United States v. Michael Calabretta

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3969

_____________

UNITED STATES OF AMERICA

v.

MICHAEL CALABRETTA,

a/k/a Michael Callabretta

Michael Calabretta,

Appellant

_____________

On Appeal from the United States District Court

for the District of New Jersey

(No. 2-12-cr-00131-001)

District Judge: Hon. Stanley R. Chesler

Argued: September 15, 2015

____________

Before: FISHER, CHAGARES, and JORDAN, Circuit

Judges

(Filed July 26, 2016)

John C. Meringolo [ARGUED]

Meringolo & Associates

375 Greenwich Street, 7th Floor

New York, NY 10013

Attorney for Appellant

Steven G. Sanders [ARGUED]

Mark E. Coyne

Office of United States Attorney

970 Broad Street

Newark, NJ 07102

Attorneys for Appellee

____________

OPINION

____________

CHAGARES, Circuit Judge.

At issue in this appeal is whether Michael Calabretta’s

prior state conviction for eluding in the second degree

qualifies as a “crime of violence” under the advisory United

States Sentencing Guidelines (the “Guidelines,” or

“U.S.S.G.”). In light of Johnson v. United States, 135 S. Ct.

2551 (2015), we hold that the District Court plainly erred in

considering the state conviction to be a “crime of violence”

under the Guidelines. We will vacate Calabretta’s sentence

and remand for resentencing.

I.

On March 15, 2013, Calabretta pleaded guilty to a

two-count superseding information, charging him with

conspiracy to distribute and possess with the intent to

distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B) and 846, and with conspiracy to launder the

proceeds of drug trafficking activity, in violation of 18 U.S.C.

§§ 1956(a)(1)(A)(i) and 1956(h). Calabretta was subject to a

five-year mandatory minimum sentence pursuant to the

stipulated charges in the plea agreement.

In advance of sentencing, the parties and the District

Court received a copy of the Presentence Report (the “PSR”),

which included Calabretta’s Criminal History Category and

Total Offense Level. The PSR considered multiple prior state

convictions in calculating Calabretta’s Criminal History

Category, including a 1990 conviction for “Death by Auto”

2

and a 1994 conviction for “Eluding in the Second Degree.”

The PSR also considered those two convictions to constitute

“crimes of violence” pursuant to U.S.S.G. § 4B1.2, and

accordingly designated Calabretta as a “career offender”

under the Guidelines.1 Application of the career offender

Guideline increased Calabretta’s Criminal History Category

from III to VI, and increased his Total Offense Level from 29

to 31. With the career offender Guideline, Calabretta’s

recommended Guidelines sentencing range was 188 to 235

months of imprisonment. Had the career offender Guideline

not applied, his recommended Guidelines sentencing range

would have been 108 to 135 months.

At sentencing, the District Court adopted the PSR’s

calculation of Criminal History Category VI and Total

Offense Level of 31, which included the application of the

career offender Guideline. After considering the sentencing

factors set forth in 18 U.S.C. § 3553(a) (“section 3553(a)”),

the District Court imposed a sentence of 120 months on each

count to be served concurrently. Calabretta’s sentence thus

reflected a 68-month downward variance from the advisory

Guidelines sentencing range.

In imposing Calabretta’s sentence, the District Court

extensively discussed Calabretta’s earlier criminal

convictions. The District Court noted that Calabretta became

“involved in this particular scheme approximately five years

after he was released from jail on his prior convictions and . .

. [he] should have learned [his] lesson.” Appendix (“App.”)

141. The District Court also indicated that “a very substantial

sentence is required,” in part, to “get through to [Calabretta]

1

Under U.S.S.G. § 4B1.1(a), a defendant is a career offender

if “(1) the defendant was at least eighteen years old at the

time the defendant committed the instant offense of

conviction; (2) the instant offense of conviction is a felony

that is either a crime of violence or a controlled substance

offense; and (3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.” The District Court adopted the PSR’s

finding that all three prongs of the career offender Guideline

were met.

3

that if [he] thought [he] had reformed, reforming by

becoming a drug dealer is not reforming.” App. 142.

Additionally, the District Court denied Calabretta’s request

for a two-level reduction in his offense level, in anticipation

of an amendment to the Guidelines. The District Court noted

that Calabretta would be ineligible for a sentencing reduction

under the amendment “given [his] prior criminal record.”

App. 132.

On September 11, 2014, the District Court entered the

final judgment of conviction and sentence, which reflected

the 120-month term of imprisonment imposed. Calabretta

timely appealed.

II.2

At his sentencing, Calabretta did not challenge

whether his state conviction for eluding in the second degree

is a “crime of violence,” so we will review the District

Court’s determination of that issue for plain error. To

establish plain error, Calabretta must show that (1) the

District Court erred; (2) the error was clear or obvious, rather

than subject to reasonable dispute; and (3) the error affected

the appellant’s substantial rights, which in the ordinary course

means that there is a reasonable probability that the error

affected the outcome of the proceedings. United States v.

Marcus, 560 U.S. 258, 262 (2010); United States v. Tai, 750

F.3d 309, 313-14 (3d Cir. 2014). If all three elements are

established, then the Court may exercise its discretion to

award relief. See United States v. Olano, 507 U.S. 725, 736

(1993). That discretion should be exercised only in cases

where the error “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” Id. (quotation

marks omitted); see also United States v. Stinson, 734 F.3d

180, 184 (3d Cir. 2013).

III.

2

The District Court had jurisdiction pursuant to 18 U.S.C. §

3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a).

4

Calabretta argues that the District Court plainly erred

in treating his conviction for eluding as a “crime of violence”

under the Sentencing Guidelines, and that his case should be

remanded for resentencing.3 The Guidelines define a “crime

of violence” as:

any offense under federal or state law,

punishable 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 extortion, involves

use of explosives, or otherwise

involves conduct that presents

a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). The Government has

conceded that Calabretta’s eluding conviction qualifies as a

“crime of violence” only under what is known as the

“residual clause” of the Guideline — as “otherwise

involv[ing] conduct that presents a serious potential risk of

physical injury to another.”4 See Gov’t Letter Pursuant to

Fed. R. App. P. 28(j) (Aug. 12, 2015).

3

Calabretta raised a number of other issues on appeal. We

will not consider those here, as our determination that the

District Court committed plain error when it considered

Calabretta’s eluding conviction as a “crime of violence” is

dispositive of his appeal.

4

In New Jersey, eluding in the second degree is defined as

follows: “Any person, while operating a motor vehicle on

any street or highway in this State or any vessel . . . who

knowingly flees or attempts to elude any police or law

enforcement officer after having received any signal from

such officer to bring the vehicle or vessel to a full stop

commits a crime of the third degree; except that, a person is

guilty of a crime of the second degree if the flight or attempt

5

A.

While Calabretta’s appeal was pending, the United

States Supreme Court decided Johnson v. United States, 135

S. Ct. 2551 (2015), which held that an identically worded

residual clause in the Armed Career Criminal Act (“ACCA”)

was unconstitutional. Under ACCA, defendants are subject

to a more severe punishment if they have three or more

previous convictions for a “violent felony” — which

included, under the statute’s residual clause, “conduct that

presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)(ii). Supreme Court precedent prior

to Johnson had required courts to use a “categorical”

approach to determine whether a crime fell within ACCA’s

residual clause. See Sykes v. United States, 564 U.S. 1

(2011); James v. United States, 550 U.S. 192 (2007). The

categorical approach prescribed that courts “picture the kind

of conduct that the crime involves in ‘the ordinary case,’ and

to judge whether that abstraction presents a serious potential

risk of physical injury.” Johnson, 135 S. Ct. at 2557 (quoting

James v. United States, 550 U.S. 192, 208 (2007)).

