      12-3487-cr
      United States v. Maldonado


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit,
      held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
      City of New York, on the 20th day of January, two thousand and sixteen.

      PRESENT: JOHN M. WALKER, JR.,
                 RICHARD C. WESLEY,
                            Circuit Judges,
                 JOHN F. KEENAN,
                            District Judge. *
      ____________________________________________

      UNITED STATES OF AMERICA,

                                   Appellee,

                     -v.-                                        No. 12-3487-cr

      SAMUEL MALDONADO,

                                   Defendant-Appellant.

      *
       The Honorable John F. Keenan, of the United States District Court for the Southern
      District of New York, sitting by designation.
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____________________________________________

FOR APPELLANT:           MARSHA R. TAUBENHAUS, New York, NY.

FOR APPELLEE:         STEPHAN J. BACZYNSKI, Assistant United States
                      Attorney, for William J. Hochul, Jr., United States
                      Attorney for the Western District of New York, Buffalo,
                      NY.
____________________________________________

     Appeal from the United States District Court for the Western District of
New York (Charles J. Siragusa, Judge).

      UPON     DUE     CONSIDERATION,          IT    IS   HEREBY     ORDERED,

ADJUDGED AND DECREED that the sentence of the district court is hereby

VACATED and REMANDED.

      After a jury trial, Defendant Samuel Maldonado was convicted of

conspiracy with intent to distribute 500 or more grams of cocaine, 21 U.S.C.

§ 846, and possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1).

The district court sentenced Maldonado as a “career offender” under United

States Sentencing Guideline (“U.S.S.G.” or “Guideline”) § 4B1.1(a).           On

September 18, 2014, we affirmed the district court’s judgment and sentence,

rejecting all five of Maldonado’s challenges to his conviction. United States v.

Maldonado, 581 F. App’x 19, 21, 22–23 (2d Cir. 2014) (summary order), cert.

granted, judgment vacated, 135 S. Ct. 2929 (2015).   Relevant here, we rejected

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Maldonado’s argument that the district court erred when it found that he was a

“career offender” under Guideline § 4B1.1(a). Id. at 22–23.

      On June 26, 2015, the Supreme Court struck down the residual clause of

the Armed Career Criminal Act as unconstitutionally vague. Johnson v. United

States, 135 S. Ct. 2551, 2562 (2015).   On August 4, 2015, the Supreme Court

vacated this Court’s judgment in Maldonado and remanded it for further

consideration in light of Johnson. Maldonado v. United States, 135 S. Ct. 2929

(2015). We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to

vacate and remand for resentencing.

                                   DISCUSSION

      Under the Guidelines, a defendant is a career offender only if “the

defendant has at least two prior felony convictions of either a crime of violence

or a controlled substance offense.” See U.S.S.G. § 4B1.1(a). The Guidelines define

the term “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



                                        3
               (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).     The Guidelines define the term “controlled substance

offense” as:

      [A]n offense under federal or state law, punishable by imprisonment
      for a term exceeding one year, that prohibits the manufacture,
      import, export, distribution, or dispensing of a controlled substance
      (or a counterfeit substance) or the possession of a controlled
      substance (or a counterfeit substance) with intent to manufacture,
      import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).

      The original conclusion that Maldonado was a career offender under the

Guidelines relied on three of Maldonado’s prior convictions: (1) criminal sale of a

controlled substance in the second degree, an offense under New York law, (2)

attempted burglary in the third degree, an offense under New York law, and (3)

a federal conviction for use of a communications facility to commit, cause, or

facilitate a drug offense, a federal offense pursuant to 21 U.S.C. § 843(b). PSR ¶¶

42, 47, 51.    In our prior summary order, we determined that (1) Maldonado’s

conviction for criminal sale of a controlled substance in the second degree was a

“controlled substance offense” and (2) Maldonado’s attempted burglary

conviction was a “crime of violence,” justifying the district court’s finding that

                                           4
Maldonado is a career criminal under the Guidelines. Maldonado, 581 F. App'x at

23. We did not analyze whether Maldonado’s federal conviction also qualified as

a predicate offense for career criminal status. Id. Because the parties do not

dispute the fact that Johnson forecloses Maldonado’s attempted burglary

conviction from serving as a predicate offense to career offender status, and

because we conclude that his federal conviction is not a predicate offense, we

conclude that Maldonado is no longer a career offender after Johnson.

