United States v. Jesse Pawlak

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0115p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

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v. > No. 15-3566

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JESSE J. PAWLAK, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:14-cr-00305—Benita Y. Pearson, District Judge.

Argued: January 27, 2016

Decided and Filed: May 13, 2016

Before: BOGGS, GIBBONS, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Vanessa Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland,

Ohio, for Appellant. Jason M. Katz, UNITED STATES ATTORNEY’S OFFICE, Youngstown,

Ohio, for Appellee. ON BRIEF: Wendi L. Overmyer, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Cleveland, Ohio, for Appellant. Jason M. Katz, UNITED STATES

ATTORNEY’S OFFICE, Youngstown, Ohio, for Appellee.

GRIFFIN, J., delivered the opinion of the court in which BOGGS, J., joined, and

GIBBONS, J., joined in Parts I–III. GIBBONS, J. (pp. 17–18), delivered a separate concurring

opinion.

1

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OPINION

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GRIFFIN, Circuit Judge. In this case, we consider whether the Supreme Court’s holding

in Johnson v. United States, 135 S. Ct. 2551 (2015), that the Armed Career Criminal Act’s

“residual clause” is unconstitutionally vague, compels the same result for an identical “residual

clause” in the U.S. Sentencing Guidelines. In light of Johnson, and given the legal force of the

Guidelines as the framework for sentencing, we join the majority of our sister circuits in

invalidating the Guidelines’ “residual clause” as unconstitutionally vague. In doing so, we

recognize that our prior case law expressly disclaimed such a conclusion. However, because the

legal landscape interpreting the Guidelines has changed considerably, our prior decisions

shielding the Guidelines from vagueness challenges are no longer consistent with Supreme Court

precedent. We therefore vacate defendant’s sentence and remand for resentencing.

I.

After defendant Jesse Pawlak sold firearms to an undercover officer on four occasions, a

grand jury indicted him on four counts of possessing a firearm or ammunition as a felon, in

violation of 18 U.S.C. § 922(g)(1). He pleaded guilty on all counts. At sentencing, the district

court calculated a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1) because the

offenses involved a “semiautomatic firearm that is capable of accepting a large capacity

magazine,” and Pawlak had two prior “felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 2K2.1(a)(1). One of Pawlak’s two qualifying felony

convictions was an Ohio third-degree burglary offense, a “crime of violence,” see United States

v. Coleman, 655 F.3d 480, 481 (6th Cir. 2011) (holding that Ohio’s third-degree burglary statute

constituted a violent felony under the residual clause of the Armed Career Criminal Act). Absent

that qualifying conviction, his base offense level would have been 22. U.S.S.G. § 2K2.1(a)(3).

The district court added two levels to the base offense level under § 2K2.1(b)(1)(A) because

Pawlak possessed six firearms. The court also applied a four-level enhancement under

§ 2K2.1(b)(5) for trafficking in firearms. After deducting three levels for acceptance of

responsibility, Pawlak’s total offense level was 29 with a criminal history category of IV,

No. 15-3566 United States v. Pawlak Page 3

resulting in an advisory Guidelines range of 121−151 months of incarceration. The court varied

downward by four levels based on Pawlak’s “regained respect for the law,” making the new

range 84−105 months, and sentenced Pawlak to 105 months.

II.

Pawlak’s appeal presents a matter of first impression: whether the residual clause in

U.S.S.G. § 4B1.2(a) (career offender), and other Guidelines provisions incorporating its

definition, are unconstitutionally vague after the Supreme Court’s decision in Johnson v. United

States, 135 S. Ct. 2551, which invalidated a textually identical residual clause in the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Although the parties acknowledge that we

have previously held the Guidelines “are not susceptible to a vagueness attack” because “there is

no constitutional right to sentencing guidelines,” United States v. Smith, 73 F.3d 1414, 1417−18

(6th Cir. 1996) (quoting United States v. Salas, No. 93-5897, 1994 WL 24982, at *2 (6th Cir.

Jan. 27, 1994) (unpublished table decision)), they agree that the Supreme Court has undermined

our prior precedent in its intervening decisions. Accordingly, the parties maintain that Johnson’s

reasoning applies equally to the Guidelines, and Pawlak’s sentence should be vacated.

We agree.1

The parties disagree regarding Pawlak’s second claim of error―that the district court

erroneously applied a four-level enhancement for firearms trafficking under § 2K2.1(b)(5)

because Pawlak did not know or have reason to believe that his conduct would result in the

transfer of a firearm to an individual “whose possession or receipt of the firearm would be

unlawful,” § 2K2.1 cmt. n.13(A)(ii)(I). We address each issue in turn.

