Todd D'Antoni v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1358
TODD A. D’ANTONI,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 16-cv-00398 — William M. Conley, Judge.
____________________
ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 21, 2019
____________________
Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.
FLAUM, Circuit Judge. Todd D’Antoni received an en-
hanced sentence under the career-offender provision of the
1990 United States Sentencing Guidelines, based on a prior
felony drug conviction and a prior felony “crime of violence”
conviction. See U.S.S.G. § 4B1.1 (1990). Relevant here, the pro-
vision’s “crime of violence” definition included a residual
clause, encompassing any felony “involv[ing] conduct that
2 No. 18-1358
present[ed] a serious potential risk of physical injury to an-
other.” Id. § 4B1.2(1)(ii). The Guidelines were mandatory as
applied to D’Antoni because he was sentenced well before the
Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), which held the Guidelines must be advisory to
comply with the Constitution.
Following Johnson v. United States, 135 S. Ct. 2551 (2015), in
which the Supreme Court held the identical Armed Career
Criminal Act (“ACCA”) residual clause “violent felony” defi-
nition was unconstitutionally vague, D’Antoni brought a
28 U.S.C. § 2255 motion seeking resentencing. He argued
Johnson applied to make § 4B1.2’s residual clause “crime of
violence” definition unconstitutionally vague, and he claimed
the sentencing court considered one of his predicate convic-
tions—conspiracy to kill a government witness—a crime of
violence only under the residual clause. Although in Beckles v.
United States, 137 S. Ct. 886 (2017), the Supreme Court held
that Johnson did not extend to the post-Booker advisory Guide-
lines residual clause, in Cross v. United States, 892 F.3d 288 (7th
Cir. 2018), we held that Johnson did render the pre-Booker man-
datory Guidelines residual clause unconstitutionally vague.
At issue in this case is whether D’Antoni’s sentence should
nevertheless be affirmed because “conspiracy,” “murder,”
and “manslaughter” were listed as crimes of violence in the
application notes to the 1990 version of § 4B1.2. Our unani-
mous en banc decision in United States v. Rollins, 836 F.3d 737
(7th Cir. 2016), answers this question: The application notes’
list of qualifying crimes is valid only as an interpretation of
§ 4B1.2’s residual clause, and because Cross invalidated that
residual clause, the application notes no longer have legal
force. Accordingly, D’Antoni is entitled to resentencing.
No. 18-1358 3
I. Background
A. Convictions and Sentences
In 1987, the government charged D’Antoni with selling co-
caine to a juvenile resulting in her death, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 845(a). While in jail
pending charges, D’Antoni offered another inmate $4,000 and
two ounces of cocaine to kill a government witness related to
the cocaine charge. The inmate agreed, and D’Antoni gave
him instructions to contact D’Antoni’s brother and a code-
fendant. However, instead of following D’Antoni’s instruc-
tions, the inmate went to the police and agreed to cooperate.
The government then charged D’Antoni with conspiracy to
kill a government witness, in violation of 18 U.S.C. § 371.
D’Antoni simultaneously pleaded guilty to both the co-
caine distribution charge and the conspiracy charge, and in
December 1987, he was sentenced in both cases. The district
court imposed a 35-year term of imprisonment on the drug
charge and a consecutive 5-year term of imprisonment on the
conspiracy charge. We affirmed those convictions and sen-
tences. United States v. D’Antoni, 856 F.2d 975 (7th Cir. 1988).
In October 1990, the government charged D’Antoni with
conspiracy to distribute LSD while in jail, in violation of
21 U.S.C. § 846. A jury convicted D’Antoni in February 1991.
Pursuant to the drug-quantity Guideline, U.S.S.G. § 2D1.1
(1990), the presentence report calculated a mandatory Guide-
lines range of 51–63 months’ imprisonment.
