United States v. Cristofer Tichenor

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-2433

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

C RISTOFER T ICHENOR,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cr-00171—Sarah Evans Barker, Judge.

A RGUED A PRIL 9, 2012—D ECIDED JUNE 13, 2012

Before F LAUM and H AMILTON, Circuit Judges, and
F EINERMAN, District Judge.Œ
F LAUM, Circuit Judge. Cristofer Tichenor pleaded guilty
to armed robbery and discharging a firearm in connec-
tion with robbing a bank. Pursuant to his plea agreement,
he retained the right to appeal certain issues, including

Œ
The Honorable Gary S. Feinerman, District Judge for the
United States District Court for the Northern District of
Illinois, sitting by designation.
2 No. 11-2433

the applicability of the career offender sentencing guide-
line at United States Sentencing Guideline (“U.S.S.G.”)
§ 4B1.1. Although Tichenor’s counsel initially raised
an objection to the application of the career offender
guideline, he withdrew this objection at the sentencing
hearing. The district court applied the career offender
enhancement, based on Tichenor’s prior convictions
for dealing hash oil and resisting law enforcement,
and sentenced him to 300 months’ imprisonment.
Tichenor appeals his sentence by arguing that the
career offender sentencing guideline is unconstitu-
tionally vague and that the U.S. Sentencing Commission
exceeded its authority in enacting the current defini-
tion of “crime of violence,” found at U.S.S.G. § 4B1.2(a).
Although Tichenor likely waived these claims by with-
drawing his objection to the application of the career
offender guideline at sentencing, we proceed to address
his claims because the government has waived the
waiver argument. In accordance with our prior holdings
on these issues, we conclude that the Sentencing Guide-
lines (“Guidelines”) are not susceptible to vagueness
challenges and that the Sentencing Commission did not
exceed its authority by promulgating the “crime of vio-
lence” definition. We therefore affirm the judgment of
the district court.

I. Background
A. Factual Background
On the morning of February 18, 2009, a masked man,
later identified as Cristofer Tichenor, robbed the Com-
No. 11-2433 3

munity Bank in Cicero, Indiana. He fired a gunshot into
the ceiling and demanded that the bank tellers and the
manager give him the “50’s and 100’s” out of the safe.
He pointed a gun at them as he shouted these com-
mands. He escaped with $52,900 in a small, silver car.
A nearby deputy in an unmarked car was notified about
the robbery and attempted to follow the robber. The
deputy saw the silver car, which appeared to be vacant.
He guessed that the robber had switched cars into a car
that had just traveled past him. The deputy pursued
the “switch” car. After a car chase, the passenger, who
matched the description of the bank robber, fled on foot.
The deputy apprehended the driver and radioed for
assistance.
Other officers arrived and established a perimeter to
cut off escape routes. A bloodhound began to track the
passenger and eventually led them to a home, where a
resident reported hearing noises in her attic. The officers
found and arrested Tichenor in the attic. Along the
trail leading to the home, the officers discovered a black
glove, a black ski mask, clothing, and a buried trash bag
containing $52,900. Among the bills were “bait bills”
with prerecorded serial numbers that indicated they
were from the Community Bank. DNA testing of the
glove and the shoe prints also tied Tichenor to the scene.

B. Procedural Background
Tichenor was indicted for one count of bank robbery
under 18 U.S.C. § 2113(a) and (d) (Count One), and one
4 No. 11-2433

count of discharging a firearm during and in relation to
a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii)
(Count Two). He entered into a plea agreement on Decem-
ber 4, 2010, and he entered his guilty plea before the
district court two days later. Pursuant to the plea agree-
ment, Tichenor retained the right to appeal certain
issues, including the applicability of the career offender
guideline at U.S.S.G. § 4B1.1.
The U.S. Probation Office recommended the ap-
plication of U.S.S.G. § 4B1.1 based on Tichenor’s prior
Indiana convictions for felony resisting law enforcement
(in 2002) and dealing in hash oil. Tichenor objected to
the application of the career offender guideline, con-
tending that resisting law enforcement should not be
considered a crime of violence.1
The district court sentenced Tichenor on June 17, 2011
to 300 months’ imprisonment (180 months for Count One
and the mandatory minimum of 120 months for Count
Two). The court calculated an offense level of 26 for
Count One, with a criminal history category of V. This
yielded a recommended imprisonment term of 110 to
137 months under the Guidelines for Count One.
At the sentencing hearing, Tichenor withdrew his
objection to the application of the career offender guide-
line, in light of Sykes v. United States, 131 S. Ct. 2267 (2011),
which affirmed United States v. Sykes, 598 F.3d 334 (7th