   1. Maldonado’s Attempted Burglary Conviction Is No Longer a Predicate
      Offense In Light of Johnson

      Johnson concerned a defendant who received an enhanced sentence under

the Armed Career Criminal Act (“ACCA”), which imposes an increased prison

term on a defendant with three or more previous convictions for a “violent

felony.” 135 S. Ct. at 2553; see 18 U.S.C. § 924(e)(1). In Johnson, the district court

held that one of the defendant’s prior convictions—unlawful possession of a

firearm by a felon—was a “violent felony” pursuant to the ACCA’s residual

clause, which defined a “violent felony” to include any felony that “involves

conduct that presents a serious potential risk of physical injury to another.” Id. at

2556; see 18 U.S.C. § 924(e)(2)(B) (defining “violent felony”). The Eighth Circuit

affirmed. Johnson, 135 S. Ct. at 2556.

                                          5
      The Supreme Court reversed, holding the ACCA’s residual clause

unconstitutionally vague and therefore precluding the defendant’s conviction for

unlawful possession of a firearm from serving as a predicate offense. Johnson,

135 S. Ct. at 2557–58, 2562–63.        The Johnson Court reasoned that “the

indeterminacy of the wide-ranging inquiry required by the residual clause both

denies fair notice to defendants and invites arbitrary enforcement by judges.” Id.

at 2557. The Court concluded that “[i]ncreasing a defendant’s sentence under the

clause denies due process of law.” Id. at 2557.

      As this Court has previously recognized, the operative language of

Guideline § 4B1.2(a)(2)’s residual clause and the ACCA’s residual clause is

identical. United States v. Gray, 535 F.3d 128, 130 (2d Cir. 2008). Compare U.S.S.G.

§ 4B1.2(a)(2) (defining “crime of violence” to include “conduct that presents a

serious potential risk of physical injury to another”) with 18 U.S.C. § 924(e)(2)(B)

(defining “violent felony” to include “conduct that presents a serious potential

risk of physical injury to another”). This Court has established that “authority

interpreting one phrase frequently is found to be persuasive in interpreting the

other phrase.” United States v. Brown, 514 F.3d 256, 268 (2d Cir. 2008) (referring




                                         6
to the definitions of “violent felony” under 18 U.S.C. § 924(e)(2) and “crime of

violence” under U.S.S.G. § 4B1.2(a)(2)). This Court has reasoned:

       [W]here the language of two . . . provisions is identical, we cannot
      conclude that those provisions have disparate applicability to a type
      of conduct that inherently involves the risk specified in both
      provisions. Thus, we are hard pressed to reject the views of the
      Supreme Court's most recent decision explaining the scope of the
      definition of “violent felony” [under the ACCA] in understanding
      the reach of the term “crime of violence” [under U.S.S.G. §
      4B1.2(a)(2)]”

United States v. Gray, 535 F.3d 128, 130 (2d Cir. 2008) (internal quotation marks

omitted); see also Brown, 514 F.3d at 268.

      In this case, the district court determined, and we previously affirmed, that

Maldonado’s prior conviction for attempted burglary in the third degree was a

“crime of violence” under the residual clause of Guideline § 4B1.2(a)(2).