The government objected. It argued D’Antoni should re-
ceive an enhanced sentence under the Guidelines career-of-
fender provision. The Guidelines classified a defendant as a
career offender if: (1) he is at least eighteen years old when he
4 No. 18-1358
committed the instant offense; (2) the “instant offense of con-
viction is a felony that is either a crime of violence or a con-
trolled substance offense”; and (3) he “has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.” Id. § 4B1.1. The 1990 Guidelines defined
“crime of violence” as follows:
(1) The term “crime of violence” means any of-
fense under federal or state law punishable
by imprisonment for a term exceeding one
year that—
(i) has as an element the use, attempted use,
or threatened use of physical force
against the person of another, or
(ii) is burglary of a dwelling, arson, or extor-
tion, involves use of explosives, or other-
wise involves conduct that presents a serious
potential risk of physical injury to another.
Id. § 4B1.2(1) (emphasis added). Section 4B1.2(1)(i) is referred
to as the “elements clause,” the nonemphasized text in
§ 4B1.2(1)(ii) is referred to as the “enumerated offenses
clause,” and the emphasized text in § 4B1.2(1)(ii) is referred to
as the “residual clause.” Also relevant are application notes 1
and 2 to the 1990 version of § 4B1.2, which state:
1.The terms “crime of violence” and “controlled
substance offense” include the offenses of aid-
ing and abetting, conspiring, and attempting
to commit such offenses.
2.“Crime of violence” includes murder, man-
slaughter, [and other offenses].
No. 18-1358 5
Id. § 4B1.2 cmt. nn.1, 2. 1 The government argued D’Antoni
was a career offender because his cocaine conviction was a
controlled substance offense and his conspiracy to kill a gov-
ernment witness conviction was a crime of violence.
The district court agreed. Pursuant to § 4B1.1, it calculated
D’Antoni’s mandatory Guidelines range as 262–327 months’
imprisonment. The court imposed a 264-month sentence, to
be served consecutively with the prior 40-year sentence. In de-
ciding that the conspiracy to kill a government witness con-
viction was a “crime of violence,” the court did not explain its
reasoning; it did not specify whether it relied on § 4B1.2’s re-
sidual clause, elements clause, commentary, or some combi-
nation of those parts of the provision. D’Antoni appealed,
contending the court erred in classifying him as a career of-
fender because his two prior convictions were “related” and
should not have been counted separately. We disagreed and
affirmed the sentence. United States v. D’Antoni, 980 F.2d 733,
1992 WL 357229 (7th Cir. Dec. 3, 1992) (unpublished).
B. First 28 U.S.C. § 2255 Motion
On October 26, 2010, D’Antoni filed a § 2255 motion to va-
cate his sentence, arguing his career-offender sentence was
determined without prior notice of the underlying convic-
tions, in violation of 21 U.S.C. § 851. The district court denied
1 Section 4B1.2 has been subsequently amended. Until 2016, there
were no substantive changes, but the provision was renumbered (e.g.,
§ 4B1.2(1)(ii) was relabeled § 4B1.2(a)(2)) and the contents of 1990 applica-
tion notes 1 and 2 were combined into application note 1. In 2016, the Sen-
tencing Commission removed the residual clause and added a specific list
of crimes.
6 No. 18-1358
the motion as untimely and denied a certificate of appealabil-
ity. We also denied a certificate of appealability.
C. Successive 28 U.S.C. § 2255 Motion
On June 26, 2015, the Supreme Court held the ACCA re-
sidual clause definition of “violent felony,” 18 U.S.C.
§ 924(e)(2)(B)(ii)—which is identical to the Guidelines resid-
ual clause “crime of violence” definition—unconstitutionally
vague. Johnson, 135 S. Ct. at 2556–60. Less than a year later, the
Court held that “Johnson announced a substantive rule that
has retroactive effect in cases on collateral review.” Welch v.