But in Johnson, the Supreme Court overruled its earlier

cases — Sykes and James — that required courts to use the

categorical approach to determine whether a crime was

included in ACCA’s residual clause. Rather, the Supreme

Court invalidated, as unconstitutionally vague, ACCA’s

residual clause. The Supreme Court held that defendants

were denied due process of law when their sentences were

increased after application of ACCA’s residual clause

because the “indeterminacy of the wide-ranging inquiry

required by the residual clause both denies fair notice to

defendants and invites arbitrary enforcement by judges.”

Johnson, 135 S. Ct. at 2557. The Court ruled that the

indeterminacy inherent in both inquiries under the categorical

approach — (1) imagining the conduct in “the ordinary case”

of a crime, and (2) imagining the “serious potential risk” of

that “ordinary case” — was, at least in combination,

to elude creates a risk of death or injury to any person.” N.J.

Stat. Ann. § 2C:29-2(b) (emphasis added).

6

unconstitutionally vague.5 Id. at 2557-58. The Court also

noted the practical results of prior jurisprudence interpreting

the residual clause: numerous splits among the federal courts

regarding the type of inquiry for determining what a crime is

in “the ordinary case,” and ultimately, which crimes fall

within the residual clause. Id. at 2560. Therefore, the

Supreme Court held that “[i]nvoking so shapeless a provision

to condemn someone to prison . . . does not comport with the

Constitution’s guarantee of due process.” Id.

B.

Under the plain error standard, we must first consider

whether the District Court committed an error when it

considered the eluding conviction as a “crime of violence” in

determining Calabretta to be a career offender under the

Guidelines. Both the Government and Calabretta argue that,

under Johnson, the identically worded “residual clause” of §

4B1.2 of the Guidelines is likewise invalid. This question,

however, is one for the courts — not the parties — to decide.

“Confessions of error . . . do not relieve this Court of the

performance of the judicial function. . . . [O]ur 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) (quotation marks and

citations omitted).

5

Justice Antonin Scalia, writing for the Johnson majority,

indicated the various methods a court could use (and, indeed,

had employed) under the categorical approach: “How does

one go about deciding what kind of conduct the ‘ordinary

case’ of a crime involves? ‘A statistical analysis of the state

reporter? A survey? Expert evidence? Google? Gut

instinct?’” Id. at 2557. “The residual clause offers no

reliable way to choose between . . . competing accounts of

what [the] ‘ordinary’ [crime] involves.” Id. at 2558. Further,

“the residual clause leaves uncertainty about how much risk it

takes for a crime to qualify as a violent felony. It is one thing

to apply an imprecise ‘serious potential risk’ standard to real-

world facts; it is quite another to apply it to a judge-imagined

abstraction.” Id.

7

We hold that the “residual clause” in § 4B1.2 of the

Guidelines is unconstitutionally vague.6 This holding flows

6

The courts of appeals are split on this question. Compare

United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir.

2015) (holding that the residual clause in § 4B1.2(a)(2) is

unconstitutionally vague), with United States v. Matchett, 802

F.3d 1185, 1193-96 (11th Cir. 2015) (declining to apply

vagueness principles to the advisory Guidelines, and holding

§ 4B1.2(a)(2) to be constitutional). See also United States v.

Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) (holding that the

residual clause of § 4B1.2(a) is unconstitutionally vague);

United States v. Welch, __ F. App’x __, 2016 WL 536656, at

*4 (2d Cir. 2016) (summary order) (same). The Court of

Appeals for the Seventh Circuit has also indicated in dictum

that § 4B1.2(a)(2) may be unconstitutionally vague. Ramirez

v. United States, 799 F.3d 845, 856 (7th Cir. 2015) (“In

Johnson v. United States, the Supreme Court held that the

identically worded residual clause of the Armed Career

Criminal Act is unconstitutionally vague. We have

interpreted both residual clauses identically, and so we

proceed on the assumption that the Supreme Court’s

reasoning applies to section 4B1.2 as well. This is a point,

however, that neither side has briefed, and it may warrant

attention on remand.” (citations omitted)). Finally, it is worth

noting that the Court of Appeals for the Eighth Circuit has

issued two divided panel opinions on this issue. In United

States v. Taylor, 803 F.3d 931 (8th Cir. 2015), the court

vacated the defendant’s sentence and remanded for

resentencing. The court acknowledged that although there

was circuit precedent holding that the Guidelines were not

susceptible to a vagueness attack, that holding was called into

question by Johnson. The court left the question to be

decided in the first instance by the district court. Id. at 933.

However, a later panel of that court found that any such

sentencing error was not “obvious” or “plain” in light of the

circuit precedent holding that advisory Guidelines could not

be void for vagueness. See United States v. Ellis, 815 F.3d

419, 421 (8th Cir. 2016). The United States Supreme Court

has recently granted a petition for writ of certiorari on this

question that has divided the courts of appeals. See United

States v. Beckles, 616 F. App’x 415 (11th Cir. 2015), cert.

8

from our prior case law wherein we have interpreted the

“crime of violence” definition in the Guidelines identically to

the “violent felony” definition in ACCA.7 For example, in

United States v. Hopkins, 577 F.3d 507 (3d Cir. 2009), we

considered whether a second degree misdemeanor escape

offense under Pennsylvania law qualified as a crime of

violence under the residual clause of section 4B1.2. The case

was remanded to us by the Supreme Court to be considered

further in light of Chambers v. United States, 555 U.S. 122

(2009), an ACCA decision dealing with whether the offense

of failing to report for incarceration was a violent felony. See

Hopkins v. United States, 555 U.S. 1132 (2009). We applied

Chambers and held that while the Supreme Court in that

decision “was not called upon to construe the career offender

provision of the Sentencing Guidelines, the definition of a

violent felony under the ACCA is sufficiently similar to the

definition of a crime of violence under the Sentencing

Guidelines that authority interpreting one is generally applied

to the other.” 577 F.3d at 511 (footnote omitted). In

addition, we observed that the validity of our holding was

“demonstrated by the Supreme Court’s remand order in this

case.” Id.

More recently, in United States v. Marrero, 743 F.3d

389 (3d Cir. 2014), we considered whether a simple assault

granted, 2016 WL 1029080 (U.S. June 27, 2016) (No. 15-

8544).

7

The Sentencing Commission has also recognized the

connection of the Guidelines residual clause to that of ACCA.

The Sentencing Commission has indicated that the “crime of

violence” definition in § 4B1.2 is “derived from 18 U.S.C. §

924(e).” See U.S.S.G. app. C, amend. 268 (eff. Nov. 1,

1989). And as of January 2016, the Sentencing Commission

has proposed an amendment that would eliminate the residual

clause of § 4B1.2. The amendment will go into effect on

August 1, 2016, unless Congress acts to the contrary. See

U.S. Sentencing Commission, Amendment to the Sentencing

Guidelines, at 2 (Jan. 21, 2016),

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

process/reader-friendly-amendments/20160121_RF.pdf.

9

was a crime of violence under the Guidelines residual clause

of section 4B1.2. Notably, the case was back before a panel

of our Court after being remanded by the Supreme Court in

light of its decision in Descamps v. United States, 133 S. Ct.

