United States v. Darryl Rollins

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 JANUARY 21, 2014 — DECIDED SEPTEMBER 1, 2015

Before KANNE and SYKES, Circuit Judges, and GILBERT,

District Judge.*

SYKES, Circuit Judge. Darryl Rollins pleaded guilty to selling

crack cocaine and was sentenced to 84 months in prison and

*

Of the Southern District of Illinois, sitting by designation.

2 No. 13-1731

four years of supervised release. He challenges his sentence on

two grounds. First, he argues that the district judge improperly

classified him as a career offender under the Sentencing

Guidelines based in part on a prior conviction for unlawful

possession of a short-barreled shotgun, which he contends is

not a crime of violence under the “residual clause” of the

career-offender guideline, U.S.S.G. § 4B1.2(a)(2). Second, he

argues that the judge incorrectly calculated the recommended

term of supervised release under the Guidelines. Neither claim

was preserved below, so our review is for plain error only.

The Supreme Court’s recent decision in Johnson v. United

States, 135 S. Ct. 2551 (2015), has introduced a potential

complication. Johnson held that the residual clause of the

Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e)(2)(B)(ii), is so hopelessly vague that an increased

sentence under the clause violates the defendant’s right to due

process. Johnson, 135 S. Ct. at 2563. The residual clause in the

career-offender guideline is materially identical to the residual

clause in the ACCA, so we held this case to await Johnson and

ordered supplemental briefing after the Court issued its

opinion. Those briefs are now in.

The parties agree that under existing circuit precedent—

notably, United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)—

Johnson does not affect this case. Tichenor holds that the

Guidelines cannot be challenged as unconstitutionally vague.

Id. at 364–65. Rollins has not asked us to reconsider Tichenor in

light of Johnson, so we leave that question for another day. We

note, however, that the U.S. Sentencing Commission has begun

the process of amending the career-offender guideline to delete

No. 13-1731 3

the residual clause, bringing the Guidelines into alignment

with Johnson.

In the meantime, taking this case as it originally came to us,

Rollins’s challenge to the application of the career-offender

guideline fails on plain-error review. The application notes to

§ 4B1.2 specifically list possession of a sawed-off shotgun as a

qualifying crime of violence. Under both Supreme Court and

circuit precedent, the Sentencing Commission’s application

notes are authoritative interpretations of the Guidelines and

receive broad deference. Stinson v. United States, 508 U.S. 36,

44–45 (1993); United States v. Raupp, 677 F.3d 756, 760–61 (7th

Cir. 2012). Although we’ve held that possession of a short-

barreled shotgun is not a predicate felony under the residual

clause of the ACCA, see United States v. Miller, 721 F.3d 435, 437

(7th Cir. 2013), the Sentencing Commission “is free to go its

own way” and classify the same offense as a crime of violence

for purposes of the career-offender guideline, Raupp, 677 F.3d

at 760.

On Rollins’s second claim of error, the government agrees

that the district judge was likely unaware of a change in the

recommended term of supervised release brought about by the

Fair Sentencing Act of 2010. On this limited issue only, we

vacate Rollins’s sentence and remand for redetermination of

the term of supervised release.

I. Background

On four separate occasions in 2009 and early 2010, Rollins

sold crack cocaine to confidential informants. These sales led

4 No. 13-1731

to his indictment on four counts of illegal distribution of a

controlled substance. See 21 U.S.C. § 841(a)(1). The government

sought a statutory sentencing enhancement, see id. § 851, based

on Rollins’s 2005 Wisconsin felony conviction for possession of

marijuana with intent to distribute.

Rollins pleaded guilty pursuant to a plea agreement to two

counts in the indictment (based on sales in May 2009 and

January 2010) and conceded for purposes of sentencing that he

sold between 196 and 280 grams of crack cocaine. In exchange

the government dropped the other two counts and withdrew

its request for the § 851 sentencing enhancement. The proba-

tion office calculated an advisory guidelines sentencing range

of 188–235 months based on an offense level of 31 and a

criminal history category of VI.

To reach offense level 31, the probation office began by

classifying Rollins as a career offender, which gave him an

initial score of 34, see U.S.S.G. § 4B1.1(b)(3), then deducted

three points for acceptance of responsibility, see id. § 3E1.1. The

career-offender guideline applies if the defendant has two or

more prior convictions for a felony controlled-substance

offense or a “crime of violence.” Id. § 4B1.1(a). Rollins’s

Wisconsin felony drug conviction clearly counted as one

predicate for career-offender status. The second—the one at

issue here—is a 1996 Wisconsin conviction for possession of an

unregistered short-barreled shotgun. See WIS. STAT. § 941.28.