United States, 136 S. Ct. 1257, 1268 (2016). In light of Johnson
and Welch, we granted D’Antoni permission to file a succes-
sive § 2255 motion. He maintained his career-offender sen-
tence was invalid because: (1) Johnson applied to invalidate
§ 4B1.2’s residual clause as unconstitutionally vague; and
(2) his prior conviction for conspiracy to kill a government
witness could only be considered a crime of violence under
the residual clause and thus no longer qualified as a predicate
offense. The district court stayed the proceedings until the Su-
preme Court decided Beckles on March 6, 2017. In Beckles, the
Court held that the advisory Sentencing Guidelines are not
subject to vagueness challenges, and therefore, at least the
post-Booker advisory version of § 4B1.2(a)’s residual clause is
not void for vagueness. 137 S. Ct. at 893–95.
Relying on Beckles, the government argued Johnson did not
apply retroactively to render the residual clause of the pre-
Booker mandatory Guidelines unconstitutionally vague. Alter-
natively, the government suggested that even if Johnson retro-
actively voided the mandatory Guidelines residual clause,
D’Antoni’s prior conviction for conspiring to kill a govern-
ment witness still qualified as a predicate offense because
No. 18-1358 7
§ 4B1.2’s application notes listed conspiracy, murder, and
manslaughter as crimes of violence.
On January 17, 2018, the district court denied D’Antoni’s
petition. It concluded that, based on Beckles, D’Antoni could
not make a vagueness challenge to the pre-Booker mandatory
Guidelines, and therefore, his prior conspiracy conviction re-
mained a crime of violence pursuant to the residual clause.
However, the court granted a certificate of appealability.
D. This Appeal
D’Antoni timely filed a notice of appeal, which we stayed
pending our decision in Cross. In Cross, we held that “Beckles
applies only to advisory guidelines, not to mandatory sen-
tencing rules,” and therefore, “the guidelines residual clause
is unconstitutionally vague insofar as it determined manda-
tory sentencing ranges for pre-Booker defendants.” 892 F.3d at
291; see also id. at 306 (“[U]nlike the advisory guidelines, the
mandatory guidelines implicated the ‘twin concerns’ of the
vagueness doctrine. The mandatory guidelines are thus sub-
ject to attack on vagueness grounds.” (citation omitted)). We
also held that Johnson applies retroactively to § 2255 motions
challenging the constitutionality of the mandatory Guidelines
residual clause on collateral review. Id. at 306–07.
In light of Cross, on September 13, 2018, the government
filed a statement of position. It emphasized that Cross did not
“resolve the government’s argument … that D’Antoni re-
mains a career offender even after Johnson, based on the valid-
ity of his conspiracy conviction as a listed offense” in § 4B1.2’s
commentary. Additionally, the government pointed out that
8 No. 18-1358
“Cross did not have occasion to address the specific retroac-
tivity requirement for successive § 2255 motions like D’An-
toni’s, which are governed by 28 U.S.C. § 2255(h)(2).”
II. Discussion
Because this appeal asks us to resolve a question of law,
we review the district court’s denial of D’Antoni’s § 2255 mo-
tion de novo. Delatorre v. United States, 847 F.3d 837, 843 (7th
Cir. 2017).
The government emphasizes that the sentencing court did
not mention the residual clause when it determined the con-
spiracy to kill a government witness conviction qualified as a
predicate crime of violence for purposes of considering D’An-
toni a career offender. It asks us to deny relief because, in its
view, there is nothing in the record to show that D’Antoni was
actually sentenced under the residual clause, as opposed to
under the elements clause or § 4B1.2’s commentary. It points
out that the application notes list conspiracy, murder, and
manslaughter as examples of “crime[s] of violence,” and
therefore asserts that “as applied to D’Antoni, the residual
clause cannot be unconstitutionally vague.” We disagree.
