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United States v. Rollins

United States Court of Appeals, Seventh Circuit

August 29, 2016

United States of America, Plaintiff-Appellee,
Darryl Rollins, Defendant-Appellant.

          Argued December 2, 2015

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10-CR-186 - Rudolph T. Randa, Judge.

          Before WOOD, Chief Judge, and POSNER, Flaum, Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

          Sykes, Circuit Judge.

         Darryl Rollins pleaded guilty to selling crack cocaine and was sentenced to 84 months in prison. This is our second time hearing his appeal. He challenges the calculation of his Sentencing Guidelines range-specifically, the district court's application of the career-offender guideline, which assigns a higher offense level if the defendant has two prior convictions for a "crime of violence." See U.S.S.G. §4B1.1(a). The term "crime of violence" includes "any offense ... that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 4B1.2(a)(2) (2014) (emphasis added). The highlighted text is known as the residual clause.

         The district judge classified Rollins as a career offender based in part on a prior conviction for possession of a sawed-off shotgun, a crime that qualifies (if at all) only under the residual clause of this definition. In United States v. Miller, we held that possession of a short-barreled shotgun is not a predicate "violent felony" under the identically phrased residual clause in the Armed Career Criminal Act ("ACCA"), 18U.S.C. § 924(e). 721 F.3d 435, 437 (7th Cir. 2013). In the first go-round on this appeal, Rollins argued that because the two residual clauses are the same, Miller controls, notwithstanding application note 1 to § 4B1.2, which specifically lists possession of a sawed-off shotgun as a predicate crime of violence. A panel of the court rejected this argument based on United States v. Raupp, which holds that that the application note's list of qualifying crimes is a valid interpretation of the guideline's residual clause. 677 F.3d 756, 758-60 (7th Cir. 2012).

         In the meantime, the government changed its position on two key questions lurking in the background: (1) Does the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), apply to the residual clause in the career-offender guideline; and (2) should United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), be overruled? Johnson invalidated the ACCA's residual clause as unconstitutionally vague. 135 S.Ct. at 2563. Although Johnson logically applies to the mirror-image residual clause in § 4B1.2(a)(2), our decision in Tichenor categorically forecloses vagueness challenges to the Guidelines. 683 F.3d at 364-65. The government previously invoked Tichenor, and Rollins did not ask the court to revisit and overrule it.

         After the panel issued its opinion, however, the government reversed course and now argues that Tichenor should be overruled and that Johnson's constitutional holding applies to the residual clause in § 4B1.2(a)(2). In light of the government's concession, the panel vacated its opinion and granted rehearing.

         In a separate decision also issued today, the en banc court overrules Tichenor and holds that under Johnson, the residual clause in the career-offender guideline is unconstitutionally vague. United States v. Hurlburt, Nos. 14-3611 & 15-1686 (7th Cir. Aug. 29, 2016). That decision undermines Raupp's rationale and is decisive here. Application note 1 has no legal force independent of the guideline itself; the note's list of qualifying crimes is valid (or not) only as an interpretation of § 4B1.2. See Stinson v. United States, 508 U.S. 36, 41-42 (1993). More to the point, when the Sentencing Commission says in application note 1 that possession of a sawed-off shotgun is a crime of violence, it is interpreting the residual clause in § 4B1.2(a)(2); no other part of the crime-of-violence definition applies. That was the basic premise of Raupp, which addressed the inchoate crime of conspiracy, another offense on the application note's list. 677 F.3d at 757-60.

         But the residual clause in § 4B1.2(a)(2) is invalid, so Raupp's premise no longer holds. The panel circulated a new opinion to the full court proposing to overrule Raupp. See 7th Cir. R. 40(e). An en banc vote followed, and the court approved, making this the opinion of the full court. See Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (using the same procedure). Accordingly, we now vacate Rollins's sentence and remand for resentencing.

         I. Background

         Rollins sold crack cocaine to confidential informants on four separate occasions in 2009 and 2010, and these sales led to his eventual indictment on four counts of drug distribution. See 21 U.S.C. § 841(a)(1). The government initially sought a statutory sentencing enhancement, see id. § 851, based on Rollins's 2005 Wisconsin felony drug conviction. Pursuant to plea negotiations, Rollins pleaded guilty to two counts and agreed for purposes of sentencing that he was responsible for the drug quantities involved in the other two sales. In exchange the government dropped the two remaining counts and withdrew its request for the § 851 enhancement.

         Rollins's presentence report initially calculated a Guidelines sentencing range of 188-235 months based on an adjusted offense level of 31 and criminal history category VI. To reach this offense level, the probation officer classified Rollins as a career offender, which gave him a base offense level of 34, see U.S.S.G. § 4B1.1(b)(2), then deducted three points for acceptance of responsibility, see id. § 3E1.1. The career-offender guideline assigns higher base offense levels if the defendant has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." § 4Bl.l(a). A "crime of violence" is defined as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the ...

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