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United States v. Thompson

United States Court of Appeals, First Circuit

March 22, 2017

TREZJUAN THOMPSON, Defendant, Appellee.


          Mary Davis, with whom Tisdale & Davis, P.A. was on brief, for appellant.

          Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

          PER CURIAM.

         Defendant-Appellant Trezjuan Thompson pled guilty to drug conspiracy and arson charges. Before sentencing, he moved to withdraw his plea, primarily arguing that he did not have the opportunity to review personally certain discovery materials.

         The district court denied Thompson's motion, United States v. Thompson, No. 2:10-cr-200-DBH, 2013 WL 1809659 (D. Me. Apr. 29, 2013), and sentenced him to 327 months' imprisonment based, in part, on its finding that Thompson was a career offender under the sentencing guidelines. See U.S.S.G. §4B1.1. One of the predicate offenses supporting Thompson's career offender designation was a 2006 Massachusetts conviction for assault and battery with a dangerous weapon ("ABDW"). See Mass. Gen. Laws ch. 265, § 15A(b). The court held that the ABDW conviction qualified as a "crime of violence" under the so-called "residual clause" of U.S.S.G. §4B1.2(a)(2).[1]

         Thompson's opening brief raises only a single issue, namely, the correctness of the district court's denial of the motion to withdraw his guilty plea.[2] This challenge need not detain us long. In short, we perceive no abuse of discretion in the district court's thorough treatment of the matter. See United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013). And, contrary to his contention on appeal, Thompson was not entitled to a hearing because "[t]he district judge had everything that he needed in the paper record" to dispose of the motion. United States v. Chambers, 710 F.3d 23, 30 (1st Cir. 2013).

         During the pendency of Thompson's appeal, another issue arose. The Supreme Court, in Johnson v. United States, 135 S.Ct. 2551 (2015), held that the residual clause of the Armed Career Criminal Act's ("ACCA") definition of "violent felony" was unconstitutionally vague. The district court's finding that Thompson qualified as a career offender was predicated upon the applicable guideline's identical residual clause. Thompson's opening brief, which was filed before Johnson, did not challenge any aspect of his sentence, much less argue that the residual clause was unconstitutionally vague. Thompson raised the issue for the first time in a citation of supplemental authority pursuant to Federal Rule of Appellate Procedure 28(j), requesting remand in light of Johnson. We ordered supplemental briefing. In response, the government conceded that Johnson invalidated the career offender guideline's residual clause, but argued that Thompson's ABDW conviction fell within the separate "elements" or "force" clause.[3]

         Subsequently, in Beckles v. United States, U.S, No. 15-8544, slip op. (Mar. 6, 2017), the Supreme Court squarely held that Johnson does not apply to the career offender guideline. This is because the sentencing guidelines, unlike the ACCA, "are not subject to a vagueness challenge under the Due Process Clause." Id. at 5. We are not bound by the government's concession, which, while understandable before Beckles, [4] turned out to be incorrect. See United States v. Sánchez-Berríos, 424 F.3d 65, 81 (1st Cir. 2005) ("A concession by either party in a criminal case as to a legal conclusion is not binding on an appellate court."). In deciding whether to accept a concession, we consider: (1) "whether the issue is recurrent so [a] decision would give guidance to the district courts"; (2) "whether it would be unseemly to accept, even arguendo, a mistaken legal proposition and reason from it to decide the case"; and (3) "whether the issues are technical and complex and not explored carefully in existing decisions so that adversary briefing would be critical." United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004). Johnson's applicability to the career offender guideline has proven to be a frequently recurring issue in this circuit and, in light of Beckles, the proper resolution of this issue is crystal clear. Accordingly, we "ignore the government's concession" and "follow [the Supreme Court's] clear precedent." United States v. Vega-Ortiz, 425 F.3d 20, 22 (1st Cir. 2005).[5]

         For the foregoing reasons, we AFFIRM Thompson's convictions and sentence.



[1] The relevant subsection defined "crime of violence" to include an 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." U.S.S.G. §4B1.2(a)(2) (2013) (emphasis added). The underscored language, often referred to as the residual clause, has since been stricken from the guideline. See Sentencing ...

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