FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
Gold, on brief for appellant.
T. Quinlivan, Assistant United States Attorney, and William
D. Weinreb, Acting United States Attorney, on brief for
Torruella, Lipez, and Kayatta, Circuit Judges.
David Frates pleaded guilty to one count of federal armed
bank robbery, in violation of 18 U.S.C. § 2113(a) &
(d). At his sentencing hearing, the district court applied
the United States Sentencing Guidelines' career offender
enhancement, increasing Frates's guideline sentencing
range to 188-235 months' imprisonment. The court varied
downward and sentenced Frates to 132 months'
appeals this sentence, challenging his classification as a
career offender, and alternatively asking us to vacate his
sentence in light of a recently enacted amendment to the
Guidelines. We find no error with the district court's
application of the Guidelines. Nonetheless, we exercise our
discretion under United States v.
Godin (Godin II), 522 F.3d 133 (1st Cir.
2008), and United States v.
Ahrendt, 560 F.3d 69 (1st Cir. 2009), to vacate
Frates's sentence and remand to allow the district court
to consider the United States Sentencing Commission's
current policy position on who qualifies as a career
case arises at a peculiar moment in the history of the
Sentencing Guidelines' career offender enhancement. That
enhancement increases the sentencing ranges of certain
defendants whose offense of conviction was "either a
crime of violence or a controlled substance offense,"
and who have at least two such prior convictions. U.S.
Sentencing Guidelines Manual § 4B1.1 (2016). At the time
of Frates's sentencing in July 2016, the Guidelines
defined the term "crime of violence" as follows:
The term "crime of violence" means 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 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
Id. § 4B1.2(a) (2015). Subsection (1) of this
definition is known as the "force clause," the
segment of subsection (2) listing specific crimes is known as
the "enumerated offenses clause," and the segment
of subsection (2) beginning with "otherwise
involves" is known as the "residual clause."
See, e.g., United States
v. Wurie, 867 F.3d 28, 31, 36 (1st Cir.
2017); United States v.
Ramírez, 708 F.3d 295, 300 (1st Cir. 2013).
The commentary to section 4B1.2 further specified a number of
offenses that sentencing courts "essentially treat[ed] .
. . as additional enumerated offenses." United
States v. Ball, 870 F.3d 1, 5 (1st
Cir. 2017); U.S. Sentencing Guidelines Manual § 4B1.2,
cmt. n.1 (2015) (listing, for example: murder, kidnapping,
aggravated assault, and robbery).
Guidelines' "crime of violence" definition
mirrored the Armed Career Criminal Act's
("ACCA") definition of "violent felony."
18 U.S.C. § 924(e)(2)(B). The ACCA imposes a mandatory
minimum 15-year term of imprisonment on any person convicted
of being a felon in possession of a firearm who has three
prior violent felony convictions. Id. §§
922(g), 924(e)(1). Its definition of "violent
felony" includes a force clause, an enumerated offenses
clause, and a residual clause, all materially identical to
the Guidelines' crime of violence definition.
Id. § 924(e)(2)(B).
2015, the Supreme Court held that the residual clause of the
ACCA's violent felony definition was unconstitutional.
Johnson v. United States, 135
S.Ct. 2551, 2563 (2015). It reasoned that "the
indeterminacy of the wide-ranging inquiry required by the
residual clause both denies fair notice to defendants and
invites arbitrary enforcement by judges." Id.
at 2557. Sentencing judges interpreting the residual clause
faced "grave uncertainty" about how to estimate the
risk of injury involved in a crime, and also what level of
risk sufficed to qualify a crime as a violent felony.
Id. at 2257-58. These vagaries were more than the
strictures of due process could tolerate: "Invoking so
shapeless a provision to condemn someone to prison for 15
years to life does not comport with the Constitution's
guarantee of due process." Id. at 2560.
surprisingly, in the wake of Johnson, there were
challenges to the constitutionality of the Guidelines'
crime of violence definition. Most of the circuit courts to
address the issue held that section 4B1.2(a)'s
identically-worded residual clause was unconstitutionally
vague. See United States v.
Hurlburt, 835 F.3d 715 (7th Cir. 2016); United
States v. Calabretta, 831 F.3d 128 (3d
Cir. 2016); United States v.
Pawlak, 822 F.3d 902 (6th Cir. 2016); United
States v. Madrid, 805 F.3d 1204 (10th
Cir. 2015). But see United States v.
Matchett, 802 F.3d 1185 (11th Cir. 2015). In the
First Circuit, the government routinely took the position
that Johnson's reasoning extended to the crime
of violence definition, and conceded that section
4B1.2(a)'s residual clause was void. See,
e.g., Ball, 870 F.3d at 3 (1st Cir. 2017);
United States v. Thompson, 851
F.3d 129, 131 (1st Cir. 2017).
"ongoing litigation and uncertainty resulting from the
Johnson decision" prompted the United States
Sentencing Commission to adopt an amendment eliminating the
residual clause from the crime of violence definition. U.S
Sentencing Guidelines Manual supp. to app. C, Amend. 798. The
amendment also moved some of the offenses listed in the
commentary to section 4B1.2 into the body of section
4B1.2(a)(2). Id. Amendment 798 took effect on
November 1, 2016 -- a few months after Frates's
sentencing -- and the Commission declined to make the
amendment retroactive. See Wurie, 867 F.3d
at 35 n.7 (noting that the Commission chose to not make
Amendment 798 retroactive).
months after Amendment 798 took effect, the Supreme Court
rejected a void-for-vagueness challenge to the crime of
violence definition's residual clause. Beckles
v. United States, 137 S.Ct. 886, 890
(2017). Distinguishing Johnson, the Court explained
that the ACCA "fix[ed] the permissible sentences for
criminal offenses," while the Guidelines "merely
guide the exercise of a court's discretion in choosing an
appropriate sentence within the statutory range."
Id. at 892. Since the Guidelines are discretionary,
they are "not amenable to a vagueness challenge,"
and thus "§ 4B1.2(a)'s residual clause is not
void for vagueness." Id. at 894-95.
result in Beckles creates a quirk for defendants (1)
sentenced pursuant to section 4B1.2(a)'s residual clause
prior to Amendment 798, and (2) whose appeals were pending
when the amendment became effective. Although stricken by the
Sentencing Commission, the residual clause remains valid as
applied to them. Hence, they will be the last group subjected
to the ...