1

Although the parties agree that the residual clause of U.S.S.G. § 4B1.2(a) is unconstitutionally vague,

“‘our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the

stipulation of parties.’” Sibron v. New York, 392 U.S. 40, 58 (1968) (quoting Young v. United States, 315 U.S. 257,

259 (1942)). We therefore “conduct [our] own examination” of the merits underlying the parties arguments. Id.

No. 15-3566 United States v. Pawlak Page 4

III.

A.

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be

deprived of life, liberty, or property, without due process of law.” U.S. Const. amend V. Among

other things, this clause prohibits the enforcement of overly vague criminal laws. The Supreme

Court has explained that the government “violates this guarantee by taking away someone’s life,

liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice

of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson,

135 S. Ct. at 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357−58 (1983)). “The prohibition

of vagueness in criminal statutes ‘is a well-recognized requirement, consonant alike with

ordinary notions of fair play and the settled rules of law,’ and a statute that flouts it ‘violates the

first essential of due process.’” Id. at 2556−57 (quoting Connally v. Gen. Constr. Co., 269 U.S.

385, 391 (1926)). “These principles apply not only to statutes defining elements of crimes, but

also to statutes fixing sentences.” Id. at 2557.

In Johnson, the Supreme Court invalidated the ACCA’s residual clause as

unconstitutionally vague. The Act increases sentences for offenders who have three previous

convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). It defines

“violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . .

that . . . has as an element the use, attempted use, or threatened use of physical force against the

person of another; or . . . is burglary, arson, or extortion, involves the use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury to

another . . . .” Id. § 924(e)(2)(B) (emphasis added). The emphasized words have come to be

known as the Act’s “residual clause.” E.g., Johnson, 135 S. Ct. at 2556.

The Johnson Court observed that “[t]wo features of the residual clause conspire to make

it unconstitutionally vague”: first, the clause “leaves grave uncertainty about how to estimate the

risk posed by a crime” by tying “the judicial assessment of risk to a judicially imagined ‘ordinary

case’ of a crime, not to real-world facts or statutory elements”; and second, it “leaves uncertainty

about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2557−58.

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Moreover, the Court observed that its “repeated attempts and repeated failures to craft a

principled and objective standard out of the residual clause confirm its hopeless indeterminacy.”

Id. at 2558. The ACCA’s residual clause thus “produces more unpredictability and arbitrariness

than the Due Process Clause tolerates.” Id.

B.

Since Johnson, federal courts have grappled with the unresolved question of whether the

Guidelines’ residual clause is also unconstitutionally vague. The text of the two residual clauses

is the same, compare 18 U.S.C. § 924(e)(2)(B)(ii) with U.S.S.G. § 4B1.2(a)(2), and we interpret

them identically, see, e.g., United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009). The

principal legal argument against applying Johnson to the Guidelines is not that their meanings

are distinguishable but that the Guidelines are advisory, as opposed to “statutes fixing

sentences,” 135 S. Ct. at 2557, and therefore outside the reach of the vagueness doctrine. Given

that the residual clauses are identical, the only reason Johnson would not compel the same result

is if the Guidelines were immune from vagueness challenges.

Our analysis begins with the function of the Guidelines. In Peugh v. United States, the

Supreme Court held that the Guidelines are subject to constitutional challenge “notwithstanding

the fact that sentencing courts possess discretion to deviate from the recommended sentencing

range.” 133 S. Ct. 2072, 2082 (2013). In that case, the Court considered whether the Ex Post

Facto Clause is violated when a defendant is sentenced under Guidelines providing a higher

advisory sentencing range than the Guidelines in effect at the time of the offense. Id. at 2081.

The Court explained that “[t]he post-Booker federal sentencing scheme aims to achieve

uniformity by ensuring that sentencing decisions are anchored by the Guidelines and that they

remain a meaningful benchmark through the process of appellate review.” Id. at 2083. Whereas

the “federal system adopts procedural measures intended to make the Guidelines the lodestone of

sentencing[,] . . . [a] retrospective increase in the Guidelines range applicable to a defendant

creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” Id. at 2084.

Although the Guidelines are not mandatory, the Supreme Court has emphasized that they

have considerable influence on sentencing determinations because of the procedures district

No. 15-3566 United States v. Pawlak Page 6

courts must follow in imposing sentences. “As we have described, ‘district courts must begin

their analysis with the Guidelines and remain cognizant of them throughout the sentencing

process.’” Id. at 2083 (quoting Gall v. United States, 552 U.S. 38, 50 n.6 (2007)). “Failing to

calculate the correct Guidelines range constitutes procedural error.” Id. “A district court

contemplating a non-Guidelines sentence ‘must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the degree of the variance.’” Id.

