December 2, 2015
from the United States District Court for the Eastern
District of Wisconsin. No. 10-CR-186 - Rudolph T. Randa,
WOOD, Chief Judge, and POSNER, Flaum, Easterbrook, Kanne,
Rovner, Williams, Sykes, and Hamilton, Circuit Judges.
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.
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).
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.
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.
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.
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.
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.
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 ...