1
Tichenor did not object to the classification of his hash
oil dealing as a controlled substance offense under U.S.S.G.
§ 4B1.1.
No. 11-2433 5

Cir. 2010), and held that Indiana’s resisting law enforce-
ment by vehicular flight felony is a violent felony for
purposes of 18 U.S.C. § 924(e)(2)(B)(ii). Thus, the district
court applied the career offender guideline without
objection. The enhancement yielded an offense level of
32 for Count One and a criminal history category
of VI with a Guidelines imprisonment term of 210 to
262 months. See U.S.S.G. § 4B1.1(b). The government
requested 240 months for Count One, incorporating a
reduction for acceptance of responsibility.
Tichenor argued for a downward variance,
claiming that the career offender guideline overstated
the seriousness of his criminal history. He pointed to
the compounding effect of the consecutive, mandatory
minimum sentence for Count Two and the fact that the
predicate offenses for the career offender status were
“relatively insubstantial.” Judge Barker agreed and de-
parted downward from the career offender guideline’s
recommendation:
I do think that there is an unfair compounding effect
of the career offender status and the consecutive . . .
gun offense, the second count to which you’ve been
found guilty, that requires ten years consecutive.
When you consider the career offender status and
that add-on of ten years, it does catapult the sen-
tencing options into a range that is probably, and I so
find, greater than necessary to accomplish the other
goals of 3553(a) . . . .
. . . I will vary that sentence because of the unfair
compounding effect of simply adding that penalty to
6 No. 11-2433

the Count 2 mandatory consecutive penalty, and
reduce the guideline range from 210 months to 262
months, which is the starting point, down to
180 months to offset the unfair effects of the com-
pounding . . . .
I also am willing to do that because I think that the
career offender designation, while proper under law
and under the guidelines, is premised on a series of
less significant offenses. . . . [T]he underlying
predicate offenses, serious as they are, are not the
sorts of criminal conduct that ordinarily result in a . . .
career offender status.
By sentencing Tichenor to 180 months on Count One, the
court departed downward substantially from the recom-
mended range with the career offender enhancement,
though the sentence was still substantially above the
range without the enhancement. The district court
also imposed the mandatory, consecutive sentence of
120 months on Count Two.
At the close of sentencing, defense counsel confirmed
that neither he nor his client had any legal objections to
the sentence. After the district court reminded defense
counsel that he needed to preserve any issues that he
planned to raise on appeal, he responded that Tichenor
was preserving a motion to suppress and a motion to
dismiss.

II. Discussion
Tichenor’s primary challenge to his sentence is that
the career offender sentencing guideline is unconstitu-
No. 11-2433 7

tionally vague. We review legal questions, including
constitutional challenges to sentences, de novo. United
States v. Figueroa-Espana, 511 F.3d 696, 705 (7th Cir. 2007).
Similarly, we review a district court’s legal interpreta-
tion of a Guidelines enhancement de novo, although
we review any factual findings only for clear error. United
States v. Miller, 601 F.3d 734, 737 (7th Cir. 2010). Where,
however, the defendant fails to properly raise his sen-
tencing objection to the district court, we review only
for plain error. See United States v. Perez, 581 F.3d
539, 546 (7th Cir. 2009). Under plain error review, the
defendant must establish “(1) an error or defect (2) that
is clear or obvious (3) affecting the defendant’s substan-
tial rights (4) and seriously impugning the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Perez, 673 F.3d 667, 669 (7th Cir. 2012)
(quoting United States v. Anderson, 604 F.3d 997, 1002
(7th Cir. 2010)).

