United States v. Darryl Rollins , 836 F.3d 737 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1731
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRYL ROLLINS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CR-186 — Rudolph T. Randa, Judge.
____________________
ARGUED DECEMBER 2, 2015 — DECIDED AUGUST 29, 2016
____________________
Before WOOD, Chief Judge, and POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Darryl Rollins pleaded guilty to sell-
ing crack cocaine and was sentenced to 84 months in prison.
This is our second time hearing his appeal. He challenges the
calculation of his Sentencing Guidelines range—specifically,
the district court’s application of the career-offender guide-
line, which assigns a higher offense level if the defendant
2 No. 13-1731
has two prior convictions for a “crime of violence.” See
U.S.S.G. § 4B1.1(a). The term “crime of violence” includes
“any 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.” Id. § 4B1.2(a)(2) (2014) (emphasis added). The
highlighted text is known as the residual clause.
The district judge classified Rollins as a career offender
based in part on a prior conviction for possession of a
sawed-off shotgun, a crime that qualifies (if at all) only
under the residual clause of this definition. In United States v.
Miller, we held that possession of a short-barreled shotgun is
not a predicate “violent felony” under the identically
phrased residual clause in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). 721 F.3d 435, 437 (7th Cir.
2013). In the first go-round on this appeal, Rollins argued
that because the two residual clauses are the same, Miller
controls, notwithstanding application note 1 to § 4B1.2,
which specifically lists possession of a sawed-off shotgun as
a predicate crime of violence. A panel of the court rejected
this argument based on United States v. Raupp, which holds
that that the application note’s list of qualifying crimes is a
valid interpretation of the guideline’s residual clause.
677 F.3d 756, 758–60 (7th Cir. 2012).
In the meantime, the government changed its position on
two key questions lurking in the background: (1) Does the
Supreme Court’s holding in Johnson v. United States,
135 S. Ct. 2551 (2015), apply to the residual clause in the
career-offender guideline; and (2) should United States v.
Tichenor, 683 F.3d 358 (7th Cir. 2012), be overruled? Johnson
invalidated the ACCA’s residual clause as unconstitutionally
No. 13-1731 3
vague. 135 S. Ct. at 2563. Although Johnson logically applies
to the mirror-image residual clause in § 4B1.2(a)(2), our
decision in Tichenor categorically forecloses vagueness
challenges to the Guidelines. 683 F.3d at 364–65. The gov-
ernment previously invoked Tichenor, and Rollins did not
ask the court to revisit and overrule it.
After the panel issued its opinion, however, the govern-
ment reversed course and now argues that Tichenor should
be overruled and that Johnson’s constitutional holding
applies to the residual clause in § 4B1.2(a)(2). In light of the
government’s concession, the panel vacated its opinion and
granted rehearing.
In a separate decision also issued today, the en banc
court overrules Tichenor and holds that under Johnson, the
residual clause in the career-offender guideline is unconsti-
tutionally vague. United States v. Hurlburt, Nos. 14-3611 &
15-1686 (7th Cir. Aug. 29, 2016). That decision undermines
Raupp’s rationale and is decisive here. Application note 1 has
no legal force independent of the guideline itself; the note’s
list of qualifying crimes is valid (or not) only as an interpreta-
tion of § 4B1.2. See Stinson v. United States, 508 U.S. 36, 41–42
(1993). More to the point, when the Sentencing Commission
says in application note 1 that possession of a sawed-off
shotgun is a crime of violence, it is interpreting the residual
clause in § 4B1.2(a)(2); no other part of the crime-of-violence
definition applies. That was the basic premise of Raupp,
which addressed the inchoate crime of conspiracy, another
offense on the application note’s list. 677 F.3d at 757–60.
But the residual clause in § 4B1.2(a)(2) is invalid, so
Raupp’s premise no longer holds. The panel circulated a new
opinion to the full court proposing to overrule Raupp. See
4 No. 13-1731
7TH CIR. R. 40(e). An en banc vote followed, and the court
approved, making this the opinion of the full court. See
Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (using
the same procedure). Accordingly, we now vacate Rollins’s
sentence and remand for resentencing.
I. Background
Rollins sold crack cocaine to confidential informants on
four separate occasions in 2009 and 2010, and these sales led
to his eventual indictment on four counts of drug distribu-
tion. See 21 U.S.C. § 841(a)(1). The government initially
sought a statutory sentencing enhancement, see id. § 851,
based on Rollins’s 2005 Wisconsin felony drug conviction.
