United States Court of Appeals
For the First Circuit
No. 16-1933
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID A. FRATES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Ian Gold, on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, and
William D. Weinreb, Acting United States Attorney, on brief for
appellee.
July 18, 2018
LIPEZ, Circuit Judge. Appellant David Frates pleaded
guilty to one count of federal armed bank robbery, in violation of
18 U.S.C. § 2113(a) & (d). At his sentencing hearing, the district
court applied the United States Sentencing Guidelines' career
offender enhancement, increasing Frates's guideline sentencing
range to 188-235 months' imprisonment. The court varied downward
and sentenced Frates to 132 months' imprisonment.
Frates appeals this sentence, challenging his
classification as a career offender, and alternatively asking us
to vacate his sentence in light of a recently enacted amendment to
the Guidelines. We find no error with the district court's
application of the Guidelines. Nonetheless, we exercise our
discretion under United States v. Godin (Godin II), 522 F.3d 133
(1st Cir. 2008), and United States v. Ahrendt, 560 F.3d 69 (1st
Cir. 2009), to vacate Frates's sentence and remand to allow the
district court to consider the United States Sentencing
Commission's current policy position on who qualifies as a career
offender.
I.
This case arises at a peculiar moment in the history of
the Sentencing Guidelines' career offender enhancement. That
enhancement increases the sentencing ranges of certain defendants
whose offense of conviction was "either a crime of violence or a
controlled substance offense," and who have at least two such prior
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convictions. U.S. Sentencing Guidelines Manual § 4B1.1 (2016).
At the time of Frates's sentencing in July 2016, the Guidelines
defined the term "crime of violence" as follows:
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.
Id. § 4B1.2(a) (2015). Subsection (1) of this definition is known
as the "force clause," the segment of subsection (2) listing
specific crimes is known as the "enumerated offenses clause," and
the segment of subsection (2) beginning with "otherwise involves"
is known as the "residual clause." See, e.g., United States v.
Wurie, 867 F.3d 28, 31, 36 (1st Cir. 2017); United States v.
Ramírez, 708 F.3d 295, 300 (1st Cir. 2013). The commentary to
section 4B1.2 further specified a number of offenses that
sentencing courts "essentially treat[ed] . . . as additional
enumerated offenses." United States v. Ball, 870 F.3d 1, 5 (1st
Cir. 2017); U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1
(2015) (listing, for example: murder, kidnapping, aggravated
assault, and robbery).
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The Guidelines' "crime of violence" definition mirrored
the Armed Career Criminal Act's ("ACCA") definition of "violent
felony." 18 U.S.C. § 924(e)(2)(B). The ACCA imposes a mandatory
minimum 15-year term of imprisonment on any person convicted of
being a felon in possession of a firearm who has three prior
violent felony convictions. Id. §§ 922(g), 924(e)(1). Its
definition of "violent felony" includes a force clause, an
enumerated offenses clause, and a residual clause, all materially
identical to the Guidelines' crime of violence definition. Id.
§ 924(e)(2)(B).
In June 2015, the Supreme Court held that the residual
clause of the ACCA's violent felony definition was
unconstitutional. Johnson v. United States, 135 S. Ct. 2551, 2563
(2015). It reasoned that "the indeterminacy of the wide-ranging
inquiry required by the residual clause both denies fair notice to
defendants and invites arbitrary enforcement by judges." Id. at
2557. Sentencing judges interpreting the residual clause faced
"grave uncertainty" about how to estimate the risk of injury
involved in a crime, and also what level of risk sufficed to
qualify a crime as a violent felony. Id. at 2257-58. These
vagaries were more than the strictures of due process could
tolerate: "Invoking so shapeless a provision to condemn someone to
prison for 15 years to life does not comport with the
Constitution's guarantee of due process." Id. at 2560.
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Not surprisingly, in the wake of Johnson, there were
challenges to the constitutionality of the Guidelines' crime of
violence definition. Most of the circuit courts to address the
issue held that section 4B1.2(a)'s identically-worded residual
clause was unconstitutionally vague. See United States v.