A. Whether Tichenor Waived His Objections to the
Application of the Career Offender Guideline
Pursuant to Tichenor’s plea agreement, Tichenor re-
tained the right to: (1) “object and appeal the applicability
of the career offender guideline”; (2) appeal the denial
of his motion to dismiss; (3) appeal the denial of his
motion to suppress; and (4) file a claim of ineffective
assistance of counsel. Prior to the sentencing hearing,
Tichenor filed an objection to the application of the
career offender guideline on the ground that resisting
law enforcement should not be considered a crime of
violence.
8 No. 11-2433

During the sentencing hearing, defense counsel ob-
jected to an enhancement based on Tichenor’s supervisory
role in the offense but noted that it no longer affected
the ultimate calculation: “Given the recent ruling from
the Supreme Court in Sykes versus United States,
holding that Mr. Tichenor’s prior conviction for fleeing
from police, felony resisting is a violent felony, and there-
fore a crime of violence under the guidelines, the career
offender guideline trumps the otherwise applicable
guidelines calculation.” With regard to the career
offender enhancement, defense counsel stated, “Our
second objection is one at this point that we would with-
draw in light of the . . . recent Supreme Court ruling, Your
Honor.” Later, when referencing Tichenor’s prior con-
victions, defense counsel stated that “both of [them] are,
in fact, career offender predicates, we don’t dispute that.”
The district court agreed, stating: “I agree with your
legal analysis that while this guideline issue is trumped
by the career offender designation and that . . . the Sykes
holding permits and perhaps requires the Court to con-
sider the . . . conviction that the defendant has that
makes him eligible for career offender to apply here, it
may moot the other objections.” The court nevertheless
proceeded to resolve the first objection on the merits,
concluding that the enhancement was appropriate due
to Tichenor’s leadership role and his involvement of a
minor (as the driver). Turning to the objection regarding
whether resisting law enforcement qualifies as a “crime
of violence,” Judge Barker stated: “I will allow the defen-
dant to withdraw, as he properly must, his objection
based on Sykes versus United States since that decision
No. 11-2433 9

was handed down about a week ago, that undermines
the legal rationale for that objection. So Objection No. 2
is withdrawn.”
The Supreme Court has distinguished forfeiture as
“the failure to make the timely assertion of a right” and
waiver as “the intentional relinquishment or abandon-
ment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)) (internal quotation marks omitted). We have
repeatedly recognized that “the withdrawal of an objec-
tion generally results in a waiver of that argument on
appeal.” United States v. Venturella, 585 F.3d 1013, 1019
(7th Cir. 2009); see also United States v. Kincaid, 571
F.3d 648, 654 (7th Cir. 2009) (“[W]e have held that a
defendant waived his right to challenge a sentencing
calculation by initially objecting to the calculation, but
later withdrawing the objection.” (citation omitted)).
In Venturella, we determined that the defendant’s with-
drawal of a sentencing objection resulted in waiver, not
merely forfeiture. 585 F.3d at 1019. In United States v.
Knox, we reached the same conclusion, reasoning that
the clear statements from defense counsel and the dis-
trict court indicated that the withdrawal of the objec-
tion was a “knowing waiver.” 624 F.3d 865, 875 (7th Cir.
2010); see also Kincaid, 571 F.3d at 655-56. When an issue
is waived, we cannot review it at all “because a valid
waiver leaves no error for us to correct on appeal.” United
States v. Harris, 230 F.3d 1054, 1058-59 (7th Cir. 2000).
There are two ways to construe Tichenor’s with-
drawal of his objection at the sentencing hearing. His
10 No. 11-2433

withdrawal could be viewed broadly: Tichenor
knowingly withdrew all objections to the application of
the career offender enhancement and thus waived his
right to appeal his designation as a career offender on
any ground. Alternatively, his withdrawal could be
viewed narrowly: Tichenor knowingly withdrew only
the argument that resisting arrest does not qualify as
a crime of violence and thus only waived his right to
appeal his sentence on this ground. The generalized
terms that Tichenor’s counsel used favor the broad in-
terpretation, but the fact that the withdrawal was
prompted by Sykes—which spoke only to the narrow
issue—favors the narrow interpretation. The government
actually construes Tichenor’s withdrawal narrowly and
urges us to view his claims as forfeited, rather than
waived. We therefore need not decide on the appro-
priate construction because, even if Tichenor had
waived all grounds for challenging the application of the
career offender guideline, the government has waived
the waiver argument. Thus, we proceed by viewing
Tichenor’s two claims as forfeited due to his failure to
raise these specific claims to the district court. See United
States v. Thornton, 642 F.3d 599, 605 (7th Cir. 2011).
We review these claims only for plain error. See id.

