USA v. Darryl Rollin

Filing

Filed opinion of the court by Judge Sykes. VACATED and REMANDED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and J. Phil Gilbert,* District Court Judge. (*Of the Southern District of Illinois, sitting by designation.) [6689412-1] [6689412] [13-1731]

Case: 13-1731

Document: 45

Filed: 09/01/2015

Pages: 14

In the

United States Court of Appeals
For the Seventh Circuit
No. 13-1731
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRYL ROLLINS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CR-186 — Rudolph T. Randa, Judge.

ARGUED JANUARY 21, 2014 — DECIDED SEPTEMBER 1, 2015

Before KANNE and SYKES, Circuit Judges, and GILBERT,
District Judge.*
SYKES, Circuit Judge. Darryl Rollins pleaded guilty to selling
crack cocaine and was sentenced to 84 months in prison and

*

Of the Southern District of Illinois, sitting by designation.

Case: 13-1731

2

Document: 45

Filed: 09/01/2015

Pages: 14

No. 13-1731

four years of supervised release. He challenges his sentence on
two grounds. First, he argues that the district judge improperly
classified him as a career offender under the Sentencing
Guidelines based in part on a prior conviction for unlawful
possession of a short-barreled shotgun, which he contends is
not a crime of violence under the “residual clause” of the
career-offender guideline, U.S.S.G. § 4B1.2(a)(2). Second, he
argues that the judge incorrectly calculated the recommended
term of supervised release under the Guidelines. Neither claim
was preserved below, so our review is for plain error only.
The Supreme Court’s recent decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), has introduced a potential
complication. Johnson held that the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(ii), is so hopelessly vague that an increased
sentence under the clause violates the defendant’s right to due
process. Johnson, 135 S. Ct. at 2563. The residual clause in the
career-offender guideline is materially identical to the residual
clause in the ACCA, so we held this case to await Johnson and
ordered supplemental briefing after the Court issued its
opinion. Those briefs are now in.
The parties agree that under existing circuit precedent—
notably, United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)—
Johnson does not affect this case. Tichenor holds that the
Guidelines cannot be challenged as unconstitutionally vague.
Id. at 364–65. Rollins has not asked us to reconsider Tichenor in
light of Johnson, so we leave that question for another day. We
note, however, that the U.S. Sentencing Commission has begun
the process of amending the career-offender guideline to delete

Case: 13-1731

Document: 45

Filed: 09/01/2015

No. 13-1731

Pages: 14

3

the residual clause, bringing the Guidelines into alignment
with Johnson.
In the meantime, taking this case as it originally came to us,
Rollins’s challenge to the application of the career-offender
guideline fails on plain-error review. The application notes to
§ 4B1.2 specifically list possession of a sawed-off shotgun as a
qualifying crime of violence. Under both Supreme Court and
circuit precedent, the Sentencing Commission’s application
notes are authoritative interpretations of the Guidelines and
receive broad deference. Stinson v. United States, 508 U.S. 36,
44–45 (1993); United States v. Raupp, 677 F.3d 756, 760–61 (7th
Cir. 2012). Although we’ve held that possession of a shortbarreled shotgun is not a predicate felony under the residual
clause of the ACCA, see United States v. Miller, 721 F.3d 435, 437
(7th Cir. 2013), the Sentencing Commission “is free to go its
own way” and classify the same offense as a crime of violence
for purposes of the career-offender guideline, Raupp, 677 F.3d
at 760.
On Rollins’s second claim of error, the government agrees
that the district judge was likely unaware of a change in the
recommended term of supervised release brought about by the
Fair Sentencing Act of 2010. On this limited issue only, we
vacate Rollins’s sentence and remand for redetermination of
the term of supervised release.