Hurlburt, 835 F.3d 715 (7th Cir. 2016); United States v.
Calabretta, 831 F.3d 128 (3d Cir. 2016); United States v. Pawlak,
822 F.3d 902 (6th Cir. 2016); United States v. Madrid, 805 F.3d
1204 (10th Cir. 2015). But see United States v. Matchett, 802
F.3d 1185 (11th Cir. 2015). In the First Circuit, the government
routinely took the position that Johnson's reasoning extended to
the crime of violence definition, and conceded that section
4B1.2(a)'s residual clause was void. See, e.g., Ball, 870 F.3d at
3 (1st Cir. 2017); United States v. Thompson, 851 F.3d 129, 131
(1st Cir. 2017).
This "ongoing litigation and uncertainty resulting from
the Johnson decision" prompted the United States Sentencing
Commission to adopt an amendment eliminating the residual clause
from the crime of violence definition. U.S Sentencing Guidelines
Manual supp. to app. C, Amend. 798. The amendment also moved some
of the offenses listed in the commentary to section 4B1.2 into the
body of section 4B1.2(a)(2). Id. Amendment 798 took effect on
November 1, 2016 -- a few months after Frates's sentencing -- and
the Commission declined to make the amendment retroactive. See
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Wurie, 867 F.3d at 35 n.7 (noting that the Commission chose to not
make Amendment 798 retroactive).
Four months after Amendment 798 took effect, the Supreme
Court rejected a void-for-vagueness challenge to the crime of
violence definition's residual clause. Beckles v. United States,
137 S. Ct. 886, 890 (2017). Distinguishing Johnson, the Court
explained that the ACCA "fix[ed] the permissible sentences for
criminal offenses," while the Guidelines "merely guide the
exercise of a court's discretion in choosing an appropriate
sentence within the statutory range." Id. at 892. Since the
Guidelines are discretionary, they are "not amenable to a vagueness
challenge," and thus "§ 4B1.2(a)'s residual clause is not void for
vagueness." Id. at 894-95.
The result in Beckles creates a quirk for defendants (1)
sentenced pursuant to section 4B1.2(a)'s residual clause prior to
Amendment 798, and (2) whose appeals were pending when the
amendment became effective. Although stricken by the Sentencing
Commission, the residual clause remains valid as applied to them.
Hence, they will be the last group subjected to the disfavored --
yet constitutional -- residual clause. This is the context in
which Frates appeals his sentence.
II.
Frates asserts that neither his offense of conviction
nor his prior convictions qualify as crimes of violence. As to
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his present conviction for federal armed bank robbery, he suggests
that the crime does not fit within the force clause, and that we
should remand to give the district court the opportunity to
determine in the first instance whether the residual clause covers
the crime. Regarding his prior convictions, he argues that his
four Massachusetts unarmed robbery convictions do not count as
crimes of violence under any of section 4B1.2(a)'s clauses, leaving
him without the two requisite crimes of violence necessary to
trigger the career offender enhancement. We address these
contentions in turn.
A. Frates's Offense of Conviction
It is axiomatic that in determining whether a crime fits
within the force clause, we look to the elements that comprise the
offense, rather than the defendant's conduct in committing the
crime. See, e.g., United States v. Ramos-González, 775 F.3d 483,
504 (1st Cir. 2015). This analysis involves taking a "categorical
approach" and determining whether the elements of the defendant's
crime of conviction necessarily require the use, attempted use, or
threatened use of physical force against another person. See,
e.g., United States v. Martinez, 762 F.3d 127, 133 (1st Cir. 2014).1
1We employ a "modified categorical approach" when the statute
sets forth alternative elements of a crime, some of which are
broader than the crime of violence definition. See Descamps v.
United States, 570 U.S. 254, 257 (2013); Ramos-González, 775 F.3d
at 505. This approach allows us to consult a limited set of
judicial records to determine which set of elements provided the
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An offense qualifies as a crime of violence under the force clause
only if "the least serious conduct encompassed by the elements of
the offense" involves the requisite physical force. United States
v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017).
