            United States Court of Appeals
                       For the First Circuit


No. 14-1216

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                        ANTHONY SOTO-RIVERA,

                        Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

           [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                   Thompson, Hawkins,* and Barron,
                           Circuit Judges.


     Johnny Rivera-González for appellant.
     Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on
brief, for appellee.


                          January 22, 2016




     *   Of the Ninth Circuit, sitting by designation.
              THOMPSON, Circuit Judge.       This appeal calls for us to

consider the district judge's determination that appellant Anthony

Soto-Rivera     ("Soto-Rivera")     should     be   sentenced   as   a   Career

Offender because he committed a "crime of violence" as defined by

the    United     States    Sentencing       Guidelines     ("U.S.S.G."      or

"Guidelines").      The issue before us is narrow, and so is our

ruling.   Taking this case just as it has been presented to us --

meaning we hold the parties to their concessions and decline to

speculate on the possible merit of other arguments that might have

been   (but     weren't)   made   --   we    conclude   that    Soto-Rivera's

particular crime of conviction does not qualify as a "crime of

violence" under the Guidelines.        Accordingly, Soto-Rivera may not

be sentenced as a Career Offender.

                                  BACKGROUND

              The facts, generally speaking, are neither complicated

nor disputed.     We recite only those necessary to decide the issues

presented by the parties.

              For reasons not germane to the legal issues here, Soto-

Rivera found himself under arrest, and the arresting officers found

a handgun and ammunition in his possession.               This was a problem

for him, as it turns out that Soto-Rivera had a previous felony

conviction on his record.

              Soto-Rivera soon faced a two-count indictment in the

Puerto Rico district court.        Count One charged him with illegally


                                       - 2 -
possessing a "firearm and ammunition" in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2), statutes which make it illegal for

convicted felons to have guns or ammo.                          Count Two gave more detail

about Soto-Rivera's firearm, describing it as a "machinegun, that

is   a       Glock    Model        23,   .40   caliber      .    .    .    modified     to    shoot

automatically more than one shot, without manual reloading, by a

single        function        of    the     trigger,"       which         violated     18    U.S.C.

§§ 922(o)'s and 924(a)(2)'s general prohibition against possessing

machineguns.1

                   Although he entered an initial plea of not guilty, rather

than stand trial Soto-Rivera entered into a Plea Agreement with

the government.           Pursuant to their Agreement, Soto-Rivera agreed

to plead guilty to Count One's charge of illegally possessing a

"firearm and ammunition," with Count Two falling by the wayside.

                   The Plea Agreement addressed the length of the prison

sentence Soto-Rivera could expect to receive, something that is

heavily        influenced          by     various    provisions           in   the     Sentencing

Guidelines.           The now-advisory Guidelines are "a system under which

a    set      of     inputs    specific        to   a   given         case     (the    particular

characteristics           of        the     offense      and         offender)        yield[s]    a

predetermined output (a range of months within which the defendant




         1
       The Indictment contained a separate count seeking forfeiture
of the Glock and ammunition. This forfeiture count also described
the Glock as a "machinegun."


                                                    - 3 -
could be sentenced)."        Peugh v. United States, 133 S. Ct. 2072,

2079 (2013).    We commend those readers interested in a general

overview of how the Guidelines work to the succinct and informative

rundown in United States v. Serrano-Mercado, 784 F.3d 838 (1st

Cir. 2015).

            For our purposes today, it is enough to know that the

Guidelines take into account any past crimes a defendant has been

convicted of, with the idea being that "[t]he more severe the

criminal history," the lengthier the sentence.                Serrano-Mercado,

784 F.3d at 840.     A defendant who is over 18 at the time he commits

a "felony that is either a crime of violence or a controlled

substance   offense,"    and    who   "has    at    least    two   prior   felony

convictions of either a crime of violence or a controlled substance

offense," is a Career Offender.            U.S.S.G. § 4B1.1(a).        A Career

Offender is considered to have the most severe criminal history

provided by the Guidelines.       Id. § 4B1.1(b).         The practical effect

is that a Career Offender generally receives a longer sentence for

a particular crime (which, remember, must be either a "crime of

violence" or a "controlled substance offense") than a non-Career

Offender would get for that same crime.