(quoting Gall, 552 U.S. at 50).

“These requirements mean that ‘[i]n the usual sentencing, . . . the judge will use the

Guidelines range as the starting point in the analysis and impose a sentence within the range.’

Even if the sentencing judge sees a reason to vary from the Guidelines, ‘if the judge uses the

sentencing range as the beginning point to explain the decision to deviate from it, then the

Guidelines are in a real sense the basis for the sentence.’” Id. (quoting Freeman v. United

States, 131 S. Ct. 2685, 2692 (2011) (plurality opinion) (citation omitted)); see also Molina-

Martinez v. United States, 136 S. Ct. 1338, 1345−46 (2016) (discussing the “real and pervasive

effect the Guidelines have on sentencing.”). “That a district court may ultimately sentence a

given defendant outside the Guidelines range does not deprive the Guidelines of force as the

framework for sentencing. Indeed, the rule that an incorrect Guidelines calculation is procedural

error ensures that they remain the starting point for every sentencing calculation in the federal

system.” Id. In other words, “the Guidelines are the mandatory starting point for a sentencing

determination; a district court can be reversed for failing to correctly apply them despite the

ability to later deviate from the recommended range.” United States v. Madrid, 805 F.3d 1204,

1211 (10th Cir. 2015) (declaring the Guidelines’ residual clause unconstitutionally vague); see

United States v. Litzy, No. 3:15-00021, 2015 WL 5895199 (S.D. W. Va. Oct. 8, 2015)

(“[A]lthough judges may decide to sentence not within the Guidelines, judges must consult the

Guidelines and they stray from Guideline sentences at their own peril, making the Guidelines

quasi-advisory in effect and bringing them closer to a statute which fixes sentences than a sort of

suggested option. In effect, the Sentencing Guidelines do not just guide or assist judges on how

to sentence as much as they direct judges to sentences deemed appropriate by policy-makers in

certain types of cases.” (citation omitted)).

No. 15-3566 United States v. Pawlak Page 7

Peugh reflects the Court’s judgment that the Guidelines are subject to constitutional

challenges because the Guidelines are the mandatory starting point for sentencing determinations

and district courts can be reversed for failing to correctly apply them despite the judges’

discretion to deviate from the recommended range. See 133 S. Ct. at 2083; Madrid, 805 F.3d at

1211. The Supreme Court’s reasoning in Peugh rests on the very same principles of fair notice

and avoiding arbitrary enforcement underlying the doctrine of due process. Compare Peugh,

133 S. Ct. at 2081−82 (discussing meaning of the term “ex post facto,” under English common

law), and Miller v. Florida, 482 U.S. 423, 429 (1987) (“[T]he reason the Ex Post Facto Clauses

were included in the Constitution was to assure that federal and state legislatures were restrained

from enacting arbitrary or vindictive legislation[,] . . . [and] the Clauses were aimed at a second

concern, namely, that legislative enactments ‘give fair warning of their effect and permit

individuals to rely on their meaning until explicitly changed.’” (quoting Weaver v. Graham,

450 U.S. 24, 28−29 (1981)), with Johnson, 135 S. Ct. at 2556 (observing that a criminal law is

unconstitutionally vague when it “fails to give ordinary people fair notice of the conduct it

punishes, or so standardless that it invites arbitrary enforcement”) and Kolender, 461 U.S. at

357−58 (same). Given the Supreme Court’s emphasis on the role of the Guidelines as the legal

framework of sentencing, it would be incongruous for us to conclude that these constitutional

concerns of notice and arbitrary enforcement are triggered only if a vague provision also creates

a sufficient risk of a higher sentence.

We conclude that it would be erroneous after Peugh to view the Guidelines as so

distinguishable from “statutes fixing sentences,” Johnson, 135 S. Ct. at 2557, to be immune from

vagueness challenges but not other constitutional attacks. Post-Johnson and Peugh, the fact that

the Guidelines are not mandatory is a distinction without a difference. In our view, Johnson’s

rationale applies with equal force to the Guidelines’ residual clause.

C.

