United States v. Cristofer Tichenor

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2433

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

C RISTOFER T ICHENOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:09-cr-00171—Sarah Evans Barker, Judge.

A RGUED A PRIL 9, 2012—D ECIDED JUNE 13, 2012

Before F LAUM and H AMILTON, Circuit Judges, and

F EINERMAN, District Judge.Œ

F LAUM, Circuit Judge. Cristofer Tichenor pleaded guilty

to armed robbery and discharging a firearm in connec-

tion with robbing a bank. Pursuant to his plea agreement,

he retained the right to appeal certain issues, including

Œ

The Honorable Gary S. Feinerman, District Judge for the

United States District Court for the Northern District of

Illinois, sitting by designation.

2 No. 11-2433

the applicability of the career offender sentencing guide-

line at United States Sentencing Guideline (“U.S.S.G.”)

§ 4B1.1. Although Tichenor’s counsel initially raised

an objection to the application of the career offender

guideline, he withdrew this objection at the sentencing

hearing. The district court applied the career offender

enhancement, based on Tichenor’s prior convictions

for dealing hash oil and resisting law enforcement,

and sentenced him to 300 months’ imprisonment.

Tichenor appeals his sentence by arguing that the

career offender sentencing guideline is unconstitu-

tionally vague and that the U.S. Sentencing Commission

exceeded its authority in enacting the current defini-

tion of “crime of violence,” found at U.S.S.G. § 4B1.2(a).

Although Tichenor likely waived these claims by with-

drawing his objection to the application of the career

offender guideline at sentencing, we proceed to address

his claims because the government has waived the

waiver argument. In accordance with our prior holdings

on these issues, we conclude that the Sentencing Guide-

lines (“Guidelines”) are not susceptible to vagueness

challenges and that the Sentencing Commission did not

exceed its authority by promulgating the “crime of vio-

lence” definition. We therefore affirm the judgment of

the district court.

I. Background

A. Factual Background

On the morning of February 18, 2009, a masked man,

later identified as Cristofer Tichenor, robbed the Com-

No. 11-2433 3

munity Bank in Cicero, Indiana. He fired a gunshot into

the ceiling and demanded that the bank tellers and the

manager give him the “50’s and 100’s” out of the safe.

He pointed a gun at them as he shouted these com-

mands. He escaped with $52,900 in a small, silver car.

A nearby deputy in an unmarked car was notified about

the robbery and attempted to follow the robber. The

deputy saw the silver car, which appeared to be vacant.

He guessed that the robber had switched cars into a car

that had just traveled past him. The deputy pursued

the “switch” car. After a car chase, the passenger, who

matched the description of the bank robber, fled on foot.

The deputy apprehended the driver and radioed for

assistance.

Other officers arrived and established a perimeter to

cut off escape routes. A bloodhound began to track the

passenger and eventually led them to a home, where a

resident reported hearing noises in her attic. The officers

found and arrested Tichenor in the attic. Along the

trail leading to the home, the officers discovered a black

glove, a black ski mask, clothing, and a buried trash bag

containing $52,900. Among the bills were “bait bills”

with prerecorded serial numbers that indicated they

were from the Community Bank. DNA testing of the

glove and the shoe prints also tied Tichenor to the scene.

B. Procedural Background

Tichenor was indicted for one count of bank robbery

under 18 U.S.C. § 2113(a) and (d) (Count One), and one

4 No. 11-2433

count of discharging a firearm during and in relation to

a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii)

(Count Two). He entered into a plea agreement on Decem-

ber 4, 2010, and he entered his guilty plea before the

district court two days later. Pursuant to the plea agree-

ment, Tichenor retained the right to appeal certain

issues, including the applicability of the career offender

guideline at U.S.S.G. § 4B1.1.

