United States v. Wurie

United States Court of Appeals
For the First Circuit

No. 15-1395

UNITED STATES OF AMERICA,

Appellee,

v.

BRIMA WURIE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, was on
brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

August 8, 2017
 TORRUELLA, Circuit Judge. Defendant-Appellant, Brima

Wurie ("Wurie"), who was sentenced as a career offender under

section 4B1.1 of the United States Sentencing Guidelines

("U.S.S.G." or "Guidelines"), challenges the classification of his

prior Massachusetts convictions -- which include convictions for

assault and battery with a dangerous weapon ("ABDW"), resisting

arrest, larceny from the person, and assault and battery on a

police officer -- as "crime[s] of violence" under the residual

clause of U.S.S.G. § 4B1.2(a)(2). After careful consideration,

we affirm.

I. Background

Wurie was convicted of distribution of five grams or

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).1 At

the time of the sentencing hearing on March 16, 2015, Wurie had a

number of prior convictions under Massachusetts law, including:

two convictions for ABDW, one conviction for larceny from the

1 Wurie was also convicted of firearm possession by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1), and of possession of
fifty grams or more of cocaine base with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii),
following a four-day jury trial, but those convictions were vacated
by this court in an earlier appeal and the case was remanded to
the district court for resentencing on the remaining count of
conviction. See United States v. Wurie, 728 F.3d 1, 14 (1st Cir.
2013), aff'd sub nom. Riley v. California, 134 S. Ct. 2473, 2495
(2014); Order, United States v. Wurie, No. 11-1792 (1st Cir.
Aug. 2, 2013), Dkt. No. 53 (clarifying that the court only vacated
Wurie's convictions on two of three counts).

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person, one conviction for resisting arrest, and one conviction

for assault and battery on a police officer.

The district court determined at sentencing that Wurie

had at least two prior convictions for "crime[s] of violence," as

that term is defined in U.S.S.G. § 4B1.2(a)(2), which rendered him

a career offender under U.S.S.G. § 4B1.1(a). 2 Wurie's total

offense level of thirty-two and his classification as a career

offender yielded a Guidelines sentencing range ("GSR") of 210 to

2 Under the Guidelines, "[a] defendant is a career offender if
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime
of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense." U.S.S.G.
§ 4B1.1(a).

At the relevant time, the Guidelines defined "crime of violence"
as:

[A]ny 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 the use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). The underlined phrase,
often referred to as the "residual clause," has since been
eliminated from the Guidelines. See U.S.S.G. App. C Supp., Amend.
798 (effective Nov. 1, 2016).

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240 months of imprisonment.3 After considering all the 18 U.S.C.

§ 3553(a) sentencing factors, the district court imposed a

downwardly variant sentence of 168 months of imprisonment, to be

followed by seven years of supervised release, because it

considered that Wurie's recent conduct showed that he was

"turn[ing] [his] life around."

On appeal, Wurie concedes that the offenses for which he

had been convicted previously have been "held to be crimes of

violence under the [Guidelines'] residual clause." He initially

argued, however, that the residual clause of section 4B1.2(a)(2),

defining "crime of violence" as an offense that "involves conduct

that presents a serious potential risk of physical injury to

another," is unconstitutionally vague following the Supreme

Court's ruling in Johnson v. United States, 135 S. Ct. 2551 (2015)

("Johnson II"), which held that the identically worded residual

clause in the definition of "violent felony" under the Armed Career

Criminal Act ("ACCA") was void for vagueness under the Fifth

Amendment Due Process Clause. Id. at 2557. The government

initially conceded that in light of Johnson II, the Guidelines'

residual clause was unconstitutionally vague, but argued that

3 A total offense level of thirty-two and his criminal history
category of VI yields a GSR of 210 to 262 months of imprisonment,
but his GSR was capped at 240 months under U.S.S.G. § 5G1.2(b)
because the statutory maximum for the count of conviction was
twenty years. See 21 U.S.C. § 841(b)(1)(C).