Moreover, the Guidelines, whether mandatory or advisory, have always been subject to

some constitutional limitations. The Guidelines “are the equivalent of legislative rules adopted

by federal agencies.” Stinson v. United States, 508 U.S. 36, 45 (1993). Agency regulations, of

course, are subject to constitutional challenge, and the Supreme Court has invalidated regulations

No. 15-3566 United States v. Pawlak Page 8

on vagueness grounds. See, e.g., FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2320

(2012). It follows, therefore, that because the Guidelines are “equivalent” to regulations, which

are subject to constitutional challenges such as vagueness, the Guidelines should also be subject

to vagueness challenges.

Indeed, the Supreme Court has resolved both constitutional challenges to the Guidelines

as a whole and individual Guidelines provisions. See, e.g., Mistretta v. United States, 488 U.S.

361 (1989) (upholding Guidelines as constitutional, not an excessive delegation of legislative

power or a violation of the separation-of-powers doctrine); Wade v. United States, 504 U.S. 181

(1992) (holding that the government’s refusal to file a substantial-assistance motion under

U.S.S.G. § 5K1.1 is subject to judicial review for unconstitutional motive). And in Stinson, the

Court explained that Guidelines commentary, just as an agency’s interpretation of its own

regulations, is entitled to controlling weight as long as it “does not violate the Constitution or a

federal statute.” 508 U.S. at 45. Nothing in Johnson suggests that it overrules these cases or

limits the vagueness doctrine to criminal statutes. In light of this history, we see no legal basis

for concluding that the Guidelines are uniquely immune to vagueness challenges.

D.

Recent developments among our sister circuits support our holding. In United States v.

Madrid, for instance, the Tenth Circuit declared Johnson “unambiguous”: the “vagueness

doctrine exists not only to provide notice to individuals, but also to prevent judges from

imposing arbitrary or systematically inconsistent sentences.” 805 F.3d at 1210. Observing that

it interprets the Guidelines’ residual clause by reference to its ACCA counterpart, the Madrid

court explained that the “concerns about judicial inconsistency that motivated the Court in

Johnson lead us to conclude that the residual clause of the Guidelines is also unconstitutionally

vague. If one iteration of the clause is unconstitutionally vague, so too is the other.” Id. The

court emphasized that the advisory nature of the Guidelines did not alter its conclusion: “The

Supreme Court has held that the Guidelines are subject to constitutional challenge

‘notwithstanding the fact that sentencing courts possess discretion to deviate from the

recommended sentencing range.’” Id. at 1211 (quoting Peugh, 133 S. Ct. at 2082). “Further, the

Guidelines are the mandatory starting point for a sentencing determination; a district court can be

No. 15-3566 United States v. Pawlak Page 9

reversed for failing to correctly apply them despite the ability to later deviate from the

recommended range.” Id. (citing Gall, 552 U.S. at 49−51). “Because the Guidelines are the

beginning of all sentencing determinations, and in light of the ‘unavoidable uncertainty and

arbitrariness of adjudication under the residual clause,’ we hold that the residual clause of

§ 4B1.2(a)(2) is void for vagueness.” Id. (quoting Johnson, 135 S. Ct. at 2562) (citation and

footnote omitted). Finally, the Tenth Circuit acknowledged that there exists a “conflict among

the circuits in regard to whether the Guidelines may be challenged on vagueness grounds,” but

distinguished the cases shielding the Guidelines from vagueness challenges on the basis that they

pre-dated Peugh. Madrid, 805 F.3d at 1211 n.9 (collecting cases).

The Third Circuit has also invalidated the Guidelines’ residual clause as

unconstitutionally vague after Johnson. United States v. Townsend, No. 14-3652, 2015 WL

9311394, at *4 & n.14 (3d Cir. Dec. 23, 2015) (“We are guided, in this case, by our own circuit

precedent interpreting the residual clauses in the Guidelines and the ACCA in light of their

identical wording and by the Government’s concession that Townsend should be resentenced.”).

Other courts have accepted the government’s concession that Johnson applies and have

remanded for resentencing. See, e.g., United States v. Maldonado, No. 12-3487-cr, 2016 WL

229833, at *3 (2d Cir. Jan. 20, 2016) (proceeding “on the assumption that the Supreme Court’s

reasoning with respect to the ACCA’s residual clause applies to the identically worded Guideline

§ 4B1.2(a)(2)’s residual clause”); Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015)

(same); United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (per curiam).