The U.S. Probation Office recommended the ap-

plication of U.S.S.G. § 4B1.1 based on Tichenor’s prior

Indiana convictions for felony resisting law enforcement

(in 2002) and dealing in hash oil. Tichenor objected to

the application of the career offender guideline, con-

tending that resisting law enforcement should not be

considered a crime of violence.1

The district court sentenced Tichenor on June 17, 2011

to 300 months’ imprisonment (180 months for Count One

and the mandatory minimum of 120 months for Count

Two). The court calculated an offense level of 26 for

Count One, with a criminal history category of V. This

yielded a recommended imprisonment term of 110 to

137 months under the Guidelines for Count One.

At the sentencing hearing, Tichenor withdrew his

objection to the application of the career offender guide-

line, in light of Sykes v. United States, 131 S. Ct. 2267 (2011),

which affirmed United States v. Sykes, 598 F.3d 334 (7th

1

Tichenor did not object to the classification of his hash

oil dealing as a controlled substance offense under U.S.S.G.

§ 4B1.1.

No. 11-2433 5

Cir. 2010), and held that Indiana’s resisting law enforce-

ment by vehicular flight felony is a violent felony for

purposes of 18 U.S.C. § 924(e)(2)(B)(ii). Thus, the district

court applied the career offender guideline without

objection. The enhancement yielded an offense level of

32 for Count One and a criminal history category

of VI with a Guidelines imprisonment term of 210 to

262 months. See U.S.S.G. § 4B1.1(b). The government

requested 240 months for Count One, incorporating a

reduction for acceptance of responsibility.

Tichenor argued for a downward variance,

claiming that the career offender guideline overstated

the seriousness of his criminal history. He pointed to

the compounding effect of the consecutive, mandatory

minimum sentence for Count Two and the fact that the

predicate offenses for the career offender status were

“relatively insubstantial.” Judge Barker agreed and de-

parted downward from the career offender guideline’s

recommendation:

I do think that there is an unfair compounding effect

of the career offender status and the consecutive . . .

gun offense, the second count to which you’ve been

found guilty, that requires ten years consecutive.

When you consider the career offender status and

that add-on of ten years, it does catapult the sen-

tencing options into a range that is probably, and I so

find, greater than necessary to accomplish the other

goals of 3553(a) . . . .

. . . I will vary that sentence because of the unfair

compounding effect of simply adding that penalty to

6 No. 11-2433

the Count 2 mandatory consecutive penalty, and

reduce the guideline range from 210 months to 262

months, which is the starting point, down to

180 months to offset the unfair effects of the com-

pounding . . . .

I also am willing to do that because I think that the

career offender designation, while proper under law

and under the guidelines, is premised on a series of

less significant offenses. . . . [T]he underlying

predicate offenses, serious as they are, are not the

sorts of criminal conduct that ordinarily result in a . . .

career offender status.

By sentencing Tichenor to 180 months on Count One, the

court departed downward substantially from the recom-

mended range with the career offender enhancement,

though the sentence was still substantially above the

range without the enhancement. The district court

also imposed the mandatory, consecutive sentence of

120 months on Count Two.

At the close of sentencing, defense counsel confirmed

that neither he nor his client had any legal objections to

the sentence. After the district court reminded defense

counsel that he needed to preserve any issues that he

planned to raise on appeal, he responded that Tichenor

was preserving a motion to suppress and a motion to

dismiss.

II. Discussion

Tichenor’s primary challenge to his sentence is that

the career offender sentencing guideline is unconstitu-

No. 11-2433 7

tionally vague. We review legal questions, including

constitutional challenges to sentences, de novo. United

States v. Figueroa-Espana, 511 F.3d 696, 705 (7th Cir. 2007).

Similarly, we review a district court’s legal interpreta-

tion of a Guidelines enhancement de novo, although

we review any factual findings only for clear error. United

States v. Miller, 601 F.3d 734, 737 (7th Cir. 2010). Where,

however, the defendant fails to properly raise his sen-

tencing objection to the district court, we review only

for plain error. See United States v. Perez, 581 F.3d

539, 546 (7th Cir. 2009). Under plain error review, the

defendant must establish “(1) an error or defect (2) that

is clear or obvious (3) affecting the defendant’s substan-

tial rights (4) and seriously impugning the fairness,

integrity, or public reputation of judicial proceedings.”