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Wurie was correctly sentenced as a career offender because his

prior convictions could also be classified as crimes of violence

under section 4B1.2(a)(1) of the Guidelines (commonly referred to

as the Guidelines' "force clause"), inasmuch as the offenses of

conviction have "as an element the use, attempted use, or

threatened use of physical force against the person of another."

U.S.S.G. § 4B1.2(a)(1). Wurie disputes that his prior convictions

were for crimes of violence under the Guidelines' force clause.

While this appeal was pending, however, the Supreme

Court handed down Beckles v. United States, which held that Johnson

II does not apply to the career offender guideline because the

Guidelines, unlike the ACCA, are advisory, not mandatory, and thus

are not subject to a vagueness challenge on due process grounds.

137 S. Ct. 886, 892 (2017). Our decision in United States v.

Thompson, then held that, in circumstances like these, we will not

accept the government's concession on appeal that Johnson II

invalidated the residual clause of the Guidelines. 851 F.3d 129,

130-31 (1st Cir. 2017). Beckles thus foreclosed Wurie's initial

argument.

Faced with this, Wurie modified his argument and claimed

that although his constitutional challenge for vagueness was

foreclosed by Beckles, the application of the Guidelines' residual

clause to particular offenses must still be reconsidered in light

of Johnson II. This, Wurie contends, is so because the language

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of the Guidelines' residual clause is identical to and suffers

from the same deficiencies that led the Supreme Court to invalidate

the ACCA's residual clause on due process grounds. In the

alternative, Wurie requests that his case be remanded to the

district court for resentencing in light of Amendment 798 to the

Guidelines, which narrowed the definition of "crime of violence"

by eliminating the residual clause, among other changes.

II. Discussion

A. Guidelines' Residual Clause

We review de novo preserved objections to the

classification of a prior offense as a "crime of violence" under

the Guidelines. See United States v. Velázquez, 777 F.3d 91, 94

(1st Cir. 2015). Because under section 4B1.1(a)(3) of the

Guidelines a defendant needs to have only "two prior felony

convictions of either a crime of violence or a controlled substance

offense" to qualify as a career offender, we need to determine

only whether two of Wurie's past convictions are for "crimes of

violence" as that term is defined in the Guidelines. We begin

with Wurie's two prior convictions for ABDW under Massachusetts

law.

In 2009, we held in United States v. Glover, that

Massachusetts ABDW is a crime of violence under U.S.S.G.

§ 2K2.1(a)(2) and the residual clause of § 4B1.2(a). 558 F.3d 71,

79-80 (1st Cir. 2009). There, we explained that

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 to qualify as a crime of violence under the residual
clause, the offense at issue must also "(i) pose a degree
of risk that is similar to the degree of risk posed by
the enumerated offenses -- namely, arson, burglary,
extortion, and offenses involving the use of explosives
-- and (ii) be similar 'in kind' to those offenses."

Id. at 80 (quoting United States v. Almenas, 553 F.3d 27, 34

(1st Cir. 2009)). We noted that the ABDW "statute applies to an

individual who 'commits an assault and battery upon another by

means of the dangerous weapon.'" Id. at 80-81 (quoting Mass. Gen.

Laws ch. 265, § 15A(b)). "Because a defendant must employ a

'dangerous weapon' to be convicted of ABDW, it is evident that the

offense poses a serious potential risk of physical injury to

another. . . . [E]ither the perpetrator applied force by means

of an instrumentality designed to produce death or great bodily

harm, or applied force with an instrumentality by using it in a

dangerous manner." Id. at 81. We found that ABDW "is a purposeful

offense . . . that involves conduct at least as aggressive and

violent as the conduct at issue encompassed by the enumerated

crimes." Id. In rejecting Glover's argument that, because some

convictions for ABDW may involve non-violent conduct, ABDW could

not be categorically a crime of violence, id. at 82, we noted that

"[w]hen determining whether ABDW qualifies as a crime of violence,

we are governed by the Supreme Court's admonishment . . . that not

'every conceivable factual offense covered by a statute must

necessarily present a serious potential risk of injury' before the

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offense can be classified as a crime of violence. Rather, we are

instructed to consider the 'ordinary case.'" Id. (quoting James

v. United States, 550 U.S. 192, 208 (2007)). We concluded "with

confidence that the ordinary ABDW offense creates a serious

potential risk of injury to another." Id.

