No. 13-1731 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. DARRYL ROLLINS, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin Case No. 10-CR-186 The Honorable Judge Rudolph T. Randa PETITION FOR PANEL REHEARING AND REHEARING EN BANC FEDERAL PUBLIC DEFENDER THOMAS W. PATTON CENTRAL DISTRICT OF ILLINOIS Federal Public Defender 300 West Main Street Urbana, Illinois 61801 PETER W. HENDERSON Telephone: (217) 373-0666 Assistant Federal Public Defender Fax: (217) 373-0667 Email: [email protected]Attorneys for Defendant-Appellant, DARRYL ROLLINS Case: 13-1731 Document: 48 Filed: 09/15/2015 Pages: 23
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No. 13-1731
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. DARRYL ROLLINS, Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Wisconsin
Case No. 10-CR-186 The Honorable Judge Rudolph T. Randa
PETITION FOR PANEL REHEARING AND REHEARING EN BANC FEDERAL PUBLIC DEFENDER THOMAS W. PATTON CENTRAL DISTRICT OF ILLINOIS Federal Public Defender 300 West Main Street Urbana, Illinois 61801 PETER W. HENDERSON Telephone: (217) 373-0666 Assistant Federal Public Defender Fax: (217) 373-0667 Email: [email protected] Attorneys for Defendant-Appellant, DARRYL ROLLINS
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Appellate Court No: 13-1731 Short Caption: United States v. Rollins To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement stating the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
☐PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you
must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Darryl W. Rollins (2) The names of all law firms whose partners or associates have appeared for the party in the case
(including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Peter W. Henderson, Thomas W. Patton, Jonathan E. Hawley, and Johanna M. Christiansen of the Federal Public Defender for the Central District of Illinois; Douglas M. Bihler, Bihler & Kuehl SC, Greenfield, WI; and Mark S. Rosen, Rosen & Holzman Ltd., Waukesha, WI
(3) If the party or amicus is a corporation: N/A
i) Identify all its parent corporations, if any; and N/A
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
N/A =========================================================================== Attorney's Signature: s/ Peter W. Henderson Date: 09/15/15 Attorney's Printed Name: Peter W. Henderson Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ☒ No ☐ Address: 300 W. Main Street
REASONS FOR GRANTING PANEL REHEARING .............................................. 4
I. Due to the government’s misleading statement of position, the panel misapprehended the parties’ agreement that the residual clause to U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague. ...................................................................................................... 5
II. The panel overlooked relevant Supreme Court authority. ............ 9
III. The panel erred in limiting the remand for resentencing. ............ 10
REASON FOR GRANTING REHEARING EN BANC ......................................... 11
The decision in United States v. Raupp, the primary authority relied upon by the panel, conflicts with numerous other decisions of this Court, and the full court should resolve the conflict. ............................... 11
CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULES 32, 35, AND 40 AND FED. RS. APP. P. 32, 35, AND 40 ........................................................... 16
a serious potential risk of physical injury to another, as contemplated by the language of
18 U.S.C. § 924(e)(2)(B), which is identical to that in the residual clause of U.S.S.G.
§ 4B1.2(a)(2):
We simply don’t think that the latent risks inherent in the offense of possessing a short-barreled shotgun are sufficient to qualify for the residual clause when the crimes from which we are instructed to guide our determination–-burglary, arson, extortion, and crimes involving the use of explosives–-all are inherently risky without that extra step required for the risk to manifest.
United States v. Miller, 721 F.3d 435, 443 (7th Cir. 2013).
In his opening brief, filed October 30, 2013, Mr. Rollins relied on Miller to argue
that he had been incorrectly characterized as a career offender, because his conviction
for possessing a short-barreled shotgun no longer presented a serious potential risk of
physical injury to another and therefore did not qualify as a “crime of violence” under
U.S.S.G. § 4B1.2(a)(2). Opening Br. at 25–27. The government’s principal response
invoked Application Note 1 to § 4B1.2, which states that “[u]nlawfully possessing a
firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun . . .) is a “crime of
violence.” Gov’t Br. at 12–15. Mr. Rollins responded that, pursuant to Stinson v. United
States, 508 U.S. 36, 44-45 (1993), an application note cannot trump the text of a guideline
itself. Reply Br. at 2–3.