Though it looms large on appeal, at sentencing Rollins did not

object to counting this conviction toward the two necessary for

the career-offender guideline. The district court accepted the

probation office’s calculations.

No. 13-1731 5

Rollins originally faced a mandatory minium sentence of

five years in prison and a possible maximum of 40 years. That

statutory range was reduced to no minimum and a maximum

of 20 years by the Fair Sentencing Act of 2010, Pub. L. No. 111-

220, 124 Stat. 2372, which under Dorsey v. United States,

132 S. Ct. 2321 (2012), applies retroactively. The Fair Sentencing

Act also reduced Rollins’s statutory minimum term of super-

vised release from four years to three years; the government

alerted the district judge to this change. The maximum term of

supervised release was life. See 21 U.S.C. § 841(b)(1)(C).

By reducing the maximum prison term, the Fair Sentencing

Act also mitigated the advisory imprisonment range under the

Guidelines. Rollins’s total offense level dropped from 31 to 29,

which reduced the recommended range to 151–188 months. At

sentencing the parties agreed on this range. (Without the

career-offender designation, Rollins’s offense level would have

been 27, reducing the range to 130–162 months.) Regarding

supervised release, although the government had alerted the

court to the reduction in the statutory minimum in light of the

Fair Sentencing Act, no one told the judge that the recom-

mended term under the Guidelines was now three years rather

than four to five years.1

The government recommended a below-guidelines sen-

tence of 87 months in prison based on Rollins’s substantial

assistance, see U.S.S.G. § 5K1.1, and in recognition of the

1

This change occurred because the lower maximum penalty shifted

Rollins’s offenses from Class B to Class C felonies.

6 No. 13-1731

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.

II. Discussion

On appeal Rollins makes two claims of sentencing error. He

argues that (1) the judge improperly applied the career-

offender guideline based in part on his conviction for posses-

sion of a short-barreled shotgun; and (2) the judge misappre-

hended the effect of the Fair Sentencing Act on the recom-

mended term of supervised release under the Guidelines.

Both arguments raise questions of law, which we review de

novo. See United States v. Womack, 610 F.3d 427, 430 (7th Cir.

2010) (career-offender enhancement); United States v. Gibbs,

578 F.3d 694, 695 (7th Cir. 2009) (procedural error in calculating

guidelines range). But neither claim was preserved below.

Rollins’s forfeiture limits the scope of our review to plain error.

Under this standard, we will reverse only if we find “(1) an

error or defect (2) that is clear or obvious (3) affecting the

defendant’s substantial rights (4) and seriously impugning the

fairness, integrity, or public reputation of the judicial proceed-

ings.” United States v. Goodwin, 717 F.3d 511, 518 (7th Cir. 2013)

(quoting United States v. Anderson, 604 F.3d 997, 1001 (7th Cir.

2010)).

No. 13-1731 7

A. Career-Offender Guideline

Rollins first challenges the district court’s application of the

career-offender guideline, § 4B1.1, which triggered a higher

offense level and thus a higher advisory sentencing range

under the Guidelines. The career-offender guideline applies if

the defendant has committed a felony drug offense or crime of

violence and has two or more prior convictions for a felony

drug offense or crime of violence.

Rollins pleaded guilty to two of the four felony drug counts

in the indictment, and he concedes that his prior Wisconsin

drug conviction counts as one predicate for purposes of

§ 4B1.1. The probation office recommended, and the district

court agreed, that his conviction for possession of a short-

barreled shotgun counts as a second predicate. Rollins did not

object to the application of the career-offender guideline. He

now reverses course and argues that his conviction for posses-

sion of a short-barreled shotgun is not a crime of violence

under § 4B1.2(a)(2).

Under the career-offender guideline, the term “crime of

violence” means

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 extor-

tion, involves use of explosives, or other-

8 No. 13-1731

wise involves conduct that presents a serious

potential risk of physical injury to another.

§ 4B1.2(a) (emphasis added). The highlighted language is

known as the “residual clause.” Rollins’s conviction for

possession of a short-barreled shotgun qualifies, if at all, only

under this provision.

The residual clause in § 4B1.2(a)(2) mirrors the residual

clause in § 924(e)(2)(B), which defines the term “violent felony”

for purposes of the ACCA’s increased minimum and maxi-

mum sentences for certain firearms offenses. The ACCA

applies if the defendant has three or more prior convictions for

a “serious drug offense” or a “violent felony.” See 18 U.S.C.