We took a similar approach in United States v. Hart,

where we held that a conviction for ABDW was a predicate offense

under the ACCA's residual clause.4 674 F.3d 33, 44 (1st Cir.

2012). There, Hart urged us to reconsider our holding in Glover

in light of the Supreme Court's decision in Johnson v. United

States, 559 U.S. 133 (2010) and our decision in United States v.

Holloway, 630 F.3d 252 (1st Cir. 2011), and hold that "because

ABDW also may be committed recklessly, it cannot qualify as a

categorical ACCA predicate." Hart, 674 F.3d at 41-42. We

declined Hart's invitation. Id. at 42. We noted that "an ABDW

conviction may rest on a recklessness theory, and it is not

insignificant that reckless ABDW may be committed with a seemingly

innocent object used in a dangerous fashion, as in the case of a

reckless, vehicular ABDW." Id. at 43 (footnotes omitted). We

4 Because "[t]he Guidelines' definition of 'crime of violence'
closely track[ed] the definition of 'violent felony' in the [ACCA],
18 U.S.C. § 924(e), and the residual clauses in each [were]
identically worded," this court "treated interpretations of one as
persuasive authority relative to the other." Glover, 558 F.3d at
80 n.3.

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held, however, that "this fact pattern does not represent the vast

majority of ABDW convictions, and our analysis under the residual

clause is explicitly, and necessarily, limited to the 'ordinary

case.'" Id. at 43 (citing James, 550 U.S. at 208). We concluded

that, because in the ordinary case of ABDW a "composite of

purposeful, violent, and aggressive conduct is the norm, . . . a

conviction for Massachusetts ABDW qualifies as a predicate offense

under ACCA's residual clause, pretermitting the need to analyze it

under the force clause." Id. at 44.

After Glover and Hart were decided, the Supreme Court

handed down Johnson II, in which it invalidated the ACCA's residual

clause, finding it unconstitutionally vague. Johnson II,

135 S. Ct. at 2563. Because the ACCA's and the Guidelines'

residual clauses were identically worded, the government conceded

in many cases, including this one, that the Guidelines' residual

clause was also unconstitutionally vague and urged the courts to

find that ABDW was a crime of violence under the Guidelines' force

clause. See, e.g., United States v. Tavares, 843 F.3d 1, 9

(1st Cir. 2016). In light of the government's concession, in

Tavares, this court assumed without deciding that the Guidelines'

residual clause was unconstitutionally vague and analyzed ABDW

convictions under the force clause, U.S.S.G. § 4B1.2(a)(1). Id.

at 13 (finding that a conviction for "the intentional and

unjustified use of force upon the person of another, however

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slight" with a dangerous weapon (subsection 1 of ABDW) is a crime

of violence under the force clause, and refusing to decide whether

a conviction under the recklessness theory (subsection 2 of ABDW)

is also a crime of violence under the force clause). However, in

March 2017, the Supreme Court clarified in Beckles that Johnson II

does not apply to section 4B1.2(a) of the Guidelines because the

Guidelines, unlike the ACCA, are not subject to vagueness

challenges under the Due Process Clause. Beckles, 137 S. Ct. at

892.

After Beckles was issued, this court decided Thompson,

which affirmed the district court's sentencing of Thompson as a

career offender relying in part on a Massachusetts ABDW conviction

that it deemed a crime of violence under the residual clause of

section 4B1.2(a)(2). 851 F.3d at 130-31.