Three months after the oral argument in this case, the Supreme Court granted a
writ of certiorari in Johnson v. United States, 134 S. Ct. 1871 (Apr. 21, 2014), as to the
question presented in Miller of whether possession of a short-barreled shotgun
constitutes a violent felony under § 924(e). Johnson was initially argued in November
I. Due to the government’s misleading statement of position, the panel misapprehended the parties’ agreement that the residual clause to U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague.
The Court appears to have misapprehended the positions of the parties with
regard to the continued vitality of United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012).
The misapprehension stems primarily from a misrepresentation of the
Department of Justice’s position with regard to Tichenor. In its statement of position, the
United States enthusiastically quotes the Court’s holding that “the Guidelines are not
susceptible to attack under the vagueness doctrine.” Ct. App. R.43 at 7.
[T]he residual clause is an unconstitutionally vague statute. But it does not moot the issue in this case. Unlike the residual clause of the ACCA, the residual clause of U.S.S.G. § 4B1.2 is not susceptible to a vagueness challenge. See United States v. Tichenor, 683 F.3d 358 (2012). Simply, the advisory Guidelines serve a different purpose, and interpretation of the Guidelines is guided by different principles.
Id. at 6–7. The Court reasonably understood this to mean that the government found no
fault in Tichenor’s logic following Johnson. See slip op. at 12.
The Department of Justice, however, has filed documents in many federal courts
of appeals (including this Court) disavowing the holding of Tichenor. See Gov’t Br.,
United States v. Gillespie, No. 15-1686 (7th Cir. Sep. 14, 2015); see also Supp. Br. for the
United States, United States v. Pagan-Soto, No. 13-2243 (1st Cir. Aug. 11, 2015); Letter Br.
of the United States, United States v. Zhang, No. 13-3410 (2d Cir. Aug. 13, 2015); Supp.
Letter Br. for the United States, United States v. Townsend, No. 14-3652 (3d Cir. Aug. 28,
2015); Gov’t Supp. Br., United States v. Grayer, 2015 WL 4999426, at *4–8 (6th Cir. Aug.
20, 2015); Supp. Br. for the United States, United States v. Talmore, No. 13-10650 (9th Cir.
Aug. 17, 2015); Supp. Br. of United States, United States v. Goodwin, No. 13-1466 (10th
Cir. Aug. 21, 2015); Supp. Letter Br. for the United States, United States v. Matchett, No.
14-10396 (11th Cir. Aug. 27, 2015).
In Gillespie, the United States has conceded:
Johnson v. United States . . . applies to the identically-worded residual clause definition of crime of violence in U.S.S.G. § 4B1.2(a)(2). The government agrees with the defendant that under Johnson, the guidelines’ residual-clause definition of crime of violence is unconstitutionally vague, and also agrees that the Court should overrule United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012).
Gov’t Br. at 7 (emphasis added). In cases across the country, the United States has
repeated the mantra that the residual clause to § 4B1.2 is as unconstitutionally vague as
the identical clause in § 924(e). That squarely contradicts Tichenor’s holding that, as a
categorical matter, the Guidelines are not susceptible to vagueness challenges. See slip
op. at 12.
The panel could not have known that from the government’s position statement
filed in this case. Here, the United States affirmatively relied on the continued vitality of
Tichenor in urging the Court to affirm the term of imprisonment. Ct. App. R.43 at 6–7.
The United States made that representation despite its receipt of an extension of time
“to ensure that the United States presents a consistent position on similar issues across
the country.” Ct. App. R.40 at 4. Due to its misstatement of the Department’s official
position and its misrepresentation that Tichenor remains good law in the eyes of the
Department, the United States created a misapprehension as to its true position on
appeal. For that reason alone, the Court should grant the petition for rehearing.
Note 1 supplements § 4B1.2 and has independent force to define possession of a sawed-
off shotgun as a “crime of violence,” regardless of whether the residual clause survives
or not. See Ct. App. R.43 at 7–8. But that is incorrect; commentary to the guidelines
“does not have freestanding definitional power,” and can only interpret or explain the
text of the guideline itself. United States v. Leshen, 453 F. App’x 408, 413–15 (4th Cir.
2011) (unpublished). As Raupp itself makes clear, the Sentencing Commission cannot
define as “crimes of violence” offenses that do not qualify under the text of the
guideline itself. Slip op. at 10; Raupp, 677 F.3d at 760. At the very least, the United States’
assumption should be tested by granting this petition and ordering the preparation of
supplemental briefs.