B. Whether the Career Offender Sentencing Guideline
Is Unconstitutionally Vague
Tichenor’s first argument on appeal is that he should
not have been sentenced as a career offender because
the career offender sentencing guideline is unconstitu-
No. 11-2433 11

tionally vague due to its definition of “crime of violence.”
Due process concerns dictate that a law is “void for
vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “It is
settled that, as a matter of due process, a criminal
statute that fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbid-
den by the statute, or is so indefinite that it encourages
arbitrary and erratic arrests and convictions is void
for vagueness.” Colautti v. Franklin, 439 U.S. 379, 390
(1979) (internal quotation marks and citations omitted).
Tichenor’s vagueness challenge, however, is not directed
at a criminal statute but at a sentencing guideline.
This distinction is crucial as we have categorically held
that “the Guidelines are not susceptible to attack under
the vagueness doctrine.” United States v. Brierton, 165
F.3d 1133, 1139 (7th Cir. 1999).
Our conclusion that the Guidelines cannot be uncon-
stitutionally vague is rooted in our understanding of the
vagueness doctrine. In United States v. Brierton, we inter-
preted the vagueness doctrine as holding that “a person
cannot be held liable for conduct he could not reasonably
have been expected to know was a violation of law,”
165 F.3d at 1138, and as “presum[ing] a law that attempts
to proscribe or prescribe conduct,” id. at 1139. In holding
that the Guidelines cannot be challenged for vagueness,
we reasoned:
The Guidelines do not establish the illegality of
any conduct. Rather, they are “directives to judges for
their guidance in sentencing convicted criminals, not
12 No. 11-2433

to citizens at large.” United States v. Wivell, 893 F.2d
156, 160 (8th Cir. 1990). In other words, the Guide-
lines are designed to assist and limit the discretion
of the sentencing judge. United States v. Macias, 930
F.2d 567, 571-72 (7th Cir. 1991). It is settled that, with
the exception of capital cases, a defendant has no
constitutional right to such directives. Lockett v.
Ohio, 438 U.S. 586, 603, 98 S. Ct. 2954, 57 L.Ed.2d 973
(1978) . . . . As such, the Guidelines are not
susceptible to attack under the vagueness doctrine.
Since there is no constitutional right to sentencing
pursuant to the Guidelines, the discretionary limita-
tions the Guidelines place on the sentencing judge
do not violate a defendant’s right to due process by
reason of vagueness. Wivell, 893 F.2d at 159-60.
Id. at 1139. We recently reaffirmed this holding in United
States v. Idowu, 520 F.3d 790 (7th Cir. 2008). In Idowu, we
rejected the defendant’s claim that the “clearly improba-
ble” standard set forth in U.S.S.G. § 2D1.1’s applica-
tion note was unconstitutionally vague. Id. at 795. We
quoted our reasoning from Brierton and concluded
that “the vagueness doctrine does not apply to the Guide-
lines.” Id. at 795-96. We also mentioned that, even if
the vagueness doctrine did apply to the Guidelines, this
particular vagueness challenge could not prevail because
the standard at issue is sufficiently clear. See id. at 796.
Our conclusion in Brierton (and later in Idowu) is bol-
stered by the Supreme Court’s watershed holding
in United States v. Booker, 543 U.S. 220 (2005), that the
Guidelines are only advisory. We have recognized that
No. 11-2433 13

Booker demoted the Guidelines from “rules to advice.”
United States v. Roche, 415 F.3d 614, 619 (7th Cir. 2005); see
also United States v. Bullion, 466 F.3d 574, 575 (7th Cir.
2006) (“The standard of reasonableness, introduced by
the Booker decision, confers broad sentencing discretion.
The judge must consider the guidelines but is in no
sense bound by them.”). The Supreme Court has made
clear that “[a]ny expectation subject to due process pro-
tection . . . that a criminal defendant would receive
a sentence within the presumptively applicable guide-
line range did not survive” the Booker decision. Irizarry
v. United States, 553 U.S. 708, 713-14 (2008). The
Court has further stated that “[n]ow faced with
advisory Guidelines, neither the Government nor the
defendant may place the same degree of reliance on
the type of ‘expectancy’ that gave rise to a special need
for notice in Burns [v. United States, 501 U.S. 129 (1991)].”
Id. The vagueness doctrine is concerned with providing
fair notice and preventing arbitrary enforcement. Since
the Guidelines are merely advisory, defendants cannot
rely on them to communicate the sentence that the
district court will impose.2 Defendants’ inability to look
to the Guidelines for notice underscores why, in addi-
tion to our reasoning in Brierton and Idowu, they cannot
bring vagueness challenges against the Guidelines.
Tichenor urges us to overrule Brierton and Idowu on the
ground that they did not mention or distinguish United

