United States Court of Appeals
For the Eighth Circuit
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No. 16-1554
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Joaquin D. Cervantes
lllllllllllllllllllll Plaintiff - Appellant
v.
United States of America
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: June 6, 2017
Filed: July 24, 2017
[Unpublished]
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Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
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PER CURIAM.
Joaquin Cervantes pleaded guilty to one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced
to 120 months’ imprisonment. He appeals from the district court’s1 denial of his
motion to vacate the sentence. We affirm.
The revised presentence report (PSR) prepared before Cervantes’s sentencing
calculated a base offense level of 26 under § 2K2.1(a)(1) of the United States
Sentencing Guidelines Manual (U.S.S.G. or Guidelines). That offense level was
based on two prior felony convictions for crimes of violence—namely, Nebraska
state-law convictions for assault by a confined person and for terroristic threats.
Based on a total offense level of 26 and a criminal history category of VI, the PSR
calculated an advisory Guidelines sentence of 120 months’ imprisonment, the
statutory maximum under 18 U.S.C. § 924(a)(2). Cervantes did not object to the PSR,
and the district court adopted the findings set forth therein. Cervantes did not appeal
from the 120-month sentence that the district court imposed.
When Cervantes was sentenced, U.S.S.G. § 4B1.2(a) defined the term “crime
of violence” as follows:
(a) The term “crime of violence” means 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.
Subsection (1) is known as the “force clause” of the definition. The concluding
phrase in subsection (2)—“or otherwise involves conduct that presents a serious
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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potential risk of physical injury to another”—is known as the “residual clause.” In
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), the United States Supreme
Court held that the identically worded residual clause in the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(ii), was impermissibly vague and thus violated the
Fifth Amendment’s Due Process Clause.
After Johnson was decided, Cervantes moved to vacate his sentence. He
argued that, under Johnson, the residual clause in the Guidelines definition of “crime
of violence” is also unconstitutionally vague. The district court denied the motion,
reasoning that Johnson does not retroactively invalidate sentences under the residual
clause of U.S.S.G. § 4B1.2(a) and, alternatively, that Cervantes’s state-law
convictions for assault by a confined person and terroristic threats constituted crimes
of violence under the force clause of § 4B1.2(a). The district court certified these
issues for appeal. We thereafter granted Cervantes’s motion to hold the appeal in
abeyance pending the Supreme Court’s decision in Beckles v. United States, 137 S.
Ct. 886 (2017).
In Beckles, the Court held that, because the Guidelines are merely advisory,
they “are not subject to a vagueness challenge under the Due Process Clause.” Id. at
892. Cervantes has not disputed that the residual clause of U.S.S.G. § 4B1.2(a), if
constitutional, encompasses his predicate convictions. Beckles thus forecloses
Cervantes’s argument. In light of this holding, we need not address the district
court’s alternative conclusion that Cervantes’s predicate convictions fall within the
force clause of § 4B1.2(a).
The judgment is affirmed.
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