Since Johnson, only one circuit has affirmatively held that the Guidelines are not

affected. The Eleventh Circuit in United States v. Matchett declined to invalidate § 4B1.2(a)(2)

because, in its view, the Guidelines are not susceptible to vagueness challenges. 802 F.3d 1185,

1193−96 (11th Cir. 2015). The premise of the court’s analysis was that the Guidelines are

“merely . . . the initial benchmark” of sentencing, “designed to assist . . . the sentencing judge in

determining a sentence,” which means “defendants cannot rely on them to communicate the

sentence that the district court will impose.” Id. at 1194 (internal quotation marks omitted). For

support, the court cited a limited universe of pre-Peugh cases from other circuits holding that

because there is no constitutional right to sentencing guidelines, the limitations the Guidelines

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place on judicial discretion cannot violate defendants’ rights to due process by reason of being

vague. Id. at 1194−95 (citing United States v. Tichenor, 683 F.3d 358, 364 (7th Cir. 2012) and

United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990)).

But intervening Supreme Court decisions have undermined both Wivell and Tichenor.

First, Wivell. That case rests on the assumption that the vagueness doctrine was limited to

liability, not sentencing. 893 F.2d at 159−60. No one disputes that Johnson has since clarified

that the doctrine extends “not only to statutes defining elements of crimes, but also to statutes

fixing sentences.” 135 S. Ct. at 2557. It also rests on the faulty notion that because “there is no

constitutional right to sentencing guidelines[,] . . . the limitations the Guidelines place on a

judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.”

893 F.2d at 160. But, as the appellant persuasively argued to the Matchett court, “[t]hat

reasoning is fundamentally flawed. Even if the Guidelines are not constitutionally required, that

does not afford them constitutional immunity once they are put into place. Indeed, Wivell’s

reasoning would permit the Commission to promulgate Guidelines that discriminated on the

basis of a protected class, penalized the exercise of constitutional rights, or bore no rational

relationship to the goals of sentencing. That cannot be the law.” Appellant Suppl. Br., at

*11−12, United States v. Matchett, No. 14-10396, 2015 WL 5175083 (11th Cir. Sept. 21, 2015)

(footnote omitted). It makes sense that the Eighth Circuit itself has since called Wivell into

question when vacating and remanding a sentence in light of Johnson. Taylor, 803 F.3d at 933

(“The reasoning in Wivell that the guidelines cannot be unconstitutionally vague because they do

not proscribe conduct is doubtful after Johnson.”).

Second, Tichenor. There, the Seventh Circuit reasoned that vagueness principles are

inapplicable to the Guidelines because the Guidelines do not function like statutes in that they

merely structure a judge’s discretion. 683 F.3d at 364. But a year later, Peugh rejected the

government’s assertion that the Guidelines were merely “guideposts” that lacked the “force and

effect of laws,” explaining that the Guidelines “anchor both the district court’s discretion and the

appellate review process.” 133 S. Ct. at 2085−87. And to the extent that Tichenor relied on

United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), to distinguish the Guidelines from

criminal statutes, that is the very ex post facto case that Peugh abrogated.

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The remainder of Tichenor’s analysis is likewise unpersuasive. First, it relied on the

same assumption as Wivell that the vagueness doctrine is limited to liability, not sentencing. See

683 F.3d at 363−64; see also Taylor, 803 F.3d at 933 (calling Wivell into doubt after Johnson).

Second, it mistakenly relied on Irizarry v. United States, 553 U.S. 708 (2008). On this point, it

merits only brief mention that Irizarry implicates a distinguishable notice interest from the one at

issue here. Both the Matchett and Tichenor courts cited Irizarry for the proposition that any

expectation that a defendant would receive a sentence within the presumptively applicable

Guidelines range “‘did not survive [the] decision in United States v. Booker.’” Matchett,

802 F.3d at 1194 (quoting Irizarry, 553 U.S. at 713); see Tichenor, 683 F.3d at 364. But Irizarry

does not establish that the substance of the Guidelines need not provide notice of the basis for

sentencing. Rather, it resolved a different notice question. The Due Process Clause consists of

two separate notice requirements: first, that the law inform the public of what conduct is

prohibited and the consequences of such conduct (“ex ante notice”), see, e.g., Lanzetta v. New

Jersey, 306 U.S. 451, 453 (1939); and second, even if the law clearly notifies the public of

prohibited conduct, due process requires the government to provide a defendant with notice of

the allegations and an opportunity to respond (“adversarial notice”), see, e.g., Mullane v. Cent.

Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950). See Brief of Law Professors as Amicus

Curiae in Support of Defendant-Appellant (“Law Professors’ Amicus Brief”), at *8−10, United

States v. Matchett, No. 14-10396, 2015 WL 6723558 (11th Cir. Oct. 15, 2015); see also Carissa

Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 Notre Dame L. Rev.