            So, to figure out whether a particular defendant is a

Career   Offender,    it's     necessary     to    know   first    whether   that

defendant is being sentenced following a conviction for a crime of

violence or a controlled substance offense.                 If he is, the next


                                       - 4 -
question to answer is whether that defendant "has at least two

prior felony convictions of either a crime of violence or a

controlled substance offense."   Id. § 4B1.1(a).   Towards that end,

a defendant and the government might stipulate in a plea agreement

as to which (and how many) crimes a defendant has committed in the

past.

            But the Plea Agreement here -- which seems to assume

that felon in possession is a crime of violence -- is silent in

that regard.    Instead, Soto-Rivera and the government calculated

potential sentence lengths both with and without considering him

to be a Career Offender.    The Plea Agreement indicates that Soto-

Rivera faced 77-96 months in prison if he was found to be a Career

Offender, and some shorter amount of time if he turned out not to

be one.2

            Further, Soto-Rivera conceded in the Plea Agreement that

the government would have proven at trial that he had been caught

with a firearm "modified to fire automatically, that is, as a

machine gun."    He also admitted that he knew about the Glock's

modifications, and that he already had a prior felony conviction

on his record when he was caught with the gun.     A district judge,

after questioning Soto-Rivera at a change of plea hearing, accepted




        2
       According to the Agreement, if not a Career Offender, Soto-
Rivera's sentencing range would be 51-63 months, 57-71 months, or
70-87 months, depending on his exact number of prior convictions.


                                  - 5 -
his guilty plea after finding it to be "knowing and voluntary," as

well as "supported by an independent basis in fact . . . ."

             When it came time for sentencing, Soto-Rivera did not

object to being classified as a Career Offender.              Indeed, working

off the 77-96 month Career Offender range the parties calculated

in the Plea Agreement, his own attorney asked for a 77-month

sentence.     The government went the other way and asked for a top-

of-the-range sentence of 96 months.

             The sentencing judge stated (without objection) that two

of   Soto-Rivera's    past     convictions    were    "for   the   manufacture,

delivery or possession with intent to distribute or to deliver

controlled substances[,] and conspiracy to do that."                    In the

judge's     view,   these      two   crimes   were    "controlled    substance

offenses" counting towards Career Offender status.              The judge then

stated in conclusory fashion that Soto-Rivera's latest conviction

for felon in possession of a firearm "is considered a crime of

violence."    Taking into account Soto-Rivera's two prior controlled

substance convictions, the judge announced he "is considered a

career offender."

             Further, though the parties had come up with a Career

Offender    range    of   77    to   96   months,    the   sentencing   judge's




                                          - 6 -
calculation differed.        He pegged the Guidelines range as between

92 and 115 months.3

           Taking into account the circumstances of the crime and

Soto-Rivera's criminal history, the sentencing judge found that

the parties' recommended Guidelines range (77-96 months) "does not

reflect the seriousness of the offense, does not promote respect

for the law, does not protect the public from further crimes by

[Soto-Rivera] and does not address the issues of deterrence and

punishment."      Instead, the sentencing judge concluded that the

middle of the 92-155 month range he had calculated would be

appropriate, and sentenced Soto-Rivera to 108 months behind bars.

           This timely appeal followed.

                             STANDARD OF REVIEW

           Soto-Rivera      did     not   object    to   the   district    court

treating   him    as   a   Career   Offender      before,   at,   or   following

sentencing.      Yet this is exactly the issue he raises on appeal, as

he says that he shouldn't have been sentenced as a Career Offender.

           Usually, Soto-Rivera's failure to object in the district

court would lead us to find the issue forfeited and we would review

for plain error only.        But the government has declined to make a




     3 Soto-Rivera does not take issue with this range on appeal.
In fact, he says it's the parties who miscalculated the Guidelines
range in their Plea Agreement.


                                          - 7 -
forfeiture argument.      In fact, at oral argument it explicitly

called for us to apply "de novo review."

           So,   in   accordance     with       our    precedent    and    the

government's own request, we will review the issue as if it had

been properly preserved.    See United States v. Tapia-Escalera, 356

F.3d 181, 183 (1st Cir. 2004) (declining to apply plain error

review to a forfeited argument where the government failed to

request plain error review); see also United States v. Paulino-

Guzman, 807 F.3d 447, 450 n.5 (1st Cir. 2015) (reviewing the

substantive reasonableness of the appellant's sentence for abuse

of discretion, despite the appellant's forfeiture of any objection

at the district court, because the government did not seek plain

error review on appeal).

