A unanimous panel of the D.C. Circuit (Millett, Ginsburg, Sentelle, JJ), vacated a 230-month sentence of incarceration, coupled with 96 months of supervised release, imposed following appellant’s conviction of a 21 U.S.C. § 841 PCP trafficking offense. After rejecting several merits-based arguments, including another thorough discussion of Rule 404b), F. R. EVID., standards (see this column’s recent blog on United States v. Burnett, _ F.3d _ (D.C. Circuit, No. 13-3075, July 8, 2016), the Court of Appeals found plain error in the Trial Judge’s conclusion that Dante Sheffield’s 2007 local conviction for attempted robbery justified a Career-Offender enhancement under the Sentencing Guidelines.
Writing for the panel, Circuit Judge Millett noted that the Government – to its credit – agreed that the sentence enhancement was mistaken. (Slip Op. at 26). Judge Millett explained that “[t]he Guidelines define ‘crime of violence’ as a state or federal offense that is punishable by imprisonment for a term exceeding one year, and 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.) (quoting U.S.S.G. § 4B1.2(a)). The first clause is commonly known as the “elements” clause and the other is often referred to the “residual clause.” (Slip Op. at 26) (citing Welch v. United States, 136 S. Ct. 1257, 1261 (2016)). But here, Judge Millett noted, the Trial Judge had “never specified which clause of the “crime of violence” definition it believed applied to Sheffield’s attempted robbery conviction. Nor did the Presentence Report or the government’s sentencing memorandum.” (Slip Op. at 26).
It is the Government that has the burden of proving any facts that may be relevant in sentencing under United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005), but here it introduced no evidence into the district court record specifically demonstrating that the attempted robbery was a crime of violence under the “elements clause.” (Slip Op. at 26-27). Nor did Sheffield’s prior conviction fall under the “residual clause,” for a host of decisions under the Armed Career Criminal Act’s (“ACCA”) identically-worded residual clause (18 U.S.C. § 924(e)(2)(B)), had found that statute unconstitutionally void for vagueness. (Slip Op. at 27-28) (citing, inter alia, Johnson v. United States, 135 S. Ct. 2551 (2015); In re Sealed Case, 548 F.3d 1085,1089 (D.C. Cir. 2008)).