United States v. Jones

32 F.4th 1290 (Mem)

UNITED STATES of America, Plaintiff - Appellee,

v.Patrick Lajuan JONES, Jr., Defendant - Appellant.

No. 20-6112

United States Court of Appeals, Tenth Circuit.

FILED May 9, 2022

Nicholas Coffey, Steven W. Creager, Chris Michael Stephens, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK, for Plaintiff - Appellee

Kyle Wackenheim, Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for Defendant - Appellant

Before TYMKOVICH, Chief Judge, HARTZ, HOLMES, MATHESON, PHILLIPS, McHUGH, MORITZ, EID, CARSON, and ROSSMAN, Circuit Judges.^*

ORDER

This matter is before the court on Appellant's Petition for Rehearing, which includes a request for rehearing en banc. We also have a response from Appellee. To the extent Appellant seeks rehearing by the panel, the petition is denied pursuant to Fed. R. App. P. 40.

The petition and response were transmitted to all non-recused judges of the court who are in regular active service, and a poll was called. A majority of the participating judges voted to deny the petition. See Fed. R. App. P. 35(a). Consequently, Appellant's request for rehearing en banc is also denied.

Judge Rossman, who would grant rehearing en banc, has prepared the attached written dissent from the denial of rehearing en banc.

ROSSMAN, J., dissenting.

"En banc review is an extraordinary procedure intended to focus the entire court on an issue of exceptional public importance or on a panel decision that conflicts with a decision of the United States Supreme Court or of this court." 10th Cir. R. 35.1(A). Accord Fed. R. App. P. 35(a). Both components of this standard are satisfied here. The panel decision in Jones fails to contend with binding precedent and reaches the wrong result on a recurring question of exceptional public importance with far-reaching implications in our circuit and nationally. See United States v. Jones , 15 F.4th 1288 (10th Cir. 2021). I respectfully submit en banc review was warranted and should have been granted.

The question in Jones is how to define "controlled substance" in U.S.S.G. § 4B1.2(b). Does that term have a uniform definition or does its meaning vary according to the state of conviction? The Jones panel—invoking plain-language analysis—held the latter. I respectfully disagree. Jones cannot be squared with the purpose of the Guidelines, the categorical approach, and the longstanding requirement of national uniformity in federal sentencing law established in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Our sister circuits are sharply divided on the question presented in Jones and the correct approach to answering it. Likewise, our court's precedent has employed inconsistent methodology in construing undefined terms in § 4B1.2 and related guidelines (e.g., § 2L1.2). Undoubtedly, the question in Jones comes up frequently, and all stakeholders in the federal sentencing process depend on its accurate resolution.

As the rehearing petition observes, Jones conflicts with a foundational principle of the categorical approach from Taylor and its progeny—the definition of a predicate offense does not "depend on the definition adopted by the State of conviction." Pet. Reh'g 10 (quoting Taylor , 495 U.S. at 591, 110 S.Ct. 2143 ). The panel opinion does not squarely address Taylor ’s uniformity principle. However, it suggests § 4B1.2(b) ’s reference to convictions "under federal or state law" overcomes any presumption that a uniform definition applies. Jones , 15 F.4th at 1292 (quoting § 4B1.2(b) ). This is incorrect.

That § 4B1.2(b) references "state law" when modifying the term "controlled substance offense" does not permit an exception to the categorical approach's uniformity principle. Predicate offense definitions routinely refer to "federal or state law" simply to clarify, as here, that they include state convictions—not to indicate that their meaning turns on state law. Indeed, in the Career Offender guideline at issue here, both the "crime of violence" and "controlled substance offense" definitions generally refer to any "offense under federal or state law." U.S.S.G. § 4B1.2. Yet, this phrasing has never justified relying on a state's definition of, e.g., "physical force," "robbery," or "counterfeit substance." As the Supreme Court reminds us, "Coherence has a claim on the law." Mathis v. United States , 579 U.S. 500, 520, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). If mere reference to "state law" in the guideline's text were sufficient justification to abandon Taylor ’s uniformity requirement, then none of the Career Offender predicates would require uniform definitions, upending an entire body of settled precedent.