I. Background
On four separate occasions in 2009 and early 2010, Rollins
sold crack cocaine to confidential informants. These sales led

Case: 13-1731

4

Document: 45

Filed: 09/01/2015

Pages: 14

No. 13-1731

to his indictment on four counts of illegal distribution of a
controlled substance. See 21 U.S.C. § 841(a)(1). The government
sought a statutory sentencing enhancement, see id. § 851, based
on Rollins’s 2005 Wisconsin felony conviction for possession of
marijuana with intent to distribute.
Rollins pleaded guilty pursuant to a plea agreement to two
counts in the indictment (based on sales in May 2009 and
January 2010) and conceded for purposes of sentencing that he
sold between 196 and 280 grams of crack cocaine. In exchange
the government dropped the other two counts and withdrew
its request for the § 851 sentencing enhancement. The probation office calculated an advisory guidelines sentencing range
of 188–235 months based on an offense level of 31 and a
criminal history category of VI.
To reach offense level 31, the probation office began by
classifying Rollins as a career offender, which gave him an
initial score of 34, see U.S.S.G. § 4B1.1(b)(3), then deducted
three points for acceptance of responsibility, see id. § 3E1.1. The
career-offender guideline applies if the defendant has two or
more prior convictions for a felony controlled-substance
offense or a “crime of violence.” Id. § 4B1.1(a). Rollins’s
Wisconsin felony drug conviction clearly counted as one
predicate for career-offender status. The second—the one at
issue here—is a 1996 Wisconsin conviction for possession of an
unregistered short-barreled shotgun. See WIS. STAT. § 941.28.
Though it looms large on appeal, at sentencing Rollins did not
object to counting this conviction toward the two necessary for
the career-offender guideline. The district court accepted the
probation office’s calculations.

Case: 13-1731

No. 13-1731

Document: 45

Filed: 09/01/2015

Pages: 14

5

Rollins originally faced a mandatory minium sentence of
five years in prison and a possible maximum of 40 years. That
statutory range was reduced to no minimum and a maximum
of 20 years by the Fair Sentencing Act of 2010, Pub. L. No. 111220, 124 Stat. 2372, which under Dorsey v. United States,
132 S. Ct. 2321 (2012), applies retroactively. The Fair Sentencing
Act also reduced Rollins’s statutory minimum term of supervised release from four years to three years; the government
alerted the district judge to this change. The maximum term of
supervised release was life. See 21 U.S.C. § 841(b)(1)(C).
By reducing the maximum prison term, the Fair Sentencing
Act also mitigated the advisory imprisonment range under the
Guidelines. Rollins’s total offense level dropped from 31 to 29,
which reduced the recommended range to 151–188 months. At
sentencing the parties agreed on this range. (Without the
career-offender designation, Rollins’s offense level would have
been 27, reducing the range to 130–162 months.) Regarding
supervised release, although the government had alerted the
court to the reduction in the statutory minimum in light of the
Fair Sentencing Act, no one told the judge that the recommended term under the Guidelines was now three years rather
than four to five years.1
The government recommended a below-guidelines sentence of 87 months in prison based on Rollins’s substantial
assistance, see U.S.S.G. § 5K1.1, and in recognition of the

1

This change occurred because the lower maximum penalty shifted
Rollins’s offenses from Class B to Class C felonies.

Case: 13-1731

Document: 45

Filed: 09/01/2015

6

Pages: 14

No. 13-1731

18 months he had spent in state custody. Rollins argued for a
57-month sentence. The judge imposed a sentence of 84 months
in prison and four years of supervised release.

II. Discussion
On appeal Rollins makes two claims of sentencing error. He
argues that (1) the judge improperly applied the careeroffender guideline based in part on his conviction for possession of a short-barreled shotgun; and (2) the judge misapprehended the effect of the Fair Sentencing Act on the recommended term of supervised release under the Guidelines.
Both arguments raise questions of law, which we review de
novo. See United States v. Womack, 610 F.3d 427, 430 (7th Cir.
2010) (career-offender enhancement); United States v. Gibbs,
578 F.3d 694, 695 (7th Cir. 2009) (procedural error in calculating
guidelines range). But neither claim was preserved below.
Rollins’s forfeiture limits the scope of our review to plain error.
Under this standard, we will reverse only if we find “(1) an
error or defect (2) that is clear or obvious (3) affecting the
defendant’s substantial rights (4) and seriously impugning the
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Goodwin, 717 F.3d 511, 518 (7th Cir. 2013)
(quoting United States v. Anderson, 604 F.3d 997, 1001 (7th Cir.
2010)).