§ 924(e)(1) (increasing the minimum term from 5 to 15 years

and the maximum to life). The residual clause of the violent-

felony definition in the ACCA lists the crimes of burglary,

arson, extortion, and the use of explosives, and then sweeps in

any crime that “otherwise involves conduct that presents a

serious potential risk of physical injury to another.”

§ 924(e)(2)(B)(ii).

In Miller we held that possession of a short-barreled

shotgun does not present a serious potential risk of physical

injury to another and therefore is not a violent felony under the

residual clause of the ACCA. 721 F.3d at 440–44 (overruling

United States v. Upton, 512 F.3d 394 (7th Cir. 2008)). Because the

residual clause in the career-offender guideline is phrased in

precisely the same way, Rollins argues for the same result here.

That makes sense as a matter of language and logic. But an

application note to the career-offender guideline specifically

classifies this offense as a crime of violence: “Unlawfully

No. 13-1731 9

possessing a firearm described 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.’” U.S.S.G. § 4B1.2 cmt. n.1.

The Sentencing Commission’s application notes are “treated as

an agency’s interpretation of its own legislative rule[s].”

Stinson, 508 U.S. at 44. Stinson holds that an application note

must be given “controlling weight” unless it violates the

Constitution or a federal statute, or is plainly erroneous or

contradicts the text of the guideline itself. Id. at 45.

Rollins maintains that the application note necessarily

conflicts with the career-offender guideline based on our

holding in Miller, which interpreted the identical residual-

clause language of the ACCA.2 This argument is foreclosed by

Raupp.

Raupp raised the question whether the inchoate crime of

conspiracy to commit robbery is a crime of violence under the

residual clause of the career-offender guideline. As in this case,

an application note to § 4B1.2 specifically answered the

disputed question in the affirmative: A “[c]rime of violence …

include[s] the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses.” § 4B1.2 cmt. n.1 (empha-

sis added). To avoid the dispositive effect of the application

note, Raupp argued that recent Supreme Court decisions

interpreting § 924(e)(2)(B)(ii) (the residual clause of the

2

Miller did not involve a challenge to the career-offender guideline; our

opinion noted but specifically reserved judgment on the question presented

here. United States v. Miller, 721 F.3d 435, 442 (7th Cir. 2013) (noting that the

application notes to the career-offender guideline list possession of a

sawed-off shotgun as a qualifying crime of violence).

10 No. 13-1731

ACCA)—most notably, Begay v. United States, 553 U.S. 137

(2008)—had “superseded” the note. Raupp, 677 F.3d at 757.

We rejected that argument. Citing Stinson, we explained

that “the Supreme Court treats application notes as authorita-

tive glosses on the Guidelines, unless the notes conflict with the

text.” Id. at 759. We continued: “[T]he text of § 4B1.2(a) does

not tell us, one way or another, whether inchoate offenses are

included or excluded [as crimes of violence]. The note says

they are included.” Id. We then identified the key flaw in

Raupp’s argument:

Raupp may be assuming that § 4B1.1 and

§ 4B1.2 [the career-offender guidelines] imple-

ment § 924(e) [the ACCA]. If that were so, then

our interpretation of the Guidelines would be

required to mirror § 924(e) as interpreted in

Begay … . But the career-offender Guidelines

don’t depend on § 924(e).

Id. at 760. Our opinion in Raupp continued with the following

observation:

Thus the [Sentencing] Commission is free to

go its own way; it can classify as “crimes of

violence “ offenses that are not “violent felonies”

under § 924(e). It can’t do this by application

notes that contradict the text of the Guideline,

but what the first note to § 4B1.2 does is address

a question—the treatment of inchoate offenses—

left open by the text of § 4B1.2, as it is also left

open by the text of § 924(e) … .

No. 13-1731 11

Id.

In other words, “[i]f the Sentencing Commission wants to

have a list of [career-offender] qualifying offenses that differs

from the one in [the ACCA] … , there’s no reason why the

judges should say nay.” Id. at 758. Because the text of § 4B1.2

neither included nor excluded inchoate crimes, we held that the

application note did not plainly contradict the career-offender

guideline and was entitled to controlling weight under Stinson,

whatever else might be said about inchoate crimes under

§ 924(e).3 Id.

This case is indistinguishable from Raupp. To avoid the

application note, Rollins must show that it plainly contradicts

the text of § 4B1.2(a)(2). He relies solely on the conflict between

the note and our decision in Miller, which interpreted the

residual clause of the ACCA and held that possession of a

short-barreled shotgun is not a violent felony. As we said in

Raupp, however, the Sentencing Commission is “free to go its

own way” when interpreting the career-offender guideline;

judicial interpretations of the ACCA do not tie its hands. Id. at

760.