2276 (2013) — a decision, like Chambers, involving

application of the identical “violent felony” provision of

ACCA. See Marrero v. United States, 133 S. Ct. 2732

(2013). Our analysis relied upon numerous cases decided

under ACCA. 743 F.3d at 394-401. We held that although

those cases “involved sentencing enhancements under

[ACCA] rather than the career offender Guideline, they

nevertheless bind our analysis.” Id. at 394 n.2 (emphasis

added). We explained that “‘[p]recedent . . . requires the

application of case law interpreting “violent felony” in ACCA

to “crime of violence” in U.S.S.G. 4B1.2[] because of the

substantial similarity of the two sections.’” Id. (quoting

United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008)).

This approach of similarly interpreting the two residual

clauses remains appropriate for the case before us now. Prior

to Johnson, courts in this circuit were instructed to use the

same categorical approach under both residual clauses for

determining whether a conviction qualifies as a crime of

violence — that is, “whether the elements of the offense are

of the type that would justify its inclusion within the residual

provision, without inquiring into the specific conduct of this

particular offender.” Marrero, 743 F.3d at 395 (quotation

marks and emphasis omitted). But in Johnson, the Supreme

Court held that the indeterminacy inherent in the categorical

approach, under ACCA, denied defendants due process by

“den[ying] fair notice to defendants” and “invit[ing] arbitrary

enforcement by judges.” 135 S. Ct. at 2557.

It is apparent that if ACCA’s residual clause “invites

arbitrary enforcement,” id., so does the residual clause in §

4B1.2. The process by which a sentencing court determines

whether a prior conviction is a “crime of violence” is the

same process that the Supreme Court held to be fraught with

indeterminacy under ACCA. And the result of this

indeterminate process — whether or not a defendant is

designated a career offender under § 4B1.2 — will shift the

“benchmark” or “framework” of the district court’s

sentencing determination by changing the recommended

10

sentencing range. See Peugh v. United, 133 S. Ct. 2072, 2083

(2013) (indicating that the advisory Guidelines serve as a

“framework” for “anchor[ing]” sentencing decisions with the

purpose of achieving “uniformity” in sentencing); Gall v.

United States, 552 U.S. 38, 49 (2007) (indicating that the

Guidelines, although advisory, “should be the starting point

and the initial benchmark” in order to “secure nationwide

consistency” in sentences imposed). See also Pawlak, 822

F.3d at 906 (“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. 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.”) (citations omitted). See generally

28 U.S.C. § 994(f) (“The Commission, in promulgating

guidelines . . . shall promote the purposes set forth . . . with

particular attention to the requirements . . . for providing

certainty and fairness in sentencing and reducing unwarranted

sentence disparities.”). This takes us back to first principles

in sentencing, under which we require that courts calculate a

defendant’s Guidelines range as the first step in any

sentencing, prior to application of the sentencing factors set

out at 18 U.S.C. § 3553(a). United States v. Gunter, 462 F.3d

237, 247 (3d Cir. 2006). “[W]hen the starting point for the §

3553(a) analysis is incorrect, the end point, i.e., the resulting

sentence can rarely be shown to be unaffected.” United

States v. Langford, 516 F.3d 205, 217 (3d Cir. 2008). Thus, a

defendant’s recommended sentence (and ultimate sentence

imposed) will likely be affected by how the sentencing court

determines whether a prior conviction, viewed only in the

abstract and not with reference to real-world facts, is a “crime

of violence” under the § 4B1.2 residual clause.

Our holding also flows from our prior case law that

considered constitutional vagueness challenges to the

Guidelines. For example, in United States v. Maurer, 639

F.3d 72, 78 n.4 (3d Cir. 2011), we held that U.S.S.G. §

2G2.2(b)(4) was not unconstitutionally vague because it gave

“a person of ordinary intelligence fair notice of the conduct to

which it applies” and did not “authorize or encourage

11

arbitrary and discriminatory enforcement.” See also United

States v. Jones, 979 F.2d 317, 319-20 (3d Cir. 1992) (holding

that U.S.S.G § 2D1.1(c)(6) is not void for vagueness),

superseded by Guideline on other grounds, U.S.S.G. app. C,

amend. 487 (eff. Nov. 1, 1993), as recognized in United

States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999). Our

case law is supported by the Supreme Court’s recognition that

the Guidelines are sufficiently law-like to be subject to certain

limits imposed by the Constitution. See, e.g., Peugh, 133 S.

Ct. at 2082 (holding that erroneously applying amended

Guidelines that are advisory but still increase a defendant’s

recommended sentence violates the Ex Post Facto Clause, as

the “change in law presents a sufficient risk of increasing the

measure of punishment attached to the covered crimes”

(quotation marks omitted)). See also United States v. Savani,

733 F.3d 56, 66 (3d Cir. 2013) (holding that the rule of lenity

applies to the Guidelines).

We note, however, that the Court of Appeals for the

Eleventh Circuit has declined to apply the vagueness doctrine

to the advisory Guidelines. See United States v. Matchett,

802 F.3d 1185, 1194-95 (11th Cir. 2015) (holding that the §

4B1.2 residual clause was not invalid after Johnson). But the

court in Matchett focused only on whether the advisory

Guidelines could deny fair notice to a criminal defendant, and

not whether a criminal defendant is protected against arbitrary

enforcement in an advisory Guidelines sentencing system.

See id. at 1194. We conclude, for the reasons previously

discussed, that regardless of whether defendants are entitled

to “fair notice” under an advisory Guidelines system,8 the due

8

The Matchett court premised its holding that the “vagueness

doctrine, which rests on a lack of notice, does not apply to

advisory guidelines” on Irizarry v. United States, 553 U.S.

708 (2008). Matchett, 802 F.3d at 1194 (quotation marks,

alterations, and citation omitted). But the conclusion in

Matchett that criminal defendants are never entitled to fair

notice under an advisory Guidelines system does not

necessarily flow from Irizarry. Under Irizarry, defendants do

not have a due process right over any expectation to be

sentenced within the advisory Guidelines range, when a

district court, after considering the sentencing factors outlined

in 18 U.S.C. § 3553(a), applies a discretionary variance and

12

process concerns over arbitrary enforcement are implicated

here. See United States v. Madrid, 805 F.3d 1204, 1210-11

(10th Cir. 2015) (“If one iteration of the clause is

unconstitutionally vague, so too is the other. . . . 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.”

(quotation marks and citation omitted)).

The Supreme Court’s decision in Johnson supports our

conclusion. In its discussion of arbitrary enforcement, the

Supreme Court cited to cases involving the § 4B1.2 residual

clause to demonstrate that ACCA’s residual clause is “nearly

impossible to apply consistently.” See Johnson, 135 S. Ct. at

2560 (citing United States v. Carthorne, 726 F.3d 503 (4th

Cir. 2013); United States v. Whitson, 597 F.3d 1218 (11th

Cir. 2010) (per curiam); United States v. McDonald, 592 F.3d

808 (7th Cir. 2010); United States v. Williams, 559 F.3d 1143

(10th Cir. 2009)). In addition, the Supreme Court vacated the

sentences of some offenders who were sentenced under the

residual clause of the Sentencing Guidelines, and remanded to

the courts of appeals for further consideration in light of

Johnson. See United States v. Maldonado, 581 F. App’x 19

(2d Cir. 2014), vacated, 135 S. Ct. 2929 (2015); Beckles v.