           "We   review   the   district    court's     interpretation     and

application of the sentencing guidelines de novo . . . ."             United

States v. Tavares, 705 F.3d 4, 24 (1st Cir. 2013) (quoting United

States v. Cortés-Cabán, 691 F.3d 1, 26 (1st Cir. 2012)).                  Soto-

Rivera's   specific    challenge    is     to    the   sentencing    judge's

determination that he is a Career Offender because the crime to

which he pleaded guilty -- felon in possession of a firearm -- is

a crime of violence within the meaning of the Guidelines. Figuring

out whether the Guidelines define a particular offense as a crime

of violence "poses a purely legal question," so we review that




                                     - 8 -
particular issue de novo, too.     United States v. Velázquez, 777

F.3d 91, 94 (1st Cir. 2015).

                               ANALYSIS

                                  A.

            This appeal is all about Soto-Rivera's sentence, not his

conviction.    We must determine whether being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1) is a "crime of

violence" under the Career Offender provisions in the Guidelines.4

Soto-Rivera says that, thanks to an opinion handed down by the

Supreme Court while his appeal was pending, Johnson v. United

States, 135 S. Ct. 2551 (2015), his admitted possession of a

generic "firearm" does not constitute a "crime of violence" under

the Guidelines.5    The government, not surprisingly, disagrees and

offers us a path to affirming the sentence.


     4   As a reminder, the Guidelines say that

            [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). Soto-Rivera makes no argument that he was
under 18 at the time he was caught with his Glock.

     5 Soto-Rivera separately asserts that there was insufficient
evidence before the sentencing judge to establish that he had
already been convicted of two predicate crimes, meaning either


                                   - 9 -
          But before we can get into the specifics of the parties'

arguments, we need to give some details about how the Guidelines

define a "crime of violence."    And we must look at exactly what

Soto-Rivera pleaded guilty to.   After doing this we will be able

to unpack and consider Soto-Rivera's Johnson-based arguments.

          According to the Guidelines,

          [t]he 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
          otherwise involves conduct that presents     a
          serious potential risk of physical injury   to
          another.

U.S.S.G. § 4B1.2(a) (emphasis added).     The emphasized language,

which has come to be known as the "residual clause," is the key to

this appeal.

          Now, Soto-Rivera pled guilty to possession of a firearm

in violation of 18 U.S.C. § 922(g)(1).    This statute states that

it is unlawful for any person "who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one

year[,] . . . to . . . possess in or affecting commerce, any




crimes of violence or controlled substance offenses.       We do not
reach this argument.


                                 - 10 -
firearm or ammunition . . . ."         18 U.S.C. § 922(g)(1).       If this

crime is not a crime of violence, it would follow that Soto-Rivera

may not be sentenced as a Career Offender.

                         B.    Initial Arguments

            In his opening brief, Soto-Rivera argues that being a

felon in possession of a firearm is not an offense that contains

an element requiring the use, attempted use, or threat of the use

of physical force against another.          And, seemingly conceding that

a conviction for the possession of a machinegun would qualify as

a   crime   of   violence,    Soto-Rivera   says   that   though   "a   post-

conviction determination was made finding the gun to be a 'machine

gun,'" the crime of which he was actually convicted -- illegal

possession of a firearm -- is "not an offense involving a hazardous

weapon."    Accordingly, he argues that mere possession of a generic

firearm does not qualify as a crime of violence under the residual

clause because simply possessing a firearm does not pose a serious

potential risk of injury to anyone.

            In rejoinder, the government says that Soto-Rivera's

crime, although it doesn't contain the use, attempted use, or

threatened use of force as an element, nevertheless involves

conduct that presents a serious potential risk of physical injury

to another given that Soto-Rivera's firearm was a machinegun.             The

government, therefore, urges us to find that Soto-Rivera's offense




                                     - 11 -
of conviction falls within the residual clause's rather expansive

definition of a crime of violence.