The federal armed bank robbery statute, in relevant
part, penalizes "[w]hoever, by force and violence, or by
intimidation, takes, or attempts to take, . . . any property or
money . . . belonging to . . . any bank . . . ," and who, in
committing such an offense, "assaults any person, or puts in
jeopardy the life of any person by the use of a dangerous weapon
or device." 18 U.S.C. § 2113(a) & (d). Frates argues that this
offense can be committed without the use, attempted use, or
threatened use of physical force. He believes that "intimidation"
does not require force, and imagines that a robber could use
poison, or withhold medication, to accomplish the crime without
employing force. He further asserts that the force clause requires
an intent mens rea, and that intimidation can be accomplished
unintentionally.
basis for the defendant's conviction. Ramos-Gonzalez, 775 F.3d at
505; see also Shepard v. United States, 544 U.S. 13, 26 (2005)
(listing the charging document, plea agreement, plea transcript,
and "comparable judicial record[s]" as permissible documents).
The parties agree that we should employ the categorical approach,
and we accept their position without deciding the issue. See
United States v. Starks, 861 F.3d 306, 317 (1st Cir. 2017).
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Shortly after Frates filed his opening brief staking out
these positions, we rebuffed identical arguments in Ellison, 866
F.3d at 36-38. The defendant in Ellison argued that his conviction
for federal unarmed robbery did not qualify as a crime of violence
under the force clause. Id. at 34. We squarely rejected his
argument, concluding that section 2113(a) "requires proving that
a threat of bodily harm was made." Id. at 37. In doing so, we
specifically spurned the "threat to poison or to withhold vital
medicine" hypotheticals also offered here by Frates. Id. We
likewise rebuffed the same mens rea argument raised by Frates,
finding that section 2113(a) "does have an implicit mens rea
element of general intent -- or knowledge -- as to the actus reus
of the offense." Id. at 39.
Ellison thus undermines Frates's assertion that federal
armed bank robbery does not require the use, attempted use, or
threatened use of force. Indeed, a conviction for federal unarmed
bank robbery -- at issue in Ellison -- is a lesser included offense
to federal armed bank robbery. See United States v. Spinney, 65
F.3d 231, 235 n.3 (1st Cir. 1995). As we are bound by this prior
panel decision, e.g., Wurie, 867 F.3d at 34, we need not probe the
matter further: federal armed bank robbery is a crime of violence
under section 4B1.2(a)'s force clause.
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B. Frates's Prior Convictions
The Massachusetts statute criminalizing unarmed robbery
provides:
Whoever, not being armed with a dangerous
weapon, by force and violence, or by assault
and putting in fear, robs, steals or takes
from the person of another, or from his
immediate control, money or other property
which may be the subject of larceny, shall be
punished by imprisonment in the state prison
for life or for any term of years.
Mass. Gen. Laws ch. 265, § 19(b). The government concedes that
Frates's unarmed robbery convictions do not qualify as crimes of
violence under the force clause and the enumerated offenses clause.
Indeed, it acknowledges our holding in Starks that Massachusetts
unarmed robbery does not qualify under the ACCA's force clause,
861 F.3d at 319-20, and admits that the enumerated offense of
"robbery" does not encompass the crime, see U.S. Sentencing
Guidelines Manual § 4B1.2, cmt. n.1 (2015). Thus, we assess only
whether the convictions qualify as crimes of violence under the
prospectively defunct, but retrospectively applicable, residual
clause.
Our precedent compels us to conclude that Massachusetts
unarmed robbery is a crime of violence under the residual clause.
In United States v. De Jesus, we held that the Massachusetts
offense of larceny from the person qualified as a crime of violence
under the residual clause. 984 F.2d 21, 22 (1st Cir. 1993).
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Massachusetts classifies larceny from the person as a lesser
included offense of unarmed robbery. See Commonwealth v. Glowacki,
499 N.E.2d 290, 294 (Mass. 1986); Commonwealth v. Sheppard, 537
N.E.2d 583, 585 (Mass. 1989). Hence, Massachusetts unarmed robbery
is necessarily a crime of violence under the residual clause.