Maldonado, 581 F. App'x at 22–23.        This conclusion was correct under this

Circuit’s then-existing case law, which established that attempted burglary in the

third degree was a “crime of violence” under the residual clause of Guideline §

4B1.2(a)(2). See Brown, 514 F.3d at 269 (holding that New York's offense of

burglary in the third degree is a “crime of violence” under the residual clause of

Guidelines); United States v. Hurrell, 555 F.3d 122, 124 (2d Cir. 2009) (extending

Brown to include attempted burglary in the third degree). Yet for New York’s

                                             7
offense of attempted burglary in the third degree to constitute a “crime of

violence,” it must fall within the broad strictures of Guideline § 4B1.2(a)(2)’s

residual clause—the clause bearing precisely the same language that the Johnson

Court invalidated for vagueness. See Brown, 514 F.3d at 269; Hurrell, 555 F.3d at

124; Johnson, 135 S. Ct. at 2557–58.

       The government conceded in supplemental briefing that prior convictions

that meet the definition of “crime of violence” solely under Guideline §

4B1.2(a)(2)’s residual clause “can no longer serve as predicate offenses for

purposes of triggering the Guidelines’ career offender provision.”                       See

Government’s October 23, 2015 Supp. Letter Br. at 3. In the government’s view,

Johnson abrogated Hurrell and Brown, and “Maldonado’s designation as a career

offender must find support in a prior conviction other than the Attempted

Burglary.” Id. at 4.

       We therefore proceed on the assumption that the Supreme Court’s

reasoning with respect to the ACCA’s residual clause applies to the identically

worded Guideline § 4B1.2(a)(2)’s residual clause. 1 See Johnson, 135 S. Ct. at 2557.



       1  In the months since Johnson, several other circuits have signaled concern about
the constitutionality of Guideline § 4B1.2’s residual clause after Johnson. See, e.g., United
States v. Goodwin, 2015 WL 5167789, at *3 (10th Cir. Sept. 4, 2015) (identifying plain error
where the district court imposed an increased sentence for a “crime of violence” under
                                             8
Accordingly, we agree with both parties that in light of Johnson, Maldonado’s

conviction for attempted burglary in the third degree no longer constitutes a

predicate crime justifying Maldonado’s career offender status.




Guideline § 4B1.2(a)(2)’s residual clause because “[t]he language of the ACCA's now-
void residual clause is essentially identical to the language of U.S.S.G. § 4B1.2(a)(2)'s
residual clause—the language upon which [the defendants] sentencing enhancement is
effectively predicated”); Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015) (noting
that the Seventh Circuit has “interpreted both residual clauses identically” and
“proceed[ing] on the assumption that the Supreme Court's reasoning [in Johnson]
applies to section 4B1.2 as well”); United States v. Frazier, No. 15-4047, 2015 WL 5062273,
at *1-2 (4th Cir. Aug. 28, 2015) (noting that the ACCA’s residual clause and the
Guidelines residual clause are “substantially similar,” and “assum[ing] without
deciding that plain error occurred” where the district court imposed career offender
status based in part on a “crime of violence” predicated on Guideline § 4B1.2’s residual
clause); United States v. Willis, 795 F.3d 986, 996 (9th Cir. 2015) (noting that the Ninth
Circuit “make[s] no distinction between ‘violent felony’ in ACCA and ‘crime of
violence’ in § 4B1.2(a)(2) for purposes of interpreting the residual clauses,” but
reasoning that “we have not yet considered whether the due process concerns that led
Johnson to invalidate the ACCA’s residual clause as void for vagueness are equally
applicable to the Sentencing Guidelines”). Only one circuit has affirmatively held that
Johnson does not invalidate Guideline § 4B1.2’s residual clause. See United States v.
Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015) (holding that Guideline § 4B1.2’s residual
clause is not unconstitutional after Johnson because “[v]agueness doctrine of the Due
Process Clause did not apply to advisory sentencing guidelines”).
        Because the parties do not dispute this issue, we decline to decide whether the
due process concerns that led the Johnson Court to rule the ACCA’s residual clause void
for vagueness are equally applicable to the Sentencing Guidelines. We also note that
the U.S. Sentencing Commission is currently seeking comments on a proposal to change
the guideline language in light of Johnson. See U.S. Sentencing Commission News
Release, “U.S. Sentencing Commission Seeks Comment on Revisions to Definition of
Crime of Violence,” http://www.ussc.gov/sites/default/files/pdf/news/press-releases-
and-news-advisories/press-releases/20150807_Press_Release.pdf.
                                             9
   2. Maldonado’s Federal Conviction Is Not a Predicate Crime

