ADDENDUM - SRC-Project · under the Guidelines residual clause, or at least did not obviously fail...

ADDENDUM

Case: 14-10396 Date Filed: 09/02/2015 Page: 1 of 72

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No. 13-2243

IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

UNITED STATES OF AMERICA, Plaintiff/Appellee,

' v. MELVIN PAGAN-SOTO,

Defendant/Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Case No. 3:13-CR-223-JAF (Hon. Jose A. Fuste)

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

ROSA E. RODRIGUEZ-VELEZ LESLIE R. CALDWELL United States Attorney Assistant Attorney General

NELSON PEREZ SUNG-HEE SUH Assistant U.S. Attorney Deputy Assistant District of Puerto Rico Attorney General

RICHARD A. FRIEDMAN Appellate Section, Criminal Division United States Department of Justice \Vashington,D.C. 20530 202-514-3965; (fax) 202-305-2121 [email protected] Counsel for Appellee


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TABLE OF CONTENTS

Supplemental Brief for the United States ................................................ 1

I. The Johnson Decision ................................................................. 3

II. Application of Johnson to the Sentencing Guidelines ............... 6

III. The Government waives any procedural barriers to this Court's consideration of Pagan-Soto's argument that the Guidelines residual clause is impermissibly vague ................. 10

CONCLUSION ........................................................................................ 12

CERTIFICATE OF SERVICE ................................................................. 13


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TABLE OF AUTHORITIES

FEDERAL CASES

Begay v. United States, 553 U.S. 137 (2008) ............................................. 5

Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) ................................... 4

Gall v. United States, 552 U.S. 38 (2007) ................................................. 9

Irizarry v. United States, 553 U.S. 708 (2008) .......................................... 9

James v. United States, 550 U.S. 192 (2007) ............................................ 5

Johnson v. United States, 135 S. Ct. 2551 (2015) ........................... passim

Peugh v. United States, 133 S. Ct. 2072 (2013) ........................................ 9.

Sykes v. United States, 564 U.S. 1 (2011) ................................................. 5

United States v. Alphas, 785 F.3d 775 (1st Cir. 2015) ........................... 10

United States v. Bercian-Flores, 786 F.3d 309 (4th Cir. 2015) ............... 10

United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) ............................. 8

United States v. Griffin, 652 F.3d 793 (7th Cir. 2011) ............................. 8

United States v. Keys, 785 F.3d 1240 (8th Cir. 2015) ............................. 10

United States v. Kimbrough, 536 F.3d 463 (5th Cir. 2008) .................... 10

United States v. Meeks, 664 F.3d 1067 (6th Cir. 2012) ............................ 8

United States v. Travis, 747 F.3d 1312 (11th Cir. 2014) .......................... 7

United States v. Velazquez, 777 F.3d 91 (1st Cir. 2015) ........................... 7


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FEDERAL STATUTES

18 U.S.C. § 922(g) ................................................................... 1 •••••••••••••• 1, 3

18 U.S.C. § 924(e) .................................................................................. 1, 3

18 U.S.C. § 3553(a) .................................................................................... 9

SENTENCING GUIDELINES

U.S.S.G. § 2Kl.1 .............................................................................. passim

U.S.S.G. § 2Kl.3 ........................................................................................ 6

U.S.S.G. § 281.1 ........................................................................................ 6

U.S.S.G. § 3E 1.1 .................................................................................. 2, 11

U.S.S.G. § 4Al.2 ........................................................................................ 6

U.S.S.G. § 4Bl.1 .................................................................................... 2, 6

U.S.S.G. § 4Bl.2 .............................................................................. passim

U.S.S.G. § 5K2.17 ...................................................................................... 6

U.S.S.G. § 7Bl.1 ........................................................................................ 6


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Supplemental Brief for the United States

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme

Court held that the residual clause of the Armed Career Criminal Act of

1984 (ACCA), 18 U.S.C. § 924(e)2)(B)(ii), is void for vagueness in every

application and, therefore, imposing an increased ACCA sentence under

that residual clause violates due process. The Sentencing Guidelines

definition of "crime of violence" contains a residual clause that is identical

to the ACCA residual clause. See U.S.S.G. § 4Bl.2(a)(2). The validity of

the Guidelines residual clause after Johnson is pertinent to this appeal.

In the instant case, Pagan-Soto pleaded guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(l). The district

court, without objection from defendant, accepted the recommendation of

the probation office that his base offense level under U.S.S.G. § 2K2. l(a)(2)

was 24 because he had at least two prior felony convictions for crimes of

violence, as defined in U.S.S.G. § 4Bl.2(a). The presentence report did not

specifically identify which two prior convictions qualified, but Pagan-Soto's

criminal history included convictions under Puerto Rico law for felony

"riot," which involved his actions during an escape from custody, and felony

"robbery," which involved his theft of a wallet and other items from the

person of a victim. See PSR iii! 26-27. After a two-level upward adjustment 1


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under U.S.S.G. § 2K2.l(b)(4)(A) because the firearm possessed by Pagan-

Soto had been stolen, and a three-level downward adjustment for

acceptance of responsibility under U.S.S.G. § 3E 1.1, his total offense level

was 23. Given his criminal history category of IV, the presentence report

recommended a Guidelines sentencing range of 70-87 months of

imprisonment. See PSR § 49. The district court varied upward from that

recommended range and sentenced Pagan-Soto to 96 months of

imprisonment. See R. 55-60.

In his initial brief on appeal, Pagan-Soto argued that the district court

miscalculated his Guidelines offense level, that it relied on erroneous

factors at sentencing, that it did not provide an adequate explanation for

its upward variance, that the 96-month sentence was substantively

unreasonable, and that his counsel gave him ineffective assistance at

sentencing. With respect to whether his prior offenses qualified as crimes

of violence under the Guidelines definition, Pagan-Soto argued that the

particular Puerto Rico statutes under which he was convicted of riot and

robbery did not qualify as crimes of violence because they encompassed

offense conduct that did not involve an element of the use or threatened use

of force, and therefore did not satisfy the "elements" clause of the definition

in U.S.S.G. § 4Bl.l(a)(l). See Pagan-Soto Opening Br. 19-25, 29-32.

2


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In the government's responsive brief, we argued that Pagan-Soto had

not sustained his burden of showing an entitlement to relief on any ground.

With respect to the district court's determination that Pagan-Soto had two

prior felony convictions for crimes of violence, we argued that Pagan-Soto

had not shown that the district court plainly erred because the riot and

robbery offenses of which he was convicted qualified as crimes of violence

under the Guidelines residual clause, or at least did not obviously fail to

qualify under the residual clause. See Gov't Br. 16-25.

On July 8, 2015, this Court issued an Order permitting the parties to

file supplemental briefs concerning the applicability of Johnson to the

instant case. As explained below, we concede that the rationale of Johnson

applies to the residual clause of the Guidelines definition of crime of

violence, waive any procedural barriers to Pagan-Soto's reliance on

Johnson as a ground for reversing his sentence, and support a remand of

this case for resentencing.

I. The Johnson Decision.

ACCA provides for a mandatory minimum sentence of 15 years of

imprisonment for a defendant who violates 18 U.S.C. § 922(g) and has three

prior convictions for a "violent felony" or a "serious drug offense." 18 U.S.C.

§ 924(e). In Johnson, the Supreme Court held that imposing an increased

3


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sentence under ACCA's residual clause, i.e., the provision that defines a

"violent felony" to include an offense that "involves conduct that presents a

serious potential risk of physical injury to another," 18 U.S.C. §

924(e)(2)(B)(ii), violates the Due Process Clause because the residual clause

is impermissibly vague on its face.

The Court held that the government violates the Fifth Amendment's

due process guarantee "by taking away someone's life, liberty, or property

under a criminal law so vague that it fails to give ordinary people fair notice

of the conduct it punishes, or so standardless that it invites arbitrary

enforcement." 135 S. Ct. at 2556. "The prohibition of vagueness in criminal

statutes," the Court explained, "is a well-recognized requirement,

consonant alike with ordinary notions of fair play and the settled rules of

law,' and a statute that flouts it 'violates the first essential of due process."

Id. at 2556-57 (internal quotation marks omitted) (quoting Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926)). Further, "[t]hese principles apply

not only to statutes defining elements of crimes, but also to statutes fixing

sentences." 135 S. Ct. at 2557.

Johnson held that ACCA's residual clause is unconstitutionally vague

because it combines "indeterminacy about how to measure the risk posed

by a crime with indeterminacy about how much risk it takes for the crime

4


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to qualify as a violent felony." 135 S. Ct. at 2558. The Court explained that

the residual clause requires courts to assess whether a crime presents a

serious potential risk of injury in light of a list of enumerated crimes that

are "far from clear in respect to the degree of risk each poses." Id. (internal

quotation marks omitted) (quoting Begay v. United States, 553 U.S. 137,

143 (2008)). Further, ACCA's "inclusion of burglary and extortion under

the enumerated offenses suggests that a crime may qualify under the

residual clause even if the physical injury is remote from the criminal act,"

but the statute gives no indication of"how remote is too remote." 135 S. Ct.

at 2559. The Court found that the inability of its own cases to develop a

"principled and objective standard" demonstrated the residual clause's

"hopeless indeterminacy." Id. at 2558. The Court concluded that "the

indeterminacy of the wide-ranging inquiry required by the residual clause

both denies fair notice to defendants and invites arbitrary enforcement by

judges." Id. at 2557. Accordingly, the Court held that the residual clause

is "vague in all its applications." Id. at 2561 (rejecting the government's

reliance on the "existence of some clearly risky crimes" to "save the residual

clause"). The Court overruled its decisions in James v. United States, 550

U.S. 192 (2007), and Sykes v. United States, 564 U.S. 1 (2011), in which it

5


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had previously rejected arguments or suggestions in dissenting opinions

that the residual clause was unconstitutionally vague. 135 S. Ct. at 2563.