Frates urges us to abandon this otherwise
straightforward analysis and overrule De Jesus. He argues that De
Jesus was based on the "ordinary case" method for determining
whether an offense fits within the residual clause, and that
Johnson rendered that methodology invalid. We disagree.
Under the ordinary case method, we assess whether the
elements of the crime, in the ordinary case, "(1) present a risk
of physical injury similar to the risk presented by the clause's
enumerated offenses and (2) [are] similar 'in kind' to those
offenses." United States v. Holloway, 630 F.3d 252, 260 (1st Cir.
2011) (quoting United States v. Giggey, 551 F.3d 27, 41-42 (1st
Cir. 2008) (en banc)); see also Ramírez, 708 F.3d at 305 (applying
the ordinary case method). Although Johnson was critical of this
approach, see 135 S. Ct. at 2557-58, we recently rejected the
contention that the Court's criticism in the ACCA context allows
us to overrule prior decisions applying the ordinary case method
to section 4B1.2(a)'s residual clause. In Wurie, the defendant
asked us to reconsider our holding in United States v. Glover, 558
F.3d 71, 80 (1st Cir. 2009), that Massachusetts assault and battery
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with a dangerous weapon was a crime of violence under the residual
clause. 867 F.3d at 32. We explained that Johnson did not
"necessarily reject[] the 'ordinary case' analysis in all of its
applications." Id. at 35. Rather, the Court's criticism of that
methodology was "only one part of its conclusion as to why the
residual clause of the ACCA was unconstitutionally vague." Id. at
34. Since the Court later declined to extend Johnson's holding to
the crime of violence residual clause, Beckles, 137 S. Ct. at 890,
we were "not persuaded that Johnson 'offers a sound reason for
believing' that the panel in Glover 'would change its collective
mind' in light of Johnson." Wurie, 867 F.3d at 35 (quoting United
States v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)).
Wurie thus undermines Frates's attempt to rely on
Johnson to circumvent De Jesus. Instead, De Jesus remains
controlling, and requires us to conclude that Massachusetts
unarmed robbery is a crime of violence under the residual clause.
As both Frates's offense of conviction and his prior unarmed
robbery convictions were crimes of violence under the version of
the Guidelines applicable at the time of his sentencing, the
district court did not err in applying the career offender
enhancement.2
2The district court also concluded that Frates's prior
conviction for Massachusetts breaking and entering was a crime of
violence. Frates did not appeal this decision.
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III.
Once we have concluded that a district court did not err
in sentencing a defendant, it is ordinarily the end of the matter.
In a narrow category of cases, however, we have discretion to
vacate a correctly imposed sentence and remand to allow the
sentencing court to consider the United States Sentencing
Commission's revised policy positions, as demonstrated by its
subsequent amendment of the Guidelines. For the reasons detailed
below, this is precisely the type of case in which exercising that
discretion is warranted.
A. The Godin/Ahrendt Doctrine
Our discretion to remand in such situations derives from
a pair of cases involving Amendment 709 to the Guidelines. Godin
II, 522 F.3d at 133; Ahrendt, 560 F.3d at 69. Amendment 709
"restat[ed] the rules for determining when multiple crimes are
counted as one for criminal history purposes." Godin II, 522 F.3d
at 135; see also U.S. Sentencing Guidelines supp. to app. C, Amend.
709 (2007). Prior to that amendment, the First Circuit treated
crimes for which the sentence was imposed on the same date as
separate offenses if they were not part of a common scheme or plan,
or were not consolidated for trial or sentencing. See, e.g.,
United States v. Godin (Godin I), 489 F.3d 431, 434-35 (1st Cir.
2007); United States v. Correa, 114 F.3d 314, 317 (1st Cir. 1997).
Amendment 709 rendered this approach obsolete by specifying that
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offenses committed without an intervening arrest are treated as a
single sentence when the sentences were imposed on the same day.