187 (2014) (discussing Irizarry’s due process significance in mandatory and discretionary

sentencing schemes). It is clear that the void-for-vagueness doctrine derives from the first

category of notice because it requires the law to adequately notify the public of what conduct is

prohibited and the penalties for engaging in such conduct. See Law Professors’ Amicus Brief, at

*10. Irizarry implicated the second kind of notice because it held that a sentencing court was not

required to notify a particular defendant in a particular case that it might impose an above-

Guidelines sentence. 553 U.S. at 715. Irizarry is thus inapposite. After Peugh, it is our view

that Tichenor’s reasoning is flawed and that the Matchett court was mistaken to rely on it.

No. 15-3566 United States v. Pawlak Page 12

E.

Finally, we respectfully disagree with the Matchett court that exposing the Guidelines to

vagueness challenges will “upend our sentencing regime.” 802 F.3d at 1196. First, the Supreme

Court dismissed this very concern in Johnson. The Court explained that, unlike the ACCA’s

residual clause, which “requires application of the ‘serious potential risk’ standard to an idealized

ordinary case of the crime,” the laws cited by the government as potentially vague (using terms

like “substantial risk,” “grave risk,” and “unreasonable risk”) are laws that “require gauging the

riskiness of conduct in which an individual engages on a particular occasion.” 135 S. Ct. at

2561. “As a general matter, we do not doubt the constitutionality of laws that call for the

application of a qualitative standard such as ‘substantial risk’ to real-world conduct; the law is

full of instances where a man’s fate depends on his estimating rightly . . . some matter of

degree.” Id. (quoting Nash v. United States, 229 U.S. 373, 377 (1913)). In other words, laws

fixing sentences that are based on “real-world conduct” are unlikely to raise the same vagueness

concerns.

Second, as amicus noted in the Matchett case:

What is more, even if there are current or future Guidelines that are insufficiently

precise, the Commission is well-situated to resolve that ambiguity. As the

Supreme Court has noted, the Sentencing “Commission’s work is ongoing.” Rita

v. United States, 551 U.S. 338, 350 (2007). It regularly amends the Sentencing

Guidelines in response to evolving concerns, including disagreement about how

to interpret and apply certain guidelines. See, e.g., United States v. Summers,

176 F.3d 1328, 1334 (11th Cir. 1999) (Carnes, J., dissenting) (“When an

ambiguity . . . results in differing applications of the same guideline, the

Commission has the authority, perhaps the duty, to clarify matters.”).

Indeed, the Commission has already taken action to amend § 4B1.2(a)(2) in the

wake of United States v. Johnson; it has given notice and requested public

comment on a proposed amendment to delete the residual clause and replace it

with a finite list of predicate offenses. Sentencing Guidelines for the United

States Courts, 80 Fed. Reg. 49,314 (2015). If this amendment takes effect,

§ 4B1.2(a)(2) will be sufficiently precise so as to avoid any vagueness concerns.

Consequently, a decision that § 4B1.2(a)(2) is unconstitutionally vague would

hardly “upend our sentencing regime.” Rather it would be entirely consistent

with what the Sentencing Commission has already acknowledged―that

§ 4B1.2(a)(2) is flawed and should not continue to inform the Guidelines

calculation in its current form.

No. 15-3566 United States v. Pawlak Page 13

Law Professors’ Amicus Brief, at *14. We find this grounded approach more compelling than

the Matchett court’s concern that subjecting the Guidelines to vagueness challenges would

“upend our sentencing regime,” 802 F.3d at 1196.2

F.

For the same reasons, we must also part ways with our own precedent. In United States

v. Smith, 73 F.3d 1414 (6th Cir. 1996), we held that the Guidelines were not susceptible to

vagueness attacks. In doing so, we relied exclusively on our unpublished decision of United

States v. Salas, 1994 WL 24982 (unpublished table decision), which followed Wivell, 893 F.2d at

159−60, the aforementioned case that the Eighth Circuit has now called into question in Taylor,

803 F.3d at 933. While a published decision of our court binds subsequent panels, when an

intervening decision of the United States Supreme Court requires modification of our prior

decision, we are no longer bound by our precedent. United States v. Elbe, 774 F.3d 885, 891

(6th Cir. 2014). For the reasons stated, we hold that the legal landscape surrounding the

Guidelines, as announced by the Supreme Court, has sufficiently changed that our precedent can

no longer stand.

