In a terse opinion, the panel says that after Beckles, a conviction for voluntary manslaughter is a crime of violence as defined in USSG § 4B1.2(a)(2)’s residual clause. It pointed out that Madrid, 805 F.3d 1204, was “partially abrogated” by Beckles. It also noted that the guidelines are not vulnerable to a Due Process challenge because Beckles said “the advisory guidelines do not fix the permissible range of sentences . . . .they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.”
A number of circuits have disagreed and held that the Federal Sentencing Guidelines are subject to a vagueness attack. See United States v. Hurlbert, -- F.3d --, 2016 WL 4506717 (7th Cir. Aug. 29, 2016) (en banc); United States v. Sheffield, 832 F.3d 296 (D.C. Cir. 2016); United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015); United States v. Townsend, 638 F. App’x 172 (3d Cir. 2015). A number of courts did not weigh in on this issue, but simply assumed that the guideline is vague based on the concession from the government.
Although Little will not receive a third trial, he will be resentenced. Following the decision in United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015), the government agreed that Little’s prior New Mexico convictions for battery on a peace officer should not have been considered crimes of violence for purposes of the sentencing guidelines, and his sentence was therefore improperly enhanced.
It was not clear whether the district court relied on the use of force definition or the residual clause contained in the career offender guideline, which is the relevant definition of "crime of violence" for purposes of 2K2.1. The government conceded on appeal that, following Johnson v. US, 135 S.Ct. 2551 (2015), and US v. Madrid, 805 F.3d 1204 (10th Cir. 2015), reliance on the residual clause of the career offender guideline was error. Accordingly, the panel remanded for resentencing.
It defines "crimes of violence" that trigger the guideline as "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."U.S.S.G. § 4B1.2(a) (stricken language unconstitutional under United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015)).When asking whether a prior conviction matches a predicate offense, courts will compare the prior’s elements either to (1) the elements of the force-clause, in which case the prior must contain an element of physical force (actual violence, either used, attempted, or threatened), against the person of another (force against property won’t do here); or to (2) the generic elements of an enumerated offense (more on generic elements later).