United States, 579 F. App’x 833 (11th Cir. 2014), vacated,

135 S. Ct. 2928 (2015). As noted earlier, this type of

Supreme Court action is significant. See Hopkins, 577 F.3d

at 511.

imposes a sentence outside of the recommended range. 553

U.S. at 713. At issue in the case before us is not a district

court’s discretionary variance. We are instead concerned

with the imposition of a sentence where a criminal defendant

has been incorrectly designated a career offender as a matter

of law — a question over which we exercise de novo review.

See United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)

(en banc). However, as we hold that the due process concerns

over arbitrary enforcement are implicated here, we need not

decide whether the residual clause of section 4B1.2 also

denied Calabretta fair notice.

13

We hold that the residual clause of the career offender

Guideline, like ACCA’s residual clause, is infected with

“hopeless indeterminacy,” Johnson, 135 S. Ct. at 2558, and is

unconstitutionally vague in light of Johnson.9 Therefore, we

conclude that the District Court erred in determining that

Calabretta was a career offender.10

C.

9

In reaching this holding, we do not address the continued

viability of other, similar residual clauses present in other

statutes. In particular, we emphasize that the residual clause

of ACCA and the career offender Guideline are not only

identical in their wording but are also linked to a list of four

enumerated offenses (preceding the residual clauses) that

qualify as crimes of violence: burglary, arson, extortion, and

crimes involving the use of explosives. See 18 U.S.C. §

924(e)(2)(B); U.S.S.G. § 4B1.2(a) (limiting enumerated

“burglary” offense to “burglary of a dwelling”). In Johnson,

the Supreme Court indicated that ACCA’s “confusing list of

examples” may have contributed to that residual clause’s

arbitrariness and unpredictability. 135 S. Ct. at 2561. The

language at issue here is the same in that regard. Thus, we

need not consider — and so leave for another day — whether

a similar residual clause without an exemplary list of offenses

would be subject to the same degree of due process concern

that the Supreme Court identified in Johnson.

10

While the Supreme Court recently held in Welch v. United

States that Johnson announced a substantive rule that applies

retroactively to cases on collateral review, 136 S. Ct. 1257

(2016), we need not consider whether the residual clause of

the career offender enhancement likewise involves a

substantive rule of law requiring its retroactive application on

collateral review. Calabretta’s direct appeal was already

pending at the time of the Johnson decision. See Griffith v.

Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule for the

conduct of criminal prosecutions is to be applied retroactively

to all cases, state or federal, pending on direct review or not

yet final . . . .”).

14

Second, the error here is plain. An error that is plain is

“clear or obvious, rather than subject to reasonable dispute,”

Puckett v. United States, 556 U.S. 129, 135 (2009) (citing

Olano, 507 U.S. at 734), at the time of appellate

consideration, see Henderson v. United States, 133 S. Ct.

1121, 1130-31 (2013). Although our Court has not ruled on

the precise question as to whether the residual clause of

section 4B1.2 is void for vagueness,11 we have previously

entertained similar challenges, see Maurer, 639 F.3d at 78

n.4, and we have held that Supreme Court cases construing

ACCA “bind our analysis” of the career offender Guideline,

Marrero, 743 F.3d at 394 n.2. Therefore, as Johnson was

decided while Calabretta’s appeal was pending, and as our

Court has consistently construed the career offender

Guideline similarly to ACCA, the error here is plain.12

D.

Third, the error affected Calabretta’s substantial rights.

“[T]o have affected a defendant’s substantial rights, a plain

error must have caused the defendant prejudice, in that it

‘affected the outcome of the district court proceedings.’”

United States v. Tann, 577 F.3d 533, 538 (3d Cir. 2009)

(quoting Olano, 507 U.S. at 734). The Supreme Court

recently held that “[w]hen a defendant is sentenced under an

incorrect Guidelines range — whether or not the defendant’s

ultimate sentence falls within the correct range — the error

11

Our Court need not have previously ruled on a precise issue

for an error to be plain. See, e.g., United States v. Tann, 577

F.3d 533, 537 (3d Cir. 2009) (holding error to be “plain” in a

matter of first impression where prior cases “deal[t] with

analogous statutes”). Nor does it change our analysis that the

Eleventh Circuit Court of Appeals has held differently. Our

circuit precedent is sufficiently clear such that the error is

plain.

12

We also note that, unlike other courts of appeals that have

found no plain error in cases arising out of similar facts, see

Ellis, 815 F.3d at 421-22, our Court has never held that the

advisory Guidelines were not susceptible to a vagueness

attack.

15

can, and most often will, be sufficient to show a reasonable

probability of a different outcome absent the error.” Molina-

Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). The

Government, however, “remains free to point to parts of the

record — including relevant statements by the judge — to

counter any ostensible showing of prejudice the defendant

may make.” Id. at 1347 (quotation marks and alterations

omitted). Accordingly, “in the ordinary case a defendant will

satisfy his burden to show prejudice by pointing to the

application of an incorrect, higher Guidelines range and the

sentence he received thereunder. Absent unusual

circumstances, he will not be required to show more.” Id.

Despite conceding that Calabretta is no longer a career

offender, the Government maintains that the error did not

affect Calabretta’s substantial rights. The Government points

to the District Court’s downward variance and the District

Court’s explanation that “‘a sentence of 120 months . . . is the

minimum sentence sufficient to secure the purposes of

sentencing that are set forth in [section] 3553’” as indications

that the District Court would have imposed the same sentence

irrespective of the Guidelines range. See Gov’t Letter

Pursuant to Fed. R. App. P. 28(j) (July 28, 2015) (quoting

App. 143). We disagree with the Government’s contentions.

The record in this case does not “show . . . that the district

court thought the sentence it chose was appropriate

irrespective of the Guidelines range.” Molina-Martinez, 136

S. Ct. at 1346.

There are indications in the record that the application

of the career offender enhancement did affect Calabretta’s

sentence. The District Court placed significant emphasis on

Calabretta’s criminal history and his lack of “reform.” App.

141-43. The sentencing court noted that Calabretta was “not

a stranger to the criminal justice system,” that he “should

have learned [his] lesson” from his prior convictions, and that

his eluding conviction, in particular, “compounded” his lack

of reform. App. 141. After focusing on Calabretta’s prior

convictions, the District Court indicated its belief that “a very

substantial sentence is required,” in part, “to get through to

[Calabretta] that if [he] thought [he] had reformed, reforming

by becoming a drug dealer is not reforming.” App. 142. We

do not think any of those observations inapt, but we cannot

16

divine whether the District Court would have placed such

emphasis on Calabretta’s criminal history and his eluding

conviction, had he not been designated a career offender

convicted of multiple, prior “crimes of violence.”

Additionally, the District Court denied Calabretta’s

request for a two-level reduction in his offense level based on

anticipated amendments to the Guidelines that lowered the

offense level for certain narcotics offenses.13 In denying

Calabretta’s request, the District Court noted that Calabretta,

as a career offender, would be ineligible for a sentence

reduction under the amended Guidelines. App. 131-32. We

cannot intuit whether the District Court would have granted

the request if Calabretta were not a career offender, but we

note that the District Court did grant such a request for two of

Calabretta’s co-defendants who were not designated career

offenders with no objection from the Government.14 See

Gov’t Br. at 9 n.6. And had the District Court granted the

reduction, Calabretta’s recommended Guidelines range would

have been 87 to 108 months. Calabretta’s 120-month

13

Effective November 1, 2014, the United States Sentencing

Commission adopted Amendment 782, which modified

section 2D1.1 of the Guidelines to lower the sentencing range

for certain categories of drug-related offenses. As Calabretta

was sentenced in September 2014, the amendment, which

would have lowered his Total Offense Level by two points,

did not apply to him. The Sentencing Commission, however,

also adopted Amendment 788, effective November 1, 2014,

which authorized retroactive application of Amendment 782

to certain defendants sentenced before its effective date.