II. Application of Johnson to the Sentencing Guidelines.

The Guidelines definition of "crime of violence" closely tracks the

ACCA definition of "violent felony." See U.S.S.G. § 4Bl.2(a). In particular,

the residual clause of the crime-of-violence definition is identical to the

residual clause of the ACCA definition. The position of the United States

is that Johnson's constitutional holding regarding ACCA's residual clause

applies to the identically worded Guidelines residual clause. This affects

the application of the career offender Guideline, U.S.S.G. § 4Bl.1, as well

as other Guidelines that use the career-offender Guideline's definition of

"crime of violence." See U.S.S.G. §§ 2Kl.3 & cmt. n.2 (explosive materials

Guideline); 2K2.1 & cmt. n.1 (firearms Guideline); 2Sl.1 & cmt. n.1 (money

laundering Guideline); 4Al.l(e), 4Al.2(p) (criminal history Guidelines);

5K2. l 7 & cmt. n.1 (departure Guideline for semi-automatic firearms); and

7Bl.l(a)(l) & cmt. n.2 (probation and supervised release Guideline).

The Guideline applicable to Pagan-Soto's conviction for being a felon

in possession of a firearm, U.S.S.G. § 2K2. l, provides for a base offense level

of 24 if the defendant has two or more prior felony convictions for crimes of

violence, as defined in U.S.S.G. § 4Bl.2(a). See U.S.S.G. § 2Kl. l(a)(2) & 6


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cmt. n.1. Otherwise, his base offense level would be 12 under U.S.S.G. §

2K2.1(a)(7). In its initial brief, the government defended the district court's

determination that Pagan-Soto's prior felony convictions under Puerto

Rico's "riot" and "robbery" statutes qualified as crimes of violence by relying

on the Guidelines residual clause. See Gov't Br. 16-25. Because the

residual clause of the Guidelines definition is unconstitutionally vague

under the reasoning of Johnson, we no longer believe the district court's

ruling can be supported under the residual clause; and we accept, as we did

in our opening brief, that the court's ruling cannot be supported under the

elements clause of the definition.

The Guidelines crime-of-violence residual clause uses the same

language that Johnson held was impermissibly vague because it "produces

more unpredictability and arbitrariness than the Due Process Clause

tolerates." 135 S. Ct. at 2558. This Court and other courts of appeals have

held that ACCA's residual clause and the Guideline's residual clause must

be interpreted in the same way and have applied decisions interpreting the

two provisions interchangeably. See, e.g., United States v. Velazquez, 777

F.3d 91, 94-98, 94 n.1 (1st Cir. 2015) (interpreting guideline using "ordinary

case" analysis that Johnson found "speculative" and unreliable); United

States v. Travis, 747 F.3d 1312, 1314-17, 1314 n.2 (11th Cir. 2014) (applying

7


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James and Sykes in interpreting guideline); United States v. Boose, 739

F.3d 1185, 1187 n.l (8th Cir. 2014) (court construes ACCA "violent felony"

and guidelines "crime of violence" as "interchangeable"); United States v.

Meeks, 664 F.3d 1067, 1070-72, 1070 n.1 (6th Cir. 2012) (same analysis

applies to ACCA and guidelines); United States v. Griffin, 652 F.3d 793, 802

(7th Cir. 2011) ("[T]he definition of 'violent felony' under the ACCA is the

same as the definition of 'crime of violence' in section 4Bl.2 of the

guidelines, and it would be inappropriate to treat identical texts differently

just because of a different caption." (internal punctuation marks omitted)).

The ACCA cases on which courts have relied to decide whether offenses fall

within the guideline's residual clause are now overruled, leaving courts

with no body of law to apply. After Johnson, judges attempting to

determine whether a particular offense qualifies as a crime of violence

under the residual clause will be forced to rely on "guesswork and

intuition." 135 S. Ct. at 2559.

Application of a vague Guideline conflicts with the proper role of the

Guidelines in providing a uniform baseline for sentencing. Under the

advisory Guidelines system, district courts are still required to "begin all

sentencing proceedings by correctly calculating the applicable Guidelines

range" and to use the Guidelines as "the starting point and the initial

8


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benchmark" for sentencing. Gall v. United States, 552 U.S. 38, 49 (2007);

see Peugh v. United States, 133 S. Ct. 2072, 2083 (2013) ("That a district

court may ultimately sentence a given defendant outside the Guidelines

range does not deprive the Guidelines of force as the framework for

sentencing."). A district court that incorrectly calculates the Guidelines

range is subject to reversal on appeal. Gall, 552 U.S. at 51; see Peugh, 133

S. Ct. at 2083 ("[T]he rule that an incorrect Guidelines calculation is

procedural error ensures that they remain the starting point for every

sentencing calculation in the federal system.").

Consistent with sentencing courts' discretion to sentence within or

outside the advisory Guidelines range, the Supreme Court has held that no

notice is required when a court imposes a sentence outside the Guidelines

range based on the factors in 18 U.S.C. § 3553(a), because defendants no

longer have "[a]ny expectation subject to due process protection" that they

will receive a sentence within the guideline range. Irizarry v. United States,

553 U.S. 708, 713 (2008). But the Guidelines are unlike the broad

sentencing factors in Section 3553(a), in that their function is to provide a

precise starting point for sentencing. Courts have discretion to weigh the

Section 3553(a) factors and determine the appropriate sentence, but they

have no discretion about the proper legal interpretation of the guidelines.

9


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This is evidenced by the numerous appellate decisions, involving appeals

brought by defendants and by the government, in which courts have applied

de novo review to questions of guidelines interpretation. See, e.g., United

States v. Bercian-Flores, 786 F.3d 309, 311 (4th Cir. 2015); United States v.

Keys, 785 F.3d 1240, 1242 (8th Cir. 2015); United States v. Alphas, 785 F.3d

775, 780 (1st Cir. 2015); United States v. Kimbrough, 536 F.3d 463, 465 (5th

Cir. 2008). Moreover, the notice concerns addressed in Irizarry are distinct

from the danger of "arbitrary enforcement by judges" presented by the

residual clause. See Johnson, 135 S. Ct. at 2557; see id. at 2556 (Fifth

Amendment forbids application of "a criminal law so vague that it fails to

give ordinary people fair notice of the conduct it punishes, or so

standardless that it invites arbitrary enforcement" (emphasis added)).

III. The Government waives any procedural barriers to this Court's consideration of Pagan-Soto's argument that the Guidelines residual clause is impermissibly vague.

Pagan-Soto did not object to the district court's determination that he

had at least two prior felony offenses for crimes of violence. Ordinarily, his

contention on appeal would be reviewed for plain error. To expedite

resolution of the instant case, the Government waives any reliance on the

plain-error standard of review. We also waive any argument that Pagan-

10


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Soto waived the vagueness argument he has raised in his supplemental

brief by not raising it in his initial briefing.

The district court's error in finding that Pagan-Soto had prior

convictions for crimes of violence was not harmless. After accepting the

recommended sentencing range of 70-87 months of imprisonment, the

district court elected to vary upward to 96 months of imprisonment. If none

of Pagan-Soto's prior convictions qualifies as a crime of violence, his base

offense level would be 12 under U.S.S.G. § 2K2. l(a)(7), adjusted two levels

under Section 2K2.l(b)(4), subject to only a two level acceptance-of

responsibility adjustment under U.S.S.G. § 3E 1. l(a), yielding a total

offense level of 12. The recommended sentencing range, given Pagan-Soto's

criminal history category of IV, would be 21-27 months of imprisonment.

The district court would have discretion to vary upward from that range,

but the present record does not supports a conclusion that the district court

would in fact have varied upward to 96 months of imprisonment if the

recommended range had been reduced to 21-27 months. Accordingly, a

remand for resentencing is appropriate. We anticipate Pagan-Soto's other

claims will be mooted by resentencing.

11


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CONCLUSION

For the reasons given above, the Court should vacate Pagan-Soto's

sentence and remand the case for resentencing.