2
Indeed, in the present case, the district court exercised its post-
Booker discretion by departing downward substantially from
the range recommended by the Guidelines.
14 No. 11-2433

States v. Batchelder, 442 U.S. 114, 123 (1979), a Supreme
Court case addressing whether the overlapping nature
of two sentencing statutes rendered both unconstitu-
tionally vague. The Court held that as long as the
criminal provisions clearly defined the conduct
prohibited and the punishment authorized, due process
was satisfied. Id. Of relevance to the present case, the
Court mentioned that “vague sentencing provisions
may pos[e] constitutional questions if they do not state
with sufficient clarity the consequences of violating
a given criminal statute.” Id. Batchelder, which was
decided two decades before our decision in Brierton,
does not conflict with Brierton or Idowu. The isolated
comment from Batchelder is mere dictum, addressing
circumstances that were not before the Court. See United
States v. Banda-Zamora, 178 F.3d 728, 729 (5th Cir. 1999).
Moreover, the government correctly asserts that
Batchelder involved sentencing statutes, rather than the
Guidelines, and thus we had no need to confront
Batchelder in Brierton or Idowu. Tichenor rejects this ex-
planation, arguing that Batchelder did not refer to the
Guidelines only because they were not in place at that
time. Tichenor’s argument fails to recognize that even
though the Guidelines were not in place when the
Supreme Court decided Batchelder, the Guidelines were
in place when we decided Brierton. Further, given
Booker’s transformation of the Guidelines from rules to
advice, it is doubtful that any significance can presently
be attached to the Batchelder dictum. Tichenor never-
theless attempts to blur the statute—Guideline distinc-
tion by arguing that “the Guidelines are followed as if
No. 11-2433 15

they were statutes,” citing to United States v. Demaree, 459
F.3d 791 (7th Cir. 2006). But all we observed in Demaree
was that advisory guidelines remain likely to influence
sentencing decisions. See id. at 794. The sentencing
judge’s authority to exercise discretion distinguishes
the Guidelines from criminal statutes in a significant
and undeniable manner.
Tichenor does not present any other compelling reasons
to overrule Brierton and Idowu. Overruling precedent
generally requires articulable reasons, such as
precedents that have become unworkable in practice
or that are based on unsound principles. See Sykes, 598
F.3d at 338 (citing Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528, 546 (1985)). Our determination that
the Guidelines are not susceptible to vagueness chal-
lenges has only been bolstered as a result of Booker.3

3
Although we are not persuaded to revisit the position we
announced in Brierton and reaffirmed in Idowu, we recognize
that there is some disagreement as to whether the Guidelines
can be challenged on vagueness grounds. See United States v.
Bennett, 329 F.3d 769, 777 n.6 (10th Cir. 2003) (recognizing the
circuit conflict). Our position is in accord with the Fifth, Sixth,
and Eighth Circuits, which have all concluded that the Guide-
lines are not susceptible to vagueness challenges. See United
States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States
v. Smith, 73 F.3d 1414, 1417-18 (6th Cir. 1996); United States v.
Wivell, 893 F.2d 156, 159-60 (8th Cir. 1990). Wivell contains the
most extensive reasoning, beginning with the observation
that the Guidelines serve only as directives to guide judges in
(continued...)
16 No. 11-2433

As an alternative to overruling Brierton and Idowu,
Tichenor urges us to distinguish them on the ground
that the career offender guideline is unlike the provi-
sions considered in those cases. This contention must
fail because our holdings in Brierton and Idowu did not
rest on the specific provisions at issue. Brierton con-
tained no analysis of the specific provision, see 165 F.3d
at 1139, and Idowu only considered the specific provision