Wurie urges us to depart from this precedent. Despite

Beckles's clarification that the holding in Johnson II does not

apply to the Guidelines' residual clause, Wurie argues that our

precedent is no longer good law and should be reconsidered in light

of Johnson II because both the Guidelines' and the ACCA's residual

clauses are identically worded and thus section 4B1.2(a)(2)

implicates many of the same concerns identified in Johnson II.

Specifically, Wurie argues that Beckles did not discuss how the

Guidelines' residual clause should be interpreted in light of

Johnson II, or what criteria must be employed in determining

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whether any particular offense qualifies as a "crime of violence"

under the Guidelines' residual clause.

Wurie, however, does not convincingly explain how we can

overcome the law of the circuit rule and thus depart from our

precedent, in light of his acknowledgement that neither Beckles

nor Johnson II discuss how the Guidelines' residual clause should

be interpreted, or what criteria must be employed in determining

whether any particular offense qualifies as a "crime of violence"

under the residual clause; especially when our precedent does

address these issues.

The law of the circuit rule (a branch of the stare

decisis doctrine) holds that "newly constituted panels in a multi-

panel circuit court are bound by prior panel decisions that are

closely on point." San Juan Cable LLC v. P.R. Tel. Co.,

612 F.3d 25, 33 (1st Cir. 2010). "Although this rule is not

'immutable,' the exceptions are extremely narrow and their

incidence is hen's-teeth-rare." Id. (internal citation omitted).

These "exceptions come into play only when the holding of the prior

panel is 'contradicted by controlling authority, subsequently

announced (say, a decision of the authoring court en banc, a

Supreme Court opinion directly on point, or a legislative

overruling).'" Id.; see also United States v. Montoya, 844 F.3d

63, 73 n.5 (1st Cir. 2016) (quoting United States v. Rodríguez,

527 F.3d 221, 225 (1st Cir. 2008)). An even less common exception

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has been recognized in those "rare instances in which authority

that postdates the original decision, although not directly

controlling, nevertheless offers a sound reason for believing that

the former panel, in light of fresh developments, would change its

collective mind." Rodríguez, 527 F.3d at 225 (quoting Williams

v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)).

Here, there has been no en banc decision from this court

contradicting our holding in Glover. Also, there has been no

statutory overruling. Although the United States Sentencing

Commission eliminated the residual clause from the Guidelines

through Amendment 798, as will be discussed infra, Amendment 798

was not made retroactive. Furthermore, as Wurie himself concedes,

Beckles, which dealt with the Guidelines' residual clause and

refused to extend Johnson II's holding to the Guidelines, did not

specify how Johnson II, which dealt with the ACCA's residual

clause, affects the interpretation of the Guidelines' residual

clause. Thus there is no Supreme Court opinion directly on point

contradicting our precedent. We are thus left to consider the

only remaining exception to the law of the circuit rule -- whether

Johnson II, although not directly controlling, offers a sound

reason for believing that the Glover panel would change its

collective mind.

Wurie's main contention on this point is that Johnson II

overruled James, which had set out the "ordinary case" analysis

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used in Glover. According to Wurie, this analysis, which looks

at "whether the conduct encompassed by the elements of the offense,

in the ordinary case, presents a serious potential risk of injury

to another," James, 550 U.S. at 208, was in turn relied on by this

court in holding in Glover that Massachusetts ABDW is a crime of

violence under the Guidelines' residual clause. But, according

to the government, this does not satisfy the law of the circuit

exception because Johnson II does not mandate the conclusion that

the "ordinary case" analysis is invalid in all its applications.

The government argues that Johnson II identified the "ordinary

case" analysis as only one part of its conclusion as to why the

residual clause of the ACCA was unconstitutionally vague. It

posits that the Supreme Court ultimately ruled that the ACCA's

residual clause was unconstitutionally vague because it both

failed to give fair notice to the defendants and led to arbitrary

enforcement by judges. The government argues, however, that these

same concerns cannot be translated into a Guidelines case and that

the Supreme Court already rejected in Beckles that the fair notice

concern presents an issue in cases under the advisory Guidelines.

