United States v. Thompson , 851 F.3d 129 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 13-1822
UNITED STATES OF AMERICA,
Appellee,
v.
TREZJUAN THOMPSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
Mary Davis, with whom Tisdale & Davis, P.A. was on brief, for
appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
March 22, 2017
PER CURIAM. Defendant-Appellant Trezjuan Thompson pled
guilty to drug conspiracy and arson charges. Before sentencing,
he moved to withdraw his plea, primarily arguing that he did not
have the opportunity to review personally certain discovery
materials.
The district court denied Thompson's motion, United
States v. Thompson, No. 2:10-cr-200-DBH, 2013 WL 1809659 (D. Me.
Apr. 29, 2013), and sentenced him to 327 months' imprisonment
based, in part, on its finding that Thompson was a career offender
under the sentencing guidelines. See U.S.S.G. §4B1.1. One of the
predicate offenses supporting Thompson's career offender
designation was a 2006 Massachusetts conviction for assault and
battery with a dangerous weapon ("ABDW"). See Mass. Gen. Laws ch.
265, § 15A(b). The court held that the ABDW conviction qualified
as a "crime of violence" under the so-called "residual clause" of
U.S.S.G. §4B1.2(a)(2).1
1
The relevant subsection defined "crime of violence" to
include an offense that "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)(2) (2013) (emphasis added). The
underscored language, often referred to as the residual clause,
has since been stricken from the guideline. See Sentencing
Guidelines for United States Courts, 81 Fed. Reg. 4741, 4742 (Jan.
27, 2016).
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Thompson's opening brief raises only a single issue,
namely, the correctness of the district court's denial of the
motion to withdraw his guilty plea.2 This challenge need not
detain us long. In short, we perceive no abuse of discretion in
the district court's thorough treatment of the matter. See United
States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013). And, contrary
to his contention on appeal, Thompson was not entitled to a hearing
because "[t]he district judge had everything that he needed in the
paper record" to dispose of the motion. United States v. Chambers,
710 F.3d 23, 30 (1st Cir. 2013).
During the pendency of Thompson's appeal, another issue
arose. The Supreme Court, in Johnson v. United States, 135 S. Ct.
2551 (2015), held that the residual clause of the Armed Career
Criminal Act's ("ACCA") definition of "violent felony" was
unconstitutionally vague. The district court's finding that
Thompson qualified as a career offender was predicated upon the
applicable guideline's identical residual clause. Thompson's
opening brief, which was filed before Johnson, did not challenge
any aspect of his sentence, much less argue that the residual
clause was unconstitutionally vague. Thompson raised the issue
2
Thompson has also filed a supplemental pro se brief. Because
the claims raised therein "lack arguable merit," we decline to
address them specifically. United States v. Rose, 802 F.3d 114,
117 (1st Cir. 2015).
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for the first time in a citation of supplemental authority pursuant
to Federal Rule of Appellate Procedure 28(j), requesting remand in
light of Johnson. We ordered supplemental briefing. In response,
the government conceded that Johnson invalidated the career
offender guideline's residual clause, but argued that Thompson's
ABDW conviction fell within the separate "elements" or "force"
clause.3
Subsequently, in Beckles v. United States, ___ U.S ___,
No. 15-8544, slip op. (Mar. 6, 2017), the Supreme Court squarely
held that Johnson does not apply to the career offender guideline.
This is because the sentencing guidelines, unlike the ACCA, "are
not subject to a vagueness challenge under the Due Process Clause."
Id. at 5. We are not bound by the government's concession, which,
while understandable before Beckles,4 turned out to be incorrect.
3
The force clause includes any offense punishable by
imprisonment for more than one year that "has as an element the
use, attempted use, or threatened use of physical force against
the person of another." U.S.S.G. §4B1.2(a)(1).
4
The Supreme Court's decision in Beckles resolved a four to
one circuit split on Johnson's applicability to the career offender
guideline. Four circuits had applied Johnson, while only one had
declined to do so. See United States v. Hurlburt, 835 F.3d 715,
725 (7th Cir. 2016) (applying Johnson); United States v. Pawlak,
822 F.3d 902, 911 (6th Cir. 2016) (same); United States v. Madrid,
805 F.3d 1204, 1211 (10th Cir. 2015) (same); United States v.
Townsend, 638 F. App'x 172, 178 (3d Cir. 2015) (unpublished)
(same). But see United States v. Matchett, 802 F.3d 1185, 1194-
95 (11th Cir. 2015) (declining to apply Johnson). And, in the
lone decision holding that Johnson did not apply, four judges
dissented from the court's subsequent denial of rehearing en banc.
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See United States v. Sánchez-Berríos, 424 F.3d 65, 81 (1st Cir.
2005) ("A concession by either party in a criminal case as to a
legal conclusion is not binding on an appellate court."). In
deciding whether to accept a concession, we consider: (1) "whether
the issue is recurrent so [a] decision would give guidance to the
district courts"; (2) "whether it would be unseemly to accept,
even arguendo, a mistaken legal proposition and reason from it to
decide the case"; and (3) "whether the issues are technical and
complex and not explored carefully in existing decisions so that
adversary briefing would be critical." United States v. Mescual-
Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004). Johnson's applicability
to the career offender guideline has proven to be a frequently
recurring issue in this circuit and, in light of Beckles, the
proper resolution of this issue is crystal clear. Accordingly, we
"ignore the government's concession" and "follow [the Supreme
See generally United States v. Matchett, 837 F.3d 1118 (11th Cir.
2016).
Moreover, prior to Beckles, several district courts in our
circuit had applied Johnson to the career offender guideline. See,
e.g., United States v. Flannery, No. 11-cr-79-M, 2017 WL 462145,
at *1 (D.R.I. Feb. 1, 2017); United States v. Ramirez, 189 F. Supp.
3d 290, 296-97 (D. Mass. 2016); Tosi v. United States, No. 16-cv-
05-GZS, 2016 WL 5107078, at *2 (D. Me. Sept. 20, 2016) (noting
"growing consensus" in favor of applying Johnson); Carmona v.
United States, No. 16-cv-282-LM, 2016 WL 3962897, at *2 n.1 (D.N.H.
July 21, 2016) ("assum[ing] without deciding" that Johnson
applied).
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Court's] clear precedent." United States v. Vega-Ortiz, 425 F.3d
20, 22 (1st Cir. 2005).5
For the foregoing reasons, we AFFIRM Thompson's
convictions and sentence.
5
Indeed, it is worth noting that in Beckles itself the
government "agree[d] . . . that the Guidelines are subject to
vagueness challenges." No. 15-8544, slip op. at 4. This
concession did not prevent the Court from holding to the contrary.
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