Respectfully submitted,

" ROSA E. RODRIGUEZ-VELEZ United States Attorney

LESLIE R. CALDWELL Assistant Attorney General

NELSON PEREZ Assistant U.S. Attorney District of Puerto Rico

SUNG-HEE SUH Deputy Assistant Attorney General

August 11, 2015

s/ Richard A. Friedman RICHARD A. FRIEDMAN Appellate Section, Criminal Division United States Department of Justice Washington, D.C. 20530 202-514-3965; (fax) 202-305-2121 [email protected] Counsel for Appellee

12


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CERTIFICATE OF SERVICE

The undersigned certifies that on August 11, 2015, the foregoing

supplemental brief was filed electronically. Notice of this filing will be sent

by operation of the Court's electronic filing system to all parties indicated

on the electronic filing receipt, and those parties may access the brief

through the Court's electronic filing system. Paper copies of the brief have

been sent by overnight delivery to the Court and to Appellant Pagan-Soto's

counsel of record:

Ines McGillion P.O. Box 212 Putney, Vermont 05346 802-258-6441 [email protected]

August 11, 2015

13

sf Richard A. Friedman Richard A. Friedman


case: 13-10517, 08/17/2015, ID: 9649654, DktEntry: 41, Page 1of10

United States Attorney Northern District of California

I I',, Floor, Federal Building (4I 5)436-7200 450 Golden Gate Ave., Box 36055 FAX (4I5) 436-7234 San Francisco, CA 94 I 02-3495

VIAECF

The Hon. Molly Dwyer, Clerk of Court United States Court of Appeals for the Ninth Circuit 95 Seventh Street P.O. Box 193939 San Francisco, California 94103-1526

August 17, 2015

Re: United States v. Jason Lee, CA No. 13-10507 (Circuit Judges Bea, Ikuta, Hurwitz) (argued September 11, 2014)

Dear Ms. Dwyer:

Please accept this supplemental letter brief for filing in response to this

Court's July 13, 2015, order requiring the parties to file letter briefs addressing "(1)

whether the Supreme Court's decision in Johnson [ v. United States, 135 S. Ct.

2551 (2015)] that the residual clause is void for vagueness in the context of

imposing a mandatory statutory enhancement under the Armed Career Criminal

Act (ACCA) is applicable to the residual clause of§ 4Bl.2(a) of the discretionary

Sentencing Guidelines, and (2) whether this court should follow the Sixth Circuit's

recent decision in United States v. Darden, No. 14-5537 (6th Cir. July 6, 2015)


Case: 13-10517, 08/17/2015, ID: 9649654, DktEntry: 41, Page 2of10

(vacating the defendant's sentence and remanding for reconsideration in light of

Johnson)."

The United States concedes that the Supreme Court's decision in Johnson,

holding that the ACCA's residual clause is void for vagueness, applies to the

identically worded clause of the career offender guideline, USSG § 4B l .2(a)(2).

The career offender provision of the Sentencing Guidelines provides for enhanced

sentences for certain defendants who have two prior convictions for a "crime of

violence" or "serious drug offense." USSG § 4Bl.2(a). The definition of"crime

of violence" in USSG § 4Bl.2 contains a residual clause that is identical to the

ACCA's residual clause. See USSG § 4Bl.2(a)(2) (defining "crime of violence" to

include an offense that "otherwise involves conduct that presents a serious

potential risk of physical injury to another"). This Court recently reiterated that the

ACCA's residual clause and the Guidelines' residual clause should be interpreted

in the same way. See United States v. Willis, 2015 WL 4547542, *7 (9th Cir. July

29, 2015) ("Like 'violent felony' in ACCA, 'crime of violence' in§ 4Bl.2(a)(2) of

the Sentencing Guidelines is defined as including an offense that 'otherwise

involves conduct that presents a serious potential risk of physical injury to

another.' We make no distinction between 'violent felony' in ACCA and 'crime of

violence' in§ 4Bl.2(a)(2) for purposes of interpreting the residual clauses.")

(citing United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013)); United

2



States v. Crews, 621F.3d849, 852 n.4 (9th Cir. 2010); see also United States v.

Griffin, 652 F.3d 793, 802 (7th Cir. 2011) ("[T]he definition of 'violent felony'

under the ACCA is the same as the definition of 'crime of violence' in section

4Bl.2 of the guidelines, and it would be inappropriate to treat identical texts

differently just because of a different caption." (internal punctuation marks

omitted)).

The career offender guideline's residual clause uses the same language that

Johnson held was impermissibly vague becaµse it "produces more unpredictability

and arbitrariness than the Due Process Clause tolerates." 135 S. Ct at 2558. Under

the advisory guidelines system, district courts are still required to "begin all

sentencing proceedings by correctly calculating the applicable Guidelines range"

and to use the guidelines as "the starting point and the initial benchmark for

sentencing." Gall v. United States, 552 U.S. 38, 49 (2007); see Peugh v. United

States, 133 S. Ct. 2072, 2083 (2013) ("That a district court may ultimately sentence

a given defendant outside the Guidelines range does not deprive the Guidelines of

force as the framework for sentencing."). Application of a vague guideline thus

conflicts with the proper role of the Guidelines in providing a uniform baseline for

sentencing.

This Court has held that a defendant may make vagueness challenges to the

mandatory guidelines. See United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir.

3



1997) (stating that Court has recognized vagueness challenges to the guidelines "in

deference to the Supreme Court's declaration that 'vague sentencing provisions

may pose constitutional questions if they do not state with sufficient clarity the

consequences of violating a given criminal statute"' (quoting United States v.

Batchelder, 442 U.S. 114, 123 (1979)). Other courts have assumed that defendants

may raise vagueness challenges to the advisory guidelines. See, e.g., United States

v. Van Mead, 773 F.3d 429, 438 n.7 (2d Cir. 2014) (rejecting claim that career

offender guideline's residual clause is unconstitutionally vague); United States v.

Cowan, 696 F.3d 706, 708-09 (8th Cir. 2012) (same); United States v. Mendez

Casarez, 624 F.3d 233, 241 n.7 (5th Cir. 2010) (rejecting vagueness challenge to

definition of"crime of violence" in Guidelines § 2Ll.2), abrogated on other

grounds, United States v. Rodriguez, 711F.3d541 (5th Cir. 2013) (en bane).

Cases precluding vagueness challenges predate Peugh, in which the Supreme

Court held that the Ex Post Facto Clause applies to advisory Guidelines. 135 S. Ct.

at 2078.

For all of these reasons, the United States concedes that Johnson applies to

Section 4B 1.2 (a)(2), the career offender guideline, and that Johnson applies to

cases pending on direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328

(1987).

4



In this case, in the district court and before this Court, the government only

argued that Lee's prior convictions for violating California Penal Code§ 243.1

(battery against a custodian officer) and California Penal Code§ 69 (resisting an

executive officer) qualified as crimes of violence under the residual clause. The

United States therefore concedes that, unless Lee has waived the issue or the error

did affect Lee's substantial rights or the fairness and integrity of the proceedings,

his sentence should be vacated and the case remanded for resentencing.

Regarding waiver, Lee did not challenge his sentence on vagueness grounds

in either his opening or reply briefs. Instead, he raised the issue in a letter filed

pursuant to Federal Rule of Appellate Procedure 28G) on July 1, 2015. Given this

Court's January 2015 order vacating submission of the case pending the Supreme

Court's decision in Johnson, however, and given Lee's assertion of the argument

in his 28G) letter, the government believes that this Court may evaluate Lee's

vagueness challenge under the plain error standard. Compare United States v.

Replogle, 678 F.3d 940, 942 (8th Cir. 2012) (seeing no compelling reason to

exercise its discretion to consider argument raised for first time in petition for writ

of certiorari, where remand was based on government's acquiescence that court of

appeals was best-positioned to determine in first instance whether Replogle had

forfeited his claim).

5



Under the plain error standard, this Court may not reverse unless there is

error that is plain (i.e., clear or obvious, rather than subject to reasonable dispute),

that affected the appellant's substantial rights, and that seriously affected the

fairness, integrity or public reputation of judicial proceedings. United States v.

Marcus, 560 U.S. 258, 262 (2010). As stated above, the government concedes that

Johnson applies to the identically worded residual clause ofUSSG § 4Bl.2(a)(2),

and that the error is plain. Lee's convictions for California Penal Code§ 243.1 and

California Penal Code§ 69 do not qualify as crimes of violence, and the district

court's calculation of Lee's base offense level based on his qualification as a career

offender was incorrect.

Although the district court here imposed a substantially below-Guidelines

sentence of 120 months, the record reveals a reasonable probability that the

sentence would have been different absent the error. See United States v.

Dominguez Benitez, 542 U.S. 74, 81-82 (2004) (explaining that defendant's

substantial rights are affected by error where there is reasonable probability that

but for claimed error, result of proceeding would have been different). The district

court specifically informed defendant that it would "resentence" him ifthe Court

of Appeals determined that the two offenses upon which it relied to conclude that

he was a career offender were not in fact crimes of violence. See ER 33-37. On

this record, therefore, the government there is a reasonable probability that the

6


Case: 13-10517, 08/17/2015, ID: 9649654, DktEntry: 41, Page 7 of 10

error may have "increased the length of [Lee's] sentence," and so the fourth prong

of the plain error standard is satisfied. United States v. Tapia, 665 F.3d 1059, 1063

(9th Cir. 2011); see United States v. Vargem, 747 F.3d 724, 732 (9th Cir. 2014)

(finding that fairness of judicial proceedings affected by error that "may well have

resulted in a longer sentence"). 1

In sum, for the reasons stated, the United States agrees that the Court should

vacate the sentence and remand for resentencing.

cc: Ethan A. Balogh, Esq. (VIA ECF)

Very truly yours,

MELINDA HAAG United States Attorney

Isl Barbara Valliere BARBARA J. VALLIERE Chief, Appellate Division Assistant United States Attorney

1 Because the government.agrees that, based on its concession, remand for resentencing is required on this record, the Court need not address Question 2. That said, the United States notes that the Sixth Circuit's characterization of the Supreme Court's post-Johnson's orders, known as "GVRs," is incorrect. The plain wording of the Supreme Court's orders in the cases cited in Darden demonstrates that the Court merely vacated the judgments of the courts of appeals that had affirmed the defendants' sentences and remanded to those courts of appeals for further consideration in light of Johnson. Unlike a summary reversal, an order that summarily grants certiorari, vacates the judgment and remands for further consideration (GVR order) is "not ... a final determination on the merits," Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001), but a procedural vehicle used by the Supreme Court to give the court of appeals the opportunity to reconsider its decision in light of an intervening development.

