July 27, 2015
Marcia M. Waldron, Clerk
United States Court of Appeals for the Third Circuit
21400 United States Courthouse
Independence Mall West
601 Market Street
Philadelphia, Pennsylvania 19106-1790
Re:
United States v. Kenneth Townsend,
Appeal No. 14-3652
Dear Ms. Waldron:
Please accept this supplemental letter brief addressing the impact
of the Supreme Court’s recent decision in Johnson v. United States, 135
S.Ct. 2551 (2015), wherein the Court held that the “residual clause” of
the Armed Career Criminal Act (ACCA) is unconstitutionally vague. In
pertinent part, the ACCA residual clause defines a “violent felony” as
an offense that “otherwise involves conduct that presents a serious
potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B).
This Court has consistently held that the Supreme Court’s cases
interpreting the residual clause of the ACCA “bind its analysis” of the
identical provision in the career offender guideline: “Precedent...
requires the application of case law interpreting ‘violent felony’ in
ACCA to ‘crime of violence’ in U.S.S.G. § 4B1.2[ ] because of the
substantial similarity of the two sections.” United States v. Marrero,
743 F.3d 389, 394 n.2 (3d Cir.2014)(citing Hopkins v. United States, 555
U.S. 1132 (2009)); United States v. Polk, 577 F.3d 515 (3d Cir.2009).
Indeed, the very case relied upon by the district court to find the
prior conviction here was a crime of violence -- United States v. Jones,
740 F.3d 127 (3d Cir.2014) -- involved this Court’s application of
Supreme Court ACCA residual clause jurisprudence, in particular
James v. United States, 550 U.S. 192 (2007), and Sykes v. United
States, 131 S.Ct. 2267 (2011), to a case involving the residual clause of
the career offender guideline. As discussed below, Johnson explicitly
overruled James and Sykes, thereby effectively overruling Jones’
finding that Pennsylvania fleeing and eluding constitutes a crime of
violence under the residual clause of the career offender guideline.
Resentencing is required here, where the district court relied on Jones
to sentence Mr. Townsend as a career offender.1 Moreover, because Mr.
Townsend was deemed to be a career offender based on language the
Supreme Court found void for vagueness, Mr. Townsend’s sentence
cannot stand.
1. Johnson expressly overrules James’ “ordinary case” approach to
determining whether a felony qualifies as a crime of violence.
In Johnson, the Supreme Court found the ACCA residual clause
unconstitutionally vague because the “indeterminacy of the wideranging inquiry” by which courts categorize prior convictions as violent
felonies “both denies fair notice to defendants and invites arbitrary
enforcement by judges.” Johnson, 135 S.Ct. at 2557. “Increasing a
defendant’s sentence under the [residual] clause denies due process of
law.” Id.
The Court began its analysis by explaining that, under Taylor v.
United States, 495 U.S. 575 (1990), the ACCA requires the categorical
approach to determine whether a particular statute qualifies as a
violent felony. Johnson, 135 S.Ct. at 2557. Courts must assess whether
a crime qualifies as a violent felony Ain terms of how the law defines the
offense and not in terms of how an individual might have committed it
on a particular occasion.@ Id. (quoting Begay v. United States, 553 U.S.
137, 141 (2008)). The Court clarified that such an analysis “requires a
court to picture the kind of conduct that the crime involves ‘in the
ordinary case,’ and to judge whether that abstraction presents a serious
risk of potential injury.” Id., 2557 (emphasis added). The Court linked
the “ordinary case” framework to James v. United States, 550 U.S. 192
(2007), which held, “the proper inquiry is whether the conduct
encompassed by the elements of the offense, in the ordinary case,
Fleeing and eluding, 75 Pa.C.S. § 3733, is not a crime of violence under § 4B1.2’s
alternate definitions, Jones, 740 F.3d at 133, 137, and, as a result, Mr. Townsend
does not have two qualifying predicate convictions and is ineligible for enhanced
sentencing under the career offender guideline.
1
2
presents a serious potential risk of injury to another.” Id. at 208
(emphasis added).