See U.S. Sentencing Guidelines supp. to app. C, Amend. 709 (2007);
U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). The
amendment went into effect on November 1, 2007, after Godin and
Ahrendt were sentenced but before their appeals were final.3 See
Godin II, 522 F.3d at 134-35; Ahrendt, 560 F.3d at 78-79. Since
the Sentencing Commission did not make Amendment 709 retroactive,
the amendment would not ultimately change either defendant's
guideline sentencing range. See Godin II, 522 F.3d at 134-35
(noting that Amendment 709 was not retroactive).
Nonetheless, we vacated and remanded both of their
sentences to give the district courts the opportunity to weigh the
Sentencing Commission's revised policy as a discretionary factor
in imposing sentence. Under the Commission's changed thinking,
Godin and Ahrendt would have been subject to significantly lower
guideline ranges. Godin had two prior burglary convictions for
which she was sentenced on the same date. Id. at 134. Counting
these offenses as a single sentence would have removed her from
the career offender category and decreased her guideline
3More specifically, Godin was sentenced in April 2006, we
first decided her appeal in June 2007, and we adjudicated her
petition for rehearing in April 2008. Godin II, 522 F.3d at 133-
34. Ahrendt was sentenced in January 2006 and we resolved his
appeal in March 2009. Ahrendt, 560 F.3d at 73.
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sentencing range from 262-327 months' imprisonment to 121-130
months. Id. Ahrendt had committed three offenses in the same
week, and he was sentenced for those crimes on the same date.
Counting his offenses as a single sentence would have decreased
his guideline range from 210-262 months' imprisonment to 168-210
months. See Ahrendt, 560 F.3d at 73; U.S. Sentencing Guidelines
Manual § 5A (2005) (Sentencing Table).
Our decisions to vacate and remand in those cases were
animated by two principal factors. The first involved the posture
of the cases and the manner in which the Sentencing Commission
chose to amend the Guidelines. In Godin II, we explained that
"the posture of this case is peculiar: the amendment is not
applicable retroactively, but neither has the pending appeal yet
resulted in a final disposition." 522 F.3d at 135. The non-
finality of Godin's sentence interacted with Amendment 709 to
produce a procedural inequity. Amendment 709 would not alter
Godin's guideline range because the amendment substantively
changed the Guidelines and applied only prospectively. Id.
However, if the Sentencing Commission had instead issued a
clarifying amendment -- one that is "purely expository," United
States v. Cabrera-Polo, 376 F.3d 29, 32 (1st Cir. 2004) -- we could
have chosen to "alter our own prior reading of [the] newly
clarified guideline" on appeal, and given Godin the benefit of the
lower guideline range. Godin II, 522 F.3d at 135. Thus, without
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a remand to allow the district court to consider the Commission's
revised policy, Godin would have been "irremediably worse off
because the Commission went further in her direction" by
substantively revising the offending provision of the Guidelines
instead of issuing a "mere clarification." Id. at 136.
The second factor that led us to vacate and remand in
Godin and Ahrendt was the discretionary nature of the federal
sentencing regime after United States v. Booker, 543 U.S. 220
(2005). Under federal sentencing procedures post-Booker, district
courts begin by calculating a defendant's guideline sentencing
range. See, e.g., Molina-Martinez v. United States, 136 S. Ct.
1338, 1345 (2016). This range is merely advisory. See Booker,
543 U.S. at 245. Courts then exercise their discretion to select
a sentence -- either inside or outside of the advisory guideline
range -- that is "sufficient, but not greater than necessary" to
fulfill certain sentencing objectives. 18 U.S.C. § 3553(a). Godin
and Ahrendt recognized that the Commission's current policy
positions may be relevant at this second, discretionary, step of
a district court's sentencing procedures, even when a non-
retroactive amendment prevents the district court from altering
the advisory guideline range calculated at the first step. See
Godin II, 522 F.3d at 136; Ahrendt, 560 F.3d at 79.
