 (1st Cir. 2015). Because under section 4B1.1(a)(3) of the Guidelines a defendant needs to have only "two prior felony convictions of either a crime of violence or a controlled substance offense" to qualify as a career offender, we need to determine only whether two of Wurie's past convictions are for "crimes of violence" as that term is defined in the Guidelines. We begin with Wurie's two prior convictions for ABDW under Massachusetts law.

In 2009, we held in United States v. Glover , that Massachusetts ABDW is a crime of violence under U.S.S.G. § 2K2.1(a)(2) and the residual clause of § 4B1.2(a). 558 F.3d 71, 79-80 (1st Cir. 2009). There, we explained that

to qualify as a crime of violence under the residual clause, the offense at issue must also "(i) pose a degree of risk that is similar to the degree of risk posed by the enumerated offenses—namely, arson, burglary, extortion, and offenses involving the use of explosives—and (ii) be similar ‘in kind’ to those offenses."

Id. at 80 (quoting United States v. Almenas , 553 F.3d 27, 34 (1st Cir. 2009) ). We noted that the ABDW "statute applies to an individual who ‘commits an assault and battery upon another by means of the dangerous weapon.’ " Id. at 80-81 (quoting Mass. Gen. Laws ch. 265, § 15A(b) ). "Because a defendant must employ a ‘dangerous weapon’ to be convicted of ABDW, it is evident that the offense poses a serious potential risk of physical injury to another.... [E]ither the perpetrator applied force by means of an instrumentality designed to produce death or great bodily harm, or applied force with an instrumentality by using it in a dangerous manner." Id. at 81. We found that ABDW "is a purposeful offense ... that involves conduct at least as aggressive and violent as the conduct at issue encompassed by the enumerated crimes." Id. In rejecting Glover's argument that, because some convictions for ABDW may involve non-violent conduct, ABDW could not be categorically a crime of violence, id. at 82, we noted that "[w]hen determining whether ABDW qualifies as a crime of violence, we are governed by the Supreme Court's admonishment ... that not ‘every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury’ before the offense can be classified as a crime of violence. Rather, we are instructed to consider the ‘ordinary case.’ " Id. (quoting James v. United States , 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ). We concluded "with confidence that the ordinary ABDW offense creates a serious potential risk of injury to another." Id.

We took a similar approach in United States v. Hart , where we held that a conviction for ABDW was a predicate offense under the ACCA's residual clause.⁴ 674 F.3d 33, 44 (1st Cir. 2012). There, Hart urged us to reconsider our holding in Glover in light of the Supreme Court's decision in Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) and our decision in United States v. Holloway , 630 F.3d 252 (1st Cir. 2011), and hold that "because ABDW also may be committed recklessly, it cannot qualify as a categorical ACCA predicate." Hart , 674 F.3d at 41-42. We declined Hart's invitation. Id. at 42. We noted that "an ABDW conviction may rest on a recklessness theory, and it is not insignificant that reckless ABDW may be committed with a seemingly innocent object used in a dangerous fashion, as in the case of a reckless, vehicular ABDW." Id. at 43 (footnotes omitted). We held, however, that "this fact pattern does not represent the vast majority of ABDW convictions, and our analysis under the residual clause is explicitly, and necessarily, limited to the ‘ordinary case.’ " Id. at 43 (citing James , 550 U.S. at 208, 127 S.Ct. 1586 ). We concluded that, because in the ordinary case of ABDW a "composite of purposeful, violent, and aggressive conduct is the norm, ... a conviction for Massachusetts ABDW qualifies as a predicate offense under ACCA's residual clause, pretermitting the need to analyze it under the force clause." Id. at 44.

After Glover and Hart were decided, the Supreme Court handed down Johnson II , in which it invalidated the ACCA's residual clause, finding it unconstitutionally vague. Johnson II , 135 S.Ct. at 2563. Because the ACCA's and the Guidelines' residual clauses were identically worded, the government conceded in many cases, including this one, that the Guidelines' residual clause was also unconstitutionally vague and urged the courts to find that ABDW was a crime of violence under the Guidelines' force clause. See , e.g. , United States v. Tavares , 843 F.3d 1, 9 (1st Cir. 2016). In light of the government's concession, in Tavares , this court assumed without deciding that the Guidelines' residual clause was...