7



CERTIFICATE OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, counsel for the United States of

America states that there are no related cases to this appeal.

Dated: August 17, 2015 Isl Barbara J. Valliere BARBARA J. VALLIERE .Assistant United States Attorney

8



CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit Rule 32-1, I certify that the

attached supplemental letter brief is:

X Proportionately spaced, has a typeface of 14 points or more and contains 1,497 words or less, and is no more than .Ll._pages; or,

Monospaced, has 10.5 or fewer characters per inch, and contains words or lines of text

Dated: August 17, 2015 Isl Barbara J. Valliere BARBARA J. VALLIERE Assistant United States Attorney

9




I, Hui Chen, certify that I am an employee of the Office of the United States

Attorney, Northern District of California, a person over 18 years of age and not a

party to the within action. I certify that on August 17, 2015, I electronically

submitted the

• UNITED STATES' SUPPLEMENTAL LETTER BRIEF

in the case of United States v. Jason Lee, No. 13-10517, with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Dated: August 17, 2015

10

lw HIM,, Gh&vv Hui Chen, Paralegal


Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 1

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

NO. 14-2159

UNITED STATES OF AMERICA,

Plaintiff/ Appellee,

vs.

JONATHAN M. MADRID,

Defendant/ Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

DISTRICT COURT NO. CR-13-3361 SCOTT W. SKAVDAHL, UNITED STATES DISTRICT JUDGE

FOR THE DISTRICT OF WYOMING, SITTING BY DESIGNATION

August 2015

APPELLEE'S SUPPLEMENTAL BRIEF ONE ATTACHMENT IN DIGITAL FORMAT

DAMON P. MARTINEZ United States Attorney

LAURAFASHING Assistant United States Attorney Post Office Box 607 Albuquerque, NM 87103 (505) 346-7274 Attorneys for Appellee



TABLE OF CONTENTS

PAGE

TABLE OF CASES AND OTHER AUTHORITIES ................................ .ii

INTRODUCTION ...................................................................................... l

ARGUMENT ............................................................................................. 1

I. THE UNITED STATES CONCEDES THAT THE RESIDUAL CLAUSE OF USSG § 4Bl.2(a)(2) IS UNCONSTITUTIONALLY VAGUE ................................................................................................. l

A. The Johnson Decision .................................................................... 1

B. The Application of Johnson to the Career Offender Guideline's Residual Clause .............................................................................. 3

C. The Application of Johnson to this Case ..................................... 10

CONCLUSION ........................................................................................ 15

BRIEF FORMAT CERTIFICATION ...................................................... 16

CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION .............. 17

1



TABLE OF CASES AND OTHER AUTHORITIES

TABLE OF CASES

Begay v. United States,

PAGE

553 U.S. 137 (2008) ................................................................................ 2

Gall v. United States, 552 U.S. 38 (2007) .............................................................................. 5, 6

Griffi"th v. Kentucky, 479 U.S. 314 (1987) .............................................................................. 11

Henderson v. United States, 133 S. Ct. 1121 (2013) .................................................................... 10, 11

Irizarry v. United States, 553 U.S. 708 (2008) ................................................................................ 6

James v. United States, 550 U.S. 192 (2007) ................................................................................ 2

Johnson v. United States, 135 S. Ct. 2551 (2015) .................................................................. passim

Peugh v. United States, 133 S. Ct. 2072 (2013) .................................................................... 5, 6, 9

Stinson v. United States, 508 U.S. 36 (1993) ................................................................................ 12

Sykes v. United States, 564 U.S. 1 (2011) .................................................................................... 2

United States v. Alphas, 785 F.3d 775 (l•t Cir. 2015) ................................................................... 7

United States v. Batchelder, 442 U.S. 114 (1979) ................................................................................ 9

11



United States v. Bercian-Flores, 786 F.3d 309 (4th Cir. 2015) ................................................................... 7

United States v. Booker, 543 U.S. 220 (2005) ................................................................................ 9

United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) ................................................................. 4

United States v. Brierton, 165 F.3d 1133 (7th Cir. 1999) ................................................................. 8

United States v. Charles, 576 F.3d 1060 (10th Cir. 2009) ............................................................... 7

United States v. Cowan, 696 F.3d 706 (8th Cir. 2012) .................................................................. 8

United States v. Darden, 605 F. App'x 545 (6th Cir. July 6, 2015) (unpublished) ......................... 7

United States v. Griffin, 652 F.3d 793 (7th Cir. 2011) ................ , .................................................. 4

United States v. Groves, 369 F.3d 1178 (10th Cir. 2004) ............................................................. 14

United States v. Johnson, 130 F .3d 1352 (9th Cir. 1997) .................................................................. 7

United States v. Kelly, 1 F.3d 1137 (10th Cir. 1993) ................................................................... 8

United States v. Keys, 785 F.3d 1240 (8th Cir. 2015) ................................................................. 7

United States v. Maurer, 639 F.3d 72 (3d Cir. 2011) ...................................................................... 8

United States v. McConnell, 605 F.3d 822 (10th Cir. 2010) ................................................................. 4

111



United States v. Meeks, 664 F .3d 1067 (6th Cir. 2012) ................................................................. 4

United States v. Rodriguez, 664 F.3d 1032 (6th Cir. 2011) ............................................................... 13

United States v. Smith, 73 F.3d 1414 (6th Cir. 1996) ............................................................... 7, 8

United States v. Templeton, 543 F.3d 378 (7th Cir. 2008) ................................................................... 5

· United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012) ........................................................... 7, 8, 9

United States v. Travis, 747 F.3d 1312 (11th Cir. 2014) ............................................................... 4

United States v. Van Mead, 773 F.3d 429 (2tl Cir. 2014) .................................................................... 8

United States v. Velazquez, 777 F.3d 91 (l•t Cir. 2015) ..................................................................... 4

United States v. West, 550 F.3d 952 (10th Cir. 2008) ................................................................. 4

United States v. Wivell, 893 F.2d 156 (8th Cir. 1990) ............................................................... 7, 8

Yeager v. United States, 557 U.S. 110 (2009) .............................................................................. 13

IV



TABLE OF OTHER AUTHORITIES

PAGE

18 U.S.C. § 3553(a) .................................................................................... 6

18 U.S.C. § 924(e)(2)(B) ........................................................................................ 1

18 U.S.C. § 924(e)(2)(B)(ii) ................................................................................... 3

USSG § 4Bl.1 ......................................................................................................... 3

USSG § 4Bl.l(a) .................................................................................................... 7

USSG § 4Bl.2 .......................................................................................... 12, 13, 14

USSG § 4Bl.2(a)(2) ............................................................................................ l, 3

I

v



INTRODUCTION

On July 24, 2015, this Court ordered the parties to submit

simultaneous briefs on the impact of the Supreme Court's decision in

Johnson v. United States, 135 S. Ct. 2551 (2015), on the resolution of

the issues presented in this appeal. This brief is submitted in

compliance with that order.

ARGUMENT

I. THE UNITED STATES CONCEDES THAT THE RESIDUAL CLAUSE OF USSG § 4Bl.2(a)(2) IS UNCONSTITUTIONALLY VAGUE.

A. The Johnson Decision

In Johnson, the Supreme Court held that the final clause of the

definition of "violent felony" in the Armed Career Criminal Act (ACCA)

-also known as the "residual clause"-is void for vagueness. The

residual clause defines a "violent felony" as an offense that "involves

conduct that presents a serious potential risk of physical injury to

another." 18 U.S.C. § 924(e)(2)(B). The Court held that this clause is

unconstitutionally vague because it combines "indeterminacy about how

to measure the risk posed by a crime with indeterminacy about how

much risk it takes for the crime to qualify as a violent felony." 135 S.

Ct. at 2558. The Court explained that the residual clause requires

1



courts to assess whether a crime presents a serious potential risk of

injury in light of a list of enumerated crimes that are "far from clear in

respect to the degree of risk each poses." Id. (internal quotation marks

omitted) (quoting Begay v. United States, 553 U.S. 137, 143 (2008)).

Further, the ACCA's "inclusion of burglary and extortion among

the enumerated offenses suggests that a crime may qualify under the

residual clause even if the physical injury is remote from the criminal

act," but the statute gives no indication of "how remote is too remote."

135 S. Ct. at 2559. The Court found that the inability of its own cases

to develop a "principled and objective standard" demonstrated the

residual clause's "hopeless indeterminacy." Id. at 2558. The Court

concluded that "the indeterminacy of the wide-ranging inquiry required

by the residual clause both denies fair notice to defendants and invites

arbitrary enforcement by judges." Id. at 2557. The Court held that the

residual clause is "vague in all its applications."· Id. at 2561 (rejecting

the government's reliance on the "existence of some clearly risky

crimes" to "save the residual clause"). The Court overruled its decisions

in James v. United States, 550 U.S. 192 (2007) and Sykes v. United

States, 564 U.S. 1 (2011), in which it previously had rejected arguments

2



or suggestions in dissenting opinions that the residual clause was

unconstitutionally vague. 135 S. Ct. at 2563.

