FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Nancy Torresen, U.S. District Judge]
Richard W. Murphy, Acting United States Attorney, and Julia
M. Lipez, Assistant United States Attorney, on brief for
Butler Bailey and Strike, Gonzalez & Butler Bailey on
brief for appellee.
Kayatta, Selya, and Barron, Circuit Judges.
BARRON, Circuit Judge.
appeal, the government challenges the 2016 sentence that
Vincent Steed received for his conviction -- following his
guilty plea -- for possession with intent to distribute
Cocaine Base and Heroin in violation of 21 U.S.C. §
841(a)(1), (b)(1)(C). The District Court, in sentencing
Steed, concluded that he did not qualify as a "career
offender" under the United States Sentencing Guidelines
and thus was not subject to the sentencing enhancement that
otherwise would apply. The District Court then calculated
Steed's guidelines sentencing range on that basis, and
sentenced Steed to a prison term of 63 months, which was at
the high end of the resulting guidelines sentencing range.
government now contends that the District Court erred in
concluding that Steed did not qualify as a "career
offender" under the Sentencing Guidelines and thus that
the District Court sentenced him based on an unduly low
guidelines sentencing range. Accordingly, the government
argues that Steed's sentence must be vacated so that
Steed may be re-sentenced.
become common in cases of this type, we must address a number
of complexities regarding the particularities of state law to
resolve the issues on appeal. And, as has also become common
in cases of this type, such complexities of state law in turn
raise additional questions -- knotty in themselves -- about
the requirements of the federal provision that seeks to
identify those offenders whose past violence warrants the
imposition of an enhanced sentence. After working our way
through these questions, we conclude that the government has
not identified a sufficient basis for vacating the sentence.
Accordingly, we affirm the judgment below.
27, 2016, in the United States District Court for the
District of Maine, Steed pleaded guilty to violating 21
U.S.C. § 841(a)(1), (b)(1)(C). The Presentence
Investigation Report ("PSR") prepared by the
Probation Office recommended that Steed be classified as a
"career offender" under § 4B1.1 of the United
States Sentencing Guidelines, as set forth in the 2015
version of the United States Sentencing Guidelines Manual.
guideline defines a "career offender" to include
those defendants who have two prior convictions, whether for
a "controlled substance offense, " U.S. Sentencing
Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n
2015), any "crime of violence, " id.
§ 4B1.1(a), or any combination thereof. A "crime of
violence" is defined as:
[A]ny 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 person of another, or (2) 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).
first subpart of the language just quoted ("has as an
element the use, attempted use, or threatened use of physical
force against the person of another") is commonly
referred to as the "force clause" of the
"crime of violence" definition. See United
States v. Ball, 870 F.3d 1, 3 (1st Cir. 2017). The final
clause of the second subpart ("otherwise involves
conduct that presents a serious potential risk of physical
injury to another") is known as the "residual
clause" of that definition. Id.
based the conclusion that Steed was a career offender under
the guideline on his conviction in 2012 for two counts of
drug trafficking under Maine law and his conviction in 2000
for attempted robbery in the second degree under New York
law. Having determined that the drug trafficking and robbery
convictions each qualified as predicate offenses under the
career offender guideline, the PSR applied the career
offender sentencing enhancement, which resulted in the PSR
identifying Steed's total offense level under the
guidelines to be 29. The PSR also determined Steed's
criminal history category to be VI. In consequence, the PSR
calculated Steed's sentencing range under the guidelines
to be 151 to 188 months of imprisonment.
District Court thereafter held a sentencing hearing. The
District Court determined at the hearing that the variant of
second-degree robbery under New York law that Steed had been
convicted of attempting to commit did not have as an element
the use of "violent force" under Johnson v.
United States, 559 U.S. 133, 140 (2010) (Johnson
I). Thus, the District Court reasoned that Steed had
been convicted of an offense that did not fall within the
force clause of the career offender guideline's
definition of a "crime of violence." The District
Court then bypassed the question whether that offense fell
within the residual clause of that guideline's definition
of a "crime of violence" because the government
conceded that, after Johnson v. United States, 135
S.Ct. 2551 (2015) (Johnson II), the residual clause
was unconstitutionally vague. Accordingly, the District Court
concluded that the career offender enhancement did not apply
to Steed, as he had only one prior conviction that qualified
as a conviction for a predicate offense under the career
offender guideline -- namely, his conviction under Maine law
for two counts of drug trafficking, which was a qualifying
"controlled substance" offense.
in consequence of this ruling, the District Court determined
that Steed's total offense level was 19, rather than 29,
as the PSR had stated. The District Court also determined
that, as the PSR had stated, Steed's criminal history
category was VI. The District Court then accepted the
government's recommended two-level reduction of
Steed's total offense level. The District Court thus
calculated Steed's guidelines sentencing range to be 51
to 63 months of imprisonment. The District Court then
sentenced Steed to a sentence at the high end of that range
-- 63 months of imprisonment.
parties do not dispute that Steed's conviction for two
counts of drug trafficking under Maine law qualifies as a
conviction for a "controlled substance" offense
under the career offender guideline. See U.S.S.G.
§ 4B1.2(b). The dispute before us therefore concerns
only whether the government is right in contending that,
contrary to the District Court's ruling, Steed's
conviction for attempted second-degree robbery under New York
law qualifies as a predicate conviction under the career
offender guideline as a "crime of violence." For,
if the government is right on that point, then Steed is
subject to the career offender enhancement under that
begin with the government's contention that Steed's
2000 conviction for attempted second-degree robbery under New
York law is for an offense that "has as an element the
use, attempted use, or threatened use of physical force
against the person of another" and thus is for an
offense that the force clause of the career offender
guideline's definition of a "crime of violence"
encompasses. U.S.S.G. § ...