Three more recent cases provide guidance on when we will
choose to exercise our discretion under the Godin/Ahrendt
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doctrine. The defendant in United States v. Matos, 611 F.3d 31
(1st Cir. 2010), asked us to vacate his sentence and remand to
allow the district court to consider Amendment 709. Distinguishing
Godin II and Ahrendt, we explained that "it was evident" in those
cases "that if the Guidelines as amended . . . had been in effect
at the time of the defendant's sentencing," the defendant would
have been subjected to a lower sentencing range. Id. at 39.
However, it was "far from clear" that Amendment 709 would have had
any effect on Matos's sentence. Id. The district court would
have had to "engage in fact-finding to determine whether the
Amendment applie[d]." Id. Given the complexity of the district
court's task on remand, we "conclude[d] that Godin and Ahrendt
[did] not advocate in favor of remanding for resentencing." Id.
at 39-40.
We recently applied this reasoning from Matos in a case
involving Amendment 798. In Wurie, we explained that it was
unclear whether the defendant would have benefitted from the
intervening amendment. 867 F.3d at 36. On remand, the district
court would have had to consider whether "at least two of Wurie's
prior offenses . . . qualify as crimes of violence under the force
clause." Id. This analysis would have been "much more
complicated" than the "simple mechanistic change" involved in
Godin II and Ahrendt. Id. at 36-37. We accordingly declined to
vacate the defendant's sentence and remand for resentencing.
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Lastly, we ordinarily will not use our discretion under
the Godin/Ahrendt doctrine when the district court was aware of
the proposed amendment at the time of the initial sentencing. See
United States v. Adams, 640 F.3d 41, 43 (1st Cir. 2011). The
court's awareness of the amendment extinguishes the "doubt
triggering our concern in Godin and Ahrendt that the district court
would reconsider the sentences in light of the now-revised thinking
of the Commission." Id.
Godin II and Ahrendt thus establish a narrow doctrine
that gives us discretion to vacate a defendant's sentence and
remand when: (i) the Sentencing Commission adopts a substantive,
non-retroactive amendment to the Guidelines; (ii) the amendment is
adopted before the defendant's sentence becomes final on appeal;
and (iii) the amendment would have lowered the defendant's
guideline range if it had been in effect at the initial sentencing.
However, we will ordinarily not exercise our discretion under
Godin/Ahrendt when the district court's analysis on remand would
be complex, or when the district court was aware of the amendment
during the initial sentencing.
If we do remand a case pursuant to the Godin/Ahrendt
doctrine, the district court is prohibited from recalculating the
defendant's guideline range in light of the intervening amendment,
lest it circumvent the Sentencing Commission's non-retroactivity
determination. It may, however, consider the Commission's revised
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policy position in exercising its discretion to select an
appropriate sentence for the defendant.
B. Vacating Frates's Sentence and Remanding for Resentencing
The facts of this case squarely implicate our
Godin/Ahrendt doctrine, and counsel in favor of exercising our
discretion to vacate Frates's sentence and remand to the district
court. Amendment 798 is a substantive, non-retroactive amendment
that the Sentencing Commission enacted while Frates's appeal was
pending. If the amendment had been in effect at the time of
Frates's sentencing, his guideline range would have decreased from
188-235 months' imprisonment to 92-115 months. Indeed, the
government concedes that Frates's prior convictions for
Massachusetts unarmed robbery would not qualify as crimes of
violence under Amendment 798.4
Given the government's concession, the sentencing
process on remand will be "mechanistic," not complex. Wurie, 867
F.3d at 37. The district court will need to consider only whether
the Sentencing Commission's current policy about who qualifies as
a career offender affects its discretionary choice of sentence.
Finally, there is no indication that the district court was aware
of Amendment 798 at the time of sentencing.
4 The government specifically conceded that Massachusetts
unarmed robbery would not qualify as crimes of violence under
section 4B1.2(a)'s force clause or under its enumerated crime of
robbery.
