United States v. Calabretta

831 F.3d 128

United States of America

v.Michael Calabretta, a/k/a Michael Callabretta

Michael Calabretta, Appellant

No. 14-3969

United States Court of Appeals, Third Circuit.

Argued: September 15, 2015

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

Before: FISHER, CHAGARES, and JORDAN, Circuit Judges

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, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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” 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] 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, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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.

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).

A.

While Calabretta's appeal was pending, the United States Supreme Court decided Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) ; James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (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, 127 S.Ct. 1586, 167 L.Ed.2d 532 (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, 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, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (quotation marks and citations omitted).

We hold that the “residual clause” in § 4B1.2 of the Guidelines is unconstitutionally vague.⁶ This holding flows from our...