Pursuant to plea negotiations, Rollins pleaded guilty to two
counts and agreed for purposes of sentencing that he was
responsible for the drug quantities involved in the other two
sales. In exchange the government dropped the two remain-
ing counts and withdrew its request for the § 851 enhance-
ment.
Rollins’s presentence report initially calculated a Guide-
lines sentencing range of 188–235 months based on an
adjusted offense level of 31 and criminal history category VI.
To reach this offense level, the probation officer classified
Rollins as a career offender, which gave him a base offense
level of 34, see U.S.S.G. § 4B1.1(b)(2), then deducted three
points for acceptance of responsibility, see id. § 3E1.1. The
career-offender guideline assigns higher base offense levels
if the defendant has “at least two prior felony convictions of
either a crime of violence or a controlled substance offense.”
§ 4B1.1(a). A “crime of violence” is defined as:
No. 13-1731 5
any offense under federal or state law, punish-
able 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 ex-
tortion, involves use of explosives, or other-
wise involves conduct that presents a serious
potential risk of physical injury to another.
§ 4B1.2(a) (emphasis added). Subsection (1) is sometimes
called the “elements” clause; the highlighted text in subsec-
tion (2) is the residual clause.
Rollins’s 2005 drug conviction supplied the first predi-
cate for the career-offender designation. Rollins also has a
prior conviction for possession of a sawed-off shotgun, see
WIS. STAT. § 941.28, and application note 1 to § 4B1.2 lists this
offense as a qualifying crime of violence: “For purposes of
this guideline[,] … [u]nlawfully possessing a firearm de-
scribed in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or
sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of
violence.’” The judge accordingly accepted the probation
officer’s recommendation and classified Rollins as a career
offender.
Rollins initially faced a mandatory five years in prison
and a maximum term of 40 years, but the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, reduced the
6 No. 13-1731
statutory range to no minimum and a 20-year maximum. 1
The Act also reduced the statutory minimum term of super-
vised release from four years to three; the government
alerted the judge to this change.
By reducing the maximum prison term, the Fair Sentenc-
ing Act also affected the sentencing range under the Guide-
lines. Rollins’s adjusted offense level dropped from 31 to 29,
which reduced the Guidelines range to 151–188 months. The
parties agreed that this was the correct range. Without the
career-offender designation, the Guidelines range drops to
130–162 months.
Regarding the recommended term of supervised release,
although the government had alerted the court to the Act’s
reduction in the statutory minimum, no one told the judge
that the recommended term of supervised release under the
Guidelines was now three years rather than four to five
years.
At sentencing the government recommended a below-
Guidelines sentence of 87 months based on Rollins’s sub-
stantial assistance, see U.S.S.G. § 5K1.1, and in recognition of
the 18 months he had spent in state custody. Rollins argued
for a 57-month sentence. The judge imposed a sentence of
84 months in prison and four years of supervised release.
Rollins appealed, arguing that the judge improperly ap-
plied the career-offender guideline and misapprehended the
effect of the Fair Sentencing Act on the recommended term
of supervised release under the Guidelines. His first argu-
1Under Dorsey v. United States, 132 S. Ct. 2321 (2012), the Fair Sentencing
Act applies retroactively to Rollins.
No. 13-1731 7
ment hinged on our decision in Miller, which held that
possession of a sawed-off shotgun is not a predicate violent
felony under the ACCA’s residual clause. 721 F.3d at 437.
Because the residual clause in § 4B1.2(a)(2) mirrors the
residual clause in the ACCA, Rollins urged us to apply
Miller to the career-offender guideline, notwithstanding
application note 1. That is, he asked us to disregard the
application note because it contradicted the text of the
residual clause in § 4B1.2(a)(2).
After the panel heard argument, the Supreme Court is-
sued its decision in Johnson invalidating the ACCA’s residual
clause on vagueness grounds. 135 S. Ct. at 2563. The panel
ordered supplemental briefing to address the effect of
Johnson on this case. The government argued that Tichenor
blocked application of Johnson to the career-offender guide-
line. See Tichenor, 683 F.3d at 364 (holding that the Guide-
lines are not susceptible to vagueness challenges). Rollins
did not ask the court to revisit Tichenor, so we set aside the
question of Johnson’s effect on § 4B1.2(a)(2).
With Johnson out of the picture, the outcome of the ap-
peal turned on Raupp. There we held that the Sentencing
Commission is “free to go its own way” when classifying
offenses as crimes of violence under the career-offender
guideline’s residual clause, and this was so even if the same
crime doesn’t qualify as a predicate under the parallel
residual clause in the ACCA. Raupp, 677 F.3d at 760–61.
