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)).
The panel perhaps could have left it there with the reference to the ACCA but Judge Millett went on to lay bare a truth about the so-called “advisory” Guidelines: they “‘impose a series of requirements on sentencing courts that cabin the exercise of * * * discretion;’” that “‘[c]ommon sense indicates that in general, this system will steer district courts to more within-Guidelines sentences;’” and that the Guidelines “‘exert controlling influence on the sentence that the court will impose. . . . ’” (Slip Op. at 28) (quoting Peugh v. United States, 133 S. Ct. 2072, 2082, 2084, 2085 (2013)). Accordingly, Judge Millett commented that “an unconstitutionally vague Guidelines provision that has the effect of doubling or tripling a defendant’s sentence is constitutionally troublesome in its own right,” and pointed to a series of decisions that had found the Career Offender residual clause constitutionally unsound. (Slip Op. at 28-29) (citations omitted).
Next, Judge Millett looked to whether the enhancement could have been justified under the Guidelines’ “element clause” and concluded that it could not. D.C.’s attempted robbery statute that was in effect when Sheffield committed his prior offense was not “categorically a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another,’” because the statute included “‘offenses that fail[ed] to qualify as crimes of violence under section 4B1.2.’” (Slip Op. at 29-30) (quoting Sealed Case, 548 F.3d at 1089)).
Finally, Judge Millett recognized that “the Supreme Court has allowed for a ‘modified categorical approach’ to identifying crimes of violence for offenses that do not categorically satisfy the elements clause in those rare instances when that statutory offense is ‘divisible,’ meaning that the statute ‘list[s] potential offense elements in the alternative, [and thus] renders opaque which element played a part in the defendant’s conviction.’” (Slip Op. at 31) (quoting Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). Here, however, “D.C.’s attempted robbery statute [as compared to its robbery statute] is not divisible— that is, it does not set out ‘multiple, alternative versions of the Crime’ that include both violent and non-violent elements.” (Slip Op. at 31-32) (quoting Descamps, 133 S. Ct. at 2284). Indeed, “ attempted robbery is a loosely defined crime, with an expansive overt act requirement that is not tied to any specific type of robbery—violent or otherwise.” (Slip Op. at 32).
Sheffield, then, showed plain error entitling him to a resentencing.
Concurring in the judgment, Circuit Judge Sentelle fretted that “I also differ from the majority with respect to the analysis supporting its conclusion that there is plain error in the sentence. *** As I have stated on a prior occasion, ‘I fear that this circuit is drifting toward a jurisprudence in which there is no distinction between reviewing for “plain error” and simply reviewing to determine whether the district court erred.’” (Slip Op. at 3) (Sentelle, J., concurring). Given the Government’s concession of error, however, Judge Sentelle voted to remand the sentence. (Id.)
Congratulations are in order to William (“Billy”) Becker for saving his client from an unduly lengthy term of incarceration.
–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit. (Disclosure: I represented an appellant in the Childress appeal.)