United States v. Perez, 673 F.3d 667, 669 (7th Cir. 2012)

(quoting United States v. Anderson, 604 F.3d 997, 1002

(7th Cir. 2010)).

A. Whether Tichenor Waived His Objections to the

Application of the Career Offender Guideline

Pursuant to Tichenor’s plea agreement, Tichenor re-

tained the right to: (1) “object and appeal the applicability

of the career offender guideline”; (2) appeal the denial

of his motion to dismiss; (3) appeal the denial of his

motion to suppress; and (4) file a claim of ineffective

assistance of counsel. Prior to the sentencing hearing,

Tichenor filed an objection to the application of the

career offender guideline on the ground that resisting

law enforcement should not be considered a crime of

violence.

8 No. 11-2433

During the sentencing hearing, defense counsel ob-

jected to an enhancement based on Tichenor’s supervisory

role in the offense but noted that it no longer affected

the ultimate calculation: “Given the recent ruling from

the Supreme Court in Sykes versus United States,

holding that Mr. Tichenor’s prior conviction for fleeing

from police, felony resisting is a violent felony, and there-

fore a crime of violence under the guidelines, the career

offender guideline trumps the otherwise applicable

guidelines calculation.” With regard to the career

offender enhancement, defense counsel stated, “Our

second objection is one at this point that we would with-

draw in light of the . . . recent Supreme Court ruling, Your

Honor.” Later, when referencing Tichenor’s prior con-

victions, defense counsel stated that “both of [them] are,

in fact, career offender predicates, we don’t dispute that.”

The district court agreed, stating: “I agree with your

legal analysis that while this guideline issue is trumped

by the career offender designation and that . . . the Sykes

holding permits and perhaps requires the Court to con-

sider the . . . conviction that the defendant has that

makes him eligible for career offender to apply here, it

may moot the other objections.” The court nevertheless

proceeded to resolve the first objection on the merits,

concluding that the enhancement was appropriate due

to Tichenor’s leadership role and his involvement of a

minor (as the driver). Turning to the objection regarding

whether resisting law enforcement qualifies as a “crime

of violence,” Judge Barker stated: “I will allow the defen-

dant to withdraw, as he properly must, his objection

based on Sykes versus United States since that decision

No. 11-2433 9

was handed down about a week ago, that undermines

the legal rationale for that objection. So Objection No. 2

is withdrawn.”

The Supreme Court has distinguished forfeiture as

“the failure to make the timely assertion of a right” and

waiver as “the intentional relinquishment or abandon-

ment of a known right.” United States v. Olano, 507 U.S.

725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)) (internal quotation marks omitted). We have

repeatedly recognized that “the withdrawal of an objec-

tion generally results in a waiver of that argument on

appeal.” United States v. Venturella, 585 F.3d 1013, 1019

(7th Cir. 2009); see also United States v. Kincaid, 571

F.3d 648, 654 (7th Cir. 2009) (“[W]e have held that a

defendant waived his right to challenge a sentencing

calculation by initially objecting to the calculation, but

later withdrawing the objection.” (citation omitted)).

In Venturella, we determined that the defendant’s with-

drawal of a sentencing objection resulted in waiver, not

merely forfeiture. 585 F.3d at 1019. In United States v.

Knox, we reached the same conclusion, reasoning that

the clear statements from defense counsel and the dis-

trict court indicated that the withdrawal of the objec-

tion was a “knowing waiver.” 624 F.3d 865, 875 (7th Cir.

2010); see also Kincaid, 571 F.3d at 655-56. When an issue

is waived, we cannot review it at all “because a valid

waiver leaves no error for us to correct on appeal.” United

States v. Harris, 230 F.3d 1054, 1058-59 (7th Cir. 2000).

