United States v. Theodore Jackson
Opinion
Theodore Jackson has seen the twists and turns of American sentencing doctrine firsthand. A federal court first sentenced him under the Armed Career Criminal Act. After the Supreme Court invalidated the Act's residual clause, the court resentenced him as a career offender under the sentencing guidelines. Then the Sentencing Commission amended the guidelines to delete its residual clause. After we remanded Jackson's sentence for procedural error, the district court applied the unamended guidelines and sentenced him again as a career offender. Jackson appeals, insisting that the court should have applied the guidelines without the residual clause. Because the court correctly applied the right version of the guidelines, we affirm.
I.
In 2004, Jackson was convicted of armed bank robbery, carrying and brandishing a firearm during the bank robbery, and being a felon in possession of a firearm. Based on his two prior convictions for Ohio aggravated robbery and one prior conviction for Ohio attempted robbery, the court designated Jackson an armed career criminal under
In 2015, the Supreme Court invalidated the Armed Career Criminal Act's residual clause as unconstitutionally vague.
Johnson v. United States
, --- U.S. ----,
What looked like a final resolution of the case was not. The sentencing guidelines' career offender enhancement also included a residual clause.
See
U.S.S.G. § 4B1.2(a)(2) (2015). In 2016, we held that
Johnson
's logic applied to the guidelines' residual clause as well.
United States v. Pawlak
,
In 2017, we affirmed the judgment of the district court in part and vacated it in part.
United States v. Jackson
,
At the next round, Jackson argued that he should be subject to the 2016 guidelines, which incorporated Amendment 798 and thus did not include the residual clause. The district court disagreed and, after applying the career offender enhancement, resentenced Jackson to 244 months.
II.
On appeal, Jackson argues that the district court should not have used the 2015 guidelines. District courts ordinarily should use the version of the guidelines in effect on the date of sentencing.
Jackson's earlier sentence was imposed "in violation of law." In our 2017 decision, we held that the district court imposed a procedurally unreasonable sentence by failing to explain the grounds for it.
Jackson
,
Under the 2015 guidelines, Jackson qualifies for the career offender enhancement. As we explained before, Jackson's aggravated robbery convictions qualify as crimes of violence under the guidelines' residual clause.
See
Jackson
,
Jackson tries to counter this conclusion on two grounds. Neither is persuasive.
First
, Jackson urges us to apply Amendment 798 retroactively. When a court applies an earlier version of the guidelines in imposing a sentence, "the court shall consider subsequent amendments, to the extent such amendments are clarifying rather than substantive changes." U.S.S.G. § 1B1.11(b)(2). Whether Amendment 798 applies retroactively therefore turns on whether it was "clarifying" or "substantive." A clarifying amendment is one that "changes nothing concerning the legal effect of the guidelines, but merely clarifies what the Commission deems the guidelines to have already meant."
United States v. Geerken
,
Amendment 798 has many parts. In addition to deleting the residual clause, it modifies the enumerated-offenses clause by moving text from the commentary into the body of the guidelines. One of our unpublished opinions,
United States v. Kennedy
, treats Amendment 798 as clarifying "with respect to enumerated offenses."
Nothing prohibits an amendment from being clarifying in part and substantive in part. The guidelines say as much. They tell a sentencing court to consider subsequent amendments "to the extent" they clarify a provision. U.S.S.G. § 1B1.11(b)(2). Had the Commission intended amendments to be all one or all the other, it would have told courts to consider amendments "if" they clarify, not "to the extent" they clarify.
Consistent with this understanding, we have held that only a portion of an amendment was clarifying before.
United States v. Geerken
involved Amendment 664, a 51-page amendment that made numerous changes to the guidelines for child pornography and sexual abuse offenses.
Amendment 798 has clarifying and substantive pieces. It deals with two provisions-the enumerated-offenses clause and the residual clause-and each has extensive doctrine built around it. The amendment's treatment of each clause differs. And the Commission's justifications for the changes reflect that difference. With the enumerated-offenses clause, it made the change "[f]or easier application." U.S.S.G. supp. app. C, amend. 798, at 129 (2016). With the residual clause, it sought to implement the lessons of Johnson . Id. at 128.
*710 Because each portion has a unique history, purpose, and effect, each should be analyzed separately.
The deletion of the residual clause amounts to a substantive change. That's how the Commission characterized it, and the amendment changes the text of the guideline itself rather than resolving an ambiguity in it.
United States v. Monus
,
Further support for this conclusion comes from the Supreme Court, which characterized
Johnson
as effecting a substantive change. As the Court put it, "
Johnson
changed the substantive reach of the Armed Career Criminal Act" by "altering the range of conduct or the class of persons that the [Act] punishes."
Welch v. United States
, --- U.S. ----,
In reaching this conclusion, we have plenty of company.
See
United States v. Frates
,
Second
, Jackson points out that
Yates
held that Ohio robbery, which shares the language of the attempted robbery statute, does not qualify as a crime of violence under the guidelines' force clause.
We affirm.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Theodore William JACKSON, Jr., Defendant-Appellant.
- Cited By
- 6 cases
- Status
- Published