                       C.   Post-Johnson Briefing

           After the parties' briefs came in, the Supreme Court

decided Johnson v. United States, 135 S. Ct. 2551 (2015).             Johnson

involved   a    void-for-vagueness    challenge   to    the   federal   Armed

Career Criminal Act ("ACCA"), which, like the Guidelines, provides

for lengthier sentences for certain defendants based on their

criminal histories.     In this regard, the ACCA contains a residual

clause that is almost identical to the one found in the Guidelines.

See id. at 2555-56 (recognizing the ACCA's "residual clause"

includes any felony that "'involves conduct that presents a serious

potential risk of physical injury to another'" (quoting 18 U.S.C.

§ 924(e)(2)(B))).      The Johnson Court ultimately held that the

ACCA's residual clause is void for vagueness and that "[i]ncreasing

a defendant's sentence under the clause denies due process of law."

Id. at 2557.6

           We    afforded   the   parties    an   opportunity    to     submit

supplemental briefs addressing Johnson's effect, if any, on this

appeal.    Soto-Rivera      argued   that   Johnson's   reasoning     applies

equally to the Guidelines, rendering the Guidelines's residual


     6 As will be made clear, the reasoning leading to the Supreme
Court's holding is of no particular import in this appeal. The
only thing that matters for today's analysis is that the Supreme
Court invalidated the ACCA's residual clause.


                                      - 12 -
clause unconstitutionally vague and invalid as well.                        And since he

was found to be a Career Offender by virtue of that residual

clause, Soto-Rivera tells us his sentence cannot stand.

                  In   its    supplemental      brief,    the    government     said    it

"acknowledge[d]"              that   the     Guidelines's       residual    clause     "is

unconstitutionally vague based on Johnson," and so it "no longer

holds       the    position       that     [Soto-Rivera's       sentence]    should    be

affirmed" based on the residual clause.                      Thus, for purposes of

this appeal, the government concedes that it violates due process

to utilize the Guidelines's residual clause to classify a defendant

as a Career Offender and thereby impose a longer sentence.

                  Nevertheless, the government says we may affirm Soto-

Rivera's sentence even without the residual clause.                           We can do

this, it says, because the residual clause is not the only route

leading to sentencing Soto-Rivera as a Career Offender.                       According

to the government, we may rely on commentary explaining and further

expanding         upon       U.S.S.G.    §   4B1.2's     definition    of    "crime     of

violence."7




        7
       Guidelines commentary, the Supreme Court has explained, "may
serve these functions: commentary may 'interpret [a] guideline or
explain how it is to be applied,' 'suggest circumstances
which . . . may warrant departure from the guidelines,' or 'provide
background    information,   including   factors    considered   in
promulgating the guideline or reasons underlying promulgation of
the guideline.'" Stinson v. United States, 508 U.S. 36, 41 (1993)
(quoting U.S.S.G. § 1B1.7).



                                               - 13 -
          Specifically, Application Note 1 to § 4B1.2 states that

"'[c]rime of violence' does not include the offense of unlawful

possession of a firearm by a felon, unless the possession was of

a firearm described in 26 U.S.C. § 5845(a)."              U.S.S.G. § 4B1.2,

Application Note 1.       The referenced statute, § 5845(a), provides

various definitions of the term "firearm," and it explicitly

includes "machinegun[s]" within the word's meaning.               26 U.S.C.

§ 5845(a)(6).     Because Soto-Rivera admits that he possessed a

machinegun,     and    because      §   5845(a)(6)    clearly    refers   to

"machineguns," Application Note 1, therefore, provides a basis

completely independent of the residual clause for applying the

Career Offender enhancement. Or so the government's argument goes.

                               D.   Discussion

          First       things   first.       Based    on   the   government's

concession that Johnson's reasoning applies just as well to the

Guidelines as to the ACCA -- the correctness of which we do not

consider -- we find that Soto-Rivera's Career Offender status may

not be predicated upon the Guidelines's residual clause.8           In other


     8 We have yet to decide whether Johnson renders the residual
clause in the Guidelines unconstitutional as well.     See United
States v. Castro-Vazquez, 802 F.3d 28, 38-39 (1st Cir. 2015)
(expressly declining to address the issue).       Given that the
government has explicitly waived any reliance on it here, this is
not the case for us to opine on the issue either. Moreover, on
January 8, 2016, the Sentencing Commission adopted a preliminary
amendment to U.S.S.G. § 4B1.2 ("Preliminary Amendment") that
deletes the residual clause.    See Amendment to the Sentencing
Guidelines   (Preliminary)   (Jan.   8,   2016)   (available   at


                                        - 14 -
words, we may not rely on the residual clause to find that felon

in possession of a firearm is a crime of violence.