There are two ways to construe Tichenor’s with-

drawal of his objection at the sentencing hearing. His

10 No. 11-2433

withdrawal could be viewed broadly: Tichenor

knowingly withdrew all objections to the application of

the career offender enhancement and thus waived his

right to appeal his designation as a career offender on

any ground. Alternatively, his withdrawal could be

viewed narrowly: Tichenor knowingly withdrew only

the argument that resisting arrest does not qualify as

a crime of violence and thus only waived his right to

appeal his sentence on this ground. The generalized

terms that Tichenor’s counsel used favor the broad in-

terpretation, but the fact that the withdrawal was

prompted by Sykes—which spoke only to the narrow

issue—favors the narrow interpretation. The government

actually construes Tichenor’s withdrawal narrowly and

urges us to view his claims as forfeited, rather than

waived. We therefore need not decide on the appro-

priate construction because, even if Tichenor had

waived all grounds for challenging the application of the

career offender guideline, the government has waived

the waiver argument. Thus, we proceed by viewing

Tichenor’s two claims as forfeited due to his failure to

raise these specific claims to the district court. See United

States v. Thornton, 642 F.3d 599, 605 (7th Cir. 2011).

We review these claims only for plain error. See id.

B. Whether the Career Offender Sentencing Guideline

Is Unconstitutionally Vague

Tichenor’s first argument on appeal is that he should

not have been sentenced as a career offender because

the career offender sentencing guideline is unconstitu-

No. 11-2433 11

tionally vague due to its definition of “crime of violence.”

Due process concerns dictate that a law is “void for

vagueness if its prohibitions are not clearly defined.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “It is

settled that, as a matter of due process, a criminal

statute that fails to give a person of ordinary intelligence

fair notice that his contemplated conduct is forbid-

den by the statute, or is so indefinite that it encourages

arbitrary and erratic arrests and convictions is void

for vagueness.” Colautti v. Franklin, 439 U.S. 379, 390

(1979) (internal quotation marks and citations omitted).

Tichenor’s vagueness challenge, however, is not directed

at a criminal statute but at a sentencing guideline.

This distinction is crucial as we have categorically held

that “the Guidelines are not susceptible to attack under

the vagueness doctrine.” United States v. Brierton, 165

F.3d 1133, 1139 (7th Cir. 1999).

Our conclusion that the Guidelines cannot be uncon-

stitutionally vague is rooted in our understanding of the

vagueness doctrine. In United States v. Brierton, we inter-

preted the vagueness doctrine as holding that “a person

cannot be held liable for conduct he could not reasonably

have been expected to know was a violation of law,”

165 F.3d at 1138, and as “presum[ing] a law that attempts

to proscribe or prescribe conduct,” id. at 1139. In holding

that the Guidelines cannot be challenged for vagueness,

we reasoned:

The Guidelines do not establish the illegality of

any conduct. Rather, they are “directives to judges for

their guidance in sentencing convicted criminals, not

12 No. 11-2433

to citizens at large.” United States v. Wivell, 893 F.2d

156, 160 (8th Cir. 1990). In other words, the Guide-

lines are designed to assist and limit the discretion

of the sentencing judge. United States v. Macias, 930

F.2d 567, 571-72 (7th Cir. 1991). It is settled that, with

the exception of capital cases, a defendant has no

constitutional right to such directives. Lockett v.

Ohio, 438 U.S. 586, 603, 98 S. Ct. 2954, 57 L.Ed.2d 973

(1978) . . . . As such, the Guidelines are not

susceptible to attack under the vagueness doctrine.

Since there is no constitutional right to sentencing

pursuant to the Guidelines, the discretionary limita-

tions the Guidelines place on the sentencing judge

do not violate a defendant’s right to due process by

reason of vagueness. Wivell, 893 F.2d at 159-60.