However, if the sentence were “based on” the defendant’s

career offender status, rather than “based on” section 2D1.1,

the defendant would be ineligible for a sentencing reduction

under the Amendments. See 18 U.S.C. § 3582(c)(2);

U.S.S.G. § 1B1.10; United States v. Flemming, 723 F.3d 407,

411-13 (3d Cir. 2013).

14

Not only was there no objection from the Government in

these instances, it also appears that it was Department of

Justice policy not to object to such requests for early

application of the Guidelines Amendment. See App. 82 n.1.

17

sentence, then, would constitute a 12-month upward variance

from that Guidelines range.15

Moreover, we emphasize the sheer magnitude of the

disparity between Calabretta’s correct Guidelines range and

his erroneously-enhanced Guidelines range. Designated a

career offender, Calabretta had a Guidelines range of 188 to

235 months of imprisonment. Absent that enhancement, his

range was calculated as 108 to 135 months of imprisonment

— or perhaps 87 to 108 months of imprisonment with a

Guidelines range reduction in anticipation of Amendment

782. The difference amounts to years of additional time in

prison. By contrast, the Supreme Court held in Molina-

Martinez that an erroneous Guidelines calculation that

affected the defendant’s range by seven months constituted

plain error. 136 S. Ct. at 1344. The size of the miscalculation

here thus weighs strongly in favor of the conclusion that the

error affected Calabretta’s substantial rights.

We hold that the Guidelines miscalculation here is

sufficient to show a reasonable probability that his sentence

would have been different absent the error. We cannot

assume here that the sentencing court would have imposed

15

Our dissenting colleague suggests that the applicability of

Amendment 782 should not weigh in favor of exercising our

discretion to remand for resentencing as retroactive relief is

available to Calabretta now that he is no longer considered a

career offender. However, a district court is limited in its

ability to resentence a criminal defendant who is eligible for

relief under Amendments 782 and 788. Unless a defendant

received a sentencing departure pursuant to a Government

motion regarding substantial assistance, a district court cannot

grant a sentence reduction that is less than the minimum of

the amended Sentencing Guidelines range. See 18 U.S.C. §

3582(c)(2); U.S.S.G. § 1B1.10. Thus, if Calabretta could

only seek relief through a sentencing reduction motion made

pursuant to Amendments 782 and 788, the minimum sentence

he could receive is 87 months of imprisonment. If, however,

we remand for resentencing, the District Court could decide

to impose a sentence as low as 60 months — the mandatory

minimum sentence. This difference also weighs in favor of

us exercising our discretion to afford relief.

18

the same sentence regardless of the career offender

designation. To assume so — particularly when the record

suggests that Calabretta’s criminal history played a role in the

ultimate sentence imposed — would “place us in the zone of

speculation and conjecture.” United States v. Zabielski, 711

F.3d 381, 387 (3d Cir. 2013) (quotation marks and alteration

marks omitted) (applying harmless error review). Therefore,

Calabretta has demonstrated that the District Court’s error

affected his substantial rights.

E.

The Supreme Court has recently reminded us that

“[u]nder the Olano framework, appellate courts retain broad

discretion in determining whether a remand for resentencing

is necessary.”16 Molina-Martinez, 136 S. Ct. at 1348. But

that broad discretion should not be exercised reflexively when

the other elements of the plain error standard are met. Olano,

507 U.S. at 737 (“[A] plain error affecting substantial rights

does not, without more, satisfy the [plain error standard], for

otherwise the discretion afforded by the [standard] would be

illusory.”); see United States v. John, 597 F.3d 263, 288-89

(5th Cir. 2010) (“The discretion inherent in the plain-error

standard is not tantamount to caprice, nor is it to be exercised

because of sympathy or lack thereof for a particular

individual or the public’s or a judge’s opinion as to the

seriousness or heinous nature of a particular crime.”). Our

discretion is properly exercised in case-specific circumstances

where an error “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” Olano, 507 U.S. at

736 (quotation marks omitted). That considerable standard

has been met in this case.

16

We note that, in Molina-Martinez, the Supreme Court

described the Government’s “concern over the judicial

resources needed for the resentencing proceedings”

as“unfounded.” 136 S. Ct. at 1348-49. “[E]ven when a Court

of Appeals does decide that resentencing is appropriate, a

remand for resentencing, while not costless, does not invoke

the same difficulties as a remand for retrial does.” Id.

(quotation marks omitted).

19

Calabretta’s advisory Guidelines sentencing range

would have been substantially lower if he had not been

labelled a career offender. If the District Court had applied a

two-level reduction in offense level in anticipation of

Amendment 782 — like it did with two of Calabretta’s co-

defendants — then Calabretta’s sentence represents a 12-

month upward variance from the applicable Guidelines range.

Nor is this a situation where the District Court made clear that

Calabretta’s career offender status did not have an effect on

his sentencing range. At his sentencing hearing, the District

Court repeatedly emphasized Calabretta’s criminal history

and lack of reform following his prior convictions.17

17

Our dissenting colleague contends that the District Court

“did not apply the career offender Guidelines range,” and

emphasizes repeatedly that the District Court indicated that

Calabretta’s sentence was the “minimum sentence sufficient.”

But the District Court did apply the career offender

Guideline, even though it ultimately sentenced Calabretta to a

below-Guidelines sentence. By indicating that it was

imposing the “minimum sentence sufficient,” the District

Court was simply following the statutory text of section

3553(a), which requires district courts to “impose a sentence

sufficient, but not greater than necessary, to comply with the

purposes [of criminal sentencing].” 18 U.S.C. § 3553(a).

This “parsimony” principle is so inherent in the sentencing

process that district judges need not even announce their

adherence to it when sentencing a criminal defendant. See

United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006)

(“[W]e hold that district judges are not required by the

parsimony provision to routinely state that the sentence

imposed is the minimum sentence necessary to achieve the

purposes set forth in § 3553(a)(2).”). Merely quoting this

language should not insulate a sentence from harmless error

or plain error review. The District Court never indicated that

it would have imposed the same sentence regardless of

Calabretta’s career offender status. Rather, the District Court

imposed what it determined was the “minimum sentence

sufficient” in considering the section 3553(a) factors —

which includes “the applicable category of offense committed

by the applicable category of defendant as set forth in the

guidelines.” 18 U.S.C. § 3553(a)(4)(A). Thus, if the District

Court were applying the section 3553(a) factors as is

20

Therefore, we cannot presume that the District Court would

have likely imposed the same sentence had Calabretta not

been designated a career offender. It is possible — perhaps

even likely, given the below-Guidelines sentences of

Calabretta and those of his co-defendants — that the District

Court still would have imposed a below-Guidelines sentence

under the correct Guidelines range.18

We are convinced that if we were to affirm

Calabretta’s sentence, which was imposed against the

backdrop of a legally incorrect career offender designation

statutorily required, then its calculation of the “minimum

sentence sufficient” necessarily included consideration of the

recommended Guidelines range, including Calabretta’s career

offender status.