We find the government's arguments more persuasive. We

do not read Johnson II as necessarily rejecting the "ordinary case"

analysis in all of its applications. Instead, we infer from

Johnson II that the analysis applied in James does not provide

clarity to the facially ambiguous language of the ACCA's residual

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clause. Because the Supreme Court has given different treatment

to the exact same language in the ACCA's and the Guidelines'

residual clause due to the inherent differences of both provisions

-- the former being mandatory while the latter is not --

see Beckles, 137 S. Ct. at 892, we are not persuaded that Johnson

II "offers a sound reason for believing" that the panel in Glover

"would change its collective mind" in light of Johnson II.

Rodríguez, 527 F.3d at 225 (quoting Williams, 45 F.3d at 592).

Even Wurie concedes that "[w]ith . . . James . . . overruled,

whether the ordinary case analysis remains viable, and, if so, how

the ordinary case should be defined, is unclear." Accordingly,

we do not believe that the standard set in Rodríguez has been met

and thus decline Wurie's invitation to reconsider our precedent.

Applying our on-point precedent, we hold that Wurie's

two prior convictions for ABDW under Massachusetts law qualify as

crimes of violence under the Guidelines' residual clause.5 See

Glover, 558 F.3d at 80; see also Hart, 674 F.3d at 44.6

5 We likewise reject Wurie's argument that the rule of lenity
requires us to revisit the holdings of our earlier cases. Lenity
is not a new concept, and therefore itself provides no basis upon
which to ignore on-point precedent. See United States v.
Councilman, 418 F.3d 67, 83 (1st Cir. 2005) (en banc).
6 Because the career offender guideline only requires two prior
convictions for a "crime of violence," we need not consider whether
Wurie's other prior convictions were also for "crime[s] of
violence."

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B. Amendment 798

As a fallback argument, Wurie argues that his case should

be remanded to the district court for resentencing in light of

Amendment 798 to the Guidelines, which narrowed the definition of

"crime of violence" under U.S.S.G. § 4B1.2(a) by eliminating the

residual clause, among other changes. Wurie concedes that

Amendment 798 was not made retroactive,7 but argues that where, as

here, a non-retroactive substantive amendment to the Guidelines

post-dates a defendant's sentencing, we have discretion to remand

the case for resentencing. Citing to United States v. Godin,

522 F.3d 133 (1st Cir. 2008) (per curiam) and United States v.

Ahrendt, 560 F.3d 69 (1st Cir. 2009), Wurie urges us to exercise

that discretion and remand his case to the district court. We

decline to do so.

In Godin, the United States District Court for the

District of Maine, upon learning that Godin had committed two prior

crimes of violence, deemed her a career offender and sentenced her

to 262 months. 522 F.3d at 133-34. On appeal, Godin challenged

the district court's determination that she was a career offender.

7 The Sentencing Commission can opt to make amendments
retroactive, but it chose not to do so in this case. See
United States v. Strevig, 663 F. App'x 908, 913-14 (11th Cir. 2016)
(unpublished) (holding that Amendment 798 is not retroactive
because the Sentencing Commission decided not to make it
retroactive and it is not a clarifying amendment but rather a
substantive change to the career offender guideline).

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Id. at 134. While Godin's appeal was pending, the Sentencing

Commission amended the rules for determining when multiple crimes

are counted as one for criminal history purposes. Id. Under this

new amendment ("Amendment 709"), Godin's two prior crimes of

violence would have counted as one and she would not have qualified

as a career offender, thus substantially reducing her GSR. Id.

