United States v. Soto-Rivera ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1216
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY SOTO-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Hawkins,* and Barron,
Circuit Judges.
Johnny Rivera-González for appellant.
Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on
brief, for appellee.
January 22, 2016
* Of the Ninth Circuit, sitting by designation.
THOMPSON, Circuit Judge. This appeal calls for us to
consider the district judge's determination that appellant Anthony
Soto-Rivera ("Soto-Rivera") should be sentenced as a Career
Offender because he committed a "crime of violence" as defined by
the United States Sentencing Guidelines ("U.S.S.G." or
"Guidelines"). The issue before us is narrow, and so is our
ruling. Taking this case just as it has been presented to us --
meaning we hold the parties to their concessions and decline to
speculate on the possible merit of other arguments that might have
been (but weren't) made -- we conclude that Soto-Rivera's
particular crime of conviction does not qualify as a "crime of
violence" under the Guidelines. Accordingly, Soto-Rivera may not
be sentenced as a Career Offender.
BACKGROUND
The facts, generally speaking, are neither complicated
nor disputed. We recite only those necessary to decide the issues
presented by the parties.
For reasons not germane to the legal issues here, Soto-
Rivera found himself under arrest, and the arresting officers found
a handgun and ammunition in his possession. This was a problem
for him, as it turns out that Soto-Rivera had a previous felony
conviction on his record.
Soto-Rivera soon faced a two-count indictment in the
Puerto Rico district court. Count One charged him with illegally
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possessing a "firearm and ammunition" in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), statutes which make it illegal for
convicted felons to have guns or ammo. Count Two gave more detail
about Soto-Rivera's firearm, describing it as a "machinegun, that
is a Glock Model 23, .40 caliber . . . modified to shoot
automatically more than one shot, without manual reloading, by a
single function of the trigger," which violated 18 U.S.C.
§§ 922(o)'s and 924(a)(2)'s general prohibition against possessing
machineguns.1
Although he entered an initial plea of not guilty, rather
than stand trial Soto-Rivera entered into a Plea Agreement with
the government. Pursuant to their Agreement, Soto-Rivera agreed
to plead guilty to Count One's charge of illegally possessing a
"firearm and ammunition," with Count Two falling by the wayside.
The Plea Agreement addressed the length of the prison
sentence Soto-Rivera could expect to receive, something that is
heavily influenced by various provisions in the Sentencing
Guidelines. The now-advisory Guidelines are "a system under which
a set of inputs specific to a given case (the particular
characteristics of the offense and offender) yield[s] a
predetermined output (a range of months within which the defendant
1
The Indictment contained a separate count seeking forfeiture
of the Glock and ammunition. This forfeiture count also described
the Glock as a "machinegun."
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could be sentenced)." Peugh v. United States, 133 S. Ct. 2072,
2079 (2013). We commend those readers interested in a general
overview of how the Guidelines work to the succinct and informative
rundown in United States v. Serrano-Mercado, 784 F.3d 838 (1st
Cir. 2015).
For our purposes today, it is enough to know that the
Guidelines take into account any past crimes a defendant has been
convicted of, with the idea being that "[t]he more severe the
criminal history," the lengthier the sentence. Serrano-Mercado,
784 F.3d at 840. 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). A Career
Offender is considered to have the most severe criminal history
provided by the Guidelines. Id. § 4B1.1(b). The practical effect
is that a Career Offender generally receives a longer sentence for
a particular crime (which, remember, must be either a "crime of
violence" or a "controlled substance offense") than a non-Career
Offender would get for that same crime.
So, to figure out whether a particular defendant is a
Career Offender, it's necessary to know first whether that
defendant is being sentenced following a conviction for a crime of
violence or a controlled substance offense. If he is, the next
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question to answer is whether that defendant "has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense." Id. § 4B1.1(a). Towards that end,
a defendant and the government might stipulate in a plea agreement
as to which (and how many) crimes a defendant has committed in the
past.
But the Plea Agreement here -- which seems to assume
that felon in possession is a crime of violence -- is silent in
that regard. Instead, Soto-Rivera and the government calculated
potential sentence lengths both with and without considering him
to be a Career Offender. The Plea Agreement indicates that Soto-
Rivera faced 77-96 months in prison if he was found to be a Career
Offender, and some shorter amount of time if he turned out not to
be one.2
Further, Soto-Rivera conceded in the Plea Agreement that
the government would have proven at trial that he had been caught
with a firearm "modified to fire automatically, that is, as a
machine gun." He also admitted that he knew about the Glock's
modifications, and that he already had a prior felony conviction
on his record when he was caught with the gun. A district judge,
after questioning Soto-Rivera at a change of plea hearing, accepted
2
According to the Agreement, if not a Career Offender, Soto-
Rivera's sentencing range would be 51-63 months, 57-71 months, or
70-87 months, depending on his exact number of prior convictions.