Id. at 1139. We recently reaffirmed this holding in United

States v. Idowu, 520 F.3d 790 (7th Cir. 2008). In Idowu, we

rejected the defendant’s claim that the “clearly improba-

ble” standard set forth in U.S.S.G. § 2D1.1’s applica-

tion note was unconstitutionally vague. Id. at 795. We

quoted our reasoning from Brierton and concluded

that “the vagueness doctrine does not apply to the Guide-

lines.” Id. at 795-96. We also mentioned that, even if

the vagueness doctrine did apply to the Guidelines, this

particular vagueness challenge could not prevail because

the standard at issue is sufficiently clear. See id. at 796.

Our conclusion in Brierton (and later in Idowu) is bol-

stered by the Supreme Court’s watershed holding

in United States v. Booker, 543 U.S. 220 (2005), that the

Guidelines are only advisory. We have recognized that

No. 11-2433 13

Booker demoted the Guidelines from “rules to advice.”

United States v. Roche, 415 F.3d 614, 619 (7th Cir. 2005); see

also United States v. Bullion, 466 F.3d 574, 575 (7th Cir.

2006) (“The standard of reasonableness, introduced by

the Booker decision, confers broad sentencing discretion.

The judge must consider the guidelines but is in no

sense bound by them.”). The Supreme Court has made

clear that “[a]ny expectation subject to due process pro-

tection . . . that a criminal defendant would receive

a sentence within the presumptively applicable guide-

line range did not survive” the Booker decision. Irizarry

v. United States, 553 U.S. 708, 713-14 (2008). The

Court has further stated that “[n]ow faced with

advisory Guidelines, neither the Government nor the

defendant may place the same degree of reliance on

the type of ‘expectancy’ that gave rise to a special need

for notice in Burns [v. United States, 501 U.S. 129 (1991)].”

Id. The vagueness doctrine is concerned with providing

fair notice and preventing arbitrary enforcement. Since

the Guidelines are merely advisory, defendants cannot

rely on them to communicate the sentence that the

district court will impose.2 Defendants’ inability to look

to the Guidelines for notice underscores why, in addi-

tion to our reasoning in Brierton and Idowu, they cannot

bring vagueness challenges against the Guidelines.

Tichenor urges us to overrule Brierton and Idowu on the

ground that they did not mention or distinguish United

2

Indeed, in the present case, the district court exercised its post-

Booker discretion by departing downward substantially from

the range recommended by the Guidelines.

14 No. 11-2433

States v. Batchelder, 442 U.S. 114, 123 (1979), a Supreme

Court case addressing whether the overlapping nature

of two sentencing statutes rendered both unconstitu-

tionally vague. The Court held that as long as the

criminal provisions clearly defined the conduct

prohibited and the punishment authorized, due process

was satisfied. Id. Of relevance to the present case, the

Court mentioned that “vague sentencing provisions

may pos[e] constitutional questions if they do not state

with sufficient clarity the consequences of violating

a given criminal statute.” Id. Batchelder, which was

decided two decades before our decision in Brierton,

does not conflict with Brierton or Idowu. The isolated

comment from Batchelder is mere dictum, addressing

circumstances that were not before the Court. See United

States v. Banda-Zamora, 178 F.3d 728, 729 (5th Cir. 1999).

Moreover, the government correctly asserts that

Batchelder involved sentencing statutes, rather than the

Guidelines, and thus we had no need to confront

Batchelder in Brierton or Idowu. Tichenor rejects this ex-

planation, arguing that Batchelder did not refer to the

Guidelines only because they were not in place at that

time. Tichenor’s argument fails to recognize that even

though the Guidelines were not in place when the

Supreme Court decided Batchelder, the Guidelines were

in place when we decided Brierton. Further, given

Booker’s transformation of the Guidelines from rules to

advice, it is doubtful that any significance can presently

be attached to the Batchelder dictum. Tichenor never-

theless attempts to blur the statute—Guideline distinc-

tion by arguing that “the Guidelines are followed as if

No. 11-2433 15

they were statutes,” citing to United States v. Demaree, 459

F.3d 791 (7th Cir. 2006). But all we observed in Demaree

was that advisory guidelines remain likely to influence

sentencing decisions. See id. at 794. The sentencing

judge’s authority to exercise discretion distinguishes

the Guidelines from criminal statutes in a significant

and undeniable manner.