Neither party believes that the residual clause to § 4B1.2 is still constitutional.
Both parties agree that Tichenor no longer represents good law. Mr. Rollins should not
have to serve an extended term of imprisonment because his was the only case in the
country in which the United States Attorney did not confess error. Therefore, the panel
should grant the petition for rehearing and order the parties to brief two questions: (1)
Whether, in light of Johnson and Peugh, the residual clause to U.S.S.G. § 4B1.2(a)(2) is
unconstitutionally vague?2 and (2) Whether, assuming the residual clause to U.S.S.G.
§ 4B1.2(a)(2) is unconstitutionally vague, the Sentencing Commission can classify an
offense as a “crime of violence” through an application note, when the offense would
not otherwise qualify under the valid portions of § 4B1.2(a)?
2 This issue is also pending before the Court in at least two other cases apart from Gillespie: United States v. McGuire, No. 15-2071 (opening brief filed Aug. 28, 2015); and United States v. Hurlburt, No. 14-3611 (opening brief filed Aug. 24, 2015).
The decision in United States v. Raupp, the primary authority relied upon by the panel, conflicts with numerous other decisions of this Court, and the full court should resolve the conflict.
In the original briefing, Mr. Rollins explained the history of inconsistent
decisions in this circuit addressing the interplay of the identical residual clauses of
§ 924(e) and § 4B1.2. Opening Br. at 15, 19–21; Reply Br. at 4–5. In a majority of cases,
the Court has treated the residual clauses of § 924(e) and § 4B1.2(a)(2) identically. United
States v. Woods, 576 F.3d 400, 403–04 (7th Cir. 2009); see Ramirez v. United States, —F.3d—
, 2015 WL 5011965, at *9 (7th Cir. Aug. 25, 2015) (citing cases). The Court diverged from
that line of cases, however, in United States v. Raupp, 677 F.3d 756, 760 (7th Cir. 2012), in
which it specifically rejected a requirement that the Court’s interpretation of § 924(e)
mirror that of § 4B1.2(a)(2).
The inconsistent holdings continue. Just recently, in Ramirez, the Court noted that
the Court has “interpreted both residual clauses identically, and so we proceed on the
assumption that the Supreme Court’s reasoning [in Johnson] applies to section 4B1.2 as
well.” 2015 WL 5011965, at *9 (internal citations omitted). Here, in contrast, the panel
treated the residual clauses as distinct and determined that the offense at issue did
present a serious potential risk of physical injury to another under § 4B1.2(a)(2), while
acknowledging that the offense did not present such a risk under the identical text of
§ 924(e). Slip op. at 8–11. Because of Raupp, the panel’s decision conflicts with a decision
of the Court issued only one week earlier. The Court should resolve these divergent
injury to another person.” U.S.S.G. App. C, amend. 674. The Commission was referring
to this Court’s decision in United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001), in
which the court held that possession of a sawed-off shotgun constituted a crime of
violence under the residual clause to § 4B1.2(a)(2), because it presents a serious
potential risk of physical injury to another. See 68 Fed. Reg. 75,340, 75,371–72 (Dec. 30,
2003). Of course, Brazeau has since been repudiated by this Court. Miller, 721 F.3d at
442–43. The panel opinion thus defers to the Sentencing Commission’s deference to a
case that has been overruled.
That type of absurd result, reached by the panel in this case, is the result of
Raupp’s extension of Stinson-deference to a level of judicial self-abnegation. Cf. United
States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010). The Court should take this opportunity
to reexamine Raupp in order to bring it into conformity with the commonsense
precedent of this Court that the texts of the residual clauses of § 924(e) and § 4B1.2 are
identical and should be treated as such.
Respectfully submitted, THOMAS W. PATTON Federal Public Defender s/ Peter W. Henderson PETER W. HENDERSON Assistant Federal Public Defender Attorneys for Defendant-Appellant, DARRYL ROLLINS
Mr. Benjamin W. Proctor, Office of the United States Attorney, 517 East Wisconsin Avenue, Room 530, Milwaukee, Wisconsin 53202
PLEASE TAKE NOTICE that on September 15, 2015, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing documents by First Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier within three calendar days, to the non-CM/ECF participants. s/ Peter W. Henderson PETER W. HENDERSON Assistant Federal Public Defender 300 W. Main Street Urbana, Illinois 61801 Phone: (217) 373-0666