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his guilty plea after finding it to be "knowing and voluntary," as
well as "supported by an independent basis in fact . . . ."
When it came time for sentencing, Soto-Rivera did not
object to being classified as a Career Offender. Indeed, working
off the 77-96 month Career Offender range the parties calculated
in the Plea Agreement, his own attorney asked for a 77-month
sentence. The government went the other way and asked for a top-
of-the-range sentence of 96 months.
The sentencing judge stated (without objection) that two
of Soto-Rivera's past convictions were "for the manufacture,
delivery or possession with intent to distribute or to deliver
controlled substances[,] and conspiracy to do that." In the
judge's view, these two crimes were "controlled substance
offenses" counting towards Career Offender status. The judge then
stated in conclusory fashion that Soto-Rivera's latest conviction
for felon in possession of a firearm "is considered a crime of
violence." Taking into account Soto-Rivera's two prior controlled
substance convictions, the judge announced he "is considered a
career offender."
Further, though the parties had come up with a Career
Offender range of 77 to 96 months, the sentencing judge's
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calculation differed. He pegged the Guidelines range as between
92 and 115 months.3
Taking into account the circumstances of the crime and
Soto-Rivera's criminal history, the sentencing judge found that
the parties' recommended Guidelines range (77-96 months) "does not
reflect the seriousness of the offense, does not promote respect
for the law, does not protect the public from further crimes by
[Soto-Rivera] and does not address the issues of deterrence and
punishment." Instead, the sentencing judge concluded that the
middle of the 92-155 month range he had calculated would be
appropriate, and sentenced Soto-Rivera to 108 months behind bars.
This timely appeal followed.
STANDARD OF REVIEW
Soto-Rivera did not object to the district court
treating him as a Career Offender before, at, or following
sentencing. Yet this is exactly the issue he raises on appeal, as
he says that he shouldn't have been sentenced as a Career Offender.
Usually, Soto-Rivera's failure to object in the district
court would lead us to find the issue forfeited and we would review
for plain error only. But the government has declined to make a
3 Soto-Rivera does not take issue with this range on appeal.
In fact, he says it's the parties who miscalculated the Guidelines
range in their Plea Agreement.
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forfeiture argument. In fact, at oral argument it explicitly
called for us to apply "de novo review."
So, in accordance with our precedent and the
government's own request, we will review the issue as if it had
been properly preserved. See United States v. Tapia-Escalera, 356
F.3d 181, 183 (1st Cir. 2004) (declining to apply plain error
review to a forfeited argument where the government failed to
request plain error review); see also United States v. Paulino-
Guzman, 807 F.3d 447, 450 n.5 (1st Cir. 2015) (reviewing the
substantive reasonableness of the appellant's sentence for abuse
of discretion, despite the appellant's forfeiture of any objection
at the district court, because the government did not seek plain
error review on appeal).
"We review the district court's interpretation and
application of the sentencing guidelines de novo . . . ." United
States v. Tavares, 705 F.3d 4, 24 (1st Cir. 2013) (quoting United
States v. Cortés-Cabán, 691 F.3d 1, 26 (1st Cir. 2012)). Soto-
Rivera's specific challenge is to the sentencing judge's
determination that he is a Career Offender because the crime to
which he pleaded guilty -- felon in possession of a firearm -- is
a crime of violence within the meaning of the Guidelines. Figuring
out whether the Guidelines define a particular offense as a crime
of violence "poses a purely legal question," so we review that
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particular issue de novo, too. United States v. Velázquez, 777
F.3d 91, 94 (1st Cir. 2015).
ANALYSIS
A.
This appeal is all about Soto-Rivera's sentence, not his
conviction. We must determine whether being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1) is a "crime of
violence" under the Career Offender provisions in the Guidelines.4
Soto-Rivera says that, thanks to an opinion handed down by the
Supreme Court while his appeal was pending, Johnson v. United
States, 135 S. Ct. 2551 (2015), his admitted possession of a
generic "firearm" does not constitute a "crime of violence" under
the Guidelines.5 The government, not surprisingly, disagrees and
offers us a path to affirming the sentence.