Given our holdings in Cross and Rollins, we must grant relief. 2
2 The government also contends Cross does not apply because Cross
“involved two initial § 2255 petitioners,” while D’Antoni is a successive
petitioner. It points out that because this is a successive petition, D’Antoni
can get relief only if the Supreme Court itself makes a previously unavail-
able new rule of constitutional law retroactive to cases on collateral re-
view. See 28 U.S.C. § 2255(h)(2). The government posits that no Supreme
Court opinion has addressed the constitutionality of the residual clause in
the pre-Booker mandatory Guidelines, so D’Antoni cannot benefit from
Cross. However, as the government concedes, “the broadly worded rea-
soning in Cross precludes this particular argument.” See Cross, 892 F.3d at
No. 18-1358 9
The government insists that “the relevant commentary did
not purport to interpret the former residual clause,” but in-
stead “sets out a definition of ‘crime of violence’ in addition
to the definition in Section 4B1.2’s main text.” It thus claims
that “the offenses listed in the application notes … qualify as
crimes of violence without determining whether each offense
satisfied a discrete portion of USSG § 4B1.2(1)’s definition.”
The government is wrong. Such a view of Guidelines com-
mentary is expressly foreclosed by the Supreme Court’s deci-
sion in Stinson v. United States, 508 U.S. 36 (1993), and our in-
terpretation of Stinson in Rollins.
In Rollins, we considered “whether [a] conviction counts
as a predicate crime of violence based on [an] application note
alone.” 836 F.3d at 742. We began by explaining that there are
“‘three varieties’ of text in the Guidelines”: (1) the “‘guideline
provision[s] [themselves],’” which “‘are the equivalent of leg-
islative rules adopted by federal agencies’” and must be “sub-
mitted to Congress” for review and approval; (2) “the Sen-
tencing Commission’s policy statements, which have much
the same effect as the Guidelines themselves”; and (3) “the
Commission’s commentary,” which “interpret[s] the Guide-
lines and explain[s] how they are to be applied.” Id. (quoting
and citing Stinson, 508 U.S. at 41–42, 45). We thus reasoned
that “application notes are interpretations of, not additions to,
the Guidelines themselves,” and “an application note has no
independent force.” Id. Consequently, “the list of qualifying
crimes in application note 1 to § 4B1.2 is enforceable only as
307 (holding that we treat Johnson as “retroactive[] when applied to the
mandatory guidelines”). Thus, the government admits that it “asserts the
argument solely to preserve it for any potential further review.”
10 No. 18-1358
an interpretation of the definition of the term ‘crime of vio-
lence’ in the guideline itself,” and “[m]ore specifically,” as an
interpretation of § 4B1.2’s “residual clause.” Id.
The government next maintains that even if the commen-
tary was “intended to interpret the former residual clause,
[its] terms still defeat a vagueness challenge” because it “spe-
cifically identifies offenses that qualify as crimes of violence.”
Therefore, according to the government, D’Antoni was not
“deprived of fair notice or subjected to arbitrary enforcement
by the straightforward application of the commentary’s ex-
press terms.” Put another way, the government contends that
“[a]pplying the clearly stated offenses in the commentary …
produces none of the constitutional concerns that the vague-
ness doctrine is designed to prevent.”
Cross and Rollins together preclude this approach. In Cross,
we excised the residual clause from the pre-Booker Guidelines
as unconstitutionally vague. 892 F.3d at 306. And in Rollins,
we explained that Guidelines commentary “has no legal force
standing alone.” 836 F.3d at 742. Thus, once “the residual
clause drops out,” the application note’s list of crimes is no
longer interpreting any part of § 4B1.2’s definition of “crime
of violence.” Id. It is therefore “in effect adding to the defini-
tion[,] [a]nd that’s necessarily inconsistent with the text of the
guideline itself.” Id.; see also United States v. Soto-Rivera, 811
F.3d 53, 60 (1st Cir. 2016) (“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 …, doing so
would be inconsistent with the text of the Guideline.”); United
States v. Bell, 840 F.3d 963, 968 (8th Cir. 2016) (same), overruled