3
(...continued)
sentencing and do not define illegal conduct. See 893 F.2d at 160.
The Eighth Circuit noted that the Constitution does not
require sentencing guidelines and then held: “Because there is
no constitutional right to sentencing guidelines—or, more
generally, to a less discretionary application of sentences than
that permitted prior to the Guidelines—the limitations the
Guidelines place on a judge’s discretion cannot violate a de-
fendant’s right to due process by reason of being vague.” Id. The
Ninth Circuit is the only circuit to definitively hold that the
Guidelines are susceptible to vagueness challenges (out of
deference to Batchelder), see United States v. Johnson, 130 F.3d
1352, 1354 (9th Cir. 1997), though the Third Circuit has assumed
the same without directly addressing the issue, see United
States v. Maurer, 639 F.3d 72, 77-78 (3d Cir. 2011). The Second
and Tenth Circuits have declined to take a position. See
United States v. Johnson, 221 F.3d 83, 99 (2d Cir. 2000); United
States v. Negri, 173 F.3d 865 (10th Cir. 1999) (unpublished table
decision) (expressing “serious doubt” that vagueness chal-
lenges can be brought). Even when circuit courts have
discussed the merits, they have universally concluded that the
guideline at issue was not unconstitutionally vague. See, e.g.,
Maurer, 639 F.3d at 78; Johnson, 130 F.3d at 1354.
No. 11-2433 17

after unambiguously concluding that the Guidelines
are not susceptible to vagueness challenges, see 520 F.3d
at 795-96. Moreover, Tichenor does not explain what
makes the career offender guideline “more problematic”
than the guidelines challenged in our prior cases.
Although we find no reason to depart from Brierton
and Idowu, we note that Tichenor’s vagueness objection
would fare no better if we were to reach the merits. The
defendant has the burden of establishing that the law
is vague as applied to the facts of his case, rather than a
hypothetical situation. See United States v. Calimlim, 538
F.3d 706, 710-11 (7th Cir. 2008) (citing Chapman v. United
States, 500 U.S. 453, 467 (1991)); Brierton, 165 F.3d at 1139.
Generally, this inquiry requires us to determine whether
the defendant was on notice that his conduct was ille-
gal. Here, we must adjust this inquiry to fit the Guidelines
by asking whether, at the time of the armed robbery,
Tichenor was on notice that his prior conviction for
resisting law enforcement qualifies as a “crime of vio-
lence.”
Section 4B1.1(a) of the Guidelines provides that a de-
fendant qualifies as a career offender if: (1) he was at
least 18 when he committed the instant offense; (2) the
instant offense is a felony that is either a “crime of violence
or a controlled substance offense”; and (3) he has at
least two prior felony convictions for either “a crime of
violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a). Section 4B1.2(a) defines “crime of violence” as:
[A]ny offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that—
18 No. 11-2433

(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 the use of explosives, or otherwise in-
volves conduct that presents a serious potential
risk of physical injury to another.
U.S.S.G. § 4B1.2(a). Tichenor contends that resisting law
enforcement could only be construed as a “crime of
violence” under the residual clause of § 4B1.2(a)(2). For
several reasons, Tichenor has failed to establish that
this clause was vague as applied to him.
First, the criminal statutes were clear at the time of the
bank robbery that Tichenor faced up to 25 years’ impris-
onment for the robbery, pursuant to 18 U.S.C. § 2113(d),
and 10 additional years for discharging of a firearm
during a crime of violence, pursuant to 18 U.S.C.
§ 924(c)(1)(A)(iii). These statutes provide notice of the
illegality of Tichenor’s conduct and the consequences
that he could face.
Second, the law was sufficiently clear at the time of the
armed robbery (in 2009) that a conviction for felony re-
sisting law enforcement qualifies as “crime of violence.”
We had ruled in United States v. Spells that the Indiana
felony for resisting law enforcement by vehicular flight
qualifies as a “crime of violence” and a “violent fel-
ony.” 537 F.3d 743, 752-54 (7th Cir. 2008). It is of no conse-
quence that appellate courts had reached differing con-
clusions, see Sykes, 131 S. Ct. at 2272 (listing cases), because
this circuit’s position, which was binding on Tichenor,
provided him with notice that conduct similar to
No. 11-2433 19

his resisting law enforcement qualifies as a crime of
violence. Regardless of any uncertainty as to the
scope of the residual clause in other contexts and which
methodology to apply, Tichenor’s prior offense had
been clearly identified as qualifying as a crime of
violence in this circuit at the time of the armed robbery.
Third, Tichenor admits that his decision to enter into
a plea bargain was based in part on his view of how the
career offender guideline “should be interpreted.” But
the vagueness doctrine is concerned only with whether
the defendant had notice of what the law is, not what
the law should be or might one day become.
Finally, we are reviewing only for plain error because
Tichenor did not raise a vagueness objection to the
district court. We have held that the Guidelines are not
susceptible to vagueness challenges, and we held (in
2008) that vehicular flight qualifies as a crime of violence.
We are confident that no error has occurred, let alone
an error that is “clear or obvious.” Perez, 673 F.3d at 669.
We once again hold that the Guidelines, as a matter
of law, are not susceptible to vagueness challenges. The
sound reasoning set forth in Brierton, which we affirmed
in Idowu, has only been strengthened by the shift of
the Guidelines to advisory status.

