RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0187p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 17-4258
v. │
│
│
THEODORE WILLIAM JACKSON, JR., │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
Nos. 1:04-cr-00111; 1:16-cv-00501—Donald C. Nugent, District Judge.
Decided and Filed: August 24, 2018
Before: BOGGS, CLAY, and SUTTON, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for
Appellant. Ranya Elzein, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. 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
No. 17-4258 United States v. Jackson Page 2
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 18 U.S.C. § 924(e) and
sentenced him to 360 months in prison.
In 2015, the Supreme Court invalidated the Armed Career Criminal Act’s residual clause
as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). Jackson
moved to vacate his sentence, see 28 U.S.C. § 2255, arguing that his two aggravated robbery
convictions no longer counted as violent felonies. The government conceded that Jackson no
longer qualified as an armed career criminal and that his sentence had to be vacated.
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, 822 F.3d 902, 904 (6th Cir. 2016). Nevertheless, at Jackson’s subsequent
resentencing, the district court found that his 1995 aggravated robbery conviction and his
attempted robbery conviction were still crimes of violence under the guidelines’ force clause,
qualifying him for the enhancement. The court resentenced Jackson to 346 months.
In 2017, we affirmed the judgment of the district court in part and vacated it in part. 704
F. App’x 484. Jackson argued that, in the aftermath of Pawlak’s invalidation of the guidelines’
residual clause, neither his attempted robbery nor his 1995 aggravated robbery conviction should
have counted as a crime of violence. Id. at 488. But we recognized that the Supreme Court, in
Beckles v. United States, 137 S. Ct. 886 (2017), had upheld the guidelines’ residual clause,
abrogating Pawlak. Jackson, 704 F. App’x at 487. We also noted that Amendment 798, in
which the Sentencing Commission deleted the residual clause from the guidelines, was not in
No. 17-4258 United States v. Jackson Page 3
effect at Jackson’s 2016 resentencing. Id. at 487 n.1. Applying the 2015 guidelines, we held that
Jackson’s aggravated robbery convictions and his attempted robbery conviction amounted to
crimes of violence under the residual clause. Id. at 488–89. Even so, we held that the court
committed procedural error by failing to explain the sentence imposed. Id. at 492. That led to
another round of resentencing.
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. 18 U.S.C. § 3553(a)(4)(A)(ii); United States v. Davis, 397 F.3d 340, 346 (6th
Cir. 2005); U.S.S.G. § 1B1.11(a). But sentencing remands differ. When we remand a case
because the sentence was imposed “in violation of law,” the district court must use the version of
the guidelines in effect on the date it imposed the prior sentence. 18 U.S.C. § 3742(f)(1), (g)(1).
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, 704 F. App’x at 492. A procedurally unreasonable sentence, as one
might expect, counts as one imposed “in violation of law.” United States v. Trejo-Martinez,
481 F.3d 409, 412 (6th Cir. 2007); see 18 U.S.C. § 3742(a). Congress has made clear that, when
a court of appeals reverses a sentence imposed “in violation of law,” it must remand the matter
for a new sentencing hearing under the guidelines in effect at the time of the previous sentencing
hearing. See 18 U.S.C. § 3742(f), (g). Consistent with that language, our court has come to the
same conclusion. See United States v. Taylor, 648 F.3d 417, 424 (6th Cir. 2011). The district
court thus was required to apply the 2015 guidelines, which were in effect at the time of
Jackson’s previous sentencing hearing.
No. 17-4258 United States v. Jackson Page 4
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, 704 F. App’x at 488–89. And Jackson’s attempted
robbery conviction likewise counts as a crime of violence under the residual clause. Id. at 489.
Because Jackson has at least two prior convictions for crimes of violence and because the
2004 armed bank robbery conviction counts as a crime of violence, he is eligible for the career
offender enhancement.
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, 506 F.3d 461, 465 (6th
Cir. 2007) (quotation omitted). Anything else is substantive.
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.” 683 F. App’x 409, 419 (6th Cir. 2017). But
it did not deal with the residual clause. Id. The same is true of our later decision in United
States v. Yates. It too did not deal with the residual clause. See 866 F.3d 723, 732 (6th Cir.
2017).
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.
No. 17-4258 United States v. Jackson Page 5
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. 506 F.3d 461 (6th Cir. 2007). One small part of the amendment was a new
application note clarifying that a video of child pornography should count as 75 images for
sentencing purposes. U.S.S.G. supp. app. C, amend. 664, at 49 (2008). We analyzed the
application note in isolation, determined that it clarified existing law, and concluded that “the
application note added to the Guidelines in 2004 was a clarifying amendment.” Geerken,
506 F.3d at 466. We didn’t mention the other 50 pages of the amendment, which included
quintessentially substantive changes, such as raising the base offense level for certain crimes.
See U.S.S.G. supp. app. C, amend. 664, at 12, 16, 20, 22, 45 (2008); see also United States v.
Pelto, No. 95-1381, 1995 WL 717040, at *2 (6th Cir. Dec. 5, 1995) (amendment reducing
penalty is “clearly” substantive). All of this shows that one portion of an amendment may be
clarifying without all of it being so.
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. 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, 356 F.3d 714, 718 (6th Cir. 2004).
The Commission did not use its authority to make the amendment retroactive, as it has for other
amendments, see U.S.S.G. § 1B1.10(d), and it characterized the deletion not as “clarifying” but
as a “matter of policy,” U.S.S.G. supp. app. C, amend. 798, at 128 (2016). While it is true that
deleting the residual clause resolved an ambiguity in the guidelines, it did so not by clarifying
No. 17-4258 United States v. Jackson Page 6
existing law but rather by eliminating that law and making a new, clearer law. See United States
v. Adkins, 883 F.3d 1207, 1212 (9th Cir. 2018).
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, 136 S. Ct. 1257, 1265 (2016)
(quotation omitted). If Johnson’s change was substantive, so was this one. See Adkins, 883 F.3d
at 1213.
In reaching this conclusion, we have plenty of company. See United States v. Frates, 896
F.3d 93, 102 (1st Cir. 2018); United States v. Gonzales, 714 F. App’x 367, 370–71 (5th Cir.
2017); Adkins, 883 F.3d at 1213; United States v. Craig, 706 F. App’x 545, 550–51 (11th Cir.
2017). We know of no contrary appellate authority.
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. 866 F.3d at 732. That’s right. But it doesn’t matter. Yates did not examine the
robbery statute under the residual clause, leaving untouched our prior decision that Jackson’s
attempted robbery conviction counts as a crime of violence.
We affirm.