4 As a reminder, the Guidelines say that
[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a
crime of violence or a controlled substance
offense; and (3) the defendant has at least
two prior felony convictions of either a crime
of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). Soto-Rivera makes no argument that he was
under 18 at the time he was caught with his Glock.
5 Soto-Rivera separately asserts that there was insufficient
evidence before the sentencing judge to establish that he had
already been convicted of two predicate crimes, meaning either
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But before we can get into the specifics of the parties'
arguments, we need to give some details about how the Guidelines
define a "crime of violence." And we must look at exactly what
Soto-Rivera pleaded guilty to. After doing this we will be able
to unpack and consider Soto-Rivera's Johnson-based arguments.
According to the Guidelines,
[t]he 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.
U.S.S.G. § 4B1.2(a) (emphasis added). The emphasized language,
which has come to be known as the "residual clause," is the key to
this appeal.
Now, Soto-Rivera pled guilty to possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). This statute states that
it is unlawful for any person "who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year[,] . . . to . . . possess in or affecting commerce, any
crimes of violence or controlled substance offenses. We do not
reach this argument.
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firearm or ammunition . . . ." 18 U.S.C. § 922(g)(1). If this
crime is not a crime of violence, it would follow that Soto-Rivera
may not be sentenced as a Career Offender.
B. Initial Arguments
In his opening brief, Soto-Rivera argues that being a
felon in possession of a firearm is not an offense that contains
an element requiring the use, attempted use, or threat of the use
of physical force against another. And, seemingly conceding that
a conviction for the possession of a machinegun would qualify as
a crime of violence, Soto-Rivera says that though "a post-
conviction determination was made finding the gun to be a 'machine
gun,'" the crime of which he was actually convicted -- illegal
possession of a firearm -- is "not an offense involving a hazardous
weapon." Accordingly, he argues that mere possession of a generic
firearm does not qualify as a crime of violence under the residual
clause because simply possessing a firearm does not pose a serious
potential risk of injury to anyone.
In rejoinder, the government says that Soto-Rivera's
crime, although it doesn't contain the use, attempted use, or
threatened use of force as an element, nevertheless involves
conduct that presents a serious potential risk of physical injury
to another given that Soto-Rivera's firearm was a machinegun. The
government, therefore, urges us to find that Soto-Rivera's offense
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of conviction falls within the residual clause's rather expansive
definition of a crime of violence.
C. Post-Johnson Briefing
After the parties' briefs came in, the 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.
See id. at 2555-56 (recognizing the ACCA's "residual clause"
includes any felony that "'involves conduct that presents a serious
potential risk of physical injury to another'" (quoting 18 U.S.C.
§ 924(e)(2)(B))). 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 2557.6
We afforded the parties an opportunity to submit
supplemental briefs addressing Johnson's effect, if any, on this
appeal. Soto-Rivera argued that Johnson's reasoning applies
equally to the Guidelines, rendering the Guidelines's residual
6 As will be made clear, the reasoning leading to the Supreme
Court's holding is of no particular import in this appeal. The
only thing that matters for today's analysis is that the Supreme
Court invalidated the ACCA's residual clause.
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clause unconstitutionally vague and invalid as well. And since he
was found to be a Career Offender by virtue of that residual
clause, Soto-Rivera tells us his sentence cannot stand.
In its supplemental brief, the government said it
"acknowledge[d]" that the Guidelines's residual clause "is
unconstitutionally vague based on Johnson," and so it "no longer
holds the position that [Soto-Rivera's sentence] should be
affirmed" based on the residual clause. Thus, for purposes of
this appeal, the government concedes that 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.
Nevertheless, the government says we may affirm Soto-
Rivera's sentence even without the residual clause. We can do
this, it says, because the residual clause is not the only route
leading to sentencing Soto-Rivera as a Career Offender. According
to the government, we may rely on commentary explaining and further
expanding upon U.S.S.G. § 4B1.2's definition of "crime of
violence."7
7
Guidelines commentary, the Supreme Court has explained, "may
serve these functions: commentary may 'interpret [a] guideline or
explain how it is to be applied,' 'suggest circumstances
which . . . may warrant departure from the guidelines,' or 'provide
background information, including factors considered in
promulgating the guideline or reasons underlying promulgation of
the guideline.'" Stinson v. United States, 508 U.S. 36, 41 (1993)
(quoting U.S.S.G. § 1B1.7).
