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United States v. Frates

United States Court of Appeals, First Circuit

July 18, 2018

DAVID A. FRATES, Defendant, Appellant.


          Ian Gold, on brief for appellant.

          Mark T. Quinlivan, Assistant United States Attorney, and William D. Weinreb, Acting United States Attorney, on brief for appellee.

          Before Torruella, Lipez, and Kayatta, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant 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' imprisonment.

         Frates 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 offender.


         This 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 another.

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).

         The 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).

         In June 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.

         Not 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).

         This "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).

         Four 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.

         The 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 ...

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