Tichenor does not present any other compelling reasons

to overrule Brierton and Idowu. Overruling precedent

generally requires articulable reasons, such as

precedents that have become unworkable in practice

or that are based on unsound principles. See Sykes, 598

F.3d at 338 (citing Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 546 (1985)). Our determination that

the Guidelines are not susceptible to vagueness chal-

lenges has only been bolstered as a result of Booker.3

3

Although we are not persuaded to revisit the position we

announced in Brierton and reaffirmed in Idowu, we recognize

that there is some disagreement as to whether the Guidelines

can be challenged on vagueness grounds. See United States v.

Bennett, 329 F.3d 769, 777 n.6 (10th Cir. 2003) (recognizing the

circuit conflict). Our position is in accord with the Fifth, Sixth,

and Eighth Circuits, which have all concluded that the Guide-

lines are not susceptible to vagueness challenges. See United

States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States

v. Smith, 73 F.3d 1414, 1417-18 (6th Cir. 1996); United States v.

Wivell, 893 F.2d 156, 159-60 (8th Cir. 1990). Wivell contains the

most extensive reasoning, beginning with the observation

that the Guidelines serve only as directives to guide judges in

(continued...)

16 No. 11-2433

As an alternative to overruling Brierton and Idowu,

Tichenor urges us to distinguish them on the ground

that the career offender guideline is unlike the provi-

sions considered in those cases. This contention must

fail because our holdings in Brierton and Idowu did not

rest on the specific provisions at issue. Brierton con-

tained no analysis of the specific provision, see 165 F.3d

at 1139, and Idowu only considered the specific provision

3

(...continued)

sentencing and do not define illegal conduct. See 893 F.2d at 160.

The Eighth Circuit noted that the Constitution does not

require sentencing guidelines and then held: “Because there is

no constitutional right to sentencing guidelines—or, more

generally, to a less discretionary application of sentences than

that permitted prior to the Guidelines—the limitations the

Guidelines place on a judge’s discretion cannot violate a de-

fendant’s right to due process by reason of being vague.” Id. The

Ninth Circuit is the only circuit to definitively hold that the

Guidelines are susceptible to vagueness challenges (out of

deference to Batchelder), see United States v. Johnson, 130 F.3d

1352, 1354 (9th Cir. 1997), though the Third Circuit has assumed

the same without directly addressing the issue, see United

States v. Maurer, 639 F.3d 72, 77-78 (3d Cir. 2011). The Second

and Tenth Circuits have declined to take a position. See

United States v. Johnson, 221 F.3d 83, 99 (2d Cir. 2000); United

States v. Negri, 173 F.3d 865 (10th Cir. 1999) (unpublished table

decision) (expressing “serious doubt” that vagueness chal-

lenges can be brought). Even when circuit courts have

discussed the merits, they have universally concluded that the

guideline at issue was not unconstitutionally vague. See, e.g.,

Maurer, 639 F.3d at 78; Johnson, 130 F.3d at 1354.

No. 11-2433 17

after unambiguously concluding that the Guidelines

are not susceptible to vagueness challenges, see 520 F.3d

at 795-96. Moreover, Tichenor does not explain what

makes the career offender guideline “more problematic”

than the guidelines challenged in our prior cases.

Although we find no reason to depart from Brierton

and Idowu, we note that Tichenor’s vagueness objection

would fare no better if we were to reach the merits. The

defendant has the burden of establishing that the law

is vague as applied to the facts of his case, rather than a

hypothetical situation. See United States v. Calimlim, 538

F.3d 706, 710-11 (7th Cir. 2008) (citing Chapman v. United

States, 500 U.S. 453, 467 (1991)); Brierton, 165 F.3d at 1139.

