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The Government Waives Waiver (or Forfeits Forfeiture)

United States v. Soto-Rivera

In this case, the First Circuit reviewed a sentencing court’s determination that Mr. Soto-Rivera qualified as a Career Offender. A defendant who is over 18 at the time he commits a “felony that is either a crime of violence or a controlled substance offense,” and who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense,” is a Career Offender. U.S.S.G. § 4B1.1(a).

Mr. Soto-Rivera pled guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).  At sentencing, the court announced Mr. Soto-Rivera had two previous convictions for “controlled substance offenses.”  The judge then stated, in “conclusory fashion,” that Mr. Soto-Rivera’s latest conviction for felon in possession of a firearm is “considered a crime of violence.”  As a result, the sentencing court found Mr. Soto-Rivera was a Career Offender.  Incredibly, Mr. Soto-Rivera failed to object to the Career Offender classification.

Even more incredible, however, was that on appeal, the Government never recognized Mr. Soto-Rivera’s failure to object during sentencing.  The First Circuit noted that normally, Mr. Soto-Rivera’s failure to timely object at sentencing to the Career Offender designation would subject him to plain error review on appeal.  But the Government never argued for plain error review.  In fact, the Government stated at oral argument the issue should be reviewed de novo.  Thus, the First Circuit held: “in accordance with our precedent and the government’s own request, we will review the issue as if it had been properly preserved.”

Mike Brownlee is an appellate attorney in Orlando, Florida with the firm of Fisher Rushmer, P.A.  His practice is dedicated to federal and state civil and criminal appeals.  

Reviewing de novo, the First Circuit held that Mr. Soto was improperly designated as a Career Offender because his felon in possession conviction was not “a crime of violence.”  The Government initially argued that a felon in possession conviction constituted a “crime of violence” pursuant to the residual clause of U.S.S.G. § 4B1.2(a).  According to the Guidelines, a “crime of violence” is “any offense” punishable by over one year of imprisonment 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, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  The underlined portion is what is commonly referred to as the “residual clause.”

However, after the parties had completed briefing in Mr. Soto-Rivera’s case, the United States Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson involved a void-for-vagueness challenge to the federal Armed Career Criminal Act (“ACCA”), which, like the Guidelines, provides for lengthier sentences for certain defendants based on their criminal histories. In this regard, the ACCA contains a residual clause that is almost identical to the one found in the Guidelines.  The Johnson Court ultimately held that the ACCA’s residual clause is void for vagueness and that “[i]ncreasing a defendant’s sentence under the clause denies due process of law.” Id. at 2557.

The First Circuit invited the parties in Soto-Rivera to submit supplemental briefing in light of Johnson.  Unsurprisingly, Mr. Soto-Rivera argued that even though the Supreme Court’s decision in Johnson dealt with the ACCA, it applied equally to “residual clause” Career Offender cases.  The Government conceded that based on Johnson, “it violates due process to utilize the Guidelines’s residual clause to classify a defendant as a Career Offender and thereby impose a longer sentence.”  Given the Government’s concession, the Soto-Rivera Court declined to decide what would have been an issue of first impression in the First Circuit: whether Johnson renders the residual clause in the Guidelines unconstitutional.  The First Circuit remanded Mr. Soto-Rivera’s case for resentencing without the Career Offender designation.