             With   the    residual   clause    out   of   the   picture,   the

government is wholly reliant upon Guidelines commentary -- the

above-described Application Note 1 to § 4B1.2 -- to support its

position.     The government directs our attention to the Supreme

Court's teaching that commentary "interpret[ing] or explain[ing]

a [G]uideline is authoritative unless it violates the Constitution

or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that [G]uideline." Stinson v. United States,

508   U.S.   36,    38    (1993).     The   implication    is    that   because

Application Note 1 includes possession of a machinegun as a "crime

of violence," and since Soto-Rivera admitted that his modified

Glock was a machinegun, Application Note 1 compels the conclusion

that Soto-Rivera pled guilty to a crime of violence.

             But the government fails to analyze whether Application

Note 1 has become inconsistent with its corresponding Guideline if

Johnson dictates that we excise the residual clause.9               This is a



http://www.ussc.gov/sites/default/files/pdf/amendment-
process/reader-friendly-amendments/20160108_RF.pdf (last accessed
January 20, 2016)). The Preliminary Amendment, however, is not
scheduled to go into effect until August 1, 2016.

      9The government also seemingly fails to recognize that, while
the Guidelines were binding on the Courts when Stinson was decided,
see Stinson, 508 U.S. at 42, this is no longer the case, see United
States v. Booker, 543 U.S. 220, 245 (2005) (holding that the
Guidelines must be "effectively advisory" in order to survive a


                                       - 15 -
significant     oversight   because    (as     Soto-Rivera     points   out)

"[G]uideline commentary is not always to be taken as gospel."

United States v. Meléndez-Rivera, 782 F.3d 26, 30 (1st Cir. 2015).

"[W]here commentary is inconsistent with [Guidelines] text, text

controls."     United States v. Shell, 789 F.3d 335, 340 (4th Cir.

2015) (citing Stinson, 508 U.S. at 43).             See also Stinson, 508

U.S. at 43 (explaining that if "commentary and the guideline it

interprets are inconsistent in that following one will result in

violating the dictates of the other, the Sentencing Reform Act

itself commands compliance with the guideline" rather than the

commentary (citing 18 U.S.C. §§ 3553(a)(4), (b))).

             The government's argument requires us to look back at

the   applicable   Guideline,   U.S.S.G.       §   4B1.2(a),   and   consider

whether or not Application Note 1 is consistent with § 4B1.2(a)'s

text in the absence of the residual clause.            Excising the clause

from § 4B1.2(a) leaves us with a definition of "crime of violence"

that looks like this:

             The term "crime of violence" means any offense
             under federal or state law, punishable by



constitutional challenge). Today, courts are to "give 'respectful
consideration' to the now-advisory Guidelines (and their
accompanying policy statements)," Pepper v. United States, 562
U.S. 476, 501 (2011) (quoting Kimbrough v. United States, 552 U.S.
85, 101 (2007)), but "may in appropriate cases impose a non-
Guidelines sentence," id. (citing Kimbrough, 552 U.S. at 109-10).
Because the government's position fails on its own terms (i.e.,
even if we assume arguendo that commentary is binding), we need
not analyze the proper role of Guidelines commentary after Booker.


                                      - 16 -
          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, [or] involves use of explosives.

          With § 4B1.2(a) stripped of its residual clause, the

government's position that we may rely on Application Note 1 to

uphold Soto-Rivera's designation as a Career Offender is hopeless.

In order to qualify, Soto-Rivera would have had to have pled guilty

to committing a "crime of violence."   But, Soto-Rivera did nothing

more than admit to mere possession of a machinegun.        Passive

possession of a firearm (even one as potentially dangerous as a

machinegun) is not a crime that includes -- as an element that

must be proved by the government -- the use, attempted use, or

threatened use of physical force.      The lack of such an element

means that it does not constitute a crime of violence under

U.S.S.G. § 4B1.2(a)(1).   Moreover, such possession is clearly not

one of those specifically-enumerated crimes listed in U.S.S.G.