Generally, this inquiry requires us to determine whether

the defendant was on notice that his conduct was ille-

gal. Here, we must adjust this inquiry to fit the Guidelines

by asking whether, at the time of the armed robbery,

Tichenor was on notice that his prior conviction for

resisting law enforcement qualifies as a “crime of vio-

lence.”

Section 4B1.1(a) of the Guidelines provides that a de-

fendant qualifies as a career offender if: (1) he was at

least 18 when he committed the instant offense; (2) the

instant offense is a felony that is either a “crime of violence

or a controlled substance offense”; and (3) he has at

least two prior felony convictions for either “a crime of

violence or a controlled substance offense.” U.S.S.G.

§ 4B1.1(a). Section 4B1.2(a) defines “crime of violence” as:

[A]ny offense under federal or state law, punishable

by imprisonment for a term exceeding one year, that—

18 No. 11-2433

(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 the use of explosives, or otherwise in-

volves conduct that presents a serious potential

risk of physical injury to another.

U.S.S.G. § 4B1.2(a). Tichenor contends that resisting law

enforcement could only be construed as a “crime of

violence” under the residual clause of § 4B1.2(a)(2). For

several reasons, Tichenor has failed to establish that

this clause was vague as applied to him.

First, the criminal statutes were clear at the time of the

bank robbery that Tichenor faced up to 25 years’ impris-

onment for the robbery, pursuant to 18 U.S.C. § 2113(d),

and 10 additional years for discharging of a firearm

during a crime of violence, pursuant to 18 U.S.C.

§ 924(c)(1)(A)(iii). These statutes provide notice of the

illegality of Tichenor’s conduct and the consequences

that he could face.

Second, the law was sufficiently clear at the time of the

armed robbery (in 2009) that a conviction for felony re-

sisting law enforcement qualifies as “crime of violence.”

We had ruled in United States v. Spells that the Indiana

felony for resisting law enforcement by vehicular flight

qualifies as a “crime of violence” and a “violent fel-

ony.” 537 F.3d 743, 752-54 (7th Cir. 2008). It is of no conse-

quence that appellate courts had reached differing con-

clusions, see Sykes, 131 S. Ct. at 2272 (listing cases), because

this circuit’s position, which was binding on Tichenor,

provided him with notice that conduct similar to

No. 11-2433 19

his resisting law enforcement qualifies as a crime of

violence. Regardless of any uncertainty as to the

scope of the residual clause in other contexts and which

methodology to apply, Tichenor’s prior offense had

been clearly identified as qualifying as a crime of

violence in this circuit at the time of the armed robbery.

Third, Tichenor admits that his decision to enter into

a plea bargain was based in part on his view of how the

career offender guideline “should be interpreted.” But

the vagueness doctrine is concerned only with whether

the defendant had notice of what the law is, not what

the law should be or might one day become.

Finally, we are reviewing only for plain error because

Tichenor did not raise a vagueness objection to the

district court. We have held that the Guidelines are not

susceptible to vagueness challenges, and we held (in

2008) that vehicular flight qualifies as a crime of violence.

We are confident that no error has occurred, let alone

an error that is “clear or obvious.” Perez, 673 F.3d at 669.

We once again hold that the Guidelines, as a matter

of law, are not susceptible to vagueness challenges. The

sound reasoning set forth in Brierton, which we affirmed

in Idowu, has only been strengthened by the shift of

the Guidelines to advisory status.

C. Whether the Sentencing Commission Exceeded its

Authority in Promulgating the Current Definition

of “Crime of Violence”

Tichenor’s other claim on appeal is that the Sentencing

Commission exceeded its authority when it defined “crime

20 No. 11-2433

of violence” in U.S.S.G. § 4B1.2(a) differently from the

definition supplied by Congress. Like his vagueness

challenge, Tichenor raises this challenge for the first

time on appeal, and the government argues for for-

feiture rather than waiver.