Case: 13-1731

Document: 45

Filed: 09/01/2015

No. 13-1731

Pages: 14

7

A. Career-Offender Guideline
Rollins first challenges the district court’s application of the
career-offender guideline, § 4B1.1, which triggered a higher
offense level and thus a higher advisory sentencing range
under the Guidelines. The career-offender guideline applies if
the defendant has committed a felony drug offense or crime of
violence and has two or more prior convictions for a felony
drug offense or crime of violence.
Rollins pleaded guilty to two of the four felony drug counts
in the indictment, and he concedes that his prior Wisconsin
drug conviction counts as one predicate for purposes of
§ 4B1.1. The probation office recommended, and the district
court agreed, that his conviction for possession of a shortbarreled shotgun counts as a second predicate. Rollins did not
object to the application of the career-offender guideline. He
now reverses course and argues that his conviction for possession of a short-barreled shotgun is not a crime of violence
under § 4B1.2(a)(2).
Under the career-offender guideline, 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 other-

Case: 13-1731

8

Document: 45

Filed: 09/01/2015

Pages: 14

No. 13-1731
wise involves conduct that presents a serious
potential risk of physical injury to another.

§ 4B1.2(a) (emphasis added). The highlighted language is
known as the “residual clause.” Rollins’s conviction for
possession of a short-barreled shotgun qualifies, if at all, only
under this provision.
The residual clause in § 4B1.2(a)(2) mirrors the residual
clause in § 924(e)(2)(B), which defines the term “violent felony”
for purposes of the ACCA’s increased minimum and maximum sentences for certain firearms offenses. The ACCA
applies if the defendant has three or more prior convictions for
a “serious drug offense” or a “violent felony.” See 18 U.S.C.
§ 924(e)(1) (increasing the minimum term from 5 to 15 years
and the maximum to life). The residual clause of the violentfelony definition in the ACCA lists the crimes of burglary,
arson, extortion, and the use of explosives, and then sweeps in
any crime that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii).
In Miller we held that possession of a short-barreled
shotgun does not present a serious potential risk of physical
injury to another and therefore is not a violent felony under the
residual clause of the ACCA. 721 F.3d at 440–44 (overruling
United States v. Upton, 512 F.3d 394 (7th Cir. 2008)). Because the
residual clause in the career-offender guideline is phrased in
precisely the same way, Rollins argues for the same result here.
That makes sense as a matter of language and logic. But an
application note to the career-offender guideline specifically
classifies this offense as a crime of violence: “Unlawfully

Case: 13-1731

No. 13-1731

Document: 45

Filed: 09/01/2015

Pages: 14

9

possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a
sawed-off shotgun or sawed-off rifle, silencer, bomb, or
machine gun) is a ‘crime of violence.’” U.S.S.G. § 4B1.2 cmt. n.1.
The Sentencing Commission’s application notes are “treated as
an agency’s interpretation of its own legislative rule[s].”
Stinson, 508 U.S. at 44. Stinson holds that an application note
must be given “controlling weight” unless it violates the
Constitution or a federal statute, or is plainly erroneous or
contradicts the text of the guideline itself. Id. at 45.
Rollins maintains that the application note necessarily
conflicts with the career-offender guideline based on our
holding in Miller, which interpreted the identical residualclause language of the ACCA.2 This argument is foreclosed by
Raupp.
Raupp raised the question whether the inchoate crime of
conspiracy to commit robbery is a crime of violence under the
residual clause of the career-offender guideline. As in this case,
an application note to § 4B1.2 specifically answered the
disputed question in the affirmative: A “[c]rime of violence …
include[s] the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.” § 4B1.2 cmt. n.1 (emphasis added). To avoid the dispositive effect of the application
note, Raupp argued that recent Supreme Court decisions
interpreting § 924(e)(2)(B)(ii) (the residual clause of the
2