Applying Raupp, the panel rejected Rollins’s argument under
Miller. However, because the parties agreed that the judge
misunderstood the recommended term of supervised re-
lease, the panel remanded to permit the judge to reconsider
that part of the sentence.
8 No. 13-1731
Rollins quickly petitioned for rehearing, noting that in
the meantime the government had changed its position on
both Tichenor and Johnson’s effect on the career-offender
guideline. The Assistant U.S. Attorney acknowledged the
government’s about-face and agreed that he should have
notified us of this development sooner. The parties now
agree that Tichenor should be overruled and that Johnson’s
holding applies to the residual clause in § 4B1.2(a)(2). Ac-
cordingly, the panel vacated its decision and granted rehear-
ing to address these questions and whether Raupp remains
viable. As we’ve noted, an en banc vote followed, and this
opinion has been adopted by the en banc court.2
II. Discussion
In a separate opinion issued today, the en banc court
overrules Tichenor and applies Johnson’s constitutional
holding to the residual clause in § 4B1.2(a)(2). United States v.
Hurlburt, Nos. 14-3611 & 15-1686 (7th Cir. Aug. 29, 2016).
That decision settles the lion’s share of this appeal. The
residual clause is unconstitutionally vague, and Rollins’s
conviction for possession of a sawed-off shotgun is not a
crime of violence under any other part of the definition in
§ 4B1.2(a). That is, it doesn’t qualify under the “elements”
clause in subsection (1), and it’s not one of the specific
crimes listed in subsection (2). The only question is whether
this conviction counts as a predicate crime of violence based
on the application note alone. On a proper understanding of
2District Judge J. Phil Gilbert, of the Southern District of Illinois, served
on the original panel, sitting by designation. We appreciate his willing-
ness to assist the court.
No. 13-1731 9
the role that application notes play, this question virtually
answers itself.
We begin with the Supreme Court’s decision in Stinson,
which explained the “three varieties” of text in the Guide-
lines Sentencing Manual. 508 U.S. at 41. The first variety “is a
guideline provision itself.” Id. These “are the equivalent of
legislative rules adopted by federal agencies.” Id. at 45. The
Guidelines (and any amendments) must be submitted to
Congress “for a 6-month period of review, during which
Congress can modify or disapprove them.” Id. at 41.
The second variety of text in the Sentencing Manual con-
sists of the Sentencing Commission’s policy statements,
which have much the same effect as the Guidelines them-
selves. See id. at 41–42 (citing 28 U.S.C. § 994(a)(2)). The third
variety is the Commission’s commentary; these “application
notes” interpret the Guidelines and explain how they are to
be applied. Id. at 42. The application notes thus are the
agency’s interpretation of its own legislative rules and under
Stinson get Auer deference. Id. at 44; Raupp, 677 F.3d at 758
(citing Auer v. Robbins, 519 U.S. 452, 461–63 (1997)). Under
this form of deference, an application note has “controlling
weight unless it is plainly erroneous or inconsistent with”
the text of the guideline it interprets. Stinson, 508 U.S. at 45
(quotation marks omitted).
In short, the application notes are interpretations of, not
additions to, the Guidelines themselves; an application note
has no independent force. Accordingly, the list of qualifying
crimes in application note 1 to § 4B1.2 is enforceable only as
an interpretation of the definition of the term “crime of
violence” in the guideline itself. More specifically, the Sen-
tencing Commission has interpreted the residual clause in
10 No. 13-1731
§ 4B1.2(a)(2) to include the specific crimes listed in applica-
tion note 1. That interpretation is entitled to Auer deference,
as we recognized in Raupp. But the note has no legal force
standing alone. It follows, then, that because the residual
clause in § 4B1.2(a)(2) is unconstitutional, the application
note’s list of qualifying crimes is inoperable and cannot be
the basis for applying the career-offender enhancement.
The government suggests that we can read the list as a
freestanding interpretation of the term “crime of violence.”
That argument cannot be squared with Stinson. “Crime of
violence” is a defined term in the career-offender guideline.
Under § 4B1.2(a), “crime of violence” means subpart 1 (the
elements clause) and subpart 2 (the four specific crimes
followed by the residual clause). If the application note’s list
is not interpreting one of those two subparts—and it isn’t
once the residual clause drops out—then it is in effect adding
to the definition. And that’s necessarily inconsistent with the
text of the guideline itself.
Indeed, the First Circuit has recently rejected the gov-
ernment’s argument that the note independently supports
application of the career-offender enhancement. See United
States v. Soto-Rivera, 811 F.3d 53, 60 (1st Cir. 2016) (“There is
simply no mechanism or textual hook in the [g]uideline 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 … , doing so would be inconsistent with
the text of the [g]uideline.”). We think that court has it
exactly right.