Johnson found the process of determining what is embodied in the
“ordinary case” fatally flawed, rendering the ACCA unconstitutionally
vague. “Grave uncertainty” surrounds the method of determining the
risk posed by the “judicially imagined ‘ordinary case.’” Johnson, 135
S.Ct. at 2557. At the same time, the residual clause lacks a meaningful
gauge for determining when the quantum of risk under the Aordinary
case@ is enough to constitute a Aserious potential risk of physical
injury.@ Id., 2557, 2558. “By combining 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, the residual
clause produces more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Id.
Johnson made clear that (a) the language of the ACCA residual
clause, which is identical to the career offender residual clause, requires
an “ordinary case” analysis; and (b) it is the very nature of the “ordinary
case” analysis that rendered the clause unconstitutionally vague. Thus,
Johnson invalidated both the ACCA residual clause and the “ordinary
case” approach.
2. Johnson applies equally to the residual clause of the career offender
guideline.
Just as with the ACCA’s residual clause, the only way to apply the
career offender residual clause is to use the “ordinary case” analysis.
Indeed, this Court has interpreted the career offender residual clause as
requiring it to look to the mythical ordinary case to determine whether
a given felony is sufficiently risky. See, e.g., United States v. Stinson,
592 F.3d 460 (3d Cir.2010) (determining the “ordinary” fact scenario
underlying a resisting arrest conviction presents a serious potential risk
of injury for career offender purposes); Marrero, 743 F.3d 389
(determining “an intentional or knowing” misdemeanor assault “in the
ordinary case” presents a serious potential risk of injury for career
offender purposes).
3
The same combined “indeterminacy about how to measure the risk
posed by a crime [and] indeterminacy about how much risk” is involved
in determining whether a prior offense qualifies as a violent felony
under the ACCA exists when making such a determination under the
residual clause of the career offender guideline, and it likewise
“produces more unpredictability and arbitrariness than the Due Process
Clause tolerates.” Johnson, 135 S.Ct. at 2558.2 As a result, Johnson’s
reasoning invalidates the same problematic language in § 4B1.2.3
It appears the Supreme Court appreciated the potential scope of
Johnson’s reach, as it held numerous petitions for writs of certiorari
filed by individuals sentenced under § 4B1.2, pending a decision in
Johnson. Days after deciding Johnson, the Court granted certiorari,
vacated and remanded seven career offender cases. See, e.g., Maldonado
v. United States, 2015 WL 2473524 (U.S. June 30, 2015); Jones v.
United States, 2015 WL 1970390 (U.S. June 30, 2015).4
Also within days of the decision, the Sixth Circuit relied on
Johnson to vacate career offender sentences, holding that career
offenders are “entitled to the same relief as offenders sentenced under
the residual clause of the ACCA.” United States v. Harbin, Appeal
No.14-3956/3964 (6th Cir. July 6, 2015) (emphasis added); accord United
States v. Darden, 2015 WL 4081065 (6th Cir. July 20, 2015).
Moreover, the discretionary nature of the guidelines does not
provide a sufficient basis for distinguishing the § 4B1.2 residual clause
from the ACCA residual clause for purposes of a vagueness analysis.
the Johnson Court also cited cases construing the guidelines’
residual clause to illustrate the ACCA residual clause’s “hopeless indeterminacy.”
Johnson, 133 S.Ct. at 2558, 2560.
2 Significantly,
3 The
fact that Mr. Townsend was sentenced as a career offender under the
guidelines does not impact Johnson’s application here. See United States v. Maurer,
639 F.3d 72, 78 (3d Cir. 2011) (resolving constitutional vagueness challenge to
Guideline provision); United States v. Jones, 979 F.2d 317, 319 (3d Cir. 1992)
(same).
4 The
Court also granted certiorari and vacated a sentence enhanced under U.S.S.G.
§ 2K2.1.Talmore v. United States, 2015 WL 917361 (U.S. June 30, 2015).