B. The Application of Johnson to the Career Offender Guideline's Residual Clause

The ACCA's residual clause is identical to the residual clause in

USSG § 4Bl.2(a)(2), which defines a "crime of violence" for the purpose

of determining the application of the career offender guideline.

Compare 18 U.S.C. § 924(e)(2)(B)(ii) with USSG § 4Bl.2(a)(2). The

career offender guideline-the guideline at issue in this case-provides

for enhanced sentences for certain defendants who have two prior

convictions for a "crime of violence" or a "serious drug offense." USSG

§ 4Bl.1.

The position of the United States is that Johnsons constitutional

holding regarding the ACCA's residual clause applies to the identically

worded clause of the career offender guideline. The career offender

guideline's residual clause uses the same language that Johnson held

was impermissibly vague because it "produces more unpredictability

and arbitrariness than the Due Process Clause tolerates." 135 S. Ct. at

2558. Courts of appeals, including this Court, have held that the

ACCA's residual clause and the career offender guideline's residual

3



clause must be interpreted in the same way, and they have applied

decisions interpreting the two provisions interchangeably. See, e.g.,

United States v. McConnell, 605 F.3d 822, 828 (10th Cir. 2010)

("Although [United States v.l West[, 550 F.3d 952, (10th Cir. 2008))

involved the ACCA's characterization of a prior offense as a 'violent

felony,' while this case involves the Guidelines' definition of a 'crime of

violence,' the nearly identical language in those two provisions allows

us to consider precedent involving one in construing the other."); see

also, e.g., United States v. Velazquez, 777 F.3d 91, 94-98, 94 n.1 (1•t

Cir. 2015) (interpreting guideline using "ordinary case" analysis that

Johnson found "speculative" and unreliable); United States v. Travis,

747 F.3d 1312, 1314-17, 1314 n.2 (11th Cir. 2014) (applying James and

Sykes in interpreting guideline); United States v. Boose, 739 F.3d 1185,

1187 n.1 (8th Cir. 2014) (court construes ACCA's "violent felony" and the

career offender guideline's "crime of violence" as "interchangeable");

United States v. Meeks, 664 F.3d 1067, 1070-72, 1070 n.1 (6th Cir.

2012) (same analysis applies to ACCA and guidelines); United States v.

Griffin, 652 F.3d 793, 802 (7th Cir. 2011) ("[T]he definition of'violent

felony' under the ACCA is the same as the definition of 'crime of

4



violence' in section 4Bl.2 of the guidelines, and '[i]t would be

inappropriate to treat identical texts differently just because of a

different caption."' (quoting United States v. Templeton, 543 F.3d 378,

380 (7th Cir. 2008))). The ACCA cases on which courts have relied to

decide whether offenses fall within the guideline's residual clause are

now overruled, leaving courts with no body of law to apply. After

Johnson, judges attempting to determine whether a particular offense

qualifies as a crime of violence under the residual clause will be forced

to rely on "guesswork and intuition." 135 S. Ct. at 2559.

Application of a vague guideline conflicts with the proper role of

the Guidelines in providing a uniform baseline for sentencing. Under

the advisory guidelines system, district courts still must "begin all

sentencing proceedings by correctly calculating the applicable

Guidelines range" and to use the Guidelines as "the starting point and

the initial benchmark" for sentencing. Gall v. United States, 552 U.S.

38, 49 (2007); see also Peugh v. United States, 133 S. Ct. 2072, 2083

(2013) ("That a district court may ultimately sentence a given defendant

outside the Guidelines range does not deprive the Guidelines of force as

the framework for sentencing."). A district court that incorrectly

5



calculates the advisory guideline range is subject to reversal on appeal.

Gall, 552 U.S. at 51; see also Peugh, 133 S. Ct. at 2083 ("[T]he rule that

an incorrect Guidelines calculation is procedural error ensures that

they remain the starting point for every sentencing calculation in the

federal system.").

Consistent with sentencing courts' discretion to sentence within or

outside the advisory guideline range, the Supreme Court has held that

no notice is required when a court imposes a sentence outside the

guideline range based on the factors in 18 U.S.C. § 3553(a) because

defendants no longer have "[a]ny expectation subject to due process

protection" that they will receive a sentence within the guideline range.

Irizarry v. United States, 553 U.S. 708, 713 (2008). The Guidelines,

however, are unlike the broad sentencing factors in§ 3553(a). Their

function is to provide a precise starting point for sentencing. Courts

have discretion to weigh the § 3553(a) factors and to determine the

appropriate sentence, but they have no discretion about the proper legal

interpretation of the Guidelines. This is evidenced by the numerous

appellate decisions in which this Court and others have applied de novo

review to questions of Guidelines interpretation. See, e.g., United

6



States v. Charles, 576 F.3d 1060, 1066 (10th Cir. 2009) ("Whether a

prior conviction qualifies as a 'crime of violence' for the purposes of

USSG § 4B 1. l(a) is a question of statutory construction that we review

de novo."); see also, e.g., United States v. Alphas, 785 F.3d 775, 780 (l•t

Cir. 2015); United States v. Bercian-Flores, 786 F.3d 309, 311 (4th Cir.

2015); United States v. Keys, 785 F.3d 1240, 1242 (8th Cir. 2015). The

notice concerns addressed in Irizarry are distinct from the danger of

"arbitrary enforcement by judges" of the career offender guideline's

residual clause. See Johnson, 135 S. Ct. at 2556, 2557.

Three courts of appeals have held that constitutional vagueness

challenges may not be brought against the Guidelines. See United

States v. Tichenor, 683 F.3d 358, 362-67 (7th Cir. 2012); United States

v. Smith, 73 F.3d 1414, 1417-18 (6th Cir. 1996); United States v. Wivell,

893 F.2d 156, 159-60 (8th Cir. 1990). But see United States v. Darden,

605 F. App'x 545 (6th Cir. July 6, 2015) (unpublished) (vacating career

offender sentence in light of Johnson). The Ninth Circuit has held

otherwise, specifically recognizing that defendants may challenge

mandatory guideline provisions on vagueness grounds. See United

States v. Jr:hnson, 130 F.3d 1352, 1354 (9th Cir. 1997). Other courts,

7



including this Court, appear to have assumed that defendants may

raise vagueness challenges to the Guidelines. See United States v.

Kelly, 1F.3d1137, 1142-43 (10th Cir. 1993) (rejecting vagueness

challenge to provision authorizing upward departure when defendant's

conduct was "unusually heinous, cruel, brutal, or degrading to the

victim"); see also, e.g., United States v. Van Mead, 773 F.3d 429, 438

n.7 (2tl Cir. 2014) (rejecting claim that career offender guideline's

residual clause is unconstitutionally vague); United States v. Cowan,

696 F.3d 706, 708-09 (8th Cir. 2012) (same); United States v. Maurer,

639 F.3d 72, 78 n.4 (3d Cir. 2011) (rejecting vagueness challenge to child

pornography guideline).

The cases holding that the Guidelines are not subject to vagueness

challenges predate the decisions in Johnson and Peugh, and this Court

should not rely on them. Those cases reasoned that the Guidelines "do

not establish the illegality of any conduct," and are "directives to judges

for their guidance in sentencing convicted criminals, not to citizens at

large." Tichenor, 683 F.3d at 364 (quoting United States v. Brierton,

165 F.3d 1133, 1139 (7th Cir. 1999)); see also Smith, 73 F.3d at 1417-18

(same); Wive]], 893 F.2d at 159 (vagueness doctrine "presume[s] a law

8


Appellate case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 15

that attempts to proscribe or prescribe conduct"). Johnson rejected that

approach, holding that vagueness principles "apply not only to statutes

defining elements of crimes, but also to statutes fixing sentences." 135

S. Ct. at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123

(1979)); c£ Tichenor, 683 F.3d at 365 (dismissing "[t]he isolated

comment from Batchelder' as "mere dictum").

The cases holding that vagueness principles are inapplicable to

the Guidelines also reasoned that the Guidelines do not function in the

same way as statutes because they merely structure sentencing courts'

discretion. See Tichenor, 683 F.3d at 365. Those cases, however, were

decided before the Supreme Court's decision in Peugh, in which the

Court held that the Ex Post Factor Clause applies to advisory

Guidelines. 133 S. Ct. at 2078. Peugh rejected many of the arguments

made by courts that have declined to consider vagueness challenges to

the Guidelines. The Court dismissed the government's argument that

the Guidelines were merely "guideposts" that lacked '"the force and

effect of laws."' Id. at 2085-86 (quoting United States v. Booker, 543

U.S. 220, 234 (2005)). The Court identified numerous features of the

post· Booker sentencing system that ensure that the Guidelines

9



continue to have "legal force," id. at 2087, and serve as the "framework"

for sentencing, even when a court ultimately imposes a sentence outside

the advisory guideline range. Id. at 2083. The Due Process Clause

inquiry in Johnson, while distinct from the ex post facto inquiry in

Peugh, similarly depends on principles of fair notice, as well as avoiding

arbitrary enforcement of sentencing provisions. It is unlikely that the

Supreme Court would conclude that those concerns are implicated only

if a vague provision creates a legal certainty of a higher sentence,

especially given the Court's emphasis in Peugh on the Guidelines'

critical role as the starting point and "lodestone" of sentencing. 133 S.