Miller did not involve a challenge to the career-offender guideline; our
opinion noted but specifically reserved judgment on the question presented
here. United States v. Miller, 721 F.3d 435, 442 (7th Cir. 2013) (noting that the
application notes to the career-offender guideline list possession of a
sawed-off shotgun as a qualifying crime of violence).

Case: 13-1731

10

Document: 45

Filed: 09/01/2015

Pages: 14

No. 13-1731

ACCA)—most notably, Begay v. United States, 553 U.S. 137
(2008)—had “superseded” the note. Raupp, 677 F.3d at 757.
We rejected that argument. Citing Stinson, we explained
that “the Supreme Court treats application notes as authoritative glosses on the Guidelines, unless the notes conflict with the
text.” Id. at 759. We continued: “[T]he text of § 4B1.2(a) does
not tell us, one way or another, whether inchoate offenses are
included or excluded [as crimes of violence]. The note says
they are included.” Id. We then identified the key flaw in
Raupp’s argument:
Raupp may be assuming that § 4B1.1 and
§ 4B1.2 [the career-offender guidelines] implement § 924(e) [the ACCA]. If that were so, then
our interpretation of the Guidelines would be
required to mirror § 924(e) as interpreted in
Begay … . But the career-offender Guidelines
don’t depend on § 924(e).
Id. at 760. Our opinion in Raupp continued with the following
observation:
Thus the [Sentencing] Commission is free to
go its own way; it can classify as “crimes of
violence “ offenses that are not “violent felonies”
under § 924(e). It can’t do this by application
notes that contradict the text of the Guideline,
but what the first note to § 4B1.2 does is address
a question—the treatment of inchoate offenses—
left open by the text of § 4B1.2, as it is also left
open by the text of § 924(e) … .

Case: 13-1731

No. 13-1731

Document: 45

Filed: 09/01/2015

Pages: 14

11

Id.
In other words, “[i]f the Sentencing Commission wants to
have a list of [career-offender] qualifying offenses that differs
from the one in [the ACCA] … , there’s no reason why the
judges should say nay.” Id. at 758. Because the text of § 4B1.2
neither included nor excluded inchoate crimes, we held that the
application note did not plainly contradict the career-offender
guideline and was entitled to controlling weight under Stinson,
whatever else might be said about inchoate crimes under
§ 924(e).3 Id.
This case is indistinguishable from Raupp. To avoid the
application note, Rollins must show that it plainly contradicts
the text of § 4B1.2(a)(2). He relies solely on the conflict between
the note and our decision in Miller, which interpreted the
residual clause of the ACCA and held that possession of a
short-barreled shotgun is not a violent felony. As we said in
Raupp, however, the Sentencing Commission is “free to go its
own way” when interpreting the career-offender guideline;
judicial interpretations of the ACCA do not tie its hands. Id. at
760.

3

Other circuits have similarly deferred to the Sentencing Commission’s
authority to interpret the career-offender guideline via application notes
that depart from judicial interpretations of the ACCA. See, e.g., United States
v. Hall, 714 F.3d 1270, 1274 (11th Cir. 2013); United States v. Hood, 628 F.3d
669 (4th Cir. 2010); United States v. Lipscomb, 619 F.3d 474, 477–78 (5th Cir.
2010); United States v. Hawkins, 554 F.3d 615 (6th Cir. 2009); United States v.
Ankeny, 502 F.3d 829, 840–41 (9th Cir. 2007).