Because the residual clause in § 4B1.2(a)(2) is unconstitu-
tionally vague, our holding in Raupp has lost its tether to the
text of the career-offender guideline. In Raupp we upheld the
No. 13-1731 11
defendant’s career-offender designation based on a prior
conviction for a different crime on the application note’s list:
the inchoate crime of conspiracy. 677 F.3d at 757–60. We held
that the note’s list of qualifying crimes was a valid interpre-
tation of § 4B1.2(a)(2)’s residual clause, which was otherwise
silent on the subject. Id. at 759 (“There cannot be a conflict
[between the note and the guideline] because the text of
§ 4B1.2(a) does not tell us, one way or another, whether
inchoate offenses are included or excluded. The note says
they are included.”).
But Raupp was decided before Johnson, and the prevailing
understanding at the time was that the residual clauses in
both the statute and the guideline had some kernel of mean-
ing despite the judiciary’s persistent struggle to settle on a
coherent and consistent construction. That permitted us to
defer to the Sentencing Commission’s interpretation of the
guideline’s residual clause in application note 1. The prevail-
ing understanding has now changed. Because Raupp’s
premise has been undone by intervening legal develop-
ments, it is overruled.
To sum up, application note 1 is enforceable only as an
interpretation of the residual clause in § 4B1.2(a)(2); it has no
independent legal force. The residual clause is invalid, and
the application note’s list of qualifying crimes cannot alone
supply the basis for a career-offender designation. Rollins’s
conviction for possession of a sawed-off shotgun doesn’t
qualify as a crime of violence under any other part of the
definition. He was wrongly classified as a career offender.
Our final question is one of remedy. The career-offender
error produced a Guidelines range that was too high. The
12 No. 13-1731
case is before us on plain-error review; we may correct a
forfeited error if it is (1) “plain”; (2) affects the defendant’s
“substantial rights”; and (3) “seriously affects the fairness,
integrity, or public reputation of [the] judicial proceedings.”
Henderson v. United States, 133 S. Ct. 1121, 1126–27 (2013)
(quotation marks omitted). Rollins was sentenced before
Johnson upended the controlling law, but it’s enough that the
error is “plain” at the time of appellate review. Id. at 1130.
That leaves the question of prejudice. To establish that
the error affected his substantial rights, Rollins must show
“a reasonable probability that, but for the error, the outcome
of the proceeding would have been different.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal
quotation marks omitted). As in Hurlburt, the question of
prejudice in this case is informed by the Supreme Court’s
recent decision in Molina-Martinez. There the Court ex-
plained that “[w]hen a defendant is sentenced under an
incorrect Guidelines range[,] … the error itself can, and most
often will, be sufficient to show a reasonable probability of a
different outcome absent the error.” Id. at 1345 (emphasis
added). Rollins’s 84-month sentence is well below the origi-
nal Guidelines range because he received credit for his
substantial assistance to the government, and it remains
below the correctly calculated range once the career-offender
error is removed. Still, “[w]hen a district court incorrectly
calculates the [G]uideline[s] range, we normally presume the
improperly calculated [G]uideline[s] range influenced the
judge’s choice of sentence, unless he says otherwise.” United
States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). Nothing in
the record suggests that the normal presumption should not
apply here.
No. 13-1731 13
Before concluding, we note that the Sentencing Commis-
sion has amended the Guidelines to delete § 4B1.2(a)(2)’s
residual clause in light of Johnson. 81 Fed. Reg. 4741, 4742
(2016). The amendment, which became effective on Au-
gust 1, 2016, also moves specific crimes from the application
note’s list to the text of the guideline itself. The amended
guideline now reads, in relevant part: “The term ‘crime of
violence’ means … murder, voluntary manslaughter, kid-
napping, aggravated assault, a forcible sex offense, robbery,
arson, extortion, or the use or unlawful possession of a firearm
described in 26 U.S.C. § 5845(a) or explosive material as
defined in 18 U.S.C. § 841(c).” 81 Fed. Reg. 4741, 4742 (2016
(emphasis added). (Recall that § 5845(a) covers possession of
a sawed-off shotgun.) The amendment doesn’t resolve this
case, but it substantially clarifies future applications of the
career-offender guideline.
For the foregoing reasons, we VACATE Rollins’s sentence
and REMAND for resentencing. 3
3 On remand the district court will have the opportunity to correct the
error regarding the recommended term of supervised release.