No. 18-1358 11
on other grounds by United States v. Swopes, 886 F.3d 668 (8th
Cir. 2018) (en banc). 3
The government seeks to get around Rollins by arguing
that, after Beckles, we are no longer bound by its holding. It
3 In United States v. Miller, 868 F.3d 1182 (10th Cir. 2017), the Tenth
Circuit adopted the government’s view. That court declined to address the
question we answered in Cross—whether the pre-Booker Guidelines are
amenable to vagueness challenges—instead holding that regardless, the
defendant could not “mount a vagueness challenge to his enhanced sen-
tence, because the enumeration of [his prior conviction] in the commen-
tary to the career-offender guideline sufficiently narrows the application
of the residual clause to [the defendant’s] conduct.” Id. at 1187. The court
explained that because the defendant’s “conduct was clearly proscribed,
he [could] not complain he was denied fair notice of the possibility of en-
hanced punishment,” and “there was no risk of arbitrary enforcement by
judges.” Id. at 1189. Concurring in Beckles, Justices Ginsburg and So-
tomayor also advocated for this method of analyzing vagueness chal-
lenges to the Guidelines. See Beckles, 137 S. Ct. at 898 (Ginsburg, J., concur-
ring) (“[B]ecause [the defendant’s] conduct was ‘clearly proscribed,’ he …
‘cannot complain of the vagueness of the [guideline] as applied to the con-
duct of others.’” (last alteration in original) (quoting Holder v. Humanitarian
Law Project, 561 U.S. 1, 18–19 (2010))); id. (Sotomayor, J., concurring)
(“[T]he commentary under which [the defendant] was sentenced was not
unconstitutionally vague.”). The Tenth Circuit asserts that we erred in Rol-
lins by “first excis[ing] the residual clause and then conclud[ing] the com-
mentary listing [the prior conviction] was not an interpretation of the ele-
ments or enumerated offenses clauses.” Miller, 868 F.3d at 1188 n.4. In the
Tenth Circuit’s view, our path “confuses the ‘normal order of operations’
in analyzing vagueness challenges,” as “the Supreme Court ‘has routinely
rejected, in a variety of contexts, vagueness claims where a clarifying con-
struction rendered an otherwise enigmatic provision clear as applied to
the challenger.’” Id. at 1188 (quoting Beckles, 137 S. Ct. at 897 n.* (Ginsburg,
J., concurring)). The government asks us to rely on the Tenth Circuit’s de-
cision in Miller (and Justices Ginsburg’s and Sotomayor’s concurrences in
Beckles) to affirm D’Antoni’s sentence. We cannot do so, however, because
Cross and Rollins foreclose this approach.
12 No. 18-1358
suggests we should instead rely on our 2012 decision in United
States v. Raupp, in which we held that conspiracy to commit
robbery is a “crime of violence” because “conspiracy” is listed
in § 4B1.2’s commentary, and “the text of § 4B1.2(a) does not
tell us, one way or another, whether inchoate offenses are in-
cluded or excluded.” 677 F.3d 756, 759 (7th Cir. 2012).
To be sure, we decided Rollins in conjunction with United
States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en banc), where
we held that after Johnson, the post-Booker advisory Guide-
lines residual clause is unconstitutionally vague. Id. at 721.
And Beckles expressly abrogated Hurlburt. Indeed, while we
overruled Raupp in Rollins, see 836 F.3d at 743, in Hill v. United
States, we commented that Beckles’s “[e]limination of vague-
ness challenges to the Guidelines undermines Rollins as well
as Hurlburt, so we treat Raupp … as having unimpaired prec-
edential force.” 877 F.3d 717, 719 (7th Cir. 2017).
As D’Antoni aptly observes, however, “Beckles does not
touch Rollins’[s] holding about the role of Guidelines com-
mentary.” The government too concedes that “Beckles did not
reach the commentary issue.” And moreover, our statement
in Hill is not controlling because it suggested that Beckles
broadly eliminated all vagueness challenges. But we decided
Hill before Cross, and in Cross, we revived vagueness chal-
lenges—like the one here—to the pre-Booker residual clause.
892 F.3d at 306. While we recognize other circuits have held
to the contrary and concluded, post-Beckles, that post-convic-
tion relief is not available to defendants sentenced under the
No. 18-1358 13
mandatory Guidelines residual clause, 4 we are, of course,
bound by Cross.