After Johnson, no one disputes that the identical language of the Guidelines’ residual

clause implicates the same constitutional concerns as the ACCA’s residual clause. In the words

of the Tenth Circuit, “[g]iven our reliance on the ACCA for guidance in interpreting § 4B1.2, it

stretches credulity to say that we could apply the residual clause of the Guidelines in a way that

is constitutional, when courts cannot do so in the context of the ACCA.” Madrid, 805 F.3d at

1211. Our reading of the current state of the law as established by the Supreme Court compels

our holding that the rationale of Johnson applies equally to the residual clause of the Guidelines.

Accordingly, we hold that the residual clause of U.S.S.G. § 4B1.2(a) is unconstitutionally vague.

Because Pawlak’s Ohio third-degree burglary offense is no longer a qualifying

conviction, see Coleman, 655 F.3d at 481, he must be resentenced.

2

The Commission has since adopted its proposed amendment to the definition of “crime of violence” in the

Guidelines. Amendment to the Sentencing Guidelines (Preliminary) (Jan. 8, 2016), at ii,

http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/201 60108_RF.pdf

(effective Aug. 1, 2016).

No. 15-3566 United States v. Pawlak Page 14

IV.

Next, Pawlak argues that the district court erred in applying a four-level enhancement for

firearms trafficking because the facts are insufficient to establish that he knew or had reason to

believe that the firearms recipient was a person whose possession of firearms would be unlawful,

as required by U.S.S.G. § 2K2.1(b)(5).

“[W]e apply a clearly-erroneous standard of review to the district court’s findings of fact,

[but] the determination of whether specific facts actually constitute [the enhancement] is a mixed

question of fact and law that we review de novo.” United States v. Bazazpour, 690 F.3d 796, 805

(6th Cir. 2012). “The district court is required to find the facts supporting this provision by a

preponderance of the evidence.” United States v. Freeman, 640 F.3d 180, 188 (6th Cir. 2011)

(discussing § 2K2.1(b)(5)).

Under U.S.S.G. § 2K2.1(b)(5), a “defendant [who] engage[s] in the trafficking of

firearms” is subject to a four-level enhancement. The government must prove that the defendant

(1) “transported, transferred, or otherwise disposed of two or more firearms to another

individual,” and (2) “knew or had reason to believe that such conduct would result in the

transport, transfer, or disposal of a firearm to an individual” (a) “whose possession or receipt of

the firearm would be unlawful” or (b) “who intended to use or dispose of the firearm

unlawfully.” Id. cmt. n.13(A). An “‘[i]ndividual whose possession or receipt of the firearm

would be unlawful’ means an individual who (i) has a prior conviction for a crime of violence, a

controlled substance offense, or a misdemeanor crime of domestic violence; or (ii) at the time of

the offense was under a criminal justice sentence, including probation, parole, supervised release,

imprisonment, work release, or escape status.” Id. cmt. n.13(B). In assessing a defendant’s

knowledge, a “sentencing court is permitted to make common-sense inferences from the

circumstantial evidence.” United States v. Juarez, 626 F.3d 246, 256 (5th Cir. 2010) (internal

quotation marks omitted) (affirming application of an enhancement under § 2K2.1(b)(5)); see

United States v. Ruth, No. 95-5977, 1996 WL 185760 (6th Cir. Apr. 17, 1996) (unpublished table

decision) (“[C]ircumstantial evidence may be sufficient by itself to convict a defendant, and is

certainly sufficient to support a sentencing enhancement, which carries a much lower burden of

proof.” (internal citation and emphasis omitted)).

No. 15-3566 United States v. Pawlak Page 15

In this case, the government maintains that the following circumstantial evidence

establishes by a preponderance of the evidence that Pawlak had reason to believe that possession

of firearms by the confidential informant and undercover officer would have been unlawful:

(1) the surreptitious nature of the sales (wrapping firearms in a blanket or paper bag, conducting

transactions in the privacy of Pawlak’s bedroom, and refusing to count the money outside);

(2) the “quantity and quality” of the firearms (selling six semi-automatic guns with ammunition

to the same buyer on four occasions within 60 days); and (3) the price (double the market value).

Additionally, the undercover officer told Pawlak that he left his “truck running because, uh, in

case something goes wrong I have to dash for it,” implying that he was prohibited from

purchasing the firearms.

We find these facts sufficient to establish that it is more likely than not that Pawlak had

reason to believe that the buyer was obtaining firearms on the black market at double the usual

cost because he was prohibited from purchasing firearms by legal means―especially given the

heavily inflated price and the “dash for it” comment. In context, the “dash for it” comment

strongly suggests that the officer’s very possession of firearms was illegal. Although the

comment was made during the fourth and final sale, that transaction involved two firearms, so it

would support application of the enhancement without reference to the three previous sales. See

U.S.S.G. § 2K2.1(b)(5) cmt. n.13(A)(i) (“two or more firearms”).