Petitioner also asserts that our precedent, namely Madkins and McKibbon , demonstrates that "when tasked with defining an operative term ... in USSG § 4B1.2(b), the Court relies on the federal definition of the offense." Pet. Reh'g 7 (citing United States v. Madkins , 866 F.3d 1136 (10th Cir. 2017) ; United States v. McKibbon , 878 F.3d 967 (10th Cir. 2017) ). Those cases, while not necessarily dispositive here, certainly highlight inconsistency in our approach to construing the Career Offender guideline. We have acknowledged as much. See United States v. Martinez-Cruz , 836 F.3d 1305, 1308 (10th Cir. 2016) ("There are two major strands of precedent in the Tenth Circuit involving the Guidelines and categorical approach. The first emphasizes the Taylor categorical approach, the second emphasizes the Sentencing Commission's intent."). Granting en banc rehearing would have allowed an opportunity to clarify a singular approach for construing the meaning of undefined terms in the Guidelines.

Accordingly, I respectfully dissent from the denial of rehearing en banc.

I. Jones abandons Taylor and the foundational principle of national uniformity in federal sentencing law.

In Taylor v. United States , the Supreme Court expressly rejected an interpretation that would make a sentencing enhancement "depend on the definition adopted by the State of conviction." 495 U.S. at 590, 110 S.Ct. 2143. Such an interpretation, the Supreme Court determined, "would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct ‘burglary.’ " Id. at 590-91, 110 S.Ct. 2143. The panel opinion does not mention Taylor nor acknowledge this bedrock principle.

Instead, Jones indirectly addresses national uniformity in federal sentencing law in two ways. First, the panel opinion observes the guideline references "state law," and thus finds no need to apply the presumption, in Jerome v. United States , 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed. 640 (1943), against making the application of federal law dependent on state law. See Jones , 15 F.4th at 1292. And second, the panel opinion reasons that "disregarding any conviction under a state's categorically broader, indivisible drug-offense statute ... arguably undermines national uniformity in sentencing." Id. at 1296. Neither ground adequately justifies an exception to the uniform-definition requirement of the categorical approach.

1. The panel's discussion of the Jerome presumption

The panel opinion rejects the reasoning employed by the Second, Ninth, and Fifth Circuits, concluding those courts erroneously "relied on the Jerome presumption—a presumption that ‘assume[s], in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law.’ " Jones , 15 F.4th at 1292 (alteration in original) (quoting Jerome , 318 U.S. at 104, 63 S.Ct. 483 ). The Jerome presumption does not apply here, the panel reasons, "because § 4B1.2(b), by its plain language, references ‘state law.’ " Id. I disagree with this analysis.

First, only the Second Circuit in United States v. Townsend , 897 F.3d 66 (2d Cir. 2018), actually invoked the Jerome presumption. The Ninth and Fifth Circuits relied instead on the "purpose of the generic definition as envisioned in Taylor ," which "was to ensure that there is some ‘uniform definition independent of the labels employed by various [s]tates’ criminal codes.’ " United States v. Leal-Vega , 680 F.3d 1160, 1166 (9th Cir. 2012) (alteration in original) (quoting Taylor , 495 U.S. at 589, 110 S.Ct. 2143 ). Accord United States v. Gomez-Alvarez , 781 F.3d 787, 793-94 (5th Cir. 2015). Because only the Second Circuit actually relied on the Jerome presumption, the panel opinion does not address the sound reasoning of the Ninth and Fifth Circuits.¹

Second, the panel's brief discussion of the Jerome presumption is no substitute for contending with Taylor ’s requirement that predicate offenses be uniformly defined independent of state law. Taylor did not rely on the Jerome presumption—it never mentioned it. That is unsurprising because the Jerome presumption also operates outside the setting of federal sentencing law. The uniformity principle Taylor endorsed was specific to the federal sentencing context—that is, Taylor relied on Congress's "general approach, in designating predicate offenses, of using uniform, categorical definitions ... regardless of technical definitions and labels under state law." Taylor , 495 U.S. at 590, 110 S.Ct. 2143. The Supreme Court thought it "implausible that Congress intended the meaning of ‘burglary’ for purposes of § 924(e) to depend on the definition adopted by the State of conviction." Id. "Without a clear indication that ... Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses," the Supreme Court rejected the government's contention that the definition of burglary could vary according to state law. Id. at 591, 110 S.Ct. 2143.

Here, the panel opinion forsakes Taylor ’s uniformity...