Ct. at 2084. Thus, the United States concedes that the career offender

guideline's residual clause is unconstitutionally vague.

C. The Application of Johnson to this Case

Because Madrid did not raise a vagueness challenge to the career

offender guideline's residual clause at sentencing, this Court reviews

his claim for plain error only. Under plain error review, Madrid must

demonstrate that the district court erred, the error was plain, that it

affected his substantial rights, and that the error "seriously affect[ed]

10



the fairness, integrity or public reputation of judicial proceedings."

Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013).

Should this Court reject the government's argument that Madrid's

prior aggravated sexual assault conviction is a forcible sex offense, the

United States concedes that Madrid can establish that the district court

committed reversible plain error by relying on the career offender

residual clause to enhance his sentence. Johnson applies to all cases

"pending on direct review or not yet final" as of June 26, 2015. Griffi."th

v. Kentucky, 479 U.S. 314, 328 (1987). Reliance on an

unconstitutionally vague guideline provision therefore was error that

was plain. Without the career offender enhancement, Madrid's total

offense level would have been 23, which would have resulted in an

advisory guideline sentencing range of 92 to 115 months in prison,

rather than 188 to 235 months. Given that the district court imposed a

bottom·of·the·guidelines sentence of 188 months, there is a reasonable

probability that Madrid would have received a substantially lower

sentence had the district court not applied the career offender

enhancement. Because of the substantial difference in the two advisory

guideline ranges, the error seriously affected the fairness of Madrid's

11



sentencing proceeding. Thus, if the Court finds that Madrid's prior

offense does not qualify as a forcible sex offense, it should remand the

case to the district court for resentencing.

Johnson, however, does not affect the application of other

provisions of the career offender guideline. Courts still may classify a

defendant as a career offender based on an offense listed in the

commentary to § 4B 1.2 even if the offense could not fall within any part

of the definition of "crime of violence" other than the residual clause.

Guidelines commentary that "interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal statute, or

is inconsistent with, or a plainly erroneous reading of, that guideline."

Stinson v. United States, 508 U.S. 36, 38 (1993). In Stinson, the Court

held that the career offender guideline commentary that excludes felon

in-possession offenses from the definition of"crime of violence," while

not "compelled by the guideline text," was "a binding interpretation of

the phrase 'crime of violence."' Id. at 47. Likewise, the Commission's

interpretation of "crime of violence" to include the offenses listed in the

commentary, including forcible sex offenses, "does not run afoul of the

Constitution or a federal statute" and "is not plainly erroneous or

12



inconsistent with§ 4Bl.2." Id. (internal quotation marks omitted). The

commentary's list of enumerated offenses is independent of the residual

clause and remains valid. See, e.g., United States v. Rodriguez, 664

F.3d 1032, 1038-39 (6th Cir. 2011) (court "need not reach the residual

clause" to determine whether conviction for aggravated assault qualifies

as a crime of violence).

Although the district court relied on the residual clause to find

that Madrid's prior offense was a crime of violence, the government may

defend the district court's judgment on any ground supported by the

record. Yeager v. United States, 557 U.S. 110, 126 (2009) ("We

recognize the Government's right, as the prevailing party ... , to defend

its judgment on any ground properly raised below whether or not that

ground was relied upon, rejected, or even considered by the District

Court .... " (citation and internal quotation marks omitted)). As argued

in the government's answer brief at pages 10 through 18, Madrid's prior

aggravated sexual assault conviction qualifies as a forcible sex offense.

In addition, on August 12, 2015, the Sentencing Commission

published for comment a proposed amendment to the career offender

13



guideline. I The proposed amendment not only eliminates the residual

clause in light of the Supreme Court's decision in Johnson, but it also

"amends§ 4Bl.2 to clarify and revise the list of'enumerated' offenses ..

. . The proposed amendment makes some revisions to the list of

enumerated offenses, moves all enumerated offenses to the guideline,

and provides definitions for the enumerated offenses in the

commentary." Proposed Amendment at 2. The proposed amendment

clarifies that a "forcible sex offense" is "any offense requiring a sexual

act or sexual contact to which consent to the actor's conduct (i) is not

given, or (ii) is not legally valid, such as where consent to the conduct is

involuntary, incompetent, or coerced." Id. at 5. Although the proposed

amendment only has been published for comment, should it be enacted,

the Court may consider clarifying amendments to the Guidelines to help

it understand an older version of the Guidelines. See United States v.

Groves, 369 F.3d 1178, 1182 (10th Cir. 2004) ("[W]e have repeatedly held

that it is proper to consider amendments to the guidelines enacted after

1 This proposed amendment is available at www.ussc.gov/guidelinesmanual/amendments-guidelines-manual. For the Court's convenience, a copy is attached to this brief.

14



the date of the offense so long as they are only 'clarifying,' as opposed to

'substantive."').

Because the Texas legislature has made clear that a child under

fourteen cannot consent to sexual activity under any circumstances,

even ifthe child purportedly consented to the activity, the child's

consent would be legally invalid. Madrid's prior aggravated sexual

assault conviction therefore constitutes a forcible sex offense. The

Court should affirm Madrid's sentence.

CONCLUSION

The Court should affirm the district court's judgment because

Madrid's prior conviction for aggravated sexual assault on a child under

fourteen is a forcible sex offense. If this Court concludes otherwise, it

should remand the case to the district court for resentencing .

15

. Respectfully submitted,

DAMON P. MARTINEZ United States Attorney

s\ Laura Fashing LAURA FASHING Assistant U.S. Attorney NM Bar No. 8013 P. 0. Box 607 Albuquerque, NM 87103 (505) 346-7274



BRIEF FORMAT CERTIFICATION

Pursuant to Federal Rules of Appellate Procedure 32(a) and (c),

and this Court's July 24, 2015 order, I certify that this brief is

proportionately spaced, has a typeface of 14 points, and is no more than

15 pages.

I relied on my word processor to obtain the count. My

wordprocessor software is Word 2010.

I certify that the information on this form is true and correct to

the best of my knowledge and belief formed after reasonable inquiry.

DATED this 20th day of August, 2015.

s \ Laura Fashing LAURA FASHING Assistant United States Attorney

16



CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION

I HEREBY CERTIFY that the foregoing brief was filed with the Clerk

of the Court for the United States Court of Appeals for the Tenth Circuit by

using the appellate CM/ECF system on this 20th day of August, 2015, and

that the original and seven photocopies of the foregoing brief will be sent by

Federal Express to the United States Court of Appeals for the Tenth Circuit,

Office of the Clerk, located at the Byron White United States Courthouse,

1823 Stout Street, Denver, Colorado 80257, within two business days of the

electronic filing.

I ALSO CERTIFY that Gregory J. Garvey, attorney for Defendant-

Appellant Jonathan M. Madrid, is a registered CM/ECF user, and that

service will be accomplished by the appellate CM/ECF system.

I ALSO CERTIFY that any required privacy redactions have been

made, and the copy of this document filed using the CM/ECF system is an

exact copy of the hard copies filed with the Clerk.

I ALSO CERTIFY that the digital submission of this document has

been scanned for viruses with scanning program Trend Micro OfficeScan

10.6.5614 Service Pack 3, most recently updated 8/19/2015, and, according to

the program, the file is free of viruses.

s\ Laura Fashing LAURA FASHING Assistant United States Attorney

17


Case: 14-6294 Document: 22 Filed: 08/20/2015 Page: 1

No. 14-6294

mniteb ~tate~ <!Court of ~ppeal~ for tbe ~txtb QCtrrutt

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ANTHONY GRAYER, Defendant-Appellant.

On Appeal from the United States District Court for the Western District of Tennessee

No. 1:13-cr-10051 (Breen, C.J.)

SUPPLEMENTAL BRIEF FOR PLAINTIFF-APPELLEE UNITED STATES

For the Appellee:

EDWARDL. STANTON III United States Attorney

KEVIN G. RITZ

Criminal Appellate Chief

JAMES POWELL

Assistant United States Attorney 109 South Highland Avenue, Suite 300 Jackson, Tennessee 38301 (731) 4 22-6220 [email protected]



TABLE OF CONTENTS

TABLE OF CONTENTS

Table of Authorities .................................................................................................. ii

Issue Presented ........................................................................................................... 1

Supplemental Statement of the Case ......................................................................... 1

Summary of the Argument. ........................................................................................ 2

Argument. ................................................................................................................... 3

I. In Johnson, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act's "Violent Felony" Provision .................. 3

II. Johnson applies to the residual clause of the Guidelines "Crime of V. 1 "P . . 4 10 ence rov1s1on ............................................................................. .