Case: 13-1731

12

Document: 45

Filed: 09/01/2015

Pages: 14

No. 13-1731

Independently of Raupp, Stinson holds as a general matter
that the Sentencing Commission’s application notes are entitled
to wide deference as the agency’s authoritative interpretation
of the Guidelines. This is where the plain-error standard of
review returns to the fore and becomes dispositive. In light of
Stinson and our own precedent in Raupp, Rollins hasn’t
established that the district court committed “plain”—i.e.,
“clear” or “obvious”—error under current law. United States v.
Olano, 507 U.S. 725, 734 (1993); United States v. Natale, 719 F.3d
719, 731 (7th Cir. 2013); United States v. Williams, 552 F.3d 592,
593 (7th Cir. 2009); see also Henderson v. United States, 133 S. Ct.
1121, 1126–31 (2013) (clarifying that the issue must be clear at
the time of appeal). Under existing law the application note
controls, and Rollins was properly sentenced as a career
offender.
Before moving on, we have a brief comment about Johnson,
the Supreme Court’s recent decision invalidating the ACCA’s
residual clause on vagueness grounds. 135 S. Ct. at 2562–63. As
we’ve explained, because the residual clauses in the ACCA and
the career-offender guideline are the same, we held this case to
await the Court’s decision in Johnson and ordered supplemental briefing to address the effect of that decision on the outcome
here. In their supplemental briefs, the parties agree that under
existing circuit precedent—most recently, Tichenor, 683 F.3d at
363–67—Johnson does not affect this case. Tichenor holds as a
categorical matter that “the Guidelines are not susceptible to
attack under the vagueness doctrine.” 683 F.3d at 364 (quoting
United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999)).

Case: 13-1731

Document: 45

No. 13-1731

Filed: 09/01/2015

Pages: 14

13

Rollins has not asked us to revisit Tichenor in light of
Johnson. Accordingly, we do not address Johnson’s effect on the
career-offender guideline; that question remains open in this
circuit. See Ramirez v. United States, No. 13-3889, 2015 WL
5011965, at *9 (Aug. 25, 2015) (“We leave any issue about the
effect of Johnson on the Guidelines for another day.”). We note,
however, that the Sentencing Commission has recently
published for comment a proposed amendment deleting the
residual clause of the career-offender guideline in light of
Johnson. See U.S. Sentencing Commission News Release
(Aug. 7, 2015), “U.S. Sentencing Commission Seeks Comment
on Revisions to Definition of Crime of Violence,”
http://www.ussc.gov/sites/default/files/pdf/news/pressreleases-and-news-advisories/press-releases/20150807_
Press_Release.pdf.

B. Term of Supervised Release
The Fair Sentencing Act reduced Rollins’s maximum
penalty to 20 years, a Class C felony. Because the Act reclassified Rollins’s offenses from Class B felonies to Class C felonies,
the term of supervised release recommended by the Guidelines
also dropped to three years (from a range of four to five years).
See U.S.S.G. § 5D1.2(a)(2).4

4

Section 5D1.2(a)(2) recommends one to three years of supervised release
for a person convicted of a Class C or D felony. The Guidelines elsewhere
explain, however, that a term of supervised release may not be less than any
statutory minimum, U.S.S.G. § 5D1.2(c), and the statutory minimum for
(continued...)

Case: 13-1731

Document: 45

Filed: 09/01/2015

14

Pages: 14

No. 13-1731

The judge imposed a four-year term of supervised release.
The parties agree that although the judge had been alerted to
the reduction in the statutory minimum term of supervised
release occasioned by the Fair Sentencing Act, he was probably
unaware that the range recommended by the Guidelines also
had been reduced. We agree that a remand is appropriate
limited only to this issue.
Knowing that the Guidelines recommend three years of
supervised release (not a range of four to five years), the judge
may wish to redetermine Rollins’s term of supervised release.
See United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009). We
take no position on that discretionary judgment. We vacate the
sentence and remand for further proceedings consistent with
this opinion.
VACATED AND REMANDED.

4

(...continued)
Rollins’s crimes is three years, 21 U.S.C. § 841(b)(1)(C).