18

Our dissenting colleague suggests that we are trying to

“have it both ways” by “attempting to undertake such a

prediction [of what the District Court will do on remand]

while, at the same time, arguing that [the dissent is]

undergoing a speculative analysis” of its own. Dissent Slip

Op. at 9. We are not speculating about the District Court’s

actions. The dissent, however, reads such certainty into this

scant record that it would lead to affirmance of a 120-month

sentence despite a significant Guideline miscalculation. Our

position is that any prediction of what the District Court

would have done about sentencing if it had calculated the

Guidelines correctly necessarily calls for speculation and that

is the very reason there must be a remand. As noted earlier,

the Supreme Court recently instructed that such uncertainty

weighs in favor of resentencing, not affirmance. See Molina-

Martinez, 136 S. Ct. at 1347 (“Where . . . the record is silent

as to what the district court might have done had it considered

the correct Guidelines range, the court’s reliance on an

incorrect range in most instances will suffice to show an

effect on the defendant’s substantial rights. Indeed, in the

ordinary case a defendant will satisfy his burden to show

prejudice by pointing to the application of an incorrect, higher

Guidelines range and the sentence he received thereunder.

Absent unusual circumstances, he will not be required to

show more.”). The uncertainty here should be resolved by

the District Court.

21

and a significantly higher Guidelines range, it would indeed

seriously affect the fairness, integrity or public reputation of

judicial proceedings. See Madrid, 805 F.3d at 1212 (“[W]hen

the correct application of the sentencing laws would likely

significantly reduce the length of the sentence, circuit courts

have almost uniformly held the error to implicate

fundamental fairness issues.” (quotation marks omitted)); cf.

Tai, 750 F.3d at 320 (“[W]e exercise our discretion to correct

the error because it increased the sentence without the

necessary fact finding and thereby affected the integrity of the

proceedings.”). Accordingly, we will exercise our discretion

to award Calabretta relief.

IV.

In sum, Calabretta has demonstrated the requisite

elements to establish plain error, and we will exercise our

discretion to award appropriate relief. We will thus vacate

Calabretta’s sentence and remand for resentencing.

22

FISHER, Circuit Judge, dissenting.

The majority holds that Johnson v. United States, 135

S. Ct. 2551 (2015), invalidates the residual clause of United

States Sentencing Guideline § 4B1.2, removing Michael

Calabretta’s status as a career offender. I agree with this

portion of the majority’s opinion.1

But, that is where my agreement with the majority

ends, as based on the sentencing record, the majority also

finds that the District Court plainly erred when it considered

Calabretta’s now-removed career offender status in imposing

its sentence. Though I agree that Johnson should apply in this

case and that Calabretta no longer meets the career offender

criteria, I disagree that the District Court’s careful and

thoughtful analysis at sentencing, which concluded in a

sentence of 120 months’ imprisonment, was plainly

erroneous. I dissent specifically to address the erosion of the

doctrine of plain error review in our Circuit.

1

As the majority notes, Johnson’s application to §

4B1.2 was considered by the Eleventh Circuit in United

States v. Matchett, 802 F.3d 1185 (11th Cir. 2015). The

Matchett court was concerned that other sections of the

Guidelines may be invalidated if the void-for-vagueness

doctrine is applied to § 4B1.2 via Johnson and rejected the

petitioner’s argument that Johnson invalidates § 4B1.2’s

residual clause. I recognize Judge Pryor’s well-written

opinion and the possible future consequences the adoption of

Johnson may have. See also United States v. Ellis, 815 F.3d

419, 422 (8th Cir. 2016) (finding that it is not “obvious that

the guidelines are susceptible to a constitutional vagueness

challenge”).

On the other hand, several circuits and this Court—as

outlined by the majority—have applied ACCA holdings to

identically-worded sections of the Guidelines, including those

courts that have already considered Johnson and applied it to

§ 4B1.2. Accordingly, based on our precedent, I join the

majority in applying Johnson.

1

Michael Calabretta is no smalltime marijuana dealer,

just selling some of his stash to a few friends to support a

habit or to make ends meet. Rather, for more than two-and-a-

half years, he participated in an extensive cross-country

conspiracy that distributed over 100 kilograms of marijuana

and he personally laundered more than ten million dollars in

drug sale proceeds.

In spite of this formidable backdrop, Calabretta asks us

to find that the District Court plainly erred when it imposed a

120 months’ sentence, a sentence that was well below the

career offender Guidelines range and can only be viewed as

an act of leniency—the maximum leniency the District Court

felt was deserved. We should not grant his request because, as

the District Court clearly found, Calabretta’s sentence was the

“minimum sentence sufficient.” J.A. 143.

If a defendant fails to timely object at the time a

sentence is pronounced, as Calabretta failed to, the

unpreserved issue is reviewed for plain error. United States v.

Flores-Mejia, 759 F.3d 253, 259 (3d Cir. 2014). In order to

satisfy the first three prongs of plain error, an appellant must

establish that an error occurred, that the error was clear or

obvious, and the error affected his substantial rights. If those

requirements are met, we move to the fourth prong and

determine if the “error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” United

States v. Marcus, 560 U.S. 258, 262 (2010) (internal

quotation marks omitted). If after a fact-intensive analysis we

determine that the fourth prong has been established, we have

the discretion to remedy the error. Puckett v. United States,

556 U.S. 129, 135 (2009).

Here, the fourth prong has not been met. The District

Court based its sentence on Calabretta’s serious and extensive

underlying and prior criminal conduct, not on his career

offender status—and it specifically found that 120 months’

incarceration was the minimum sentence it would impose.

This is not an unfair sentence. Nor is it one that will affect the

integrity or public reputation of the judiciary. Further, the

2

majority’s holding is troubling because the plain error test,

specifically its fourth prong, requires stringent application.

This holding will not only affect Calabretta but may affect

future proceedings: a broadened plain error analysis will now

apply in these cases. I therefore respectfully dissent from the

majority’s decision to remand for resentencing.

I.

Calabretta has a significant criminal history, and he

committed a serious crime. The District Court carefully

considered these concerns and the other factors under 18

U.S.C. § 3553(a) and determined that, despite the career

offender Guidelines range (that it erroneously found applied),

a 120 months’ sentence was sufficient but was the minimum

sentence sufficient. Where the District Court provides this

type of specificity, remand is not required.

In considering Calabretta’s sentence under the fourth

prong, we must remember that remand is a discretionary

action that we may take only after a full review of the

underlying facts. There is no basis for exercising our

discretion where evidence otherwise overwhelmingly

supports the trial court’s finding or is conclusive. United

States v. Vazquez, 271 F.3d 93, 106 (3d Cir. 2001). Although

a scant record cannot uphold a sentence based on an

erroneous Guidelines range, “[t]he record in a case may show

. . . that the district court thought the sentence it chose was

appropriate irrespective of the Guidelines range. Judges may

find that some cases merit a detailed explanation of the

reasons the selected sentence is appropriate.” Molina-

Martinez v. United States, 136 S. Ct. 1338, 1346 (2016). This

rule of analysis, penned by the Supreme Court in its recent

decision in Molina-Martinez, is based on evidence that

indicates the Guidelines are heavily relied upon by district

courts in arriving at a sentence—in most cases.