III. The calculation ofGrayer's guidelines range was predicated on a residual clause crime of violence, and this Court should vacate and remand ........................................................................... 8

Conclusion ............................................................................................................... 10

Certificate of Compliance ........................................................................................ 11

Designation of Relevant District Court Documents ................................................ 12 I

Certificate of Service ............................................................................................... 13



TABLE OF AUTHORITIES

Cases

Gall v. United States, 552 U.S. 38 (2007) ............................................................................................. 5-6

Griffith v. Kentucky, 479 U.S. 314 (1987) ............................................................................................... 8

Henderson v. United States, 133 S.Ct. 1121 (2013) ...................................................................... 8

Irizarry v. United States, 553 U.S. 708 (2008) ........................................................................ 6

James v. United States, 550 U.S. 192 (2007) ...................................................................... 4, 5

Johnson v. United States, 135 S.Ct. 2551 (2015) ............................................................ .... .passim

Peugh v.United States, 133 S.Ct. 2072 (2013) .................................................................................... 6, 7-8

Sykes v. United States, 564 U.S. 1 (2011) ..... : .................................................................. 4, 5

United States v. Alphas, 785 F.3d 775 (1st Cir. 2015) .............................................................. 7

United States v. Bercian-Flores, 786 F.3d 309 (4th Cir. 2015) ............................................................ , .. 7

United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) ............................................................. 5

II



United States v. Dominguez Benitez, 542 U.S. 74 (2004) ................................................................................................. 8

United States v. Griffin, 652 F.3d 793 (7th Cir. 2011) .............................................................. 5

United States v. Keigue, 318 F.3d 437 (2nd Cir. 2003) ............................................................. 9

United States v. Keys, 785 F.3d 1240 (8th Cir. 2015) ............................................................ 7

United States v. Kimbrough, 536 F.3d 463 (5th Cir. 2008) .............................................................. 7

United States v. Meeks, 664 F.3d 1067 (6th Cir. 2012) ............................................................. 5

United States v. Pirosko, 787 F.3d 358 (6th Cir. 2015) .................................................................................. 7

United States v. Prater, 766 F.3d 501 (6th Cir. 2014) ................................................................. 8

United States v. Smith, 73 F.3d 1414 (6th Cir. 1996) ............................................................... 7

United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012) ............................................................... 7

United States v. Travis, 747 F.3d 1312 (11th Cir. 2014) .......................................................................... 4-5

United States v. Vargem, 747 F.3d 724 (9th Cir. 2014) ................................................................ 9

United States v. Velazguez, 777 F.3d 91 (1st Cir. 2015) .................................................................................... 4

111



United States v. Ward, 506 F.3d 468 (6th Cir. 2007) .................................................................................. 9

United States v. Wivell, 893 F.2d 156 (8th Cir. 1990) .............................................................. 7

Rules

Fed.R.App.P. Rule 28U) ...................................................................... 2 Fed.R.App.P. Rule 32(a)(7)(C)(i) ......................................................... 11 Sixth Circuit Rule 28(c) .................................................................... .12 Sixth Circuit Rule 30(b) ..................................................................... 12 U.S.S.G. § 2K2.1 ............................................................................ 4, 9 U.S.S.G. § 2K2.1, cmt. n. 1. ................................................................. 4 U.S.S.G. § 2K2. l(a) ..................................................................... .3, 10 U.S.S.G. § 2K2. l(a)(2) ....................................................................... 1 U.S.S.G. § 2K2.l(a)(4)(A) ................................................................... 9 U.S.S.G. § 2K2.l(b)(l)(A) .................................................................... 1 U.S.S.G. § 4Bl. l(a) .......................................................................... .4 U.S.S.G. § 4B 1.2 ........................................................................ .4, 5, 9 U.S.S.G. § 4B l.2(a) ........................................................................... 4 U.S.S.G. § 4Bl.2(a)(l) ........................................................................ 9 U.S.S.G. § 4B l.2(a)(2) .................................................................. 1-5, 8

Statutes

18 U.S.C. § 3553(a) ........................................................................................ 3, 6, 10 18 U.S.C. § 922(g) ................................................................................................. 1, 3 18 U.S.C. § 924(e)(l) ........................................................................ 3 18 U.S.C. § 924(e)(2)(B)(ii) .............................................................. 2, 3

IV



ISSUE PRESENTED

Whether the residual clause ofU.S.S.G. § 4B l .2(a)(2) is invalid because it is

unconstitutionally vague?

SUPPLEMENTAL STATEMENT OF THE CASE

Defendant pied guilty to being a felon in possession of firearms, in violation

of 18 U.S.C. § 922(g). (Indictment, RE 1, Page ID 1-2; Order on Change of Plea,

RE 22, Page ID 29). At sentencing, the district court calculated defendant's base

offense level as 24 under U.S.S.G. § 2K.2. l(a)(2), because defendant committed the

crime after sustaining felony convictions for a controlled substance offense and a

crime of violence. (Sentencing Hearing Transcript (SHTR), RE 40, Page ID 87-93,

101.) The defendant objected to the categorization of his Illinois conviction for

aggravated fleeing as a crime of violence, arguing that the crime could have been

committed recklessly. (SHTR, RE 40, Page ID 81-82, 91.) The district court

overruled the objection and found that the conviction qualified under the residual

clause of§ 4Bl.2(a)(2). (SHTR, RE 40, Page ID 91-93; PSR, ~ 45.)

After application of a two-level number-of-firearms enhancement under

§ 2K.2.l(b)(l)(A) and full credit for acceptance of responsibility, defendant's total

offense level was 23. (SHTR, RE 40, Page ID 101.) Defendant was in criminal

history category VI, and his advisory guideline range was 92 to 115 months in

I



pnson. (SHTR, RE 40, Page ID 101-02.) He received a below-guidelines

84-month sentence. (SHTR, RE 40, Page ID 105.)

In his initial brief on appeal, defendant challenged only the application of the

number-of-firearms enhancement. He later filed a letter under Fed. R. App. P.

28(j), citing the still-pending case of Johnson v. United States, 135 S. Ct. 2551

(2015), and arguing that the residual clause of§ 4Bl.2(a)(2) is unconstitutionally

vague. On June 26, 2015, after briefing in the present case was complete, the

Supreme Court issued its decision in Johnson. This Court has ordered the parties to

file supplemental briefs on the question whether the residual clause of§ 4B 1.2(a)(2)

is unconstitutionally vague.

SUMMARY OF THE ARGUMENT

In Johnson, the Supreme Court held that the Armed Career Criminal Act's

residual clause, i.e., the provision that defines a "violent felony" to include an

offense that "involves conduct that presents a serious potential risk of physical

injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.

Courts of appeals, including this Court, have held that ACCA's residual clause and

the guidelines residual clause must be interpreted in the same way and have applied

decisions interpreting the two provisions interchangeably. The residual clause of

U.S.S.G. § 4B 1.2(a)(2) is unconstitutionally vague under Johnson, and a sentencing

2



court may not use the residual clause to classify a prior conviction as a "crime of

violence."

Grayer's sentence is unlawful as he no longer qualifies for an enhancement

applied at his original sentencing pursuant to § 4B 1.2(a)(2)'s residual clause. This

Court should affirm the application of the number-of-firearms enhancement, vacate

the judgment, and remand for correction of the base offense level under§ 2K2. l(a)

and re-imposition of sentence pursuant to 18 U.S.C. § 3553(a).

ARGUMENT

I. IN JOHNSON, THE SUPREME COURT INVALIDATED THE RESIDUAL CLAUSE OF THE ARMED CAREER CRIMINAL ACT'S "VIOLENT FELONY" PROVISION.

The Armed Career Criminal Act (ACCA) provides for a mandatory minimum

sentence of 15 years of imprisonment for a defendant who violates 18 U.S.C. §

922(g) and has three prior convictions for a "violent felony" or a "serious drug

offense." 18 U.S.C. § 924(e)(l). In Johnson, the Supreme Court held that

ACCA's residual clause, i.e., the provision that defines a "violent felony" to include

an offense that "involves conduct that presents a serious potential risk of physical

injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), is impermissibly vague and,

therefore, imposing an increased sentence under the residual clause "violates the

Constitution's guarantee of due process." 135 S. Ct. at 2563. The Court overruled

3



its decisions in James v. United States, 550 U.S. 192 (2007), and Sykes v. United

States, 564 U.S. 1 (2011), which previously rejected the contention of dissenting

Justices that the residual clause was vague. Johnson, 135 S. Ct. at 2563.

II. JOHNSON APPLIES TO THE RESIDUAL CLAUSE OF THE GUIDELINES' "CRIME OF VIOLENCE" PROVISION.

The definition of "crime of violence" in U.S.S.G. § 4B 1.2(a) contains a

residual clause that is identical to ACCA's residual clause. This definition of

"crime of violence" is incorporated into several other guidelines provisions,

including the career offender provision, § 4Bl.l(a), and (as is relevant here) the

firearms guideline,§ 2K2.1 & cmt. n.l. Because the exact language of§ 4Bl.2's

residual clause is unconstitutionally vague under Johnson, a sentencing court may

not classify a prior conviction as a "crime of violence" under the residual clause.