3

Other circuits have similarly deferred to the Sentencing Commission’s

authority to interpret the career-offender guideline via application notes

that depart from judicial interpretations of the ACCA. See, e.g., United States

v. Hall, 714 F.3d 1270, 1274 (11th Cir. 2013); United States v. Hood, 628 F.3d

669 (4th Cir. 2010); United States v. Lipscomb, 619 F.3d 474, 477–78 (5th Cir.

2010); United States v. Hawkins, 554 F.3d 615 (6th Cir. 2009); United States v.

Ankeny, 502 F.3d 829, 840–41 (9th Cir. 2007).

12 No. 13-1731

Independently of Raupp, Stinson holds as a general matter

that the Sentencing Commission’s application notes are entitled

to wide deference as the agency’s authoritative interpretation

of the Guidelines. This is where the plain-error standard of

review returns to the fore and becomes dispositive. In light of

Stinson and our own precedent in Raupp, Rollins hasn’t

established that the district court committed “plain”—i.e.,

“clear” or “obvious”—error under current law. United States v.

Olano, 507 U.S. 725, 734 (1993); United States v. Natale, 719 F.3d

719, 731 (7th Cir. 2013); United States v. Williams, 552 F.3d 592,

593 (7th Cir. 2009); see also Henderson v. United States, 133 S. Ct.

1121, 1126–31 (2013) (clarifying that the issue must be clear at

the time of appeal). Under existing law the application note

controls, and Rollins was properly sentenced as a career

offender.

Before moving on, we have a brief comment about Johnson,

the Supreme Court’s recent decision invalidating the ACCA’s

residual clause on vagueness grounds. 135 S. Ct. at 2562–63. As

we’ve explained, because the residual clauses in the ACCA and

the career-offender guideline are the same, we held this case to

await the Court’s decision in Johnson and ordered supplemen-

tal briefing to address the effect of that decision on the outcome

here. In their supplemental briefs, the parties agree that under

existing circuit precedent—most recently, Tichenor, 683 F.3d at

363–67—Johnson does not affect this case. Tichenor holds as a

categorical matter that “the Guidelines are not susceptible to

attack under the vagueness doctrine.” 683 F.3d at 364 (quoting

United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999)).

No. 13-1731 13

Rollins has not asked us to revisit Tichenor in light of

Johnson. Accordingly, we do not address Johnson’s effect on the

career-offender guideline; that question remains open in this

circuit. See Ramirez v. United States, No. 13-3889, 2015 WL

5011965, at *9 (Aug. 25, 2015) (“We leave any issue about the

effect of Johnson on the Guidelines for another day.”). We note,

however, that the Sentencing Commission has recently

published for comment a proposed amendment deleting the

residual clause of the career-offender guideline in light of

Johnson. See U.S. Sentencing Commission News Release

(Aug. 7, 2015), “U.S. Sentencing Commission Seeks Comment

on Revisions to Definition of Crime of Violence,”

http://www.ussc.gov/sites/default/files/pdf/news/press-

releases-and-news-advisories/press-releases/20150807_

Press_Release.pdf.

B. Term of Supervised Release

The Fair Sentencing Act reduced Rollins’s maximum

penalty to 20 years, a Class C felony. Because the Act reclassi-

fied Rollins’s offenses from Class B felonies to Class C felonies,

the term of supervised release recommended by the Guidelines

also dropped to three years (from a range of four to five years).

See U.S.S.G. § 5D1.2(a)(2).4

4

Section 5D1.2(a)(2) recommends one to three years of supervised release

for a person convicted of a Class C or D felony. The Guidelines elsewhere

explain, however, that a term of supervised release may not be less than any

statutory minimum, U.S.S.G. § 5D1.2(c), and the statutory minimum for

(continued...)

14 No. 13-1731

The judge imposed a four-year term of supervised release.

The parties agree that although the judge had been alerted to

the reduction in the statutory minimum term of supervised

release occasioned by the Fair Sentencing Act, he was probably

unaware that the range recommended by the Guidelines also

had been reduced. We agree that a remand is appropriate

limited only to this issue.

Knowing that the Guidelines recommend three years of

supervised release (not a range of four to five years), the judge

may wish to redetermine Rollins’s term of supervised release.

See United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009). We

take no position on that discretionary judgment. We vacate the

sentence and remand for further proceedings consistent with

this opinion.

VACATED AND REMANDED.

4

(...continued)

Rollins’s crimes is three years, 21 U.S.C. § 841(b)(1)(C).