Congress has instructed the Sentencing Commission to

promulgate “guidelines, as described in this section,”

which define “the appropriate . . . term of imprisonment.”

28 U.S.C. § 994(a)(1)(B). The Commission must establish

categories of offenses, taking into account “the nature and

degree of harm caused by the offense,” “the community

view of the gravity of the offense,” and “the deterrent

effect a particular sentence may have on the commission

of the offense by others.” Id. § 994(c). In the Sentencing

Reform Act of 1984, Congress directed the Sentencing

Commission to specify a substantial term of imprison-

ment for career offenders. See id. § 994(h). Congress

provided in 18 U.S.C. § 16 a definition of “crime of vio-

lence” for the Commission to use.4 See Leocal v. Ashcroft,

543 U.S. 1, 6 (2004). The initial version of the career of-

fender guideline did incorporate this definition, see

U.S.S.G. § 4B1.2 (1987); however, the current version

contains a definition of “crime of violence” derived from

4

Section 16 defines “crime of violence” as “(a) an offense that

has as an element the use, attempted use, or threatened use of

physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature,

involves a substantial risk that physical force against the

person or property of another may be used in the course of

committing the offense.” 18 U.S.C. § 16.

No. 11-2433 21

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B).

This change was apparently made to improve the defini-

tion’s clarity. See U.S.S.G. App. C, amend. 268 (Nov. 1,

1989).

We have expressly held that the Sentencing Commis-

sion had the authority to adopt the current definition

of “crime of violence” at U.S.S.G. § 4B1.2. See United

States v. Rutherford, 54 F.3d 370, 374 n.11 (7th Cir. 1995),

abrogated on other grounds by Begay v. United States, 553

U.S. 137 (2008). In Rutherford, we recognized that even

if the Sentencing Commission adopted a broader

definition than Congress envisioned, the Commission

clearly has the authority to consider the relevant

criminal history of offenders and is directed by 28 U.S.C.

§ 994(i) to ensure that the Guidelines specify a sentence

for a substantial term of imprisonment for defendants

with a history of two or more felony convictions. Id. We

also noted that the legislative history of the Sentencing

Reform Act states that 28 U.S.C. § 994(h), the statute

directing the Sentencing Commission to create the

career offender guideline, is “not necessarily intended to

be an exhaustive list of the types of cases in which the

guidelines should specify a substantial term of impris-

onment, nor of types of cases in which terms at or close

to authorized maxima should be specified.” Id. (citing

S. Rep. No. 98-225, 98th Cong., 2d Sess. 176 (1983), reprinted

in 1984 U.S.C.C.A.N. 3182, 3359). We have recently reaf-

firmed that Congress gave the Sentencing Commission

very broad discretion in drafting the Guidelines. See

United States v. Knox, 573 F.3d 441, 446-50 (7th Cir.

2009) (confirming the Commission’s authority to go

22 No. 11-2433

beyond specifically enumerated drug offenses within

28 U.S.C. § 994(h) in its determination of which

controlled substance offenses qualify for career offender

treatment under U.S.S.G. § 4B1.1).

Tichenor’s sole argument against applying our clear

precedent is that Rutherford did not mention that

Congress had specified the definition to be used in 18

U.S.C. § 16. He contends that, even if the Sentencing

Commission had the authority to determine that other

prior offenses qualify, the benchmark for that determina-

tion should be the definition provided by Congress.

Tichenor does not provide any legal support for this

view, nor does he explain how the current definition

has departed from the “benchmark” provided by Con-

gress. Tichenor has failed to prove that a plain error has

occurred, and we hold that the Sentencing Commis-

sion acted within its authority when defining “crime of

violence” in U.S.S.G. § 4B1.2(a).

III. Conclusion

For the foregoing reasons, we A FFIRM the judgment of

the district court.

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