Section 4B l.2(a)(2)'s residual clause uses the same language that Johnson

held was impermissibly vague because it "produces more unpredictability and

arbitrariness than the Due Process Clause tolerates." 135 S. Ct. at 2558. Courts of

appeals, including this Court, have held that ACCA's residual clause and the

guidelines residual clause must be interpreted in the same way and have applied

decisions interpreting the two provisions interchangeably. See, e.g., United States

v. Velazquez, 777 F.3d 91, 94-98 & n. l (1st Cir. 2015) (interpreting guideline using

"ordinary case" analysis that Johnson found "speculative" and unreliable); United

4



States v. Travis, 747 F.3d 1312, 1314-1317 & n.2 (11th Cir. 2014) (applying James

and Sykes in interpreting guideline); United States v. Boose, 739 F.3d 1185, 1187 n.1

(8th Cir. 2014) (court construes ACCA "violent felony" and guidelines "crime of

violence" as "interchangeable"); United States v. Meeks, 664 F.3d 1067, 1070-1072

& n.1 (6th Cir. 2012) (same analysis applies to ACCA and guidelines); United States

v. Griffin, 652 F.3d 793, 802 (7th Cir. 2011) ("the definition of 'violent felony'

under the ACCA is the same as the definition of 'crime of violence' in section 4B 1.2

of the guidelines, and it would be inappropriate to treat identical texts differently just

because of a different caption") (internal punctuation marks and citation omitted).

The ACCA cases on which courts have relied to decide whether offenses fall within

the guidelines residual clause are now overruled, leaving courts with no body of law

to apply. After Johnson, courts attempting to determine whether a particular

offense qualifies as a crime of violence under the residual clause of§ 4B 1.2(a)(2)

would be forced to rely on "guesswork and intuition." Johnson, 135 S. Ct. at 2559.

Moreover, application of a vague guideline conflicts with the proper role of

the guidelines in providing a uniform baseline for sentencing. Under the advisory

guidelines system, district courts are still required to "begin all sentencing

proceedings by correctly calculating the applicable Guidelines range" and to use the

guidelines as "the starting point and the initial benchmark" for sentencing. Gall v.

5


Case: 14-6294 Document: 22 Filed: 08/20/2015 · Page: 11

United States, 552 U.S. 38, 49 (2007); see Peugh v. United States, 133 S. Ct. 2072,

2083 (2013) ("That a district court may ultimately sentence a given defendant

outside the Guidelines range does not deprive the Guidelines of force as the

framework for sentencing."). A district court that incorrectly calculates the

guidelines range is subject to reversal on appeal. Gall, 552 U.S. at 51; see Peugh,

133 S. Ct. at 2083 ("[T]he rule that an incorrect Guidelines calculation is procedural

error ensures that they remain the starting point for every sentencing calculation in

the federal system.").

Consistent with sentencing courts' discretion to sentence within or outside the

advisory guideline range, the Supreme Court has held that no notice is required

when a court imposes a sentence outside the guideline range based on the factors in

18 U.S.C. § 3553(a), because defendants no longer have "[a]ny expectation subject

to due process protection" that they will receive a sentence within the range.

Irizarry v. United States, 553 U.S. 708, 713 (2008). But the guidelines are

nonetheless unlike the broad sentencing factors in§ 3553(a), in that their function is

to provide a precise starting point for sentencing. Courts have discretion to weigh

the § 3553(a) factors and determine the appropriate sentence, but they have no

discretion about the proper legal interpretation of the guidelines. This is evidenced

by the numerous decisions of this Court and other courts, involving appeals brought

6



by defendants and by the government, applying de novo review to questions of

guidelines interpretation. See, e.g., United States v. Piroslw, 787 F.3d 358, 372 (6th

Cir. 2015); United States v. Bercian-Flores, 786 F.3d 309, 311 (4th Cir. 2015);

United States v. Keys, 785 F.3d 1240, 1242 (8th Cir. 2015); United States v. Alphas,

785 F.3d 775, 780 (1st Cir. 2015); United States v. Kimbrough, 536 F.3d 463, 465

(5th Cir. 2008). Moreover, the notice concerns addressed in Irizarry are distinct

from the danger of "arbitrary enforcement by judges" presented by the residual

clause. See Johnson, 135 S. Ct. at 2557; id. at 2556 (explaining that Fifth

Amendment forbids application of "a criminal law so vague that it fails to give

ordinary people fair notice of the conduct it punishes, or so standardless that it

invites arbitrary enforcement") (emphasis added).

Finally, this Court, along with two other circuits, previously held that

guidelines provisions are not subject to constitutional vagueness challenges, because

they do not establish the illegality of any conduct and are directives only to judges,

not citizens. See United States v. Tichenor, 683 F.3d 358, 362-367 (7th Cir. 2012);

United States v. Smith, 73 F.3d 1414, 1417-18 (6th Cir. 1996); United States v.

Wivell, 893 F.2d 156, 159-160 (8th Cir. 1990). But that precedent predated, and is

undermined by, Peugh and Johnson. For example, in Peugh, the Court emphasized

the guidelines' critical role as the starting point and "lodestone" of sentencing. 133

7



S. Ct. at 2084. And in Johnson, the Court explained that vagueness principles

"apply not only to statutes defining elements of crimes, but also to statutes fixing

sentences." 135 S. Ct. at 2557.

For all of these reasons, Johnson applies to the residual clause of

§ 4Bl.2(a)(2). Also, Johnson applies to cases pending on direct appefll. See

Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

Ill. THE CALCULATION OF GRA YER'S GUIDELINES RANGE WAS PREDICATED ON A RESIDUAL CLAUSE CRIME OF VIOLENCE, AND THIS COURT SHOULD VACATE AND REMAND.

As noted in the government's opening brief, Grayer did not raise his claim

that the residual clause of§ 4B 1.2(a)(2) is void for vagueness below, so this Court

should review it for plain error. See United States v. Prater, 766 F.3d 501, 507 (6th

Cir. 2014 ). The plainness of the error is judged at the time of appeal. Henderson

v. United States, 133 S. Ct. 1121, 1128-29 (2013).

Where there is a guidelines error, a defendant will never be able to show that

he was ineligible for the sentence he received (as long as it was within the statutory

maximum). To establish plain error, the defendant has to show a reasonable

probability that his sentence would have been different absent the error. See United

States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004). In most cases, the

disparity between a defendant's erroneous "crime of violence" guidelines range and

8



his range without the enhancement will suffice to establish the required "reasonable

probability." See United States v. Vargem, 747 F.3d 724, 732 (9th Cir. 2014)

(where "error may well have resulted in a longer sentence, it also affected the

fairness of the judicial proceedings"); see also United States v. Keigue, 318 F.3d

437, 446 (2nd Cir. 2003) (court need not resolve unpreserved guideline claim

"where the same sentence would (not could) have been imposed under either of two

overlapping ranges"); cf United States v. Ward, 506 F.3d 468, 476-77 (6th Cir.

2007) (noting that guideline errors "that do not affect a defendant's sentence are

harmless and do not require a remand for re-sentencing," and finding harmless error

where district court stated it would have imposed the same sentence "regardless of

the enhancement at issue").

Here, at the sentencing hearing, the calculation ofGrayer's base offense level

under § 2K2.1 was increased to 24 based in part on the determination that he had a

prior "crime of violence" - namely, an Illinois conviction for aggravated fleeing.

That conviction qualified only under the residual clause and does not qualify as a

crime of violence under either the "use of physical force" clause,§ 4Bl.2(a)(l), or

the enumerated offenses listed in the commentary to § 4Bl.2. Given that the

residual clause is invalid under Johnson, Grayer's correctly-calculated base offense

level should be 20, pursuant to USSG § 2K2. l(a)(4)(A). See PSR iJ'IJ 20, 38. The

9



change results in a lower advisory guideline range than the district court used at

sentencing, and this Court should vacate the sentence and remand.

CONCLUSION

For the foregoing reasons, this Court should affirm the district court's ruling

on the issue presented in Grayer's original appellate brief (the number-of-firearms

enhancement), vacate the judgment, and remand for resentencing. The United

States respectfully requests that resentencing be limited to correction of the base

offense level under§ 2K2.l(a) and re-imposition of sentence pursuant to 18 U.S.C.

§ 3553(a).

10

Respectfully submitted,

EDWARD L. STANTON III United States Attorney

sl Kevin G. Ritz KEVIN G. RITZ, AUSA Criminal Appellate Chief

JAMES W. POWELL Assistant United States Attorney 109 South Highland Avenue, Suite 300 Jackson, Tennessee 38301 (731) 422-6220



CERTIFICATE OF COMPLIANCE

I, James W. Powell, Assistant United States Attorney for the Western District

of Tennessee, hereby certify that in accordance with FRAP 32(a)(7)(C)(i), this brief

complies with the type-volume limitation and further state that this brief contains

2, 145 total words.

JAMES W. POWELL Assistant United States Attorney

11



DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

Appellee, pursuant to Sixth Circuit Rules 28(c) & 30(b), hereby designates

the following filings in the District Court's record as entries that are relevant to this

appeal:

DESCRIPTION OF ENTRY RECORD PAGE I.D. ENTRY NO.

Indictment 1 1-2

Order on Change of Plea 22 29 81-82, 87-93,

Sentencing Hearing Transcript 40 101-102, 105

Presentence Report 20,38,45

12




I, James W. Powell, Assistant United States Attorney for the Western District

of Tennessee, hereby certify that I have served a copy of the foregoing Brief of the

United States upon counsel for the defendant in this cause by United States Mail,

first-class postage prepaid, addresse1d as follows:

Randolph W. Alden Assistant Federal Public Defender 200 Jefferson Avenue, Suite 200 Memphis, Tennessee 38103

this 20th day of August, 2015.

JAMES W. POWELL Assistant United States Attorney

13


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