4
In Peugh v. United States, 133 S. Ct. 2072 (2013), the Court found that
using a later, higher guideline range violates the Ex Post Facto Clause
because the sentencing guidelines, though advisory, are nevertheless
laws “that change[ ] the punishment, and inflict[ ] a greater
punishment, than the law annexed to the crime, when committed.” Id.,
2081. In so finding, the Court explicitly rejected the argument that, the
guidelines, given their advisory nature, are not “a ‘law’ within the
meaning of the Ex Post Facto Clause.” Id., 2085-87. The Court
explained that, after Booker, district courts “must” begin all sentencing
by correctly calculating the guidelines range, that the guidelines range
is “the starting point,” “benchmark” and “lodestar” of sentencing and
normally “serves as the basis” for the sentence imposed, and that
district courts are in fact tethered to the guidelines. Id., 2083-84
(emphasis added). A change in the correct guideline range, even though
that range is advisory, creates a “sufficient risk of a higher sentence to
constitute an ex post facto violation.” Id., 2084.
The prohibition against Ex Post Facto laws and the due process
prohibition against vague criminal statutes are both concerned with fair
warning and the applicable rules of law. See Johnson, 135 S.C. at 25562557 (“The prohibition of vagueness . . . is . . . consonant alike with
ordinary notions of fair play and the settled rules of law.”); Peugh, 133
S. Ct. at 2084 ([The] Ex Post Facto clause . . . ensures that individuals
have fair warning of applicable law.”) Just as the Constitution
prohibits imposing a harsher sentence based on a Guideline changed
after the crime, Peugh, 133 S.Ct. at 2088, it also prohibits imposing a
harsher sentence based on a Guideline that is so vague that its
application is both unpredictable and arbitrary. Johnson, 135 S.Ct. at
2557. 5
3. Johnson overrules Jones and requires remand.
the very least, Johnson establishes that the guidelines’ residual clause is
“ambiguous” – enough so that even the Supreme Court cannot understand it. 135 S.
Ct. at 2558-60. Under the rule of lenity, which is applicable to guidelines provisions,
United States v. Flemming, 617 F.3d 252, 270 (3d Cir. 2010), the ambiguity should
be resolved in favor of lenity. United States v. Bass, 404 U.S. 336, 347-48 (1971).
5At
5
In overruling the defense objection to application of the career
offender guideline, the district court deemed itself bound by Jones, to
hold that fleeing and eluding qualified as a crime of violence under the
residual clause. Jones rested entirely on application of the “ordinary
case” analysis articulated in James and applied in Sykes, where the
Court held that “the ordinary case of vehicular flight” involves conduct
“that presents a serious potential risk of physical injury to another.”
Sykes, 131 S.Ct. at 2278-80. Specifically, the Court concluded that
Pennsylvania fleeing and eluding ordinarily encompasses the type of
conduct Sykes considered – intentional flight from or eluding of police
officer after being signaled to stop – and therefore “’involves conduct
that present a serious potential risk of physical injury to another’”
under the career offender residual clause. Jones, 740 F.3d at 137-38.
By expressly overruling James and Sykes, and invalidating the
ordinary case approach, Johnson rendered Jones’ finding that
Pennsylvania fleeing and eluding is a crime of violence unsupported
and unsupportable. See United States v. Brown, 765 F.3d 185, 193 (3d
Cir.2014) (finding intervening Supreme Court opinion addressing the
ACCA overruled precedent applying the career offender residual
clause); United States v. Hopkins, 577 F.3d 507 (3d Cir.2009) (same).
Where, as here, the district court relied on Jones to sentence Mr.
Townsend as a career offender, a remand for resentencing is required.
Application of the career offender enhancement resulted in an
advisory guideline range of 360 months to life. The district court varied
from what it erroneously believed was the correct range to impose a
200-month sentence after considering Mr. Townsend’s thoughtful
allocution and efforts to better himself and to learn a trade both before
and after his arrest, and observing that Mr. Townsend’s record “is light
with respect to violent tendencies.” Without the career offender
enhancement, the correct advisory range is 120 to 135 months (based on
an offense level 30, criminal history category II, and application of
U.S.S.G. §5G1.1(b)). Thus, the sentence imposed, even with the
variance, is almost seven years longer than the low end of the correct
guideline range.
6
Because the district court relied on Jones’ to find Mr. Townsend
was a career offender, and Jones cannot be reconciled with Johnson,
this Court should vacate the judgment and remand for resentencing in
light of Johnson.
Respectfully submitted,
/s/ Mark A. Sindler, Esquire
310 Grant Street, Suite 2330
Pittsburgh, Pennsylvania 15219-2264
(412) 471-6680
exonerator@consolidated.net
7