Although Amendment 709 was not retroactive, which meant that Godin

was not entitled to reap its benefit, we remanded the case to allow

the district court an opportunity to consider "the [Sentencing]

Commission's current policy position on who should be deemed a

career offender." Id. at 136; see also Ahrendt, 560 F.3d at 79-80

(likewise remanding the case to allow the district court to decide

whether, in light of Amendment 709, the defendant's prior sentences

should be counted as a single sentence).

But Godin and Ahrendt both treat the issue as

discretionary for this court. United States v. Adams, 640 F.3d

41, 43 (1st Cir. 2011) (per curiam). We have not always chosen

to exercise that discretion. See id. (declining to exercise

discretion to remand in light of a later amendment to the

Guidelines when "the district court was made aware at sentencing

of the proposed guideline amendment"). We find the instant case

to be more analogous to the more recent case of United States v.

Matos, 611 F.3d 31 (1st Cir. 2010). In Matos, the defendant, like

Wurie, asserted that the court should remand his case to the

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district court for resentencing consistent with Godin and Ahrendt,

so that the district court could decide whether Amendment 709

needed to be considered in determining his sentence. Id. at 38-39.

We concluded, however, that the resentencing process upon remand

for Matos would be much more complex than that of Godin and

Ahrendt -- in those cases, it was "evident" that, if the amended

Guidelines had been in effect at the time the defendants were

sentenced, "the offenses at issue would have been counted as one"

and the defendants would not be subject to the career offender

enhancement. Id. at 39. In Matos, it was much less clear whether

Amendment 709 would apply or change Matos' status as a career

offender. Id.

Likewise here, although Amendment 798 eliminates the

residual clause of the Guidelines, there still remains a

significant possibility that Wurie would be subject to the career

offender enhancement under the force clause. Under Amendment 798,

the Sentencing Commission revised the definition of "crime of

violence" as defined in section 4B1.2(a), eliminating the residual

clause and deleting burglary of a dwelling from the enumerated

offenses clause (§ 4B1.2(a)(2)), while leaving the force clause

(§ 4B1.2(a)(1)) intact. If we were to remand the case and the

district court were to apply Amendment 798, it would then have to

determine whether at least two of Wurie's prior

offenses -- resisting arrest, larceny from the person, ABDW, and

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assault and battery on a police officer -- qualify as crimes of

violence under the force clause.8 This determination will be much

more complicated and unlike the one involved in both Godin and

Ahrendt, where the district court had to make a simple mechanistic

change -- counting the defendant's prior offenses as a single

sentence rather than separate sentences. Because remand will

potentially lead to a time-consuming process, and sentencing

courts are not mandated to take into consideration non-retroactive

substantive amendments to the Guidelines that post-date a

defendant's sentencing, we hold, just as we did in Matos, that it

is not prudent to remand this case for resentencing. 611 F.3d at

39.

III. Conclusion

Because Beckles did not extend the ruling of Johnson II

to the Guidelines, the Guidelines' residual clause, as it stood at

8 The process would require determining whether any of the
statutes of conviction that Wurie violated are divisible and can
be violated in multiple ways, some of which satisfy the amended
definition of crime of violence while others do not. If such is
the case, the court would then need to look at Shepard documents
to identify the specific offenses for which Wurie was convicted
and determine if those satisfy the definition. See Shepard v.
United States, 544 U.S. 13, 26 (2005); see also United States v.
Faust, 853 F.3d 39, 52-53 (1st Cir. 2017), reh'g denied, No. 14-
2292, 2017 WL 3045957 (1st Cir. July 19, 2017). This process
would also require identifying and tracking down Shepard documents
if they are not readily available, analyzing those documents to
ascertain Wurie's specific offenses of conviction, and deciding
whether those offenses qualify as crimes of violence.

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the time of sentencing, is still a lens through which Wurie's prior

convictions may be judged. Under the Guidelines' residual clause,

Wurie's ABDW convictions were for "crime[s] of violence."

Accordingly, he was correctly sentenced as a career offender.

Affirmed.

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