§ 4B1.2(a)(2).   Thus, in the absence of the residual clause, there

is nothing within § 4B1.2(a)'s text to serve as an anchor for

Application Note 1's inclusion of possession of a machinegun within

the definition of crime of violence.

          This leaves the government with its argument that we may

utilize Application Note 1 as an independent basis for a finding


                                 - 17 -
of Career Offender status.         Yet, doing so would be inconsistent

with the post-Johnson text of the Guideline itself.            By its clear

language, once shorn of the residual clause § 4B1.2(a) sets forth

a limited universe of specific offenses that qualify as a "crime

of violence."    There is simply no mechanism or textual hook in the

Guideline that allows us to import offenses not specifically listed

therein into § 4B1.2(a)'s definition of "crime of violence."           With

no such path available to us, doing so would be inconsistent with

the text of the Guideline.        Accordingly, we find ourselves in one

of those situations in which Guidelines commentary should not be

"taken as gospel," Meléndez-Rivera, 782 F.3d at 30, and we reject

the government's attempt to make use of U.S.S.G. § 4B1.2(a)'s

Application Note 1 to expand upon the list of offenses that qualify

for Career Offender status.

             Finally, the government's reliance on an unpublished

opinion from a sister circuit, Beckles v. United States, 616 F.

App'x 415 (11th Cir. 2015) (unpublished), is unavailing.               True

enough,   Beckles   was   decided    post-Johnson   and   determined   that

unlawful possession of a sawed-off shotgun continues to count as

a crime of violence.        Beckles, 616 F. App'x at 416.          Johnson,

Beckles concluded, did not bar this result because "Johnson says

and decided nothing about career-offender enhancements under the

Sentencing     Guidelines    or     about   the   Guidelines      commentary

underlying Beckles's status as a career-offender."          Id.


                                      - 18 -
           After limiting Johnson to sentences imposed under the

ACCA, Beckles turned to the Guidelines and explicitly relied on

U.S.S.G. § 4B1.2's Application Note 1 (which, as we said, is tied

to the residual clause) to conclude that possession of a sawed-

off shotgun constitutes a crime of violence.              To reach this

conclusion, Beckles cited and relied on circuit precedent, United

States v. Hall, 714 F.3d 1270 (11th Cir. 2013), for the proposition

that "the Guidelines commentary in U.S.S.G. § 4B1.2 is binding

and, thus, . . . possession of a sawed-off shotgun qualifies as a

'crime of violence.'"   Id. at 416 (citing Hall, 714 F.3d at 1274).

           In the pre-Johnson Hall case, the Eleventh Circuit was

"asked to decide whether an offense [i.e., possession of a sawed-

off   shotgun]   qualifies   as   a   'crime   of   violence'   under   the

[Guidelines's] residual clause."       Hall, 714 F.3d at 1273 (emphasis

added).   Thus, Hall determined that, thanks to the Guidelines's

residual clause, possession of a sawed-off shotgun is a crime of

violence because it "involve[s] conduct that presents a serious

potential risk of physical injury to another."          See id. at 1274.

It is evident, then, that after rejecting the notion that Johnson

is controlling, Beckles did no more than reaffirm Hall.          Beckles,

616 F. App'x at 416 ("Our decision in Hall remains good law and

continues to control in this appeal.").