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Specifically, Application Note 1 to § 4B1.2 states that
"'[c]rime of violence' does not include the offense of unlawful
possession of a firearm by a felon, unless the possession was of
a firearm described in 26 U.S.C. § 5845(a)." U.S.S.G. § 4B1.2,
Application Note 1. The referenced statute, § 5845(a), provides
various definitions of the term "firearm," and it explicitly
includes "machinegun[s]" within the word's meaning. 26 U.S.C.
§ 5845(a)(6). Because Soto-Rivera admits that he possessed a
machinegun, and because § 5845(a)(6) clearly refers to
"machineguns," Application Note 1, therefore, provides a basis
completely independent of the residual clause for applying the
Career Offender enhancement. Or so the government's argument goes.
D. Discussion
First things first. Based on the government's
concession that Johnson's reasoning applies just as well to the
Guidelines as to the ACCA -- the correctness of which we do not
consider -- we find that Soto-Rivera's Career Offender status may
not be predicated upon the Guidelines's residual clause.8 In other
8 We have yet to decide whether Johnson renders the residual
clause in the Guidelines unconstitutional as well. See United
States v. Castro-Vazquez, 802 F.3d 28, 38-39 (1st Cir. 2015)
(expressly declining to address the issue). Given that the
government has explicitly waived any reliance on it here, this is
not the case for us to opine on the issue either. Moreover, on
January 8, 2016, the Sentencing Commission adopted a preliminary
amendment to U.S.S.G. § 4B1.2 ("Preliminary Amendment") that
deletes the residual clause. See Amendment to the Sentencing
Guidelines (Preliminary) (Jan. 8, 2016) (available at
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words, we may not rely on the residual clause to find that felon
in possession of a firearm is a crime of violence.
With the residual clause out of the picture, the
government is wholly reliant upon Guidelines commentary -- the
above-described Application Note 1 to § 4B1.2 -- to support its
position. The government directs our attention to the Supreme
Court's teaching that commentary "interpret[ing] or explain[ing]
a [G]uideline is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that [G]uideline." Stinson v. United States,
508 U.S. 36, 38 (1993). The implication is that because
Application Note 1 includes possession of a machinegun as a "crime
of violence," and since Soto-Rivera admitted that his modified
Glock was a machinegun, Application Note 1 compels the conclusion
that Soto-Rivera pled guilty to a crime of violence.
But the government fails to analyze whether Application
Note 1 has become inconsistent with its corresponding Guideline if
Johnson dictates that we excise the residual clause.9 This is a
http://www.ussc.gov/sites/default/files/pdf/amendment-
process/reader-friendly-amendments/20160108_RF.pdf (last accessed
January 20, 2016)). The Preliminary Amendment, however, is not
scheduled to go into effect until August 1, 2016.
9The government also seemingly fails to recognize that, while
the Guidelines were binding on the Courts when Stinson was decided,
see Stinson, 508 U.S. at 42, this is no longer the case, see United
States v. Booker, 543 U.S. 220, 245 (2005) (holding that the
Guidelines must be "effectively advisory" in order to survive a
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significant oversight because (as Soto-Rivera points out)
"[G]uideline commentary is not always to be taken as gospel."
United States v. Meléndez-Rivera, 782 F.3d 26, 30 (1st Cir. 2015).
"[W]here commentary is inconsistent with [Guidelines] text, text
controls." United States v. Shell, 789 F.3d 335, 340 (4th Cir.
2015) (citing Stinson, 508 U.S. at 43). See also Stinson, 508
U.S. at 43 (explaining that if "commentary and the guideline it
interprets are inconsistent in that following one will result in
violating the dictates of the other, the Sentencing Reform Act
itself commands compliance with the guideline" rather than the
commentary (citing 18 U.S.C. §§ 3553(a)(4), (b))).
The government's argument requires us to look back at
the applicable Guideline, U.S.S.G. § 4B1.2(a), and consider
whether or not Application Note 1 is consistent with § 4B1.2(a)'s
text in the absence of the residual clause. Excising the clause
from § 4B1.2(a) leaves us with a definition of "crime of violence"
that looks like this:
The term "crime of violence" means any offense
under federal or state law, punishable by
constitutional challenge). Today, courts are to "give 'respectful
consideration' to the now-advisory Guidelines (and their
accompanying policy statements)," Pepper v. United States, 562
U.S. 476, 501 (2011) (quoting Kimbrough v. United States, 552 U.S.
85, 101 (2007)), but "may in appropriate cases impose a non-
Guidelines sentence," id. (citing Kimbrough, 552 U.S. at 109-10).