The Supreme Court observed that in a majority of

cases, absent a Government motion, district courts imposed

3

sentences within the adopted Guidelines range.2 This case is

an outlier. And, the record provides a clear picture of what the

District Court intended. Calabretta was subject to, based on

the incorrectly calculated Guidelines range, 188 to 235

months’ imprisonment. If § 4B1.2 had not applied,

Calabretta’s Guidelines range would have been 108 to 135

months’ imprisonment. Ultimately, Calabretta was sentenced

within the applicable Guidelines range that would have

applied without the career offender enhancement, receiving a

sentence of 120 months’ imprisonment. This sentence was

outside of the career offender Guidelines range by almost six

years and was not the product of a Government motion.

Calabretta’s sentence is thus in the minority of cases cited in

Molina-Martinez and upholding it would not garner ridicule

of this Court.

This is unlike a case our sister court grappled with

after Molina-Martinez. In United States v. Hudson, -- F.3d --,

2016 WL 2621093 (1st Cir. May 9, 2016), the First Circuit

found plain error where the defendant received a sentence that

was within an erroneously calculated Guidelines range,

despite the district court’s consideration of the defendant’s

“quite serious” conduct and extensive criminal history. Id. at

*6–7. The Hudson court made this finding, however, because

the career offender Guidelines range was the “anchoring

point” for the imposed sentence. Id. at *7. Here, the District

Court was aware of the career offender Guidelines range;

carefully reviewed Calabretta’s substantial underlying

conduct, criminal history, and the other statutory sentencing

factors; and found that 120 months’ incarceration—a sentence

substantially lower than the career offender Guidelines

range—was the “minimum sentence sufficient” to suit the 18

2

“In less than 20% of cases since 2007 . . . district

courts imposed above- or below-Guidelines sentences absent

a Government motion . . . [a] realit[y] that has led the Court

to observe that there is considerable empirical evidence

indicating that the Sentencing Guidelines have the intended

effect of influencing the sentences imposed by judges.” Id.

(internal quotation marks omitted).

4

U.S.C. § 3553(a) factors. J.A. 143. The career offender

Guidelines range was not the anchoring point here, the

District Court specifically chose to not apply it to the final

sentence.

The majority focuses on the District Court’s failure to

specifically state how Calabretta’s career offender

designation affected the final sentence, but the record reveals

that the District Court provided detailed reasons for how it

arrived at the final sentence and why it did not apply the

career offender Guidelines range.

Calabretta pleaded guilty to both a distribution offense

and a money laundering offense, a plea that allowed him to

escape a weightier sentence if the full import of his conduct in

the distribution scheme had been considered. At sentencing,

the District Court reviewed the underlying investigation

which resulted in the recovery of over $1 million from

Calabretta’s residence, which was a small part of the earnings

from the distribution scheme, and a log book that indicated

that Calabretta was involved in laundering drug money

through casinos. The District Court found it questionable that

Calabretta’s claimed income, which Calabretta said was

gambling income, was not a part of the drug distribution

scheme. Moreover, the District Court considered the need for

deterrence given the purely monetary motivation that drove

Calabretta’s conduct, noting that Calabretta and his co-

conspirators believed “that moving large amounts of

marijuana was a good way to make lots of money and the

record reflects that he did that.” J.A. 140.

As for Calabretta’s prior criminal conduct, the District

Court found especially alarming the fact that Calabretta had

“two dead people whose deaths are directly attributable to

[his], frankly, incredible conduct” of drag racing and road

rage. J.A. 141. The District Court also considered

Calabretta’s eluding offense, where he drove up an exit ramp

the wrong way, as well as other car thefts and burglaries that

Calabretta had committed, which were not predicate offenses

under § 4B1.2. Calabretta’s serious criminal history was

5

bolstered by the fact that he committed the drug distribution

offense only five years after he was released from jail on his

prior convictions.

The District Court did not focus on Calabretta’s career

offender status. To the contrary, it specifically determined not

to sentence him within the career offender range: “[T]he top

of [the Guidelines range] was 235 months. . . . If I sentence

you to the top of that [G]uidelines range, you’d be getting out

when you were an old man.” J.A. 143. The District Court

instead focused on the specific case at hand—Calabretta’s

significant criminal history and culpability in the underlying

offense. It found that it was “satisfied that a very substantial

sentence is required here in order to, first of all, deter others

who might be inclined to make millions of dollars quickly

and easily from doing it; secondly, to get through to

[Calabretta] that if [he] thought [he] had reformed, reforming

by becoming a drug dealer is not reforming.” J.A. 142. This

led the District Court to find that a sentence of 120 months’

imprisonment was the “minimum sentence sufficient”—a

sentence that was well below the career offender Guidelines

range.

The majority faults this dissent for its focus on the

District Court’s “minimum sentence sufficient” language. The

District Court’s “minimum sentence sufficient” statement,

however, followed the District Court’s admonition that it

would not sentence Calabretta within a Guidelines range that

would lead to his release when he was an old man. The

Guidelines range that the District Court chose not to apply, to

meet that goal, was the career offender Guidelines range. It is

therefore more than reasonable to focus on the “minimum

sentence sufficient” language because it followed the District

Court’s finding that it was not going to sentence Calabretta

within the career offender Guidelines range.

Based on the record before us, there is no plain error.

Affirming Calabretta’s sentence would not undermine the

integrity of this Court. The District Court provided a detailed

explanation of the imposed sentence, a sentence unconnected

6

from the Guidelines. The District Court weighed Calabretta’s

potential for recidivism, and we should not ignore that

consideration when conducting plain error review, especially

where the sentence is far removed from the career offender

Guidelines range. United States v. Davis, 602 F.3d 643, 652

(5th Cir. 2010) (considering the defendant’s continued

violations of the law in upholding his sentence even though

the district court had conducted an erroneous Guidelines

calculation at sentencing).3

The sentence imposed by the District Court fell within

the now-applicable Guidelines range. The majority argues

that the potential applicability of Amendment 782,4 which

would make Calabretta’s 120 months’ sentence fall outside of

the Guidelines range, should change the analysis in this case.

But it does not. Calabretta’s Guidelines range would be 87 to

108 months after applying Amendment 782. Calabretta would

be eligible to receive a sentence of 87 months’ imprisonment

if the District Court, through its discretion, found that

sentence to be appropriate. The majority asserts that because

of this amended Guidelines range, the District Court could

also decide to impose a sentence as low as 60 months, the

mandatory minimum sentence for Calabretta’s charged

conduct. We cannot predict what the District Court will do.

The majority is attempting to undertake such a prediction

while, at the same time, arguing that I am undergoing a

speculative analysis by relying on the District Court’s actual

words during sentencing. The majority cannot have it both

ways.

The large disparity between the prior applicable

Guidelines range and the sentence imposed, a variance

sentence without a Government motion, supports a finding

3

The Fifth Circuit upheld Davis’s consideration of

recidivism as a factor in denying a plain error claim after

Molina-Martinez in United States v. Martinez-Rodriguez, --

F.3d --, 2016 WL 2772272 *4–5 (5th Cir. May 12, 2016).

4

Calabretta’s non-career offender status will allow

him to seek a sentence that comports with Amendment 782

pursuant to 18 U.S.C. § 3582(c)(2).

7

under Molina-Martinez that the District Court gave a fair

sentence that was unaffected by the career offender

designation. Instead, the sentence was motivated by

Calabretta’s own conduct and was the “minimum sentence

sufficient” to deter such conduct in the future. Still, the

majority cites two of our opinions and a Tenth Circuit opinion

in support of its position that such a finding would be

“speculative.” These cases—United States v. Zabielski, 711

F.3d 381 (3d Cir. 2013), United States v. Tai, 750 F.3d 309

(3d Cir. 2014), and United States v. Madrid, 805 F.3d 1204

(2015)—actually support affirmance.

