               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0282n.06

                                       Case No. 14-3805
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        May 24, 2016
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON   REMAND    FROM              THE
v.                                                )       SUPREME COURT OF                 THE
                                                  )       UNITED STATES.
SHAWN CALDWELL,                                   )
                                                  )
       Defendant-Appellant.                       )
                                                  )
                                                  )


       BEFORE: BOGGS and BATCHELDER, Circuit Judges; and HUCK, District Judge.*

       PER CURIAM. On January 24, 2014, two armed men walked into a PNC Bank branch

in Euclid, Ohio, and ordered those present to “[r]emain calm and not move.”           One man

brandished a firearm and demanded that a bank employee hand over cash that the employee was

counting. The other forced a second employee at gunpoint to open a vault containing more than

$39,000 in cash. After placing the money into a backpack, both men fled the scene.

       Soon after the robbery, a Euclid Police Department (“EPD”) officer canvassing the area

noticed a gray SUV with a license plate suspiciously covered with snow. The officer stopped

and approached the vehicle and obtained its license-plate number. After discovering that the


*
  The Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
Case No. 14-3805
United States v. Caldwell

SUV was stolen, the officer called for backup and ordered the occupants out.           The SUV

contained the two bank robbers, their two firearms, more than $40,000 in cash, and Shawn

Caldwell.   Interviews subsequently conducted by FBI and EPD detectives indicated that

Caldwell had served as the robbers’ look-out.

       Three weeks later, a federal grand jury indicted Caldwell on one count of armed bank

robbery, in violation of 18 U.S.C. § 2113(a), (d), and brandishing a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Caldwell pleaded guilty to both counts.

At a sentencing hearing, the district court determined that Caldwell had previously been

convicted of two “crimes of violence” and was therefore eligible for career-offender status

pursuant to USSG §4B1.1, a provision of the Sentencing Guidelines that increases the advisory

sentence for many felony defendants who have two or more prior felony convictions of a “crime

of violence” or a “controlled substance offense.” USSG §4B1.1(a).           After calculating his

advisory sentencing range of 292 to 365 months of imprisonment, the district court sentenced

Caldwell to consecutive terms of 208 months of imprisonment for the robbery conviction and 84

months for the firearm conviction.

       On appeal, Caldwell argued that the government had arbitrarily refused to move for a

one-level reduction in his offense level under USSG §3E1.1(b). He also argued that his sentence

was procedurally and substantively unreasonable. We concluded that Caldwell’s arguments

lacked merit and affirmed his sentence. United States v. Caldwell (Caldwell I), 614 F. App’x

325, 328 (6th Cir. 2015) (per curiam).

       Caldwell then filed a petition for a writ of certiorari in the Supreme Court. The Supreme

Court granted Caldwell’s petition, vacated our decision in Caldwell I, and remanded the case to

this court for further consideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015).


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Case No. 14-3805
United States v. Caldwell

Caldwell v. United States, 136 S. Ct. 417, 417 (2015) (mem.). As we explain, because the

Court’s holding in Johnson applies to Caldwell’s case, we vacate Caldwell’s judgment and

remand this case to the district court for further consideration.

                                                ***

       As mentioned above, §4B1.1(a) prescribes a more severe advisory sentence for some

felony defendants who have at least two prior convictions for a “crime of violence” or a

“controlled substance offense.” A “crime of violence” is defined at USSG §4B1.2 as any offense

punishable by imprisonment for a term exceeding one year that meets one or more of three

criteria. First, the crime may have as “an element the use, attempted use, or threatened use of

physical force against the person of another.” Id. §4B1.2(a)(1). Second, the crime may be

“burglary of a dwelling, arson, or extortion, [or] involv[e] use of explosives.” Id. §4B1.2(a)(2).

Third—under what is known as the “residual clause” of §4B1.2(a)(2)—the crime may

“otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.”

Ibid. A nearly identical definition also appears in the text of the Armed Career Criminal Act of

1984 (“ACCA”), which provides for more severe penalties for those felons convicted of

possessing a firearm who have three or more previous convictions of a “violent felony.” See 18

U.S.C. § 924(e)(2)(B).

       In Johnson, the Supreme Court held that the ACCA’s “residual clause” is

unconstitutionally vague, in violation of the Fifth Amendment’s Due Process Clause. 135 S. Ct.

at 2563. Although the Johnson Court addressed only the ACCA’s “residual clause,” in United

States v. Pawlak, ___ F.3d ___, No. 15-3566, 2016 WL 2802723 (6th Cir. May 13, 2016), we

recently held that Johnson’s reasoning applies with equal force to §4B1.2(a)(2)’s “residual

clause,” which also infringes upon the Constitution’s due process guarantee. Id. at *8. For this


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Case No. 14-3805
United States v. Caldwell

reason, if the district court based Caldwell’s §4B1.1 enhancement upon the residual clause of

§4B1.2(a)(2), Caldwell must be resentenced.

         The district court held that §4B1.1(a) applied to Caldwell because he had two previous

convictions of a “crime of violence,” namely, one Ohio conviction for third-degree attempted

burglary, in violation of Ohio Revised Code § 2911.12(A)(3), and another for second-degree

burglary, in violation of Ohio Revised Code § 2911.12(A)(2). But apart from stating that these

two crimes are “crimes of violence,” the district court did not explain its decision.

         Prior to Caldwell’s July 2014 sentencing hearing, we had previously observed that Ohio’s

crime of burglary does not have “as an element the use, attempted use, or threatened use of

physical force against the person of another.” See United States v. Skipper, 552 F.3d 489, 492

(6th Cir. 2009); see also United States v. Calloway, 189 F. App’x 486, 489 (6th Cir. 2006). We

had also indicated that burglary in Ohio is not “burglary of a dwelling” within the meaning of

§4B1.2(a)(2). Cf. United States v. Coleman, 655 F.3d 480, 483 (6th Cir. 2011). We had,

however, held that Ohio burglary did qualify as a “crime of violence” under § 4B1.2(a)(2)’s

“residual clause.” See Skipper, 552 F.3d at 493; cf. Coleman, 655 F.3d at 483. In this context, it

appears that the district court may have relied on §4B1.2(a)(2)’s “residual clause” in computing

Caldwell’s advisory sentencing range, which, as Pawlak now makes clear, would have been

error.

         For this reason, we VACATE Caldwell’s sentence and REMAND this case to the district

court for further consideration in light of Pawlak.




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