Because the government's position fails on its own terms (i.e.,
even if we assume arguendo that commentary is binding), we need
not analyze the proper role of Guidelines commentary after Booker.
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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, [or] involves use of explosives.
With § 4B1.2(a) stripped of its residual clause, the
government's position that we may rely on Application Note 1 to
uphold Soto-Rivera's designation as a Career Offender is hopeless.
In order to qualify, Soto-Rivera would have had to have pled guilty
to committing a "crime of violence." But, Soto-Rivera did nothing
more than admit to mere possession of a machinegun. Passive
possession of a firearm (even one as potentially dangerous as a
machinegun) is not a crime that includes -- as an element that
must be proved by the government -- the use, attempted use, or
threatened use of physical force. The lack of such an element
means that it does not constitute a crime of violence under
U.S.S.G. § 4B1.2(a)(1). Moreover, such possession is clearly not
one of those specifically-enumerated crimes listed in U.S.S.G.
§ 4B1.2(a)(2). Thus, in the absence of the residual clause, there
is nothing within § 4B1.2(a)'s text to serve as an anchor for
Application Note 1's inclusion of possession of a machinegun within
the definition of crime of violence.
This leaves the government with its argument that we may
utilize Application Note 1 as an independent basis for a finding
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of Career Offender status. Yet, doing so would be inconsistent
with the post-Johnson text of the Guideline itself. By its clear
language, once shorn of the residual clause § 4B1.2(a) sets forth
a limited universe of specific offenses that qualify as a "crime
of violence." There is simply no mechanism or textual hook in the
Guideline that allows us to import offenses not specifically listed
therein into § 4B1.2(a)'s definition of "crime of violence." With
no such path available to us, doing so would be inconsistent with
the text of the Guideline. Accordingly, we find ourselves in one
of those situations in which Guidelines commentary should not be
"taken as gospel," Meléndez-Rivera, 782 F.3d at 30, and we reject
the government's attempt to make use of U.S.S.G. § 4B1.2(a)'s
Application Note 1 to expand upon the list of offenses that qualify
for Career Offender status.
Finally, the government's reliance on an unpublished
opinion from a sister circuit, Beckles v. United States, 616 F.
App'x 415 (11th Cir. 2015) (unpublished), is unavailing. True
enough, Beckles was decided post-Johnson and determined that
unlawful possession of a sawed-off shotgun continues to count as
a crime of violence. Beckles, 616 F. App'x at 416. Johnson,
Beckles concluded, did not bar this result because "Johnson says
and decided nothing about career-offender enhancements under the
Sentencing Guidelines or about the Guidelines commentary
underlying Beckles's status as a career-offender." Id.
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After limiting Johnson to sentences imposed under the
ACCA, Beckles turned to the Guidelines and explicitly relied on
U.S.S.G. § 4B1.2's Application Note 1 (which, as we said, is tied
to the residual clause) to conclude that possession of a sawed-
off shotgun constitutes a crime of violence. To reach this
conclusion, Beckles cited and relied on circuit precedent, United
States v. Hall, 714 F.3d 1270 (11th Cir. 2013), for the proposition
that "the Guidelines commentary in U.S.S.G. § 4B1.2 is binding
and, thus, . . . possession of a sawed-off shotgun qualifies as a
'crime of violence.'" Id. at 416 (citing Hall, 714 F.3d at 1274).
In the pre-Johnson Hall case, the Eleventh Circuit was
"asked to decide whether an offense [i.e., possession of a sawed-
off shotgun] qualifies as a 'crime of violence' under the
[Guidelines's] residual clause." Hall, 714 F.3d at 1273 (emphasis
added). Thus, Hall determined that, thanks to the Guidelines's
residual clause, possession of a sawed-off shotgun is a crime of
violence because it "involve[s] conduct that presents a serious
potential risk of physical injury to another." See id. at 1274.
It is evident, then, that after rejecting the notion that Johnson
is controlling, Beckles did no more than reaffirm Hall. Beckles,
616 F. App'x at 416 ("Our decision in Hall remains good law and
continues to control in this appeal.").