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The government advances three primary reasons why we
should nonetheless decline to vacate Frates's sentence and remand
for resentencing. All three are unpersuasive. First, the
government argues that a line from the Supreme Court's decision in
Dillon v. United States, 560 U.S. 817 (2010), undermines the
Godin/Ahrendt doctrine. Dillon involved the question of whether
a provision of the Guidelines that limited a court's discretion in
sentence modification proceedings remained mandatory -- rather
than advisory -- after Booker. 560 U.S. at 819-822. In holding
that the provision was mandatory, the Court sought to establish
that other provisions of the Guidelines likewise remained binding
post-Booker. Id. at 830. It thus observed that "[n]o one disputes
that the Commission's retroactivity determinations . . . are
binding." Id.
The Godin/Ahrendt doctrine is entirely consistent with
the Supreme Court's observation that the Sentencing Commission's
retroactivity determinations are binding. Both Godin II and
Ahrendt acknowledge that the Commission's pronouncement that
Amendment 709 was non-retroactive bound the court. Godin II, 522
F.3d at 136 ("The original guideline range . . . remains
applicable, because the amendment was substantive and non-
retroactive."); Ahrendt, 560 F.3d at 79 ("Because Amendment 709 is
non-retroactive, . . . Ahrendt is not entitled to the benefit of
[the] amendment . . . ."). Indeed, the Godin/Ahrendt doctrine
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necessarily presupposes that the Commission's retroactivity
determinations are binding. It only allows district courts to
consider the Sentencing Commission's revised policies as a
discretionary factor in resentencing defendants.
Second, the government contends that vacating and
remanding in this case will effectively open the floodgates for
defendants challenging their sentences "in light of Johnson." This
position is vastly overstated. As we detailed above, the
Godin/Ahrendt doctrine applies only to a narrow category of cases
involving certain non-retroactive amendments that are adopted
before a defendant's sentence becomes final on appeal. Our holding
here is thus potentially relevant to defendants sentenced pursuant
to section 4B1.2(a)'s residual clause only if their sentences were
not yet final when Amendment 798 went into effect in November 2017.
We fail to see how -- as the government seems to suggest -- this
case would apply more broadly to defendants challenging their
sentences based on Johnson's invalidation of the ACCA's residual
clause.
Third, the government contends that the district court's
decision to vary downward from Frates's guideline sentencing range
makes remanding his case for resentencing unnecessary. Though
"perhaps not irrelevant," a district court's decision to depart
from a defendant's guideline range will not ordinarily be a
significant factor in determining whether to remand under
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Godin/Ahrendt. Ahrendt, 560 F.3d at 80 (reasoning that the amount
an amendment reduces a defendant's guideline range is not
dispositive in deciding whether to remand). A downward variance
does not necessarily alter our "judgment that a different result
might well be reached on remand," Adams, 640 F.3d at 43, as the
Sentencing Commission's revised policy may lead a district court
to vary further from a defendant's guideline range. Indeed, the
guideline range "anchor[s] . . . the district court's discretion,"
such that even when "the sentencing judge sees a reason to vary
from the Guidelines . . . the Guidelines are in a real sense
[still] the basis for the sentence." Molina-Martinez, 136 S. Ct.
at 1346 (emphasis omitted) (quoting Peugh v. United States, 569
U.S. 530, 542, 549 (2013)). The knowledge that the Sentencing
Commission would choose a different "anchor" thus remains a
relevant discretionary factor for district courts to consider even
where they initially varied downward.
This case provides a prime example of this principle.
The district court varied downward based on Frates's history of
substance abuse and mental health issues, and imposed a sentence
of 132 months' imprisonment. Under the Sentencing Commission's
current thinking, that sentence would constitute an upward
variance of 17 months. The district court may well view this fact
as reason to vary even more significantly from Frates's guideline
range.
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IV.
For these reasons, we "think it prudent to allow the
[district] court the opportunity to consider the Sentencing
Commission's updated views." Ahrendt, 560 F.3d at 80. We
therefore vacate Frates's sentence and remand for resentencing
consistent with this opinion. On remand, the court's initial
calculation of Frates's guideline range remains in effect. The
court is under no obligation to modify Frates's sentence if, in
its discretion, it does not feel that modification is warranted.
So ordered.
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