Zabielski was determined under a harmless error

analysis and is distinguishable from our analysis here, which

is more stringent. Even if generally applicable, we held that

“an error is more likely to be harmless when it is clear from

the record that the district court decided to vary from the

advisory Guidelines range.” Zabielski, 711 F.3d at 388. It is

clear from the sentencing record, for the reasons above, that

the District Court was not considering the career offender

Guidelines range. The majority’s assertion that affirming

would be based on “speculation” is unsubstantiated.

Tai is unhelpful to the majority for the same reasons.

We held in Tai that where the record fails to provide guidance

as to why a particular enhancement was provided, and the

proper fact finding regarding that enhancement is not

undertaken, this Court may find that the integrity of the

proceedings are affected. Tai, 750 F.3d at 319–20. Under

such circumstances, this Court cannot speculate as to what

facts were considered by the district court. Id. at 320. Again,

the record here provides guidance. The District Court

reviewed the underlying circumstances, disregarded the

career offender Guidelines range, and sentenced Calabretta

well below the erroneous range.

Finally, in Madrid, the Tenth Circuit applied Johnson

to Madrid, a defendant that had erroneously been found to be

a career offender. The court focused on Madrid’s sentence of

188 months, a sentence at the lowest end of the erroneous

8

career offender Guidelines range. The court found that the

fourth prong had been met because the “correct application of

the sentencing laws would likely significantly reduce the

length of the sentence” because the now-applicable

Guidelines range was 92-115 months. Madrid, 805 F.3d at

1212 (internal quotation marks omitted). The facts are

distinguishable here. Calabretta was subject to a sentence

within the lower, applicable Guidelines range and the District

Court chose to forego a career offender sentence, opting to

instead sentence Calabretta to 120 months, the “minimum

sentence sufficient.”

This Court should not fall into a trap of finding that

every sentence that applied § 4B1.2’s residual clause requires

a remand. I am not suggesting that the fourth prong will never

be met if Johnson is applied to others who were incorrectly

found to be career offenders. But the sentence that Calabretta

received is neither unfair nor will it undermine confidence in

the judiciary. Consequently, I cannot assent to the majority

finding otherwise.

II.

Given the record before us, I believe the majority fails

to adhere to this Court’s duty to narrowly apply the plain

error rule, especially once it reaches the fourth prong. We

must be forward thinking and look not only at the underlying

proceeding but also to how future judicial proceedings will be

affected by our plain error analysis in each case. United States

v. Escalante-Reyes, 689 F.3d 415, 457 n.22 (5th Cir. 2012)

(Smith, J., dissenting). The majority’s conclusion that the

fourth prong has been met in this case will affect future

9

judicial proceedings by broadening the application of plain

error review. Review which has already been eroding.5

This prong must be applied vigorously even where an

error is found because of an intervening Supreme Court

decision. United States v. Gonzalez-Huerta, 403 F.3d 727,

737 (10th Cir. 2005) (discussing the applicability of Johnson

v. United States, 520 U.S. 461, 470 (1997)). Consequently, it

is important to carefully consider the fourth prong because

“[r]eversal for error, regardless of its effect on the judgment,

encourages litigants to abuse the judicial process and bestirs

the public to ridicule it.” Johnson, 520 U.S. at 470 (citation

omitted).

5

Several of this Court’s cases have resulted in remand

based on a finding of plain error. A sampling of these cases is

set forth below. In these cases, we either (1) did not include a

fourth prong analysis, or (2) included only a sentence or less

of analysis under the fourth prong. This is why it is important

that this dissent focus on the fourth prong and that a finding

of plain error should be a rarity. Those cases are cited here:

United States v. Angell, 588 F. App’x 161 (3d Cir.

2014); United States v. Stinson, 734 F.3d 180 (3d Cir. 2013);

United States v. Butler, 531 F. App’x 241 (3d Cir. 2013);

United States v. Hill, 468 F. App’x 133 (3d Cir. 2012); United

States v. Rose, 365 F. App’x 384 (3d Cir. 2010); United

States v. Guinto, 345 F. App’x 831 (3d Cir. 2009); United

States v. Polk, 577 F.3d 515 (3d Cir. 2009); United States v.

Berry, 553 F.3d 273, 286 (3d Cir. 2009); United States v.

Langford, 516 F.3d 205 (3d Cir. 2008); United States v.

Voelker, 489 F.3d 139 (3d Cir. 2007); United States v. Wood,

486 F.3d 781 (3d Cir. 2007); United States v. Grier, 475 F.3d

556 (3d Cir. 2007); United States v. Dickerson, 381 F.3d 251

(3d Cir. 2004); United States v. Broskoski, 66 F. App’x 317

(3d Cir. 2003); United States v. Syme, 276 F.3d 131 (3d Cir.

2002); United States v. Latimer, 54 F. App’x 105 (3d Cir.

2002); United States v. Knight, 266 F.3d 203 (3d Cir. 2001);

United States v. Pollen, 978 F.2d 78 (3d Cir. 1992); United

States v. Evans, 155 F.3d 245 (3d Cir. 1998).

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This public ridicule and encouragement of abuse of

process is precisely what we must be aware of in ordering

remand in this case. Even if Calabretta’s substantial rights

were affected, this “cannot, ‘without more,’ satisfy the fourth

prong of the plain-error analysis, . . . and the Supreme Court

has instructed that we are authorized ‘to correct only

particularly egregious errors’ on plain-error review.” United

States v. Corso, 549 F.3d 921, 931 (3d Cir. 2008) (quoting

United States v. Young, 470 U.S. 1, 15 (1985) (internal

citation omitted)).

In sentencing matters, this means that we must

consider the effect that a too low or too high sentence may

have. For instance, a sentence that is too-low will deny the

public of its entitlement to a sufficient sentence, but one that

is too-high will deny a defendant a certain amount of

freedom. United States v. Williams, 399 F.3d 450, 456 (2d

Cir. 2005). Here, the District Court specifically stated that

imprisonment of 120 months was the “minimum sentence

sufficient” based on Calabretta’s criminal history and his

underlying conduct while discounting the career offender

Guidelines range. Calabretta received leniency at the

sentencing phase, a leniency that he likely did not deserve,

but the District Court made clear this was the only break that

Calabretta was entitled to.

It is hard to determine what record, if not the one here,

would not meet the majority’s standard for plain error. A

district court will now be required to specifically say, no

matter what happens in the future, the sentence imposed is the

only sentence it would give within its discretion. I do not

believe that we should implement this rule. We must be

especially cognizant of this consideration and ensure that

plain error is found only in “exceptional circumstances [for]

particularly egregious errors,” is “used sparingly,” and is not

collapsed into a harmless error analysis. Escalante-Reyes, 689

F.3d at 433, 435. When applying the specific facts in this

case, I believe that the majority has lost sight of the stringent

test we must apply.

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III.

I dissent in order to caution this Court to review how

the facts in this case will impermissibly broaden the doctrine

of plain error review. The District Court’s reasoned analysis

at sentencing, and careful consideration of the correct

sentence for a weighty drug dealer, requires Calabretta’s

sentence of 120 months’ imprisonment to stand, and remand,

accordingly, should not be granted.

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