We need not opine as to whether we believe Beckles was
correctly decided. This is because the government has expressly
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conceded that Johnson invalidated the residual clause in the
Guidelines. Since Beckles (like Hall before it) was grounded in
the very language which the government itself now says must be
excised from the Guidelines, Beckles's reasoning and rationale are
inapposite here. Thus, the Eleventh Circuit's opinion provides no
comfort for the government.10
E. Recap
In sum, the government's arguments that we may affirm
the district court's finding that Soto-Rivera pleaded guilty to a
crime of violence fail. We agree with Soto-Rivera that, in the
absence of the residual clause, there is no textual hook in
Guidelines § 4B1.2(a) to allow for the conclusion that his
possession of a firearm constituted a crime of violence. It
follows that the Guidelines's Career Offender provisions do not
apply, and that Soto-Rivera should not have been sentenced as a
Career Offender. Accordingly, we must vacate the sentence and
10 Though not cited by the government, the Eleventh Circuit
has issued a published opinion dealing with this topic. In United
States v. Matchett, 802 F.3d 1185, 1189 (11th Cir. 2015), our
sister circuit concluded that the now-advisory Guidelines
(including their residual clause) cannot be unconstitutionally
vague because the void-for-vagueness doctrine central to Johnson
"applies only to laws that prohibit conduct and fix punishments,
not advisory guidelines." We have no need to consider the Eleventh
Circuit's reasoning (which appears well on its way to becoming a
minority view, see note 12, infra) in light of the government's
concession as to the unavailability of the residual clause.
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remand for Soto-Rivera to be resentenced without being subject to
the Guidelines's Career Offender provisions.11
As we said at the outset, our ruling is narrow. We hold
only that, in light of the government's concession that Johnson
invalidates the residual clause in Guidelines § 4B1.2(a)(2),
Application Note 1 has become inconsistent with the remaining text
of the Guideline itself. Therefore, the commentary provides no
basis for us to conclude that Soto-Rivera's crime of conviction,
felon in possession of a firearm, falls within § 4B1.2(a)(2)'s
definition of "crime of violence." The correctness of the
government's concession as to Johnson's impact on the Guidelines
is something we need not and do not consider here.12 See Evans-
11 We recognize that the Sentencing Commission's Preliminary
Amendment discussed in note 8, supra, does more than just delete
the residual clause. It amends U.S.S.G. § 4B1.2(a)(2) to include
"unlawful possession of a firearm described in 26 U.S.C.
§ 5845(a)" -- that would include a machinegun -- within the meaning
of "crime of violence."
Even if we make the two-part assumption that the Preliminary
Amendment becomes effective as-drafted on August 1, 2016, and that
the new text provides a basis for concluding that felon in
possession of a firearm may constitute a crime of violence in at
least some circumstances, it still would not be clear that the
Preliminary Amendment would justify increasing Soto-Rivera's
sentence. After all, the Supreme Court has clearly held that
"there is an ex post facto violation when a defendant is sentenced
under Guidelines promulgated after he committed his criminal acts
and the new version provides a higher applicable Guidelines
sentencing range than the version in place at the time of the
offense." Peugh, 133 S. Ct. at 2078.
12Indeed, our court has yet to weigh in on this topic, see
Castro-Vazquez, 802 F.3d at 38 ("We do not decide whether the
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García v. United States, 744 F.3d 235, 239 (1st Cir. 2014) ("This
is not to say that a government concession necessarily results in
an opinion adopting the conceded position."); see also id. at 237-
38 ("We generally do not rule on questions -- whether of fact or
of law -- until a district court has done so . . . .").
CONCLUSION
For the foregoing reasons, Soto-Rivera's sentence is
hereby vacated and this matter is remanded to the district court
for resentencing consistent with this opinion.
residual clause of the [G]uidelines fails under Johnson."), and
this case does not provide a vehicle for doing so in light of the
government's concession. In addition to noting the proposed
deletion of the residual clause, we also point out that several
other circuits have either concluded or implied that Johnson
invalidated it. See United States v. Madrid, 805 F.3d 1204, 1210-
11 (10th Cir. 2015) (holding the residual clause in the Guidelines
unconstitutional in light of Johnson); United States v. Taylor,
803 F.3d 931, 933 (8th Cir. 2015) (per curiam) (remanding for the
district court to analyze Johnson's impact on the Guidelines in
the first instance, but recognizing that "[a]lthough the
[G]uidelines are not statutes, district courts must consider
them," and so the notion "that the [G]uidelines cannot be
unconstitutionally vague because they do not proscribe conduct is
doubtful after Johnson"); United States v. Harbin, 610 F. App'x
562, 562-63 (6th Cir. 2015) (per curiam) (stating that the
appellant, whose sentence had been enhanced under the Guidelines's
Career Offender provisions, is "entitled to the same relief as
offenders sentenced under the residual clause of the ACCA" post-
Johnson, and remanding for resentencing).
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