Pawlak’s argument on appeal is that the “government failed to introduce any evidence to

show the [confidential informant] or [undercover officer] met the[] requirements” of a person

whose possession would be unlawful under § 2K2.1(b)(5). We interpret his argument to be that

the government was required to establish that the firearm recipient was actually prohibited from

possessing firearms.3 But that misstates the government’s burden. That the recipient was an

undercover officer whose possession was not actually unlawful is immaterial if the defendant

“had reason to believe” that the officer’s possession would have been unlawful if the facts were

as the defendant understood them. United States v. Henry, No. 15-5578, 2016 WL 1392480, at

*9 (6th Cir. Apr. 8, 2016); see also United States v. Fields, 608 F. App’x 806, 812−13 (11th Cir.

3

Pawlak argues that the confidential informant was not a buyer or recipient of the firearms. But we need

not resolve whether the confidential informant was a buyer or recipient because the enhancement applies with

respect to the undercover officer who was undisputedly a buyer and recipient.

No. 15-3566 United States v. Pawlak Page 16

2015) (per curiam) (“Because nothing in the Guidelines commentary suggests the defendant’s

belief must be true, Fields’s focus on the fact he transferred firearms solely to an undercover

officer is unpersuasive.”); see United States v. Asante, 782 F.3d 639, 644 (11th Cir. 2015) (for

purposes of § 2K2.1(b)(5), a court looks to the circumstances as “known to the defendant”). It

bears repeating that the government was only required to establish that Pawlak had “reason to

believe” that the recipient’s possession would be unlawful, if the facts were as Pawlak

understood them. The government met this burden.

The district court did not err in applying the firearms-trafficking enhancement on the

basis of the recipient’s unlawful possession of firearms. Given our conclusion, we need not

reach the alternative argument that the recipient’s intended use of the firearms was unlawful.

V.

For the reasons stated in Part III, we vacate Pawlak’s sentence. Because Pawlak’s third-

degree burglary offense is no longer a qualifying felony for purposes of Guidelines

§ 2K2.1(a)(1), he must be resentenced consistent with this decision. We remand for

resentencing.

No. 15-3566 United States v. Pawlak Page 17

_________________

CONCURRENCE

_________________

JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in full in Parts I–III of

the opinion. With respect to Part IV, I would caution against deciding this case on the rationale

utilized in the majority court opinion. While the opinion correctly states that the individual’s

possession of the firearm in question need not be actually unlawful, it overlooks the fact that the

defendant must have had knowledge or reason to believe that the individual to whom the firearm

was transferred had certain prior convictions or is under a criminal justice sentence. See United

States v. Asante, 782 F.3d 639, 643–44 (11th Cir. 2015) (holding that the government failed to

prove the defendant’s actions fell under the unlawful possession prong “[b]ecause the

Government failed to present any evidence that [the defendant] knew that his conduct would

result in a firearm being transferred to” an individual falling under the narrow guidelines’

definition of an individual in unlawful possession); United States v. Howard, 539 F. App’x 904,

908 (10th Cir. 2013) (holding that the defendant’s actions fell under the unlawful possession

prong where the defendant transferred at least one firearm to a known felon); United States v.

Richardson, 427 F. App’x 522, 523–24 (7th Cir. 2011) (holding that the district court erred

because it applied the enhancement without taking into account whether the defendant knew or

should have known possession would be unlawful); United States v. Green, 405 F. App’x 860,

862 (5th Cir. 2010) (vacating the sentence in light of the government’s concession that there was

no evidence that the individuals receiving the firearms “had a relevant criminal conviction or

[were] under a criminal justice sentence at the time of the offense”). But see United States v.

Pepper, 747 F.3d 520, 525 (8th Cir. 2014) (holding that both the unlawful possession and

unlawful use prongs were met and noting that the firearm transferred to the individual “was not

registered, making [the individual’s] possession of it necessarily unlawful”). Instead, I believe

that the stronger argument supporting the enhancement is the government’s alternative

argument—that Pawlak had reason to know that the recipient intended unlawful use of the

firearm. The facts relied on support the inference that the defendant had reason to know that the

recipient’s possession was unlawful more obviously support an intended unlawful use.

No. 15-3566 United States v. Pawlak Page 18

For this reason, I would resolve the case based on unlawful use, not unlawful possession,

or at least base our affirmance on both grounds.