C. Whether the Sentencing Commission Exceeded its
Authority in Promulgating the Current Definition
of “Crime of Violence”
Tichenor’s other claim on appeal is that the Sentencing
Commission exceeded its authority when it defined “crime
20 No. 11-2433

of violence” in U.S.S.G. § 4B1.2(a) differently from the
definition supplied by Congress. Like his vagueness
challenge, Tichenor raises this challenge for the first
time on appeal, and the government argues for for-
feiture rather than waiver.
Congress has instructed the Sentencing Commission to
promulgate “guidelines, as described in this section,”
which define “the appropriate . . . term of imprisonment.”
28 U.S.C. § 994(a)(1)(B). The Commission must establish
categories of offenses, taking into account “the nature and
degree of harm caused by the offense,” “the community
view of the gravity of the offense,” and “the deterrent
effect a particular sentence may have on the commission
of the offense by others.” Id. § 994(c). In the Sentencing
Reform Act of 1984, Congress directed the Sentencing
Commission to specify a substantial term of imprison-
ment for career offenders. See id. § 994(h). Congress
provided in 18 U.S.C. § 16 a definition of “crime of vio-
lence” for the Commission to use.4 See Leocal v. Ashcroft,
543 U.S. 1, 6 (2004). The initial version of the career of-
fender guideline did incorporate this definition, see
U.S.S.G. § 4B1.2 (1987); however, the current version
contains a definition of “crime of violence” derived from

4
Section 16 defines “crime of violence” as “(a) an offense that
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 16.
No. 11-2433 21

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B).
This change was apparently made to improve the defini-
tion’s clarity. See U.S.S.G. App. C, amend. 268 (Nov. 1,
1989).
We have expressly held that the Sentencing Commis-
sion had the authority to adopt the current definition
of “crime of violence” at U.S.S.G. § 4B1.2. See United
States v. Rutherford, 54 F.3d 370, 374 n.11 (7th Cir. 1995),
abrogated on other grounds by Begay v. United States, 553
U.S. 137 (2008). In Rutherford, we recognized that even
if the Sentencing Commission adopted a broader
definition than Congress envisioned, the Commission
clearly has the authority to consider the relevant
criminal history of offenders and is directed by 28 U.S.C.
§ 994(i) to ensure that the Guidelines specify a sentence
for a substantial term of imprisonment for defendants
with a history of two or more felony convictions. Id. We
also noted that the legislative history of the Sentencing
Reform Act states that 28 U.S.C. § 994(h), the statute
directing the Sentencing Commission to create the
career offender guideline, is “not necessarily intended to
be an exhaustive list of the types of cases in which the
guidelines should specify a substantial term of impris-
onment, nor of types of cases in which terms at or close
to authorized maxima should be specified.” Id. (citing
S. Rep. No. 98-225, 98th Cong., 2d Sess. 176 (1983), reprinted
in 1984 U.S.C.C.A.N. 3182, 3359). We have recently reaf-
firmed that Congress gave the Sentencing Commission
very broad discretion in drafting the Guidelines. See
United States v. Knox, 573 F.3d 441, 446-50 (7th Cir.
2009) (confirming the Commission’s authority to go
22 No. 11-2433

beyond specifically enumerated drug offenses within
28 U.S.C. § 994(h) in its determination of which
controlled substance offenses qualify for career offender
treatment under U.S.S.G. § 4B1.1).
Tichenor’s sole argument against applying our clear
precedent is that Rutherford did not mention that
Congress had specified the definition to be used in 18
U.S.C. § 16. He contends that, even if the Sentencing
Commission had the authority to determine that other
prior offenses qualify, the benchmark for that determina-
tion should be the definition provided by Congress.
Tichenor does not provide any legal support for this
view, nor does he explain how the current definition
has departed from the “benchmark” provided by Con-
gress. Tichenor has failed to prove that a plain error has
occurred, and we hold that the Sentencing Commis-
sion acted within its authority when defining “crime of
violence” in U.S.S.G. § 4B1.2(a).

III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.

6-13-12