           We need not opine as to whether we believe Beckles was

correctly decided.    This is because the government has expressly


                                      - 19 -
conceded that Johnson invalidated the residual clause in the

Guidelines.       Since Beckles (like Hall before it) was grounded in

the very language which the government itself now says must be

excised from the Guidelines, Beckles's reasoning and rationale are

inapposite here.      Thus, the Eleventh Circuit's opinion provides no

comfort for the government.10

                                   E.   Recap

          In sum, the government's arguments that we may affirm

the district court's finding that Soto-Rivera pleaded guilty to a

crime of violence fail.        We agree with Soto-Rivera that, in the

absence of the residual clause, there is no textual hook in

Guidelines    §    4B1.2(a)   to   allow   for   the   conclusion   that   his

possession of a firearm constituted a crime of violence.                    It

follows that the Guidelines's Career Offender provisions do not

apply, and that Soto-Rivera should not have been sentenced as a

Career Offender.       Accordingly, we must vacate the sentence and




     10 Though not cited by the government, the Eleventh Circuit
has issued a published opinion dealing with this topic. In United
States v. Matchett, 802 F.3d 1185, 1189 (11th Cir. 2015), our
sister circuit concluded that the now-advisory Guidelines
(including their residual clause) cannot be unconstitutionally
vague because the void-for-vagueness doctrine central to Johnson
"applies only to laws that prohibit conduct and fix punishments,
not advisory guidelines." We have no need to consider the Eleventh
Circuit's reasoning (which appears well on its way to becoming a
minority view, see note 12, infra) in light of the government's
concession as to the unavailability of the residual clause.



                                        - 20 -
remand for Soto-Rivera to be resentenced without being subject to

the Guidelines's Career Offender provisions.11

          As we said at the outset, our ruling is narrow.            We hold

only that, in light of the government's concession that Johnson

invalidates   the   residual     clause   in   Guidelines   §   4B1.2(a)(2),

Application Note 1 has become inconsistent with the remaining text

of the Guideline itself.         Therefore, the commentary provides no

basis for us to conclude that Soto-Rivera's crime of conviction,

felon in possession of a firearm, falls within § 4B1.2(a)(2)'s

definition    of   "crime   of   violence."      The   correctness   of   the

government's concession as to Johnson's impact on the Guidelines

is something we need not and do not consider here.12             See Evans-


     11 We recognize that the Sentencing Commission's Preliminary
Amendment discussed in note 8, supra, does more than just delete
the residual clause. It amends U.S.S.G. § 4B1.2(a)(2) to include
"unlawful possession of a firearm described in 26 U.S.C.
§ 5845(a)" -- that would include a machinegun -- within the meaning
of "crime of violence."

     Even if we make the two-part assumption that the Preliminary
Amendment becomes effective as-drafted on August 1, 2016, and that
the new text provides a basis for concluding that felon in
possession of a firearm may constitute a crime of violence in at
least some circumstances, it still would not be clear that the
Preliminary Amendment would justify increasing Soto-Rivera's
sentence.   After all, the Supreme Court has clearly held that
"there is an ex post facto violation when a defendant is sentenced
under Guidelines promulgated after he committed his criminal acts
and the new version provides a higher applicable Guidelines
sentencing range than the version in place at the time of the
offense." Peugh, 133 S. Ct. at 2078.

     12Indeed, our court has yet to weigh in on this topic, see
Castro-Vazquez, 802 F.3d at 38 ("We do not decide whether the


                                     - 21 -
García v. United States, 744 F.3d 235, 239 (1st Cir. 2014) ("This

is not to say that a government concession necessarily results in

an opinion adopting the conceded position."); see also id. at 237-

38 ("We generally do not rule on questions -- whether of fact or

of law -- until a district court has done so . . . .").

                           CONCLUSION

          For the foregoing reasons, Soto-Rivera's sentence is

hereby vacated and this matter is remanded to the district court

for resentencing consistent with this opinion.




residual clause of the [G]uidelines fails under Johnson."), and
this case does not provide a vehicle for doing so in light of the
government's concession.    In addition to noting the proposed
deletion of the residual clause, we also point out that several
other circuits have either concluded or implied that Johnson
invalidated it. See United States v. Madrid, 805 F.3d 1204, 1210-
11 (10th Cir. 2015) (holding the residual clause in the Guidelines
unconstitutional in light of Johnson); United States v. Taylor,
803 F.3d 931, 933 (8th Cir. 2015) (per curiam) (remanding for the
district court to analyze Johnson's impact on the Guidelines in
the first instance, but recognizing that "[a]lthough the
[G]uidelines are not statutes, district courts must consider
them," and so the notion "that the [G]uidelines cannot be
unconstitutionally vague because they do not proscribe conduct is
doubtful after Johnson"); United States v. Harbin, 610 F. App'x
562, 562-63 (6th Cir. 2015) (per curiam) (stating that the
appellant, whose sentence had been enhanced under the Guidelines's
Career Offender provisions, is "entitled to the same relief as
offenders sentenced under the residual clause of the ACCA" post-
Johnson, and remanding for resentencing).


                                - 22 -