      Nor does Maldonado’s federal conviction constitute a predicate crime for

career offender purposes.        Maldonado was convicted of “knowingly,

intentionally, and unlawfully us[ing] a communication facility, that is, a

telephone, in committing, causing, and facilitating the commission of acts

constituting felonies under [21 U.S.C. § § 841(a)(1), 846],” a felony under 21

U.S.C. § 843(b). Section 843(b) provides:

      It shall be unlawful for any person knowingly or intentionally to use
      any communication facility in committing or in causing or
      facilitating the commission of any act or acts constituting a felony
      under any provision of this subchapter or subchapter II of this
      chapter. Each separate use of a communication facility shall be a
      separate offense under this subsection. For purposes of this
      subsection, the term “communication facility” means any and all
      public and private instrumentalities used or useful in the
      transmission of writing, signs, signals, pictures, or sounds of all
      kinds and includes mail, telephone, wire, radio, and all other means
      of communication.

21 U.S.C. § 843(b).

      The Supreme Court has held that only the categorical approach—not the

modified categorical approach—applies to statutes that contain an indivisible set

of elements. Descamps v. United States, 133 S. Ct. 2276, 2282 (2013). Because

section 843(b) does not contain alternative elements, it is an indivisible statute.


                                        10
See id. at 2282.     Therefore, the categorical approach applies, and we must

“compare the elements of the statute forming the basis of the defendant's

conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly

understood.” Id. at 2281. Under the categorical approach, “[t]he prior conviction

qualifies as [a] . . . predicate only if the statute’s elements are the same as, or

narrower than, those of the generic offense.” Id.

         Because § 843(b) contains additional elements not included in the

definition of “controlled substance offense” is broader than the generic offense

laid out in the Guidelines. 2 Compare U.S.S.G. § 4B1.2(b) with 21 U.S.C. § 843(b).

This conclusion is buttressed by United States v. Williams, 176 F.3d 714 (3d Cir.

1999).     In Williams, the Third Circuit expressly declined to hold that all

convictions under § 843(b) are “controlled substance offense[s]” on the grounds

that “a defendant could be convicted under § 843(b) without engaging in any of

the activities enumerated in § 4B1.2(2).” Id. at 717 n.3. As the Williams court

aptly explained, “a defendant could conceivably be convicted under § 843(b) for

using a telephone to facilitate the mere possession of a controlled substance,”

2
  As recited above, the Guidelines define “controlled substance offense” as “an offense
under federal or state law, punishable by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance . . . or the possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2.
                                            11
and this conviction “would not constitute a ‘controlled substance offense’

because simple possession is not “an offense under a . . . law prohibiting the

manufacture, import, export, distribution, or dispensing of a controlled

substance . . . or the possession of a controlled substance . . . with intent to

manufacture, import, export, distribute, or dispense.” Id. (quoting U.S.S.G. §

4B1.2(2)); see also United States v. Jimenez, 533 F.3d 1110, 1113 (9th Cir. 2008) (“We

do not believe that all convictions under § 843(b) should be categorically

considered a ‘drug trafficking offense.’”).         We conclude, therefore, that

Maldonado’s federal conviction cannot serve as a predicate offense for career

criminal status. Because the state attempted burglary conviction and the federal

conviction cannot serve as predicate offenses, the only conviction that could be

used to determine career criminal status is the state sale of a controlled substance

conviction.   As the statute requires two predicates, Maldonado’s status as a

career criminal must be vacated.




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   3. Conclusion

      For the foregoing reasons, we VACATE and REMAND this case for

resentencing consistent with this order.

                                      FOR THE COURT:

                                      CATHERINE O’HAGAN WOLFE, CLERK




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