In short, after Cross, for cases involving defendants sen-
tenced pursuant to the pre-Booker mandatory Guidelines, we
face the same situation we faced in Rollins. In such instances,
“our holding in Raupp has lost its tether to the text of the ca-
reer-offender guideline,” and “Raupp’s premise”—“that the
application note’s list of qualifying crimes is a valid interpre-
tation of the guideline’s residual clause”—“has been undone
by intervening legal developments.” Rollins, 836 F.3d at 739,
743. Rather, “because the residual clause in § 4B1.2[(1)(ii)
(1990)] is unconstitutional, the application note’s list of quali-
fying crimes is inoperable and cannot be the basis for apply-
ing the career-offender enhancement.” See id. at 742.
Finally, the government argues the sentencing court may
have considered D’Antoni’s conspiracy to kill a government
witness conviction a crime of violence under § 4B1.2’s ele-
ments clause because the object of the conspiracy fits within
that clause. Whether a crime fits within the elements clause
“begins and ends with the elements of the crime.” Flores v.
Ashcroft, 350 F.3d 666, 671 (7th Cir. 2003) (discussing the iden-
tical elements clause in 18 U.S.C. § 16(a)). D’Antoni was con-
victed of conspiracy under 18 U.S.C. § 371, which required the
4 See United States v. Pullen, 913 F.3d 1270, 1283–84 (10th Cir. 2019);
United States v. Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018); Robinson v.
United States, 736 F. App’x 599, 599 (6th Cir. 2018) (citing Raybon v. United
States, 867 F.3d 625, 630 (6th Cir. 2017)); Russo v. United States, 902 F.3d 880,
883–84 (8th Cir. 2018); United States v. Green, 898 F.3d 315, 321–23 (3d Cir.
2018); Upshaw v. United States, 739 F. App’x 539, 541 (11th Cir. 2018) (per
curiam) (citing In re Griffin, 823 F.3d 1350, 1354–56 (11th Cir. 2016) (per
curiam)); United States v. Brown, 868 F.3d 297, 301–03 (4th Cir. 2017).
14 No. 18-1358
government to prove three elements: “(1) an agreement to ac-
complish an illegal objective against the United States; (2) one
or more overt acts in furtherance of the illegal purpose; and
(3) the intent to commit the substantive offense.” United States
v. Hills, 618 F.3d 619, 637 (7th Cir. 2010) (quoting United States
v. Cyprian, 23 F.3d 1189, 1201 (7th Cir. 1994)). Critically, none
of those elements required the government to prove “the use,
attempted, use, or threatened use of physical force.” U.S.S.G.
§ 4B1.2(1)(i) (1990); cf. Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir.
1997) (“An offense such as conspiracy [does not have] the use
of physical force as an element … .”). Thus, § 371 conspiracy
is not a “crime of violence” as defined by the elements clause. 5
In sum, because D’Antoni’s conspiracy conviction did not
include force as an element, its only possible connection to
§ 4B1.2’s definition of “crime of violence” was the residual
clause. But as noted above, Cross excised the residual clause
from the pre-Booker mandatory Guidelines, and without the
residual clause, the application notes have no legal force.
D’Antoni is therefore entitled to resentencing.
5We would reach a different conclusion if the government had to
prove the elements of the underlying offense. See United States v. Gloss, 661
F.3d 317, 319 (6th Cir. 2011) (“If a conviction for … conspiracy requires the
government to prove the elements of the underlying violent felony, such
a conviction will itself qualify as a violent felony under the [elements
clause of the ACCA]. If, by contrast, the government may obtain a convic-
tion by proving only that the defendant agreed to participate in violent
crime or solicited it—and not that some person committed or attempted
to commit the underlying offense—conspiracy … tends to be outside the
reach of the [elements clause], and generally will be deemed a violent fel-
ony only if it qualifies under the residual clause.” (citations omitted)).
No. 18-1358 15
III. Conclusion
For the foregoing reasons, we REVERSE the judgment of the
district court and REMAND with instructions to grant D’An-
toni’s successive § 2255 motion and for resentencing in ac-
cordance with this opinion.